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Maritime Legislation Amendment (Prevention of Pollution from Ships) Bill 2006

Schedule 2 Amendments dealing with prevention of pollution by noxious substances

   

Navigation Act 1912

1  Subsection 267N(2)

Omit “13”, substitute “11”.

2  Subsection 267N(3)

Omit “subsection 267P(1)”, substitute “section 267P”.

3  Section 267P

Repeal the section, substitute:

267P   Regulations to give effect to regulation 11 of Annex II

                   The regulations may make provision for and in relation to giving effect to regulation 11 of Annex II.

4  Subsection 267V(1)

Omit “substance that, for the purposes of Part III of the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 , is a substance in Category A, B, C or D”, substitute “liquid substance”.

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

5  Subsection 3(1)

Insert:

approved form means a form approved by the Authority under section 3A.

6  After section 3

Insert:

3A   Authority may approve form

             (1)  The Authority may, in writing, approve a form for the purposes of a provision of this Act.

             (2)  An approval made under subsection (1) is not a legislative instrument.

7  Subsection 15(1) (definition of liquid substance )

Repeal the definition.

8  Subsection 15(1)

Insert:

Procedures and Arrangements Manual means a manual that:

                     (a)  contains the matters set out in appendix 4 of Annex II; and

                     (b)  is in accordance with the approved form.

9  Sections 17, 18, 19 and 20

Repeal the sections, substitute:

17   Prohibition of carriage of substances that have not been categorized or provisionally assessed

             (1)  A person commits an offence if:

                     (a)  the person engages in conduct; and

                     (b)  the conduct results in a liquid substance, or a mixture containing a liquid substance, being carried as cargo or part cargo in bulk on an Australian ship; and

                     (c)  the person is negligent as to causing that result; and

                     (d)  the substance has not been categorized in accordance with regulation 6.1 of Annex II; and

                     (e)  the substance has not been provisionally assessed in accordance with regulation 6.3 of Annex II; and

                      (f)  the substance is being carried while one of the following subparagraphs applies:

                              (i)  the ship is in the sea near a State, the Jervis Bay Territory or an external Territory and there is no law of that State or Territory that makes provision giving effect to regulation 13.1.3 of Annex II in relation to that sea;

                             (ii)  the ship is in the exclusive economic zone;

                            (iii)  the ship is beyond the exclusive economic zone.

Penalty:  200 penalty units.

             (2)  The master and the owner of an Australian ship each commit an offence if:

                     (a)  a liquid substance, or a mixture containing a liquid substance, is carried as cargo or part cargo in bulk on the ship; and

                     (b)  the substance has not been categorized in accordance with regulation 6.1 of Annex II; and

                     (c)  the substance has not been provisionally assessed in accordance with regulation 6.3 of Annex II; and

                     (d)  the substance is carried while one of the following subparagraphs applies:

                              (i)  the ship is in the sea near a State, the Jervis Bay Territory or an external Territory and there is no law of that State or Territory that makes provision giving effect to regulation 13.1.3 of Annex II in relation to that sea;

                             (ii)  the ship is in the exclusive economic zone;

                            (iii)  the ship is beyond the exclusive economic zone.

Penalty:  60 penalty units.

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

Note:          For strict liability , see section 6.1 of the Criminal Code .

             (4)  In this section:

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

10  Subparagraph 21(1)(c)(i)

Omit “Regulations 3, 4, 5 and 6”, substitute “regulations 3, 6 and 13”.

11  Subsection 21(1B)

Omit “(12)”, substitute “(11)”.

12  Subparagraph 21(1B)(b)(i)

Omit “Regulations 3, 4, 5 and 6”, substitute “regulations 3, 6 and 13”.

13  Subsections 21(4) to (15)

Repeal the subsections, substitute:

Substance in Category X

             (4)  Subject to subsection (12), if:

                     (a)  the tank of a ship that held a substance in Category X or a mixture containing a substance in Category X has been:

                              (i)  emptied to the maximum extent in accordance with procedures in the Procedures and Arrangements Manual; and

                             (ii)  washed in accordance with regulations made for the purposes of section 26; and

                     (b)  the resulting residues in the tank have been discharged to a reception facility until the concentration of that substance in the effluent to that facility is, in the opinion of an inspector, at or below the residual concentration prescribed for that substance in regulation 13.6.1 of Annex II and until the tank is empty; and

                     (c)  the residue then remaining in the tank has been subsequently diluted with water;

subsection (1B) does not apply to the discharge from the ship of the water containing that residue if the following conditions are satisfied:

                     (d)  the discharge is made when the ship is proceeding en route at a speed of:

                              (i)  at least 7 knots, if the ship is self-propelled; or

                             (ii)  at least 4 knots, if the ship is not self-propelled;

                     (e)  the discharge is made below the ship’s waterline through the ship’s underwater discharge outlets at a rate not exceeding the maximum rate for which each underwater discharge outlet is designed;

                      (f)  the discharge is made when the ship is at least 12 nautical miles from the nearest land and is in water at least 25 metres deep.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (4) (see subsection 13.3(3) of the Criminal Code ).

High-viscosity or solidifying substance in Category Y

             (5)  Subject to subsection (12), if:

                     (a)  the tank of a ship that held:

                              (i)  a high-viscosity or solidifying substance in Category Y; or

                             (ii)  a mixture containing a high-viscosity or solidifying substance in Category Y (except a mixture containing a substance in Category X);

                            has been:

                            (iii)  emptied to the maximum extent in accordance with procedures in the Procedures and Arrangements Manual; and

                            (iv)  washed in accordance with regulations made for the purposes of section 26; and

                     (b)  the resulting residues in the tank have been discharged to a reception facility until the tank is empty; and

                     (c)  the residue then remaining in the tank has been subsequently diluted with water;

subsection (1B) does not apply to the discharge into the sea of the water containing that residue if the following conditions are satisfied:

                     (d)  the discharge is made when the ship is proceeding en route at a speed of:

                              (i)  at least 7 knots, if the ship is self-propelled; or

                             (ii)  at least 4 knots, if the ship is not self-propelled;

                     (e)  the discharge is made below the ship’s waterline through the ship’s underwater discharge outlets at a rate not exceeding the maximum rate for which each underwater discharge outlet is designed;

                      (f)  the discharge is made when the ship is at least 12 nautical miles from the nearest land and is in water at least 25 metres deep.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (5) (see subsection 13.3(3) of the Criminal Code ).

Other substances in Category Y

             (6)  Subject to subsection (12), if the tank of a ship that held:

                     (a)  a substance in Category Y (except a substance in Category Y referred to in subsection (5)); or

                     (b)  a mixture containing a substance in Category Y (except a substance in Category Y referred to in subsection (5)) except a mixture containing a substance in Category X;

has been emptied to the maximum extent in accordance with the procedures in the Procedures and Arrangements Manual, subsection (1B) does not apply to the discharge into the sea of any residue of that substance or mixture if the following conditions are satisfied:

                     (c)  the discharge is made when the ship is proceeding en route at a speed of:

                              (i)  at least 7 knots, if the ship is self-propelled; or

                             (ii)  at least 4 knots, if the ship is not self-propelled;

                     (d)  the discharge is made below the ship’s waterline through the ship’s underwater discharge outlets at a rate not exceeding the maximum rate for which each underwater discharge outlet is designed;

                     (e)  the discharge is made when the ship is at least 12 nautical miles from the nearest land and is in water at least 25 metres deep.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (6) (see subsection 13.3(3) of the Criminal Code ).

Substances in Category Z—ship constructed before 1 January 2007

             (7)  Subject to subsection (12), if:

                     (a)  a ship was constructed before 1 January 2007; and

                     (b)  the ship’s tank held a substance in Category Z or a mixture containing a substance in Category Z; and

                     (c)  the tank has been emptied to the maximum extent in accordance with the procedures in the Procedures and Arrangements Manual;

subsection (1B) does not apply to the discharge into the sea of any residue of that substance or mixture if the following conditions are satisfied:

                     (d)  the discharge is made when the ship is proceeding en route at a speed of:

                              (i)  at least 7 knots, if the ship is self-propelled; or

                             (ii)  at least 4 knots, if the ship is not self-propelled;

                     (e)  the discharge is made when the ship is at least 12 nautical miles from the nearest land and is in water at least 25 metres deep.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (7) (see subsection 13.3(3) of the Criminal Code ).

Substances in Category Z—ship constructed on or after 1 January 2007

             (8)  Subject to subsection (12), if:

                     (a)  a ship is constructed on or after 1 January 2007; and

                     (b)  the ship’s tank held a substance in Category Z or a mixture containing a substance in Category Z; and

                     (c)  the tank has been emptied to the maximum extent in accordance with the procedures in the Procedures and Arrangements Manual;

subsection (1B) does not apply to the discharge into the sea of any residue of that substance or mixture if the following conditions are satisfied:

                     (d)  the discharge is made when the ship is proceeding en route at a speed of:

                              (i)  at least 7 knots, if the ship is self-propelled; or

                             (ii)  at least 4 knots, if the ship is not self-propelled;

                     (e)  the discharge is made below the ship’s waterline through the ship’s underwater discharge outlets at a rate not exceeding the maximum rate for which each underwater discharge outlet is designed;

                      (f)  the discharge is made when the ship is at least 12 nautical miles from the nearest land;

                     (g)  the discharge is made when the ship is in water at least 25 metres deep.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (8) (see subsection 13.3(3) of the Criminal Code ).

             (9)  On application to the Authority in the approved form, the Authority may, in accordance with the regulations, waive the condition in paragraph (8)(f). The Authority must give written notice of a waiver to the applicant. The notice must specify the particular ship, substance in Category Z, and prescribed voyage, for which the condition is waived.

Discharge of bilge water etc.

           (10)  Subsection (1B) does not apply to the discharge from a ship of bilge water, or of a mixture resulting from tank cleaning or de-ballasting operations, that contains one or more liquid substances referred to in regulation 6.1.4 of Annex II but does not contain any other liquid substance.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (10) (see subsection 13.3(3) of the Criminal Code ).

Discharge of clean ballast or segregated ballast

           (11)  Subsection (1B) does not apply to the discharge from a ship of clean ballast or segregated ballast.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (11) (see subsection 13.3(3) of the Criminal Code ).

Subsections (4) to (9) do not apply to a mixture that contains no noxious liquid substance

           (12)  Subsections (4) to (9) do not apply in relation to a mixture that contains a liquid substance that is neither a noxious liquid substance nor a liquid substance referred to in regulation 6.1.4 of Annex II.

Subsections (4) to (9) do not apply to discharges in Antarctic Area

           (13)  Subsections (4) to (9) do not apply to the discharge from a ship of noxious liquid substances, or mixtures containing noxious liquid substances, in the Antarctic Area.

No limitations on generality of subsections

           (14)  Nothing in subsections (2) to (11) limits the generality of any of those subsections.

Inspector

           (15)  In this section:

inspector includes a surveyor appointed or authorized by the Government of a country that is a Party to the Convention for the purpose of implementing regulation 16 of Annex II.

Note 1:    The following heading to subsection 21(1) is inserted “ Ordinary offence ”.

Note 2:    The following heading to subsection 21(1B) is inserted “ Strict liability offence ”.

Note 3:    The following heading to subsection 21(2) is inserted “ Exception for emergencies ”.

14  Section 21A

Repeal the section, substitute:

21A   Procedures and Arrangements Manual

             (1)  The master and the owner of an Australian ship each commit an offence if:

                     (a)  a chemical tanker construction certificate under Division 12A of Part IV of the Navigation Act 1912 is in force in respect of the ship; and

                     (b)  the ship does not have on board a copy of the Procedures and Arrangements Manual written in English.

Penalty:  60 penalty units.

             (2)  The master and the owner of a foreign ship each commit an offence if:

                     (a)  a chemical tanker construction certificate under Division 12A of Part IV of the Navigation Act 1912 is in force in respect of the ship; and

                     (b)  the ship does not have on board:

                              (i)  a copy of the Procedures and Arrangements Manual written in the official language, or one of the official languages, of the country whose flag the ship is entitled to fly; and

                             (ii)  if none of those languages is English, Spanish or French—a translation of the Procedures and Arrangements Manual into one of those languages.

Penalty:  60 penalty units.

             (3)  An offence against subsection (1) or (2) is an offence of strict liability.

Note:          For strict liability , see section 6.1 of the Criminal Code .

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

Omit “Appendix III to”, substitute “regulation 6.1.4 of”.

16  Subsection 22(10) (paragraphs (a) and (b) of the definition of prescribed incident )

Omit “(9), (10), (11) or (12)”, substitute “(10) or (11)”.

17  Section 26

Omit “Regulation 8”, substitute “regulations 13 and 16”.