title of procedure · web viewthe section of the goulburn river from hughes creek to goulburn...

Decision relating to a request for the making of a

waterway rule – The Goulburn River from

Hughes Creek to Goulburn Weir including Lake

Nagambie

Waterway: The Goulburn River from Hughes Creek to Goulburn Weir including Lake Nagambie

Waterway manager: Strathbogie Shire Council

Waterway rule decision: 536-2017-WR

Decision made by: Rachel GualanoActing Director Maritime SafetyDelegate of the Director, Transport Safety

Date of decision: 20/4/2017

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

Waterway Rule Decision of 15The Goulburn River from Hughes Creek to Goulburn Weir including Lake NagambieMarch 2017

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 Strathbogie Shire Council to be the appointed waterway manager for the waters of the Goulburn River from Hughes Creek to Goulburn Weir including Lake Nagambie.

Strathbogie Shire Council has had waterway management responsibilities for the Goulburn River from Hughes Creek to Goulburn Weir including Lake Nagambie since 1994.

1.2 The Nature of the WaterwaysLake Nagambie is a 170-hectare man–made reservoir located approximately 122 kilometres north of Melbourne. The lake was formed by the damming of the Goulburn River by the Goulburn Weir in 1891. The Goulburn River is a major source of irrigation water in northern Victoria and the waters impounded by the weir provide recreation boating opportunities on the river, Lake Nagambie and the Goulburn Weir. The section of the Goulburn River from Hughes Creek to Goulburn Weir covers approximately 33 kilometres.

Lake Nagambie and the Goulburn River from Hughes Creek to Goulburn Weir is a popular destination for holiday makers and water sport enthusiasts. Water based activities include, power boating, ferry cruising, water skiing, rowing, canoeing, kayaking, fishing, and swimming. Lake Nagambie and the Goulburn River is a popular venue for rowing regattas and water skiing tournaments. The Nagambie Lakes Regatta Centre is a well utilised water sports facility that offers a 2000m, fully buoyed, National Standard rowing and canoeing course.

1.3 History of the waterway rulesThe current waterway rules for the Goulburn River from Hughes Creek to Goulburn Weir including Lake Nagambie are detailed in Schedule 91 of the Vessel Operating & Zoning Rules. Schedule 91 was created under Section 15 of the Marine Act 1988 (Vic) and published in the Victoria Government Gazette S230 on 29 June 2012.

The waterway rules in Schedule 91 were created prior to 1988 (before the Marine Act 1988) when the waters were under the control of the Council of the Shire of Goulburn. The rules have had numerous amendments over the years as a result of changing activities and infrastructure, for example, construction of the rowing facilities in 1998, and removal of the “swimming pool” in 2006. The last changes made in June 2012 were on the recommendation of Strathbogie Shire Council as a result of the findings in a waterway audit undertaken by Marine Safety Victoria in April 2009, and extensive community consultation as part of the Nagambie Waterways Recreational and Commercial Strategy.

The waterway rules in Schedule 91 are extensive covering speed restrictions (5 knots & 20 knots), vessels prohibited areas, areas prohibited to certain activities and exclusive use and special purpose areas, which reflect a variety of boating activities that occur on the waterways. It also has two sets of rules depending on the water levels as measured on the Goulburn Weir.


2. Application to make waterway rules

On 2 February 2017, Strathbogie Shire Council submitted a Notice of Intention to Request a Waterway Rule1 to the Director, Maritime Safety (Safety Director).

The proposal submitted by Strathbogie Shire Council is a rewrite of the existing waterway rules (Schedule 91) for the Goulburn River from Hughes Creek to Goulburn Weir including Lake Nagambie to make them clearer and more precise. No amendments or changes were proposed in relation to any of the rules.

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.

Section 193 of the MSA 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

1 MSA s193 (1) and (2)Waterway Rule Decision of 15The Goulburn River from Hughes Creek to Goulburn Weir including Lake NagambieMarch 2017

(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 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; and(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 assessing2 the Notice, Peter Corcoran, Director Maritime Safety, as a delegate of the Safety Director, determined that the proposed rules were:

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

not of a material nature.

Given the determination that the request was within the powers of the Safety Director, and was non-material in nature, Strathbogie Shire Council was not required to undertake public consultation.3

2 Required under s193 (3) MSA.3 Section 196, MSA.Waterway Rule Decision of 15The Goulburn River from Hughes Creek to Goulburn Weir including Lake NagambieMarch 2017

5. Waterway manager’s public consultation

Strathbogie Shire Council was not required to undertake public consultation.

6. Request to make waterway rules from the waterway manager

The Request for Making a Waterway Rule (Request) was received by Maritime Safety Victoria (MSV) on 20 March 2017. A copy of the Request is provided in Appendix 1.

In making its request for waterway rules the Strathbogie Shire Council was required to:

provide a description of the proposed rule, and address the mandatory considerations contained in s183 of the MSA

Strathbogie Shire Council submitted the Request in writing, with the required information including a draft of the proposed waterway rule as required.

6.1 Description of proposed waterway ruleStrathbogie Shire Council submitted a proposal that re-writes and cleans up the current waterway rules. The proposal is a non-material change to the current Schedule 91 and includes the identification and location of every sign and buoy installed on the waterway, and clarifies the extents of the zones.

6.2 Mandatory considerations4

6.2.1 Safety risk the proposed rule is intended to minimise or eliminateStrathbogie Shire Council identified the following safety risks and issues that the proposed waterway rules seek to address:

minimise and eliminate confusion with the rules

make the rules easier to understand

make it easier to identify signs, buoys and zones on the waterways.

Strathbogie Shire Council believes that the non-material changes clean up and clarify Schedule 91 and that the intent of the rules has not changed, but the re-write simply makes the rules easier to understand for waterway users and the waterway manager.

6.2.2 AlternativesStrathbogie Shire Council considers that there were no alternatives other than to re-write the rules for clarification.

6.2.3 Benefits and costs Strathbogie Shire Council in the Request nominated the following benefits of re-writing the existing waterway rules:

Easier for waterway users and waterway managers to understand the rules and zones

Easier for the waterway manager to identify, map and keep track of signs.

Less signage to maintain.

Current and upgraded signage4 MSA s187 (1) (a)Waterway Rule Decision of 15The Goulburn River from Hughes Creek to Goulburn Weir including Lake NagambieMarch 2017

The costs identified by Strathbogie Shire Council are related to:

Financial costs of cleaning up and replacing signage

Financial costs of removing unnecessary signs.

7. Compliance with Marine Safety Act waterway rule making process

Strathbogie Shire Council has complied with the requirements of the Marine Safety Act 2010.

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 as detailed in section 183 of the MSA.

8.1 Mandatory considerations

8.1.1 Safety risk the proposed rule is intended to minimise or eliminateStrathbogie Shire Council has identified safety issues associated with the current waterway rules being confusing and difficult to understand for themselves and waterway users.

MSV recognises that the waterway rules described in Schedule 91 are complex and difficult to interpret. Although the schedule serves as a legislative specification, it is confusing to all who attempt to work with it. MSV audited the waterway in April 2009 and again in November 2013 and recommended that, the rules remove reference to adjoining zones in schedule descriptions, use GPS point and geographical feature or distances and to improve zone identification and public understanding of the rules. The re-written rules are easier to understand and interpret and makes each zone independent.

The waterway rules are communicated to waterway users primarily by buoyage and signage and a boating guide of the waterway. Strathbogie Shire Council has done a great deal of work removing unnecessary signage and updating and improving signage marking the zones, so references to signage in the rules, has also been updated to reflect the new signage. The re-written rules and inclusion of asset locations proposed by Strathbogie Shire Council will improve safety through more contemporary and easily understood waterway rules for all.

After considering the safety issues and the views of Strathbogie Shire Council, I am of the view that the new re-written waterway rules proposed by Strathbogie Shire Council address the safety issues by creating waterway rules that are easier to understand and interpret, and are reinforced by appropriate navigational aids and signage.


8.1.2 Alternative ways to address risks and safety issuesStrathbogie Shire Council in its Request believes that re-writing the rules for clarification is the only alternative to address the safety issues identified.

After considering the alternatives, I believe that there are few effective alternative ways of clarifying the waterway rules, other than re-writing and simplifying the rules and installing appropriate buoyage and signage to reflect those rules. The new re-written waterway rules proposed by Strathbogie Shire Council are appropriate to address the safety issues identified.

8.1.3 Benefits and costsStrathbogie Shire Council has identified that there were financial costs associated with the proposed re-writing of the waterway rules associated with removing unnecessary signage and replacing with upgraded signage to accurately reflect the rules, but believes that there is also costs saving by having less signage to maintain. Easier understood rules and zones were also identified as a benefit to the waterway manager and waterway users.

In considering the impact of the proposed re-witten rules, the benefits of the revised and simplified rules, signage and buoyage will make easier for all to understand the rules.

After considering the benefits and costs, I am of the view that the benefits of the new re-written waterway rules proposed by Strathbogie Shire Council far out way any costs.

9. Safety Director’s Decision

I, Rachel Gualano, Acting Director, Maritime Safety, delegate of the Director, Transport Safety, hereby advise that, after having regard to:

the mandatory considerations, and

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

I have decided to make the waterway rule as requested by Strathbogie Shire Council for the Goulburn River from Hughes Creek to Goulburn Weir including Lake Nagambie.

RACHEL GUALANOActing Director, Maritime SafetyDelegate of the Director, Transport SafetyDated: 20/4/2017


Appendix 1 - Copy of the Request to Make a Waterway Rule


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