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Bob's note: this article followed a heated round of letters to TCP by angry boaties who felt they were given fines inappropriately. Several contributors dug through the law and found that MSQ (Marine Safety Queensland) was in error but dissagreed on detail. Andrew Crawford was asked to help sort it out and his response is below. Over a year later we have gotten reports that MSQ is once again fining people for this so this page has been permanently added to the TCP site.

By Andrew Crawford
There has been much discussion debate and confusion
regarding the legal status of yacht tenders specifically
with regard to what equipment should be carried and
when. And judging by the emails between TCP's Bob
Norson and the General Manager of MSQ much of the
confusion appears to emanate from the regulatory
authorities, in this case Marine Safety Queensland.
So lets go and have a look at the law shall we! We might
even look at policy along the way and demonstrate that
policy is nice but its the law we have to obey.
As always I must warn everyone that I am not a lawyer,
solicitor or barrister or a person in any way qualified to
dispense legal advice. You want legal advice pay a
solicitor. What I will do is what every citizen should be
able to do, read the law that parliament has passed and
try and understand my obligations. Also I must note that
all this discussion is predicated on the point that we are
talking about recreational ships, not commercial or
fishing vessels.
I am increasingly frustrated by the concept that we, the
ordinary folk whose life is governed by the law are
expected to resort to legal advice to understand the law.
It should not be and indeed is not necessary, provided
you take the time to carefully and thoroughly read the
legislation.


The Law:
The law on this matter is contained in the Transport
Operations (Marine Safety) Act 1994. Also relevant is
the Regulation under the Act, not surprisingly called the
Transport Operations (Marine Safety) Regulation 2004.
As an aside the whole suite of law relevant to what we do
with our humble boats is somewhat convoluted and
disparate. I recall for example when the Poo Police laws
came out that I needed to refer to five different laws and
regulations and one international treaty to just get
started. Anyway, back to the subject at hand:
Part 4 of the Act deals with “General Safety Obligations”,
and there are many relating to construction, operation
equipment and the like, the two sections we need to look
at are 43 and 44. (both sections have more in them
including an increase in penalty in certain
circumstances).
Sect 43 of the Act says that:
(1) A person involved with a ship's operation (including
the owner, master, pilot and crew members) must not
cause the ship to be operated unsafely. Maximum
penalty500 penalty units or imprisonment for 1 year.
(2) Without limiting subsection (1), a person causes a
ship to be operated unsafely if the person causes the
ship to be operated in a way that
(a) causes a marine incident; or
(b) contravenes
(i) conditions of the ship's registration about safety; or
(ii) a provision of a regulation that is declared by a
regulation to be a provision to which this section applies.
Section 43 refers to marine incidents and the
definition of a marine incident is in Sect 123 which
says....
(1) A marine incident is an event causing or involving
(a) the loss of a person from a ship; or
(b) the death of, or grievous bodily harm to, a person
caused by a ship's operations; or
(c) the loss or presumed loss or abandonment of a ship;
or
(d) a collision with a ship; or
(e) the stranding of a ship; or
(f) material damage to a ship; or
(g) material damage caused by a ship's operations; or
(h) danger to a person caused by a ship's operations; or

  (i) danger of serious damage to a ship; or
(j) danger of serious damage to a structure caused by a
ship's operations.
(2) A marine incident also includes another event
prescribed by regulation.
(3) However, a marine incident does not include an event
declared by regulation not to be a marine incident.
Sect 44 says that:
The owner or master of a ship must not operate a ship if
(a) the ship is required by a regulation to be equipped with
safety equipment; and
(b) the ship is not equipped with the safety equipment.
Maximum penalty500 penalty units or imprisonment for 1
year.
Part 5 of the Act deals with Registration, Licensing, Permits
and Accreditation. Sect 56 (in that part) says that a
regulation may require the registration of ships. Sect 60
says that a regulation may require a person to hold a licence
to undertake various functions.
So - now to the regulations. Part 2 of the Regulation has a
large amount of information, but what is relevant to this
discussion is contained primarily in Part 2 Division 5. That
division is the law on other safety equipment for recreational
ships and states:
Sect 27 Application of div 5
1) This division applies to the following ships
(a) a ship registered under this regulation as a recreational
ship;
(b) a ship that is registrable under this regulation as a
recreational ship but is not registered;
(c) a recreational ship mentioned in any of paragraphs (a)
to (l) of section 60(2), other than paragraphs (f) and (i).
(2) Also, this division applies to a commercial ship or fishing
ship to the extent necessary to give effect to sections 18 and
25.
That short section has a lot in it, but fundamentally Sect 27
requires you to carry various items of safety equipment if the
ship is registered, or is registrable or is one of the many
mentioned in various parts of Section 60 (2), but not
including (i) yacht tenders operated with 2 nautical miles of
a recreational ship.
Part 2 Division 5 of the Regulation includes the detail of
what is required to be carried on vessels mentioned in Sect
27 of the Regulation.
Section 29 talks about lighting devices and fundamentally
says that all recreational vessels, including yacht tenders,
must carry a light signalling device between sunset and
sunrise (e.g. a torch).
Section 30 deals with safety equipment in smooth waters
and you must have a PFD 1, 2 or 3 for each person on
board, (and fire fighting equipment if it is longer than 5
metres). The life jacket requirement however does not
apply if you are in a river, creek stream or waters inside a
breakwater (e.g. most marinas) and you have lines you can
grab onto and the vessel has positive flotation and that is in
a statement in the approved form.
Section 31 deals with safety equipment in partially smooth
waters and beyond and you must have a PFD 1 or 2 for each
person on board, (PFD 1 if beyond partially smooth waters,
fire fighting equipment if it is longer than 5 metres, V sheet,
& handheld red flares, 2 handheld orange smoke signals.
The flares and smoke signals must conform to various
codes or standards. And of course you have to pay to get a
copy of the Australian Standard.
Sect 34 says that tenders REQUIRED TO BE
REGISTERED also have obligations. These are
contained in sections 36, 37, 38 and basically mirror what is
in 30 and 31, but provide that these vessels don't need this
stuff if they are operated within 1 kilometre of the “mother
ship” and there is a flotation statement. This section is really
confusing, everywhere else we talk about 2 nautical miles
Shortly after this article was received, an important high court decision was announced that appears to have weakened the argument for the validity of the "general safety obligation" discussed above. It too will be posted and a link provided here and elsewhere.