TCP A 47 PG 1 - The Coastal Passage Home Page

TCP has published accounts from vessels that had been ordered to move on when the skippers claimed that it would be unsafe to do so.This seemed to strike at the heart of the principle that the responsibility and authority for ships safety must rest with the skipper. Newinformation below suggests that is the case and the enforcement alleged in the letters from Jill and Lin was incorrect. The original accounts(edited for space but full versions available in the original editions on the website) are included either side of the letter below.JILL KNIGHT REPORTS ONMOOLOOLABAANCHORING RULESDear Coastal Passage,The letter from Rose-a-Lee in TCP #43 rangbells for me. In March I had an encounter withBoating and Fisheries officers in theMooloolaba anchorage after a complaint froma canal home-owner that I was living aboard. Ihad not suffered a bereavement, as Lin andher husband had, but was spreading my tendays allowed for living aboard over a slightlylonger period in order to accommodate eyesurgery.The encounters sound identical - the BadCop so bad he was horrid and the Good Copcompletely silent so that I thought he mighthave been recording: probably not, since theexchange took something like half an hourdue to meticulous transcribing of my exactwords by the Bad Cop into a little note book.In any case, I had nothing to hide or thought Ihadn't: he claimed I could not stay aboardeven for one night, but I knew this was wrong.Nevertheless, I was given an InfringementNotice and a fine of $200 and told there wouldbe another one if I was found aboard nextmorning. I left the harbour that night with verydodgy vision.From further up the coast I phoned HarbourControl, the Dept of Transport guy most of uscall the Harbour Master, to find out where I hadgone wrong. When I mentioned the eyesurgery he suggested I write and requestreconsideration of the fine.That request was refused and I paid the fine.Given that not one of the many sailors Idiscussed this with was clear on the relevantlegislation and how it was being implementedin Mooloolaba, I rang the head of MooloolabaBoating and Fisheries to clarify what sailorscould do in that waterway with impunity: itturns out, not very much.Section 10 (3) of the Transport Infrastructure(Sunshine Coast Waterways) ManagementPlan 2000 provides the only exceptions to aban on living aboard, even for one night: awatercraft that has entered Sunshine Coastwaters from seaward while on a genuinevoyage along the coast or an internationalvoyage if (a) entry was made for the purposeof (i) taking shelter from adverse weather: or(ii) making urgent repairs; and (b) the livingaboard is for no more than 10 consecutivedays.B&F's Rick Exton was patient with myquestions and clear in his answers:Mr Exton said that there had been conflict inrecent months among the various policingauthorities in Mooloolaba and that HarbourControl would no longer be advising sailorsthey had 10 liveaboard days unless theirsituation accorded with the legislation above;The reasons Mr Exton gave for the recentstrict application of the law were: congestionin the waterways; offence given to canal homeowners by people who showered and roamedon decks nude and who hung laundry;indignation of canal homeowners who paidbig rates for an environment for which boatdwellers paid nothing. Any complaints fromhome owners would be followed up byauthorities. He said he was not aware of aparticular home owner at the far south end ofthe anchorage, on the island, as an habitualcomplainant;I am sorry to say that for those of us who don'twant to use marinas or can't find a place there,the days of enjoying this excellent andconveniently placed harbour and this verypleasant and useful provisioning andmaintenance stop may be over.Jill Knight, Yacht CooeePage 6 The Coastal Passage #47 2011To TCP,I have read the earlier letter by the ownersof Rose-a-Lee (TCP 43) and now by JillKnight (TCP 45) about the anchoring rulesin Mooloolaba River. Both cause concernas both felt compelled to go to sea inconditions that could pose a danger to themand their vessels. Any state legislation issubject to commonwealth law, including theNavigation Act, where there is aninconsistency. In this situation also theTransport Operation (Marine Safety) Act(TOMSA) takes precedence over thesubordinate legislation that the fisheriesofficers are purportedly enforcing.If due to inclement weather or someother matter that could endanger yourvessel and you cannot put to sea safelythen you should not do so. It can also beimportant to keep a vessel safe to havesomeone on board to monitor theanchoring of that vessel.The actions alleged in these letters byfisheries officials could endanger the livesof those on board and the safety of thevessel for their purported actions under theWaterway Transport Management Plan(WTMP). The safe operation of a ship is arequirement of TOMSA, and legitimatedefence to a charge brought under WTMP,which is subordinate legislation, ifcomplying with a requirement of TOMSA.Safety takes precedence. If you have toanchor to ensure safety and as an incidentof navigation then you are entitled to.You should tell the officers your reason fornot being able to safely go to sea. This couldinclude inclement weather, exhausted or illcrew or that repairs are required to makethe ship seaworthy. You should ensure thisis recorded (by you and the officer). If thereason for not going to sea is valid and theofficers issue MINs (Minor InfringementNotice), their actions may well beunreasonable and potentially unlawful. Itmay also amount to misconduct thatrequires referral to the Crime andMisconduct Commission depending uponthe circumstances.Also remember that you do not have toanswer their questions if you are entitled toclaim privilege against self-incrimination, inmost cases however legal advice should besought. The officers should allow you areasonable time to seek legal advice.Fisheries officers have the power to ask fornames and contact details if they think youare committing an offence or reasonablysuspect you have committed an offence. Ifthey reasonably suspect any name andaddress you supply is false, the officers canask for proof of that. (s475Y TIA) but tocomplicate matters further, as the identity ofan individual is an element of the offencethe officer may suspect you havecommitted, you may also claim privilege inrelation to that information as well.You are not required to consent to themcoming aboard your vessel (see s475IThe behaviour of the fisheries officers as TIA). If you do not consent they may thenalleged could be the subject of a complaint obtain a warrant to enter and exercise ato the Minister and to the Queensland numbe r of power s inclu ding searc h,Ombudsman. The Ombudsman does inspection, taking documents etc.investigate actions of bureaucrats that canb e u n f a i r o r c o u l d c o n s t i t u t e The above is a brief and incompletemaladministration. For reasons that summary of their powers. If you own orinclude increased accountability and to operate a vessel you should read theensure the appropriate focus of any legislation to better inform yourself aboutcomplaint investigation is on the actual the laws that effect your operations (seeconduct of officers rather than the credibility Chapter 15 Part 2 of the Transportof your version of such conduct - it is Infrastructure Act accessed by googlingperfectly lawful for you to record or video Queensland Legislation and going to theconversations and events like those Parliamentary Counsel site OR SEEdescribed in the letters.http://www.legislation.qld.gov.au/Acts_SLs/Acts_SL.htm).Under Queensland law you do not have toadvise fisheries officers that you are audio With the Rose-a-Lee owners it is not likelyrecording them so long as they are aware to be material in any way that they owned ayou are present when the recording is home at Mooloolaba or anywhere else. Normade. You must be a party to the is it likely to be relevant that Cooee hasconversation. This does not mean you Mooloolaba listed as her home port ashave to say anything, so long as they are clearly Jill cruises all over the place. Sheaware of your presence. Police officers appears to be on a genuine voyage,r o u t i n e l y c o v e r t l y r e c o r d t h e i r (probably from Brisbane to Maryborough)conversations with people stopped in as were the owners of Rose-a-Lee. I thinkvehicles for traffic offences using recorders that each of those cases could have beenconcealed in their pocket (and recorder successfully defended on the basis of thewatches in some instances). They also do versions given.this to ensure conversations are accuratelyrecorded if the matter needs to go to court or Giv en the rea son s for enf orc eme nta complaint is made by a member of the provided, the question has to be askedpublic.whether the actions taken by officials wereundertaken for a lawful purpose if theYou do not have to advise the officers that reason is to do the bidding of home ownersyou are video recording them in a public who have purchased a house.place or aboard your vessel. Bear in mind However, someone has to be prepared tothat just because officials may (or may not) take action by either making complaints to abe rude, that is no reason for you to be. You proper agency such as the Ombudsman, orshould politely assert your rights where the relevant Minister, or by defending MINsnecessary and act as if the interaction was issued.being viewed by an independent third party.They are doing a difficult task that may If considering defending then legal adviceattract unfounded criticism. However, we sh ou ld be so ug ht so th at pr op erpay them to be accountable for their consideration can be given to each chargeconduct and the decisions they make that that was laid and advice given about theaffect our rights and obligations.prospects of defending the matter, ratherthan just relying upon the information givenProfessional fisheries officers should be above.recording any potentially controversialinteractions they have with you for the same Regards, Name withheldprotective reasons. They may not tell youthey are taping you, but would be obligedunder their Code of Conduct to answer youhonestly if you asked if they were.CAUTION !no compassionTo TCP,We have a house on the Sunshine Coast,however, we haven't lived in it for the past 18months, choosing instead to live on board ourcatamaran. The house therefore, has been let.After our previous tenants moved out wemoved back to the house do some repairs andmaintenance in preparation for the nexttenant. After about 3 weeks we were finallyready to set off up north for the sailing season.We had just started packing our things ready totransport them to our boat, which wasanchored in The Duck Pond at Mooloolaba,when my husband's mother who was residentin a local nursing home was taken ill. Around1600hours she peacefully passed away. Bythe time we finally left the nursing home andreturned to our boat it was well after dark.We decided that as soon as the marina officesopened in the morning we would ring aroundfor a berth rather than move back to the house.We had a funeral to arrange and as with anydeath there were numerous official mattersthat required attention. Next day before wecould phone the marinas however, there was aknock on the hull. A Boating and Fisheries(B&F) boat containing two officers had arrived.While the younger of the two officers remainedsilent the other one started to ask questions.He wanted to know who we were and why wewere on board.The officer then went on to say that becausewe had a property on the Coast we were notpermitted to stay on board overnight at all; thatthe 10 days allowance to anchor and live onboard in the river was for “genuine travellers”only. I exclaimed that we were genuinetravellers and the boat was our home.Apparently this was not acceptable. He statedthat if my 'story' proved to be true then anexemption might be in order.By this time the B&F officers had been askingquestions and taking notes for about 20minutes. We had no choice but to move allour gear back to the house. Later that week theB&F officer phoned me to acknowledge that Ihad indeed told the truth, nevertheless theDepartment had issued an officialCaution/Marine Infringement Notice without afinancial penalty! So what happened to goodold-fashioned common decency?About 3 weeks later we were again in aposition to depart. We moved our gear back tothe boat with the intention of leaving early nextday. Unfortunately a strong wind warning wasissued overnight, and while it had beencancelled by the time we heard the firstweather forecast, the damage was done andthe sea was up. We motored out of the riverand a couple of miles out to sea but it was toorough and we, together with a couple of othervessels turned back. But where were we togo? We tried the marinas again but still novacancies so we dropped anchor off the beachat Mooloolaba in the hope that the sea mightsettle later. It didn't. Instead it becamerougher as the tide receded. After a couple ofreally big swells came though andstraightened the S hook on our bridle I said,“To hell with the Boating and Fisheries people,they can lock me up if they want, but we arenot staying out here for another second!”Anyway, we motored back to the Duck Pondand after a relatively quiet night we left the riverand had a good sail to Double Island Point.Speaking of points, what then is the point ofthis letter? Well I guess it comes down to this:What have my husband and I received for thehuge increase in boat registration fees? Theanswer is harassment from Public Servants(definitely a contradiction of terms) and anOfficial Caution!Lin Nemeth, SY Rose-A-Lee