Operating Vessel Unregistered, Unlicenced or Disqualified


The RMS requires boat owners to register their vessel and to hold an appropriate licence to operate a recreational vehicle in NSW. The Marine Safety Act 1998 (NSW) contains penalties relating to both offences, both of which give the court the discretion to record a conviction against you for the offence. Section 10 of the Crimes (Sentencing Procedure) Act also allows a court that finds a person guilty of an offence the discretion not to impose a conviction against them.

This section contains information written by experienced lawyers about the laws regulating licencing and registration for boats, watercraft and vessels. It has been designed to inform people about the likely penalties and their options for avoiding a criminal record.

The laws apply to “any water craft of any description used or capable of being used as a means of transportation on water.” This definition is very broad and captures boats, yachts, jet skis, paddle boats, house boats, kayaks, kiteboards and even rafts. The laws do not apply to structures that are merely floating, for example pontoons, air docks or flotation equipment.

The Meaning of Operate

To “operate” a vessel includes:

  • to determine or exercise control over the course or direction of the vessel or over the means of propulsion of the vessel (whether or not the vessel is underway), and
  • to pilot the vessel, and
  • in the case of the owner of the vessel, to cause or allow the vessel to be operated by someone else.

Operating Unregistered Vessel

An owner of a vessel operating in NSW waters must register the vessel and hold a vessel registration certificate.

The offence of operating an unregistered vessel is committed by an owner of a vessel operating in NSW waters that has not registered their vessel under the Act or does not hold a registration certificate.

The law provides a defence to prosecution for this offence and also some exemptions.

The maximum penalty for operating an unregistered vessel is 75 penalty units.

The offence of Operate Unregistered Vessel:

The offence of Operate Unregistered Vessel is contained in section 51 of the Marine Safety Act. The section states:

The owner of a State registrable vessel must not operate the vessel in State waters unless the vessel is registered under this Act and the owner is the holder of the vessel registration certificate.

What actions might constitute Operating an Unregistered Vessel?

Examples of Operating an Unregistered Vessel include:

  • Driving an unregistered speedboat;
  • Sailing an unregistered sailboat;
  • Riding an unregistered jet ski from the back of a yacht up onto a car trailer; or
  • Paddling an unregistered inflatable boat from one side of the harbour to the other.

What the police must prove:

To convict you of Operating an Unregistered Vessel the prosecution must prove each of the following matters beyond reasonable doubt:

  • That you were operating the vessel; and
  • That the vessel was not registered.

Defence

It is a defence to a prosecution if the person in command of the vessel establishes that they did not have any reasonable cause to believe that the vessel was not registered.

The common ways to defend this charge are:

  • To maintain your innocence if you did not commit the act;
  • To argue that you were not operating the vessel;
  • To show that the vessel was in fact registered;
  • To argue that what you were operating does not fall within the statutory definition of a ‘vessel’; or
  • To raise necessity or duress as the reason for your conduct.

Exemptions

A vessel is exempt from registration if it:

  • is not ordinarily operated in State waters,
  • has been in State waters for less than 3 months
  • is registered in another State, Territory or Country,
  • it is of a class exempted by the regulations, or (SEE CLAUSE 61 of Reg)
  • the Minister exempts registration in writing.

Which court will hear your matter?

The offence is a summary offence and will be finalised in the Local Court.

Operating Unlicenced Vessel

All persons operating a recreational vessel must have the appropriate boat driving licence that authorises them to do so.

The offence of operating a recreational vessel without an appropriate boat driving licence is committed by a person in command of a recreational vessel without a boat driving licence which authorises the person to operate the vessel.

The maximum penalty for committing this offence is to have a conviction recorded, a cancellation, suspension or disqualification of the boating licence and a fine of $1,650. The court will use its discretion when determining the period of disqualification.

Operating Vessel while Disqualified

All persons operating a recreational vessel must have the appropriate boat driving licence that authorises them to do so.

A person who is disqualified from holding or obtaining a boat driving licence must not operate a recreational vessel as its master or omit to mention the disqualification on an application for a boat driving licence during the period of disqualification.

The maximum penalty for this charge depends on whether a person is a first offender or repeat offender. In either case, the starting point in sentencing would be for a criminal conviction to be recorded, a period of imprisonment of 18 months, a fine to be imposed and a disqualification of the boating licence for 12 months.

First Offence

The maximum penalty for a first offence for this charge is for a criminal conviction to be recorded, a period of imprisonment of 18 months, a fine of $11,000 and a minimum disqualification of 12 months.

Repeat offender

The maximum penalty for a repeat offender for this charge is for a criminal conviction to be recorded, a period of imprisonment of 2 years, a fine of $13,750 and a minimum disqualification of 24 months.

Exemptions

A person cannot commit the offence of operating a vessel while disqualified if they are not required to hold the licence at the time of the operation, that is, travelling (other than on a PWC) under a speed of 10 knots. Accordingly, the prosecution must provide satisfactory proof of that element to establish the charge.

Repeat Offender

Classification of an offender as either a first or repeat offender is fundamental to the sentencing of boating matters. For most major boating matters there are automatic penalties that apply including automatic periods of licence disqualification. These penalties are significantly more severe for repeat offenders.

A person is a repeat offender with respect to a boating offence if it is the second or subsequent occasion on which the person is convicted of a major offence within the period of 5 years immediately preceding the offence for which the person is now charged. Major offences include offences such as PCA boating offences and serious criminal offences, like grievous bodily harm or murder caused by operation of a vessel.

Repeat offenders are also not entitled to be afforded the leniency of a section 10 non conviction order if they have been afforded that leniency in similar circumstances during the five years preceding the charge. This means that a repeat offender will have a conviction recorded against their name, will be subject to a period of boat licence disqualification and may be subject to further penalties. It is here a lawyer can help you to argue to reduce the period of disqualification and seek to reduce the overall punishment eg from one category of punishment like imprisonment to another category like a suspended sentence or bond.

However, a person before the court for a second major boating offence will not be classified as a repeat offender if they received a section 10 non conviction order for their first major offence.

WHERE TO NEXT?

In NSW, traffic offences are treated seriously. Therefore, it is important to get competent legal advice as early as possible, whether you have received a penalty notice, had your licence suspended or been charged with a serious offence. Our lawyers are highly experienced and understand the difficulties you face without a licence. We can guide you through the process while dealing with the various authorities related to your matter.

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