by Andrew Crawford

Maritime Safety Queensland have a habit of, some may say smugly, going AHHH but there is always the GSO (General SAfety Obligation). THe, MSQ, appear to believe that where there may be a gap in the law, or indeed where there may be a gap in their ability to successfully investigate and prosecute, that they can rely on the GSO. There has been a recent High Court of Australia (HCA) decision that may have weakened MSQs position on this matter.

As always I must warn everyone that I am not a lawyer, solicitor or barrister on 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.

The GSO is in the TOMSA (Transport Operations Maritime Safety Act), I love acronyms don't you?

Two relevant sections state:

41 General safety obligation of ship owners and masters about condition of ships
(1) The owner and master of a ship must not operate the ship unless the ship is safe.
Maximum penalty-500 penalty units or imprisonment for 1 year.
(2) However, if the contravention of subsection (1) causes a marine incident involving the death of, or grievous bodily harm to, a person, the owner and master commit an indictable offence and are liable to a maximum penalty of 5000 penalty units or imprisonment for 2 years.
(3) For the purposes of this section, a ship is safe if it is seaworthy, and is appropriately equipped and crewed, to meet the ordinary perils of the voyage on which the ship is proceeding or about to proceed.

42 General obligation on persons involved with operation of ship to operate it safely
(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 penalty-500 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.
(3) However, if the contravention of subsection (1) causes the death of, or grievous bodily harm to, a person, the owner, master, pilot, crew member or other person commits an indictable offence and is liable to a maximum penalty of 5000 penalty units or imprisonment for 2 years.
(4) A person does not contravene this section because of subsection (2)(a) if the only basis for holding that a marine incident has been caused is lawful damage to, or danger of lawful damage to, property of which the person is the sole owner.
(5) In this section-
lawful damage means damage that is not unlawful under the Criminal Code, section 469.

Section 41 is reasonably straightforward and somewhat less offensive that section 42. Offensive it is to the principles of public policy and criminal law but somewhat less offensive. Its offensive nature comes from lack of prescription. By that I mean that the section says that the ship is safe if it is
(i) seaworthy - who decides that and how
(ii) appropriately equipped - whats that?
(iii) appropriately crewed - in who's mind, does that mean that Dame Ellen Macarthur would be arrested by MSQ if she called in here on her way round the world solo?

The section goes on to talk about "ordinary perils", what precisely are they? So you can see my concern. There are some people who I know that would say that any boat that can sink (i.e. a ballasted monohull) is not appropriate to the perils of a voyage, equally there are some that say a vessel that cannot self right (i.e. a cat) is not appropriate to the perils of a voyage

Section 42 is even worse in its lack of specificity and its ridiculously broad and overreaching position. For example Section 42 purports to to say - you commit a marine incident, you have thus have operated the ship unsafely and you are up for one year in the local Correctional Centre (On the plus side, I think Qld's jails are the best around).

Buts let have a look at what that means. A marine incident is defined in

123 What is a marine incident
(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.

For argument sakes lets take Section 123 (1)(e). You are sailing along and you run aground, no big deal, wait for the tide. However, you have committed a marine incident pursuant to Section 123 (1) (e) as you have stranded the vessel, and thus you have breached Section 42 of the act because you have operated the vessel and caused a marine incident. (as an aside you probably won't report the grounding and that's another breach).

It's that simple, cause a marine incident, and you have breached the GSO in the TOMSA. This is offensive to all reasonable policy objectives of the criminal law, the vagueness and inability to particularize the offence are at odds with hundreds of years of criminal law.

However, the High Court of Australia may just have some guidance on this. In a recent decision; COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS v MALGORZATA BARBARA PONIATOWSKA [2011] HCA 43, theHigh court discussed offenses which are composed of broad non specific omissions.

The case was about a women who failed to tell Centrelink about various monies that she received that, had Centrelink known about, would have caused Centrelink to pay her less. Leaving aside the morality of her actions, the HCA did give us some guidance on the likelihood of MSQ sustaining a GSO prosecution.

The abridged judgement says: "The respondent pleaded guilty before the Magistrates Court of South Australia to each of the charges and was sentenced to 21 months' imprisonment, subject to the direction that she be released immediately upon entering a bond to be of good behaviour for two years. The respondent unsuccessfully appealed against the severity of the sentence to the Supreme Court of South Australia. The respondent then appealed to the Full Court of the Supreme Court of South Australia, challenging her convictions on the grounds that the counts did not charge offences known to law, and that the counts were deficient in their failure to identify the transaction, act or omission on which liability was said to depend. The Full Court allowed the appeal and set aside the respondent's convictions".

The prosecution appealed to the HCA and lost. The decision when read in full seems to give rise to a reasonable interpretation that some "catch all" provisions in criminal law may be invalid in some cases. And that is as it should be. We should not breach the law by accident but rather by intent.

We will see. One of the things I love about legal matters these days is that all the legislation is on line as are the appeal court cases. I will follow with interest. As always this is just my view, I am not a solicitor or admitted to practice law in anyway. And as always my final piece of advice is be sensible, take care and if you are pinged get some quality legal advice before you rush off and pay the fine.