INTERNATIONAL MARITIME CONVENTIONS LEGISLATION AMENDMENT BILL 2001 Explanatory Memorandum

1998-1999-2000-2001

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

HOUSE OF REPRESENTATIVES

INTERNATIONAL MARITIME CONVENTIONS LEGISLATION AMENDMENT BILL 2001

EXPLANATORY MEMORANDUM

(Circulated by authority of the Minister for Transport and Regional Services,
the Honourable John Anderson, MP)

OUTLINE

• the Limitation of Liability for Maritime Claims Act 1989
- with consequential amendments to the Admiralty Act 1988 and to the Navigation Act 1912

• the Submarine Cables and Pipelines Protection Act 1963

Amendments to the Limitation of Liability for Maritime Claims Act 1989 (the LLMC Act)

The LLMC Act implements in Australia the Convention on Limitation of Liability for Maritime Claims, 1976 (the 1976 Liability Convention). In brief, the 1976 Liability Convention allows a shipowner or salvor to limit the total amount of damages they can be required to pay for damages caused by the ship, the shipowner, the salvor or by any employee or agent of the shipowner or salvor in accordance with limits set out in the 1976 Liability Convention.

The 1976 Liability Convention has been amended by the Protocol of 1996 to Amend the Convention on Limitation of Liability for Maritime Claims, 1976 (the 1996 Liability Protocol) to increase liability limits and to provide a simpler method for future increases of liability limits. Schedule 1 of the Bill will amend the LLMC Act to implement the 1996 Liability Protocol.

Amendments to the Protection of the Sea (Powers of Intervention) Act 1981 (the Intervention Act)

The Intervention Act authorises the Australian Maritime Safety Authority (AMSA) to take measures for the purpose of protecting the sea from pollution by oil and other substances discharged from ships.

Section 9 of the Intervention Act relates to the taking of measures under the Protocol Relating to Intervention on the High Seas in Cases of Pollution by Substances other than Oil, 1973 (the 1973 Intervention Protocol).

The Annex to the 1973 Intervention Protocol lists the substances other than oil in respect of which parties to the 1973 Intervention Protocol may take action to prevent pollution. An amended list was adopted by the Marine Environment Protection Committee (MEPC) of the International Maritime Organization (IMO) on 4 July 1991. Schedule 2 of the Bill will amend the Intervention Act to implement a further amended list of substances other than oil adopted by MEPC on 10 July 1996.

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

The Pollution Prevention Act implements the International Convention for the Prevention of Pollution from Ships, 1973 as amended by the Protocol of 1978 (MARPOL 73/78). Schedule 3 of the Bill will make a number of amendments to the Pollution Prevention Act. In summary, those amendments are:

• remove the requirement to include the text of Conventions in Schedules to the Pollution Prevention Act

• implement amendments to MARPOL 73/78 relating to the categorisation of liquid substances and the prevention of pollution by packaged substances

• implement amendments to Annex V of MARPOL 73/78 relating to the disposal of garbage

• provide a power to require the discharge of waste from a ship to a reception facility

• remove the scope for penalties of imprisonment to be prescribed in regulations

(i) provide that any person (rather than just the owner and master) who is responsible for an unlawful discharge from a ship is guilty of an offence

(ii) require the owner of a ship to report an oil pollution incident where the master has not done so

(iii) provide that the owner or master of a ship is guilty of an offence if pollution damage resulted from their negligent acts

(iv) provide that the same penalty applies to the discharge of harmful substances in all parts of the Pollution Prevention Act.

Amendments to the Submarine Cables and Pipelines Protection Act 1963 (the Cables and Pipelines Act)

Schedule 4 of the Bill will amend the Cables and Pipelines Act to reflect the terminology of the 1984 United Nations Convention on the Law of the Sea (UNCLOS) which now applies in Australia rather then the terminology of the superseded 1958 Convention on the High Seas (1958 Convention). The amendments will provide that the Cables and Pipelines Act applies in the exclusive economic zone and the high seas as defined in UNCLOS rather than in the high seas as defined in the 1958 Convention. The change in terminology will have no effect on the application of the Cables and Pipelines Act.

Financial impact statement

List of Abbreviations

1958 Convention	1958 Convention on the High Seas
1973 Intervention Protocol	Protocol Relating to Intervention on the High Seas in Cases of Pollution by Substances other than Oil, 1973
1976 Liability Convention	Convention on Limitation of Liability for Maritime Claims, 1976
1996 Liability Protocol	Protocol of 1996 to Amend the Convention on Limitation of Liability for Maritime Claims, 1976
AFP	Australian Federal Police
AMSA	Australian Maritime Safety Authority
Cables and Pipelines Act	Submarine Cables and Pipelines Protection Act 1963
IMO	International Maritime Organization
Intervention Act	Protection of the Sea (Powers of Intervention) Act 1981
LLMC Act	Limitation of Liability for Maritime Claims Act 1989
MARPOL 73/78	International Convention for the Prevention of Pollution from Ships, 1973 as amended by the Protocol of 1978
MEPC	Marine Environment Protection Committee
Pollution Prevention Act	Protection of the Sea (Prevention of Pollution from Ships) Act 1983
UNCLOS	United Nations Convention on the Law of the Sea

Clause 1: Short Title

Clause 2: Commencement

Except for Schedule 1 and items 92 to 105 of Schedule 3, the proposed Act will commence on the day on which it receives Royal Assent.

Schedule 1 will commence on a day to be fixed by Proclamation. If Schedule 1 has not commenced by Proclamation within the 6 month period beginning on the day on which the 1996 Liability Protocol comes into force in Australia, Schedule 1 will commence on the first day after the end of that 6 month period. The 1996 Liability Protocol will come into effect internationally 90 days after ten countries have indicated their agreement to become parties to it. (As at 28 February 2001, only four countries were parties to the 1996 Liability Protocol.) If Australia is one of those ten counties, then the 1996 Liability Protocol will come into force in Australia at the same time as it comes into force internationally. Otherwise, the 1996 Liability Protocol will come into force in Australia 90 days after Australia indicates its agreement to become a party to it.

Items 92 to 105 of Schedule 3 amend section 26D of the Pollution Prevention Act and add a new section 26DAA. Those sections are contained in Division 2 of Part IIIB of the Pollution Prevention Act. That Division has not yet commenced. The amendments to sections 26D and 26DAA will commence on the day on which Division 2 of Part IIIB commences.

Clause 3: Schedules

Clause 3 is a formal clause indicating that each Act specified in a Schedule to the Bill is amended as set out in the relevant Schedule.

Schedule 1 – Limitation of liability for maritime claims

The purpose of Schedule 1 is to amend the LLMC Act to implement the 1996 Liability Protocol and to make consequential amendments to the Admiralty Act 1988 and to the Navigation Act 1912.

Item 1

Item 1 replaces the existing definition of Limitation Convention in subsection 3(1) of the Admiralty Act to provide that it has the meaning given to the term Convention in the LLMC Act.

Item 2

Item 2 replaces the existing definition of Convention in subsection 3(1) of the LLMC Act to provide that it means the original LLMC Convention as amended by the 1996 Liability Protocol.

Item 3

Item 3 adds the text of the 1996 liability Protocol as a Schedule to the LLMC Act.

Item 4

Item 4 replaces the existing definition of Convention in subsection 59B(1) of the Navigation Act 1912 to provide that it has the same meaning as in the LLMC Act.

Schedule 2 – Taking of measures to protect the sea from pollution by substances discharged from ships

The purpose of Schedule 2 is to amend the Intervention Act to revise the list of substances in respect of which intervention action can be taken for the purpose of protecting the sea from pollution.

Item 1

Item 1 replaces the existing definition of Protocol in subsection 3(1) to add a reference to Resolution MEPC.72(38) adopted by MEPC on 10 July 1996. The effect of this amendment is to revise the list of substances in respect of which intervention action can be taken.

Item 2

Item 2 adds the text of Resolution MEPC.72(38) as a Schedule to the Intervention Act.

Schedule 3 – Prevention of pollution from ships

The purpose of Schedule 3 is to make a number of amendments to the Pollution Prevention Act.

Item 1

Item 1 substitutes the existing definition of Antarctic Protocol in subsection 3(1) to remove the reference to the text of that Protocol (which is currently reproduced in Schedule 12) consequential upon the repeal of Schedule 12 by item 130.

Item 2

Item 2 amends the definition of inspector in subsection 3(1) to include a member or special member of the Australian Federal Police (AFP).

In accordance with section 27, an inspector has a number of powers (including going on board a ship, inspecting any parts of a ship and requiring a person to answer questions) for the purpose of ascertaining whether the Pollution Prevention Act has been complied with and, in the case of a foreign ship, whether MARPOL 73/78 has been complied with or whether a law of a foreign country giving effect to MARPOL 73/78 and applying to the foreign ship has been complied with.

AFP members are routinely appointed as inspectors during investigations into marine pollution incidents. The amendment will reduce administrative procedures at the time of a pollution incident by removing the need for specific appointments of individual AFP members as inspectors.

Item 3

Item 3 replaces the definition of the 1973 Convention in subsection 3(1) to remove the reference to the text of the 1973 Convention (which is currently reproduced in Schedule 1) consequential upon the repeal of Schedule 1 by item 130.

Item 4

Item 4 replaces the definition of the 1978 Protocol in subsection 3(1) to remove the reference to the text of the 1978 Protocol (which is currently reproduced in Schedule 2) and to remove the reference to amendments to the 1978 Protocol (which are currently reproduced in a number of Schedules) consequential upon the repeal of the Schedules by item 130.

Note that the definition of the Convention in subsection 3(1) is unchanged as meaning the 1973 Convention as modified and added to by the 1978 Protocol.

Item 5

Item 5 repeals existing subsections 9(1), (1A) and (1B) and replaces them with new subsections 9(1), (1A), (1B) and (1C). Existing subsection 9(1) provides that the master and owner of a ship are each guilty of an offence if there is a discharge from the ship of oil or an oily mixture into the sea. This is subject to exceptions, including the exception set out in existing subsection 9(1A) (if the discharge occurs in State or territorial waters and the law of the relevant State or Territory gives effect to those parts of MARPOL 73/78 relating to the discharge of oil or an oily mixture) and the exception set out in existing subsection 9(1B) (if the discharge occurs from a foreign ship that is not in State or territorial waters or in the exclusive economic zone).

New subsection 9(1B) is similar to existing subsections 9(1), (1A) and (1B), but, as provided by new subsection 9(1C), the offence by the master and owner of the ship is an offence of strict liability. The maximum penalty is 500 penalty units. Strict liability is imposed to discourage careless non-compliance as well as negligent and reckless breaches.

New subsection 9(1) creates an offence to apply to any person who engages in reckless or negligent conduct that results in the discharge of oil or an oily substance into the sea. The maximum penalty for such a person is 2,000 penalty units.

The offences set out in the new subsections apply to foreign ships under the same conditions as offences apply under the existing subsections. That is, they apply only to foreign ships where an offence is committed in internal waters, the territorial sea or the exclusive economic zone.

Item 6

Item 6 amends existing subsection 9(2) consequential upon amendments made by item 5.

Item 7

Item 7 makes a drafting amendment to existing paragraph 9(2)(c).

Item 8

Item 8 amends existing paragraph 9(2)(d) to change the words “damage, other than intention damage” to “non-intentional damage”.

Item 9

Item 9 adds a Note at the end of subsection 9(2) to make it clear that the defendant bears an evidential burden of proof of the matters mentioned in that subsection.

Item 10

One of the defences (in existing paragraph 9(2)(d)) to a charge of discharging oil or an oily substance is that the discharge was a consequence of damage, other than intentional damage, and all reasonable precautions had been taken to prevent or minimise the escape of oil or an oily mixture after the discovery of the damage or discharge. Under existing subsection 9(3), damage is to be taken to be intentional damage only if the master or owner of the ship acted with intent to cause the damage or acted recklessly and with knowledge that damage would probably result.

In accordance with the change made by item 8, item 10 replaces subsection 9(3) to refer to a defence of “non-intentional damage”. Damage will not be non-intentional damage if the master or owner of the ship acted with intent to cause the damage or acted recklessly and with knowledge that damage would probably result (as in existing subsection 9(3)) or if the damage arose as a result of the negligence of the master or owner of the ship.

Item 11

Item 11 amends existing subsection 9(4) consequential upon amendments made by item 5.

Item 12

Item 12 adds a Note at the end of subsection 9(4) to make it clear that the defendant bears an evidential burden of proof of the matters mentioned in that subsection.

Item 13

Item 13 amends existing paragraph 9(4A)(b), to remove a reference to Schedule 13, consequential upon amendments made by item 130.

Item 14

Item 14 repeals subsection 9(6) consequential upon amendments made by item 5.

Item 15

Item 15 substitutes existing section 10 with a new section 10. Existing section 10 provides that, if oil residues that cannot be discharged from an Australian ship without committing an offence against section 9 or against a State or Territory law are not retained on board the ship, the master and owner are guilty of an offence unless the oil residues have been discharged to a reception facility.

New subsection 10(3) is similar to existing section 10, but, as provided by new subsection 10(4), the offence by the master and owner of the ship is an offence of strict liability with a maximum penalty of 500 penalty units. Strict liability is imposed to discourage careless non-compliance as well as negligent and reckless breaches.

New subsection 10(1) creates an offence to apply to any person who engages in reckless or negligent conduct that results in the discharge of oil residue into the sea where the discharge is an offence against new subsection 9(1) or (1B) under a State or Territory law unless the discharge is made to a reception facility. The maximum penalty for such a person is 2,000 penalty units.

Item 16

Item 16 adds a Note at the end of each of subsections 11(1A) and (1B) to make it clear that the defendant bears an evidential burden of proof of the matters mentioned in those subsections.

Item 17

Item 17 replaces existing subsection 11(2) to provide a consistent drafting style with other parts of section 11. Subsection 11(1) requires the master of a ship to notify the occurrence of a “prescribed incident” (defined in subsection 11(10)) involving oil or an oily mixture.

Existing subsection 11(2) provides that, in a prosecution for an offence of failing to provide notification of the occurrence of a prescribed incident, it is a defence if the master proves that he was unable to provide notification.

New subsection 11(2) provides that the requirement for the master to provide notification of the occurrence of a prescribed incident does not apply if the master was unable to do so. A Note is included at the end of the subsection to make it clear that, in such a case, the defendant bears an evidential burden of proof.

Item 18

Item 18 replaces existing paragraph 11(3)(a). The existing paragraph requires the owner, charterer, manager or operator of the ship, or their agent, to notify the occurrence of a prescribed incidence if the master is unable to do so. New paragraph 11(3)(a) expands this requirement to require notification by the owner, charterer, manager or operator of the ship, or their agent, where the master has failed to provide notification, irrespective of whether or not the master was able to do so.

Item 19 replaces existing subsection 11(4) consequential upon the amendment made by item 18 and to provide a consistent drafting style with other parts of section 11. Subsection 11(4) provides there is no obligation on the owner, charterer, manager or operator of the ship, or their agent, to provide notification of the occurrence of a prescribed incident where the master has not done so if the owner, charterer, manager or operator of the ship, or their agent, was not aware of the incident or neither knew nor suspected that the master had not provided notification.

Item 20

Item 20 amends the definition of prescribed incident for purposes of section 11. Currently, prescribed incident is defined as a discharge from a ship of oil or an oily mixture, other than a discharge authorised by subsection 9(4), or an incident involving the probability of such a discharge.

The amendment adds, in relation to a ship of 15 metres or more in length, an incident involving damage, failure or breakdown that affects the safety of the ship or impairs the safety of navigation of the ship.

Item 21

Item 21 changes the penalty at the end of subsection 12(7) from a dollar amount to the equivalent penalty expressed in penalty units and makes it clear that the penalty applies only to a breach of subsection 12(7) (rather than to the whole of section 12) which requires the master to sign each completed page of a ship’s oil record book. Every Australian oil tanker or other Australian ship of 400 gross tons or more is required to carry an oil record book.

Items 22 and 23

These items repeal subsection 14(4) which sets out a penalty for an offence against subsection 14(3) (which requires an oil record book to be retained for a specified time) and adds the penalty at the foot of subsection 14(3).

Item 24

Item 24 insert new section 14A to give to prescribed officers the power to require, where it is reasonable to do so, oil or an oily mixture to be discharged from a ship into a specified reception facility. One of the circumstances in which this power would be exercised would be if the prescribed officer believed that the ship would need to discharge oil or oily mixture before it reaches its next scheduled port of call.

Items 25 to 31

These items amend sections 17, 18 and 19 to reflect changes in terminology made by IMO to Annex II (Regulations for the Control of Pollution by Noxious Liquid Substances in Bulk) of MARPOL 73/78.

Item 33

Item 33 repeals existing subsections 21(1), (1A) and (1B) and replaces them with new subsections 21(1), (1A), (1B) and (1C). Existing subsection 21(1) provides that the master and owner of a ship are each guilty of an offence if there is a discharge from the ship into the sea of a liquid substance, or a mixture containing a liquid substance, carried in bulk as cargo. This is subject to exceptions, including the exception set out in existing subsection 21(1A) (if the discharge occurs in State or territorial waters and the law of the relevant State or Territory gives effect to relevant parts of MARPOL 73/78) and the exception set out in existing subsection 21(1B) (if the discharge occurs from a foreign ship that is not in State or territorial waters or in the exclusive economic zone).

New subsection 21(1B) is similar to existing subsections 21(1), (1A) and (1B), but, as provided by new subsection 21(1C), the offence by the master and owner of the ship is an offence of strict liability. The maximum penalty is 500 penalty units. Strict liability is imposed to discourage careless non-compliance as well as negligent and reckless breaches.

New subsection 21(1) creates an offence to apply to any person who engages in reckless or negligent conduct that results in the discharge from the ship into the sea of a liquid substance, or a mixture containing a liquid substance, carried in bulk as cargo. The maximum penalty for such a person is 2,000 penalty units.

The offences set out in the new subsections apply to foreign ships under the same conditions as offences apply under the existing subsections. That is, they apply only to foreign ships where an offence is committed in internal waters, the territorial sea or the exclusive economic zone.

Item 34

Item 34 amends existing subsection 21(2) consequential upon amendments made by item 33.

Item 35

Item 35 amends existing paragraph 21(2)(d) to change the words “damage, other than intention damage” to “non-intentional damage”.

Item 36

Item 36 adds a Note at the end of subsection 35(2) to make it clear that the defendant bears an evidential burden of proof of the matters mentioned in that subsection.

Item 36

One of the defences (in existing paragraph 21(2)(d)) to a charge of discharging a liquid substance, or a mixture containing a liquid substance, carried in bulk as cargo is that the discharge was a consequence of damage, other than intentional damage, and all reasonable precautions had been taken to prevent or minimise the escape of the substance or mixture after the discovery of the damage or discharge. Under existing subsection 21(3), damage is to be taken to be intentional damage only if the master or owner of the ship acted with intent to cause the damage or acted recklessly and with knowledge that damage would probably result.

In accordance with the change made by item 35, item 37 replaces subsection 21(3) to refer to a defence of “non-intentional damage”. Damage will not be non-intentional damage if the master or owner of the ship acted with intent to cause the damage or acted recklessly and with knowledge that damage would probably result (as in existing subsection 21(3)) or if the damage arose as a result of the negligence of the master or owner of the ship.

Item 38

Item 38 amends paragraph 21(4)(b) to reflect changes in terminology made by IMO to Annex II (Regulations for the Control of Pollution by Noxious Liquid Substances in Bulk) of MARPOL 73/78.

Item 39

Item 39 amends existing subsection 21(4) consequential upon amendments made by item 33.

Item 40

Item 40 adds a Note at the end of subsection 21(4) to make it clear that the defendant bears an evidential burden of proof of the matters mentioned in that subsection.

These items amend subsection 21(5) to reflect changes in terminology made by IMO to Annex II (Regulations for the Control of Pollution by Noxious Liquid Substances in Bulk) of MARPOL 73/78.

Item 43 adds a Note at the end of subsection 21(5) to make it clear that the defendant bears an evidential burden of proof of the matters mentioned in that subsection.

Item 44

Item 44 amends existing subsection 21(6) consequential upon amendments made by item 33.

Item 45 adds a Note at the end of subsection 21(6) to make it clear that the defendant bears an evidential burden of proof of the matters mentioned in that subsection.

Item 46

Item 46 amends existing subsection 21(7) consequential upon amendments made by item 33.

Item 47 adds a Note at the end of subsection 21(7) to make it clear that the defendant bears an evidential burden of proof of the matters mentioned in that subsection.

Item 48

Item 48 amends existing subsection 21(8) consequential upon amendments made by item 33.

Item 49 adds a Note at the end of subsection 21(8) to make it clear that the defendant bears an evidential burden of proof of the matters mentioned in that subsection.

Item 50

Item 50 amends existing subsection 21(9) consequential upon amendments made by item 33.

Item 51 adds a Note at the end of subsection 21(9) to make it clear that the defendant bears an evidential burden of proof of the matters mentioned in that subsection.

Item 52

Item 52 amends existing subsection 21(10) consequential upon amendments made by item 33.

Item 53 adds a Note at the end of subsection 21(10) to make it clear that the defendant bears an evidential burden of proof of the matters mentioned in that subsection.

Item 54

Item 54 amends existing subsection 21(11) consequential upon amendments made by item 33.

Item 55 amends subsection 21(5) to reflect changes in terminology made by IMO to Annex II (Regulations for the Control of Pollution by Noxious Liquid Substances in Bulk) of MARPOL 73/78.

Item 56 adds a Note at the end of subsection 21(11) to make it clear that the defendant bears an evidential burden of proof of the matters mentioned in that subsection.

Item 57

Item 57 amends existing subsection 21(12) consequential upon amendments made by item 33.

Item 58 adds a Note at the end of subsection 21(12) to make it clear that the defendant bears an evidential burden of proof of the matters mentioned in that subsection.

Item 59

Item 59 amends subsection 21(13) to reflect changes in terminology made by IMO to Annex II (Regulations for the Control of Pollution by Noxious Liquid Substances in Bulk) of MARPOL 73/78.

Item 60 adds a Note at the end of subsection 21(13) to make it clear that the defendant bears an evidential burden of proof of the matters mentioned in that subsection.

Item 61

Item 61 repeals existing subregulation 21(14) which is redundant and inserts a new subregulation 21(14) to provide that exceptions to the prohibition of discharge of a liquid substance, or a mixture containing a liquid substance, carried in bulk as cargo, as set out in subsections 21(4) to (10) do not apply in the Antarctic area.

Item 62 adds a Note at the end of each of subsections 22(1A) and (1B) to make it clear that the defendant bears an evidential burden of proof of the matters mentioned in those subsections.

Item 63

Item 63 replaces existing subsection 22(2) to provide a consistent drafting style with other parts of section 22. Subsection 22(1) requires the master of a ship to notify the occurrence of a “prescribed incident” (defined in subsection 22(10)) involving a liquid substance, or a mixture containing a liquid substance, carried in bulk as cargo.

Existing subsection 22(2) provides that, in a prosecution for an offence of failing to provide notification of the occurrence of a prescribed incident, it is a defence if the master proves that he was unable to provide notification.

New subsection 22(2) provides that the requirement for the master to provide notification of the occurrence of a prescribed incident does not apply if the master was unable to do so. A Note is included at the end of the subsection to make it clear that, in such a case, the defendant bears an evidential burden of proof.

Item 64

Item 64 replaces existing paragraph 22(3)(a). The existing paragraph requires the owner, charterer, manager or operator of the ship, or their agent, to notify the occurrence of a prescribed incidence if the master is unable to do so. New paragraph 22(3)(a) expands this requirement to require notification by the owner, charterer, manager or operator of the ship, or their agent, where the master has failed to provide notification, irrespective of whether or not the master was able to do so.

Item 65 replaces existing subsection 22(4) consequential upon the amendment made by item 64 and to provide a consistent drafting style with other parts of section 22. Subsection 22(4) provides there is no obligation on the owner, charterer, manager or operator of the ship, or their agent, to provide notification of the occurrence of a prescribed incident where the master has not done so if the owner, charterer, manager or operator of the ship, or their agent, was not aware of the incident or neither knew nor suspected that the master had not provided notification.

Item 66

Item 66 amends subsection 22(10) to reflect changes in terminology made by IMO to Annex II (Regulations for the Control of Pollution by Noxious Liquid Substances in Bulk) of MARPOL 73/78.

Item 67

Item 67 amends the definition of prescribed incident for purposes of section 22. Currently, prescribed incident is defined as a discharge from a ship of a liquid substance, or a mixture containing a liquid substance, carried as cargo or part cargo in bulk, not being a discharge to which subsections 21(4) to (12) apply, or an incident involving the probability of such a discharge.

The amendment adds, in relation to a ship of 15 metres or more in length, an incident involving damage, failure or breakdown that affects the safety of the ship or impairs the safety of navigation of the ship.

Item 68

Item 68 changes the penalty at the end of subsection 23(8) from a dollar amount to the equivalent penalty expressed in penalty units and makes it clear that the penalty applies only to a breach of subsection 23(8) (rather than to a breach of the whole of section 23) which requires the master to sign each completed page of a ship’s oil record book. Every Australian ship that carries liquid substances in bulk is required to carry a cargo record book.

Items 69 and 70

These items repeal subsection 25(4) which sets out a penalty for an offence against subsection 25(3) (which requires a cargo record book to be retained for a specified time) and adds the penalty at the foot of subsection 25(3).

Item 71

Item 71 insert new section 26AA to give to prescribed officers the power to require, where it is reasonable to do so, a liquid substance, or a mixture containing a liquid substance, to be discharged from a ship into a specified reception facility. One of the circumstances in which this power would be exercised would be if the prescribed officer believed that the ship would need to discharge the liquid substance, or the mixture containing the liquid substance, before it reaches its next scheduled port of call.

Item 72

Item 72 repeals existing subsections 26AB(1), (3) and (4) and replaces them with new subsections 26AB(1), (2), (3) and (4). Existing subsection 26AB(1) provides that the master and owner of a ship are each guilty of an offence if there is a discharge by jettisoning from the ship into the sea of a harmful substance carried as cargo in packaged form. This is subject to exceptions, including the exception set out in existing subsection 26AB(3) (if the discharge occurs in State or territorial waters and the law of the relevant State or Territory gives effect to those parts of MARPOL 73/78 relating to the discharge of harmful substances carried as cargo in packaged form) and the exception set out in existing subsection 26AB(4) (if the discharge occurs from a foreign ship that is not in State or territorial waters or in the exclusive economic zone).

New subsection 26AB(3) is similar to existing subsections 26AB(1), (3) and (4), but, as provided by new subsection 26AB(4), the offence by the master and owner of the ship is an offence of strict liability. The maximum penalty is 500 penalty units. Strict liability is imposed to discourage careless non-compliance as well as negligent and reckless breaches.

New subsection 26AB(1) creates an offence to apply to any person who engages in reckless or negligent conduct that results in the discharge into the sea of a harmful substance carried as cargo in packaged form. The maximum penalty for such a person is 2,000 penalty units.

The offences set out in the new subsections apply to foreign ships under the same conditions as offences apply under the existing subsections. That is, they apply only to foreign ships where an offence is committed in internal waters, the territorial sea or the exclusive economic zone.

Item 73

Item 73 amends existing subsection 26AB(5) consequential upon amendments made by item 72.

Item 74

Item 74 adds a Note at the end of subsection 26AB(5) to make it clear that the defendant bears an evidential burden of proof of the matters mentioned in that subsection.

Item 75

Item 75 amends existing subsection 26AB(6) consequential upon amendments made by item 72.

Item 76

Item 76 makes a drafting amendment to existing paragraph 26AB(6).

Item 77

Item 77 amends subsection 26AB(6) to reflect changes in terminology made by IMO to Annex III (Regulations for the Prevention of Pollution by Harmful Substances Carried by Sea in Packaged Form) of MARPOL 73/78.

Item 78 adds a Note at the end of subsection 26AB(6) to make it clear that the defendant bears an evidential burden of proof of the matters mentioned in that subsection.

Item 79

Item 79 repeals subsection 26AB(7) consequential upon amendments made by item 72.

Item 80

Item 80 adds a Note at the end of each of subsections 26B(1) and (2) to make it clear that the defendant bears an evidential burden of proof of the matters mentioned in those subsections.

Item 81

Item 81 replaces existing subsection 26B(4) to provide a consistent drafting style with other parts of section 26B. Subsection 26B(3) requires the master of a ship to notify the occurrence of a “prescribed incident” (defined in subsection 26B(11)) involving harmful substances.

Existing subsection 26B(4) provides that, in a prosecution for an offence of failing to provide notification of the occurrence of a prescribed incident, it is a defence if the master proves that he was unable to provide notification.

New subsection 26B(4) provides that the requirement for the master to provide notification of the occurrence of a prescribed incident does not apply if the master was unable to do so. A Note is included at the end of the subsection to make it clear that, in such a case, the defendant bears an evidential burden of proof.

Item 82

Item 82 replaces existing paragraph 26B(5)(a). The existing paragraph requires the owner, charterer, manager or operator of the ship, or their agent, to notify the occurrence of a prescribed incidence if the master is unable to do so. New paragraph 26B(5)(a) expands this requirement to require notification by the owner, charterer, manager or operator of the ship, or their agent, where the master has failed to provide notification, irrespective of whether or not the master was able to do so.

Item 83 replaces existing subsection 26B(6) consequential upon the amendment made by item 82 and to provide a consistent drafting style with other parts of section 26B. Subsection 26B(6) provides there is no obligation on the owner, charterer, manager or operator of the ship, or their agent, to provide notification of the occurrence of a prescribed incident where the master has not done so if the owner, charterer, manager or operator of the ship, or their agent, was not aware of the incident or neither knew nor suspected that the master had not provided notification.

Item 84

Item 84 amends subsection 26B(10A) consequential upon amendments made by item 72.

Item 85

Item 85 amends the definition of prescribed incident for purposes of section 26B. Currently, prescribed incident is defined as a discharge from a ship of a harmful substance, carried as cargo in a packaged form or in a freight container, portable tank or road and rail wagon, not being a discharge because it was washed overboard in accordance with the regulations or orders, or an incident involving the probability of such a discharge.

The amendment adds, in relation to a ship of 15 metres or more in length, an incident involving damage, failure or breakdown that affects the safety of the ship or impairs the safety of navigation of the ship.

Item 86

Item 86 repeals existing subsections 26BC(1) and (2) and replaces them with new subsections 26BC(1), (2), (2A) and (2B). Existing subsection 26BC(1) provides that the master and owner of a ship (other than a ship certified to carry not more than 10 persons) are each guilty of an offence if there is a discharge of untreated sewage from the ship into the sea in the Antarctic Area. This is subject to exceptions, including the exception set out in existing subsection 26BC(2) (if the discharge occurs from a foreign ship that is not in the sea near the Australian Antarctic Area).

New subsection 26BC(2A) is similar to existing subsections 26BC(1) and (2), but, as provided by new subsection 26BC(2B), the offence by the master and owner of the ship is an offence of strict liability. The maximum penalty is 500 penalty units. Strict liability is imposed to discourage careless non-compliance as well as negligent and reckless breaches.

New subsection 26BC(1) creates an offence to apply to any person who engages in reckless or negligent conduct that results in the discharge of untreated sewage from a ship into the sea in the Antarctic Area. The maximum penalty for such a person is 2,000 penalty units.

The offences set out in the new subsections apply to foreign ships under the same conditions as offences apply under the existing subsections. That is, they apply only to foreign ships where an offence is committed in the sea near the Australian Antarctic Area.

Item 87

Item 87 amends existing subsection 26BC(3) consequential upon amendments made by item 88.

Item 88

Item 88 adds a Note at the end of subsection 26BC(3) to make it clear that the defendant bears an evidential burden of proof of the matters mentioned in that subsection.

Item 89

Item 89 amends existing subsection 26BC(4) consequential upon amendments made by item 86.

Item 90

Item 90 adds a Note at the end of subsection 26BC(4) to make it clear that the defendant bears an evidential burden of proof of the matters mentioned in that subsection.

Item 91

Item 91 repeals subsection 26BC(5) consequential upon amendments made by item 86.

Item 92

Item 92 repeals existing subsections 26D(1), (3) and (4) and replaces them with new subsections 26D(1), (2), (3) and (4). Existing subsection 26AB(1) provides that the master and owner of a ship are each guilty of an offence if there is a discharge of sewage from the ship into the sea (other than the sea of the Antarctic Area). This is subject to exceptions, including the exception set out in existing subsection 26D(3) (if the discharge occurs in State or territorial waters and the law of the relevant State or Territory gives effect to those parts of MARPOL 73/78 relating to the discharge of sewage into the sea) and the exception set out in existing subsection 26D(4) (if the discharge occurs from a foreign ship that is not in State or territorial waters or in the exclusive economic zone).

New subsection 26D(3) is similar to existing subsections 26D(1), (3) and (4), but, as provided by new subsection 26D(4), the offence by the master and owner of the ship is an offence of strict liability. The maximum penalty is 500 penalty units. Strict liability is imposed to discourage careless non-compliance as well as negligent and reckless breaches.

New subsection 26D(1) creates an offence to apply to any person who engages in reckless or negligent conduct that results in the discharge of sewage into the sea (other than the sea of the Antarctic Area). The maximum penalty for such a person is 2,000 penalty units. Note that section 26BC applies to the discharge of sewage in the Antarctic Area.

The offences set out in the new subsections apply to foreign ships under the same conditions as offences apply under the existing subsections. That is, they apply only to foreign ships where an offence is committed in internal waters, the territorial sea or the exclusive economic zone.

Item 93

Item 93 amends existing subsection 26D(5) consequential upon amendments made by item 92.

Item 94

Item 94 adds a Note at the end of subsection 26D(5) to make it clear that the defendant bears an evidential burden of proof of the matters mentioned in that subsection.

Item 95

Item 95 amends existing subsection 26D(6) consequential upon amendments made by item 92.

Item 96

Item 96 adds a Note at the end of subsection 26D(6) to make it clear that the defendant bears an evidential burden of proof of the matters mentioned in that subsection.

Item 97

Item 97 amends existing subsection 26D(7) consequential upon amendments made by item 92.

Item 98

Item 98 adds a Note at the end of subsection 26D(7) to make it clear that the defendant bears an evidential burden of proof of the matters mentioned in that subsection.

Item 99

Item 99 amends existing subsection 26D(8) consequential upon amendments made by item 92.

Item 100

Item 100 adds a Note at the end of subsection 26D(8) to make it clear that the defendant bears an evidential burden of proof of the matters mentioned in that subsection.

Items 101 to 103

These items amend existing subsection 26D(9) consequential upon amendments made by item 92.

Item 104

Item 104 repeals existing subsection 26D(10) consequential upon amendments made by item 92.

Item 105

Item 105 insert new section 26DAA to give to prescribed officers the power to require, where it is reasonable to do so, sewage to be discharged from a ship into a specified reception facility. One of the circumstances in which this power would be exercised would be if the prescribed officer believed that the ship would need to discharge sewage before it reaches its next scheduled port of call.

Item 106

Item 106 inserts new section 26E which is an interpretative section for purposes of Part IIIC – Prevention of Pollution by Garbage.

The term overseas voyage is used in new section 26FA (inserted by item 126). The term has the same meaning as in the Navigation Act 1912, except that the voyage of an Australian fishing vessel beginning and ending at a port in Queensland will not be taken to be an overseas voyage if it calls at a port in Papua New Guinea as an incidental part of its fishing operations on that voyage.

The term Australian fishing vessel is used in the definition of overseas voyage and has the same meaning as in the Navigation Act 1912.

Item 107

Item 107 repeals existing subsections 26F(1), (3) and (4) and replaces them with new subsections 26F(1), (2), (3) and (4). Existing subsection 26F(1) provides that the master and owner of a ship are each guilty of an offence if there is any disposal of garbage from the ship into the sea. This is subject to exceptions, including the exception set out in existing subsection 26F(3) (if the disposal occurs in State or territorial waters and the law of the relevant State or Territory gives effect to those parts of MARPOL 73/78 relating to the disposal of garbage into the sea) and the exception set out in existing subsection 26F(4) (if the disposal occurs from a foreign ship that is not in State or territorial waters or in the exclusive economic zone).

New subsection 26F(3) is similar to existing subsections 26F(1), (3) and (4), but, as provided by new subsection 26F(4), the offence by the master and owner of the ship is an offence of strict liability. The maximum penalty is 500 penalty units. Strict liability is imposed to discourage careless non-compliance as well as negligent and reckless breaches.

New subsection 26F(1) creates an offence to apply to any person who engages in reckless or negligent conduct that results in the disposal of garbage. The maximum penalty for such a person is 2,000 penalty units.

The offences set out in the new subsections apply to foreign ships under the same conditions as offences apply under the existing subsections. That is, they apply only to foreign ships where an offence is committed in internal waters, the territorial sea or the exclusive economic zone.

Item 108

Item 108 amends existing subsection 26F(5) consequential upon amendments made by item 107.

Item 109

Item 109 adds a Note at the end of subsection 26F(5) to make it clear that the defendant bears an evidential burden of proof of the matters mentioned in that subsection.

Item 110

Item 110 amends existing subsection 26F(6) consequential upon amendments made by item 107.

Item 111

Item 111 adds a Note at the end of subsection 26F(6) to make it clear that the defendant bears an evidential burden of proof of the matters mentioned in that subsection.

Item 112

Item 112 amends existing subsection 26F(7) consequential upon amendments made by item 107.

Item 113

Item 113 adds a Note at the end of subsection 26F(7) to make it clear that the defendant bears an evidential burden of proof of the matters mentioned in that subsection.

Item 114

Item 114 amends existing subsection 26F(8) consequential upon amendments made by item 107.

Item 115

Item 115 adds a Note at the end of subsection 26F(8) to make it clear that the defendant bears an evidential burden of proof of the matters mentioned in that subsection.

Item 116

Item 116 amends existing subsection 26F(8A) consequential upon amendments made by item 107.

Item 117

Item 117 adds a Note at the end of subsection 26F(8A) to make it clear that the defendant bears an evidential burden of proof of the matters mentioned in that subsection.

Item 118

Item 118 amends existing subsection 26F(9) consequential upon amendments made by item 107.

Item 119

Item 119 adds a Note at the end of subsection 26F(9) to make it clear that the defendant bears an evidential burden of proof of the matters mentioned in that subsection.

Item 120

Item 120 amends existing subsection 26F(10) consequential upon amendments made by item 107.

Item 121

Item 121 adds a Note at the end of subsection 26F(10) to make it clear that the defendant bears an evidential burden of proof of the matters mentioned in that subsection.

Items 121 - 124

These items amend existing subsection 26F(11) consequential upon amendments made by item 107.

Item 125

Item 125 repeals subsection 26F(12) consequential upon amendments made by item 107.

Item 126

Item 126 adds five new sections (26FA to 26FE) relating to garbage.

New section 26FA requires an Australian ship which meets the following criteria to carry a garbage record book:

• the ship is engaged on an overseas voyage.

If a ship does not carry the required garbage record book, the master and owner of the ship each commit an offence of strict liability. The maximum penalty is 50 penalty units. Strict liability is imposed to discourage careless non-compliance as well as negligent and reckless breaches.

The form of a garbage record book will be prescribed in regulations or orders. Entries must be made by the master in specified circumstances and each completed page must be signed by the master.

New subsection 26FB requires the retention of a garbage record book for a specified period – on board the ship for at least one year after the last entry is made in it and either on board the ship or at the owner’s registered office for the next two years. The master and the owner are guilty of an offence of strict liability if the book is not kept on board the ship for the first year. Strict liability is imposed to discourage careless non-compliance as well as negligent and reckless breaches.

New section 26FC requires an Australian ship of 400 gross tons or more and which is certified to carry 15 persons or more to have on board a shipboard waste management plan. If such a ship does not have a waste management plan, the master and the owner are guilty of an offence of strict liability. Strict liability is imposed to discourage careless non-compliance as well as negligent and reckless breaches.

New section 26FD requires all ships of 12 metres or more in length to display 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 which apply to any such disposal. If a placard is not displayed, the master and the owner are guilty of an offence of strict liability. Strict liability is imposed to discourage careless non-compliance as well as negligent and reckless breaches.

New section 26FE gives to prescribed officers the power to require, where it is reasonable to do so, garbage to be discharged from a ship into a specified reception facility. One of the circumstances in which this power would be exercised would be if the prescribed officer believed that the ship would need to discharge garbage before it reaches its next scheduled port of call.

Item 127

Item 127 replaces the existing subsections 28(3) and (4) which specify the maximum penalty that may be imposed by a court of summary jurisdiction for offences against specified sections of the Pollution Prevention Act. The new subsections 28(3) and (4) specify the same penalties but they are expressed in terms of penalty units rather than in monetary terms and the specific reference to the maximum penalties applying to a body corporate have not been included because, in accordance with section 4B of the Crimes Act 1914, the maximum penalty that may be imposed on a body corporate is, unless the contrary intention appears, five time that which may be imposed on an individual.

Item 128

Item 128 inserts new sections 29A which is an evidentiary provision providing that a certificate issued by the Minister and certifying that a document set out in, or annexed to, the certificate setting out the terms of the 1973 Convention or the 1978 Protocol is prima facie evidence of the matters so certified. This amendment is consequential upon the repeal of the Schedules by item 130.

Item 129

Item 129 replaces paragraph 33(1)(f). The existing paragraph 33(1)(f) provides that regulations may be made “prescribing penalties not exceeding:

(i) in the case of an individual – a fine of $2,000 or imprisonment for one year; and

for a contravention of, a failure to comply with, a provision of the regulations or of any of the orders made under section 34”.

The new paragraph 33(1)(f) does not provide for a term of imprisonment, as it is inappropriate that regulations be made imposing a term of imprisonment (no such regulations have been made), and it does not set out the maximum penalty that may be imposed on a body corporate by the regulations. Such a penalty is five times that which may be imposed on an individual. The maximum penalty that may be imposed by the regulations on an individual is increased from $2,000 to 30 penalty units.

Item 130

Item 130 repeals the Schedules. The Schedules include the text of the 1973 Convention, the 1978 Protocol and amendments to them and the text of the Antarctic Protocol. It is not necessary to include the text of these documents in Schedules as the text is readily available elsewhere, including in electronic form using the Internet.

The purpose of Schedule 4 is to amend the Cables and Pipelines Act to reflect the terminology of UNCLOS.

Item 1

Item 1 repeals the Preamble which reproduces Articles relating to submarine cables and pipelines from the redundant 1958 Convention.

Item 2

Item 2 amends subsection 5(1) to include references to the exclusive economic zone.

Existing subsection 5(1) provides that references to cables and pipelines in the Cables and Pipelines Act refers to cables and pipelines only beneath the high seas. But, in this context, “high seas” means that area of the oceans defined by the 1958 Convention.

The amended subsection 5(1) provides that references to cables and pipelines in the Cables and Pipelines Act refers to cables and pipelines beneath the high seas and the exclusive economic zone. This is the terminology used in UNCLOS and refers to the same part of the ocean as is referred to in the term “high seas” in the 1958 Convention.

Item 3

Item 3 amends existing subsection 5(2) to replace the definition of high seas and to add a definition of exclusive economic zone.

Commonwealth of Australia Explanatory Memoranda