An Act relating to the prevention of pollution from ships
Part I—Preliminary
1
Short title [see
Note 1]
This Act may be cited as the Protection
of the Sea (Prevention of Pollution from Ships) Act 1983.
2
Commencement [see
Note 1]
(1) Sections 1 and 2 shall come into
operation on the day on which this Act receives the Royal Assent.
(2) The remaining provisions of this Act
shall come into operation on such respective dates as are fixed by
Proclamation.
3
Interpretation
(1) In this Act, unless the contrary
intention appears:
Antarctic Area means the sea area south of
60º south latitude.
Antarctic Protocol means the Protocol on
Environmental Protection to the Antarctic Treaty.
approved form means a form approved by the
Authority under section 3A.
Australia includes the external Territories.
Australian ship means:
(a) a ship registered in Australia; or
(b) an unregistered ship having
Australian nationality.
Authority means the Australian Maritime
Safety Authority established by the Australian Maritime Safety Authority Act
1990.
exclusive economic zone means the exclusive
economic zone, within the meaning of the Seas and Submerged Lands Act 1973,
adjacent to the coast of Australia or the coast of an external Territory.
foreign ship means a ship that is not an
Australian ship.
inspector means a person who:
(a) is a surveyor for the purpose of
the Navigation Act 1912; or
(aa) is a member or a special member of
the Australian Federal Police; or
(b) is appointed by the Authority, in
writing, to be an inspector for the purposes of this Act.
Law of the Sea Convention means the United
Nations Convention on the Law of the Sea done at Montego Bay on 10 December 1982.
master, in relation to a ship, means the
person having command or charge of the ship.
State includes the Northern Territory.
territorial sea means the territorial sea of Australia.
the Convention means the 1973 Convention as
modified and added to by the 1978 Protocol.
the 1973 Convention means the International
Convention for the Prevention of Pollution from Ships, 1973, as corrected by
the Proces‑Verbal of Rectification dated 13 June 1978, and as
affected by any amendments (other than an amendment that has not entered force
for Australia) made under Article 16 of the Convention.
the 1978 Protocol means the Protocol of 1978
relating to the International Convention for the Prevention of Pollution from
Ships, 1973, being the Protocol as affected by any amendments (other than an
amendment that has not entered force for Australia) made under Article VI of
the Protocol.
the regulations, except in sections 33
and 34 or to the extent that the regulations provide otherwise, includes orders
made under section 34.
this Act includes the regulations and orders
made under section 34.
Tonnage Measurement Convention has the same
meaning as in Part XA of the Navigation Act 1912.
(1A) A reference in this Act to the sea near a
State shall be read as a reference to:
(a) the territorial sea of Australia
adjacent to the State; and
(b) the sea on the landward side of
the territorial sea of Australia adjacent to the State.
(1AA) A reference in this Act to the sea near the Jervis
Bay Territory shall be read as a reference to the sea in that Territory.
(1B) A reference in this Act to the sea near an
external Territory shall be read as a reference to:
(a) the territorial sea adjacent to
the Territory; and
(b) the sea on the landward side of
the territorial sea adjacent to the Territory.
(1BA) For the purposes of this Act, the laws of
the Jervis Bay Territory shall be taken to include laws, other than this Act,
in force in that Territory.
(2) A reference in a section of this Act to a
prescribed officer is a reference to the Authority or such person, or the
holder of such office in the Authority, as is prescribed for the purposes of
that section.
(3) Except in so far as the contrary
intention appears, an expression that is used in this Act and in the
Convention, otherwise than in an annex to the Convention, (whether or not a
particular meaning is assigned to it by the Convention) has, in this Act, the
same meaning as in the Convention.
(4) Where, at any time, the gross tonnage
applicable to a ship has been determined otherwise than in accordance with the
Tonnage Measurement Convention, then, in the application of this Act to the
ship at that time, a reference in this Act to the gross tonnage of a ship not
expressed in tons shall be taken to be a reference to the gross tonnage of the
ship expressed in tons.
3A
Authority may approve form
(1) The Authority may, in writing, approve a
form for the purposes of a provision of this Act.
(2) An approval made under
subsection (1) is not a legislative instrument.
4 Act
to bind Crown
(1) This Act binds the Crown in right of the
Commonwealth, of each of the States and of Norfolk Island.
(2) Nothing in this Act renders the
Commonwealth or a State or Territory liable to be prosecuted for an offence.
(3) Subsection (2) does not affect any
liability of any servant or agent of the Commonwealth or of a State or
Territory to be prosecuted for an offence.
5
Saving of other laws
(1) This Act shall be read and construed as
being in addition to, and not in derogation of or in substitution for, any
other law of the Commonwealth.
(2) This Act, other than sections 9, 11,
21, 22, 26AB, 26D, 26F, 26FEG, 26FEL, 26FEN, 26FEO and 26FEP, shall be read and
construed as being in addition to, and not in derogation of or in substitution
for any law of a State or of an external Territory.
6
Operation of Act
This Act applies both within and outside
Australia and extends to every external Territory and to the exclusive
economic zone.
7
Application of the Criminal Code
Chapter 2 (other than Part 2.5)
of the Criminal Code applies to all offences created by this Act.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
Part II—Prevention of pollution by oil
8
Interpretation
Except in so far as the contrary
intention appears, an expression that is used in this Part and in Annex I to
the Convention (whether or not a particular meaning is assigned to it by that
Annex) has, in this Part, the same meaning as in that Annex.
9
Prohibition of discharge of oil or oily mixtures into sea
(1) If:
(a) a person engages in conduct that
causes a discharge of oil or of an oily mixture from a ship into the sea; and
(b) the person is reckless or
negligent as to causing the discharge by that conduct; and
(c) one of the following subparagraphs
applies:
(i) the discharge occurs
into the sea near a State, the Jervis Bay Territory or an external Territory
and there is no law of that State or Territory that makes provision giving
effect to Regulations 4, 15 and 34 of Annex I to the Convention in relation to
that sea;
(ii) the discharge occurs
into the sea in the exclusive economic zone;
(iii) the discharge occurs
into the sea beyond the exclusive economic zone and the ship is an Australian
ship;
the person commits an offence punishable, on conviction,
by a fine not exceeding 2,000 penalty units.
(1A) In subsection (1):
engage in conduct has the same meaning as in
the Criminal Code.
(1B) Subject to subsections (2) and (4),
if:
(a) oil or an oily mixture is
discharged from a ship into the sea; and
(b) one of the following subparagraphs
applies:
(i) the discharge occurs
into the sea near a State, the Jervis Bay Territory or an external Territory
and there is no law of that State or Territory that makes provision giving
effect to Regulations 4, 15 and 34 of Annex I to the Convention in relation to
that sea;
(ii) the discharge occurs
into the sea in the exclusive economic zone;
(iii) the discharge occurs
into the sea beyond the exclusive economic zone and the ship is an Australian
ship;
the master and the owner of the ship each commit an offence
punishable, on conviction, by a fine not exceeding 500 penalty units.
(1C) An offence against subsection (1B) is
an offence of strict liability.
(2) Subsection (1B) does not apply to
the discharge of oil or of an oily mixture from a ship:
(c) for the purpose of securing the
safety of a ship or saving life at sea; or
(d) if the oil or oily mixture, as the
case may be, escaped from the ship in consequence of non‑intentional
damage to the ship or its equipment, and all reasonable precautions were taken
after the occurrence of the damage or the discovery of the discharge for the
purpose of preventing or minimizing the escape of oil or oily mixture, as the
case may be; or
(e) in the case of an oily mixture, if
the discharge was for the purpose of combating specific pollution incidents in
order to minimize the damage from pollution and was approved by a prescribed
officer and, where the discharge occurred in the jurisdiction of the government
of a country other than Australia, by that government.
Note: The defendant bears an evidential burden of
proof of the matters mentioned in this subsection.
(3) For the purposes of paragraph (2)(d),
damage to a ship or to its equipment is not non‑intentional damage if the
damage:
(a) arose in circumstances where the
master or owner of the ship:
(i) acted with intent to
cause the damage; or
(ii) acted recklessly and
with knowledge that the damage would probably result; or
(b) arose as a result of the
negligence of the master or owner of the ship.
(3A) For the purposes of this section, damage
to a ship or to its equipment does not include:
(a) deterioration resulting from
failure to maintain the ship or equipment; or
(b) defects that develop during the
normal operation of the ship or equipment.
(4) Without limiting the generality of
subsection (2) but subject to subsection (5), subsection (1B)
does not apply to:
(a) the discharge of oil or an oily
mixture from a ship that is not within a special area, if the following
conditions are satisfied:
(i) the ship has a gross
tonnage of equal to or greater than 400;
(ii) the ship is proceeding
en route;
(iii) the oily mixture is
processed using oil filtering equipment meeting the requirements set out by
regulation made for the purposes of this subparagraph under section 267A
of the Navigation Act 1912;
(iv) the oil content of the
effluent without dilution does not exceed 15 parts in 1,000,000 parts;
(v) if the ship is an oil
tanker—the oily mixture does not originate from the cargo pump room bilges of
the ship and is not mixed with oil cargo residues; and
(b) the discharge of oil or an oily
mixture from a ship within a special area other than the Antarctic area, if the
following conditions are satisfied:
(i) the ship has a gross
tonnage of equal to or greater than 400;
(ii) the ship is proceeding
en route;
(iii) the oily mixture is
processed using oil filtering equipment meeting the requirements set out by
regulation made for the purposes of this subparagraph under section 267A
of the Navigation Act 1912;
(iv) the oil content of the
effluent without dilution does not exceed 15 parts per 1,000,000 parts;
(v) if the ship is an oil
tanker—the oily mixture does not originate from the cargo pump room bilges of
the ship and is not mixed with oil cargo residues; and
(c) the discharge of oil or an oily
mixture within an area other than the Antarctic area from a ship, if the
following conditions are satisfied:
(i) the ship has a gross
tonnage of less than 400;
(ii) the ship is proceeding
en route;
(iii) the ship has in operation
equipment, of a kind that meets the requirements set out by regulation made for
the purposes of this subparagraph under section 267A of the Navigation
Act 1912, that ensures that the oil content of the effluent without
dilution does not exceed 15 parts in 1,000,000 parts;
(iv) if the ship is an oil
tanker—the oily mixture does not originate from the cargo pump room bilges of
the ship and is not mixed with oil cargo residues; and
(d) the discharge of oil or an oily
mixture (other than washings contaminated with oil) from the cargo area of an
oil tanker that is not within a special area, if the following conditions are
satisfied:
(i) the tanker has a gross
tonnage of 150 or more;
(ii) the tanker is more
than 50 nautical miles from the nearest land;
(iii) the tanker is
proceeding en route;
(iv) the instantaneous rate
of discharge of oil content does not exceed 30 litres per nautical mile;
(v) if the tanker is
delivered on or before 31 December 1979—the total quantity of oil
discharged into the sea does not exceed one part in 15,000 parts of the total
quantity of the cargo of oil of which oil discharged formed a part;
(vi) if the tanker is
delivered after 31 December 1979—the total quantity of oil discharged into
the sea does not exceed one part in 30,000 parts of the total quantity of the
cargo of oil of which oil discharged formed a part;
(vii) the tanker has in
operation an oil discharge monitoring and control system and a slop tank
arrangement as required by regulations made for the purposes of this
subparagraph under section 267A of the Navigation Act 1912; and
(e) the discharge of washings
contaminated with oil from an oil tanker that is not within a special area, if
the following conditions are satisfied:
(i) the tanker is more
than 50 nautical miles from the nearest land;
(ii) the tanker is
proceeding en route;
(iii) the instantaneous rate
of discharge of oil content does not exceed 30 litres per nautical mile;
(iv) if the tanker is
delivered on or before 31 December 1979—the total quantity of oil
discharged into the sea does not exceed one part in 15,000 parts of the total
quantity of the cargo of oil of which oil discharged formed a part;
(v) if the tanker is
delivered after 31 December 1979—the total quantity of oil discharged into
the sea does not exceed one part in 30,000 parts of the total quantity of the
cargo of oil of which oil discharged formed a part;
(vi) the tanker has in
operation an oil discharge monitoring and control system and a slop tank
arrangement as required by regulations made for the purposes of this
subparagraph under section 267A of the Navigation Act 1912; and
(f) the discharge of oil or an oily
mixture from the cargo area of an oil tanker, either within or outside a
special area, if the discharge is of clean or segregated ballast.
(5) A reference to an oily mixture in subsection (4)
shall be read as not including a reference to an oily mixture that contains:
(a) chemicals or other substances in
quantities or concentrations that are hazardous to the marine environment; or
(b) chemicals or other substances that
have been introduced for the purpose of attempting to prevent the application
of subsection (1) to the discharge of an oily mixture from a ship.
10
Prohibition of discharge of oil residues into sea
(1) If:
(a) a person engages in conduct that
causes a discharge from an Australian ship of an oil residue into the sea; and
(b) the person is reckless or
negligent as to causing the discharge by that conduct; and
(c) such a discharge cannot occur
without the commission of an offence against subsection 9(1) or (1B) or of an
offence against a law of a State or Territory;
the person commits an offence punishable, on conviction,
by a fine not exceeding 2,000 penalty units.
(2) In subsection (1):
engage in conduct has the same meaning as in
the Criminal Code.
(3) If:
(a) an oil residue is discharged from
an Australian ship into the sea; and
(b) such a discharge cannot occur
without the commission of an offence against subsection 9(1) or (1B) or of an
offence against a law of a State or Territory;
the master and the owner of the ship each commit an
offence punishable, on conviction, by a fine not exceeding 500 penalty units.
(4) An offence against subsection (3) is
an offence of strict liability.
11
Duty to report certain incidents involving oil or oily mixture
(1A) This section does not apply in relation to
prescribed incidents that occur in the sea near a State, the Jervis Bay Territory
or an external Territory to the extent that a law of that State or Territory
makes provision giving effect to Protocol I to the Convention in relation to
those prescribed incidents.
Note: The defendant bears an evidential burden of
proof of the matters mentioned in this subsection.
(1B) This section does not apply in relation to
a prescribed incident that occurs in relation to a foreign ship unless the
incident occurs in the sea near a State, the Jervis Bay Territory or an
external Territory or in the exclusive economic zone.
Note: The defendant bears an evidential burden of
proof of the matters mentioned in this subsection.
(1) Where a prescribed incident occurs in
relation to a ship, the master of the ship shall, without delay, notify, in the
prescribed manner:
(a) where Australia or an external
Territory is the nearest coastal State to the place where the incident
occurred—a prescribed officer; or
(b) where
a foreign country is the nearest coastal State to that place—the government of
that foreign country;
of the incident.
Penalty: 500 penalty units.
(2) Subsection (1) does not apply in
relation to a prescribed incident in relation to a ship if the master of the
ship was unable to comply with the subsection in relation to the incident.
Note: The defendant bears an evidential burden of
proof of the matters mentioned in this subsection.
(3) Where a prescribed incident occurs in
relation to a ship and:
(a) the master of the ship fails to
comply with subsection (1) (whether or not the master is able to comply
with that subsection) in relation to the incident; or
(b) the
incident occurs in circumstances in which the ship is abandoned;
the owner, charterer, manager or operator of the ship or
an agent of the owner, charterer, manager or operator of the ship shall,
without delay, notify, in the prescribed manner:
(c) where Australia or an external
Territory is the nearest coastal State to the place where the incident
occurred—a prescribed officer; or
(d) where
a foreign country is the nearest coastal State to that place—the government of
that foreign country;
of the incident, and, if a prescribed officer or a
government, as the case may be, is not so notified, each of those persons is
guilty of an offence punishable, upon conviction, by a fine not exceeding 500
penalty units.
(3A) An offence under subsection (3) is an
offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(4) Subsection (3) does not apply to a
person in relation to a prescribed incident in relation to a ship if:
(a) the person was not aware of the
incident; or
(b) in the case of a prescribed
incident to which paragraph (3)(a) applies—the person neither knew nor
suspected that the master of the ship had not complied with subsection (1)
in relation to the incident.
Note: The defendant bears an evidential burden of
proof of the matters mentioned in this subsection.
(5) Subsection (4) shall not be taken to
limit by implication any defence that would, but for that subsection, be
available to a person charged with an offence against subsection (3).
(6) A master
of a ship who, pursuant to subsection (1), has notified a prescribed
officer or a government of the occurrence of a prescribed incident shall, if so
requested by a prescribed officer or that government, as the case may be,
furnish, within the prescribed time, a report to a prescribed officer or that
government, as the case may be, in relation to the incident in accordance with
the prescribed form.
Penalty: 200 penalty units.
(7) Where subsection (3) applies in
relation to a prescribed incident in relation to a ship, a person who, pursuant
to that subsection, has notified a prescribed officer or a government of the
occurrence of the prescribed incident shall, if so requested by a prescribed
officer or that government, as the case may be, furnish, within the prescribed
time, a report to a prescribed officer or that government, as the case may be,
in relation to the incident in accordance with the prescribed form.
Penalty: 200 penalty units.
(8) A person
shall not, in a notice given to a prescribed officer or a government pursuant
to subsection (1) or (3) or in a report furnished to a prescribed officer
or a government pursuant to subsection (6) or (7), make a statement that
is false or misleading in a material particular.
Penalty: 200 penalty units.
(9) A notice given to a prescribed officer or
a government pursuant to subsection (1) or (3), and a report furnished to
a prescribed officer or a government pursuant to subsection (6) or (7),
shall not, without the consent of the person charged, be admitted in evidence
in a prosecution for an offence against subsection 9(1).
(10) In this section:
prescribed incident, in relation to a ship,
means:
(a) an incident involving a discharge
from the ship of oil or an oily mixture, not being a discharge to which
subsection 9(4) applies; or
(b) an incident involving the
probability of a discharge from the ship of oil or an oily mixture, not being a
discharge to which subsection 9(4) would apply; or
(c) if the ship is 15 metres or more
in length—an incident (including, but not limited to, collision, grounding,
fire, explosion, structural failure, flooding and cargo shifting) involving
damage, failure or breakdown that affects the safety of the ship; or
(d) if the ship is 15 metres or more
in length—an incident (including, but not limited to, failure or breakdown of
steering gear, propulsion plant, electrical generating system and essential
shipborne navigational aids) involving damage, failure or breakdown that
impairs the safety of navigation of the ship.
11A
Shipboard oil pollution emergency plan
(1) This section applies to:
(a) an Australian ship (whether an oil
tanker or not) that has a gross tonnage of 400 or more; and
(b) an Australian ship that is an oil
tanker with a gross tonnage of less than 400 but not less than 150.
(2) In this section:
prescribed incident, in relation to a ship,
has the same meaning as in section 11.
(3) There must be kept on board a ship to
which this section applies a shipboard oil pollution emergency plan written in
the working language of the master of, and the officers on board, the ship.
(4) A shipboard oil pollution emergency plan
must be in accordance with the prescribed form and set out the following
particulars:
(a) the procedure to be followed by
the master, or any other person having charge, of the ship in notifying a
prescribed incident in relation to the ship;
(b) a list of the authorities or
persons that are to be notified by persons on the ship if a prescribed incident
occurs in relation to the ship;
(c) a detailed description of the action
to be taken, immediately after a prescribed incident, by persons on board the
ship to reduce or control any discharge from the ship resulting from the
incident;
(d) the procedures to be followed for
co‑ordinating with the authorities or persons that have been contacted
(whether in Australia or in a country near to the place where the incident
occurred) any action taken in combating the pollution caused by the incident
and, in particular, the person on board the ship through whom all
communications are to be made.
(5) The procedure referred to in paragraph (4)(a)
must be in accordance with the regulations prescribing, for the purposes of
subsection 11(1), the manner in which a prescribed incident is to be notified.
(6) Subsection (4) does not prevent
other relevant particulars from being included in the shipboard oil pollution
emergency plan.
(7) If a ship to which this section applies
does not have on board a shipboard oil pollution emergency plan, the master of
the ship and the owner of the ship are each guilty of an offence punishable on
conviction by a fine not exceeding 500 penalty units.
(8) An offence under subsection (7) is
an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
12 Oil
record book
(1) This section applies to an Australian
ship that:
(a) is an oil tanker; or
(b) has a gross tonnage of 400 or more
and is not an oil tanker.
(2) Every ship to which this section applies
shall carry such oil record books as are required by the regulations to be
carried on the ship.
(3) An oil record book shall be in accordance
with the appropriate prescribed form with provision made for a signature, in
accordance with subsection (6), in relation to each entry made in it and
for a signature, in accordance with subsection (7), in relation to each
page of it.
(4) Where a ship to which this section
applies does not carry an oil record book as required by this section, the
master and the owner of the ship are each guilty of an offence punishable, upon
conviction, by a fine not exceeding 200 penalty units.
(4A) An offence under subsection (4) is an
offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(5) Whenever a
prescribed operation or prescribed occurrence is carried out or occurs in, or
in relation to, a ship to which this section applies, the master of the ship
shall cause appropriate entries to be made without delay in the ship’s oil
record book, being entries in accordance with subsection (6).
Penalty: 200 penalty units.
(6) An entry in a ship’s oil record book:
(a) shall be made in the English
language; and
(b) must be signed by the officer in
charge of the prescribed operation or prescribed occurrence.
(7) Where a
page of a ship’s oil record book is completed, the master of the ship shall,
without delay, sign the page.
Penalty for a contravention of this subsection: 200 penalty
units.
13
False entries in oil record book
A person
shall not make, in an oil record book of a ship to which section 12 applies,
an entry that is false or misleading in a material particular.
Penalty: 200 penalty units.
14 Oil
record book to be retained
(1) An oil record book of a ship to which
section 12 applies shall be retained in the ship until the expiration of a
period of one year after the day on which the last entry was made in the book
and shall be readily available for inspection at all reasonable times.
(2) Where an oil record book is not retained
in a ship in accordance with subsection (1), the master and the owner of
the ship are each guilty of an offence punishable, upon conviction, by a fine
not exceeding 200 penalty units.
(2A) An offence under subsection (2) is an
offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) The owner of a ship to which section 12
applies shall cause each of the ship’s oil record books to be retained:
(a) in the ship; or
(b) at
the registered office of the owner;
until the expiration of the period of 2 years next
following the expiration of the period during which the book is required to be
retained in the ship by virtue of subsection (1) and shall be readily
available for inspection at all reasonable times.
Penalty: 200 penalty units.
(5) The owner of a ship to which section 12
applies who resides in Australia, or has an office or agent in Australia, may
from time to time furnish to a prescribed officer notice, in writing, of an
address, being the address of:
(a) the place at which he or she so
resides;
(b) his or her office in Australia or,
if he or she has more than one office in Australia, his or her principal office
in Australia; or
(c) the
office or place of residence of his or her agent or, if his or her agent has
more than one office in Australia, the principal office in Australia of his or
her agent;
and the place or office of which an address is furnished
for the time being under this subsection is the registered office of the owner
of the ship for the purposes of subsection (3).
(6) Where the owner of a ship to which
section 12 applies does not reside in Australia and does not have an
office or agent in Australia, the owner may deposit an oil record book of the
ship with a prescribed officer and, while the book is so deposited, the book
shall, for the purposes of subsection (3), be deemed to be retained at the
registered office of the owner.
14A
Power to require discharge of oil or oily mixture at a reception facility
(1) A prescribed officer may require the
owner or master of a ship, by written notice given to the owner or master, as
the case may be, to cause a specified quantity of oil or of an oily mixture to
be discharged within a specified period from the ship to a specified facility
that is suitable to receive that quantity of the oil or oily mixture if the
officer has reason to believe that retention of the oil or oily mixture would
create a risk of discharge from the ship into the sea.
(2) The owner or master of a ship to whom a
notice is given under subsection (1) must comply with the notice.
Penalty: 500 penalty units.
Part III—Prevention of pollution by noxious substances
15
Interpretation
(1) In this Part:
Annex II means Annex II to the Convention.
mixture includes ballast water, tank washings
and other residues.
oil has the same meaning as it has in Part II.
Procedures and Arrangements Manual means a
manual that:
(a) contains the matters set out in
appendix 4 of Annex II; and
(b) is in accordance with the approved
form.
(2) Except in so far as the contrary
intention appears, an expression that is used in this Part and in Annex II
(whether or not a particular meaning is assigned to it by that Annex) has, in
this Part, the same meaning as in that Annex.
16
Application of Act to mixture of oil and liquid substance
Where a mixture contains oil and a
liquid substance or oil and liquid substances, Part II and this Part apply
in relation to the mixture.
17
Prohibition of carriage of substances that have not been categorized or
provisionally assessed
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct results in a liquid
substance, or a mixture containing a liquid substance, being carried as cargo
or part cargo in bulk on an Australian ship; and
(c) the person is negligent as to
causing that result; and
(d) the substance has not been
categorized in accordance with regulation 6.1 of Annex II; and
(e) the substance has not been
provisionally assessed in accordance with regulation 6.3 of Annex II; and
(f) the substance is being carried
while one of the following subparagraphs applies:
(i) the ship is in the sea
near a State, the Jervis Bay Territory or an external Territory and there is no
law of that State or Territory that makes provision giving effect to regulation
13.1.3 of Annex II in relation to that sea;
(ii) the ship is in the
exclusive economic zone;
(iii) the ship is beyond the
exclusive economic zone.
Penalty: 200 penalty units.
(2) The master and the owner of an Australian
ship each commit an offence if:
(a) a liquid substance, or a mixture
containing a liquid substance, is carried as cargo or part cargo in bulk on the
ship; and
(b) the substance has not been
categorized in accordance with regulation 6.1 of Annex II; and
(c) the substance has not been
provisionally assessed in accordance with regulation 6.3 of Annex II; and
(d) the substance is carried while one
of the following subparagraphs applies:
(i) the ship is in the sea
near a State, the Jervis Bay Territory or an external Territory and there is no
law of that State or Territory that makes provision giving effect to regulation
13.1.3 of Annex II in relation to that sea;
(ii) the ship is in the
exclusive economic zone;
(iii) the ship is beyond the
exclusive economic zone.
Penalty: 60 penalty units.
(3) An offence under subsection (2) is
an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(4) In this section:
engage in conduct has the same meaning as in
the Criminal Code.
21
Prohibition of discharge of substances into the sea
Ordinary offence
(1) If:
(a) a person engages in conduct that
causes a discharge of a liquid substance, or of a mixture containing a liquid
substance, being a substance or mixture carried as cargo or part cargo in bulk,
from a ship into the sea; and
(b) the person is reckless or negligent
as to causing the discharge by that conduct; and
(c) one of the following subparagraphs
applies:
(i) the discharge occurs
into the sea near a State, the Jervis Bay Territory or an external Territory
and there is no law of that State or Territory that makes provision giving
effect to regulations 3, 6 and 13 of Annex II to the Convention in relation to
that sea;
(ii) the discharge occurs
into the sea in the exclusive economic zone;
(iii) the discharge occurs
into the sea beyond the exclusive economic zone and the ship is an Australian
ship;
the person commits an offence punishable, on conviction,
by a fine not exceeding 2,000 penalty units.
(1A) In subsection (1):
engage in conduct has the same meaning as in
the Criminal Code.
Strict liability offence
(1B) Subject to subsections (2) and (4) to (11),
if:
(a) a liquid substance, or a mixture
containing a liquid substance, being a substance or mixture carried as cargo or
part cargo in bulk is discharged from a ship into the sea; and
(b) one of the following subparagraphs
applies:
(i) the discharge occurs
into the sea near a State, the Jervis Bay Territory or an external Territory
and there is no law of that State or Territory that makes provision giving
effect to regulations 3, 6 and 13 of Annex II to the Convention in relation to
that sea;
(ii) the discharge occurs
into the sea in the exclusive economic zone;
(iii) the discharge occurs
into the sea beyond the exclusive economic zone and the ship is an Australian
ship;
the master and the owner of the ship each commit an
offence punishable, on conviction, by a fine not exceeding 500 penalty units.
(1C) An offence against subsection (1B) is
an offence of strict liability.
Exception for emergencies
(2) Subsection (1B) does not apply to
the discharge of a liquid substance or a mixture from a ship:
(c) for the purpose of securing the
safety of a ship or saving life at sea;
(d) if the substance or the mixture,
as the case may be, escaped from the ship in consequence of non‑intentional
damage to the ship or its equipment, and all reasonable precautions were taken
after the occurrence of the damage or the discovery of the discharge for the
purpose of preventing or minimizing the escape of the substance or the mixture,
as the case may be; or
(e) if the discharge was for the
purpose of combating specific pollution incidents in order to minimize the
damage from pollution and was approved by a prescribed officer and, where the
discharge occurred in the jurisdiction of the government of a country other than
Australia, by that government.
Note: The defendant bears an evidential burden of
proof of the matters mentioned in this subsection.
(3) For the purposes of subsection (2),
damage to a ship or to its equipment is not non‑intentional damage if the
damage:
(a) arose in circumstances where the
master or owner of the ship:
(i) acted with intent to
cause the damage; or
(ii) acted recklessly and
with knowledge that the damage would probably result; or
(b) arose as a result of the
negligence of the master or owner of the ship.
(3A) For the
purposes of this section, damage to a ship or to its equipment
does not include:
(a) deterioration
resulting from failure to maintain the ship or equipment; or
(b) defects that develop during the
normal operation of the ship or equipment.
Substance in Category X
(4) Subject to subsection (12), if:
(a) the tank of a ship that held a
substance in Category X or a mixture containing a substance in Category X has
been:
(i) emptied to the maximum
extent in accordance with procedures in the Procedures and Arrangements Manual;
and
(ii) washed in accordance
with regulations made for the purposes of section 26; and
(b) the resulting residues in the tank
have been discharged to a reception facility until the concentration of that
substance in the effluent to that facility is, in the opinion of an inspector,
at or below the residual concentration prescribed for that substance in
regulation 13.6.1 of Annex II and until the tank is empty; and
(c) the
residue then remaining in the tank has been subsequently diluted with water;
subsection (1B) does not apply to the discharge from
the ship of the water containing that residue if the following conditions are
satisfied:
(d) the discharge is made when the
ship is proceeding en route at a speed of:
(i) at least 7 knots, if
the ship is self‑propelled; or
(ii) at least 4 knots, if
the ship is not self‑propelled;
(e) the discharge is made below the
ship’s waterline through the ship’s underwater discharge outlets at a rate not
exceeding the maximum rate for which each underwater discharge outlet is
designed;
(f) the discharge is made when the
ship is at least 12 nautical miles from the nearest land and is in water at
least 25 metres deep.
Note: A defendant bears an evidential burden in
relation to the matters in subsection (4) (see subsection 13.3(3) of the Criminal
Code).
High‑viscosity or solidifying substance in
Category Y
(5) Subject to subsection (12), if:
(a) the tank of a ship that held:
(i) a high‑viscosity
or solidifying substance in Category Y; or
(ii) a mixture containing a
high‑viscosity or solidifying substance in Category Y (except a mixture
containing a substance in Category X);
has been:
(iii) emptied to the maximum
extent in accordance with procedures in the Procedures and Arrangements Manual;
and
(iv) washed in accordance
with regulations made for the purposes of section 26; and
(b) the resulting residues in the tank
have been discharged to a reception facility until the tank is empty; and
(c) the
residue then remaining in the tank has been subsequently diluted with water;
subsection (1B) does not apply to the discharge into
the sea of the water containing that residue if the following conditions are
satisfied:
(d) the discharge is made when the
ship is proceeding en route at a speed of:
(i) at least 7 knots, if
the ship is self‑propelled; or
(ii) at least 4 knots, if
the ship is not self‑propelled;
(e) the discharge is made below the
ship’s waterline through the ship’s underwater discharge outlets at a rate not
exceeding the maximum rate for which each underwater discharge outlet is
designed;
(f) the discharge is made when the
ship is at least 12 nautical miles from the nearest land and is in water at
least 25 metres deep.
Note: A defendant bears an evidential burden in
relation to the matters in subsection (5) (see subsection 13.3(3) of the Criminal
Code).
Other substances in Category Y
(6) Subject to subsection (12), if the
tank of a ship that held:
(a) a substance in Category Y (except
a substance in Category Y referred to in subsection (5)); or
(b) a mixture containing a substance
in Category Y (except a substance in Category Y referred to in
subsection (5)) except a mixture containing a substance in Category X;
has been emptied to the maximum extent in accordance with
the procedures in the Procedures and Arrangements Manual, subsection (1B)
does not apply to the discharge into the sea of any residue of that substance
or mixture if the following conditions are satisfied:
(c) the discharge is made when the ship
is proceeding en route at a speed of:
(i) at least 7 knots, if
the ship is self‑propelled; or
(ii) at least 4 knots, if
the ship is not self‑propelled;
(d) the discharge is made below the
ship’s waterline through the ship’s underwater discharge outlets at a rate not
exceeding the maximum rate for which each underwater discharge outlet is
designed;
(e) the discharge is made when the
ship is at least 12 nautical miles from the nearest land and is in water at
least 25 metres deep.
Note: A defendant bears an evidential burden in
relation to the matters in subsection (6) (see subsection 13.3(3) of the Criminal
Code).
Substances in Category Z—ship constructed before 1 January 2007
(7) Subject to subsection (12), if:
(a) a ship was constructed before 1 Janu ary 2007; and
(b) the ship’s tank held a substance
in Category Z or a mixture containing a substance in Category Z; and
(c) the tank has been emptied to the
maximum extent in accordance with the procedures in the Procedures and
Arrangements Manual;
subsection (1B) does not apply to the discharge into
the sea of any residue of that substance or mixture if the following conditions
are satisfied:
(d) the discharge is made when the
ship is proceeding en route at a speed of:
(i) at least 7 knots, if
the ship is self‑propelled; or
(ii) at least 4 knots, if
the ship is not self‑propelled;
(e) the discharge is made when the
ship is at least 12 nautical miles from the nearest land and is in water at
least 25 metres deep.
Note: A defendant bears an evidential burden in
relation to the matters in subsection (7) (see subsection 13.3(3) of the Criminal
Code).
Substances in Category Z—ship constructed on or after 1 January 2007
(8) Subject to
subsection (12), if:
(a) a ship is constructed on or after 1 January 2007; and
(b) the ship’s tank held a substance
in Category Z or a mixture containing a substance in Category Z; and
(c) the tank has been emptied to the
maximum extent in accordance with the procedures in the Procedures and
Arrangements Manual;
subsection (1B) does not apply to the discharge into
the sea of any residue of that substance or mixture if the following conditions
are satisfied:
(d) the discharge is made when the
ship is proceeding en route at a speed of:
(i) at least 7 knots, if
the ship is self‑propelled; or
(ii) at least 4 knots, if
the ship is not self‑propelled;
(e) the discharge is made below the
ship’s waterline through the ship’s underwater discharge outlets at a rate not
exceeding the maximum rate for which each underwater discharge outlet is
designed;
(f) the discharge is made when the
ship is at least 12 nautical miles from the nearest land;
(g) the discharge is made when the
ship is in water at least 25 metres deep.
Note: A defendant bears an evidential burden in
relation to the matters in subsection (8) (see subsection 13.3(3) of the Criminal
Code).
(9) On application to the Authority in the
approved form, the Authority may, in accordance with the regulations, waive the
condition in paragraph (8)(f). The Authority must give written notice of a
waiver to the applicant. The notice must specify the particular ship, substance
in Category Z, and prescribed voyage, for which the condition is waived.
Discharge of bilge water etc.
(10) Subsection (1B) does not apply to the
discharge from a ship of bilge water, or of a mixture resulting from tank
cleaning or de‑ballasting operations, that contains one or more liquid
substances referred to in regulation 6.1.4 of Annex II but does not contain any
other liquid substance.
Note: A defendant bears an evidential burden in
relation to the matters in subsection (10) (see subsection 13.3(3) of the Criminal
Code).
Discharge of clean ballast or segregated ballast
(11) Subsection (1B) does not apply to the
discharge from a ship of clean ballast or segregated ballast.
Note: A defendant bears an evidential burden in
relation to the matters in subsection (11) (see subsection 13.3(3) of the Criminal
Code).
Subsections (4) to (9) do not apply to a mixture
that contains no noxious liquid substance
(12) Subsections (4) to (9) do not apply in relation to a mixture that contains a liquid substance that is neither a
noxious liquid substance nor a liquid substance referred to in regulation 6.1.4
of Annex II.
Subsections (4) to (9) do not apply to discharges
in Antarctic Area
(13) Subsections (4) to (9) do not apply
to the discharge from a ship of noxious liquid substances, or mixtures
containing noxious liquid substances, in the Antarctic Area.
No limitations on generality of subsections
(14) Nothing in subsections (2) to (11) limits the generality of any of those subsections.
Inspector
(15) In this
section:
inspector
includes a surveyor appointed or authorized by the Government of a country that
is a Party to the Convention for the purpose of implementing regulation 16 of
Annex II.
21A
Procedures and Arrangements Manual
(1) The master and the owner of an Australian
ship each commit an offence if:
(a) a chemical tanker construction
certificate under Division 12A of Part IV of the Navigation Act
1912 is in force in respect of the ship; and
(b) the ship does not have on board a
copy of the Procedures and Arrangements Manual written in English.
Penalty: 60 penalty units.
(2) The master and the owner of a foreign
ship each commit an offence if:
(a) a chemical tanker construction
certificate under Division 12A of Part IV of the Navigation Act
1912 is in force in respect of the ship; and
(b) the ship does not have on board:
(i) a copy of the
Procedures and Arrangements Manual written in the official language, or one of
the official languages, of the country whose flag the ship is entitled to fly;
and
(ii) if none of those
languages is English, Spanish or French—a translation of the Procedures and
Arrangements Manual into one of those languages.
Penalty: 60 penalty units.
(3) An offence against subsection (1) or
(2) is an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
22
Duty to report certain incidents involving certain substances
(1A) This section does not apply in relation to
prescribed incidents that occur in the sea near a State, the Jervis Bay Territory
or an external Territory to the extent that a law of that State or Territory
makes provision giving effect to Protocol I to the Convention in relation to
those prescribed incidents.
Note: The defendant bears an evidential burden of
proof of the matters mentioned in this subsection.
(1B) This section does not apply in relation to
a prescribed incident that occurs in relation to a foreign ship unless the
incident occurs in the sea near a State, the Jervis Bay Territory or an
external Territory or in the exclusive economic zone.
Note: The defendant bears an evidential burden of
proof of the matters mentioned in this subsection.
(1) Where a prescribed incident occurs in
relation to a ship, the master of the ship shall, without delay, notify, in the
prescribed manner:
(a) where Australia or an external
Territory is the nearest coastal State to the place where the incident
occurred—a prescribed officer; or
(b) where
a foreign country is the nearest coastal State to that place—the government of
that foreign country;
of the incident.
Penalty: 500 penalty units.
(2) Subsection (1) does not apply in
relation to a prescribed incident in relation to a ship if the master of the
ship was unable to comply with the subsection in relation to the incident.
Note: The defendant bears an evidential burden of
proof of the matters mentioned in this subsection.
(3) Where a prescribed incident occurs in
relation to a ship and:
(a) the master of the ship fails to
comply with subsection (1) (whether or not the master is able to comply
with that subsection) in relation to the incident; or
(b) the
incident occurs in circumstances in which the ship is abandoned;
the owner, charterer, manager or operator of the ship or
an agent of the owner, charterer, manager or operator of the ship shall,
without delay, notify, in the prescribed manner:
(c) where Australia or an external
Territory is the nearest coastal State to the place where the incident
occurred—a prescribed officer; or
(d) where
a foreign country is the nearest coastal State to that place—the government of
that foreign country;
of the incident, and, if a prescribed officer or a
government, as the case may be, is not so notified, each of those persons is
guilty of an offence punishable, upon conviction, by a fine not exceeding 500
penalty units.
(3A) An offence under subsection (3) is an
offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(4) Subsection (3) does not apply to a
person in relation to a prescribed incident in relation to a ship if:
(a) the person was not aware of the
incident; or
(b) in the case of a prescribed
incident to which paragraph (3)(a) applies—the person neither knew nor
suspected that the master of the ship had not complied with subsection (1)
in relation to the incident.
Note: The defendant bears an evidential burden of
proof of the matters mentioned in this subsection.
(5) Subsection (4) shall not be taken to
limit by implication any defence that would, but for that subsection, be
available to a person charged with an offence against subsection (3).
(6) A master
of a ship who, pursuant to subsection (1), has notified a prescribed
officer or a government of the occurrence of a prescribed incident shall, if so
requested by a prescribed officer or that government, as the case may be,
furnish, within the prescribed time, a report to a prescribed officer or that
government, as the case may be, in relation to the incident in accordance with
the prescribed form.
Penalty: 200 penalty units.
(7) Where subsection (3)
applies in relation to a prescribed incident in relation to a ship, a person
who, pursuant to that subsection, has notified a prescribed officer or a
government of the occurrence of the prescribed incident shall, if so requested
by a prescribed officer or that government, as the case may be, furnish, within
the prescribed time, a report to a prescribed officer or that government, as
the case may be, in relation to the incident in accordance with the prescribed
form.
Penalty: 200 penalty units.
(8) A person
shall not, in a notice given to a prescribed officer or a government pursuant
to subsection (1) or (3) or in a report furnished to a prescribed officer
or a government pursuant to subsection (6) or (7), make a statement that
is false or misleading in a material particular.
Penalty: 200 penalty units.
(9) A notice given to a prescribed officer or
a government pursuant to subsection (1) or (3), and a report furnished to
a prescribed officer or a government pursuant to subsection (6) or (7),
shall not, without the consent of the person charged, be admitted in evidence
in a prosecution for an offence against subsection 21(1).
(10) In this section:
liquid substance does not include a substance
referred to in regulation 6.1.4 of Annex II.
prescribed incident, in relation to a ship,
means:
(a) an incident involving a discharge
from the ship of a liquid substance, or a mixture containing a liquid
substance, carried as cargo or as part cargo in bulk, not being a discharge to
which subsection 21(4), (5), (6), (7), (8), (10) or (11) applies; or
(b) an incident involving the
probability of a discharge from the ship of a liquid substance, or a mixture
containing a liquid substance, carried as cargo or as part cargo in bulk, not
being a discharge to which subsection 21(4), (5), (6), (7), (8), (10) or (11)
would apply; or
(c) if the ship is 15 metres or more
in length—an incident (including, but not limited to, collision, grounding,
fire, explosion, structural failure, flooding and cargo shifting) involving
damage, failure or breakdown that affects the safety of the ship; or
(d) if the ship is 15 metres or more
in length—an incident (including, but not limited to, failure or breakdown of
steering gear, propulsion plant, electrical generating system and essential
shipborne navigational aids) involving damage, failure or breakdown that
impairs the safety of navigation of the ship.
22A
Shipboard marine pollution emergency plan for noxious liquid substances
(1) This section applies to an Australian
ship:
(a) that has a gross tonnage of 150 or
more; and
(b) in respect of which there is in
force a chemical tanker construction certificate referred to in section 267V
of the Navigation Act 1912.
(2) There must be kept on board the ship a
shipboard marine pollution emergency plan for noxious liquid substances written
in the working language of the master of, and the officers on board, the ship.
(3) A shipboard marine pollution emergency
plan for noxious liquid substances must be in accordance with the prescribed
form and set out the following particulars:
(a) the procedures to be followed by
the master of the ship, or any other person having charge of the ship, in
notifying a prescribed incident in relation to the ship;
(b) a list of the authorities or
persons that are to be notified by persons on the ship if a prescribed incident
occurs in relation to the ship;
(c) a detailed description of the
action to be taken, immediately after a prescribed incident, by persons on
board the ship to reduce or control any discharge from the ship resulting from
the incident;
(d) the procedures to be followed for
coordinating with the authorities or persons who have been contacted (whether
in Australia or in a country near to the place where the incident occurred);
(e) any action to be taken in
combating the pollution caused by the incident and, in particular, the person
on board the ship through whom all communications are to be made.
(4) The procedures referred to in paragraph (3)(a)
must accord with the regulations prescribing, for the purposes of subsection
22(1), the manner in which a prescribed incident is to be notified.
(5) Subsection (3) does not prevent
other relevant particulars from being included in the shipboard marine
pollution emergency plan for noxious liquid substances.
(6) If the ship does not have on board a
shipboard marine pollution emergency plan for noxious liquid substances, the
master of the ship and the owner of the ship each commits an offence punishable
on conviction by a fine not exceeding 500 penalty units.
(7) An offence against subsection (6) is
an offence of strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
(8) A shipboard marine pollution emergency
plan for noxious liquid substances is not a legislative instrument for the
purposes of the Legislative Instruments Act 2003.
(9) In this section:
prescribed incident, in relation to a ship,
has the same meaning as in section 22.
23 Cargo
record book
(1) This section applies to an Australian
ship that carries liquid substances in bulk.
(2) A cargo record book shall be carried in
every ship to which this section applies.
(3) A cargo record book shall be in
accordance with the prescribed form with provision made for a signature, in
accordance with subsection (7), in relation to each entry made in it and
for a signature, in accordance with subsection (8), on each page of it.
(4) Where a ship to which this section
applies does not carry a cargo record book as required by this section, the
master and the owner of the ship are each guilty of an offence punishable, upon
conviction, by a fine not exceeding 200 penalty units.
(4A) An offence under subsection (4) is an
offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(5) Whenever a
prescribed operation or occurrence is carried out or occurs in, or in relation
to, a ship to which this section applies, the master of the ship shall make,
without delay, appropriate entries in, or cause appropriate entries to be made,
without delay, in, the ship’s cargo record book, being entries in accordance
with subsection (7).
Penalty: 200 penalty units.
(6) Where an inspector, or a person
authorized by the Government of a country other than Australia that is a Party
to the Convention to supervise any operations under Annex II, has inspected a
ship to which this section applies, he or she shall make, without delay,
appropriate entries in the ship’s cargo record book in accordance with subsection (7).
(7) An entry in a ship’s cargo record book:
(a) shall be made in the English
language; and
(b) in the case of an entry made in
relation to a prescribed operation, shall be signed by the officer or other
person in charge of the operation.
(8) Where a
page of a ship’s cargo record book is completed, the master of the ship shall,
without delay, sign the page.
Penalty for a contravention of this subsection: 200 penalty
units.
24
False entries in cargo record book
A person
shall not make, in a cargo record book of a ship to which section 23
applies, an entry that is false or misleading in a material particular.
Penalty: 200 penalty units.
25
Cargo record book to be retained
(1) A cargo record book of a ship to which section 23
applies shall be retained in the ship until the expiration of a period of one
year after the day on which the last entry was made in the book and shall be
readily available for inspection at all reasonable times.
(2) Where a cargo record book is not retained
in a ship in accordance with subsection (1), the master and the owner of
the ship are each guilty of an offence punishable, upon conviction, by a fine
not exceeding 200 penalty units.
(2A) An offence under subsection (2) is an
offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) The owner of a ship to which section 23
applies shall cause each of the ship’s cargo record books to be retained:
(a) in the ship; or
(b) at
the registered office of the owner;
until the expiration of the
period of 2 years next following the expiration of the period during which the
book is required to be retained in the ship by virtue of subsection (1)
and to be readily available for inspection at all reasonable times.
Penalty: 200 penalty units.
(5) The owner of a ship to which section 23
applies who resides in Australia, or has an office or agent in Australia, may
from time to time furnish to a prescribed officer notice, in writing, of an
address, being the address of:
(a) the place at which he or she so
resides;
(b) his or her office in Australia or,
if he or she has more than one office in Australia, his or her principal office
in Australia; or
(c) the
office or place of residence of his or her agent or, if his or her agent has
more than one office in Australia, the principal office in Australia of his or
her agent;
and the place or office of which an address is furnished
for the time being under this subsection is the registered office of the owner
of the ship for the purposes of subsection (3).
(6) Where the owner of a ship to which
section 23 applies does not reside in Australia and does not have an
office or agent in Australia, the owner may deposit a cargo record book of the
ship with a prescribed officer and, while the book is so deposited, the book
shall, for the purposes of subsection (3), be deemed to be retained at the
registered office of the owner.
26
Cleaning of tanks of ships
The regulations may make provision for
and in relation to giving effect to regulations 13 and 16 of Annex II.
26AA
Power to require discharge of a liquid substance or a mixture containing a
liquid substance at a reception facility
(1) A prescribed officer may require the
owner or master of a ship, by written notice given to the owner or master, as
the case may be, to cause a specified quantity of a liquid substance or of a
mixture containing a liquid substance to be discharged within a specified
period from the ship to a specified facility that is suitable to receive that
quantity of the substance or mixture if the officer has reason to believe that
retention of the liquid substance or mixture would create a risk of discharge
from the ship into the sea.
(2) The owner
or master of a ship to whom a notice is given under subsection (1) must
comply with the notice.
Penalty: 500 penalty units.
Part IIIA—Prevention of pollution by packaged harmful substances
26A
Interpretation
(1) In this Part:
harmful substance means a substance which is
identified as a marine pollutant in the International Maritime Dangerous Goods
(IMDG) Code.
packaged form means a form of containment
specified for harmful substances in the International Maritime Dangerous Goods
(IMDG) Code.
(2) Except in so far as the contrary
intention appears, an expression that is used in this Part and in Annex III to
the Convention (whether or not a particular meaning is assigned to it by that
Annex) has, in this Part the same meaning as in that Annex.
26AB
Prohibition of discharge by jettisoning of harmful substances into the sea
(1) If:
(a) a person engages in conduct that
causes a harmful substance, being a substance carried as cargo in packaged
form, to be jettisoned from a ship into the sea; and
(b) the person is reckless or
negligent as to causing the jettisoning by that conduct; and
(c) one of the following subparagraphs
applies:
(i) the jettisoning occurs
into the sea near a State, the Jervis Bay Territory or an external Territory
and there is no law of that State or Territory that makes provision giving
effect to Regulation 7 of Annex III to the Convention in relation to that sea;
(ii) the jettisoning occurs
into the sea in the exclusive economic zone;
(iii) the jettisoning occurs
into the sea beyond the exclusive economic zone and the ship is an Australian ship;
the person commits an offence punishable, on conviction,
by a fine not exceeding 2,000 penalty units.
(2) In subsection (1):
engage in conduct has the same meaning as in
the Criminal Code.
(3) Subject to subsections (5) and (6),
if:
(a) a harmful substance, being a
substance carried as cargo in packaged form, is jettisoned from a ship into the
sea; and
(b) one of the following subparagraphs
applies:
(i) the jettisoning occurs
into the sea near a State, the Jervis Bay Territory or an external Territory
and there is no law of that State or Territory that makes provision giving
effect to Regulation 7 of Annex III to the Convention in relation to that sea;
(ii) the jettisoning occurs
into the sea in the exclusive economic zone;
(iii) the jettisoning occurs
into the sea beyond the exclusive economic zone and the ship is an Australian
ship;
the master and the owner of the ship each commit an
offence punishable, on conviction, by a fine not exceeding 500 penalty units.
(4) An offence against subsection (3) is
an offence of strict liability.
(5) Subsection (3) does not apply to the
jettisoning of a harmful substance from a ship for the purpose of securing the
safety of the ship or saving life at sea.
Note: The defendant bears an evidential burden of
proof of the matters mentioned in this subsection.
(6) Where a harmful substance referred to in subsection (3)
is discharged from a ship into the sea because of a leakage of the substance,
the substance shall, for the purposes of this section, be taken to have been
jettisoned, but that subsection does not apply to the discharge if:
(a) the substance was washed overboard
from the ship in accordance with regulations or orders made pursuant to
regulations; or
(b) the substance was washed overboard
from the ship otherwise than in accordance with such regulations or orders in
circumstances where compliance with such regulations or orders would have
impaired the safety of the ship or of persons on board the ship.
Note: The defendant bears an evidential burden of proof
of the matters mentioned in this subsection.
26B
Duty to report certain incidents involving harmful substances
(1) This section does not apply in relation
to prescribed incidents that occur in the sea near a State, the Jervis Bay Territory
or an external Territory to the extent that a law of that State or Territory
makes provision giving effect to Protocol I to the Convention in relation to
those prescribed incidents.
Note: The defendant bears an evidential burden of
proof of the matters mentioned in this subsection.
(2) This section does not apply in relation
to a prescribed incident that occurs in relation to a foreign ship unless the
incident occurs in the sea near a State, the Jervis Bay Territory or an
external Territory or in the exclusive economic zone.
Note: The defendant bears an evidential burden of
proof of the matters mentioned in this subsection.
(3) Where a prescribed incident occurs in
relation to a ship, the master of the ship shall, without delay, notify, in the
prescribed manner:
(a) where Australia or an external
Territory is the nearest coastal State to the place where the incident
occurred—a prescribed officer; or
(b) where
a foreign country is the nearest coastal State to that place—the government of
that foreign country;
of the incident.
Penalty: 500 penalty units.
(4) Subsection (3) does not apply in
relation to a prescribed incident in relation to a ship if the master of the
ship was unable to comply with the subsection in relation to the incident.
Note: The defendant bears an evidential burden of
proof of the matters mentioned in this subsection.
(5) Where a
prescribed incident occurs in relation to a ship and:
(a) the master of the ship fails to
comply with subsection (3) (whether or not the master is able to comply
with that subsection) in relation to the incident; or
(b) the
incident occurs in circumstances in which the ship is abandoned;
the owner, charterer, manager or operator of the ship or
an agent of the owner, charterer, manager or operator of the ship shall, without
delay, notify, in the prescribed manner:
(c) where Australia or an external
Territory is the nearest coastal State to the place where the incident
occurred—a prescribed officer; or
(d) where
a foreign country is the nearest coastal State to that place—the government of
that foreign country;
of the incident, and, if a prescribed officer or a
government, as the case may be, is not so notified, each of those persons is
guilty of an offence punishable, upon conviction, by a fine not exceeding 500
penalty units.
(5A) An offence under subsection (5) is an
offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(6) Subsection (5) does not apply to a
person in relation to a prescribed incident in relation to a ship if:
(a) the person was not aware of the
incident; or
(b) in the case of a prescribed
incident to which paragraph (5)(a) applies—the person neither knew nor
suspected that the master of the ship had not complied with subsection (3)
in relation to the incident.
Note: The defendant bears an evidential burden of
proof of the matters mentioned in this subsection.
(7) Subsection (6) shall not be taken to
limit by implication any defence that would, but for that subsection, be
available to a person charged with an offence against subsection (5).
(8) A master of a ship who, pursuant to subsection (3),
has notified a prescribed officer or a government of the occurrence of a
prescribed incident shall, if so requested by a prescribed officer or that
government, as the case may be, give, within the prescribed time, a report to a
prescribed officer or that government, as the case may be, in relation to the
incident in accordance with the prescribed form.
Penalty: 200 penalty units.
(9) Where subsection (5)
applies in relation to a prescribed incident in relation to a ship, a person
who, pursuant to that subsection, has notified a prescribed officer or a
government of the occurrence of the prescribed incident shall, if so requested
by a prescribed officer or that government, as the case may be, give, within
the prescribed time, a report to a prescribed officer or that government, as
the case may be, in relation to the incident in accordance with the prescribed
form.
Penalty: 200 penalty units.
(10) A person
shall not, in a notice given to a prescribed officer or a government pursuant
to subsection (3) or (5) or in a report given to a prescribed officer or a
government pursuant to subsection (8) or (9), make a statement that is
false or misleading in a material particular.
Penalty: 200 penalty units.
(10A) A notice given to a prescribed officer or a
government pursuant to subsection (3) or (5), and a report given to a
prescribed officer or a government pursuant to subsection (8) or (9),
shall not, without the consent of the person charged, be admitted in evidence
in a prosecution for an offence against subsection 26AB(1) or (3).
(11) In this section:
prescribed incident, in relation to a ship,
means:
(a) an incident involving the
discharge from the ship of a harmful substance carried as cargo in packaged
form or in a freight container, portable tank, road or rail vehicle or
shipborne barge, not being a discharge in accordance with the regulations or
orders made under the regulations; or
(b) an incident involving the probability
of the discharge from the ship of a harmful substance carried as cargo in
packaged form or in a freight container, portable tank, road or rail vehicle or
shipborne barge, not being a discharge in accordance with the regulations or
orders made under the regulations; or
(c) if the ship is 15 metres or more
in length—an incident (including, but not limited to, collision, grounding,
fire, explosion, structural failure, flooding and cargo shifting) involving
damage, failure or breakdown that affects the safety of the ship; or
(d) if the ship is 15 metres or more
in length—an incident (including, but not limited to, failure or breakdown of
steering gear, propulsion plant, electrical generating system and essential
shipborne navigational aids) involving damage, failure or breakdown that
impairs the safety of navigation.
Part IIIB—Prevention of pollution by sewage
Division 1—Discharge of sewage in the Antarctic Area
26BA
Interpretation
Unless the contrary intention appears,
an expression that is used in this Division and in Annex IV of the Antarctic
Protocol (whether or not a particular meaning is given to it by that Annex)
has, in this Division, the same meaning as in that Annex.
26BB
Object of Division
The object of this Division is to give
effect to Australia’s obligations regarding the discharge of sewage in the
Antarctic Area under Annex IV of the Antarctic Protocol.
26BC
Prohibition of discharge of sewage
(1) If:
(a) a person engages in conduct that
causes a discharge of untreated sewage from a ship (other than a ship certified
to carry not more than 10 persons) into the sea in the Antarctic Area; and
(b) the person is reckless or
negligent as to causing the discharge by that conduct; and
(c) where the discharge does not occur
in the sea near the Australian Antarctic Territory—the ship is an Australian
ship;
the person commits an offence punishable, on conviction,
by a fine not exceeding 2,000 penalty units.
(2) In subsection (1):
engage in conduct has the same meaning as in
the Criminal Code.
(2A) Subject to subsections (3) and (4),
if:
(a) untreated sewage is discharged
from a ship (other than a ship certified to carry not more than 10 persons)
into the sea in the Antarctic Area; and
(b) where the discharge does not occur
in the sea near the Australian Antarctic Territory—the ship is an Australian
ship;
the master and the owner of the ship each commit an
offence punishable, on conviction, by a fine not exceeding 500 penalty units.
(2B) An offence against subsection (2A) is
an offence of strict liability.
(3) Subsection (2A) does not apply if
the sewage was discharged for the purpose of:
(a) securing the safety of the ship
and persons on board the ship; or
(b) saving life at sea.
Note: The defendant bears an evidential burden of
proof of the matters mentioned in this subsection.
(4) Without limiting the generality of subsection (3),
subsection (2A) does not apply to the discharge of sewage from a ship if:
(a) the sewage was stored in a holding
tank; and
(b) the sewage is not discharged instantaneously
but is discharged from the holding tank at a prescribed rate when the ship is
proceeding en route at a speed of not less than 4 knots; and
(c) the discharge is made when the
ship is at a distance of not less than 12 nautical miles from the nearest land
or ice shelf.
Note: The defendant bears an evidential burden of
proof of the matters mentioned in this subsection.
Division 2—Discharge of sewage in other sea areas
26C
Interpretation
(1) Except in so far as the contrary
intention appears, an expression that is used in this Division and in Annex IV
to the Convention (whether or not a particular meaning is assigned to it by
that Annex) has, in this Division, the same meaning as in that Annex.
(2) In this Division:
sea does not include the sea in the Antarctic
Area.
26CA
Object of Division
The object of this Division is to give
effect to Australia’s obligations regarding the discharge of sewage into the
sea under Annex IV of the Convention.
26D
Prohibition of discharge of sewage into the sea
(1) If:
(a) a person engages in conduct that
causes a discharge of sewage from a ship into the sea; and
(b) the person is reckless or
negligent as to causing the discharge by that conduct; and
(c) one of the following subparagraphs
applies:
(i) the discharge occurs
into the sea near a State, the Jervis Bay Territory or an external Territory
and there is no law of that State or Territory that makes provision giving
effect to Regulation 3 and to paragraph 1 of Regulation 11 of Annex IV to the
Convention in relation to that sea;
(ii) the discharge occurs
into the sea in the exclusive economic zone;
(iii) the discharge occurs
into the sea beyond the exclusive economic zone and the ship is an Australian
ship;
the person commits an offence punishable, on conviction,
by a fine not exceeding 2,000 penalty units.
(2) In subsection (1):
engage in conduct has the same meaning as in
the Criminal Code.
(3) Subject to subsections (5) to (9),
if:
(a) sewage is discharged from a ship
into the sea; and
(b) one of the following subparagraphs
applies:
(i) the discharge occurs
into the sea near a State, the Jervis Bay Territory or an external Territory
and there is no law of that State or Territory that makes provision giving
effect to Regulation 3 and paragraph 1 of Regulation 11 of Annex IV to the
Convention in relation to that sea;
(ii) the discharge occurs
into the sea in the exclusive economic zone;
(iii) the discharge occurs
into the sea beyond the exclusive economic zone and the ship is an Australian
ship;
the master and the owner of the ship each commit an
offence punishable, on conviction, by a fine not exceeding 500 penalty units.
(4) An offence against subsection (3) is
an offence of strict liability.
(5) Subsection (3) does not apply to the
discharge of sewage from a ship:
(a) for the purpose of securing the
safety of a ship and persons on board the ship or of saving life at sea; or
(b) in a case where the sewage escaped
from the ship in consequence of damage to the ship or its equipment and all reasonable
precautions were taken before and after the occurrence of the damage for the
purpose of preventing or minimising the escape of the sewage.
Note: The defendant bears an evidential burden of
proof of the matters mentioned in this subsection.
(5A) For the purposes of this section, damage
to a ship or to its equipment does not include:
(a) deterioration resulting from
failure to maintain the ship or equipment; or
(b) defects that develop during the
normal operation of the ship or equipment.
(6) Without limiting the generality of subsection (5),
subsection (3) does not apply to the discharge of sewage from a ship if
the following conditions are satisfied:
(a) where the sewage has been
comminuted and disinfected using a system approved in accordance with the
regulations, or orders made pursuant to the regulations, giving effect to
paragraph 1.2 of Regulation 9 of Annex IV to the Convention—the discharge is
made when the ship is at a distance of not less than 3 nautical miles from the
nearest land;
(b) where the sewage is not sewage
referred to in paragraph (a)—the discharge is made when the ship is at a
distance of not less than 12 nautical miles from the nearest land;
(c) where the sewage has been stored
in holding tanks—the sewage is not discharged instantaneously but is discharged
at a prescribed rate when the ship is proceeding en route at a speed of
not less than 4 knots.
Note: The defendant bears an evidential burden of
proof of the matters mentioned in this subsection.
(7) Without limiting the generality of subsection (5),
subsection (3) does not apply to the discharge of sewage from a ship if
the following conditions are satisfied:
(a) the sewage has been treated in a
sewage treatment plant on the ship, being a plant:
(i) that an inspector has
certified meets the requirements of the regulations giving effect to paragraph
1.1 of Regulation 9 of Annex IV to the Convention; and
(ii) the test results of
which are laid down in the ship’s sewage certificate within the meaning of
Division 12C of Part IV of the Navigation Act 1912; and
(b) the effluent does not produce
visible floating solids in the waters of the sea and does not cause
discolouration of the waters of the sea.
Note: The defendant bears an evidential burden of
proof of the matters mentioned in this subsection.
(8) Without limiting the generality of subsection (5),
subsection (3) does not apply to the discharge of sewage if the discharge
is made into the territorial waters of a foreign country in accordance with the
law of that country.
Note: The defendant bears an evidential burden of
proof of the matters mentioned in this subsection.
26DAA
Power to require discharge of sewage at a reception facility
(1) A prescribed officer may require the
owner or master of a ship, by written notice given to the owner or master, as
the case may be, to cause a specified quantity of sewage to be discharged
within a specified period from the ship to a specified facility that is
suitable to receive that quantity of sewage if the officer has reason to believe
that retention of the sewage would create a risk of discharge from the ship
into the sea.
(2) The owner or master of a ship to whom a
notice is given under subsection (1) must comply with the notice.
Penalty: 500 penalty units.
26DA
Operation of Division
In spite of anything in the
Protection of the Sea Legislation Amendment Act 1986, this Division does
not commence until a day fixed by Proclamation for the purposes of this
section.
Part IIIC—Prevention of pollution by garbage
26E
Interpretation
(1) Except in so far as the contrary
intention appears, an expression that is used in this Part and in Annex V to
the Convention (whether or not a particular meaning is assigned to it by that
Annex) has, in this Part, the same meaning as in that Annex.
(2) Unless the contrary intention appears, an
expression that is used in subsection 26F (8A) and in Annex IV to the Antarctic
Protocol (whether or not a particular meaning is given by that Protocol) has,
in that subsection, the same meaning as in that Annex.
26EAA
Overseas voyages
For the purposes of this Part:
(a) overseas voyage has
the same meaning as it has in the Navigation Act 1912 except that a
voyage of an Australian fishing vessel (being a ship that is regularly engaged
in making voyages from a port or ports in Queensland) beginning at a port in
that State and ending at the same port or another port in that State is not to
be taken to be an overseas voyage merely because, as an incidental part of its
fishing operations on that voyage, the ship calls at a port or ports in Papua
New Guinea; and
(b) Australian fishing vessel
has the same meaning as in the Navigation Act 1912.
26EA
Object of Part
The object of this Part is to give
effect to Australia’s obligations:
(a) regarding the prevention of
pollution by garbage from ships under Annex V to the Convention; and
(b) regarding the disposal of garbage
from ships under Annex IV to the Antarctic Protocol.
26F
Prohibition of disposal of garbage into the sea
(1) If:
(a) a person engages in conduct that
causes a disposal of garbage from a ship into the sea; and
(b) the person is reckless or
negligent as to causing the disposal by that conduct; and
(c) one of the following subparagraphs
applies:
(i) the disposal occurs
into the sea near a State, the Jervis Bay Territory or an external Territory
and there is no law of that State or Territory that makes provision giving
effect to Regulations 3, 5 and 6 of Annex V to the Convention in relation to
that sea;
(ii) the disposal occurs
into the sea in the exclusive economic zone;
(iii) the disposal occurs
into the sea beyond the exclusive economic zone and the ship is an Australian
ship;
the person commits an offence punishable, on conviction,
by a fine not exceeding 2,000 penalty units.
(2) In subsection (1):
engage in conduct has the same meaning as in
the Criminal Code.
(3) Subject to subsections (5) to (11),
if:
(a) there is a disposal of garbage
from a ship into the sea; and
(b) one of the following subparagraphs
applies:
(i) the disposal occurs
into the sea near a State, the Jervis Bay Territory or an external Territory
and there is no law of that State or Territory that makes provision giving
effect to Regulations 3, 5 and 6 of Annex V to the Convention in relation to
that sea;
(ii) the disposal occurs
into the sea in the exclusive economic zone;
(iii) the disposal occurs
into the sea beyond the exclusive economic zone and the ship is an Australian
ship;
the master and the owner of the ship each commit an
offence punishable, on conviction, by a fine not exceeding 500 penalty units.
(4) An offence against subsection (3) is
an offence of strict liability.
(5) Subsection (3) does not apply to the
disposal of garbage from a ship for the purpose of securing the safety of the
ship and the persons on board the ship or of saving life at sea.
Note: The defendant bears an evidential burden of
proof of the matters mentioned in this subsection.
(6) Without limiting the generality of subsection (5)
but subject to subsection (11), subsection (3) does not apply to the
disposal of garbage (being dunnage, lining or packing materials which will
float and are not plastics) from a ship into the sea if the following
conditions are satisfied:
(a) the disposal takes place when the
ship is not within a special area;
(b) the disposal takes place when the
ship is as far as practicable from, and is at a distance of not less than 25
nautical miles from, the nearest land;
(c) the disposal takes place when the
ship is not alongside, or within 500 metres of, a fixed or floating platform
engaged in the exploration, exploitation and associated offshore processing of
seabed mineral resources.
Note: The defendant bears an evidential burden of
proof of the matters mentioned in this subsection.
(7) Without limiting the generality of subsection (5)
but subject to subsection (11), subsection (3) does not apply to the
disposal of garbage (not being plastics, garbage referred to in subsection (6)
or food wastes) from a ship into the sea if the following conditions are
satisfied:
(a) the disposal occurs when the ship
is not within a special area;
(b) the disposal occurs when the ship
is as far as practicable from the nearest land;
(c) except where paragraph (d)
applies—the ship is at a distance of not less than 12 nautical miles from the
nearest land;
(d) where the garbage is passed
through a comminuter or grinder so that it is capable of passing through a
screen with no opening greater than 25 millimetres—when the ship is at a
distance of not less than 3 nautical miles from the nearest land;
(e) the disposal occurs when the ship
is not alongside, or within 500 metres of, a platform of a kind referred to in paragraph (6)(c).
Note: The defendant bears an evidential burden of
proof of the matters mentioned in this subsection.
(8) Without limiting the generality of subsection (5)
but subject to subsection (11), subsection (3) does not apply to the
disposal of garbage, being food wastes, from a ship into the sea outside the
Antarctic Area if:
(a) the following conditions are satisfied:
(i) the disposal occurs
when the ship is as far as practicable from, and is at a distance of not less
than 12 nautical miles from, the nearest land;
(ii) the disposal occurs
when the ship is not alongside, or within 500 metres of, a platform of a kind
referred to in paragraph (6)(c); or
(b) the conditions referred to in paragraphs (7)(a),
(b) and (d) are satisfied.
Note: The defendant bears an evidential burden of
proof of the matters mentioned in this subsection.
(8A) Without limiting the generality of subsection (5),
subsection (3) does not apply to the disposal of garbage, being food
wastes, from a ship into the sea in the Antarctic Area if:
(a) the garbage has been passed
through a comminuter or grinder so that it is capable of passing through a
screen with no opening wider than 25 millimetres; and
(b) the disposal occurs when the ship
is as far as practicable from, and is at a distance of not less than 12
nautical miles from, the nearest land or ice shelf.
Note: The defendant bears an evidential burden of
proof of the matters mentioned in this subsection.
(9) Where garbage escapes from a ship into
the sea because of damage to the ship or its equipment, subsection (3)
does not apply to the disposal of the garbage if all reasonable precautions
were taken before and after the occurrence of the damage for the purpose of
preventing or minimising the escape of the garbage.
Note: The defendant bears an evidential burden of
proof of the matters mentioned in this subsection.
(9A) For the
purposes of subsection (9), damage to a ship or to its
equipment does not include:
(a) deterioration
resulting from failure to maintain the ship or equipment; or
(b) defects that develop during the
normal operation of the ship or equipment.
(10) Where a synthetic fishing net, or
synthetic material used in the repair of such a net, on a ship is accidently
lost at sea, subsection (3) does not apply to the disposal of the net or
material if all reasonable precautions were taken to prevent the loss.
Note: The defendant bears an evidential burden of
proof of the matters mentioned in this subsection.
(11) Without limiting the generality of subsection (5),
where:
(a) garbage is mixed with matter the
discharge or disposal of which from a ship into the sea is prohibited under
another Part unless certain conditions are complied with; and
(b) the
conditions referred to in paragraph (a) are more stringent than the
conditions referred to in subsections (6) to (10) (inclusive);
subsection (3):
(c) apply to the disposal of the garbage
from a ship notwithstanding that the conditions referred to in subsection (6),
(7), (8), (9) or (10) are complied with; but
(d) do not apply to the disposal of
the garbage from a ship if those more stringent requirements are complied with.
(13) In this section plastics
includes synthetic ropes, synthetic fishing nets, plastic garbage bags and
incinerator ashes from plastic products that may contain toxic or heavy metal
residues.
26FA
Garbage record book
(1) This section applies to an Australian ship
that:
(a) has a gross tonnage of 400 or
more; or
(b) is certified to carry 15 persons
or more and is engaged on an overseas voyage.
(2) Every ship to which this section applies
must carry a garbage record book as required by the regulations.
(3) A garbage record book must be in
accordance with the appropriate prescribed form with provision made for a
signature, in accordance with subsection (8), in relation to each entry
made in it and for a signature, in accordance with subsection (7), in
relation to each page of it.
(4) If a ship does not carry a garbage record
book as required by this section, the master and the owner of the ship each
commit an offence punishable, upon conviction, by a fine of not more than 50
penalty units.
(5) An offence against subsection (4) is
an offence of strict liability.
(6) If a prescribed operation or prescribed
occurrence is carried out or occurs in, or in relation to, a ship, the master
of the ship must make, without delay, appropriate entries in accordance with subsection (8)
in the ship’s garbage record book, or cause appropriate entries in accordance
with that subsection to be made, as soon as is practicable in the
circumstances, in that book.
Penalty: 200 penalty units.
(7) If a page of a ship’s garbage record book
is completed, the master of the ship must, as soon as is practicable in the
circumstances, sign the page.
Penalty: 50 penalty units.
(8) An entry in a ship’s garbage record book:
(a) must be made in the English
language; and
(b) if the entry is made in relation
to a prescribed operation—must be signed by the officer or other person in
charge of the operation.
26FB
Garbage record book to be retained
(1) A garbage record book of a ship to which
section 26FA applies must be retained in the ship until the end of one
year after the day on which the last entry was made in the book and must be
readily accessible for inspection at all reasonable times.
(2) If a garbage record book is not retained
in a ship, or is not readily accessible, in accordance with subsection (1),
the master and the owner of the ship are each guilty of an offence punishable,
upon conviction, by a fine of not more than 50 penalty units.
(3) An offence against subsection (2) is
an offence of strict liability.
(4) The owner of a ship to which section 26FA
applies must cause the ship’s garbage record book to be retained:
(a) in the ship; or
(b) at the owner’s registered office;
until the end of 2 years after the end of the period
during which the book is required to be retained in the ship under subsection (1)
and must be readily accessible for inspection at all reasonable times.
Penalty: 50 penalty units.
(5) The owner of a ship to which section 26FA
applies who resides in Australia, or has an office or agent in Australia, may
from time to time give to a prescribed officer notice, in writing, of the
address of:
(a) the place at which the owner so
resides; or
(b) the owner’s office in Australia
or, if the owner has more than one office in Australia, the owner’s principal
office in Australia; or
(c) the office or place of residence
of the owner’s agent or, if the owner’s agent has more than one office in Australia,
the principal office in Australia of the owner’s agent.
(6) The place or office of which an address
is given for the time being under subsection (5) is the registered office
of the owner of the ship for the purposes of subsection (4).
(7) If the owner of a ship to which section 26FA
applies does not reside in Australia and does not have an office or agent in
Australia, the owner may deposit a garbage record book of the ship with a
prescribed officer and, while the book is so deposited, the book is taken, for
the purposes of subsection (4), to be retained at the registered office of
the owner.
26FC
Shipboard waste management plan
(1) This section applies to an Australian
ship that:
(a) has a gross tonnage of 400 or
more; or
(b) is certified to carry 15 persons
or more.
(2) There must be kept on board a ship to
which this section applies a shipboard waste management plan written in the
working language of the master of, and the officers on board, the ship.
(3) A shipboard waste management plan must:
(a) be in accordance with the
prescribed form; and
(b) set out the procedures for
collecting, storing, processing and disposing of garbage, including the use of
the equipment on board the ship for carrying out those procedures; and
(c) designate the person who is in
charge of carrying out the plan.
(4) Subsection (3) does not prevent
other relevant particulars from being included in the shipboard waste
management plan.
(5) If a ship to which this section applies
does not have on board a shipboard waste management plan, the master and the
owner of the ship each commit an offence punishable, on conviction, by a fine
not exceeding 50 penalty units.
(6) An offence against subsection (5) is
an offence of strict liability.
26FD
Placards relating to requirements for disposal of garbage
(1) There must be displayed, on board a ship
of 12 metres or more in length, one or more placards notifying the crew and
passengers of the kinds of garbage that may, or may not, be disposed of from
the ship, and the conditions to which any such disposal is subject, under
section 26F.
(2) If the ship is an Australian ship, the
placard or each placard must be written in the English language.
(3) If:
(a) the ship is a foreign ship that is
engaged on a voyage to an Australian port or to an Australian offshore
terminal; and
(b) the placard or each placard is
written in the official language or one of the official languages of the
country whose flag the ship is entitled to fly; and
(c) the language in which the placard
or each placard is so written is not English, French or Spanish;
the placard or each placard must also be written in
English, French or Spanish.
(4) If a placard required under this section
to be displayed on a ship is not so displayed, the master and the owner of the
ship each commit an offence punishable, on conviction, by a fine not exceeding
50 penalty units.
(5) An offence against subsection (4) is
an offence of strict liability.
26FE
Power to require discharge of garbage at a reception facility
(1) A prescribed officer may require the
owner or master of a ship, by written notice given to the owner or master, as
the case may be, to cause a specified quantity of garbage to be disposed of
within a specified period from the ship to a specified facility that is
suitable to receive that quantity of garbage if the officer has reason to
believe that retention of the garbage would create a risk of disposal from the
ship into the sea.
(2) The owner or master of a ship to whom a
notice is given under subsection (1) must comply with the notice.
Penalty: 500 penalty units.
Part IIID—Prevention of air pollution
Division 1—Definitions
26FEF Definitions
(1) In this Part:
Annex VI means Annex VI to the Convention.
engage in conduct has the same meaning as in
the Criminal Code.
fuel oil means fuel oil for
combustion purposes and does not include coal in its solid form, or nuclear
fuels.
fuel oil supplier of fuel oil delivered to a
ship means the person responsible for the final blend of the fuel oil
immediately before it is delivered to the ship.
registered local supplier of fuel oil means a
local supplier of fuel oil registered in the Register of Local Suppliers of
Fuel Oil.
Register of Local Suppliers of Fuel Oil means
the register established under section 26FEM.
(2) An expression that is used in this Part
and in Annex VI has, in this Part, the same meaning as in that Annex (whether
or not a particular meaning is assigned to it by that Annex).
Division 2—Sulphur content
of fuel oil
26FEG
Using fuel oil with a sulphur content of more than 4.5% m/m
Ordinary offence
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct results in fuel oil
with a sulphur content of more than 4.5% m/m being used on board a ship; and
(c) the person is reckless or
negligent as to causing that result; and
(d) one of the following applies:
(i) the fuel oil is used
while the ship is in the sea near a State, the Jervis Bay Territory or an
external Territory and no law of that State or Territory gives effect to
Regulation 14(1) of Annex VI in relation to that sea;
(ii) the fuel oil is used
while the ship is in the exclusive economic zone;
(iii) the fuel oil is used
on board an Australian ship while the ship is beyond the exclusive economic
zone, but not within an SOx emission control area.
Penalty: 2,000 penalty units.
Strict liability offence
(2) The master and the owner of a ship each
commit an offence if:
(a) fuel oil with a sulphur content of
more than 4.5% m/m is used on board the ship; and
(b) one of the following applies:
(i) the fuel oil is used
while the ship is in the sea near a State, the Jervis Bay Territory or an external
Territory and no law of that State or Territory gives effect to Regulation
14(1) of Annex VI in relation to that sea;
(ii) the fuel oil is used
while the ship is in the exclusive economic zone;
(iii) the fuel oil is used
on board an Australian ship while the ship is beyond the exclusive economic
zone, but not within an SOx emission control area.
Penalty: 500 penalty units.
(3) An offence against subsection (2) is
an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
Presumption
(4) It is presumed, unless the contrary is
proved, that fuel oil is used as mentioned in paragraph (1)(d) or
paragraph (2)(b).
Note: A defendant bears a legal burden in relation
to proving the contrary (see section 13.4 of the Criminal Code).
26FEH
Australian ship in SOx emission control area
Ordinary offence
(1) A person commits an offence if:
(a) the person:
(i) takes an Australian
ship into an SOx emission control area; or
(ii) permits an Australian
ship to be taken into an SOx emission control area; and
(b) the person is the master or owner
of the ship; and
(c) the ship does not meet the SOx
emission control conditions while the ship is within that area.
Penalty: 2,000 penalty units.
Strict liability offence
(2) A person commits an offence if:
(a) the person:
(i) takes an Australian
ship into an SOx emission control area; or
(ii) permits an Australian
ship to be taken into an SOx emission control area; and
(b) the person is the master or owner
of the ship; and
(c) the ship does not meet the SOx
emission control conditions while the ship is within that area.
Penalty: 500 penalty units.
(3) An offence against subsection (2) is
an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
SOx emission control conditions
(4) The SOx emission control conditions
for a ship in an SOx emission control area are:
(a) the sulphur content of fuel oil
used on board the ship while the ship is within that area does not exceed 1.5%
m/m; or
(b) both:
(i) an exhaust gas
cleaning system, or other technological method, approved by a prescribed
officer, is operating on the ship in accordance with the regulations, while the
ship is within that area, to reduce the total emission of sulphur oxides from
the ship to (or below) the level prescribed by the regulations; and
(ii) waste streams arising
from the operation of such a system or other method are discharged in
accordance with the regulations.
(5) If an approval under
subparagraph (4)(b)(i) is given in writing, the approval is not a
legislative instrument.
Exception for emergencies
(6) Subsection (2) does not apply to a
ship if:
(a) the ship does not meet the SOx
emission control conditions while the ship is within an SOx emission control
area only because the total emission of sulphur oxides from the ship is more
than the level prescribed by the regulations; and
(b) either:
(i) the non‑compliance
was a result of securing the safety of a ship or saving life at sea; or
(ii) the non‑compliance
was a result of unintentional damage to the ship or its equipment, and all
reasonable precautions were taken after the occurrence of the damage, or the
discovery of the emission, for the purpose of preventing or minimising the
emission.
Note: The defendant bears an evidential burden in
relation to the matters in subsection (6) (see subsection 13.3(3) of the Criminal
Code).
(7) For the purposes of
subparagraph (6)(b)(ii), damage to a ship or to its equipment is not
unintentional if the damage arose:
(a) in circumstances where the master
or owner of the ship:
(i) acted with intent to
cause the damage; or
(ii) acted recklessly and
with knowledge that the damage would probably result; or
(b) as a result of the negligence of
the master or owner of the ship.
(8) For the purposes of this section, damage
to a ship or to its equipment does not include:
(a) deterioration resulting from
failure to maintain the ship or equipment; or
(b) defects that develop during the
normal operation of the ship or equipment.
26FEI Flushing
fuel oil service system
A person commits an offence if:
(a) the person is the master of an
Australian ship; and
(b) the ship enters an SOx emission
control area; and
(c) separate fuel oils are used on
board the ship; and
(d) at least one of the fuel oils has
a sulphur content of 1.5% m/m or less; and
(e) at least one of the fuel oils has
a sulphur content of more than 1.5% m/m; and
(f) insufficient time is allowed for
the ship’s fuel oil service system to be fully flushed of fuel oil with a
sulphur content of more than 1.5% m/m before the ship enters the SOx emission
control area.
Penalty: 200 penalty units.
26FEJ
Record of prescribed fuel‑changeover operation
(1) The master and the owner of an Australian
ship each commit an offence if:
(a) an entry in a prescribed record
book is not made in accordance with the regulations as soon as practicable
after a prescribed fuel‑changeover operation on the ship occurs when the
ship enters an SOx emission control area; or
(b) the record book is not:
(i) retained on board the
ship for the prescribed period; or
(ii) readily available for
inspection at all reasonable times.
Penalty: 200 penalty units.
(2) An offence against subsection (1) is
an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) A person commits an offence if:
(a) the person makes an entry in a
prescribed record book; and
(b) the entry is false or misleading
in a material particular.
Penalty: 200 penalty units.
26FEK
New SOx emission control areas
(1) This section applies if an amendment is
made (whether before or after the commencement of this section), in accordance
with Annex VI, designating an area as an SOx emission control area.
(2) Sections 26FEH, 26FEI and 26FEJ do
not apply in relation to the SOx emission control area during the period of 12
months immediately after the amendment concerned enters into force.
Division 3—Fuel oil quality
requirements
26FEL
Local suppliers must be registered
A person commits an offence if:
(a) the person is not a registered
local supplier of fuel oil; and
(b) the person delivers fuel oil to a
ship; and
(c) the delivery happens while the
ship is:
(i) in the sea near a
State, the Jervis Bay Territory or an external Territory and no law of that
State or Territory gives effect to Regulation 18(7)(a) of Annex VI in relation
to that sea; or
(ii) in the exclusive
economic zone.
Penalty: 200 penalty units.
26FEM
Register of Local Suppliers of Fuel Oil
(1) The Authority must establish and maintain
a register of local suppliers of fuel oil.
(2) The register is to be called the Register
of Local Suppliers of Fuel Oil.
(3) The regulations may:
(a) prescribe the way in which the
Register must be established or maintained, including the details that the
Authority must enter in the Register; and
(b) prescribe requirements that must
be met by:
(i) persons seeking
registration as local suppliers of fuel oil; and
(ii) persons registered as
local suppliers of fuel oil.
(4) The Register is to be made available for
inspection on the Internet.
(5) The Register established under
subsection (1) is not a legislative instrument.
26FEN
Using fuel oil that does not meet fuel oil quality requirements
(1) The master and the owner of a ship each
commit an offence if:
(a) fuel oil is used on board the
ship; and
(b) the fuel oil does not meet the
requirements set out in Regulation 18(1) of Annex VI; and
(c) one of the following applies:
(i) the fuel oil is used
while the ship is in the sea near a State, the Jervis Bay Territory or an
external Territory and no law of that State or Territory gives effect to
Regulation 18(1) of Annex VI in relation to that sea;
(ii) the fuel oil is used
while the ship is in the exclusive economic zone;
(iii) the ship is an Australian
ship and the fuel oil is used while the ship is beyond the exclusive economic
zone.
Penalty: 500 penalty units.
(2) An offence against subsection (1) is
an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
Presumption
(3) It is presumed, unless the contrary is
proved, that fuel oil is used as mentioned in paragraph (1)(c).
Note: A defendant bears a legal burden in relation
to proving the contrary (see section 13.4 of the Criminal Code).
26FEO
Bunker delivery note and sample must be provided
(1) A person commits an offence if:
(a) the person delivers fuel oil to a
ship; and
(b) the ship has a gross tonnage of
400 or more; and
(c) the delivery happens while the
ship is:
(i) in the sea near a
State, the Jervis Bay Territory or an external Territory and no law of that
State or Territory gives effect to Regulation 18(1) of Annex VI in relation to
that sea; or
(ii) in the exclusive
economic zone; and
(d) the person does not provide to the
master of the ship, in accordance with the regulations, a completed bunker
delivery note in the approved form for the fuel oil delivered.
Penalty: 200 penalty units.
(2) A person commits an offence if:
(a) the person delivers fuel oil to a
ship; and
(b) the ship has a gross tonnage of
400 or more; and
(c) the delivery happens while the
ship is:
(i) in the sea near a
State, the Jervis Bay Territory or an external Territory and no law of that
State or Territory gives effect to Regulation 18(1) of Annex VI in relation to
that sea; or
(ii) in the exclusive
economic zone; and
(d) the person does not provide to the
master of the ship, in accordance with the regulations, a representative sample
of the fuel oil that is sealed and signed in accordance with the regulations.
Penalty: 200 penalty units.
(3) An offence against subsection (1) or
(2) is an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
26FEP
Fuel oil delivered must be in accordance with declaration
(1) A person commits an offence if:
(a) fuel oil is delivered to a ship;
and
(b) the person is the fuel oil
supplier of that fuel oil; and
(c) the ship has a gross tonnage of
400 or more; and
(d) the delivery happens while the
ship is:
(i) in the sea near a
State, the Jervis Bay Territory or an external Territory and no law of that
State or Territory gives effect to Regulation 18(7)(b) of Annex VI in relation
to that sea; or
(ii) in the exclusive
economic zone; and
(e) a bunker delivery note is provided
for the delivery; and
(f) the bunker delivery note contains
a declaration signed by the person or the person’s representative certifying
that the fuel oil meets the requirements set out in regulation 18(1) of Annex
VI; and
(g) the fuel oil delivered does not
meet those requirements.
Penalty: 500 penalty units.
(2) An offence against subsection (1) is
an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
26FEQ
Bunker delivery note must be retained and available for inspection
(1) A person commits an offence if:
(a) the person delivers fuel oil to a
ship; and
(b) the person provides a bunker
delivery note for the delivery; and
(c) the person does not:
(i) retain a copy of the
bunker delivery note for at least 3 years after the fuel oil is delivered; and
(ii) have that copy readily
available for inspection by an inspector at all reasonable times.
Penalty: 200 penalty units.
(2) The master and the owner of an Australian
ship each commit an offence if:
(a) fuel oil is delivered to the ship;
and
(b) the ship has a gross tonnage of
400 or more; and
(c) a bunker delivery note for the
delivery of fuel oil to the ship is provided to the master of the ship; and
(d) the bunker delivery note is not:
(i) retained in the ship
for 3 years after the delivery; and
(ii) readily available for
inspection at all reasonable times.
Penalty: 200 penalty units.
(3) The master and the owner of a foreign
ship each commit an offence if:
(a) fuel oil is delivered to the ship;
and
(b) the ship has a gross tonnage of
400 or more; and
(c) a bunker delivery note for the
delivery of fuel oil to the ship is provided to the master of the ship; and
(d) the bunker delivery note is not:
(i) retained in the ship
for 3 years after the delivery; and
(ii) readily available for
inspection at all reasonable times while the ship is in an Australian port or
an Australian offshore terminal.
Penalty: 200 penalty units.
(4) An offence against subsection (1),
(2) or (3) is an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
26FER
Sample must be retained
(1) The master and the owner of a ship each
commit an offence if:
(a) fuel oil is delivered to the ship;
and
(b) the ship has a gross tonnage of
400 or more; and
(c) a representative sample of fuel
oil is provided to the master in connection with the delivery of fuel oil to
the ship; and
(d) the sample is not retained in
accordance with the regulations until the later of the following:
(i) the time at which the
fuel oil delivered is substantially consumed;
(ii) the end of 12 months
after the day on which the fuel oil is delivered.
Penalty: 200 penalty units.
(2) An offence against subsection (1) is
an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
Part IV—Miscellaneous
26G
Power to require information
(1) If:
(a) a foreign ship is navigating in
the territorial sea or the exclusive economic zone; and
(b) there
are clear grounds for believing that an act or omission that constitutes a
contravention of this Act has occurred in relation to the ship while in the
exclusive economic zone;
the Authority may require the master of the ship to give
to the Authority such of the information referred to in subsection (2) as
the Authority requires.
(2) All or any of the following information
may be required:
(a) the ship’s identity;
(b) its port of registry;
(c) its last port of call;
(d) its next port of call;
(e) such other relevant information
required to establish whether the contravention occurred.
27
Powers of inspectors
(1) For the purpose of ascertaining:
(a) whether a provision of this Act
that is applicable in relation to an Australian ship has been complied with in
respect of the ship;
(b) whether there has been a discharge
from a ship in contravention of this Act;
(c) whether a provision of the
Convention that is applicable in relation to a foreign ship has been complied
with in respect of the ship; or
(d) whether a provision of a law of a
country other than Australia giving effect to the Convention, being a provision
that is applicable in relation to a foreign ship, has been complied with in
respect of the ship;
an inspector may:
(e) go on board the ship with such
assistants and equipment as he or she considers necessary; and
(f) require the master of the ship to
take such steps as the inspector directs to facilitate the boarding; and
(g) inspect and test any machinery or
equipment of the ship; and
(h) require the master of the ship to
take such steps as the inspector directs to facilitate the inspection or
testing of any machinery or equipment of the ship; and
(j) open, or require the master of
the ship to cause to be opened, any hold, bunker, tank, compartment or
receptacle in or on board the ship and inspect the contents of any hold,
bunker, tank, compartment or receptacle in or on board the ship; and
(k) require the master of the ship to
produce a record book required by this Act to be carried in the ship or any
other books, documents or records relating to the ship or its cargo that are
carried in the ship; and
(m) make copies of, or take extracts
from, any such books, documents or records; and
(n) require the master of the ship to
certify that a true copy of an entry in a record book required by this Act to
be carried in the ship made by the inspector is a true copy of such an entry;
and
(p) require the master of the ship to
produce any substances on board the ship or under the ship’s control; and
(pa) examine, and take samples of, any
substances on board the ship or under the ship’s control; and
(q) require a person to answer
questions.
(1A) This section does not authorise the
inspection of a foreign ship navigating in the exclusive economic zone if the
inspection is in respect of an act or omission, or possible act or omission, in
relation to the ship while in the exclusive economic zone unless:
(a) there are clear grounds for
believing that the act or omission was a substantial discharge or disposal
causing or threatening to cause significant pollution of the marine
environment; and
(b) a requirement for information
under section 26G has not been complied with, or information supplied
purportedly in compliance with such a requirement is manifestly at variance
with the evident factual situation.
(2) A person
must not fail to comply with a requirement made of the person by an inspector
under subsection (1).
Penalty: 80 penalty units.
(2A) A person
must not, in answering a question that the person is required to answer under subsection (1),
make a statement that is false or misleading in a material particular.
Penalty: 200 penalty units.
(3) An inspector shall not, in exercising his
or her powers under subsection (1), unnecessarily delay a ship from going
to sea.
(4) An offence under subsection (2) is
an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(5) Subsection (2) does not apply if the
person has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal
Code).
27A
Detention of foreign ships in connection with pollution breaches
(1) The Authority may detain a foreign ship
if:
(a) the ship is voluntarily at a port
and there are clear grounds for believing that a pollution breach has occurred
as a result of acts or omissions in relation to the ship in the territorial sea
or the exclusive economic zone; or
(b) the ship is in the territorial sea
and there are clear grounds for believing that a pollution breach has occurred
as a result of acts or omissions in relation to the ship while navigating in
the territorial sea; or
(c) the ship is in the territorial sea
or the exclusive economic zone and there is clear objective evidence that:
(i) a pollution breach has
occurred as a result of acts or omissions in relation to the ship in the
exclusive economic zone; and
(ii) the actions resulted
in a discharge from the ship that has caused or threatens to cause major damage
to the coastline of Australia, to related interests of Australia or to any
resources of the territorial sea or exclusive economic zone.
(2) If the ship is detained under paragraph (1)(b)
or (c), the Authority may escort it to a port.
(3) The ship must be immediately released if:
(a) security is provided in accordance
with subsection (4); or
(b) all proceedings that have been
instituted in respect of the pollution breach have been discontinued; or
(c) all such proceedings have been
concluded (whether or not any appeal is pending) without any person being
convicted of an offence or being found liable to pay an amount of money; or
(d) all such proceedings have been
concluded, and all penalties and/or other amounts of money, and all costs and
expenses ordered to be paid, in respect of the pollution breach have been paid;
or
(e) the Authority forms the belief
that the pollution breach did not occur, or did not occur as a result of
actions in relation to the ship; or
(f) the Authority determines for any
other reason that the ship should be released.
(4) Security referred to in paragraph (3)(a)
must:
(a) be provided in a form acceptable
to the Authority; and
(b) be an amount that, in the
Authority’s opinion, is equivalent to the maximum amount of all penalties,
other amounts of money, costs and expenses that could be payable by the master
and any other member of the crew of the ship and the owner of the ship in
respect of the pollution breach.
(5) The master and owner of the ship are
guilty of an offence if:
(a) the ship was detained at a port
and leaves the port; or
(b) the ship was detained in the
territorial sea and leaves the outer limits of the territorial sea; or
(c) the
ship was detained in the exclusive economic zone and leaves the outer limits of
the exclusive economic zone;
before it is released from
detention.
Penalty: 2,000 penalty units.
(5A) An offence under subsection (5) is an
offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(6) In this section:
Australia includes all the external
Territories.
pollution breach means:
(a) a discharge or disposal from a
ship that:
(i) contravenes this Act;
or
(ii) gives rise to a right
of recovery by the Authority under Part IVA of the Protection of the
Sea (Civil Liability) Act 1981; or
(b) an offence against
section 26FEG or 26FEN.
port means a port in Australia, and is taken
to include an off‑shore installation over which Australia has
jurisdiction.
27B
Notification of measures taken in relation to foreign ships
The Authority must comply with the
requirements of article 231 of the Law of the Sea Convention in relation to any
measures taken, under this Act or Part IVA of the Protection of the Sea
(Civil Liability) Act 1981, in relation to a foreign ship.
27C
Failure to comply with requirements for information under foreign laws
(1) The master and owner of an Australian
ship are guilty of an offence if:
(a) a requirement to give information
is made, in relation to the ship, under a law of a foreign country in
circumstances in which paragraph 3 of article 220 of the Law of the Sea
Convention permits such a requirement to be made; and
(b) the
requirement is not complied with.
Penalty: 500 penalty units.
(2) An offence under subsection (1) is
an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
28
Prosecution of offences against Act
(1) Subject to subsection (2), an
offence against this Act (other than an offence against subsection 27(2) or a
provision of the regulations) is an indictable offence.
(2) Notwithstanding that an offence against
this Act (other than an offence against subsection 27(2) or a provision of the
regulations) is an indictable offence, a court of summary jurisdiction may hear
and determine proceedings in respect of such an offence if the court is
satisfied that it is proper to do so and the defendant and the prosecutor
consent.
(3) If, in accordance with subsection (2),
a court of summary jurisdiction convicts a person of an offence against this
Act (other than an offence against a section referred to in subsection (4)),
the penalty that the court may impose is a fine not exceeding 80 penalty units.
(4) If, in accordance with subsection (2),
a court of summary jurisdiction convicts a person of an offence against section 9,
21, 26AB, 26D, 26F, 26FEG or 26FEH, the penalty that the court may impose is a
fine not exceeding 200 penalty units.
(5) Where, in proceedings for an offence
against this Act in respect of any conduct engaged in by a corporation, it is
necessary to establish the state of mind of the corporation, it is sufficient
to show that a director, servant or agent of the corporation, being a director,
servant or agent by whom the conduct was engaged in within the scope of his or
her actual or apparent authority, had that state of mind.
(6) Any conduct engaged in on behalf of a
corporation:
(a) by a director, servant or agent of
the corporation within the scope of his or her actual or apparent authority; or
(b) by
any other person at the direction or with the consent or agreement (whether
express or implied) of a director, servant or agent of the corporation, where
the giving of such direction, consent or agreement is within the scope of the
actual or apparent authority of the director, servant or agent;
shall be deemed, for the purposes of a provision of this
Act that creates an offence, to have been engaged in by the corporation.
(7) A reference in subsection (5) to the
state of mind of a person includes a reference to the knowledge, intention,
opinion, belief or purpose of the person and the person’s reasons for the
intention, opinion, belief or purpose.
29
Time limits for prosecution
(1) Subject to subsection (2), a
prosecution for an offence against this Act may be brought at any time.
(2) If the prosecution relates to an act or
omission that involves a foreign ship:
(a) the prosecution must not be
brought more than 3 years after the act or omission; and
(b) the prosecution must be suspended
if under paragraph 1 of article 228 of the Law of the Sea Convention the
prosecution is required to be suspended, and must be terminated if under that
paragraph the prosecution is required to be terminated.
29A
Service on master or owner of ship
(1) A document to be served on the master or
any other member of the crew of a ship, or on the owner of a ship, in respect
of an offence against this Act may be served on the agent of the ship instead.
(2) A document served on the agent of a ship
under subsection (1) is taken to have been served on the master or other
member of the crew of the ship, or on the owner of the ship, as the case
requires.
29B
Certificates by Minister
The Minister may, by writing signed by
him or her, certify that a document set out in, or annexed to, the certificate:
(a) sets out the terms of the 1973
Convention; or
(b) sets out the terms of the 1978
Protocol;
and such a certificate is, for all purposes, prima facie
evidence of the matters so certified.
30
Evidence
In any proceedings for an offence
against a provision of this Act:
(a) any record kept in pursuance of
this Act is admissible as prima facie evidence of the facts stated in
the record;
(b) a copy of an entry in such a
record, being a copy certified by the person by whom the record is required to
be kept to be a true copy of the entry, is admissible as prima facie evidence
of the facts stated in the entry; and
(c) a document purporting to be a
record kept in pursuance of this Act, or purporting to be such a certified copy
as referred to in paragraph (b), shall, unless the contrary is proved, be
deemed to be such a record or certified copy, as the case may be.
31
Evidence of analyst
(1) The Authority may, in writing, appoint
appropriately qualified persons to be analysts for the purposes of this Act.
(2) Subject to subsection (4), a
certificate signed by an analyst appointed under subsection (1) setting
out, in relation to a substance, one or more of the following:
(a) when and from whom the substance
was received;
(b) what labels or other means of
identifying the substance accompanied it when it was received;
(c) what container the substance was
in when it was received;
(d) a description of the substance
received;
(e) that he or she has analysed or
examined the substance;
(f) the date on which the analysis or
examination was carried out;
(g) the method used in conducting the
analysis or examination;
(h) the
results of the analysis or examination;
is admissible in any proceeding for an offence against a
provision of this Act as prima facie evidence of the matters in the certificate
and the correctness of the results of the analysis or examination.
(3) For the purposes of this section, a
document purporting to be a certificate referred to in subsection (2)
shall, unless the contrary is proved, be deemed to be such a certificate.
(4) A certificate referred to in subsection (2)
shall not be received in evidence in pursuance of that subsection unless the
person charged has been given a copy of the certificate together with
reasonable notice of the intention of the prosecution to produce the
certificate as evidence in the proceedings.
(5) Where, in pursuance of subsection (2),
a certificate of an analyst appointed under subsection (1) is admitted in
evidence, the person charged may require the analyst to be called as a witness
for the prosecution and the analyst may be cross‑examined as if he or she
had given evidence of the matters stated in the certificate.
(6) Subsection (5) does not entitle a
person to require an analyst to be called as a witness for the prosecution
unless:
(a) the prosecutor has been given at
least 5 days notice of the person’s intention to require the analyst to be so
called; or
(b) the Court, by order, allows the
person to require the analyst to be so called.
32
Application of certain provisions to foreign ships
(1) Subject to subsection (2), the
regulations may make provision applying, with such modifications or exceptions
as may be prescribed, any of the provisions of this Act relating to record
books required by this Act to be carried in Australian ships to foreign ships,
including foreign ships flying the flag of, or under the authority of, a Party
to the Convention, and to prescribed operations or prescribed occurrences
carried out or occurring in, or in relation to, such ships at any time when they
are in a port in Australia or are in the territorial sea of Australia or in the
sea on the landward side of the territorial sea of Australia while on their way
to or from a port in Australia.
(1A) Subject to subsection (2), the
regulations may provide that any of the provisions of this Act relating to the
keeping of a shipboard oil pollution emergency plan on board of Australian
ships apply, with any modifications or exceptions that are prescribed, to
foreign ships:
(a) in a port in Australia; or
(b) in the territorial sea of Australia;
or
(c) in the sea on the landward side of
the territorial sea of Australia.
(1B) Subject to
subsection (2), the regulations may provide that any of the provisions of
this Act relating to the keeping of a shipboard waste management plan on board
Australian ships apply, with any modifications or exceptions that are
prescribed, to foreign ships:
(a) in a
port in Australia; or
(b) in the
territorial sea of Australia; or
(c) in the
sea on the landward side of the territorial sea of Australia.
(2) A regulation under this section does not
apply to a foreign ship if the ship is in a port in Australia or in the
territorial sea of Australia or in the sea on the landward side of the
territorial sea of Australia on its way to or from a port in Australia, as the
case may be, for the purpose of securing the safety of a ship or of human life.
33
Regulations
(1) The Governor‑General may make
regulations, not inconsistent with this Act, prescribing matters:
(a) required or permitted by this Act
to be prescribed; or
(b) necessary
or convenient to be prescribed for carrying out or giving effect to this Act;
and, in particular:
(c) for and in relation to giving
effect to the Convention, other than provisions of the Convention to which
effect is given by a provision of this Act, any other Act or any instrument
made under any other Act;
(e) fixing fees to be paid in respect
of any matters under this Act;
(f) prescribing penalties not
exceeding 50 penalty units for a contravention of a provision of the
regulations or of any of the orders made under section 34; and
(g) exempting, either absolutely or
subject to conditions, a prescribed ship, or ships included in a prescribed
class of ships, from all or any of the provisions of this Act or of the
regulations.
(1A) The limit in paragraph (1)(f) on
penalties does not apply to regulations made for the purposes of subsection
32(1), (1A) or (1B).
(2) Regulations, and orders made under
section 34, giving effect to Annex I, II, III, IV, V or VI to the
Convention do not apply in relation to a ship as defined by subsection (4)
to the extent that a law of a State or a Territory gives effect to the Annex in
relation to that ship.
(3) In proceedings for an offence against a
provision of the regulations, a ship shall, unless the contrary is proved, be
deemed not to be a ship as defined by subsection (4).
(4) In subsections (2) and (3), a
reference to a ship as defined by this subsection shall be construed as a
reference to a ship that is:
(a) a trading ship proceeding on a
voyage other than an overseas voyage or an inter‑State voyage;
(b) an Australian fishing vessel
proceeding on a voyage other than an overseas voyage; or
(c) a pleasure craft.
(5) For the purposes of subsection (4):
(a) trading ship, inter‑State
voyage, Australian fishing vessel and pleasure
craft have the same respective meanings as they have in the Navigation
Act 1912;
(b) overseas voyage has
the same meaning as it has in the Navigation Act 1912 except that a
voyage of an Australian fishing vessel (being a ship that is regularly engaged
in making voyages from a port or ports in Queensland) commencing at a port in
that State and ending at the same port or another port in that State shall not
be taken to be an overseas voyage by reason only that, as an incidental part of
its fishing operations on that voyage, the ship calls at a port or ports in
Papua New Guinea; and
(c) a ship shall be deemed to be
proceeding on a voyage from the time when it has got under way for the purpose
of proceeding on the voyage until the time when it has got under way for the
purpose of proceeding on another voyage.
34
Orders
(1) The Authority may, by legislative
instrument, make orders with respect to any matter for or in relation to which
provision may be made by the regulations, other than matters referred to in
paragraph 33(1)(f).
Note: Part 6 of the Legislative Instruments
Act 2003, which deals with sunsetting of legislative instruments, does not
apply to an order under this subsection (see item 35 of the table in
subsection 54(2) of that Act).
(4) Unless the contrary intention appears,
expressions used in orders made pursuant to the regulations have the same
meanings as in this Act.
(5) Orders made pursuant to the regulations
shall be read subject to this Act and the regulations and so as not to exceed
the power conferred by this Act and the regulations to the intent that, where
such orders would, but for this subsection, have been construed as being in
excess of the power conferred by this Act and the regulations, they shall be
deemed to be valid orders to the extent to which they are not in excess of that
power.
(6) Where a provision of an order made
pursuant to the regulations is inconsistent with a provision of this Act or the
regulations, the latter shall prevail and the former shall, to the extent of
the inconsistency, be of no force or effect.
(8) Despite section 14 of the Legislative
Instruments Act 2003, the regulations may make provision for or in relation
to a matter by applying, adopting or incorporating any matter contained in
orders made pursuant to the regulations as existing from time to time.
35
Repeal
(1) The Protection of the Sea (Discharge
of Oil from Ships) Act 1981 is repealed.
(2) Notwithstanding the repeal of the Act
referred to in subsection (1) effected by that subsection:
(a) the provisions of that Act
continue to apply, after the commencement of this section, in relation to:
(i) any discharge of oil,
or of an oily mixture, within the meaning of that Act that occurred or
commenced before the commencement of this section;
(ii) any prescribed
operation within the meaning of subsection 12(4) of that Act that was carried
out or commenced before the commencement of this section; and
(iii) any
prescribed occurrence within the meaning of subsection 12(4) of that Act that
occurred or commenced before the commencement of this section; and
(b) section 14
of that Act continues to apply, after the commencement of this section, in
relation to any oil record book that, in accordance with subsection 12(1) of
that Act, was carried in an Australian ship before the commencement of this
section;
as if that Act had not been repealed.