Recfishwest submission on Amendment of Regulation 19C, Navigable Waters Regulations 1958, dive flags for snorkelers.

Preamble

Following an incident at one of the Fish Attracting Devices off Rottnest in which a free diving (breathholding) spear fishing diver was injured by a boat, Joe Petrovitch, Recfishwest Board Member from the Australian Underwater Federation (AUF) raised the issue of previous changes to Regulations which appeared to remove dive flag protection for snorkelers and free divers.

Recfishwest wrote to the Department of Planning and Infrastructure requesting amendments to the Regulations, as follows. The response received from the Department is attached.

Links and references to legislation and boating information

Recfishwest submission to Dept of Planning and Infrastructure.

Mr Eric Lumsden
Director General
Department of Planning and Infrastructure
GPO Box C102
Perth WA 6839

Dear Mr Lumsden

Amendment of Regulation 19C, Navigable Waters Regulations 1958

Recfishwest is writing to request that consideration be given to amending the Navigable Waters Regulations 1958 Regulation 19C; Master to display diving signals during diving.

It is our understanding that since an amendment of the regulations in 2003, the need to display an International Code Flag "A" (dive flag) has been removed when a diver is operating from a boat using a combination of snorkel on the surface and free diving.

Recfishwest is concerned that breath-hold spearfishers are actually at greater risk of a collision with a vessel than an air-assisted diver because of their need to come to the surface regularly. In spite of this increased inherent risk, breath-hold divers have no protection under the regulations.

A recent accident where a vessel collided with a free dive spearfisher whilst he was flying the dive flag brought this to the attention of Recfishwest.

Most breath-hold divers already choose to fly a dive flag when in the water and it is a common perception that they are afforded the same cover as an air assisted diver. Recfishwest is concerned that if a breath-hold diver does choose to fly the dive flag that they could in fact be liable to an offence.

Recfishwest understands that including snorkelers under the requirement to fly the dive flag could prove difficult around beaches and bays that have high vessel traffic e.g. Rottnest. Recfishwest believes that people swimming close to shore with a snorkel, or those just swimming, should be adequately protected by speed restrictions placed on vessels approaching within certain distances of the shore and designated anchorage areas. Breath-hold free divers often operate well away from shore.

Recfishwest would like to propose a meeting with representatives of breath-hold divers, the boating industry and DPI to progress this issue further.

Please feel free to contact me on (08) 9246 3366 should you require any further information or clarification on this issue. I look forward to discussing this issue further with a nominated officer from your Department.

Yours sincerely


Kane Moyle
Policy Officer

23 May 2008
CC   Hon Jon Ford, Minister for Fisheries
       Doug Bathgate, Chair RFAC

Response from Dept of Planning and Infrastructure

Department for Planning and Infrastructure
Government of Western Australia

Our ref: DPI/02/5061
Enquiries: Lisa Watkins 08 9216 8907

WA Recreational and Sportfishing Council (Inc)
Recfishwest
PO Box 34
North Beach WA 6920

Dear Mr Moyle

Amendment of Regulation 19E, Navigable Waters Regulations 1958

I write in response to your letter dated 23 May 2008, requesting consideration for amendment to Regulation 19E of the Navigable Waters Regulations 1958 (WA) ["Regulations"].

The 2003 amendment referred to in your letter did not involve the removal of the need to display an International Code Flag Alpha "A" ["dive flag"]. Rather it provided definition of the term 'diving operations' to purport the use of compressed gas for breathing by means of either surface supplied breathing apparatus or self contained breathing apparatus. It is our position that the introduction of legislation for snorklers and breath-held divers to carry dive flags is impractical and difficult to enforce. Our current boat education programs often carry the 50m 'stay clear, diver below' message. Additionally, the lack of legislative requirement to fly the dive flag does not limit a diver's individual preference to utilise one.

Whilst we acknowledge the severity of the accident that occurred recently, amendment to Regulation 19C or 19E would not have prevented it. As you correctly noted, the diver was carrying a dive flag at the time the incident occurred. Thus, to legislatively enforce the carrying of one would do little to alleviate the incident. It is our position that to extend the 50m area described in the Regulations would not provide any additional protection. The provision is merely a cautionary tool to ensure surface craft are aware that divers are in the vicinity, it is not an exclusion zone.

In regards to the penalties for contravention of the Regulations, a Regulation amendment was signed by the Minister in August 2007 to enable a more significant penalty to be issued where it is considered a breach has occurred and that pursuing a costly and lengthy court proceeding is not in the public interest. It is our position that the inclusion of previous terms such as 'distance from' are extremely difficult to police or prove and interpretation is far too subjective. The current Regulations do not make reference to penalties for divers choosing to carry the dive flag and thus, to do so does not constitute an offence but is rather a matter of personal choice for their own safety.

I trust the above has adequately addressed your concerns. Should you require any further elaboration, please contact the General Manager Marine Safety, David Harrod on 9216 8805.

Yours sincerely

Eric Lumsden PSM
Director General
10/7/2008

Albert Facey House, 469 Wellington Street, Perth, Western Australia 6000
Tel: (08) 9264 7777 Fax: (08) 9264 7566 www.dpi.wa.gov.au
ABN 40 996 710 314

Links and references to legislation and boating information

Navigable Waters Regulations 1958 (link opens in a new window)

Regulation 19C. is "Master to display diving signals during diving"

Regulation 19E. is "Precautions when approaching diving operations"

Regulation 48. is "Limitation of speed"

Department for Planning and Infrastructure Diving Information (link opens in a new window)

Department for Planning and Infrastructure Marine Information (link opens in a new window)

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This page prepared on 31 December 2008.