Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
International Maritime Conventions Legislation Amendment Bill 2001
Schedule 3 Prevention of pollution from ships

   

Protection of the Sea (Prevention of Pollution from Ships) Act 1983

1  Subsection 3(1) (definition of Antarctic Protocol and note)

Repeal the definition and note, substitute:

Antarctic Protocol means the Protocol on Environmental Protection to the Antarctic Treaty.

2  Subsection 3(1) (after paragraph (a) of the definition of inspector )

Insert:

                    (aa)  is a member or a special member of the Australian Federal Police; or

3  Subsection 3(1) (definition of the 1973 Convention )

Repeal the definition, substitute:

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.

4  Subsection 3(1) (definition of the 1978 Protocol )

Repeal the definition, substitute:

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.

5  Subsections 9(1), (1A) and (1B)

Repeal the subsections, substitute:

             (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)  either of the following applies:

                              (i)  where the discharge occurs into the sea near a State, the Jervis Bay Territory or an external Territory—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)  where the discharge does not occur into the sea near a State, the Jervis Bay Territory or an external Territory or in the exclusive economic zone—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)  either of the following applies:

                              (i)  where the discharge occurs into the sea near a State, the Jervis Bay Territory or an external Territory—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)  where the discharge does not occur into the sea near a State, the Jervis Bay Territory or an external Territory or in the exclusive economic zone—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.

6  Subsection 9(2)

Omit “Subsection (1)”, substitute “Subsection (1B)”.

7  At the end of paragraph 9(2)(c)

Add “or”.

8  Paragraph 9(2)(d)

Omit “damage, other than intentional damage,”, substitute “non-intentional damage”.

9  At the end of subsection 9(2)

Add:

Note:          The defendant bears an evidential burden of proof of the matters mentioned in this subsection.

10  Subsection 9(3)

Repeal the subsection, substitute:

             (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.

11  Subsection 9(4)

Omit “subsection (1)”, substitute “subsection (1B)”.

12  At the end of subsection 9(4)

Add:

Note:          The defendant bears an evidential burden of proof of the matters mentioned in this subsection.

13  Paragraph 9(4A)(b)

Omit “and set out in Schedule 13 to this Act”.

14  Subsection 9(6)

Repeal the subsection.

15  Section 10

Repeal the section, substitute:

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)  either of the following applies:

                              (i)  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;

                             (ii)  the discharge is not made to a reception facility provided in accordance with Regulation 12 of Annex I to the Convention;

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)  either of the following applies:

                              (i)  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;

                             (ii)  the discharge is not made to a reception facility provided in accordance with Regulation 12 of Annex I to the Convention;

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.

16  At the end of subsections 11(1A) and (1B)

Add:

Note:          The defendant bears an evidential burden of proof of the matters mentioned in this subsection.

17  Subsection 11(2)

Repeal the subsection, substitute:

             (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.

18  Paragraph 11(3)(a)

Repeal the paragraph, substitute:

                     (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

19  Subsection 11(4)

Repeal the subsection, substitute:

             (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.

20  Subsection 11(10)

Repeal the subsection, substitute:

           (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.

21  Subsection 12(7) (penalty)

Repeal the penalty, substitute:

Penalty for a contravention of this subsection: 200 penalty units.

22  At the end of subsection 14(3)

Add:

Penalty:  200 penalty units.

23  Subsection 14(4)

Repeal the subsection.

24  At the end of Part II

Add:

14A   Power to require discharge of oil or oily mixture at a reception facility

             (1)  A prescribed officer may, if he or she is of the opinion that it is reasonable to do so, 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.

             (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.

25  Subsections 17(1) and (2)

Omit “designated”, substitute “referred to”.

26  Paragraph 17(2)(a)

Omit “column III of that Appendix”, substitute “Regulation 5(1) of Annex II”.

27  Paragraph 17(2)(b)

Omit “column IV of that Appendix”, substitute “Regulation 5(7) of Annex II”.

28  Subsections 17(3) and (4)

Omit “designated” (wherever occurring), substitute “referred to”.

29  Section 18

Omit “listed” (wherever occurring), substitute “referred to”.

30  Paragraph 19(a)

Omit “designated”, substitute “referred to”.

31  Paragraph 19(a)

Omit “listed”, substitute “referred to”.

32  Section 19

Omit “3(4) to Annex II”, substitute “3(4) of Annex II”.

33  Subsections 21(1), (1A) and (1B)

Repeal the subsections, substitute:

             (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)  either of the following applies:

                              (i)  where the discharge occurs into the sea near a State, the Jervis Bay Territory or an external Territory—there is no law of that State or Territory that makes provision giving effect to Regulations 3, 4, 5 and 6 of Annex II in relation to that sea;

                             (ii)  where the discharge does not occur into the sea near a State, the Jervis Bay Territory or an external Territory or in the exclusive economic zone—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)  either of the following applies:

                              (i)  where the discharge occurs into the sea near a State, the Jervis Bay Territory or an external Territory—there is no law of that State or Territory that makes provision giving effect to Regulations 3, 4, 5 and 6 of Annex II in relation to that sea;

                             (ii)  where the discharge does not occur into the sea near a State, the Jervis Bay Territory or an external Territory or in the exclusive economic zone—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.

34  Subsection 21(2)

Omit “Subsection (1)”, substitute “Subsection (1B)”.

35  Paragraph 21(2)(d)

Omit “damage, other than intentional damage,”, substitute “non-intentional damage”.

36  At the end of subsection 21(2)

Add:

Note:          The defendant bears an evidential burden of proof of the matters mentioned in this subsection.

37  Subsection 21(3)

Repeal the subsection, substitute:

             (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.

38  Paragraph 21(4)(b)

Omit “column III of Appendix II to”, substitute “Regulation 5(1) of”.

39  Subsection 21(4)

Omit “subsection (1)”, substitute “subsection “(1B)”.

40  At the end of subsection 21(4)

Add:

Note:          The defendant bears an evidential burden of proof of the matters mentioned in this subsection.

41  Paragraph 21(5)(b)

Omit “column IV of Appendix II to”, substitute “Regulation 5(7) of”.

42  Subsection 21(5)

Omit “subsection (1)”, substitute “subsection “(1B)”.

43  At the end of subsection 21(5)

Add:

Note:          The defendant bears an evidential burden of proof of the matters mentioned in this subsection.

44  Subsection 21(6)

Omit “subsection (1)”, substitute “subsection “(1B)”.

45  At the end of subsection 21(6)

Add:

Note:          The defendant bears an evidential burden of proof of the matters mentioned in this subsection.

46  Subsection 21(7)

Omit “subsection (1)”, substitute “subsection “(1B)”.

47  At the end of subsection 21(7)

Add:

Note:          The defendant bears an evidential burden of proof of the matters mentioned in this subsection.

48  Subsection 21(8)

Omit “subsection (1)”, substitute “subsection “(1B)”.

49  At the end of subsection 21(8)

Add:

Note:          The defendant bears an evidential burden of proof of the matters mentioned in this subsection.

50  Subsection 21(9)

Omit “subsection (1)”, substitute “subsection “(1B)”.

51  At the end of subsection 21(9)

Add:

Note:          The defendant bears an evidential burden of proof of the matters mentioned in this subsection.

52  Subsection 21(10)

Omit “subsection (1)”, substitute “subsection “(1B)”.

53  At the end of subsection 21(10)

Add:

Note:          The defendant bears an evidential burden of proof of the matters mentioned in this subsection.

54  Subsection 21(11)

Omit “subsection (1)”, substitute “subsection “(1B)”.

55  Subsection 21(11)

Omit “listed”, substitute “referred to”.

56  At the end of subsection 21(11)

Add:

Note:          The defendant bears an evidential burden of proof of the matters mentioned in this subsection.

57  Subsection 21(12)

Omit “subsection (1)”, substitute “subsection “(1B)”.

58  At the end of subsection 21(12)

Add:

Note:          The defendant bears an evidential burden of proof of the matters mentioned in this subsection.

59  Subsection 21(13)

Omit “listed”, substitute “referred to”.

60  At the end of subsection 21(13)

Add:

Note:          The defendant bears an evidential burden of proof of the matters mentioned in this subsection.

61  Subsection 21(14)

Repeal the subsection, substitute:

           (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.

62  At the end of subsections 22(1A) and (1B)

Add:

Note:          The defendant bears an evidential burden of proof of the matters mentioned in this subsection.

63  Subsection 22(2)

Repeal the subsection, substitute:

             (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.

64  Paragraph 22(3)(a)

Repeal the paragraph, substitute:

                     (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

65  Subsection 22(4)

Repeal the subsection, substitute:

             (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.

66  Subsection 22(10) (definition of liquid substance )

Omit “listed”, substitute “referred to”.

67  Subsection 22(10) (definition of prescribed incident )

Repeal the definition, substitute:

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.

68  Subsection 23(8) (penalty)

Repeal the penalty, substitute:

Penalty for a contravention of this subsection: 200 penalty units.

69  At the end of subsection 25(3)

Add:

Penalty:  200 penalty units.

70  Subsection 25(4)

Repeal the subsection.

71  At the end of Part III

Add:

26AA   Power to require discharge of a liquid substance or a mixture containing a liquid substance at a reception facility

             (1)  A prescribed officer may, if he or she is of the opinion that it is reasonable to do so, 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.

             (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.

72  Subsections 26AB(1), (3) and (4)

Repeal the subsections, substitute:

             (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)  either of the following applies:

                              (i)  where the jettisoning occurs into the sea near a State, the Jervis Bay Territory or an external Territory—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)  where the jettisoning does not occur into the sea near a State, the Jervis Bay Territory or an external Territory or in the exclusive economic zone—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)  either of the following applies:

                              (i)  where the jettisoning occurs into the sea near a State, the Jervis Bay Territory or an external Territory—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)  where the jettisoning does not occur into the sea near a State, the Jervis Bay Territory or an external Territory or in the exclusive economic zone—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.

73  Subsection 26AB(5)

Omit “Subsection (1) does not apply to the discharge”, substitute “Subsection (3) does not apply to the jettisoning”.

74  At the end of subsection 26AB(5)

Add:

Note:          The defendant bears an evidential burden of proof of the matters mentioned in this subsection.

75  Subsection 26AB(6)

Omit “subsection (1)” (first occurring), substitute “subsection (3)”.

76  Subsection 26AB(6)

Omit “subsection (1)” (last occurring), substitute “that subsection”.

77  Subsection 26AB(6)

Omit “discharged by jettisoning”, substitute “jettisoned”.

78  At the end of subsection 26AB(6)

Add:

Note:          The defendant bears an evidential burden of proof of the matters mentioned in this subsection.

79  Subsection 26AB(7)

Repeal the subsection.

80  At the end of subsections 26B(1) and (2)

Add:

Note:          The defendant bears an evidential burden of proof of the matters mentioned in this subsection.

81  Subsection 26B(4)

Repeal the subsection, substitute:

             (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.

82  Paragraph 26B(5)(a)

Repeal the paragraph, substitute:

                     (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

83  Subsection 26B(6)

Repeal the subsection, substitute:

             (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.

84  At the end of subsection 26B(10A)

Add “or (3)”.

85  Subsection 26B(11)

Repeal the subsection, substitute:

           (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.

86  Subsections 26BC(1) and (2)

Repeal the subsections, substitute:

             (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.

87  Subsection 26BC(3)

Omit “Subsection (1)”, substitute “Subsection (2A)”.

88  At the end of subsection 26BC(3)

Add:

Note:          The defendant bears an evidential burden of proof of the matters mentioned in this subsection.

89  Subsection 26BC(4)

Omit “subsection (1)”, substitute “subsection (2A)”.

90  At the end of subsection 26BC(4)

Add:

Note:          The defendant bears an evidential burden of proof of the matters mentioned in this subsection.

91  Subsection 26BC(5)

Repeal the subsection.

92  Subsections 26D(1), (3) and (4)

Repeal the subsections, substitute:

             (1)  If:

                     (a)  a person engages in conduct that causes a discharge of sewage from a ship into the sea; and

                     (b)  the person is reckless or negligent as to causing the discharge by that conduct; and

                     (c)  either of the following applies:

                              (i)  where the discharge occurs into the sea near a State, the Jervis Bay Territory or an external Territory—there is no law of that State or Territory that 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;

                             (ii)  where the discharge does not occur into the sea near a State, the Jervis Bay Territory or an external Territory or in the exclusive economic zone—the ship is an Australian ship;

the person commits an offence punishable, on conviction, by a fine not exceeding 2,000 penalty units.

             (2)  In subsection (1):

engage in conduct has the same meaning as in the Criminal Code .

             (3)  Subject to subsections (5) to (9), if:

                     (a)  sewage is discharged from a ship into the sea; and

                     (b)  either of the following applies:

                              (i)  where the discharge occurs into the sea near a State, the Jervis Bay Territory or an external Territory—there is no law of that State or Territory that 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;

                             (ii)  where the discharge does not occur into the sea near a State, the Jervis Bay Territory or an external Territory or in the exclusive economic zone—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.

93  Subsection 26D(5)

Omit “Subsection (1)”, substitute “Subsection (3)”.

94  At the end of subsection 26D(5)

Add:

Note:          The defendant bears an evidential burden of proof of the matters mentioned in this subsection.

94A  After subsection 26D(5)

Insert:

          (5A)  For the purposes of this section, damage to a ship or to its equipment does not include:

                     (a)  deterioration resulting from failure to maintain the ship or equipment; or

                     (b)  defects that develop during the normal operation of the ship or equipment.

95  Subsection 26D(6)

Omit “subsection (1)”, substitute “subsection (3)”.

96  At the end of subsection 26D(6)

Add:

Note:          The defendant bears an evidential burden of proof of the matters mentioned in this subsection.

97  Subsection 26D(7)

Omit “subsection (1)”, substitute “subsection (3)”.

98  At the end of subsection 26D(7)

Add:

Note:          The defendant bears an evidential burden of proof of the matters mentioned in this subsection.

99  Subsection 26D(8)

Omit “subsection (1)”, substitute “subsection (3)”.

100  At the end of subsection 26D(8)

Add:

Note:          The defendant bears an evidential burden of proof of the matters mentioned in this subsection.

101  Subsection 26D(9)

Omit “subsection (1)”, substitute “subsection (3)”.

102  Paragraph 26D(9)(c)

Omit “applies”, substitute “apply”.

103  Paragraph 26D(9)(d)

Omit “does not apply”, substitute “do not apply”.

104  Subsection 26D(10)

Repeal the subsection.

105  After section 26D

Insert:

26DAA   Power to require discharge of sewage at a reception facility

             (1)  A prescribed officer may, if he or she is of the opinion that it is reasonable to do so, require the owner or master of a ship, by written notice given to the owner or master, as the case may be, to cause a specified quantity of sewage to be discharged within a specified period from the ship to a specified facility that is suitable to receive that quantity of sewage.

             (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.

106  After section 26E

Insert:

26EAA   Overseas voyages

                   For the purposes of this Part:

                     (a)  overseas voyage has the same meaning as it has in the Navigation Act 1912 except that a voyage of an Australian fishing vessel (being a ship that is regularly engaged in making voyages from a port or ports in Queensland) beginning at a port in that State and ending at the same port or another port in that State is not to be taken to be an overseas voyage merely because, as an incidental part of its fishing operations on that voyage, the ship calls at a port or ports in Papua New Guinea; and

                     (b)  Australian fishing vessel has the same meaning as in the Navigation Act 1912 .

107  Subsections 26F(1), (3) and (4)

Repeal the subsections, substitute:

             (1)  If:

                     (a)  a person engages in conduct that causes a disposal of garbage from a ship into the sea; and

                     (b)  the person is reckless or negligent as to causing the disposal by that conduct; and

                     (c)  either of the following applies:

                              (i)  where the disposal occurs into the sea near a State, the Jervis Bay Territory or an external Territory—there is no law of that State or Territory that makes provision giving effect to Regulations 3, 5 and 6 of Annex V to the Convention in relation to that sea;

                             (ii)  where the disposal does not occur into the sea near a State, the Jervis Bay Territory or an external Territory or in the exclusive economic zone—the ship is an Australian ship;

the person commits an offence punishable, on conviction, by a fine not exceeding 2,000 penalty units.

             (2)  In subsection (1):

engage in conduct has the same meaning as in the Criminal Code .

             (3)  Subject to subsections (5) to (11), if:

                     (a)  there is a disposal of garbage from a ship into the sea; and

                     (b)  either of the following applies:

                              (i)  where the disposal occurs into the sea near a State, the Jervis Bay Territory or an external Territory—there is no law of that State or Territory that makes provision giving effect to Regulations 3, 5 and 6 of Annex V to the Convention in relation to that sea;

                             (ii)  where the disposal does not occur into the sea near a State, the Jervis Bay Territory or an external Territory or in the exclusive economic zone—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.

108  Subsection 26F(5)

Omit “Subsection (1)”, substitute “Subsection (3)”.

109  At the end of subsection 26F(5)

Add:

Note:          The defendant bears an evidential burden of proof of the matters mentioned in this subsection.

110  Subsection 26F(6)

Omit “subsection (1)”, substitute “subsection (3)”.

111  At the end of subsection 26F(6)

Add:

Note:          The defendant bears an evidential burden of proof of the matters mentioned in this subsection.

112  Subsection 26F(7)

Omit “subsection (1)”, substitute “subsection (3)”.

113  At the end of subsection 26F(7)

Add:

Note:          The defendant bears an evidential burden of proof of the matters mentioned in this subsection.

114  Subsection 26F(8)

Omit “subsection (1)”, substitute “subsection (3)”.

115  At the end of subsection 26F(8)

Add:

Note:          The defendant bears an evidential burden of proof of the matters mentioned in this subsection.

116  Subsection 26F(8A)

Omit “subsection (1)”, substitute “subsection (3)”.

117  At the end of subsection 26F(8A)

Add:

Note:          The defendant bears an evidential burden of proof of the matters mentioned in this subsection.

118  Subsection 26F(9)

Omit “subsection (1)”, substitute “subsection (3)”.

119  At the end of subsection 26F(9)

Add:

Note:          The defendant bears an evidential burden of proof of the matters mentioned in this subsection.

119A  After subsection 26F(9)

Insert:

          (9A)  For the purposes of subsection (9), damage to a ship or to its equipment does not include:

                     (a)  deterioration resulting from failure to maintain the ship or equipment; or

                     (b)  defects that develop during the normal operation of the ship or equipment.

120  Subsection 26F(10)

Omit “subsection (1)”, substitute “subsection (3)”.

121  At the end of subsection 26F(10)

Add:

Note:          The defendant bears an evidential burden of proof of the matters mentioned in this subsection.

122  Subsection 26F(11)

Omit “subsection (1)”, substitute “subsection (3)”.

123  Paragraph 26F(11)(c)

Omit “applies”, substitute “apply”.

124  Paragraph 26F(11)(d)

Omit “does not apply”, substitute “do not apply”.

125  Subsection 26F(12)

Repeal the subsection.

126  At the end of Part IIIC

Add:

26FA   Garbage record book

             (1)  This section applies to an Australian ship that:

                     (a)  has a gross tonnage of 400 or more; or

                     (b)  is certified to carry 15 persons or more and is engaged on an overseas voyage.

             (2)  Every ship to which this section applies must carry a garbage record book as required by the regulations.

             (3)  A garbage record book must be in accordance with the appropriate prescribed form with provision made for a signature, in accordance with subsection (8), in relation to each entry made in it and for a signature, in accordance with subsection (7), in relation to each page of it.

             (4)  If a ship does not carry a garbage record book as required by this section, the master and the owner of the ship each commit an offence punishable, upon conviction, by a fine of not more than 50 penalty units.

             (5)  An offence against subsection (4) is an offence of strict liability.

             (6)  If a prescribed operation or prescribed occurrence is carried out or occurs in, or in relation to, a ship, the master of the ship must make, without delay, appropriate entries in accordance with subsection (8) in the ship’s garbage record book, or cause appropriate entries in accordance with that subsection to be made, as soon as is practicable in the circumstances, in that book.

Penalty:  200 penalty units.

             (7)  If a page of a ship’s garbage record book is completed, the master of the ship must, as soon as is practicable in the circumstances, sign the page.

Penalty:  50 penalty units.

             (8)  An entry in a ship’s garbage record book:

                     (a)  must be made in the English language; and

                     (b)  must be signed by the master of the ship and, if the entry is made in relation to a prescribed operation, by the officer or other person in charge of the operation.

26FB   Garbage record book to be retained

             (1)  A garbage record book of a ship to which section 26FA applies must be retained in the ship until the end of one year after the day on which the last entry was made in the book and must be readily accessible for inspection at all reasonable times.

             (2)  If a garbage record book is not retained in a ship, or is not readily accessible, in accordance with subsection (1), the master and the owner of the ship are each guilty of an offence punishable, upon conviction, by a fine of not more than 50 penalty units.

             (3)  An offence against subsection (2) is an offence of strict liability.

             (4)  The owner of a ship to which section 26FA applies must cause the ship’s garbage record book to be retained:

                     (a)  in the ship; or

                     (b)  at the owner’s registered office;

until the end of 2 years after the end of the period during which the book is required to be retained in the ship under subsection (1) and must be readily accessible for inspection at all reasonable times.

Penalty:  50 penalty units.

             (5)  The owner of a ship to which section 26FA applies who resides in Australia, or has an office or agent in Australia, may from time to time give to a prescribed officer notice, in writing, of the address of:

                     (a)  the place at which the owner so resides; or

                     (b)  the owner’s office in Australia or, if the owner has more than one office in Australia, the owner’s principal office in Australia; or

                     (c)  the office or place of residence of the owner’s agent or, if the owner’s agent has more than one office in Australia, the principal office in Australia of the owner’s agent.

             (6)  The place or office of which an address is given for the time being under subsection (5) is the registered office of the owner of the ship for the purposes of subsection (4).

             (7)  If the owner of a ship to which section 26FA applies does not reside in Australia and does not have an office or agent in Australia, the owner may deposit a garbage record book of the ship with a prescribed officer and, while the book is so deposited, the book is taken, for the purposes of subsection (4), to be retained at the registered office of the owner.

26FC   Shipboard waste management plan

             (1)  This section applies to an Australian ship that:

                     (a)  has a gross tonnage of 400 or more; or

                     (b)  is certified to carry 15 persons or more.

             (2)  There must be kept on board a ship to which this section applies a shipboard waste management plan written in the working language of the master of, and the officers on board, the ship.

             (3)  A shipboard waste management plan must:

                     (a)  be in accordance with the prescribed form; and

                     (b)  set out the procedures for collecting, storing, processing and disposing of garbage, including the use of the equipment on board the ship for carrying out those procedures; and

                     (c)  designate the person who is in charge of carrying out the plan.

             (4)  Subsection (3) does not prevent other relevant particulars from being included in the shipboard waste management plan.

             (5)  If a ship to which this section applies does not have on board a shipboard waste management plan, the master and the owner of the ship each commit an offence punishable, on conviction, by a fine not exceeding 50 penalty units.

             (6)  An offence against subsection (5) is an offence of strict liability.

26FD  Placards relating to requirements for disposal of garbage

             (1)  There must be displayed, on board a ship of 12 metres or more in length, one or more placards notifying the crew and passengers of the kinds of garbage that may, or may not, be disposed of from the ship, and the conditions to which any such disposal is subject, under section 26F.

             (2)  If the ship is an Australian ship, the placard or each placard must be written in the English language.

             (3)  If:

                     (a)  the ship is a foreign ship that is engaged on a voyage to an Australian port or to an Australian offshore terminal; and

                     (b)  the placard or each placard is written in the official language or one of the official languages of the country whose flag the ship is entitled to fly; and

                     (c)  the language in which the placard or each placard is so written is neither English nor French;

the placard or each placard must also be written in either English or French.

             (4)  If a placard required under this section to be displayed on a ship is not so displayed, the master and the owner of the ship each commit an offence punishable, on conviction, by a fine not exceeding 50 penalty units.

             (5)  An offence against subsection (4) is an offence of strict liability.

26FE   Power to require discharge of garbage at a reception facility

             (1)  A prescribed officer may, if he or she is of the opinion that it is reasonable to do so, require the owner or master of a ship, by written notice given to the owner or master, as the case may be, to cause a specified quantity of garbage to be disposed of within a specified period from the ship to a specified facility that is suitable to receive that quantity of garbage.

             (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.

127  Subsections 28(3) and (4)

Repeal the subsections, substitute:

             (3)  If, in accordance with subsection (2), a court of summary jurisdiction convicts a person of an offence against this Act (other than an offence against a section referred to in subsection (4)), the penalty that the court may impose is a fine not exceeding 80 penalty units.

             (4)  If, in accordance with subsection (2), a court of summary jurisdiction convicts a person of an offence against section 9, 21, 26AB, 26D or 26F, the penalty that the court may impose is a fine not exceeding 200 penalty units.

128  After section 29A

Insert:

29B   Certificates by Minister

                   The Minister may, by writing signed by him or her, certify that a document set out in, or annexed to, the certificate:

                     (a)  sets out the terms of the 1973 Convention; or

                     (b)  sets out the terms of the 1978 Protocol;

and such a certificate is, for all purposes, prima facie evidence of the matters so certified.

129  Paragraph 33(1)(f)

Repeal the paragraph, substitute:

                      (f)  prescribing penalties not exceeding 30 penalty units for a contravention of a provision of the regulations or of any of the orders made under section 34; and

130  Schedules 1 to 14

Repeal the Schedules.