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National Maritime Safety Authority Act 2003

No. 11 of 2003.

National Maritime Safety Authority Act 2003.
Certified on: 25/11/2003.

INDEPENDENT STATE OF PAPUA NEW GUINEA.

No. 11 of 2003.

National Maritime Safety Authority Act 2003.

ARRANGEMENT OF SECTIONS.

INDEPENDENT STATE OF PAPUA NEW GUINEA.

AN ACT

entitled

National Maritime Safety Authority Act 2003,

Being an Act to establish the National Maritime Safety Authority, to define its functions and powers and for related purposes,

MADE by the National Parliament to come into operation –

(a) in relation to Part 1, Section 3 and Part 3 – on certification; and

(b) in relation to Section 22 – 30 days after those sections and parts referred to in Paragraph (a) have come into operation; and

(c) in relation to Sections 23, 24 and 25 and Division IV.3 – 60 days after those sections and parts referred to in Paragraph (a) have come into operation; and

(d) in relation to the remainder – 90 days after those sections and parts referred to in Paragraph (a) have come into operation.

PART 1. – PRELIMINARY.

1. COMPLIANCE WITH CONSTITUTIONAL REQUIREMENTS.

This Act, to the extent that it regulates or restricts a right or freedom referred to in Subdivision III.3.C (qualified rights) of the Constitution, namely –

(a) the right to freedom from arbitrary search and entry conferred by Section 44; and

(b) the right to privacy conferred by Section 49; and

(c) the right to freedom of information conferred by Section 51; and

(d) the right to freedom of movement conferred by Section 52,

of the Constitution, is a law that is made for the purpose of giving effect to the public interest in public order and public welfare.

2. INTERPRETATION.

In this Act, unless the contrary intention appears –

“Authority” means the National Maritime Safety Authority established by Section 3;

“Board” means the Board of the Authority established by Section 6;

“Chief Financial Officer” means the Chief Financial Officer appointed under Section 22;

“financial detriment” means –

(a) incurring costs that are greater than those that would otherwise have been incurred, or

(b) forgoing revenue that would otherwise have been received;

“General Manager” means the General Manager of the Authority appointed under Section 21;

“internal waters” means any waters open to, or used for, navigation on the land-ward side of the base line from which the limits of the territorial sea of Papua New Guinea are measured;

“Islands region” means the maritime provinces of Manus, New Ireland, East New Britain, West New Britain and Bougainville;

“master”, in relation to a ship, means the person having legal command or charge of the ship , but does not include a pilot;

“member” means a member of the Board;

“Momase region” means the maritime provinces of Morobe, Madang, East Sepik and West Sepik;

“Navaids Investigations Officer” means the Navaids Investigations Officer of the Authority appointed under Section 24;

“offshore operations” means offshore operations within the territorial sea;

“owner” in relation to a ship, includes any person having for the time being , either by law or by contract, the same rights as the owner of the ship with respect to possession and use thereof;

“port facility” means –

(a) a declared port under Section 2 of the Harbours Board Act 1963; and

(b) any wharf, pier, breakwater, terminal, warehouse or other building located on, or adjacent to, the internal waters or territorial sea where passengers and cargo can be shipped or discharged;

“ship” means any description of vessel or boat used or designed for use in navigation without regard to method or lack of propulsion and includes a ship which is laid up;

“State” means the Independent State of Papua New Guinea;

“Southern region” means the maritime provinces of Western, Gulf, Central, Milne Bay and Oro Provinces;

“territorial sea” means those waters described and demarcated in Part II of the National Seas Act 1977;

“this Act” includes the Regulations and By-laws.

PART 2. – THE NATIONAL MARITIME SAFETY AUTHORITY.

3. ESTABLISHMENT, ETC., OF THE NATIONAL MARITIME SAFETY AUTHORITY.

(1) The National Maritime Safety Authority is hereby established.

(2) The Authority –

(a) is a body corporate with perpetual succession; and

(b) shall have a common seal; and

(c) may acquire, hold and dispose of property; and

(d) may sue and be sued in its corporate name.

(3) All courts, judges and persons acting judicially shall take judicial notice of the seal of the Authority affixed to a document and shall presume that it was duly affixed.

(4) The Authority shall operate –

(a) as a not-for-profit public body; and,

(b) such fees and levies does not exceed for any prolonged period the costs and expenses incurred by the Authority in the performance of its functions.

4. FUNCTIONS OF THE AUTHORITY.

(1) The functions of the Authority are: –

(a) to perform the functions and exercise the powers as are conferred upon it by this Act or under any other law; and

(b) to co-ordinate search and rescue operations for vessels in distress or lost at sea pursuant to the terms and conditions of a search and rescue plan prepared by the Minister, from time to time, and approved by the Authority; and

(c) to co-ordinate with other agencies and persons, including regional and international organizations and consultants, whether local or foreign, on matters concerning maritime safety, marine pollution prevention or search and rescue operations at sea; and

(d) to collect data relevant to maritime safety, marine pollution prevention and search and rescue operations at sea; and

(e) to act on behalf of the State in relation to any domestic or international agreement relating to maritime safety, marine pollution prevention or search and rescue operations at sea to which the State is or may become a party; and

(f) to make recommendations on policy to the Minister regarding maritime safety, marine pollution prevention and search and rescue operations at sea; and

(g) to provide consulting services, training and management services relating to any of its functions whether in Papua New Guinea or overseas; and

(h) where appropriate to consult with –

(i) other agencies of the National Government; or

(ii) Provincial Governments; or

(iii) Local Governments; or

(iv) commercial, industrial and other relevant bodies and organizations,

in relation to matters affecting them in the performance of its functions; and

(i) generally to do such supplementary, incidental or consequential acts and things as are necessary or convenient for carrying out its functions.

(2) The Authority shall not perform, or be required to perform any function not expressly provided for under Subsection (1) except in accordance with Subsections (3), (4) and (5) and subject to the payment of fair compensation for any cost or expense that may be incurred by the Authority in the performance of such new function as determined by the Auditor-General under Subsection (6).

(3) At the request of –

(a) the Minister, on behalf of the State; or

(b) subject to Subsection (5) –

(i) an agency of the National Government; or

(ii) a Provincial or a Local-level Government,

the Authority shall enter into an agreement in respect to any matter pertaining to maritime safety, marine pollution prevention or search and rescue operations at sea whereby the Authority is to undertake on behalf of the requesting party a function not expressly provided for in Subsection (1).

(4) An agreement referred to under Subsection (3) shall be in writing and include –

(a) provisions for the performance and enforcement of obligations under the agreement; and

(b) a clear estimate of the costs and expenses which the Authority in the performance of its obligations under the agreement may incur and the exact amount of compensation which shall be paid to the Authority by the party requesting the Authority to perform those obligations.

(5) An agency of the National Government or a Provincial or Local-level Government shall, prior to entering into an agreement with the Authority under Subsection (3), first seek the written approval of the Minister to engage the Authority.

(6) An agreement under Subsection (3) is null and void unless the Auditor General, no later than three months after the signing of the Agreement, certifies in writing that the Authority is being fairly compensated for the performance of its obligations under the agreement.

5. POWERS OF THE AUTHORITY.

The Authority has, in addition to the powers otherwise conferred on it by this Act or any other law, full powers to do all things that are necessary or convenient to be done for or in connection with the performance of its functions.

PART 3. – BOARD AND BY-LAWS OF THE AUTHORITY.

Division 1.

Board of the Authority.

6. ESTABLISHMENT OF THE BOARD OF THE AUTHORITY.

(1) There is established a Board of the Authority.

(2) The Board shall carry out the functions, exercise the powers and manage and direct the affairs of the Authority.

(3) The Minister may, after consultation with the Board or otherwise, give the Board, by notice in writing, such directions consistent with Government policies and programmes and not inconsistent with the provisions of this Act, as he considers fit, with respect to the performance and exercise by the Board of its functions and powers under this Act, and the Board, subject to Subsections (4) and (5), shall give effect to all such directions.

(4) Where the Board satisfies the Minister that the Authority has suffered financial detriment as a result of complying with a direction given by the Minister under Subsection (1), the Authority is entitled to be reimbursed by the State the amount that the Auditor-General determines in writing to be the amount of that financial detriment.

(5) The Minister shall not give any direction under Subsection (3) which requires the Board or the Authority to do, or refrain from doing, a particular act, or bring about a particular result, in respect of any particular person or persons.

7. MEMBERSHIP OF THE BOARD.

(1) The Board shall consist of –

(a) the Departmental Head of the Department responsible for transport matters, ex officio, or his nominee; and

(b) the Departmental Head of the Department responsible for finance matters, ex officio, or his nominee; and

(c) the General Manager, ex officio, as a non-voting member; and

(d) one person nominated by the Minister to represent the Momase region, the New Guinea Islands region and the Southern region of the country;

(e) one person nominated by the National Research Institute; and

(f) one person nominated by the Papua New Guinea Shipowners Association; and

(g) one person nominated by the Papua New Guinea Chamber of Commerce and Industry; and

(h) one person nominated by the Papua New Guinea Harbours Ltd.

(2) The –

(a) member referred to in Subsection (1)(d) shall be appointed for a term not exceeding three years and is eligible for re-appointment; and

(b) members referred to in Subsection (1)(e), (f), (g) and (h) shall be appointed for a term of three years or a term not exceeding four years and are eligible for re-appointment; and

(c) members referred to –

(i) in Subsection (1)(d), (e), (f), (g) and (h) shall hold office on such terms and conditions as are determined under the Boards (Fees and Allowances) Act 1955; and

(ii) in Subsection (1)(a), (b) and (c) may be paid by the Authority such allowances including sitting fees as the Minister responsible for financial matters may from time to time approve.

(3) A nominee referred to in Subsection (1)(a) and (b) shall be an officer of a level not less than that of a First Assistant Secretary or the equivalent.

(4) A body referred to in Subsection (1)(e), (f), (g) and (h) shall submit to the Minister the names of at least three persons, of whom one shall be a woman, possessing sufficient qualifications and experience to adequately represent them on the Board, and the National Executive Council shall choose from the nominees one person to be a member upon the recommendation of the Minister.

(5) The Minister shall submit to the National Executive Council his nominee under Subsection (1)(d) with his recommendation for appointment.

(6) The Minister, in making his recommendation to the National Executive Council under Subsections (4) and (5), shall do so with a view of ensuring, as far as is practicable, that there are at least two women representatives on the Board as members.

(7) For the purposes of Subsection (1)(d), the Momase region, the New Guinea Islands region and the Southern region –

(a) shall be represented on the Board on a rotational basis; and

(b) are in turn entitled to nominate their representative in such order as is determined by the Minister.

(8) If a body referred to in Subsection (1)(e), (f), (g) and (h) ceases to exist or is unable to nominate a person for membership to the Board, the National Executive Council may appoint a person in its place who shall, so far as practicable, be representative of the interest of the group comprised by the body.

8. CHAIRMAN AND DEPUTY CHAIRMAN.

(1) The Minister may from time to time appoint one of the members of the Board to be the Chairman of the Board and one other member of the Board (other than the Chairman) to be the Deputy Chairman of the Board.

(2) The Chairman and Deputy Chairman shall hold office as Chairman and Deputy Chairman respectively until the earlier of the termination or the expiration of the period of their respective appointments or until they cease to be a member of the Board.

(3) Where the Chairman of the Board is unable to act as Chairman for any reason, the Deputy Chairman shall act as Chairman and, for this purpose, may exercise the powers and perform the functions of, the Chairman.

9. LEAVE OF ABSENCE OF MEMBERS.

(1) The Chairperson may grant leave of absence to a member on such terms and conditions as the Chairperson determines.

(2) The Board may grant leave of absence to the Chairperson on such terms and conditions as the Board determines.

10. VACATION OF OFFICE.

(1) A member, other than an ex officio member, may resign from office in writing signed by him and delivered to the Minister.

(2) Where a nominee is appointed as member by an ex officio member under Section 7(1)(a) or (b) and that nominee ceases to hold office in the relevant Department, the Departmental Head shall advise the Minister of that fact and shall nominate another officer to be a Member in accordance with this Act.

(3) If a member dies, resigns his office or is otherwise terminated in accordance with this section, his office becomes vacant.

(4) If a member, other than an ex officio member –

(a) is absent, except with the written consent of the Board or the Chairperson in accordance with Section 9, from three consecutive meetings of the Board; or

(b) fails to comply with Section 13; or

(c) becomes bankrupt, or applies to take the benefit of any law for the benefit of bankrupt or insolvent debtors, compounds with his creditors or makes an assignment of his remuneration for their benefit; or

(d) is convicted of an offence under this Act or an offence under any other law punishable by a term of imprisonment for one year or longer, or by death, and, as a result of the conviction, is sentenced to imprisonment or death; or

(e) otherwise becomes incapable of performing his duties,

the National Executive Council shall terminate his appointment.

(5) Where the person (other than an ex officio member) or body who has appointed a member requests the National Executive Council in writing to terminate the appointment of that member, the National Executive Council shall terminate the appointment of that member.

(6) The Minister may, at any time, by written notice, advise a member that he intends to terminate the appointment of that member on the grounds of misconduct in office and specifying the details of the misconduct, such misconduct includes, but is not limited to –

(a) undisclosed interest as provided in Section 13;

(b) disclosure of information which is confidential as provided in Section 53.

(7) Within 14 days of the receipt of a notice under Subsection (6), the member may reply in writing to the Minister, who shall consider the reply and, where appropriate, terminate the appointment of the member.

(8) Where the member referred to in Subsection (6) does not reply in accordance with Subsection (7), his appointment automatically terminates at the end of the period specified in Subsection (7).

11. VACANCY NOT TO AFFECT POWERS OR FUNCTIONS.

The exercise of a power or the performance of a function of the Board is not invalidated by reason only of a vacancy in the membership of the Board.

12. MEETING OF THE BOARD.

(1) The Board shall meet as often as the business of the Authority requires, and at such times and places as the Board determines, or as the Chairperson directs, but in any event shall meet not less frequently than once in every three months.

(2) At a meeting of the Board –

(a) four members, excluding the General Manager, constitute a quorum; and

(b) the Chairperson shall preside, and if he is absent, the members present shall appoint, from amongst their number, a Chairperson for that meeting; and

(c) matters arising shall be decided by a majority of the votes of the members present (excluding the General Manager); and

(d) the person presiding has a deliberative, and in the event of an equality of votes on any matter, also a casting vote.

(3) The Board shall cause minutes of its meetings to be recorded and kept.

(4) The Board, in its discretion at any meeting of the Board, may –

(a) invite persons to attend; or

(b) receive or hear submissions or information from any person.

(5) Subject to this Act, the procedures of the Board are as determined by it.

13. DISCLOSURE OF INTEREST BY MEMBERS.

(1) A member, who is directly or indirectly interested in a matter (other than in his capacity as a member) being considered or about to be considered by the Board shall, as soon as possible after the relevant facts have come to his knowledge, disclose the nature of his interest at a duly constituted meeting of the Board.

(2) A disclosure under Subsection (1) shall be recorded in the minutes of the meeting of the Board and after such disclosure the member interested –

(a) shall not take part, after the disclosure, in any deliberation or decision of the Board in relation to the matter; and

(b) shall be disregarded for the purpose of constituting a quorum of the Board for any such deliberation or decision.

(3) Where a member referred to in Subsection (1) has not made a disclosure in accordance with that subsection, his vote on a matter on which he has an interest is null and void as of the time when the matter was first considered by the Board, and the Minister shall terminate the appointment of the member concerned in accordance with Section 10(4)(b).

(4) For the purposes of Subsection (3) and notwithstanding Section 10(4), “member” includes an ex officio member.

14. COMMITTEES OF THE BOARD.

(1) The Board may, from time to time, establish Committees of the Board to advise the Board on such matters as the Board considers necessary.

(2) In establishing a Committee under Subsection (1), the Board may –

(a) appoint such persons, including members, as it considers necessary; and

(b) specify the functions and procedures of the Committee; and

(c) determine the fees and allowances for members of the Committee.

15. DELEGATION OF POWERS.

The Board may, by written instrument, delegate all or may of its functions and powers, other than –

(a) this power of delegation; and

(b) the power to borrow money or raise loans or give loans or advances or to subscribe to or underwrite the issue of stocks, debentures of business enterprises; and

(c) the powers in relation to the making of by-laws.

16. CORPORATE PLAN.

(1) The Board shall prepare a corporate plan at least once a year and shall submit the plan to the Minister.

(2) Where the Minister requests the Board to give the plan to him by a specified day, the Board shall give the plan to the Minister by that day.

(3) A plan prepared under Subsection (1) shall cover a period of at least three years.

(4) The Board shall keep the Minister informed about –

(a) significant changes to the plan; and

(b) matters that arise that might significantly affect the achievement of the objectives of the plan.

(5) A plan prepared under this section shall include details of the following matters: –

(a) assumptions about the Authority’s operational environment;

(b) the Authority’s strategies;

(c) performance indicators for the Authority;

(d) review of performance against previous corporate plans;

(e) analysis of risk factors likely to affect maritime safety, marine pollution prevention and search and rescue operations at sea;

(f) human resource strategies and community engagement strategies.

(6) A plan prepared under this section shall also cover any other matters required by the Minister, which may include further details about the matters specified in Subsection (5).

(7) In preparing a plan, the Board shall take account of directions given under Section 6(3).

17. MINISTER’S RESPONSE TO CORPORATE PLAN.

(1) The Minister may respond to a corporate plan within 60 days of being given the plan.

(2) The Minister’s response may include a direction to the Board to vary the plan.

(3) A direction under Subsection (2) shall –

(a) be in writing; and

(b) shall set the reasons for the variation of the plan.

(4) In directing a variation of the corporate plan, the Minister shall consider –

(a) Government policies and programmes; and

(b) the objects of this Act; and

(c) any other considerations the Minister thinks appropriate.

(5) If the Minister’s response includes a direction to vary the corporate plan, the Board shall prepare a revised plan and give it to the Minister within 30 days of being given the response.

18. REPORTS.

(1) The Board shall furnish to the Minister –

(a) on or before 30 June in every year, a report on the progress and performance of the Authority for the previous year; and

(b) such other reports in relation to the functions of the Authority as are requested by the Minister.

(2) The report referred to in Subsection (1)(a) shall include a summary of –

(a) any agreement entered into by the Authority pursuant to Section 4(3); and

(b) any direction given by the Minister under Section 6(3) or Section 17(2); and

(c) any action taken by the Authority because of directions given to the Authority by the Minister under Section 6(3) or Section 17(2).

(3) As soon as practicable after he has received the report referred to in Subsection (1)(a), the Minister shall table the report in the National Parliament.

Division 2.

By-Laws of the Authority.

19. BY-LAWS.

The Board may make by-laws not inconsistent with this Act for the control, management and regulation of the affairs of the Authority and in particular, providing for or in relation to –

(a) the management, good governance and discipline of the Authority; and

(b) the use and custody of the seal of the Authority; and

(c) subject to Sections 21 and 30, the tenure of office, the qualifications for employment and the conditions of employment, and the functions, powers and duties of the General Manager; and

(d) subject to Sections 22, 23, 29 and 30, the tenure and terms and conditions of employment of the other staff of the Authority; and

(e) the control and investment of the property of the Authority; and

(f) the exact nature of the accounting principles to be used for keeping the accounts and records of the Authority; and

(g) generally, all other matters that are authorized by this Act or that are necessary or convenient for giving effect to this Act.

20. APPROVAL AND PUBLICATION OF BY-LAWS.

(1) All by-laws shall be –

(a) sealed with the seal of the Authority; and

(b) approved by the Head of State, acting on advice of the Minister; and

(c) notified in the National Gazette.

(2) A by-law shall not be expressed to take effect from a date before the date of notification in a case where, if it so took effect –

(a) the rights of a person (other than the Authority) existing at the date of notification would be affected in a manner prejudicial to him; or

(b) liabilities would be imposed on a person (other than the Authority) in respect of anything done or omitted to be done before the date of notification.

(3) Where, in a by-law, provision is made in contravention of Subsection (2), the provision is of no effect.

(4) The production of –

(a) a copy of a by-law under the seal of the Authority; or

(b) a document purporting to be a copy of a by-law and to have been printed by the Government Printer,

is, in all proceedings, sufficient evidence of the by-law.

(5) The by-laws made in each secular year shall be numbered in regular arithmetical series, beginning with the number 1, in the order in which they are notified in the National Gazette, and a notice in the National Gazette of the fact that a by-law has been made, specifying the number of the by-law, is sufficient compliance with the requirement of Subsection (1) that the by-law be notified in the National Gazette.

PART 4. – STAFF OF THE AUTHORITY.

Division 1.

Appointment of Senior Officers.

21. GENERAL MANAGER.

(1) The Board shall appoint, through open competition, a General Manager of the Authority who possesses sufficient and appropriate qualifications and experience.

(2) The General Manager shall –

(a) manage the Authority in accordance with the policies and directions of the Board; and

(b) be responsible, subject to this Act, for directing other staff of the Authority including the authority to hire and fire such staff as are not appointed directly by the Board; and

(c) advise the Board on any matter concerning the Authority referred to him by the Board; and

(d) report quarterly to the Board on the financial performance of the Authority against the approved annual budget; and

(e) carry out and perform the duties required of him under this Act and under his contract of employment.

(3) The General Manager has such other duties as the Board shall from time to time determine.

(4) The General Manager may, by written instrument and subject to the approval of the Board, delegate to any staff member of the Authority any of his powers or functions under this Act, except this power of delegation.

(5) The General Manager may appoint such committees as he deems necessary to advise him on any matter in relation to his responsibilities.

22. CHIEF FINANCIAL OFFICER.

(1) The Board shall, through open competition, appoint on the recommendation of the General Manager a Chief Financial Officer possessing sufficient and appropriate qualifications and experience.

(2) The Chief Financial Officer, through the General Manager, shall –

(a) manage the financial affairs of the Authority in accordance with the policies and directions of the Board; and

(b) advise the Board on any matter concerning the financial affairs of Authority referred to him by the Board; and

(c) develop overall policies, guidelines, and procedures for budget administration, financial reporting, and financial management systems for the Authority; and

(d) formulate policies governing the provision and management of financial services; and

(e) establish and maintain accounting principles, procedures, and systems; and

(f) develop policies and standards for cash and credit management; and

(g) maintain liaisons with the Office of the Auditor-General and any other Government body having a financial management oversight role with respect to the affairs of the Authority; and

(h) prepare all financial reports needed by the Board or required by the Office of the Auditor-General or any other Government body having a financial management oversight role with respect to the affairs of the Authority; and

(i) head the department or business unit of the Authority responsible for finance and corporate services.

(3) The Chief Financial Officer has such other functions and duties as the General Manager shall from time to time determine.

23. OTHER SENIOR OFFICERS.

The Board may, through open competition, appoint on the recommendation of the General Manager any additional Chief Executive Officers possessing sufficient and appropriate qualifications and experience to assist the General Manager in the management of the Authority.

Division 2.

Navaids Investigations Officer.

24. NAVAIDS INVESTIGATIONS OFFICER.

(1) The Board shall, through open competition, appoint on the recommendation of the General Manager a Navaids Investigations Officer possessing sufficient and appropriate qualifications and experience to be responsible for the investigation and prosecution of offences in respect to navigational aids, in particular, on behalf of the Authority –

(a) to investigate offences relating to navigational aids which are specified in Section 191 of the Merchant Shipping Act 1975; and

(b) subject to Section 30, to prosecute persons guilty of an offence under Section 191 of the Merchant Shipping Act 1975; and

(c) to undertake such other responsibilities in accordance with Paragraphs (a) and (b) as may be required by the General Manager.

(2) The General Manager, on the advice of the Navaids Investigations Officer, may, subject to Section 25(3), assign, on a full time or part time basis, staff of the Authority or other persons including outside legal counsel to assist the Navaids Investigations Officer in the performance of his functions and duties under this section.

25. POWERS OF THE NAVAIDS INVESTIGATIONS OFFICER.

(1) For the purpose of the performance of his functions and duties in relation to the investigation of offences in accordance with Section 24(1)(a), the Navaids Investigations Officer may –

(a) summon any person –

(i) to appear personally before him at a time and place specified by him in writing; and

(ii) to produce to him all documents and records in the possession or under the control of that person that appear to him to be necessary for the purposes of his investigation; and

(b) examine on oath or affirmation any person in respect of any matter or thing that appear to him to be necessary for the purposes of his investigation; and

(c) out of funds especially allocated for that purpose by the Board, offer to the public at large or to any person a monetary reward for information that appears to him to be necessary for the purposes of his investigations; and

(d) cause searches to be made by the appropriate law enforcement authorities of any premises which he has reasonable grounds to believe are used to store or hide any component of a navigational aid which has been wilfully or negligently damaged.

(2) A person who appears before the Navaids Investigations Officer when summoned to do so under Subsection (1)(a)(i) is entitled to be paid by the Authority such expenses as the Board determines to be reasonable.

(3) In the assignment of staff of the Authority or other persons to assist the Navaids Investigations Officer for the purposes of Section 24(2), the Navaids Investigations Officer shall not delegate the powers vested in him under this section.

26. OFFENCES.

(1) A person, who hinders or obstructs the Navaids Investigations Officer, or a person authorized by him, in the performance of his functions and duties in relation to the investigation of those offences referred to in Section 25(1)(a), is guilty of an offence.

Penalty: (i) in the case of a natural person – a fine not exceeding K10,000.00 or imprisonment for a term not exceeding six months; or

(ii) in the case of a person other than a natural person – a fine not exceeding K20,000.00.

(2) A person who, without lawful excuse (proof of which is on him) –

(a) refuses or fails to appear personally before the Navaids Investigations Officer at a time and place specified by him in writing, for the purposes of being examined; or

(b) refuses or fails to produce any document or record in his possession or control; or

(c) refuses to be sworn or make an affirmation; or

(d) refuses to answer a lawful question; or

(e) wilfully and corruptly gives false evidence in the course of his examination before the Navaids Investigations Officer,

is guilty of an offence.

Penalty: (i) in the case of a natural person – a fine not exceeding K10,000.00 or imprisonment for a term not exceeding six months, or both; or

(ii) in the case of a person other than a natural person – a fine not exceeding K20,000.00.

27. POWER TO PROSECUTE.

(1) Where the Navaids Investigations Officer has reasonable grounds to believe that a person is guilty of an offence under Section 191 of the Merchant Shipping Act 1975, he shall refer the name of the person, together with a statement of the reasons for so believing such person to be guilty, to the Public Prosecutor.

(2) Where the name of a person has been referred to the Public Prosecutor under Subsection (1) and the Public Prosecutor fails to initiate proceeding against that person within 90 days, the Navaids Investigations Officer may, with the approval of the Board and on behalf of the Authority, prosecute the person who in his opinion is guilty of an offence under Section 191 of the Merchant Shipping Act 1975.

28. STATUTORY REVIEW.

The Minister and the Board shall, in the sixth year following the coming into operation of this Act, jointly appoint one or more persons to –

(a) carry out a comprehensive review of all matters pertaining to this Division; and

(b) make recommendations as to whether the repeal of this Division is warranted, having regard the social conditions and technological improvements in the protection of navigational aids then prevailing.

Division 3.

Other employees, conditions of employment of the staff and consultants.

29. APPOINTMENT OF EMPLOYEES.

(1) Subject to Subsection (2), the General Manager may, from time to time, within the limits of funds lawfully available for this purpose, appoint such employees and such temporary and casual employees, as he considers necessary for the purposes of the Authority.

(2) An employee appointed under Subsection (1) shall be appointed –

(a) through open competition; and

(b) subject to an evaluation and positive recommendation by a selection committee, one of whose member shall be the direct hierarchical superior of the employee to be appointed, chaired by the General Manager.

30. CONTACT OF EMPLOYMENT.

(1) The General Manager and every other member of the staff of the Authority (other than consultants) shall be employed under a contract of employment which –

(a) in the case of the General Manager, shall be executed by the Board and by the General Manager; and

(b) in the case of any other member of the staff, shall be executed by the General Manager on behalf of the Authority and the member of the staff.

(2) Subject to the provisions of the Salaries and Conditions Monitoring Committee Act 1988, the terms and conditions of the contract of employment of the General Manager and other member of the staff of the Authority are as determined by the Board.

31. CONSULTANTS.

The Board may, from time to time, on the advice of the General Manager, engage such consultants, including legal counsel, as are necessary for the purposes of carrying out temporary and specialized tasks on behalf of the Authority, on such terms and conditions as the Board shall fix.

PART 5. – FINANCE, ETC.

32. APPLICATION OF THE PUBLIC FINANCES (MANAGEMENT) ACT 1995.

(1) Part VIII of the Public Finances (Management) Act 1995, except Sections 53(2), (3), 57(3), (4), (5), 60 and 61, applies in relation to the Authority.

(2) For the purposes of Section 62(2) of the Public Finances (Management) Act 1995, the Authority is declared to be a trading enterprise.

33. APPLICATION OF THE AUDIT ACT 1989.

The accounts of the Authority shall be audited in accordance with Part III of the Audit Act 1989.

34. EXEMPTION FROM TAXATION.

(1) The income, property and operation of the Authority are not subject to income tax under the Income Tax Act 1959.

(2) The transactions entered into by the Authority with respect to the supply of goods and services by any third party to the Authority are exempt from the value added tax under the Value Added Tax Act 1998.

35. FUNDS OF THE AUTHORITY.

(1) The funds of the Authority shall consist of –

(a) all monies received by the Authority by way of grants or subscriptions; and

(b) all monies received by the Authority for goods and services provided by the Authority; and

(c) all monies received by the Authority in respect of sale of real or personal property owned by the Authority or monies received through activities or investments of the Authority; and

(d) all monies, immediately before the coming into operation of this Act, at credit of, and on accounts opened by the Maritime Transport Division of the Department of Transport; and

(e) loans raised by the Authority; and

(f) all other monies received by the Authority in accordance with this Act or any other law, including fines, and in the exercise and performance of its powers, functions and duties.

(2) The monies of the Authority shall be expended only –

(a) in payment or discharge of expenses, obligations and liabilities of the Authority, including the payment of rent money for the leasing of lands used in the construction and maintenance of navigational aids; and

(b) in payment of the remuneration of the staff of the Authority and of fees and allowances to the members of the Board; and

(c) in payment for training courses for employees; and

(d) in payment for rewards for information leading to convictions for offences under this Act or any other law the administration of which is vested, in whole or in part, with the Authority in accordance with such requirements as may be prescribed by the Board; and

(e) for such other purposes as are consistent with the functions of the Authority as the Board, after consultation with the General Manager, shall determine.

36. LOANS BY THE STATE.

(1) The Authority may accept an offer by the Minister responsible for financial matters, on behalf of the State, to loan it moneys for its purposes on such terms as are agreed between the Authority and the Minister responsible for financial matters.

(2) The Authority shall repay to the State in accordance with the terms on which a loan under Subsection (1) is made, such portion of the loan as is repayable.

(3) The Minister responsible for financial matters may, on behalf of the State, charge such fee in respect of a loan made under Subsection (1) as he considers appropriate in relation to that loan.

37. PRIVATE TREATY LOANS.

(1) The Authority may, with the consent of the Minister responsible for financial matters, borrow money for its purposes, from any person on such terms as are agreed between the Authority and that person.

(2) The Authority shall repay a loan made under Subsection (1) in accordance with the terms on which it was made.

(3) The Minister responsible for financial matters may, for and on behalf of the State, guarantee the repayment of a loan (including interest and associated charges) made under Subsection (1) and may, on behalf of the State, charge such fee in respect of such guarantee as he considers appropriate.

(4) Where the Minister responsible for financial matters has guaranteed the repayment of a loan in accordance with Subsection (3), he shall, at the first sitting of the Parliament following the giving of the guarantee, table the documents relating to the guarantee.

38. AUTHORITY MAY GIVE SECURITY.

The Authority may give security over the whole or part of its assets for –

(a) the performance by the Authority of any obligation incurred under Section 36 or 37; or

(b) the payment to the State of amounts equal to amounts paid by the State under a guarantee under Section 37.

39. BORROWING BY OVERDRAFT.

The Authority may, with the consent of the Minister responsible for financial matters, borrow money by overdraft for its purposes and within such limits as the Minister responsible for financial matters approves.

40. BANK ACCOUNTS.

(1) The Authority shall open and maintain such bank accounts for its exclusive use as are necessary for the exercise and performance of its powers and functions, and shall pay into them such moneys referred to in Section 35.

(2) In respect of moneys advanced or borrowed under this Act or any other law, the Authority shall maintain a separate account in respect of the moneys that are related to each such purpose and shall cause proper entries of –

(a) all moneys so advanced or borrowed for a particular purpose of the Authority; and

(b) the purpose to which the moneys have been applied,

to be made in the account maintained in respect of that purpose.

PART 6. – CHARGES AND LEVIES.

Division 1.

Maritime Safety Regulatory Functions Levy.

41. REQUIREMENT TO PAY A MARITIME SAFETY REGULATORY FUNCTIONS LEVY.

The –

(a) owner; or

(b) master; or

(c) agent of the owner; or

(d) agent of the charterer,

of a ship that –

(e) enters or leaves a port facility; or

(f) is engaged in offshore operations,

shall pay to the Authority such maritime safety regulatory functions levy in respect of the ship as is prescribed.

42. PENALTY FOR FAILURE TO PAY MARITIME SAFETY REGULATORY FUNCTIONS LEVY.

Where, without reasonable cause, the maritime safety regulatory functions levy is not paid in accordance with Section 41, the owner and the master of the ship are each guilty of an offence.

Penalty: A fine not exceeding K20,000.00.

43. DETENTION OF SHIP WHERE MARITIME SAFETY REGULATORY FUNCTIONS LEVY IS NOT PAID.

Where, in respect of a ship, the maritime safety regulatory functions levy is –

(a) payable under Section 41; and

(b) is unpaid,

the ship may be detained until the levy is paid.

44. REGULATIONS IN RESPECT TO THE MARITIME SAFETY REGULATORY FUNCTIONS LEVY.

Without limitation, the regulations may make provision for and in relation to –

(a) the rates and scales, whether on a voyage or on a periodical basis, of the maritime safety regulatory functions levy payable in respect of ships; and

(b) the manner in which the maritime safety regulatory functions levy shall be paid; and

(c) the times at which the maritime safety regulatory functions levy shall be paid; and

(d) the exemption of particular ships or of particular classes of ships from the requirements relating to payment of the maritime safety regulatory functions levy.

Division 2.

Other charges and levies.

45. CHARGES FOR SERVICES AND FACILITIES NOT ALREADY PROVIDED BY LAW.

(1) The Authority may –

(a) fix charges for the provisions of services and facilities the charge of which is not already fixed under this Act or any law and specify the persons by whom, and the times when, the charges are payable; and

(b) fix a penalty for unpaid charges fixed under Paragraph (a) not exceeding 1.5% of the unpaid amount of the charge for each month or part of a month during which it is unpaid, calculated from the day on which the charge became due and payable, and compounded.

(2) The amount or rate of a charge must be reasonably related to the expenses incurred or to be incurred by the Authority in relation to the matters to which the charge relates and must not be such as to amount to taxation.

46. CHARGES IN RESPECT OF MATTERS IN RELATION TO WHICH EXPENSES ARE INCURRED BY THE AUTHORITY.

(1) Subject to Subsection (2), the Authority may –

(a) require from any person or class of persons the payment of a contribution by way of charges in respect of a matter in relation to which expenses are incurred by the Authority under this Act or any other law and which, directly or indirectly, benefits that person or class of persons; and

(b) fix a penalty for unpaid charges to be paid under Paragraph (a) not exceeding 1.5% of the unpaid amount of the charge for each month or part of a month during which it is unpaid, calculated from the day on which the charge became due and payable, and compounded.

(2) Before fixing any charge or penalty under Subsection (1), the Authority shall give the Minister notice in writing of the proposed charge or penalty, including a variation of any charge or penalty previously fixed under this section –

(a) specifying the day from which the proposed charge or penalty, or variation, is intended to apply; and

(b) if it fixes a charge or penalty, specifying the basis of the charge or penalty and the person or class of persons required to pay it; and

(c) if it varies a charge or penalty, specifying the reason for the variation.

(3) The Minister shall, within 60 days after receiving a notice of the proposed determination, give the Authority notice in writing approving or disapproving the charge or penalty, or variation, but in doing so, the Minister shall have regard to the duties and responsibilities of the Authority and its obligation to operate as a not-for-profit public body and on a self-sustaining financial basis as to be self-financing.

(4) The Minister shall as soon as practicable, if he consents to the proposed charge or penalty, or variation, by notice in the National Gazette, publish the new charge or penalty.

Division 3.

Decreasing charges and levies.

47. MINISTER TO DECREASE FEE AND LEVIES WHEN AUTHORITY IS OPERATING AT A PROFIT.

(1) Where, in relation to any future three consecutive financial years, the Authority is satisfied that the revenue accruing to the Authority from charges and levies to be received by it in accordance with this Act or any other law, including fines, will exceed the costs and expenses of its operations during that period, after making provision for such contingencies and accounting provisions as the Authority, with the approval of the Minister, may determine, the Authority shall so notify the Minister.

(2) The Minister shall as soon as practicable after being notified under Subsection (1) and after consultation with –

(a) the Minister responsible for financial matters; and

(b) the Authority,

by notice in the National Gazette, decrease some, or all, charges and levies to be received by the Authority in accordance with this Act or any other law so as to balance the revenue to accrue to the Authority from those fees and levies with the costs and expenses of the Authority’s operations during that period.

PART 7. – MISCELLANEOUS.

48. PROOF OF CERTAIN MATTERS.

In any proceeding by or against the Authority, proof is not required, unless evidence is given to the contrary, of –

(a) the constitution of the Board; or

(b) a resolution of the Board; or

(c) the appointment of a member of the Board, the Managing Director or an employee of the Authority; or

(d) the presence of a quorum at a meeting at which a determination is made or an act done by the Board.

49. SERVICE OF PROCESS.

Any notice, summons, writ or other process requiring to be served on the Authority may be served by being left at the head office of the Authority or, in the case of a notice, by post.

50. SEAL.

(1) The Authority shall have the right to the use of any such seal or representation as it may select or devise and thereafter display or exhibit in connection with its activities or affairs.

(2) A person, who uses a seal or representation identical with that of the Authority, or which so resembles the seal or representation of the Authority so as to deceive or cause confusion, is guilty of an offence.

Penalty: (a) in the case of a natural person – a fine not exceeding K10,00.00 or imprisonment for a term not exceeding six months, or both; or

(b) in the case of a person other than a natural person – a fine not exceeding K20,000.00.

51. AUTHENTICATION OF DOCUMENTS.

A document requiring authentication by the Authority is sufficiently authenticated without the seal of the Authority if signed by the Chairperson.

52. RETURNS AND INFORMATION.

(1) The Authority, or any person authorized on behalf of the Authority, may, by written notice, require a person to furnish to the Authority or to the person so authorized, within such period as may be specified in the notice, all such returns and information relating to all such matters as specified in the notice as may be necessary for the Authority in relation to the performance of its functions under this or any other Act and as are within the knowledge of that person or in his custody or under his control.

(2) A person who, on being required under Subsection (1) to furnish any return or information, fails to comply with a notice under Subsection (1), is guilty of an offence.

Penalty: (a) in the case of a natural person – a fine not exceeding K10,000.00 or imprisonment for a term not exceeding six months, or both; or

(b) in the case of a person other than a natural person – a fine not exceeding K20,000.00.

(3) It is a defence to a offence under Subsection (2) if the person charged proves that the return or information was not relevant to the exercise of the powers and functions of the Authority under this or any other Act or was not in the possession or under the control of such person at the time of the receipt of the notice.

53. CONFIDENTIALITY.

(1) Information disclosed under this Act or any other law to a member of the Board or to an employee of the Authority shall not be disclosed to any person who is not a member of the Board or an employee of the Authority without the prior written approval of the person who provided that information, except –

(a) to the extent that disclose is authorized or required under this Act or any other law; or

(b) to the extent that the person providing the information authorized its disclosure at the time of providing the information; or

(c) to the extent necessary to enable a consultant hired by the Authority for the purpose of carrying out temporary and specialized task on behalf of the Authority; or

(d) to the extent necessary to enable the Authority to give advice to the Minister or any other agency of the State.

(2) A member of the Board, an employee of the Authority or a consultant hired by the Authority who uses, for the purpose of personal gain, any information disclosed under this Act or any other law that comes to his knowledge in the course of, or by reason of his membership of the Board or his employment as an employee or consultant of the Authority, is guilty of an offence.

Penalty: (a) in the case of a natural person – a fine not exceeding K10,000.00 or imprisonment for a term not exceeding six months, or both; or

(b) in the case of a person other than a natural person – a fine not exceeding K20,000.00.

54. PROTECTION FROM PERSONAL LIABILITY.

(1) A member of the Board or an employee of the Authority, or any other person acting under the direction of the Authority, is not liable for any act of default of himself or of the Authority done or omitted to be done in good faith in the operations of the Authority, or for the purposes of the Authority.

(2) Any expenses incurred by the member of the Board, employee or other person acting under the direction of the Authority in defending an action against him under Subsection (1) shall be borne by and paid out of the funds of the Authority.

55. TIME LIMIT FOR COMMENCEMENT OF PROCEEDINGS AND PAYMENT OF FINES.

(1) Proceedings in respect of an offence under this Act may be instituted within, but not later than, two years of –

(a) the date on which the offence was committed; or

(b) where the offence was committed on more than one date, the latest date on which it was committed.

(2) All monies received by way of fines for an offence under this Act shall be paid into the funds of the Authority.

56. REGULATIONS.

The Head of State, acting on advice, may make regulations, not inconsistent with this Act, prescribing all matters that by this Act are required or permitted to be prescribed, or that are necessary or convenient to be prescribed, for carrying out or giving effect to this Act.

PART 8. – REPEALS, AMENDMENTS, SAVINGS AND TRANSITIONAL.

57. REPEALS.

(1) The Acts and Regulations specified in Schedule 1 are hereby repealed.

(2) A reference in any law or any instrument made under or in relation to an Act or Regulation repealed by Subsection (1) shall, on and after coming into operation of this Act, unless the context otherwise requires, be read and construed as a reference to this Act or to the corresponding provision of this Act.

(3) Where, immediately before the coming into operation of this Act, any action, arbitration or proceeding was pending or existing by or against a person or body under an Act or Regulation repealed by Subsection (1), it –

(a) does not, on the commencement of this Act, abate or discontinue or in any way be affected by a provision of this Act; and

(b) may be prosecuted, continued and enforced by, against or in favour of the person or body as if this Act has not been made.

58. AMENDMENTS OF OTHER ACTS.

The Acts specified in the Schedule 2 are amended as set out in that Schedule.

59. TRANSFER OF ASSETS.

(1) All monies which were, immediately before the coming into operation of this Part, at the credit of, and on accounts opened by, the Maritime Transport Division of the Department of Transport are, on that coming into operation, transferred to equivalent accounts opened in the name of the Authority under this Act.

(2) All assets (other than land held by the State), including monies not covered by Subsection (1), used for maritime safety, marine pollution and search and rescue operations at sea which, immediately before the coming into operation of this Part, were held by the Department of Transport and which, by agreement between the Departmental Head of that Department and the Authority, are necessary to be transferred to the Authority for the purposes of the Authority, are, on that coming into operation, transferred to and become assets of the Authority.

60. TRANSITIONAL STAFF ARRANGEMENTS.

(1) Where it appears to him necessary to do so, the Departmental Head of the Department of Transport may, on the coming into operation of this Act, appoint a senior officer of the Department as Interim General Manager of the Authority on the same terms and conditions of employment as that person held in the Department prior to his appointment or, where the appointee is an officer of a level below that of an Assistant Secretary in the Public Service, on such terms and conditions as are approved by the Departmental Head of the Department of Personnel Management, until such time as a General Manager is appointed and the terms and conditions of appointment are determined in accordance with this Act.

(2) An officer who, immediately before the coming into operation of this Act, was employed in the Maritime Transport Division of the Department of Transport and is nominated by the Departmental Head of the Department for the purpose of this subsection, may, on that coming into operation, be seconded by the Departmental Head to the Authority for the purposes of the Authority and, on that secondment, shall hold a similar office and on the same terms and conditions as he held prior to the secondment until such time appointments and terms and conditions of employment are determined under this Act.

61. CONTRACTS AND AGREEMENTS.

(1) All contracts and agreements entered into, made with or addressed to the State through the Department of Transport, insofar as they relate to the functions of the Authority under this Act, are, to the extent that they were, immediately before the coming into operation of this Part, binding on and of full force and effect on the State are, on that coming into operation, binding on and of full force and effect on the Authority as fully and effectually as it, instead of the State, the Authority has been a party to them or bound by, or entitled to the benefit of, them.

(2) Notwithstanding Subsection (1) and in derogation thereof, the State shall assume full responsibility for all obligations, debts and liabilities which existed immediately prior to the coming into operation of this Act or which shall continue to exist after that date with respect to –

(a) any contract of employment entered into between the State or the Department of Transport and any employee of the State or the Department of Transport; and

(b) any contract or agreement entered into between the State or the Department of Transport and any third party which, within 120 days after the coming into operation of this Act, is denounced in writing by the Board.

SCHEDULE 1 – .

Section 57

SCHEDULE 2 – .

Section 58

AMENDMENT TO THE DUMPING OF WASTES AT SEA ACT (CHAPTER 369)

AMENDMENTS TO THE LAND ACT 1996.

AMENDMENTS TO THE MERCHANT SHIPPING ACT (CHAPTER 242).

AMENDMENTS TO THE PREVENTION OF POLLUTION OF THE SEA ACT (CHAPTER 371)

AMENDMENTS TO THE TRANSPORT (COLLECTION OF INFORMATION) ACT (CHAPTER 248).