Protection of the Sea (Prevention of Pollution from Ships) Act 1983
Act No. 41 of 1983 as amended
This compilation was prepared on 12 April 2002
taking into account amendments up to Act No. 4 of 2002
The text of any of those amendments not in force
on that date is appended in the Notes section
Prepared by the Office of Legislative Drafting,
Attorney-General’s Department, Canberra
Contents
Part I—Preliminary
1 Short title [see Note 1]
2 Commencement [see Note 1]
3 Interpretation
4 Act to bind Crown
5 Saving of other laws
6 Operation of Act
7 Application of the Criminal Code
Part II—Prevention of pollution by oil
8 Interpretation
9 Prohibition of discharge of oil or oily mixtures into sea
10 Prohibition of discharge of oil residues into sea
11 Duty to report certain incidents involving oil or oily mixture
11A Shipboard oil pollution emergency plan
12 Oil record book
13 False entries in oil record book
14 Oil record book to be retained
14A Power to require discharge of oil or oily mixture at a reception facility
Part III—Prevention of pollution by noxious substances
15 Interpretation
16 Application of Act to mixture of oil and liquid substance
17 Categories of noxious liquid substances
18 Appendix III substances
19 Provisional assessment of substances
20 Notification of proposal to carry certain substances
21 Prohibition of discharge of substances into the sea
21A Certain liquid substances to be treated as oil
22 Duty to report certain incidents involving certain substances
23 Cargo record book
24 False entries in cargo record book
25 Cargo record book to be retained
26 Cleaning of tanks of ships
26AA Power to require discharge of a liquid substance or a mixture containing a liquid substance at a reception facility
Part IIIA—Prevention of pollution by packaged harmful substances
26A Interpretation
26AB Prohibition of discharge by jettisoning of harmful substances into the sea
26B Duty to report certain incidents involving harmful substances
Part IIIB—Prevention of pollution by sewage
Division 1—Discharge of sewage in the Antarctic Area
26BA Interpretation
26BB Object of Division
26BC Prohibition of discharge of sewage
Division 2—Discharge of sewage in other sea areas [1]
26C Interpretation
26CA Object of Division
26D Prohibition of discharge of sewage into the sea
26DA Operation of Division
Part IIIC—Prevention of pollution by garbage
26E Interpretation
26EAA Overseas voyages
26EA Object of Part
26F Prohibition of disposal of garbage into the sea
26FA Garbage record book
26FB Garbage record book to be retained
26FC Shipboard waste management plan
26FD Placards relating to requirements for disposal of garbage
26FE Power to require discharge of garbage at a reception facility
Part IV—Miscellaneous
26G Power to require information
27 Powers of inspectors
27A Detention of foreign ships in connection with pollution breaches
27B Notification of measures taken in relation to foreign ships
27C Failure to comply with requirements for information under foreign laws
28 Prosecution of offences against Act
29 Time limits for prosecution
29A Service on master or owner of ship
29B Certificates by Minister
30 Evidence
31 Evidence of analyst
32 Application of certain provisions to foreign ships
33 Regulations
34 Orders
35 Repeal
Notes
An Act relating to the protection of the sea from pollution by oil and other harmful substances discharged from ships
This Act may be cited as the Protection of the Sea (Prevention of Pollution from Ships) Act 1983.
(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.
(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.
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 not accepted by 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 not accepted by 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.
(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.
(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 and 26F, 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.
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.
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 9 and 11 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 9 and 11 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 from an oil tanker of oil or an oily mixture, not being oil or an oily mixture of the kind referred to in paragraph (c), if the following conditions are satisfied:
(i) the oil tanker is not within a special area and is more than 50 nautical miles from the nearest land;
(ii) the oil tanker is proceeding en route;
(iii) the instantaneous rate of discharge of oil content does not exceed 30 litres per nautical mile;
(iv) the total quantity of oil discharged into the sea does not exceed:
(A) in the case of an oil tanker that is an existing tanker—one part in 15,000 parts of the total quantity of the cargo of oil of which oil discharged formed a part; or
(B) in the case of an oil tanker that is a new tanker—one part in 30,000 parts of the total quantity of the cargo of oil of which oil discharged formed a part;
(v) the oil tanker has in operation an oil discharge monitoring and control system and a slop tank arrangement as required by regulations made by virtue of section 267A of the Navigation Act 1912;
(b) the discharge from a ship that is not an oil tanker of oil or an oily mixture if the following conditions are satisfied:
(i) the ship is not within a special area;
(ii) the ship is proceeding en route;
(iii) the oil content of the effluent is less than 15 parts in 1,000,000 parts;
(iv) the ship has in operation equipment as required by regulations made by virtue of section 267A of the Navigation Act 1912;
(c) the discharge from an oil tanker of oil or an oily mixture, being oil or an oily mixture that is from the machinery space bilges (other than the cargo pump room bilges) of the oil tanker and does not include oil cargo residue, if the conditions specified in paragraph (b) are satisfied in relation to the discharge;
(d) the discharge from an oil tanker, or another ship that has a gross tonnage of 400 or more, of an unprocessed oily mixture, not being an oily mixture that originated from the cargo pump room bilges of the ship or includes oil cargo residue, if the following conditions are satisfied:
(i) the ship is not within a special area;
(ii) the oil content of the unprocessed oily mixture without dilution is not more than 15 parts in 1,000,000 parts;
(e) subject to subsection (4A), the discharge of oil or an oily mixture from a machinery space bilge of a ship that has a gross tonnage of 400 or more if:
(i) the ship was delivered before 6 July 1993; and
(ii) the oil or oily mixture did not originate from a cargo pump-room bilge; and
(iii) the oil or oily mixture is not mixed with oil cargo residues; and
(iv) the ship is not within a special area; and
(v) the ship is more than 12 nautical miles from the nearest land; and
(vi) the ship is proceeding en route; and
(vii) the oil content of the effluent is less than 100 parts per 1,000,000 parts; and
(viii) the ship has in operation oily-water separating equipment as required by regulations made by virtue of section 267A of the Navigation Act 1912;
(g) the discharge within a special area from an oil tanker, or another ship that has a gross tonnage of 400 or more, of processed bilge water from machinery spaces, not being bilge water that originated from the cargo pump room bilges of the ship or includes oil cargo residue, if the following conditions are satisfied:
(i) the ship is proceeding en route;
(ii) the oil content of the effluent without dilution is not more than 15 parts in 1,000,000 parts;
(iii) the ship has in operation oil filtering equipment as required by regulations made by virtue of section 267A of the Navigation Act 1912;
(iv) the oil filtering equipment is equipped with a stopping device that automatically prevents any discharge of effluent when the oil content of the effluent without dilution is more than 15 parts in 1,000,000 parts;
(h) the discharge, within a special area from a ship that has a gross tonnage of less than 400 and is not an oil tanker of oil or an oily mixture, if the oil content of the effluent without dilution is less than 15 parts in 1,000,000 parts; or
(k) the discharge from a ship of clean or segregated ballast.
Note: The defendant bears an evidential burden of proof of the matters mentioned in this subsection.
(4A) Paragraph (4)(e) does not apply after:
(a) 6 July 1998; or
(b) the date on which the ship is fitted with equipment of a kind described in Regulation 16 of the amendments to the Annex of the Protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships, 1973;
whichever is the earlier.
(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: $50,000.
(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 $50,000.
(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: $20,000.
(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: $20,000.
(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: $20,000.
(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 $50,000.
(8) An offence under subsection (7) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(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 $20,000.
(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 make, without delay, appropriate entries in, or cause appropriate entries to be made, without delay, in, the ship’s oil record book, being entries in accordance with subsection (6).
Penalty: $20,000.
(6) An entry in a ship’s oil record book:
(a) shall be made in the English language; and
(b) shall be signed by the master of the ship and, in the case of an entry made in relation to a prescribed operation, by the officer or other person in charge of the operation.
(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: $20,000.
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 $20,000.
(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.
(1) In this Part:
Annex II means Annex II to the Convention.
liquid substance does not include oil.
mixture includes ballast water, tank washings and other residues.
oil has the same meaning as it has in Part II.
(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 Categories of noxious liquid substances
(1) The regulations may declare that a liquid substance specified in the regulations shall, for the purposes of this Act, be deemed to be referred to in Appendix II to Annex II and to be categorized in a category specified in the regulations, being Category A, B, C or D.
(2) Where, in accordance with subsection (1), the regulations declare that a liquid substance shall be deemed to be referred to in Appendix II to Annex II and to be categorized in Category A, the regulations shall declare that, for the purposes of this Act:
(a) a residual concentration specified in the regulations shall be deemed to be the residual concentration prescribed for that substance in Regulation 5(1) of Annex II; and
(b) a residual concentration specified in the regulations shall be deemed to be the residual concentration prescribed for that substance in Regulation 5(7) of Annex II.
(3) The regulations may declare that a liquid substance referred to in Appendix II to Annex II shall, for the purposes of this Act, be deemed not to be so referred to.
(4) The regulations may declare that a liquid substance referred to in Appendix II to Annex II and categorized in a particular category shall, for the purposes of this Act, be deemed not to be so categorized but to be categorized in a category specified in the regulations.
(1) The regulations may declare that a liquid substance specified in the regulations shall, for the purposes of this Act, be deemed to be referred to in Appendix III to Annex II.
(2) The regulations may declare that a liquid substance referred to in Appendix III to Annex II shall, for the purposes of this Act, be deemed not to be so referred to.
19 Provisional assessment of substances
Where:
(a) a liquid substance is not referred to in Appendix II to Annex II and is not referred to in Appendix III to that Annex; and
(b) the Authority has been notified under section 20 that it is proposed to carry that liquid substance in bulk in a ship;
the Authority may, in writing, declare that, for the purposes of this Act, that liquid substance so carried on that ship shall be taken to be a substance provisionally assessed under the provisions of Regulation 3(4) of Annex II as falling within, and to be a substance in, a category specified in the instrument, being Category A, B, C or D, and that declaration shall have effect accordingly.
20 Notification of proposal to carry certain substances
Where a person who proposes to export or import a liquid substance referred to in paragraph 19(a) proposes to do so by having that liquid substance carried in bulk in a ship, that person or the master of the ship shall, within a prescribed time, notify, in the prescribed manner, a prescribed officer of the proposal and, if a prescribed officer is not so notified of the proposal and the liquid substance is carried as proposed, that person and the master are each guilty of an offence punishable, upon conviction, by a fine not exceeding $20,000.
21 Prohibition of discharge of substances into the sea
(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, 4, 5 and 6 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.
(1B) Subject to subsections (2) and (4) to (12), 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, 4, 5 and 6 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.
(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.
(4) Without limiting the generality of subsection (2), (5) or (12) but subject to subsection (13), where:
(a) the tank of a ship that held a substance in Category A or a mixture containing a substance in Category A has been washed in accordance with regulations under section 26;
(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 5(1) of Annex II and until the tank is empty; and
(c) the residue then remaining in the tank has been subsequently diluted by the addition of a volume of 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 not within a special area;
(e) the discharge is made when the ship is proceeding en route at a speed of:
(i) where the ship is self-propelled, at least 7 knots; or
(ii) where the ship is not self-propelled, at least 4 knots;
(f) the discharge is made below the water line of the ship taking into account the location of the sea-water intakes; and
(g) the discharge is made when the ship is at a distance of not less than 12 nautical miles from the nearest land and is in a depth of water of not less than 25 metres.
Note: The defendant bears an evidential burden of proof of the matters mentioned in this subsection.
(5) Without limiting the generality of subsection (2), (4) or (12) but subject to subsection (13), where:
(a) the tank of a ship that held a substance in Category A or a mixture containing a substance in Category A has been washed in accordance with regulations under section 26;
(b) the resulting residues in the tank have been discharged to a reception facility provided in accordance with Regulation 7 of Annex II by a State bordering a special area 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 5(7) of Annex II and until the tank is empty; and
(c) the residue then remaining in the tank has been subsequently diluted by the addition of a volume of water;
subsection (1B) does not apply to the discharge into the sea of the water containing that residue if the conditions specified in paragraphs (4)(e), (f) and (g) are satisfied in relation to the discharge from the ship.
Note: The defendant bears an evidential burden of proof of the matters mentioned in this subsection.
(6) Without limiting the generality of subsection (2), (7) or (12) but subject to subsection (13), subsection (1B) does not apply to the discharge from a ship of:
(a) a substance in Category B; or
(b) a mixture containing a substance in Category B, not being a mixture containing a substance in Category A;
if the following conditions are satisfied:
(c) the discharge is made when the ship is not within a special area;
(d) the discharge is made when the ship is proceeding en route at a speed of:
(i) where the ship is self-propelled, at least 7 knots; or
(ii) where the ship is not self-propelled, at least 4 knots;
(e) the procedures and arrangements for the discharge have been approved by a prescribed officer, being procedures and arrangements that ensure that the concentration and rate of discharge of the effluent is such that the concentration of the substance in Category B in the wake astern of the ship does not exceed 1 part in 1,000,000 parts;
(f) the maximum quantity of cargo discharged from each tank of the ship (including the associated piping system of the tank) does not exceed the maximum quantity specified in the procedures referred to in paragraph (e), not being a quantity exceeding 1 cubic metre or 1 part in 3,000 parts of the tank capacity in cubic metres, whichever is the greater;
(g) the discharge is made below the water line of the ship, taking into account the location of the sea-water intakes; and
(h) the discharge is made when the ship is at a distance of not less than 12 nautical miles from the nearest land and in a depth of water of not less than 25 metres.
Note: The defendant bears an evidential burden of proof of the matters mentioned in this subsection.
(7) Without limiting the generality of subsection (2), (6) or (12) but subject to subsection (13), where:
(a) the tank of a ship that held:
(i) a substance in Category B; or
(ii) a mixture containing a substance in Category B, not being a mixture containing a substance in Category A;
has been pre-washed in accordance with a procedure approved by a prescribed officer; and
(b) the resulting tank washings have been discharged to a reception facility;
subsection (1B) does not apply to the discharge from the ship of the residue in that tank if the conditions specified in paragraphs (6)(d), (e), (g) and (h) are satisfied in relation to the discharge from the ship.
Note: The defendant bears an evidential burden of proof of the matters mentioned in this subsection.
(8) Without limiting the generality of subsection (2), (9) or (12) but subject to subsection (13), subsection (1B) does not apply to the discharge from a ship of:
(a) a substance in Category C; or
(b) a mixture containing a substance in Category C, not being a mixture containing a substance in Category A or B;
if the following conditions are satisfied:
(c) the discharge is made when the ship is not within a special area;
(d) the discharge is made when the ship is proceeding en route at a speed of:
(i) where the ship is self-propelled, at least 7 knots; or
(ii) where the ship is not self-propelled, at least 4 knots;
(e) the procedures and arrangements for the discharge have been approved by a prescribed officer, being procedures and arrangements that ensure that the concentration and rate of discharge of the effluent is such that the concentration of the substance in Category C in the wake astern of the ship does not exceed 10 parts in 1,000,000 parts;
(f) the maximum quantity of cargo discharged from each tank of the ship (including the associated piping system of the tank) does not exceed the maximum quantity specified in the procedures referred to in paragraph (e), not being a quantity exceeding 3 cubic metres or 1 part in 1,000 parts of the tank capacity in cubic metres, whichever is the greater;
(g) the discharge is made below the water line of the ship, taking into account the location of the sea-water intakes; and
(h) the discharge is made when the ship is at a distance of not less than 12 nautical miles from the nearest land and in a depth of water of not less than 25 metres.
Note: The defendant bears an evidential burden of proof of the matters mentioned in this subsection.
(9) Without limiting the generality of subsection (2), (8) or (12) but subject to subsection (13), subsection (1B) does not apply to the discharge from a ship of:
(a) a substance in Category C; or
(b) a mixture containing a substance in Category C, not being a mixture containing a substance in Category A or B;
if the following conditions are satisfied:
(c) the discharge is made when the ship is proceeding en route at a speed of:
(i) where the ship is self-propelled, at least 7 knots; or
(ii) where the ship is not self-propelled, at least 4 knots;
(d) the procedures and arrangements for the discharge have been approved by a prescribed officer, being procedures and arrangements that ensure that the concentration and rate of discharge of the effluent is such that the concentration of the substance in Category C in the wake astern of the ship does not exceed 1 part in 1,000,000 parts;
(e) the maximum quantity of cargo discharged from each tank of the ship (including the associated piping system of the tank) does not exceed the maximum quantity specified in the procedures referred to in paragraph (d), not being a quantity exceeding 1 cubic metre or 1 part in 3,000 parts of the tank capacity in cubic metres, whichever is the greater;
(f) the discharge is made below the water line of the ship, taking into account the location of the sea-water intakes; and
(g) the discharge is made when the ship is at a distance of not less than 12 nautical miles from the nearest land and in a depth of water of not less than 25 metres.
Note: The defendant bears an evidential burden of proof of the matters mentioned in this subsection.
(10) Without limiting the generality of subsection (2) or (12) but subject to subsection (13), subsection (1B) does not apply to the discharge from a ship of:
(a) a substance in Category D; or
(b) a mixture containing a substance in Category D, not being a mixture containing a substance in Category A, B or C;
if the following conditions are satisfied:
(c) the discharge is made when the ship is proceeding en route at a speed of:
(i) where the ship is self-propelled, at least 7 knots; or
(ii) where the ship is not self-propelled, at least 4 knots;
(d) the substance or mixture has been mixed with water so that the concentration of the substance in Category D in the effluent does not exceed 1 part in 11 parts; and
(e) the discharge occurs when the ship is not less than 12 nautical miles from the nearest land.
Note: The defendant bears an evidential burden of proof of the matters mentioned in this subsection.
(11) Without limiting the generality of subsection (2), 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 a liquid substance, or liquid substances, referred to in Appendix III to Annex II but does not contain any other liquid substance.
Note: The defendant bears an evidential burden of proof of the matters mentioned in this subsection.
(12) Without limiting the generality of subsection (2) or subsections (4) to (10) (inclusive), subsection (1B) does not apply to the discharge from a ship of clean ballast or segregated ballast.
Note: The defendant bears an evidential burden of proof of the matters mentioned in this subsection.
(13) Subsections (4) to (10) (inclusive) 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 Appendix III to Annex II.
Note: The defendant bears an evidential burden of proof of the matters mentioned in this subsection.
(14) Subsections (4) to (10) do not apply to the discharge from a ship of noxious liquid substances, or mixtures containing noxious liquid substances, in the Antarctic Area.
Note: The defendant bears an evidential burden of proof of the matters mentioned in this subsection.
(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 8 of Annex II.
21A Certain liquid substances to be treated as oil
(1) Notwithstanding any other provision of this Act, a prescribed substance in Category C or D, being a substance that has been identified by the Organization as an oil-like substance under criteria developed by the Organization, may be carried on an oil tanker within the meaning of Part II if the following conditions are satisfied:
(a) the oil tanker complies with the provisions of Annex I of the Convention as applicable to product carriers within the meaning of that Annex;
(b) the oil tanker carries an International Oil Pollution Prevention Certificate and its Supplement B, being a certificate that has an endorsement:
(i) that indicates that the ship is permitted to carry oil-like substances in conformity with Regulation 14 of Annex II of the Convention; and
(ii) that specifies the oil-like substance or substances that the tanker is permitted to carry;
(c) the prescribed substance is the substance, or a substance, referred to in subparagraph (b)(ii);
(d) in the case of a substance in Category C—the tanker complies with the ship type 3 damage stability requirements of:
(i) in the case of a tanker constructed on or after 1 July 1986—the International Bulk Chemical Code; or
(ii) in the case of a tanker constructed before 1 July 1986—the Bulk Chemical Code applicable under Regulation 13 of Annex II of the Convention; and
(e) the oil content meter in the oil discharge monitoring and control system of the tanker has been approved by an inspector for use in monitoring the oil-like substances to be carried.
(2) Where, by virtue of subsection (1), a substance is carried on an oil tanker within the meaning of Part II:
(a) section 9 applies in relation to the discharge of the substance as if the substance were oil within the meaning of Part II; and
(b) section 21 does not apply in relation to the discharge of the substance.
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: $50,000.
(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 $50,000.
(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: $20,000.
(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: $20,000.
(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: $20,000.
(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 Appendix III to 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), (9), (10), (11) or (12) 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), (9), (10), (11) or (12) 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.
(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 $20,000.
(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: $20,000.
(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: $20,000.
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 $20,000.
(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.
The regulations may make provision for and in relation to giving effect to Regulation 8 of Annex II.
(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
(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: $50,000.
(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 $50,000.
(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: $20,000.
(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: $20,000.
(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: $20,000.
(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
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.
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 [1]
(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.
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) Subject to subsections (3) to (9) (inclusive), if any discharge of sewage occurs from a ship into the sea, the master and the owner of the ship are each guilty of an offence punishable, upon conviction, by a fine not exceeding $200,000.
(3) Subsection (1) does not apply in relation to the sea near a State, the Jervis Bay Territory or an external Territory to the extent that a law of the State or Territory makes provision giving effect to paragraphs (1)(a) and (b) of Regulation 8 and to Regulation 9 of Annex IV to the Convention in relation to that sea.
(4) Subsection (1) does not apply to the discharge of sewage from a foreign ship unless the discharge occurs in the sea near a State, the Jervis Bay Territory or an external Territory.
(5) Subsection (1) 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.
(6) Without limiting the generality of subsection (5) but subject to subsection (9), subsection (1) 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 Regulation 3 of Annex IV to the Convention—the discharge is made when the ship is at a distance of not less than 4 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