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Protection of the Sea Legislation Amendment Bill 2008

Schedule 1 Amendments implementing the Protocol of 2003 to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992

   

Protection of the Sea (Imposition of Contributions to Oil Pollution Compensation Fund—Customs) Act 1993

1  Title

Omit “ Fund ”, substitute “ Funds ”.

2  Section 1

Omit “ Fund ”, substitute “ Funds ”.

Note:       This item amends the short title of the Act. If another amendment of the Act is described by reference to the Act’s previous short title, that other amendment has effect after the commencement of this item as an amendment of the Act under its amended short title (see section 10 of the Acts Interpretation Act 1901 ).

3  Section 2

Omit “ Fund ”, substitute “ Funds ”.

4  Section 3

Omit “ Fund ”, substitute “ Funds ”.

Note:       The heading to section 3 is altered by omitting “ Fund ” and substituting “ Funds ”.

5  Subsection 4(1)

Omit “ Fund ”, substitute “ Funds ”.

Protection of the Sea (Imposition of Contributions to Oil Pollution Compensation Fund—Excise) Act 1993

6  Title

Omit “ Fund ”, substitute “ Funds ”.

7  Section 1

Omit “ Fund ”, substitute “ Funds ”.

Note:       This item amends the short title of the Act. If another amendment of the Act is described by reference to the Act’s previous short title, that other amendment has effect after the commencement of this item as an amendment of the Act under its amended short title (see section 10 of the Acts Interpretation Act 1901 ).

8  Section 2

Omit “ Fund ”, substitute “ Funds ”.

9  Section 3

Omit “ Fund ”, substitute “ Funds ”.

Note:       The heading to section 3 is altered by omitting “ Fund ” and substituting “ Funds ”.

10  Subsection 4(1)

Omit “ Fund ”, substitute “ Funds ”.

Protection of the Sea (Imposition of Contributions to Oil Pollution Compensation Fund—General) Act 1993

11  Title

Omit “ Fund ”, substitute “ Funds ”.

12  Section 1

Omit “ Fund- ”, substitute “ Funds— ”.

Note:       This item amends the short title of the Act. If another amendment of the Act is described by reference to the Act’s previous short title, that other amendment has effect after the commencement of this item as an amendment of the Act under its amended short title (see section 10 of the Acts Interpretation Act 1901 ).

13  Section 2

Omit “ Fund ”, substitute “ Funds ”.

14  Section 3

Omit “ Fund ”, substitute “ Funds ”.

Note:       The heading to section 3 is altered by omitting “ Fund ” and substituting “ Funds ”.

15  Subsection 4(1)

Omit “ Fund ”, substitute “ Funds ”.

Protection of the Sea (Oil Pollution Compensation Fund) Act 1993

16  Section 1

Omit “ Fund ”, substitute “ Funds ”.

Note:       This item amends the short title of the Act. If another amendment of the Act is described by reference to the Act’s previous short title, that other amendment has effect after the commencement of this item as an amendment of the Act under its amended short title (see section 10 of the Acts Interpretation Act 1901 ).

17  Section 3

Insert:

the 2003 Protocol means the Protocol of 2003 to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 1992 done at London on 16 May 2003.

Note:          The text of the 2003 Protocol is set out in Australian Treaty Series [2005] ATNIF 21. In 2008, the text of the 2003 Protocol in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII Internet site (www.austlii.edu.au).

18  Section 3

Insert:

the Supplementary Fund means The International Oil Pollution Compensation Supplementary Fund 2003 established by the 2003 Protocol.

19  Section 30

After “Director”, insert “of the 1992 Fund”.

Note:       The heading to section 30 is altered by inserting “ of the 1992 Fund ” after “ Director ”.

20  After Chapter 3

Insert:

Chapter 3A The 2003 Protocol

Part 3A.1 Outline of Chapter

   

46A   Simplified outline

             (1)  The following is a simplified outline of this Chapter:

                     (a)  the Supplementary Fund is liable to provide compensation for certain oil pollution damage (Part 3A.4);

                     (b)  certain persons who receive oil in Australian ports and terminals are liable to contribute to the Supplementary Fund (Division 1 of Part 3A.5);

                     (c)  the Australian Maritime Safety Authority is empowered to collect information about contributors and give information to the Supplementary Fund (Division 3 of Part 3A.5).

             (2)  The purpose of the Supplementary Fund is to provide compensation to a person who has established a claim for compensation for certain oil pollution damage and who has not been able to obtain full and adequate compensation for the claim from the 1992 Fund, because the damage does or may exceed the compensation limit for that Fund.

Diagram showing flow of money

 

Part 3A.2 Interpretation

   

46B   Interpretation

                   Unless the contrary intention appears, an expression used in this Chapter and in the 2003 Protocol has the same meaning in this Chapter as in the 2003 Protocol.

Part 3A.3 Legal recognition of the Supplementary Fund

   

46C   Supplementary Fund is a legal person

                   For the purposes of this Chapter, the Supplementary Fund has the same legal personality as a company incorporated under the Corporations Act 2001 and, in particular, may sue and be sued.

46D   Director of the Supplementary Fund is the legal representative of the Supplementary Fund

                   For the purposes of this Chapter, the Director of the Supplementary Fund is the legal representative of the Supplementary Fund.

Part 3A.4 Compensation

   

46E   Certain provisions of the 2003 Protocol to have the force of law

                   The following provisions of the 2003 Protocol have the force of law as part of the law of the Commonwealth:

                     (a)  Article 1;

                     (b)  Article 3;

                     (c)  Article 4;

                     (d)  Article 5, except to the extent that it imposes an obligation on the Assembly;

                     (e)  Article 6;

                      (f)  paragraph 1 of Article 7, to the extent that it applies paragraphs 1, 5 and 6 of Article 7 of the 1992 Convention to actions for compensation brought against the Supplementary Fund in accordance with paragraph 1 of Article 4 of the 2003 Protocol;

                     (g)  paragraphs 2 and 3 of Article 7;

                     (h)  Article 9;

                      (i)  paragraphs 2, 3 and 4 of Article 15, except to the extent that they impose an obligation on the Assembly.

46F   Claims for compensation

             (1)  This section applies to an action against the Supplementary Fund for compensation under Article 4 of the 2003 Protocol.

             (2)  The action may be brought in the Federal Court of Australia or in the Supreme Court of a State or Territory.

             (3)  The court in which an action has been brought may, by order, transfer the proceedings to another court that has jurisdiction with respect to the action.

             (4)  The transfer may be made at any stage of the proceedings.

             (5)  The court may transfer proceedings on application or on its own initiative.

             (6)  If proceedings are transferred from a court:

                     (a)  all documents filed, and money or guarantees lodged, in that court in those proceedings must be transmitted by the Registrar or other proper officer of that court to the Registrar or other proper officer of the court to which the proceedings are transferred; and

                     (b)  the court to which the proceedings are transferred must proceed as if:

                              (i)  the proceedings had originally been instituted in that court; and

                             (ii)  the same proceedings had been taken in that court as had been taken in the court from which the proceedings were transferred.

46G   Supplementary Fund may intervene in proceedings under the Protection of the Sea (Civil Liability) Act 1981

                   The Supplementary Fund may intervene in proceedings for compensation arising under Part II of the Protection of the Sea (Civil Liability) Act 1981 .

46H   Regulations to give effect to Article 8 of the 2003 Protocol

             (1)  The regulations may make provision for and in relation to giving effect to Article 8 of the 2003 Protocol, including:

                     (a)  provision for investing the Supreme Courts of the States with federal jurisdiction and conferring, to the extent that the Constitution permits, jurisdiction on the Supreme Courts of the Territories, with respect to matters arising under regulations made for the purposes of this section; and

                     (b)  provision for investing jurisdiction on the Federal Court of Australia with respect to matters arising under regulations made for the purposes of this section; and

                     (c)  provision for fixing fees to be paid in respect of any matters under regulations made for the purposes of this section.

             (2)  Subsection (1) does not limit the power of a judge or judges of a court to make rules of court with respect to a matter that is not provided for in regulations made for the purposes of that subsection.

Part 3A.5 Contributions to the Supplementary Fund

Division 1 Liability to make contributions

46J   Liability to contribute to the Supplementary Fund

             (1)  Article 10 of the 2003 Protocol, in so far as it relates to ports or terminal installations in Australia, has the force of law as part of the law of the Commonwealth.

             (2)  A person is not liable to contribute to the Supplementary Fund because of this Part unless the contributions are imposed by an Act other than this Act.

             (3)  For the purposes of Article 10 of the 2003 Protocol as applied by subsection (1), a person (the first person ) is an associated person in relation to another person (the second person ) if, and only if:

                     (a)  both the first person and the second person are bodies corporate; and

                     (b)  the first person and the second person are related to each other within the meaning of section 50 of the Corporations Act 2001 .

             (4)  For the purposes of this Part (including a provision of the 2003 Protocol as applied by this Part), a contribution required to be paid because of this Part is payable to the Supplementary Fund as agent of the Commonwealth.

46K   Amount of contributions

                   Paragraphs 2 and 3 of Article 11 (except to the extent that they impose obligations on the Assembly), and Article 18, of the 2003 Protocol, in so far as they relate to Australia, have the force of law as part of the law of the Commonwealth.

46L   When contributions are due and payable

                   Contributions required to be paid by a person because of this Part are due and payable on the day ascertained under paragraph 4 of Article 11 of the 2003 Protocol.

Division 2 Recovery of contributions etc.

46M   Late payment penalty

             (1)  If:

                     (a)  any annual contribution payable by a person because of this Part remains unpaid after the time when it became due for payment; and

                     (b)  the Internal Regulations of the 1992 Fund have fixed, or provided for a method of determining, one or more annual interest rates ( IR rates ) in accordance with paragraph 1 of Article 13 of the 1992 Convention;

the person is liable to pay, by way of penalty, an amount ( late payment penalty ). Late payment penalty is calculated at the annual percentage rate equal to whichever of the IR rates is applicable to the person’s circumstances, on the amount unpaid, computed from that time.

             (2)  Late payment penalty is payable to the Supplementary Fund on behalf of the Commonwealth.

46N   Supplementary Fund to be paid amounts equal to amounts of contributions

             (1)  Amounts received, or purporting to be received, under section 46J or 46M must be paid to the Commonwealth.

             (2)  If an amount is paid to the Commonwealth under subsection (1), the Commonwealth must pay to the Supplementary Fund an amount equal to that amount.

             (3)  A payment of an amount to the Supplementary Fund under subsection (2) is subject to the condition that, if the Commonwealth becomes liable to refund the whole or part of that amount, the Supplementary Fund must pay to the Commonwealth an amount equivalent to the amount that the Commonwealth is liable to refund.

             (4)  The Consolidated Revenue Fund is appropriated for the purposes of subsection (2).

46P   Recovery of contributions and late payment penalty

             (1)  The following amounts may be recovered by the Supplementary Fund, on behalf of the Commonwealth, as debts due to the Commonwealth:

                     (a)  contributions that are required to be paid because of this Part and that are due and payable;

                     (b)  late payment penalty that is due and payable.

             (2)  For the purposes of an action or proceeding under subsection (1), liability to costs is to be determined as if the Supplementary Fund were a party to the action or proceeding and the Commonwealth were not a party.

             (3)  The Supplementary Fund is not entitled to recover from the Commonwealth any costs or other expenses it incurs in recovering an amount referred to in subsection (1).

46Q   Regulations relating to recovery of contributions etc.

             (1)  The regulations may make provision for and in relation to the following:

                     (a)  the methods by which contributions required to be paid because of this Part may be paid;

                     (b)  the methods by which late payment penalty may be paid;

                     (c)  refunds of, or of overpayments of, contributions.

             (2)  Without limiting paragraphs (1)(a) and (b), regulations made for the purposes of those paragraphs may make provision for and in relation to the making of payments using electronic funds transfer systems.

Division 3 Record-keeping and returns etc.

46R   Authority to inform Supplementary Fund

             (1)  Article 13, paragraph 1 of Article 15, and Article 20 of the 2003 Protocol, in so far as they relate to Australia, have the force of law as part of the law of the Commonwealth.

             (2)  For the purposes of the following provisions of the 2003 Protocol:

                     (a)  Article 13; and

                     (b)  paragraph 1 of Article 15; and           

                     (c)  Article 20, in so far as it relates to annual communications made after the instrument referred to in paragraph 4 of Article 19 is deposited;

as so having the force of law, an obligation imposed on Australia is taken to be imposed on the Authority.

             (3)  The Authority may inform the Supplementary Fund of such additional matters relating to contributions as the Authority considers appropriate.

46S   Record-keeping and returns etc.

             (1)  The regulations may make provision for and in relation to requiring a person:

                     (a)  to keep and retain records, where the records are relevant to ascertaining the person’s liability to make contributions required to be paid because of this Part; and

                     (b)  to give information and returns to the Authority, where the information or returns are relevant to ascertaining a person’s liability to make contributions required to be paid because of this Part; and

                     (c)  to:

                              (i)  produce documents to the Authority; or

                             (ii)  make copies of documents and give the copies to the Authority;

                            where the documents are relevant to ascertaining a person’s liability to make contributions required to be paid because of this Part.

             (2)  The regulations may provide that information or returns given to the Authority in accordance with a requirement covered by paragraph (1)(b) must be verified by statutory declaration.

             (3)  A person is entitled to be paid by the Authority reasonable compensation for making copies in the course of complying with a requirement covered by subparagraph (1)(c)(ii).

             (4)  A person is not excused from giving information or a return or producing a document or a copy of a document under regulations made for the purposes of this Division on the ground that the information or return or the production of the document or copy might tend to incriminate the person or expose the person to a penalty. However:

                     (a)  giving the information or return or producing the document or copy; or

                     (b)  any information, return, document or thing obtained as a direct or indirect consequence of giving the information or return or producing the document or copy;

is not admissible in evidence against the person in:

                     (c)  criminal proceedings other than proceedings under, or arising out of, section 46R or 46S; or

                     (d)  proceedings for recovery of an amount of late payment penalty.

46T   Failure to give information or returns

             (1)  A person commits an offence if:

                     (a)  the person is required under regulations made for the purposes of this Division to give any information or return to the Authority; and

                     (b)  the person engages in conduct; and

                     (c)  the person’s conduct contravenes the requirement.

Penalty:  300 penalty units.

             (2)  Strict liability applies to paragraph (1)(a).

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

             (3)  In this section:

engage in conduct means:

                     (a)  do an act; or

                     (b)  omit to perform an act.

46U   False information or returns

                   A person must not, in purported compliance with regulations made for the purposes of this Division, intentionally give information or a return that, to the person’s knowledge, is false or misleading in a material particular.

Penalty:  500 penalty units.

21  Chapter 4 (heading)

Repeal the heading, substitute:

Chapter 4 Miscellaneous

22  Before section 47

Insert:

46V   Treatment of partnerships

             (1)  This Act applies to a partnership as if it were a person, but with the changes set out in this section.

             (2)  An obligation that would otherwise be imposed on the partnership by this Act is imposed on each partner instead, but may be discharged by any of the partners.

             (3)  An offence against this Act that would otherwise be committed by the partnership is taken to have been committed by each partner.

             (4)  A partner does not commit an offence because of subsection (3) if the partner:

                     (a)  does not know of the circumstances that constitute the contravention of the provision concerned; or

                     (b)  knows of those circumstances but takes all reasonable steps to correct the contravention as soon as possible after the partner becomes aware of those circumstances.

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

46W   Treatment of unincorporated associations

             (1)  This Act applies to an unincorporated association as if it were a person, but with the changes set out in this section.

             (2)  An obligation that would otherwise be imposed on the association by this Act is imposed on each member of the association’s committee of management instead, but may be discharged by any of the members.

             (3)  An offence against this Act that would otherwise be committed by the association is taken to have been committed by each member of the association’s committee of management.

             (4)  A member of the association’s committee of management does not commit an offence because of subsection (3) if the member:

                     (a)  does not know of the circumstances that constitute the contravention of the provision concerned; or

                     (b)  knows of those circumstances but takes all reasonable steps to correct the contravention as soon as possible after the member becomes aware of those circumstances.

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