An Act to give effect to the International Convention on Civil
Liability for Bunker Oil Pollution Damage, and for related purposes
Part 1—Preliminary
1
Short title [see Note 1]
This Act may be cited as the Protection
of the Sea (Civil Liability for Bunker Oil Pollution Damage) Act 2008.
2
Commencement
(1) Each provision of this Act specified in
column 1 of the table commences, or is taken to have commenced, in accordance
with column 2 of the table. Any other statement in column 2 has effect
according to its terms.
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Commencement
information
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Column 1
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Column 2
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Column 3
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Provision(s)
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Commencement
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Date/Details
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1. Sections 1 and 2 and anything in this Act not
elsewhere covered by this table
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The day on which this Act receives the Royal Assent.
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12 July 2008
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2. Sections 3 to 30
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The later of:
(a) the day on which this Act receives the Royal Assent; and
(b) the day on which the International Convention on Civil
Liability for Bunker Oil Pollution Damage, 2001, done at London on
23 March 2001, enters into force for Australia.
However, the provision(s) do not commence at all if the
event mentioned in paragraph (b) does not occur.
The Minister must announce by notice in the Gazette the
day on which the Convention enters into force for Australia.
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16 June 2009
(see Gazette
2009, No. GN20)
(paragraph (b) applies)
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Note: This table
relates only to the provisions of this Act as originally passed by both Houses
of the Parliament and assented to. It will not be expanded to deal with
provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional
information that is not part of this Act. Information in this column may be
added to or edited in any published version of this Act.
3
Definitions
In this Act:
applied provisions means the provisions of
the Bunker Oil Convention mentioned in section 11 as they have the force
of law as part of the law of the Commonwealth.
appropriate insurance certificate has the
meaning given by section 15.
Australia, when used in a geographical sense,
includes the external Territories.
Authority means the Australian Maritime
Safety Authority established by the Australian Maritime Safety
Authority Act 1990.
Bunker Oil Convention means:
(a) the International Convention on
Civil Liability for Bunker Oil Pollution Damage, 2001, done at London on
23 March 2001; or
(b) if the Convention has been amended
by any amendment that has entered into force for Australia—the Convention as so
amended.
Note: In 2008, the text of the Convention was
accessible through the Australian Treaties Library on the AustLII website
(www.austlii.edu.au).
Civil Liability Convention has the same
meaning as in the Bunker Oil Convention.
coastal sea of Australia or an external Territory
has the same meaning as in subsection 15B(4) of the Acts Interpretation Act
1901.
constitutional corporation means a
corporation to which paragraph 51(xx) of the Constitution applies.
domestic voyage ship has the meaning given by
subsection 10(3).
enforcement officer means:
(a) an officer of Customs within the
meaning of the Customs Act 1901; or
(b) a surveyor appointed under
section 190 of the Navigation Act 1912; or
(c) a person included in a class of
persons prescribed by the regulations for the purposes of this paragraph.
exclusive economic zone has the same meaning
as in the Seas and Submerged Lands Act 1973.
government ship means a ship (including a
warship) that is owned or operated by:
(a) the Commonwealth, a State, a
Territory or a foreign country; or
(b) an authority of the Commonwealth,
a State, a Territory or a foreign country.
gross tonnage has the same meaning as in the
Bunker Oil Convention.
incident has the same meaning as in the
Bunker Oil Convention.
offshore facility has the same meaning as in
the Bunker Oil Convention.
person has the same meaning as in the Bunker
Oil Convention.
Note: See also sections 28 (partnerships) and
29 (unincorporated associations).
pollution damage has the same meaning as in
the Bunker Oil Convention.
preventive measures has the same meaning as
in the Bunker Oil Convention.
registered owner has the same meaning as in
the Bunker Oil Convention.
Secretary‑General has the same meaning as in
the Bunker Oil Convention.
ship has the same meaning as in the Bunker
Oil Convention.
shipowner has the same meaning as in the
Bunker Oil Convention.
4
Crown to be bound
(1) This Act binds the Crown in each of its
capacities.
(2) This Act does not make the Crown liable
to be prosecuted for an offence.
5
Extension to external Territories
This Act extends to every external
Territory.
6
Extraterritorial application
Unless the contrary intention appears,
this Act extends to acts, omissions, matters and things outside Australia.
Part 2—Liability under Bunker Oil Convention
Division 1—Application of Part
7
Application of Part
Subject to this Division, this Part
applies to:
(a) pollution damage occurring in
Australia or the exclusive economic zone of Australia; and
(b) preventive measures, wherever they
are taken, to prevent or minimise pollution damage occurring in Australia or
the exclusive economic zone of Australia.
Note: This Part also applies in relation to the
coastal sea of Australia and an external Territory: see section 15B of the
Acts Interpretation Act 1901.
8
Overlap with Civil Liability Convention
This Part does not apply to pollution
damage (within the meaning of the Civil Liability Convention), whether or not
compensation is payable in respect of the damage under the Protection of the
Sea (Civil Liability) Act 1981.
9
Government ships
This Part applies in relation to a
government ship only if it is being used for commercial purposes.
10
Concurrent State or Territory laws
(1) This Part does not apply in relation to a
domestic voyage ship if a law of a State or a Territory gives effect to
Articles 3, 5 and 6, paragraph 10 of Article 7, and Article 8, of the Bunker
Oil Convention in relation to the ship.
(2) However, subsection (1) does not
apply in respect of an incident to which Article 5 of the Bunker Oil Convention
applies involving:
(a) one or more ships that are
domestic voyage ships; and
(b) one or more ships that are not
domestic voyage ships.
(3) A domestic voyage ship is a
ship that is:
(a) a trading ship proceeding on a
voyage other than an overseas voyage or an inter‑State voyage; or
(b) an Australian fishing vessel
proceeding on a voyage other than an overseas voyage.
(4) For the purposes of this section, Australian
fishing vessel, inter‑State voyage and trading ship
have the same respective meanings as they have in the Navigation Act 1912.
(5) For the purposes of this section, overseas
voyage has the same meaning as in the Navigation Act 1912.
However, if an Australian fishing vessel that is regularly engaged in making
voyages from a port or ports in Queensland:
(a) begins a voyage at a port in
Queensland; and
(b) ends the voyage at the same port
or another port in Queensland;
that voyage is not taken to be an overseas voyage
merely because, as an incidental part of its fishing operations on that voyage,
the vessel calls at a port or ports in Papua New Guinea.
(6) For the purposes of this section, a ship
is taken 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.
Division 2—Liability for pollution damage
11
Liability for pollution damage
So far as this Part applies, Articles 3,
5 and 6, paragraph 10 of Article 7, and Article 8, of the Bunker Oil Convention
have the force of law as part of the law of the Commonwealth.
Note 1: Those provisions of the Bunker Oil Convention
deal with the liability of shipowners for pollution damage and the making of
claims against insurers or persons providing financial security for ships.
Note 2: The Admiralty Act 1988 deals with the
conferral of jurisdiction on courts to hear and determine claims under the
applied provisions.
Part 3—Insurance certificates relating to liability for pollution damage
Division 1—Introduction
12
Application of Part
(1) Subject to this section, this Part
applies to a ship that has a gross tonnage of more than 1,000.
Overlap with Civil Liability Convention
(2) This Part does not apply to a ship to
which Part III of the Protection of the Sea (Civil Liability) Act 1981
applies.
Government ships
(3) This Part applies to a government ship
only if it is being used for commercial purposes.
13
Unregistered ships
This Part applies to a ship that is
unregistered as if it were registered in the country whose flag the ship is
entitled to fly.
14
Concurrent State or Territory laws
This Part is not intended to exclude or
limit the concurrent operation of a law of a State or Territory that gives
effect to paragraphs 1, 2 and 4 of Article 7 of the Bunker Oil Convention in
relation to a domestic voyage ship.
15
Appropriate insurance certificate
For the purposes of this Act, an appropriate
insurance certificate for a ship is worked out using the following
table:
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Appropriate insurance
certificate
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If the ship …
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the appropriate
insurance certificate is …
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1
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is registered in Australia and is not a government ship
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(a) for a ship other than a domestic voyage ship—a
certificate issued under section 18 for the ship; or
(b) for a ship that is a domestic voyage ship—a certificate
issued under section 18 for the ship or a certificate issued for the
ship under a law of a State or Territory that gives effect to paragraphs 1, 2
and 4 of Article 7 of the Bunker Oil Convention in relation to the ship.
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2
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is registered in a foreign country to which the Bunker Oil
Convention applies and is not a government ship
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a certificate issued for the ship, for the purposes of
Article 7 of the Bunker Oil Convention, by or under the authority of the government
of that country.
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3
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is registered in a foreign country to which the Bunker Oil
Convention does not apply and is not a government ship
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(a) a certificate issued under section 18 for the ship;
or
(b) a certificate issued for the ship, for the purposes of
Article 7 of the Bunker Oil Convention, by or under the authority of the
government of a foreign country to which the Bunker Oil Convention applies.
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4
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is owned or operated by the Commonwealth or an authority
of the Commonwealth
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a certificate issued under section 19 for the ship.
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5
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is owned or operated by a State or Territory or an
authority of a State or Territory
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(a) a certificate issued under section 19 for the ship;
or
(b) a certificate issued for the ship under a law of the
State or Territory stating that the ship is owned or operated by the State or
Territory or the authority of the State or Territory and that the State or
Territory will meet any liability for pollution damage up to the limits of
liability referred to in paragraph 1 of Article 7 of the Bunker Oil
Convention in relation to the ship.
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6
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is owned or operated by a foreign country or an authority
of a foreign country
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a certificate issued for the ship by or under the
authority of the government of the foreign country stating that:
(a) the ship is owned or operated by the foreign country or
the authority of the foreign country; and
(b) the foreign country will meet any liability for pollution
damage up to the limits of liability referred to in paragraph 1 of Article 7
of the Bunker Oil Convention in relation to the ship.
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Division 2—Ships must carry insurance certificates
16
Ships must carry insurance certificate when entering or leaving ports in
Australia etc.
(1) A person commits an offence if:
(a) the person is the registered owner
or master of a ship to which this Part applies; and
(b) the ship:
(i) enters or leaves a
port in Australia; or
(ii) arrives at or leaves
an offshore facility in the coastal sea of Australia or an external Territory
or in the waters of the sea within the limits of a State or Territory; and
(c) at the time the ship does so, the
ship does not have on board an appropriate insurance certificate for the ship
that is in force.
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.
(3) Subsection (1) does not apply if:
(a) an appropriate insurance
certificate for the ship is in force at the time referred to in
paragraph (1)(c); and
(b) the issuer of the certificate has
notified the Secretary‑General that it maintains records in an electronic form
that attest to the existence of the certificate; and
(c) the records are accessible to all
countries to which the Bunker Oil Convention applies.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal
Code.
(4) An offence against subsection (1) is
an indictable offence.
17
Ships registered in Australia must carry insurance certificate when in
operation
(1) A person
commits an offence if:
(a) the person is the registered owner
or master of a ship to which this Part applies; and
(b) the ship is registered in
Australia; and
(c) at the time the ship is in
operation, the ship does not have on board an appropriate insurance certificate
for the ship that is in force.
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.
(3) Subsection (1) does not apply if:
(a) an appropriate insurance
certificate for the ship is in force at the time referred to in
paragraph (1)(c); and
(b) the issuer of the certificate has
notified the Secretary‑General that it maintains records in an electronic form
that attest to the existence of the certificate; and
(c) the records are accessible to all
countries to which the Bunker Oil Convention applies.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal
Code.
(4) An offence against subsection (1) is
an indictable offence.
Division 3—Insurance certificates
Subdivision A—Issue of certificates
18
Issue of certificates for ships other than government ships
Application for certificate
(1) A person may apply to the Authority for
the issue of a certificate for a ship that is registered:
(a) in Australia; or
(b) in a foreign country that is not a
country to which the Bunker Oil Convention applies.
Government ships
(2) This section does not apply to a
government ship.
Note: Section 19 deals with the issue of
certificates for certain government ships.
Form of application
(3) An application must be:
(a) in accordance with the form
approved under subsection (4); and
(b) accompanied by the fee (if any)
prescribed by the regulations for the purposes of this paragraph.
(4) The Authority must, by writing, approve a
form for the purposes of paragraph (3)(a).
(5) A fee must not be such as to amount to
taxation.
Decision on application
(6) If the Authority is satisfied that the
registered owner of the ship is maintaining insurance or other financial
security for the ship in an amount that will cover the limits of liability
referred to in paragraph 1 of Article 7 of the Bunker Oil Convention in
relation to the ship, it must issue a certificate for the ship.
(7) If the Authority is not so satisfied, it
must refuse to issue a certificate for the ship.
Form of certificate
(8) A certificate under this section must be
in the form approved under subsection (9).
(9) The Authority must, by writing, approve a
form for the purposes of subsection (8). That form must contain the
particulars specified in paragraph 2 of Article 7 of the Bunker Oil Convention,
but may contain other particulars.
Period certificate in force
(10) A certificate under this section comes
into force on the day specified in the certificate.
Note 1: Paragraph 2 of Article 7 of the Bunker Oil
Convention requires the certificate to specify the period of validity of the
certificate.
Note 2: Sections 22 and 23 deal with certificates
ceasing to be in force.
Certificate not a legislative instrument
(11) A certificate issued under this section is
not a legislative instrument.
19
Issue of certificates for government ships
Commonwealth ships
(1) The Authority may issue a certificate,
for a ship owned or operated by the Commonwealth or an authority of the
Commonwealth, certifying that:
(a) the ship is owned or operated by
the Commonwealth or the authority of the Commonwealth; and
(b) if the ship is owned or operated
by the Commonwealth and the Minister is satisfied that the Commonwealth will
meet any liability for pollution damage up to the limits of liability referred
to in paragraph 1 of Article 7 of the Bunker Oil Convention in relation to the
ship—any such liability will be met by the Commonwealth; and
(c) if the ship is owned or operated
by an authority of the Commonwealth and the Minister is satisfied that the
Commonwealth or the authority will meet any liability for pollution damage up
to the limits of liability referred to in paragraph 1 of Article 7 of the
Bunker Oil Convention in relation to the ship—any such liability will be met by
the Commonwealth or the authority.
State or Territory ships
(2) The Authority may issue a certificate,
for a ship owned or operated by a State or a Territory or an authority of a
State or Territory, certifying that:
(a) the ship is owned or operated by
the State or Territory or the authority of the State or Territory; and
(b) if the ship is owned or operated
by a State or Territory and the Minister is satisfied that the State or
Territory will meet any liability for pollution damage up to the limits of
liability referred to in paragraph 1 of Article 7 of the Bunker Oil Convention
in relation to the ship—any such liability will be met by the State or
Territory; and
. (c) if the ship is owned or operated
by an authority of a State or Territory and the Minister is satisfied that the
State or Territory or the authority will meet any liability for pollution
damage up to the limits of liability referred to in paragraph 1 of Article 7 of
the Bunker Oil Convention in relation to the ship—any such liability will be
met by the State or Territory or the authority.
Form of certificate
(3) A certificate under this section must be
in the form approved under subsection (4).
(4) The Authority must, by writing, approve a
form for the purposes of subsection (3).
Period certificate in force
(5) A certificate under this section:
(a) comes into force on the day specified
in the certificate; and
(b) remains in force for the period
specified in the certificate.
(6) However, if the Commonwealth, the State
or the Territory or the authority of the Commonwealth, the State or the
Territory ceases to own or operate the ship covered by a certificate under this
section, the certificate immediately ceases to be in force.
Certificate not a legislative instrument
(7) A certificate issued under this section
is not a legislative instrument.
Subdivision B—Production of certificates
20
Enforcement officer may require insurance certificate to be produced
(1) An enforcement officer may require the
master or other person in charge of a ship to which this Part applies to
produce to the officer an appropriate insurance certificate for the ship that
is in force if:
(a) for a ship that is registered in
Australia—the ship is in Australia; or
(b) for any other ship—the ship is at
a port in Australia or at an offshore facility in the coastal sea of Australia
or an external Territory or in the waters of the sea within the limits of a
State or Territory.
Offence
(2) A person commits an offence if:
(a) the person is subject to a
requirement under subsection (1); and
(b) the person fails to comply with
the requirement.
Penalty: 20 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.
(4) Subsection (2) does not apply if:
(a) an appropriate insurance
certificate for the ship is in force at the time the requirement under
subsection (1) is made; and
(b) the issuer of the certificate has
notified the Secretary‑General that it maintains records in an electronic form
that attest to the existence of the certificate; and
(c) the records are accessible to all
countries to which the Bunker Oil Convention applies.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (4): see subsection 13.3(3) of the Criminal
Code.
Subdivision C—Detention of ships
21
Enforcement officer may detain ships
(1) An enforcement officer may detain a ship
to which this Part applies in a port in Australia if the officer has reasonable
grounds to believe that, at the time the ship attempts to leave the port, there
is not an appropriate insurance certificate for the ship that is in force.
(2) The officer may detain the ship until the
certificate is produced to the officer or the officer is satisfied that the
certificate has been obtained.
(3) A person commits an offence if:
(a) the person is the registered owner
or master of a ship to which this Part applies; and
(b) an enforcement officer has
detained the ship under subsection (1) in a port in Australia; and
(c) the ship leaves the port while it
is under detention.
Penalty: 2,000 penalty units.
(4) An offence against subsection (3) is
an offence of strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
(5) An offence against subsection (3) is
an indictable offence.
Subdivision D—Certificates ceasing to be in force
22
Authority may cancel certificate
(1) The Authority may cancel a certificate
issued under section 18 for a ship if it is satisfied that the registered
owner of the ship is no longer maintaining insurance or other financial
security for the ship in an amount that will cover the limits of liability
referred to in paragraph 1 of Article 7 of the Bunker Oil Convention in
relation to the ship.
(2) The Authority must give notice of the
cancellation to:
(a) the registered owner of the ship;
and
(b) the master (if any) of the ship;
and
(c) if, when the certificate was
issued, the ship was registered in a foreign country that was not a country to
which the Bunker Oil Convention applied—the foreign country.
(3) The cancellation takes effect on the day
specified in the notice of cancellation.
23
When certificate automatically ceases to be in force
Ship registered in Australia
(1) A certificate issued under
section 18 for a ship immediately ceases to be in force if:
(a) when the certificate was issued,
the ship was registered in Australia; and
(b) the ship ceases to be registered
in Australia.
Ship registered in foreign country that is not a
Convention country
(2) A certificate issued under
section 18 for a ship immediately ceases to be in force if:
(a) when the certificate was issued,
the ship was registered in a foreign country that was not a country to which
the Bunker Oil Convention applied; and
(b) the ship ceases to be registered
in that country or that country becomes a country to which that Convention
applies.
Subdivision E—Review of decisions
24
Review of decisions
Applications
may be made to the Administrative Appeals Tribunal for review of the following
decisions of the Authority:
(a) a decision under subsection 18(7)
to refuse to issue a certificate;
(b) a decision under subsection 22(1)
to cancel a certificate.
Part 4—Other matters
24A
Responder immunity
(1) Subject to this section, no civil action,
suit or proceeding lies against a person in relation to anything done, or
omitted to be done, reasonably and in good faith by the person in relation to
preventing or minimising pollution damage occurring in Australia or the
exclusive economic zone of Australia.
Note: This section also applies in relation to the
coastal sea of Australia and an external Territory: see section 15B of the
Acts Interpretation Act 1901.
Exceptions
(2) Subsection (1) does not prevent an
action, suit or proceeding from being brought against the shipowner or
shipowners concerned (including on the basis of vicarious liability).
(3) Subsection (1) does not apply in
relation to anything done, or omitted to be done:
(a) with intent to cause damage; or
(b) recklessly and with knowledge that
damage would probably result.
Scope of section
(4) Subsection (1) has effect:
(a) in relation to anything done, or
omitted to be done, by:
(i) a constitutional
corporation; or
(ii) a director, officer,
employee or agent of a constitutional corporation in the capacity of such a
director, officer, employee or agent; and
(b) in relation to anything done, or
omitted to be done, outside Australia; and
(c) in relation to anything done, or
omitted to be done, in the course of, or in relation to, any of the following:
(i) trade or commerce
between Australia and places outside Australia;
(ii) trade or commerce
among the States;
(iii) trade or commerce
within a Territory, between a State and a Territory or between 2 Territories;
and
(d) in relation to anything done, or
omitted to be done, by the Commonwealth or an authority of the Commonwealth.
(5) For the purposes of
paragraph (4)(b), outside Australia means outside the
baseline from which the breadth of the territorial sea (within the meaning of
the Seas and Submerged Lands Act 1973) is measured under section 7
of that Act.
25 No
time limit for prosecution
A prosecution for an offence against
this Act may be brought at any time.
26
Submission to jurisdiction
(1) In any proceedings brought in a court in
Australia to enforce a claim in respect of a liability incurred under the applied
provisions, each foreign country to which the Bunker Oil Convention applies is
taken to:
(a) have submitted to the jurisdiction
of that court; and
(b) have waived any defence based on
its status as a sovereign country.
(2) Nothing in this section permits the levy
of execution against the property of such a country.
27
Regulations to give effect to Article 10 of the Bunker Oil Convention
(1) The regulations may make provision for
and in relation to giving effect to Article 10 of the Bunker Oil Convention.
Conferral of jurisdiction
(2) Regulations made for the purposes of this
section may confer jurisdiction on the Federal Court of Australia with respect
to matters arising under regulations made for the purposes of this section.
(3) Regulations made for the purposes of this
section may confer jurisdiction on the Supreme Courts of the States and
Territories with respect to matters arising under regulations made for the
purposes of this section.
(4) Any jurisdiction conferred on the Supreme
Courts of the Territories is conferred to the extent that the Constitution
permits.
(5) This section does not limit the power of
a judge or judges of a court to make rules of court with respect to a matter
that is not provided for in regulations made for the purposes of this section.
Fees
(6) Regulations made for the purposes of this
section may make provision for and in relation to fees payable in respect of
matters arising under regulations made for the purposes of this section.
(7) A fee must not be such as to amount to
taxation.
Interpretation
(8) Subsections (2), (3) and (6) do not
limit subsection (1).
28
Treatment of partnerships
(1) This Act applies to a partnership as if
it were a person, but with the changes set out in this section.
(2) An obligation that would otherwise be
imposed on the partnership by this Act is imposed on each partner instead, but
may be discharged by any of the partners.
(3) An offence against this Act that would
otherwise be committed by the partnership is taken to have been committed by
each partner who knows or ought reasonably to know that the partnership is the
registered owner of the ship concerned.
(4) For the purposes of this Act, a change in
the composition of a partnership does not affect the continuity of the partnership.
29
Treatment of unincorporated associations
(1) This Act applies to an unincorporated
association as if it were a person, but with the changes set out in this
section.
(2) An obligation that would otherwise be
imposed on the association by this Act is imposed on each member of the
association’s committee of management instead, but may be discharged by any of
the members.
(3) An offence against this Act that would
otherwise be committed by the association is taken to have been committed by
each member of the association’s committee of management who knows or ought
reasonably to know that the association is the registered owner of the ship
concerned.
30
Regulations
The Governor‑General may make
regulations 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.