December 19, 2014

With the summer holidays upon us many boat owners will be thinking of hitting the water for a bit of fun and to drop a line. As all boat owners know boating and fishing are both highly regulated activities in Queensland. Given that ignorance of the law is no excuse (section 22(1) of the Queensland Criminal Code) there is an expectation that all masters of ships must comply with every law that applies to them irrespective of their personal knowledge.

It will be quite common to see the inspectors from the Queensland Boating and Fisheries Patrol (QBFP) on the water during the next few months, especially around the Broadwater on the Gold Coast, and in Moreton Bay and Hervey Bay, and on some of Queensland’s more popular freshwater dams. In recent years though, many inspections also occurred at boat ramps.

It is important to be aware that the QBFP inspectors have wide search powers when it comes to inspecting your boat, pursuant to the Fisheries Act 1994 and the Transport Operations (Marine Safety) Act 1994 (TOMSA). An inspector may board your boat to see whether you are complying with the Fisheries Act 1994 (section 146(1) of the Fisheries Act) or complying with marine safety regulations (section 165(1) of TOMSA). An inspector does not need to have a warrant to board your boat or even a reasonable ground for suspecting that evidence may be on your boat that relates to a breach of either Act.   

The same is not true for your vehicle though. With respect to your car, an inspector must have a reasonable ground for suspecting that the vehicle has been used in the commission of an offence or that evidence of the commission of an offence may be in the vehicle. Notably, a boat on a trailer is still considered to be a boat for the purposes of an inspection. So at a boat ramp, an inspector may carry out routine inspections of your boat irrespective of where it is, but the inspector cannot inspect your car without first having a reasonable ground for suspecting that the vehicle has been used in the commission of an offence or that evidence of the commission of an offence may be in the vehicle.

Not that there is much that you can do about it at the time of the inspection even if you think that an inspector is unlawfully inspecting your vehicle. From time to time there are reports in the press of people being fined for obstructing an inspector during an inspection. Section 182 of the Fisheries Act 1994 prescribes a maximum penalty of $110,000 for obstruction, whilst TOMSA prescribes a relatively modest maximum penalty of $22,000.

The offence of obstruction cannot be dealt with by way of an infringement notice (a ticket) (see schedule 5 of the State Penalties Enforcement Regulation 2014 for a list of what offences can be dealt with by infringement notices). This means that if you are accused of obstructing an inspector the matter must be dealt with by way of a complaint and you will be summoned to appear in a Magistrates Court in the district in which the offence is alleged to have occurred.

On the whole, Magistrates take a dim view of obstruction offences, with fines upwards of $7000 imposed where physical force has been used against an inspector. By the same token tipping the contents of a bucket into the water may seem like fair game before an inspection begins, but it is an action that is still likely to result in an appearance before a Magistrate, even if the charge is ultimately defeated. One reason for the harsh penalties is that an inspector has no power to arrest you irrespective of what may have occurred. The stiff financial penalties are meant to act as a general deterrent. That said inspectors usually work in conjunction with the water police, who do have powers of arrest, which they may exercise if an assault has occurred.

In summary, you must allow an inspector to inspect your boat. However, if you think that an inspection of your car has occurred without the inspector having a reasonable suspicion, then you might consider obtaining legal advice about whether to contest any charges arising from that inspection. That said the inspectors of the QBFP have a good reputation of being polite and considerate. The inspectors are a terrific source of information about marine safety and fisheries regulations. In addition they are a good source for tips about navigating local waters and in relation to where to drop a line.