Regulation 17A in NSW

Regulation 17A. Just reviving this post as we are making progress. I will be meeting with the Roads and Maritime Minister next week. She has expressed interest in our argument. What I want from all Welshmen is a comment as to anything I may have missed. Included in that could I have comments from liveaboards on how they anchor and move about. I don't really want to cramp their life style but we must free up the system for those who are cruisers, whether short or long term.

Clause 17A of the Marine Safety Regulation 2016.
Part (1) of Reg 17A amounts to control of a citizen's right to free movement and use of private property. It is only being used to target cruising yachts whereas the Regulation applies to ALL VESSELS. Part (2) of Reg 17A needs a definition of place added. It should not be Sydney Harbour or Pittwater/Hawkesbury River as the RMS staff are interpreting. It should be a place as defined by a name [e.g. Little Manley Bay, Sydney or Jerusalem Bay, Hawkesbury River] on a marine chart.Statements by RMS with Rebuttals. From a letter by Terry McSweeny, Principal Manager Ministerial & Govt. Services, Customer Relations & Govt. Services, 20/11/2017 "At anchor" includes vessels secured to tree or other means of attachment to the shore or seabed. I would think this would include free Public moorings and marinas. "In any one place" means an identifiable area of water, such as a bay, and not just the spot the boat was anchored. We have yet to see the use of Tasman Sea but we certainly have seen Sydney Harbour, Pittwater and the Hawkesbury River, Lake Macquarie and Port Stephens. Their interpretation of "place" seems to change by which officer of the RMS is applying this rule and the larger the place name [e.g. Sydney Harbour] the better for RMS. The reason for this amendment is to ensure the mooring licence system cannot be circumvented. While no one wants to do this the reason we have yachts is to use them, so why are RMS targeting only cruising yachts? From a letter by Angus Mitchell, Executive Director NSW Maritime. Afloat Magazine March 2018. "a vessel cannot remain at anchor in a single geographical location for a periods exceeding 28 consecutive days with a maximum total of 90 days in NSW waters". Here we have a statement that it is a 'single geographic location' yet RMS is still saying that's Sydney Harbour etc. instead of a name bay on a chart. "b) To prevent vessel owners from circumventing the need to utilize commercial marinas" How can the State Government direct people to "utilize" certain commercial operations? "It is important to note that these regulations are not designed to discourage cruising yachts and visiting vessels from experiencing the beautiful waterways of NSW." So why are the only targeting cruising vessels? We have no reports of small private fishing boats, commercial vessels or even large ships being told where they are allow to anchor and for how long. Other comments in this letter relate to private moorings and responsible and sustainable use of NSW waterways while Reg. 17A actually heavily restricts the use thereof. Comments: As can be seen by the above comments by RMS Executive and by verbal comments [most of which are not documented] by RMS officers, it appears that they are adding to and applying the regulation, sometimes on a personal basis, their interpretation of the few words contain within Reg 17A. In no case have we heard that this regulation has been applied to any other vessel than a cruising yacht. This Reg applies to All Vessels, not the operator, such that if the vessel has had 90 days of anchoring, it must leave the state for an undefined period [according to one RMS Exec] or wait until the end of the calendar year. Question, do we get a reduction on our mooring fees, boat registration and compensation for lost insurance and maintenance cost for the other 275 days? If you sell that vessel I think the new owner cannot anchor the vessel again in NSW until the calendar year has passed as Reg 17A applies to the vessel, not the operator. According to one verbal advice from RMS HQ in Sydney, if you have a log book "you are OK". Whatever "OK" means. The act of anchoring is not defined. Does it mean for one hour or 24 hours or once in 24 hours? What if you anchor in two places in 24 hours, is that 2 days or one? Comments from Terry McSweeny [above] could be argued that being in a marina is still anchoring. Recently the RMS entered another faze whereas they are giving cruising yachts [but nobody else] written notification that they are anchored with the date when they must vacate that mooring area. [In one case it was the whole of Port Stephens]. One person I know of cruised last winter to Queensland from his home port of Jervis Bay, he was chased by the RMS on his return because he had used up his 90 days of anchoring sailing up and back down the NSW coast. Worst of all we have heard of several overseas visitors with 3 Year Commonwealth Cruising Visa being hassled. In line with this is the requirement that we must give RMS notice and obtain permission if we are going to vacate our private mooring for more than 28 days. We would ask why, as the license only allows the registered vessel to be moored on that mooring. If the RMS is too lazy to check boats against moorings, why are we doing their work? This section 109 & 117 in the Australian Constitution seem to be relevant here. It maybe that Reg. 17A is unconstitutional & should be removed immediately.
Inconsistency of lawsWhen a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
117. Rights of residents in States
A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State. Because of this Regulation cruising yachts are already leaving for Queensland or are passing through NSW faster than they normally would. Not good for tourism. So imagine if all this was applied to Caravans of which over 500 are made in Australia every week. Can you imagine the chaos within RMS if all caravans [read yachts] had to apply to go on the road for longer than 28 days?What would happen after 90 days, would they have to go interstate or just give up and park their caravans at home? Because this is what the RMS is asking us to do with our cruising yachts.A question for the RMS Minister is; "Why is this only being applied to cruising yachts when Reg 17A states "ALL VESSELS"Clause 17A of the Marine Safety Regulation 2016 should be withdrawn immediately.

NSW Sailor, you've done sterling work in identifying and writing up all the issues and angles involved. I would expect anyone who stands to benefit if your drive succeeds, to commend you for the time and effort you are allocating. I am one of those.

After reading through your post above, I can't fault any issue raised but I would say it is a "dense" read. I think it would help clarity if we could summarise in bullet point format, just so the "core" issues are distinct from the "ancillary" ones.

For example, in my view the three "core" issues are:
(1) 28 day anchoring limit is ok, but the "location" must be redefined as a particular bay, inlet or similar, not a collection of them or an entire waterway.
(2) The 90 day limit in NSW waters is oppressive and hurts many legitimate boaters in order to target an extremely small minority. Either make it 180 days or drop it and re-think how to target that minority.
(3) The regulation text must be "cleaned up" so there is no room for individual boating officers to reach varying interpretations. Nobody benefits from a regulation being inconsistently applied - that will sooner or later lead to litigation.

The "ancillary" issues of fishing boats, commercial boats, use of marinas, private mooring vacate notices etc. are all valid but do not trump, and should not deflect from addressing, the main issues.

In my opinion the arguments about all states treating citizens the same and about caravans are diversionary and not useful to the main cause.

As there is election coming....I suggest to contact the leading opposition candidate to the the sitting MP. They are more likely to make a commitment, and if they get in you will have an advantage.

Well done NSWS. A few years ago I wrote the submission that got Maritime to backtrack on a proposed law change. A few years later they backed it in quietly. If I recall, they said that they had to conform to the laws of other states. That leads one to wonder whether the same concept could be used to get rid of this law. After all, if they say NSW should have the same laws as other states.......well, what other states have such a restriction?

I'm leaving for an OS trip on Saturday morning and will be flat out until mid July. When does your submission have to be in?

yet RMS is still saying that's Sydney Harbour etc. instead of a name bay on a chart.

No doubt. I have been served with one of those notices that used words like "and conecting waterways, rivers and tributaries". Is the Tasman Sea still fair game?


"b) To prevent vessel owners from circumventing the need to utilize commercial marinas"

OK, whilst very true, a little bit of sarcasm above.

However, this is idea of being forced into using private marinas is of definite concern. So from when has the government had the power to coerce citizens into using specific commercial services that may not otherwise be necessary. Total no brainer that something is wrong here.

Totally stinks of violations of rights, harassment, collusion, bias....,, And it definitely opens the door to Maritime officers engaging in criminal activities by receiving "kickbacks and favours" from the particular marinas they "recommend"? Regulated and legitimised corruption?

I am sure the purpose of the underlying Act has nothing to do with forcing citizens to support a defined commercial venture or being subject to such harassment to do so? In fact, I am sure that there would be one or another precedent or principle that would render such regulations void?????

Time to brush up on my Administrative Law!!!!!

And answering NSW Sailors question, the need for clarity and consistency is a legitimate concern. While most Maritime Officers are more than reasonable, there are others like on Lake Macquare who constantly get negative feedback from cruisers. As above sections like 17 (b empower them to act outside the norm and harass boat owners at will. Many even extend the ambiguity of the Regulations to create their own rules.

Of even more concern is the corruption the breadth of their discretion encourages. A number of times I have asked boat owners on the lake how they have been getting away with overstaying on wharves and other misdemeanours. The constant answer is, "I am friends with the Maritime boys"! The owner of one large powerboat, all but permanently on a two hour limit wharf at Valantine, proudly told me he regularly gave the officers beers!

Yet the same officers have been recorded harassing cruising sailors in instances like was published in Afloat magazine a couple of years back. In this case, a senior RMS manager replied in the next issue of Afloat clarifying it was legally to leave a boat at anchor as long as you fulfilled obligations such as not impeding navigation and displaying the appropriate light. Typically though, the cruiser was then accused to have been impeding navigation to a wharf?

Even after the Afloat anchoring incident, I had a run in with an Officer who still expected me to listen to regulations that don't exist. Luckily when I reminded him this was recently resolved in the magazine, he took it well. Nevertheless, it would be hard to blame him anyway when extending regulations - and even creating their own - has become such an ingrained part of the organisation's culture

So NSW Sailor is correct about the need for clarity and consistency in the orders given by Maritime Officers, whether verbally or written. It is also obvious the S17, or at least in part, should be repealed. Probably the biggest issue now is that it has already caused many waterway users to have lost faith in the RMS and it's Officers?

Here's an idea,
Maybe surfershaneA could take nswsailor's admirable efforts and massage it up with his lawyer skills to a killer presentation for samsturdy to hit his local member with......

Ok, this is the situation at this moment, I have an appointment with the Hon Minister Pavey MP on the 26th July as the proposed one tomorrow did not pan out. To help every one in going to their local member or putting their own slant on Clause 17A I have posted below my arguments. Still feel free to comment etc. I haven't posted the Regulation Clause 17A or two letters from the Maritime Executives, you'll find them in a previous post. I have edited some of the material to protect the innocence. There were dot points to this, you will have to work it out.

Submission on the reasons for the removal of Clause 17A of the Marine Safety Regulation 2016.
Statements by RMS with Rebuttals. From a letter by Terry McSweeny, Principal Manager Ministerial & Govt. Services, Customer Relations & Govt. Services, 20/11/2017.
"At anchor" includes vessels secured to tree or other means of attachment to the shore or seabed. I would think this would include free Public moorings and marinas.
"In any one place" means an identifiable area of water, such as a bay, and not just the spot the boat was anchored. We have yet to see the use of Tasman Sea but we certainly have seen the whole of Sydney Harbour, Pittwater, the Hawkesbury River, Lake Macquarie and Port Stephens as a place including connecting waterways, rivers and tributaries. Their interpretation of "place" seems to change by which Maritime Officer is applying this rule and the larger the place name [e.g. Sydney Harbour] the better for the RMS Officer.
The reason for this amendment is to ensure the mooring license system cannot be circumvented. While no one wants to do this the reason we have yachts is to use them, so why is Maritime targeting only yachts when the Clause is about "vessels"? This fact is not stated in Clause 17A.
From a letter by Angus Mitchell, Executive Director NSW Maritime. Afloat Magazine March 2018.
"a vessel cannot remain at anchor in a single geographical location for a periods exceeding 28 consecutive days with a maximum total of 90 days in NSW waters". Here we have a statement that it is a 'single geographic location' yet Maritime Officers are still saying that's Sydney Harbour and connecting waterways, rivers and tributaries etc. instead of a named bay on a chart.
"b) To prevent vessel owners from circumventing the need to utilize commercial marinas" How can the State Government direct people to "utilize" certain commercial operations? Is there a commercial relationship between the Maritime and any commercial marina operator? Could this have potential for corruption of a Maritime Officer?
"It is important to note that these regulations are not designed to discourage cruising yachts and visiting vessels from experiencing the beautiful waterways of NSW." So why are the only targeting cruising yachts and visiting vessels? We have no reports of small private fishing boats, commercial vessels or even large ships being told where they are allow to anchor and for how long. Other comments in this letter relate to private moorings and responsible and sustainable use of NSW waterways while Clause 17A actually heavily restricts the use thereof.

Comments:
As can be seen by the above comments by Maritime Executive and by verbal comments [most of which are not documented] by Maritime Officers, it appears that they are adding to and applying the Clause, sometimes on a personal basis, with their interpretation of the few words contain within Clause 17A.
The Clause 17A applies to All Vessels, not the operator, such that if the vessel has had 90 days of anchoring, it must leave the state for an undefined period [according to one Maritime Executive] or wait until the end of the calendar year. Question, do we get a reduction on our mooring fees, boat registration and compensation for lost insurance and maintenance cost for the other 275 days?
If you sell a vessel with 90 days of anchoring done, I think the new owner cannot anchor the vessel again in NSW until the calendar year has passed as Clause 17A applies to the vessel, not the operator.
If it is related to the operator, when a vessel is owned by two or more owners, do they each get 28/90 days anchoring?
According to one verbal advice from Maritime HQ in Sydney, if you have a log book "you are OK". Whatever "OK" means.
The act of anchoring is not defined. Does it mean for one hour or 24 hours or once in 24 hours? What if you anchor in two places in 24 hours, is that 2 days or one?
Why is this only being applied to yachts when Clause 17A states "ALL VESSELS"
Comments from Terry McSweeny [above] could be argued that being in a marina is still anchoring.
Recently Maritime entered another faze whereas they are giving yachts [but nobody else] written notification that they are anchored with the date when they must vacate that mooring area. [In one case it was the whole of Port Stephens].
A yacht has been served with one of those notices that used words like "and connecting waterways, rivers and tributaries". Is the Tasman Sea still fair game?
One person I know of cruised last winter to Queensland from his home port of Jervis Bay, he was chased by a Maritime Officer on his return because apparently he had used up his 90 days of anchoring sailing up and back down the NSW coast. We don't know how the 90 days were calculated, we suspect that as he had been away for over 90 days, therefore he must have been anchored for over 90 days. He had to go on a commercial mooring.
Worst of all, we have heard of several overseas visitors with 3 Year Commonwealth Cruising Visa's being hassled about the 90 day limit.
In line with this is the requirement that we must give Maritime notice and obtain "permission" if we are going to vacate our private moorings for more than 28 days. We would ask why, as the license only allows the registered vessel to be moored on that mooring. If Maritime is too lazy to check boats against moorings, why are we doing their work? Why do we have to ask permission in the first place?
Because of Clause 17A, yachts are already leaving for Queensland or are passing through NSW faster than they normally would. Not good for tourism or the state's economy.
This section, 109 & 117 in the Australian Constitution, seem to be relevant here. It maybe that Clause 17A is unconstitutional and should be removed immediately.
Inconsistency of laws When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
117. Rights of residents in States
A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State. You should look also at the statute empowering the regulation.
Clause 17A is a curtailment of existing liberties, and I would have thought that the power to make such a curtailment (by regulation) would have to be very specifically spelt out in the statute. If the regulations do not seem to be within the regulation making powers then they are ultra vires and of no effect.
The underlying principle of Administrative Law means that authorities can only regulate and act under the powers conferred on them. There is something seriously wrong in the Maritime Regulations that could legitimately be challenged in the Courts.
Comments from the Web: [Collected from the last week in July 2018]
Why is Maritime applying a regulation which forces boat owners to "utilize commercial marinas"? Is there a commercial relationship between Maritime and any commercial marina operator? Could this have potential for corruption of a Maritime Officer?
What happens when all the marinas in an area are full?
The Maritime Regulations give the individual Maritime Officers the power to move a vessel along before you have overstayed your Clause 17A anchoring rights, Maritime Officers can "encourage" you to move to a private marina. In this case the regulations open the door to harassment, collusion and corruption. Definitely not a "power" that would be expected to be left to an individual capable of abusing them.
Who initiated this? I bet I know the same fellow at MIA and previously at BIA who is pushing the Airbnb for boats, but only in a marina. He will support any regulation that brings business into marinas and the industry.
One person is paying a lot of dollars for a marina berth in Lake Macquarie which they cannot access because the Swansea Channel is too shallow for them to re-enter the lake. They left in late March [being pulled over to do so] and despite claims that dredging was to have been completed by end of May the channel remains too shallow. So they are also paying for a marina berth in Newcastle, for over 2 months now. If they had been on anchor or public moorings (Pittwater, Port Stephens) instead, they would have contravened Clause 17A by now.
It certainly seems to be aimed at making us stay in marinas, which (as many have already said) reeks of corruption. My catamaran, on which I live, has been in QLD for the past 5 years and I anchor wherever I want for however long is appropriate. I often sail to my jobs as a GP locum and anchor up when I'm flown to the outback to work in remote areas.
I've been wondering what they were attempting to achieve with this legislation.
I know one excuse put forward was for environmental protection, but this legislation does nothing to protect effluent from being discharged from vessels in marinas, nor does it address the many vessels that lack holding tanks who can anchor for virtually [but not more than 90 days] every weekend of the year. Where do they think their waste is going? Even if they have holding tanks, I don't hear of any queues for the pump out points after a weekend.
And what about all the vessels being used that reside on swing moorings?
I know it's a condition of the mooring license that one cannot live aboard but I don't know of any restrictions as to how many days or nights you can be aboard. What is the difference between a vessel on a swing mooring for 365 days per year and one at anchor? If they really wanted to do something to protect the environment then more pump out points that are free or even for a small fee would be a more appropriate response. I have heard an argument that the salt water that these inject can upset the chemical processes in the sewer systems. I don't know if this is true or not but if so it would explain their reluctance in installing and maintaining these pump out points, or is it just simply a lack of capital funds being made available to address the actual problem directly? Or is it just this bigotry that exists against all boat owners these days?
We seem to be viewed as hangers on, or as the upper crust, neither of which seem to warrant any money being spent on us by our modern day society and yet it is a vital industry that injects massive amounts of money into the NSW economy every day!
Is it just simply paranoia that all homeless folks are going to turn our waterways into an Asian-like ghetto?
Another important factor is that the amended regulation actively discourages the keeping of a ships log as it could be used as incriminating evidence and likewise discourages logging on with the VMR. Needless to say this will raise serious safety issues and potential added cost to any search and rescue operation.
We know it could negatively impact someone who cruises up and down the NSW coast. For example, if a budget-constrained sailor came up from down south, spends a couple of weeks anchored in Eden, then Bateman's Bay, Jervis Bay, Port Botany and Port Jackson, he could easily consume his allowed 90 days before he even gets to the Central Coast. Clause 17A will stop his cruise - that's the real drawback.

Hi, any further movement on this or has the good minister shown the expected disinterest and totally dismissed the issue?
Perhaps given the debacle within the federal branch of the party this week she should be reminded that we boat and we vote !!

Ok, here is the situation.

I've had two meetings cancelled, one by Pavey and one by me [I was away sailing] BUT....

This Monday at 1330 I will be meeting with the Hon Pavey in Kempsey and I will report to all around 1800 that afternoon.

I think I've got the argument down to an easy read and given time I will also raise the matter of the poor bar cams in NSW.

Phillip