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Waterway Rule Decision256-257-2014-WR

Decision relating to a request for the making of a

waterway rule – Local Port of Mallacoota

Waterway: Local Port of Mallacoota

Waterway manager: Gippsland Ports Committee of Management Inc

Waterway rule decision: 256-257-2014-WR

Decision made by: Peter CorcoranDirector Maritime SafetyDelegate of the Director, Transport Safety

Date of decision: 9/12/2015

This document is a summary provided for information purposes only. No warranty or representation is made that the data or information contained in this document is accurate, reliable, complete or current or that it is suitable for a particular purpose. This document should not be relied upon as a substitute for the relevant legislation, legal or professional advice.

Published by Transport Safety VictoriaLevel 15, 121 Exhibition StreetMelbourne, Victoria 3000Telephone: 1800 223 022© Copyright State Government of Victoria 2014.This publication is copyright. No part may be reproduced by any process except in accordance with the provisions of the Copyright Act 1968.Authorised by the Victorian Government, Melbourne

1. The Waterway Manager and the Waterway

1.1 The appointed waterway managerIn accordance with Section 6 of the Marine Safety Act 2010, the Minister for Ports, by Order published in the Government Gazette, has declared Gippsland Ports Committee of Management Inc to be the appointed waterway manager for the waters of Local Port of Mallacoota.

1.2 The nature of the waterwayThe Port of Mallacoota is a large waterway adjacent to the small township of Mallacoota, with an entrance to Bass Strait, located on the far eastern coast of Victoria, in far East Gippsland, approximately 515 kilometres east of Melbourne. It includes the waters of Mallacoota Inlet and stretches upstream to the Genoa and Wallagaraugh Rivers, and is enclosed by the Croajingalong National Park. The port waters also extend into Bass Strait to the tip of Bastion Point. The entrance to Bass Strait closes from time to time.

Mallacoota is a popular tourist destination for holiday makers and anglers alike, and is also home to a significant commercial fishing fleet. Water based activities include, power boating, canoeing, kayaking, fishing, swimming and surfing. The waterway has a wharf, slipway and numerous jetties and mooring areas. There are boating launching facilities at Mallacoota, Karbeethong, Gipsy Point and Bastion Point.

1.3 History of the waterway rulesThe current waterway rules for the Local Port of Mallacoota are detailed in Schedule 109 of the Notice under Section 15(2) of the Marine Act 1988 (Vic) published in the Victoria Government Gazette S221 on 28 June 2012.

The waterway rules in Schedule 109 include an exclusion from 5 knots within 200 metres of the water’s edge (109.1), two 5 knot speed restriction zones (109.2) and a special purpose area for vessels navigating to and from the (old) Bastion Point launching area (109.3).

The waterway rules in Schedule 109 (clauses 109.1 and 109.2) were created prior to 1988 (before the Marine Act 1988) when the Local Port of Mallacoota was under the control of the Port of Melbourne Authority. Clause 109.3 the exclusive use and special purpose zone was introduced in December 2005 (under the Marine Act 1988) on the recommendation of Gippsland Ports.

2. Application to make waterway rules

On 13 October 2014, Gippsland Ports Committee of Management Inc submitted a Notice of Intention to Request a Waterway Rule1 to the Director, Transport Safety (Safety Director).

The proposal submitted by Gippsland Ports Committee of Management Inc is to amend the existing waterway rules for Local Port of Mallacoota by:

creating a new zone prohibiting swimming in the vicinity of the new Bastion Point Boat Ramp; and

1 MSA s193 (1) and (2)Waterway Rule Decision of 20Schedule 109 Local Port of Mallacoota

creating a new zone prohibiting vessels at the swimming beach to the west of the new boat ramp.

By creating these two new rules the special purpose zone would no longer be relevant as it was specific to the area in the vicinity of the old Bastion Point launching area.

No amendments were proposed in relation to the exclusion from 5 knots within 200 metres of the water’s edge and the two 5 knot speed restriction zones.

3. Marine Safety Act requirements for waterway rule making

The Marine Safety Act 2010 (Vic) (MSA) details the process that must be followed when a port management body, local port manager or waterway manager proposes to introduce or amend waterway rules, (Appendix 1).

Section 193 of the Marine Safety Act 2010 details the process and considerations for assessment of a Notice of Intention to Request a Waterway Rule

Initial consideration and advice by Safety Director in relation to certain requests

(1) Before making a request for the making of a rule under section 194, a port management body, local port manager or waterway manager must notify the Safety Director of the body's or manager's intention to make the request.

(2) A notification under subsection (1)—(a) must be in writing; and(b) must contain the following information—

(i) the name and address of the body or manager; and(ii) a description of the rule that the body or manager proposes be

made; and(iii) a statement of the nature and scope of the matter that is

proposed to be addressed and an explanation of how the proposed rule would address the matter; and

(c) may be accompanied by a draft of the proposed rule.(3) On receiving a notification under subsection (1), the Safety Director must—

(a) consider whether the rule that is proposed to be requested—(i) appears to be within the powers conferred on the Safety

Director to make the rule; and(ii) is of a material nature or a non-material nature; and

(b) within 2 weeks after receiving a notification under subsection (1)—(i) advise, in writing, the port management body, local port

manager or waterway manager of the matters under subsection (5), (6) or (7), as the case requires; and

(ii) publish notice of the advice in the Government Gazette.(4) An advice under this section must set out the reasons of the Safety Director

as to the matters under subsection (5), (6) or (7), as the case requires.(5) If the Safety Director is of the view that the rule that is proposed to be

requested appears to be within the powers conferred on the Safety Director to make the rule and is of a material nature, the Safety Director must advise the port management body, local port manager or waterway manager—(a) of that view; and(b) that it must comply with section 196 before making a request for the

making of the rule under section (6) If the Safety Director is of the view that the rule that is proposed to be

requested appears to be within the powers conferred on the Safety Director to

Waterway Rule Decision of 20Schedule 109 Local Port of Mallacoota

make the rule and is of a non-material nature, the Safety Director must advise the port management body, local port manager or waterway manager—(a) of that view; and(b) that it is not required to comply with section 196 before making a

request for the making of the rule under section 194.(7) If the Safety Director is of the view that the rule that is proposed to be

requested does not appear to be within the powers conferred on the Safety Director to make the rule, the Safety Director must advise the port management body, local port manager or waterway manager of that view.

Section 188 of the MSA requires that reasons must be given for making or not making a rule:

(1) The Safety Director must publish his or her decision whether to make a rule under section 184 on the Safety Director's Internet site.

(2) A decision that is published under subsection (1) must contain a statement of the reasons of the Safety Director for making or not making the rule, including—(a) a description of the matter that was addressed by the request or

proposal for the making of the rule; and(b) the Safety Director's conclusions after having regard to the mandatory

considerations.

Section 187(1) of the MSA requires that when making a rule:

the Safety Director must have regard to—(a) the mandatory considerations; and (b) if the rule is being made following a request from a port management body,

local port manager or waterway manager, the summary of submissions or comments received by that body or manager under section 194; and

Mandatory Considerations are defined in section 183 Definitions of the MSA. In relation to a proposed waterway rule, mandatory considerations means—

(a) the safety risk, or the nature and level of a safety risk, that the proposed rule is intended to minimise or eliminate;

(b) whether there are alternative ways (legislative or otherwise) to address the matter being or to be addressed by the proposed rule;

(c) the expected benefits and costs of the proposed rule on those persons likely to be affected by the proposed rule, if made;

Section 196 of the MSA requires a waterway manager to consult before requesting rule:

(1) Subject to this Part, before requesting the making of a rule under this Part, a port management body, local port manager or waterway manager must invite submissions and comments in relation to the proposed request from the public in accordance with this section.

(2) The port management body, local port manager or waterway manager must—(a) publish notice of the proposal to request the making of a rule—

(i) in a newspaper circulating generally throughout the State; and(ii) on the body's or manager's Internet site; and

(b) make copies of the proposal available to the public on the body's or manager's Internet site and at the body's or manager's offices or principal place of business during business hours free of charge.

(3) A notice under subsection (2)(a) must—(a) include a summary of the proposal; and(b) specify the date by when a submission or comment must be made to

the port management body, local port manager or waterway manager; and

(c) specify how a submission or comment must be made; andWaterway Rule Decision of 20Schedule 109 Local Port of Mallacoota

(d) specify that copies of the proposal are available on the body's or manager's Internet site and at the body's or manager's offices or principal place of business during business hours free of charge.

(4) The period of time between publication of the notice and the date specified in the notice must not be less than 4 weeks.

(5) The port management body, local port manager or waterway manager must, in formulating its request for the making of a rule, take into account every submission or comment it receives by the date specified in the notice under subsection (2)(a).

Section 194 of the MSA – Requests for waterway rules

(3) A request for the making of a rule—(a) must be in writing; and(b) must contain the following information—

(i) the name and address of the body or manager making the request; and

(ii) a description of the rule that the body or manager proposes be made; and

(iii) a statement of the nature and scope of the matter that is proposed to be addressed and an explanation of how the proposed rule would address the matter; and

(iv) an explanation of how the proposed rule addresses the mandatory considerations; and

(v) in the case where a port management body, local port manager or waterway manager has been advised of the matters under section 193(5)—(A) a list of submissions and comments received under

section 196; and(B) a summary of the matters raised in the submissions

and comments received under section 196; and(C) how the port management body, local port manager or

waterway manager has taken into account the submissions and comments that address the mandatory considerations; and

(c) must be accompanied by a draft of the proposed rule.

4. Safety Director’s determination of whether the proposed rule is within power or of a material nature

After assessing 2 the two Notices of Intention to Request a Waterway Rule received from Gippsland Ports Committee of Management Inc, I, Peter Corcoran, Director Maritime Safety, as a delegate of the Director, Transport Safety, determined that the proposed rules were:

within the powers of the Safety Director to make a rule, and

of a material nature (that is, not a correction of a minor error).

Given the determination that the requests were within the powers of the Safety Director and were material in nature, Gippsland Ports Committee of Management Inc was required to undertake the following public consultation3:

publishing notice of the proposed rule in a newspaper circulating generally throughout the state

2 Required under s193 MSA3 MSA s196Waterway Rule Decision of 20Schedule 109 Local Port of Mallacoota

inviting comments

publishing details of the proposal on the waterway manager’s internet site

making copies available to the public

allowing at least 4 weeks for receiving submissions.

5. Waterway manager’s public consultation

Gippsland Ports Committee of Management Inc undertook the required public consultation in relation to the new waterway rules from 12 February 2015 until 20 March 2015. Notices inviting submissions were published in the Herald Sun (statewide newspaper) and on the Gippsland Ports Committee of Management Inc website.

6. Request to make waterway rules from the waterway manager

Two Requests for Making a Waterway Rule (Request) were received by Maritime Safety Victoria on 31 March 2015. Copies of the Requests are provided in Appendix 1.

In making its request for waterway rules Gippsland Ports Committee of Management Inc was required to:

Provide a description of the proposed rule and if it was amended following the public consultation

address the mandatory considerations

provide a list of submissions and detail matters raised in submissions, and

to explain how the waterway manager has taken into account the submissions and comments in addressing the mandatory considerations.

Gippsland Ports Committee of Management Inc submitted the Requests in writing, with the required information including drafts of the proposed waterway rules.

6.1 Description of the proposed waterway ruleGippsland Ports Committee of Management Inc submitted the following proposed waterway rules for Local Port of Mallacoota:

Create a rule prohibiting swimming in the vicinity of the new Bastion Point Boat Ramp; and

Create a rule prohibiting vessels from entering an area to the west of the new Bastion Point Boat Ramp.

The intention of the proposed rules is to separate swimmers at the popular swimming beach and boaters utilising the boat ramp to minimise the potential for high risk interaction between swimmers and vessels using the new Bastion Point boat ramp.

6.2 Mandatory considerations4

6.2.1 Safety risk the proposed rules are intended to minimise or eliminate

4 MSA s187 (1) (a)Waterway Rule Decision of 20Schedule 109 Local Port of Mallacoota

Gippsland Ports Committee of Management Inc has identified the following safety risks and issues that the new proposed waterway rules seek to address:

The dangers posed by interaction between swimmers at a very popular swimming area and boaters utilising the new Bastion Point boat ramp.

Local community feedback during the planning phase for the new facility indicated the need to separate non compatible activities.

Boaters need to be able to utilise the boat ramp with the risk of interactions with swimmers minimised as much as possible.

Given the dynamic nature of the area surrounding the ramp, visibility can be restricted and manoeuvrability limited for boaters.

Local community feedback during the planning phase for the new facility indicated the need to maintain the beach as swimming only.

Encourage swimmers to restrict their activities to the no boating area and avoid areas of high boating activity.

Gippsland Ports Committee of Management Inc conducted a risk assessment in the process of developing the Bastion Point Safe Operation Manual and the risk of unsafe interactions between boats and swimmers was repeatedly identified. Gippsland Ports is satisfied that the proposed rules control the identified risks as far as is practicable.

6.2.2 AlternativesGippsland Ports Committee of Management Inc considered two alternatives to address the safety risks the proposed rules intend to address.

One alternative was to rely on current speed and proximity rules (vessel 5 knot speed limit within 50 metres of a person in the water) to manage the risk of interactions between vessels and swimmers. Considering the number of boaters and swimmer utilising the areas during busy periods, the dynamic nature of the environment and weather conditions which make operating conditions unpredictable and community opinion in regard to safety, Gippsland Ports disregarded this option.

Gippsland Port believes the only other alternative was variations to the boundaries of the proposed rules. The final boundaries were proposed as Gippsland Port believe they will be easily identified using prominent landmarks, can be relatively easily marked and provide maximum safety of all users with minimal impact of competing activities.

6.2.3 Benefits and costsGippsland Ports Committee of Management Inc nominated the following benefits of the proposed waterway rules:

Effective separation of swimming and boating activities reducing the risk of unsafe interactions.

Providing safe and equitable access to a high value recreational area by allowing adequate areas for competing users and clearly defined boundaries between activities.

Delivering on the commitment to the community to provide a safe operating environment.

Gippsland Ports Committee of Management Inc identified one cost of the proposed waterway rules. Evidence suggests that some boaters use the proposed no boating area to Waterway Rule Decision of 20Schedule 109 Local Port of Mallacoota

drop off individuals in order to access cars/trailer to expedite the retrieval process. This process will no longer be lawful under the proposed rule prohibiting vessels. The proposed rule prohibiting vessels will also mitigate the risks posed by utilising the beach for this purpose.

Gippsland Ports Committee of Management Inc believes that the benefits of introducing the proposed waterway rules to address safety risks and issues far outweigh any associated costs.

6.3 How the waterway manager has taken into account the submissions and comments

Gippsland Ports Committee of Management Inc received 3 submissions in relation to the proposed waterway rules. Of the 3 submissions received, all were supportive of the proposed rule prohibiting vessels from entering an area to the west of the new Bastion Point Boat Ramp, and 2 submissions supported the proposed rule prohibiting swimming in the vicinity of the new Bastion Point Boat Ramp.

There was no opposition to either of the rules and comments were summarised as follows:

The area is a favoured swimming area for families with young children due to its sheltered location.

The area in question is the only beach in Mallacoota readily accessible to the disabled.

Throughout the consultation locals were assured they would have access to the cove free of boat traffic

The area is used for aquatic programs including bronze medallion training, nippers program and aquatic safety courses.

The area is used for lap swimming due to the sheltered water it provides.

7. Compliance with Marine Safety Act waterway rule making process

Gippsland Ports Committee of Management Inc has complied with all the requirements of the MSA, including public consultation.

Gippsland Ports Committee of Management Inc has submitted the request for the making of a rule in writing, with the required information, including a draft of the proposed waterway rule.

8. The Safety Director's conclusions in making a decision whether to make or not make a waterway rule

In making a decision as a result of a request to make a waterway rule the Safety Director must have regard to;

the mandatory considerations, and the summary of submissions or comments received.


8.1 Mandatory considerations

8.1.1 Safety risk the proposed rule is intended to minimise or eliminateGippsland Ports Committee of Management Inc has identified some safety issues associated with vessel operation on the waters of the Local Port of Mallacoota and the new Bastion Point Boat Ramp that warrant a change to the existing rules. The existing special purpose zone operating rules in the vicinity of the old Bastion Point launching area are no longer relevant due to the new boat ramp.

The rules proposed by Gippsland Ports Committee of Management Inc seek to improve safety through designated areas for specific activities, reduce the potential for high risk interaction between swimmers and vessels, maximise navigational safety for vessels using the new Bastion Point boat ramp and maximise safety for swimmers by creating a zone for their activities away from Bastion Point boat ramp vessel traffic.

After considering the safety issues I am of the view that the new waterway rules proposed by Gippsland Ports Committee of Management Inc address the safety issues at Bastion Point. Waterway rules which are reinforced by appropriate navigational aids and signage represent an appropriate response to the safety issues at Bastion Point and will enable the separation of high vessel traffic areas from the area prohibited to vessels.

8.1.2 Alternative ways to address risks and safety issuesGippsland Ports Committee of Management Inc believed that an alternative measure was to rely on current speed and distance rules, however this was not considered adequate and did not achieve the objective to effectively separate conflicting uses of the area and maximise safe and efficient transiting of vessels to and from the new Bastion Point boat ramp.

After considering the possible alternatives to the final proposed waterway rules the introduction of the waterway rules, in this instance, is an appropriate response to the risks and safety issues identified.

8.1.3 Benefits and costsThe proposed waterway rules for the Local Port of Mallacoota are expected to benefit waterway users by separation of competing and conflicting uses of the area and reducing the risk of unsafe interaction. Boaters will benefit by creating a safe operating area to transit to and from the new Bastion Point boat ramp without the risk of interaction with swimmers. Benefits to swimmers relate to the creation of a relatively safe operating environment for swimming without threat of interaction with vessels.

The identified costs associated with the waterway rules relate to the beach area not being accessible to boats, however, Gippsland Ports Committee of Management Inc believe that this will in fact mitigate the hazards posed to boats by using the beach area.

The introduction of waterway rules will also result in additional costs for Gippsland Ports associated with the installation of navigational aids and signage.

The benefits of the new waterway rules I believe outweigh any of the identified costs.

8.2 Summary of submissions or comments5

Gippsland Ports Committee of Management Inc received 3 formal submissions and all were in support of the waterway rules.

5 MSA s187 (1) (b)Waterway Rule Decision of 20Schedule 109 Local Port of Mallacoota

Gippsland Ports Committee of Management Inc in its Request provided a summary of the comments made in the submissions.

In reviewing how Gippsland Ports Committee of Management Inc has taken into account the submissions received I am of the view that the response is adequate, since there were no objections and only support for the proposed rules.

9. Safety Director’s Decision

I, Peter Corcoran, Director Maritime Safety, (as delegate of the Director, Transport Safety) hereby advise that, after having regard to:

the mandatory considerations, and

submissions received in relation to the proposed rules, and

having taken into account the Objectives and Principles of the Transport Integration Act 2010 (Vic)

I have decided to make the waterway rules as requested by Gippsland Ports Committee of Management Inc for Local Port of Mallacoota by revoking the existing special purpose area and creating a new rule prohibiting swimming in the vicinity of the new Bastion Point Boat Ramp and a rule prohibiting vessels west of the boat ramp.


10. Reasons for Decision

Gippsland Ports Committee of Management Inc has identified the safety risks to vessel operators and swimmers at Bastion Point and proposed a balanced approach to addressing these risks while at the same time recognising the expected costs and benefits associated with the introduction of new waterway rules. The proposed rules represent an appropriate response to address the safety issues on the waterway.

Gippsland Ports Committee of Management Inc has undertaken the required public consultation and addressed the mandatory considerations (i.e. the safety risk, alternative ways of addressing the risk, and the associated benefits and costs).

The final rules reflect due consideration of the safety issues for waterway users, concerns raised by the public in the planning phase of the new boat ramp, reduces the potential for high risk interaction between swimmers and vessels and are contemporary in nature given the current and projected usage of the waterway.

The rule will be published in the Government Gazette and on the Safety Director’s internet site, in conjunction with installation and modifications to the navigational aids and signage by the waterway manager.

PETER CORCORANDirector, Maritime SafetyDelegate of the Director, Transport SafetyDated: 9/12/2015


Appendix 2 - Copy of the Request to Make a Waterway Rule


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