Pollution of Waters by Oil and Noxious Substances Act 1986

Part 1—Preliminary

1 Purpose

The purpose of this Act is to make certain provisions for the protection of the sea and certain waters from pollution by oil and other noxious substances and to implement the Marpol Convention.

2 Commencement

This Act comes into operation on a day or days to be proclaimed.

3 Definitions

(1) In this Act—

Australian fishing vessel means a fishing vessel that is registered, or entitled to be registered, in Australia or in relation to which an instrument under section 4(2) of the Fisheries Act 1952 of the Commonwealth (as amended and in force for the time being) is in force;

Australian ship means—

(a) a ship registered in Australia; or

(b) an unregistered ship having Australian nationality;

S. 3(1) def. of Authority inserted by No. 82/1995 s. 181(a), substituted by No. 39/2018 s. 50(1)(a).

Authority means the Environment Protection Authority continued under section 356 of the Environment Protection Act 2017;

S. 3(1) def. of authorised officer inserted by No. 82/1995 s. 181(a), amended by Nos 37/2014 s. 10(Sch. item 127.1(b)), 39/2018 s. 50(1)(b).

authorised officer means—

(a) a person who is appointed in writing by the Authority for the purposes of this Act; or

(b) an authorised officer within the meaning of the Environment Protection Act 2017; or

(c) a police officer;

Convention means the 1973 Convention as modified and added to by the 1978 Protocol;

fishing vessel means a vessel used or intended to be used for catching fish, whales, seals, walrus or other living resources of the sea or seabed for profit or reward and includes any such vessel in the course of construction but excludes any vessel—

(a) engaged in harvesting or transportation of algae or aquatic plants; or

(b) that is primarily a carrier or a mother vessel;

S. 3(1) def. of Harbour Master repealed by No. 52/1988
s. 161(Sch. 6 item 9.1).

S. 3(1) def. of inspector amended by No. 52/1988
s. 161(Sch. 6 item 9.2), repealed by No. 82/1995 s. 181(b).

S. 3(1) def. of Marine Board inserted by No. 82/1995 s. 181(c), repealed by No. 77/2001 s. 32(3)(a).

master in relation to a ship, means a person, other than a pilot, having command or charge of the ship;

Navigation Act means the Navigation Act 1912 of the Commonwealth as amended and in force for the time being;

S. 3(1) def. of pleasure vessel amended by No. 82/1995
s. 189(1).

pleasure vessel means—

(a) a vessel used wholly for the purpose of recreational or sporting activities and not for hire or reward; or

(b) any other vessel declared to be a vessel to which this Act applies by Order of the Authority published in the Government Gazette;

S. 3(1) def. of police officer inserted by No. 37/2014 s. 10(Sch. 127.1(a)).

police officer has the same meaning as in the Victoria Police Act 2013;

S. 3(1) def. of Port Authority inserted by No. 52/1988
s. 161(Sch. 6 item 9.3), repealed by No. 82/1995 s. 181(b).

State waters means—

(a) the territorial sea adjacent to the State;

(b) the sea on the landward side of the territorial sea adjacent to the State that is not within the limits of the State; and

(c) waters within the limits of the State;

S. 3(1) def. of the 1973 Convention amended by No. 46/1991
s. 4(1)(a).

the 1973 Convention means the International Convention for the Prevention of Pollution from Ships, 1973 as corrected by the Procès-Verbal of Rectification dated 13 June 1978 (a copy of the English text of which as so corrected is set out in Schedule 1), as affected by any amendment, other than an amendment not accepted by Australia, made under Article 16 of the Convention;

S. 3(1) def. of the 1978 Protocol amended by No. 46/1991
s. 4(1)(b)(c).

the 1978 Protocol means the Protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships, 1973 (a copy of the English text of which is set out in Schedule 2) as affected by—

(a) the amendments to the Annex to the Protocol adopted on 7 September 1984 (a copy of the English text of which amendments is set out in Schedule 3); and

(aa) the amendments to the Protocol adopted on 5 December 1985 (a copy of the English text of which relating to the Annex of the Protocol is set out in Schedule 4 and a copy of the English text of which relating to Protocol I to the Convention is set out in Schedule 5); and

(b) any other amendment to the Protocol, other than an amendment not accepted by Australia, made under Article VI of the Protocol;

this Part includes the regulations and orders made in pursuance of the regulations;

Tonnage Measurement Convention has the same meaning as in Part XA of the Navigation Act 1912;

trading ship means a ship that is used, or being a ship in the course of construction, is intended to be used, for or in connexion with, any business or commercial activity and, without limiting the generality of the foregoing, includes a vessel that is used, or being a vessel in the course of construction, is intended to be used, wholly or principally for—

(a) the carriage of passengers or cargo for hire or reward; or

(b) the provision of services to ships or shipping, whether for reward or otherwise—

but does not include a Commonwealth ship within the meaning of the Navigation Act or a fishing vessel.

S. 3(2) amended by Nos 46/1991
s. 4(2), 46/1998
s. 7(Sch. 1).

(2) A reference in a section of this Act to a prescribed officer is a reference to the person for the time being occupying, or performing the duties of, a position in a Department or public authority of the State, or an office in a department or public authority of the Commonwealth, that deals with matters arising under that section, or a corresponding provision of an Act of the Commonwealth, being a position or an office that is prescribed for the purposes of that section.

(3) An expression that is used in this Act and in the Convention, otherwise than in an annex to the Convention, (whether or not a particular meaning is assigned to it by the Convention) has, in this Act, the same meaning as in the Convention.

(4) Where, at any time, the gross tonnage applicable to a ship has been determined otherwise than in accordance with the Tonnage Measurement Convention, then, in the application of this Act to the ship at that time, a reference in this Act to the gross tonnage of a ship not expressed in tons shall be taken to be a reference to the gross tonnage of the ship expressed in tons.

(5) For the purposes of this Act—

(a) inter-state voyage and overseas voyage have the same respective meanings as in the Navigation Act; and

(b) an intra-state voyage is a voyage other than an inter-state voyage or an overseas voyage; and

(c) for the purposes of paragraphs (a) and (b), a ship shall be deemed to be proceeding on a voyage from the time when it is got under way for the purpose of proceeding on the voyage until the time when it is got under way for the purpose of proceeding on another voyage.

(6) Where there is a discharge of oil or of an oily mixture or of a liquid substance or a mixture containing a liquid substance on to or into waters or any structure or thing and the whole or any part of the oil or oily mixture or liquid substance or mixture containing a liquid substance eventually enters any State waters, the discharge is for the purposes of this Act deemed to be a discharge into those State waters of the oil or oily mixture or liquid substance or mixture containing a liquid substance.

S. 3(7) inserted by No. 46/1991

(7) Where there is a discharge of a harmful substance onto or into any waters or any structure or thing and the whole or any part of the harmful substance eventually enters State waters, the discharge is for the purposes of this Act deemed to be a discharge into those State waters of the harmful substance.

S. 3(8) inserted by No. 46/1991

(8) Where there is a discharge of sewage onto or into any waters or any structure or thing and the whole or any part of the sewage eventually enters State waters, the discharge is for the purposes of this Act deemed to be a discharge into those State waters of the sewage.

S. 3(9) inserted by No. 46/1991

(9) Where there is a disposal of garbage onto or into any waters or any structure or thing and the whole or any part of the garbage eventually enters State waters, the disposal is for the purposes of this Act deemed to be a disposal into those State waters of the garbage.

S. 3A inserted by No. 6/2010 s. 24(5)(Sch. 1 item 9) (as amended by No. 45/2010 s. 5).

3A Transport Integration Act 2010

This Act is transport legislation within the meaning of the Transport Integration Act 2010.

4 Act to bind Crown

(1) This Act binds the Crown in right of Victoria and, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.

(2) Nothing in this Act renders the Commonwealth or a State or Territory of the Commonwealth liable to be prosecuted for an offence.

(3) Subsection (2) does not affect any liability of any servant or agent of the Commonwealth or of a State or Territory of the Commonwealth to be prosecuted for an offence.

5 Saving of other laws

This Act shall be read and construed as being in addition to and not in derogation of any other law of the State.

6 Delegation

S. 6(1) amended by No. 82/1995 s. 182(1).

(1) The Authority may, by instrument, delegate to a person any power of the Authority under this Act, other than this power of delegation.

S. 6(2) substituted by Nos 52/1988
s. 161(Sch. 6 item 9.4), 82/1995 s. 182(2), amended by No. 37/2014 s. 10(Sch. item 127.2).

(2) An authorised officer (other than a police officer) may, by instrument, delegate to any other person any power as an authorised officer under this Act, other than this power of delegation.

Pt 2
(Heading) amended by No. 82/1995 s. 189(2).

Part 2—Prevention of pollution

Division 1—Pollution by oil

7 Interpretation

Except in so far as the contrary intention appears, an expression that is used in this Division and in Annex I to the Convention (whether or not a particular meaning is assigned to it by that Annex) has, in this Division, the same meaning as in that Annex.

8 Prohibition of discharge of oil or oily mixtures into State waters

S. 8(1) substituted by No. 46/1991
s. 5.

(1) Subject to subsections (2) and (4), if any discharge of oil or an oily mixture occurs from a ship into State waters, the master and the owner of the ship are each guilty of an indictable offence punishable, upon conviction—

(a) if the offender is a natural person, by a fine not exceeding 2000 penalty units, or imprisonment for two years, or both;

(2) Subsection (1) does not apply to the discharge of oil or of an oily mixture from a ship—

(a) for the purpose of securing the safety of a ship or saving life at sea; or

(b) if the oil or oily mixture, as the case may be, escaped from the ship in consequence of damage, other than intentional damage, to the ship or its equipment, and all reasonable precautions were taken after the occurrence of the damage or the discovery of the discharge for the purpose of preventing or minimizing the escape of oil or oily mixture, as the case may be; or

(c) in the case of an oily mixture, if the discharge was for the purpose of combating specific pollution incidents in order to minimize the damage from pollution and was approved by a prescribed officer.

(3) For the purposes of subsection (2), damage to a ship or to its equipment shall be taken to be intentional damage if, and only if, the damage arose in circumstances in which the master or owner of the ship—

(a) acted with intent to cause the damage; or

(b) acted recklessly and with knowledge that damage would probably result.

(4) Without limiting the generality of subsection (2) but subject to subsection (5), subsection (1) does not apply to—

(a) the discharge from an oil tanker of oil or an oily mixture, not being oil or an oily mixture of the kind referred to in paragraph (c), if the following conditions are satisfied—

(i) the oil tanker is not within a special area and is more than 50 nautical miles from the nearest land;

(ii) the oil tanker is proceeding en route;

(iii) the instantaneous rate of discharge of oil content does not exceed 60 litres per nautical mile;

(iv) the total quantity of oil discharged into the sea does not exceed—

(A) in the case of an oil tanker that is an existing tanker—one part in 15 000 parts of the total quantity of the cargo of oil of which oil discharged formed a part; or

(B) in the case of an oil tanker that is a new tanker—one part in 30 000 parts of the total quantity of the cargo of oil of which oil discharged formed a part;

(v) the oil tanker has in operation an oil discharge monitoring and control system and a slop tank arrangement as required by regulations made by virtue of section 36 or made by virtue of section 267A of the Navigation Act;

(b) the discharge from a ship that has a gross tonnage of 400 or more and is not an oil tanker of oil or an oily mixture if the following conditions are satisfied—

(i) the ship is not within a special area and is more than 12 nautical miles from the nearest land;

(ii) the ship is proceeding en route;

(iii) the oil content of the effluent is less than 100 parts in 1 000 000 parts;

(iv) the ship has in operation an oil discharge monitoring and control system, oily-water separating equipment, oil filtering equipment or other installation as required by regulations made by virtue of section 36 or made by virtue of section 267A of the Navigation Act;

(c) the discharge from an oil tanker of oil or an oily mixture, being oil or an oily mixture that is from the machinery space bilges (other than the cargo pump room bilges) of the oil tanker and does not include oil cargo residue, if the conditions specified in paragraph (b) are satisfied in relation to the discharge;

(d) the discharge from an oil tanker, or another ship that has a gross tonnage of 400 or more, of an unprocessed oily mixture, not being an oily mixture that originated from the cargo pump room bilges of the ship or includes oil cargo residue, if the following conditions are satisfied—

(ii) the oil content of the unprocessed oily mixture without dilution is not more than 15 parts in 1 000 000 parts;

(e) the discharge from a ship that has a gross tonnage of 400 or more and is not an oil tanker of a processed oily mixture not being an oily mixture that originated from the cargo pump room bilges of the ship or includes oil cargo residue, if the following conditions are satisfied—

(ii) the oil content of the effluent without dilution is not more than 15 parts in 1 000 000 parts;

(iii) the ship has in operation oil filtering equipment as required by regulations made by virtue of section 36 or made by virtue of section 267A of the Navigation Act;

(f) the discharge from an oil tanker of a processed oily mixture, being a processed oily mixture that originates from the machinery space bilges (other than the cargo pump room bilges) of the oil tanker and does not include oil cargo residue, if the conditions specified in paragraph (e) are satisfied in relation to the discharge;

(g) the discharge within a special area from an oil tanker, or another ship that has a gross tonnage of 400 or more, of processed bilge water from machinery spaces, not being bilge water that originated from the cargo pump room bilges of the ship or includes oil cargo residue, if the following conditions are satisfied—

(i) the ship is proceeding en route;

(ii) the oil content of the effluent without dilution is not more than 15 parts in 1 000 000 parts;

(iii) the ship has in operation oil filtering equipment as required by regulations made by virtue of section 36 or made by virtue of section 267A of the Navigation Act;

(iv) the oil filtering equipment is equipped with a stopping device that automatically prevents any discharge of effluent when the oil content of the effluent without dilution is more than 15 parts in 1 000 000 parts;

(h) the discharge within a special area from a ship that has a gross tonnage of less than 400 and is not an oil tanker of oil or an oily mixture if—

(i) the oil content of the effluent without dilution is less than 15 parts in 1 000 000 parts; or

(ii) the following conditions are satisfied—

(A) the ship is proceeding en route;

(B) the oil content of the effluent is less than 100 parts in 1 000 000 parts;

(C) the discharge is made as far as practicable from land and is not less than 12 nautical miles from the nearest land;

(i) the discharge, not being a discharge within a special area, from a ship that has a gross tonnage of less than 400 and is not an oil tanker of oil or an oily mixture; or

(j) the discharge from a ship of clean or segregated ballast.

(5) A reference to an oily mixture in subsection (4) shall be read as not including a reference to an oily mixture that contains—

(a) chemicals or other substances in quantities or concentrations that are hazardous to the marine environment; or

(b) chemicals or other substances that have been introduced for the purpose of attempting to prevent the application of subsection (1) to the discharge of an oily mixture from a ship.

(6) In proceedings for an offence against subsection (1) in relation to a ship, it is sufficient for the prosecution to allege and prove that a discharge of oil or of an oily mixture occurred from the ship into State waters, but it is a defence if it is proved that, by virtue of subsection (2) or (4), subsection (1) does not apply in relation to the discharge.

9 Oil residues

S. 9(1) substituted by No. 46/1991
s. 6.

(1) Subject to subsection (2), if any oil residues that cannot be discharged from a ship into State waters without the commission of an offence against section 8(1) are not retained on board the ship when the ship is in State waters, the master and the owner of the ship are each guilty of an indictable offence punishable, upon conviction—

(a) if the offender is a natural person, by a fine not exceeding 2000 penalty units, or imprisonment for two years, or both;

(2) Oil residues may be discharged from a ship to a reception facility provided in accordance with Regulation 12 of Annex I to the Convention.

10 Duty to report certain incidents involving oil or an oily mixture

S. 10(1) amended by No. 46/1991
s. 7(a).

(1) Where a prescribed incident occurs in relation to a ship in State waters, the master of the ship shall, without delay, notify, in the prescribed manner, a prescribed officer of the incident.

1. 500 penalty units or imprisonment for one year or both.

S. 10(1A) inserted by No. 46/1991
s. 7(b).

(2) In a prosecution of a person for an offence against subsection (1) in relation to a prescribed incident, it is a defence if the person proves that the person was unable to comply with the subsection in relation to the incident.

S. 10(3) amended by No. 46/1991

(3) Where a prescribed incident occurs in relation to a ship in State waters and—

the owner, charterer, manager or operator of the ship or an agent of the owner, charterer, manager or operator of the ship shall, without delay, notify, in the prescribed manner, a prescribed officer of the incident and, if a prescribed officer is not so notified, each of those persons is guilty of an indictable offence punishable, upon conviction—

S. 10(4)(c) inserted by No. 46/1991

(c) if the offender is a natural person, by a fine not exceeding 500 penalty units, or imprisonment for one year, or both; or

S. 10(4)(d) inserted by No. 46/1991

(d) if the offender is a body corporate, by a fine not exceeding 2500 penalty units.

(4) In a prosecution of a person for an offence against subsection (3) in relation to a prescribed incident in relation to a ship, it is a defence if the person proves—

(b) in the case of a prescribed incident to which subsection (3)(a) applies—that the person neither knew nor suspected that the master of the ship was unable to comply with subsection (1) in relation to the incident.

(5) Subsection (4) shall not be taken to limit by implication any defence that would, but for that subsection, be available to a person charged with an offence against subsection (3).

S. 10(6) amended by No. 46/1991
s. 7(d).

(6) A master of a ship who, pursuant to subsection (1), has notified a prescribed officer of the occurrence of a prescribed incident shall, if so requested by a prescribed officer, furnish, within

the prescribed time, a report to a prescribed officer in relation to the incident in accordance with the prescribed form.

S. 10(7) amended by No. 46/1991
s. 7(e).

(7) Where subsection (3) applies in relation to a prescribed incident in relation to a ship, a person who, pursuant to that subsection, has notified a prescribed officer of the occurrence of the prescribed incident shall, if so requested by a prescribed officer, furnish, within the prescribed time, a report to a prescribed officer in relation to the incident in accordance with the prescribed form.

S. 10(8) amended by No. 46/1991
s. 7(f)(g).

(8) A person shall not, in a notice given to a prescribed officer pursuant to subsection (1) or (3) or in a report furnished to a prescribed officer pursuant to subsection (6) or (7), knowingly or recklessly make a statement that is false or misleading in a material particular.

(9) A notice given to a prescribed officer pursuant to subsection (1) or (3), and a report furnished to a prescribed officer pursuant to subsection (6) or (7), shall not, without the consent of the person charged, be admitted in evidence in a prosecution for an offence against section 8(1).

(10) In this section, prescribed incident, in relation to a ship, means—

(a) a discharge from the ship of oil or an oily mixture, not being a discharge to which section 8(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 section 8(4) would apply.

11 Oil record book

(a) a trading ship proceeding on an intra-state voyage; or

(c) a pleasure vessel—

that—

(a) is an oil tanker; or

(b) has a gross tonnage of 400 or more and is not an oil tanker.

(2) Every ship to which this section applies shall carry such oil record books as are required by the regulations to be carried on the ship.

(3) An oil record book shall be in accordance with the appropriate prescribed form with provision made for a signature, in accordance with subsection (6), in relation to each entry made in it and for a signature, in accordance with subsection (7), in relation to each page of it.

(4) If a ship to which this section applies does not carry an oil record book as required by this section, the master and the owner of the ship are each guilty of an offence punishable, upon conviction, by a fine not exceeding—

S. 11(4)(a) amended by No. 46/1991
s. 8(1).

S. 11(4)(b) amended by No. 46/1991
s. 8(2).

S. 11(5) amended by No. 46/1991
s. 8(3).

(5) Whenever a prescribed operation or prescribed occurrence is carried out or occurs in, or in relation to, a ship to which this section applies, the master of the ship shall make, without delay, appropriate entries in, or cause appropriate entries to be made, without delay, in the ship's oil record book, being entries in accordance with subsection (6).

(6) An entry in a ship's oil record book—

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

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

S. 11(7) amended by No. 46/1991
s. 8(4).

(7) Where a page of a ship's oil record book is completed, the master of the ship shall, without delay, sign the page.

S. 12 amended by No. 46/1991
s. 8(5).

12 False entries in oil record book

A person must not make, in an oil record book of a ship to which section 11 applies, an entry that is false or misleading in a material particular.

13 Oil record book to be retained

S. 13(1) substituted by No. 46/1991
s. 9.

(1) An oil record book of a ship to which section 11 applies must be retained—

(a) in the ship; or

(b) at the registered office in the State of the owner—

until the expiration of a period 3 years after the day on which the last entry was made in the book and must be readily available for inspection at all reasonable times.

S. 13(2) substituted by No. 46/1991
s. 9.

(2) Where an oil record book is not retained in accordance with subsection (1), the master and the owner of the ship are each guilty of an offence punishable, upon conviction, by a fine not exceeding—

(3) The owner of a ship to which section 11 applies who resides in the State, or has an office or agent in the State, may from time to time furnish to a prescribed officer notice, in writing, of an address, being the address of—

(a) the place in the State at which the person so resides;

(b) the office of the person in the State, or if the person has more than one office in the State, the principal office in the State; or

(c) the office or place of residence in the State of an agent or, if the agent has more than one office in the State, the principal office in the State of the agent—

and the place or office of which an address is furnished for the time being under this subsection is the registered office in the State of the owner of the ship for the purposes of subsection (1).

(4) If the owner of a ship to which section 11 applies does not reside in the State and does not have an office or agent in the State, the owner may deposit an oil record book of the ship with a prescribed officer and, while the book is so deposited, the book is, for the purposes of subsection (1), deemed to be retained at the registered office in the State of the owner.

Division 2—Pollution by noxious substances

14 Definitions

Annex II means Annex II to the Convention;

liquid substance does not include oil;

mixture includes ballast water, tank washings and other residues;

oil has the same meaning as it has in Division 1.

(2) An expression that is used in this Division and in Annex II (whether or not a particular meaning is assigned to it by that Annex) has, in this Division, the same meaning as in that Annex.

15 Application of Part to mixture of oil and liquid substance

If a mixture contains oil and a liquid substance or oil and liquid substances, Division 1 and this Division apply in relation to the mixture.

16 Categories of noxious liquid substances

(1) The regulations may declare that a liquid substance specified in the regulations is, for the purposes of this Act, deemed to be designated in Appendix II to Annex II and to be categorized in a category specified in the regulations, being Category A, B, C or D.

(2) Where, in accordance with subsection (1), the regulations declare that a liquid substance is deemed to be designated in Appendix II to Annex II and to be categorized in Category A, the regulations shall declare that, for the purposes of this Act—

(a) a residual concentration specified in the regulations shall be deemed to be the residual concentration prescribed for that substance in column III of that Appendix; and

(b) a residual concentration specified in the regulations shall be deemed to be the residual concentration prescribed for that substance in column IV of that Appendix.

(3) The regulations may declare that a liquid substance designated in Appendix II to Annex II is, for the purposes of this Act, deemed not to be so designated.

(4) The regulations may declare that a liquid substance designated in Appendix II to Annex II and categorized in a particular category is, for the purposes of this Act, deemed not to be so categorized but to be categorized in a category specified in the regulations.

17 Appendix III substances

(1) The regulations may declare that a liquid substance specified in the regulations is, for the purposes of this Act, deemed to be listed in Appendix III to Annex II.

(2) The regulations may declare that a liquid substance listed in Appendix III to Annex II is, for the purposes of this Act, deemed not to be so listed.

18 Prohibition of discharge of substances into State waters

S. 18(1) amended by No. 46/1991

(1) Subject to subsection (2) and subsections (4) to (12) (inclusive), if any 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, occurs from a ship into State waters, the master and the owner of the ship are each guilty of an indictable offence punishable, upon conviction—

S. 18(1)(a) substituted by No. 46/1991

(a) if the offender is a natural person, by a fine not exceeding 2000 penalty units, or imprisonment for two years, or both;

S. 18(1)(b) substituted by No. 46/1991

(2) Subsection (1) does not apply to the discharge of a liquid substance or a mixture from a ship—

(a) for the purpose of securing the safety of a ship or saving life at sea; or

(b) if the substance or the mixture, as the case may be, escaped from the ship in consequence of damage, other than intentional damage, to the ship or its equipment, and all reasonable precautions were taken after the occurrence of the damage or the discovery of the discharge for the purpose of preventing or minimizing the escape of the substance or the mixture, as the case may be; or

(c) if the discharge was for the purpose of combating specific pollution incidents in order to minimize the damage from pollution and was approved by a prescribed officer.

(3) For the purposes of subsection (2), damage to a ship or to its equipment shall be taken to be intentional damage if, and only if, the damage arose in circumstances in which the master or owner of the ship—

(a) acted with intent to cause the damage; or

(b) acted recklessly and with knowledge that damage would probably result.

S. 18(4) amended by No. 46/1991 s. 10(2)(b).

(4) Without limiting the generality of subsection (2), (5) or (12) but subject to subsection (13), where—

(a) the tank of a ship that held a substance in Category A or a mixture containing a substance in Category A has been cleaned in accordance with regulations made under section 23; and

S. 18(4)(b) amended by No. 82/1995
s. 189(3).

(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 authorised officer, at or below the residual concentration prescribed for that substance in column III of Appendix II to Annex II and until the tank is empty; and

S. 18(4)(c) amended by No. 46/1991
s. 10(2)(a).

(c) the residue then remaining in the tank has been subsequently diluted by the addition of a volume of water—

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

(d) the discharge is made when the ship is not within a special area; and

(e) the discharge is made when the ship is proceeding en route at a speed of—

(f) the discharge is made below the water line of the ship taking into account the location of the sea-water intakes; and

(g) the discharge is made when the ship is at a distance of not less than 12 nautical miles from the nearest land and is in a depth of water of not less than 25 metres.

S. 18(5) amended by No. 46/1991
s. 10(2)(c)(ii).

(5) Without limiting the generality of subsection (2), (4) or (12) but subject to subsection (13), if—

(a) the tank of a ship that held a substance in Category A or a mixture containing a substance in Category A has been washed in accordance with regulations made under section 23;

S. 18(5)(b) amended by No. 82/1995 s. 189(3).

(b) the resulting residues in the tank have been discharged to a reception facility provided in accordance with Regulation 7 of Annex II by a State bordering a special area until the concentration of that substance in the effluent to that facility is, in the opinion of an authorised officer, at or below the residual concentration prescribed for that substance in column IV of Appendix II to Annex II and until the tank is empty; and

S. 18(5)(c) amended by No. 46/1991
s. 10(2)(c)(i).

(c) the residue then remaining in the tank has been subsequently diluted by the addition of a volume of water—

subsection (1) does not apply to the discharge into State waters of the water containing that residue if the conditions specified in paragraphs (e), (f) and (g) of subsection (4) are satisfied in relation to the discharge from the ship.

(6) Without limiting the generality of subsection (2), (7) or (12) but subject to subsection (13), subsection (1) does not apply to the discharge from a ship of—

(a) a substance in Category B; or

(b) a mixture containing a substance in Category B, not being a mixture containing a substance in Category A—

(c) the discharge is made when the ship is not within a special area; and

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

(e) the procedures and arrangements for the discharge have been approved by a prescribed officer, being procedures and arrangements that ensure that the concentration and rate of discharge of the effluent is such that the concentration of the substance in Category B in the wake astern of the ship does not exceed 1 part in 1 000 000 parts; and

(f) the maximum quantity of cargo discharged from each tank of the ship (including the associated piping system of the tank) does not exceed the maximum quantity specified in the procedures referred to in paragraph (e), not being a quantity exceeding 1 cubic metre or 1 part in 3000 parts of the tank capacity in cubic metres, whichever is the greater; and

(g) the discharge is made below the water line of the ship, taking into account the location of the sea-water intakes; and

(h) the discharge is made when the ship is at a distance of not less than 12 nautical miles from the nearest land and in a depth of water of not less than 25 metres.

(7) Without limiting the generality of subsection (2), (6) or (12) but subject to subsection (13), where—

S. 18(7)(a) amended by No. 46/1991
s. 10(2)(d).

(a) the tank of a ship that held—

(i) a substance in Category B; or

(ii) a mixture containing a substance in Category B, not being a mixture containing a substance in Category A—

has been pre-washed in accordance with a procedure approved by a prescribed officer; and

S. 18(7)(b) substituted by No. 46/1991
s. 10(2)(e).

(b) the resulting tank washings have been discharged to a reception facility—

subsection (1) does not apply to the discharge from the ship of the residue in that tank if the conditions specified in paragraphs (d), (e), (g) and (h) of subsection (6) are satisfied in relation to the discharge from the ship.

(8) Without limiting the generality of subsection (2), (9) or (12) but subject to subsection (13), subsection (1) does not apply to the discharge from a ship of—

(a) a substance in Category C; or

(b) a mixture containing a substance in Category C, not being a mixture containing a substance in Category A or B—

(c) the discharge is made when the ship is not within a special area; and

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

(e) the procedures and arrangements for the discharge have been approved by a prescribed officer, being procedures and arrangements that ensure that the concentration and rate of discharge of the effluent are such that the concentration of the substance in Category C in the wake astern of the ship does not exceed 10 parts in 1 000 000 parts; and

(f) the maximum quantity of cargo discharged from each tank of the ship (including the associated piping system of the tank) does not exceed the maximum quantity specified in the procedures referred to in paragraph (e), not being a quantity exceeding 3 cubic metres or 1 part in 1000 parts of the tank capacity in cubic metres, whichever is the greater; and

(g) the discharge is made below the water line of the ship, taking into account the location of the sea-water intakes; and

(h) the discharge is made when the ship is at a distance of not less than 12 nautical miles from the nearest land and in a depth of water of not less than 25 metres.

(9) Without limiting the generality of subsection (2), (8) or (12) but subject to subsection (13), subsection (1) does not apply to the discharge from a ship of—

(a) a substance in Category C; or

(b) a mixture containing a substance in Category C, not being a mixture containing a substance in Category A or B—

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

(d) the procedures and arrangements for the discharge have been approved by a prescribed officer, being procedures and arrangements that ensure that the concentration and rate of discharge of the effluent are such that the concentration of the substance in Category C in the wake astern of the ship does not exceed 1 part in 1 000 000 parts; and

(e) the maximum quantity of cargo discharged from each tank of the ship (including the associated piping system of the tank) does not exceed the maximum quantity specified in the procedures referred to in paragraph (d), not being a quantity exceeding 1 cubic metre or 1 part in 3000 parts of the tank capacity in cubic metres, whichever is the greater; and

(f) the discharge is made below the water line of the ship, taking into account the location of the sea-water intakes; and

(g) the discharge is made when the ship is at a distance of not less than 12 nautical miles from the nearest land and in a depth of water of not less than 25 metres.

(10) Without limiting the generality of subsection (2) or (12) but subject to subsection (13), subsection (1) does not apply to the discharge from a ship of—

(a) a substance in Category D; or

(b) a mixture containing a substance in Category D, not being a mixture containing a substance in Category A, B or C—

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

(d) the substance or mixture has been mixed with water so that the concentration of the substance in Category D in the effluent does not exceed 1 part in 11 parts; and

(e) the discharge occurs when the ship is not less than 12 nautical miles from the nearest land.

(11) Without limiting the generality of subsection (2), subsection (1) does not apply to the discharge from a ship of bilge water, or of a mixture resulting from tank cleaning or de-ballasting operations, that contains a liquid substance, or liquid substances, listed in Appendix III to Annex II but does not contain any other liquid substance.

(12) Without limiting the generality of subsection (2) or subsections (4) to (10) (inclusive), subsection (1) does not apply to the discharge from a ship of clean ballast or segregated ballast.

(13) Subsections (4) to (10) (inclusive) do not apply in relation to a mixture that contains a liquid substance that is neither a noxious liquid substance nor a liquid substance listed in Appendix III to Annex II.

(14) In proceedings for an offence against subsection (1) in relation to a ship, it is sufficient for the prosecution to allege and prove that a discharge of a substance, or a mixture containing a substance, carried as cargo of the ship occurred from the ship into State waters, but it is a defence if it is proved that, by virtue of subsection (2), (4), (5), (6), (7), (8), (9), (10), (11) or (12), subsection (1) does not apply in relation to the discharge.

S. 18(15) amended by No. 82/1995 s. 189(3).

(15) In this section, authorised officer includes a surveyor appointed or authorized by the Government of a country that is a Party to the Convention for the purpose of implementing Regulation 8 of Annex II.

S. 18A inserted by No. 46/1991
s. 11 (as amended by No. 82/1995 s. 189(7) (as amended by No. 63/1997 s. 9(2)).

18A Certain liquid substances to be treated as oil

(1) Despite any other provision of this Act, a prescribed substance in Category C or D, being a substance that has been identified by the Organization as an oil-like substance under criteria developed by the Organization, may be carried on an oil tanker within the meaning of Part 2 if the following conditions are satisfied—

(a) the oil tanker complies with the provisions of Annex I of the Convention as applicable to product carriers within the meaning of that Annex; and

(b) the oil tanker carries an International Oil Pollution Prevention Certificate and its Supplement B, being a certificate that has an endorsement—

(i) that indicates that the ship is permitted to carry oil-like substances in conformity with Regulation 14 of Annex II of the Convention; and

(ii) that specifies the oil-like substances or substances that the tanker is permitted to carry; and

(c) the prescribed substance is the substance, or a substance, referred to in paragraph (b)(ii); and

(d) in the case of a substance in Category C—the tanker complies with the ship type 3 damage stability requirements of—

(i) in the case of a tanker constructed on or after 1 July 1986—the International Bulk Chemical Code; or

(ii) in the case of a tanker constructed before 1 July 1986—the Bulk Chemical Code applicable under Regulation 13 of Annex II of the Convention; and

(e) the oil content meter in the oil discharge monitoring and control system of the tanker has been approved by an authorised officer for use in monitoring the oil-like substances to be carried.

(2) Where, by virtue of subsection (1), a substance is carried on an oil tanker within the meaning of Part 2—

(a) section 8 applies in relation to the discharge of the substance as if the substance were oil within the meaning of Part 2; and

(b) section 18 does not apply in relation to the discharge of the substance.

19 Duty to report certain incidents involving certain substances

S. 19(1) amended by No. 46/1991
s. 12(a).

(1) Where a prescribed incident occurs in relation to a ship in State waters, the master of the ship shall, without delay, notify, in the prescribed manner, a prescribed officer of the incident.

Penalty: 500 penalty units, or imprisonment for
one year, or both.

S. 19(1A) inserted by No. 46/1991
s. 12(b).

(2) In a prosecution of a person for an offence against subsection (1) in relation to a prescribed incident, it is a defence if the person proves that the person was unable to comply with the subsection in relation to the incident.

S. 19(3) amended by No. 46/1991

(3) Where a prescribed incident occurs in relation to a ship in State waters and—

the owner, charterer, manager or operator of the ship or an agent of the owner, charterer, manager or operator of the ship shall, without delay, notify, in the prescribed manner, a prescribed officer of the incident and, if a prescribed officer is not so notified, each of those persons is guilty of an indictable offence punishable, upon conviction—

S. 19(3)(c) inserted by No. 46/1991

(c) if the offender is a natural person, by a fine not exceeding 500 penalty units, or imprisonment for one year, or both; or

S. 19(3)(d) inserted by No. 46/1991

(d) if the offender is a body corporate, by a fine not exceeding 2500 penalty units.

(4) In a prosecution of a person for an offence against subsection (3) in relation to a prescribed incident in relation to a ship, it is a defence if the person proves—

(b) in the case of a prescribed incident to which subsection (3)(a) applies—that the person neither knew nor suspected that the master of the ship was unable to comply with subsection (1) in relation to the incident.

(5) Subsection (4) shall not be taken to limit by implication any defence that would, but for that subsection, be available to a person charged with an offence against subsection (3).

S. 19(6) amended by No. 46/1991
s. 12(d).

(6) A master of a ship who, pursuant to subsection (1), has notified a prescribed officer of the occurrence of a prescribed incident shall, if so requested by a prescribed officer, furnish, within the prescribed time, a report to a prescribed officer in relation to the incident in accordance with the prescribed form.

S. 19(7) amended by No. 46/1991
s. 12(e).

(7) Where subsection (3) applies in relation to a prescribed incident in relation to a ship, a person who, pursuant to that subsection, has notified a prescribed officer of the occurrence of the prescribed incident shall, if so requested by a prescribed officer, furnish, within the prescribed time, a report to a prescribed officer in relation to the incident in accordance with the prescribed form.

S. 19(8) amended by No. 46/1991
s. 12(f)(g).

(8) A person shall not, in a notice given to a prescribed officer pursuant to subsection (1) or (3) or in a report furnished to a prescribed officer pursuant to subsection (6) or (7), knowingly or recklessly make a statement that is false or misleading in a material particular.

(9) A notice given to a prescribed officer pursuant to subsection (1) or (3), and a report furnished to a prescribed officer pursuant to subsection (6) or (7), shall not, without the consent of the person charged, be admitted in evidence in a prosecution for an offence against section 18(1).

(10) In this section—

liquid substance does not include a substance listed in Appendix III to Annex II;

prescribed incident, in relation to a ship, means—

(a) a discharge from the 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 section 18(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 part cargo in bulk, not being a discharge to which section 18(4), (5), (6), (7), (8), (9), (10), (11) or (12) would apply.

20 Cargo record book

(1) This section applies to a trading ship proceeding on an intra-state voyage that carries liquid substance in bulk.

(2) A cargo record book shall be carried in every ship to which this section applies.

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

(4) Where a ship to which this section applies does not carry a cargo record book as required by this section, the master and the owner of the ship are each guilty of an offence punishable, upon conviction, by a fine not exceeding—

S. 20(4)(a) amended by No. 46/1991
s. 13(1).

S. 20(4)(b) amended by No. 46/1991
s. 13(2).

S. 20(5) amended by No. 46/1991
s. 13(3).

(5) Whenever a prescribed operation or occurrence is carried out or occurs in, or in relation to, a ship to which this section applies, the master of the ship shall make, without delay, appropriate entries in, or cause appropriate entries to be made without delay in, the ship's cargo record book, being entries in accordance with subsection (7).

S. 20(6) amended by No. 82/1995 s. 189(3).

(6) Where an authorised officer has inspected a ship to which this section applies, the authorised officer must make, without delay, appropriate entries in the ship's cargo record book in accordance with subsection (7).

(7) An entry in a ship's cargo record book—

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

(b) in the case of an entry made in relation to a prescribed operation, must be signed by the officer or other person in charge of the operation.

S. 20(8) amended by No. 46/1991
s. 13(4).

(8) Where a page of a ship's cargo record book is completed, the master of the ship shall, without delay, sign the page.

S. 21 amended by No. 46/1991
s. 13(5).

21 False entries in cargo record book

A person must not make, in a cargo record book of a ship to which section 20 applies, an entry that is false or misleading in a material particular.

22 Cargo record book to be retained

(1) A cargo record book of a ship to which section 20 applies must be retained in the ship until the expiration of a period of one year after the day on which the last entry was made in the book and must be readily available for inspection at all reasonable times.

(2) Where a cargo record book is not retained in a ship in accordance with subsection (1), the master and the owner of the ship are each guilty of an offence punishable, upon conviction, by a fine not exceeding—

S. 22(2)(a) amended by No. 46/1991
s. 14(a).

S. 22(2)(b) amended by No. 46/1991
s. 14(b).

S. 22(3) amended by No. 46/1991
s. 14(c).

(3) The owner of a ship to which section 20 applies shall cause each of the ship's cargo record books to be retained—

(a) in the ship; or

(b) at the registered office in the State of the owner—

until the expiration of the period of two years next following the expiration of the period during which the book is required to be retained in the ship by virtue of subsection (1) and to be readily available for inspection at all reasonable times.

(4) Where a cargo record book of a ship is not retained in accordance with subsection (3), the owner of the ship is guilty of an offence punishable, upon conviction, by a fine not exceeding—

S. 22(4)(a) amended by No. 46/1991
s. 14(d).

(a) if the owner is a natural person—200 penalty units; or

S. 22(4)(b) amended by No. 46/1991
s. 14(e).

(b) if the owner is a body corporate—1000 penalty units.

(5) The owner of a ship to which section 20 applies who resides in the State, or has an office or agent in the State, may from time to time furnish to a prescribed officer notice, in writing, of an address, being the address of—

(a) the place in the State at which he so resides; or

(b) his office in the State or, if the owner has more than one office in the State, the principal office in the State; or

(c) the office or place of residence in the State of an agent or, if the agent has more than one office in the State, the principal office in the State of the agent—

and the place or office of which an address is furnished for the time being under this subsection is the registered office in the State of the owner of the ship for the purposes of subsection (3).

(6) Where the owner of a ship to which section 20 applies does not reside in the State and does not have an office or agent in the State, the owner may deposit a cargo record book of the ship with a prescribed officer and, while the book is so deposited, the book is, for the purposes of subsection (3), deemed to be retained at the registered office in the State of the owner.

23 Cleaning of tanks of ships

The regulations may make provision for and in relation to giving effect to Regulation 8 of Annex II.

Pt 2 Div. 2A (Heading and ss 23A, 23B) inserted by No. 46/1991 s. 15.

Division 2A—Prevention of pollution by garbage

S. 23A inserted by No. 46/1991
s. 15.

23A Interpretation

Except in so far as the contrary intention appears, an expression that is used in this Division and in Annex V to the Convention (whether or not a particular meaning is assigned to it by that Annex) has, in this Division, the same meaning as in that Annex.

S. 23B inserted by No. 46/1991
s. 15.

23B Prohibition of disposal of garbage into State waters

(1) Subject to subsections (2) to (8) (inclusive), if any disposal of garbage occurs from a ship into State waters, the master and the owner of the ship are each guilty of an indictable offence punishable, upon conviction—

(a) if the offender is a natural person, by a fine not exceeding 2000 penalty units, or imprisonment for 2 years, or both; or

(2) Subsection (1) does not apply to the disposal of garbage from a ship for the purpose of securing the safety of the ship and the persons on board the ship or of saving life at sea.

(3) Without limiting the generality of subsection (2) but subject to subsection (8), subsection (1) does not apply to the disposal of garbage (being dunnage, lining or packing materials which will float and are not plastics) from a ship into the sea if the following conditions are satisfied—

(a) the disposal takes place when the ship is not within a special area; and

(b) the disposal takes place when the ship is as far as practicable from, and is at a distance of not less than 25 nautical miles from, the nearest land; and

(c) the disposal takes place when the ship is not alongside, or within 500 metres of, a fixed or floating platform engaged in the exploration, exploitation and associated offshore processing of seabed mineral resources.

(4) Without limiting the generality of subsection (2) but subject to subsection (8), subsection (1) does not apply to the disposal of garbage (not being plastics, garbage referred to in subsection (3) or food wastes) from a ship into State waters if the following conditions are satisfied—

(a) the disposal occurs when the ship is not within a special area; and

S. 23B(4)(b) amended by No. 74/2000 s. 3(Sch. 1 item 100.1).

(b) the disposal occurs when the ship is as far as practicable from the nearest land; and

(c) except where paragraph (d) applies—the ship is at a distance of not less than 12 nautical miles from the nearest land; and

(d) where the garbage is passed through a comminuter or grinder so that it is capable of passing through a screen with no opening greater than 25 millimetres—when the ship is at a distance of not less than 3 nautical miles from the nearest land; and

(e) the disposal occurs when the ship is not alongside or within 500 metres of, a platform of a kind referred to in subsection (3)(c).

(5) Without limiting the generality of subsection (2) but subject to subsection (8), subsection (1) does not apply to the disposal of garbage, being food wastes, from a ship into the sea if—

(a) the following conditions are satisfied—

(i) the disposal occurs when the ship is as far as practicable from, and is at a distance of not less than 12 nautical miles from, the nearest land; or

(ii) the disposal occurs when the ship is not alongside, or within 500 metres of, a platform of a kind referred to in subsection (3)(c);

(b) the conditions referred to in subsection (4)(a), (b) and (d) are satisfied.

(6) Where garbage escapes from a ship into State waters because of damage to the ship or its equipment, subsection (1) does not apply to the disposal of the garbage if all reasonable precautions were taken before and after the occurrence of the damage for the purpose of preventing or minimising the escape of the garbage.

(7) Where a synthetic fishing net, or synthetic material used in the repair of such a net, on a ship is accidentally lost at sea, subsection (1) does not apply to the disposal of the net or material if all reasonable precautions were taken to prevent the loss.

(8) Without limiting the generality of subsection (2), where—

(a) garbage is mixed with matter the discharge or disposal of which from a ship into State waters is prohibited under another Division unless certain conditions are complied with; and

(b) the conditions referred to in paragraph (a) are more stringent than the conditions referred to in subsections (3) to (7) (inclusive)—

subsection (1)—

S. 23B(8)(c) amended by No. 11/2002 s. 3(Sch. 1 item 53).

(c) applies to the disposal of the garbage from a ship notwithstanding that the conditions referred to in subsection (3), (4), (5), (6) or (7) are complied with; but

(d) does not apply to the disposal of the garbage from a ship if those more stringent requirements are complied with.

(9) In proceedings for an offence against subsection (1) in relation to a ship, it is sufficient for the prosecution to allege and prove that garbage was disposed of from the ship into State waters, but it is a defence if it is proved that, by virtue of subsection (2), (3), (4), (5), (6), (7) or (8), subsection (1) does not apply in relation to the disposal.

(10) In this section, plastics includes synthetic ropes, synthetic fishing nets and plastic garbage bags.

Pt 2 Div. 2B (Heading and ss 23C–23E) inserted by No. 46/1991

Division 2B—Prevention of pollution by packaged harmful substances

S. 23C inserted by No. 46/1991

23C Definition

(1) In this Division—harmful substance means a substance which is identified as a marine pollutant in the International Maritime Dangerous Goods (IMDG) Code.

(2) Except in so far as a contrary intention appears, an expression that is used in this Division and in Annex III to the Convention (whether or not a particular meaning is assigned to it by that Annex) has, in this Division, the same meaning as in that Annex.

S. 23D inserted by No. 46/1991

23D Duty to report certain incidents involving harmful substances

(1) Where a prescribed incident occurs in State waters in relation to a ship, the master of the ship must, without delay, notify a prescribed officer of the incident, in the prescribed manner, and if a prescribed officer is not so notified the master is guilty of an indictable offence punishable upon conviction by a fine not exceeding 500 penalty units, or imprisonment for 1 year, or both.

(2) In a prosecution of a person for an offence against subsection (1) in relation to a prescribed incident, it is a defence if the person proves that the person was unable to comply with the subsection in relation to the incident.

(3) Where a prescribed incident occurs in State waters in relation to a ship and—

the owner, charterer, manager or operator of the ship or an agent of the owner, charterer, manager or operator of the ship shall, without delay, notify a prescribed officer of the incident, in the prescribed manner, and, if a prescribed officer is not so notified, each of those persons is guilty of an indictable offence punishable, upon conviction—

(c) if the offender is a natural person by a fine not exceeding—500 penalty units or imprisonment for 1 year or both; or

(d) if the offender is a body corporate by a fine not exceeding—2500 penalty units.

(4) In a prosecution of a person for an offence against subsection (3) in relation to a prescribed incident in relation to a ship, it is a defence if the person proves—

(b) in the case of a prescribed incident to which subsection (3)(a) applies, that the person neither knew nor suspected that the master of the ship was unable to comply with subsection (3) in relation to the incident.

(5) Subsection (4) shall not be taken to limit by implication any defence that would, but for that subsection, be available to a person charged with an offence against subsection (3).

(6) A master of a ship who, pursuant to subsection (1), has notified a prescribed officer of the occurrence of a prescribed incident must, if so requested by a prescribed officer, give, within the prescribed time, a report to a prescribed officer in relation to the incident in accordance with the prescribed form.

(7) Where subsection (3) applies in relation to a prescribed incident in relation to a ship, a person who, pursuant to that subsection, has notified a prescribed officer of the occurrence of the prescribed incident must, if so requested by a prescribed officer give, within the prescribed time, a report to a prescribed officer in relation to the incident in accordance with the prescribed form.

(8) A person must not, in a notice given to a prescribed officer pursuant to subsection (1) or (3) or in a report given to a prescribed officer to subsection (6) or (7), knowingly or recklessly make a statement that is false or misleading in a material particular.

(9) A notice given to a prescribed officer to subsection (1) or (3), and a report given to a prescribed officer pursuant to subsection (6) or (7), must not, without the consent of the person charged, be admitted in evidence in a prosecution for an offence against section 23E.

(10) In this section, prescribed incident, in relation to a ship means—

(a) a discharge from the ship of a harmful substance carried as cargo in a packaged form or in a freight container, portable tank or road and rail tank wagon, not being a discharge occurring because the substance was washed overboard in accordance with the regulations or orders made pursuant to the regulations; or

(b) an incident involving the probability of a discharge from the ship of a harmful substance carried as cargo in packaged form or in a freight container, portable tank or road and rail tank wagon, not being a discharge occurring because the substance was washed overboard in accordance with the regulations or orders made pursuant to the regulations.

S. 23E inserted by No. 46/1991

23E Prohibition of discharge by jettisoning of harmful substances into State waters

(1) Subject to subsections (2) and (3), if any discharge by jettisoning of a harmful substance, being a substance carried as cargo in packaged form or in a freight container, portable tank or road and rail tank wagon, occurs from a ship into State waters, the master and the owner of the ship are each guilty of an offence punishable, upon conviction—

(a) if the offender is a natural person, by a fine not exceeding 2000 penalty units, or imprisonment for 2 years, or both; or

(2) Subsection (1) does not apply to the discharge of a harmful substance from a ship for the purposes of securing the safety of the ship or saving life at sea.

(3) Where a harmful substance referred to in subsection (1) is discharged from a ship into State waters because of a leakage of the substance, the substance shall, for the purposes of this section, be taken to have been discharged by jettisoning, but subsection (1) does not apply to the discharge if—

(a) the substance was washed overboard from the ship in accordance with regulations or orders made pursuant to regulations; or

(b) the substance was washed overboard from the ship otherwise than in accordance with such regulations or orders in circumstances where compliance with such regulations or orders would have impaired the safety of the ship or of persons on board the ship.

(4) In proceedings for an offence against subsection (1) in relation to a ship it is sufficient for the prosecution to allege and prove that a discharge of a harmful substance referred to in subsection (1) occurred from the ship into State waters, but it is a defence if it is proved that, by virtue of subsection (2) or (3), subsection (1) does not apply in relation to the discharge.

Pt 2 Div. 2C (Heading and ss 23F, 23G) inserted by No. 46/1991
s. 17.

Division 2C—Prevention of pollution by sewage

S. 23F inserted by No. 46/1991
s. 17.

23F Interpretation

Except in so far as the contrary intention appears, an expression that is used in this Division and in Annex IV to the Convention (whether or not a particular meaning is assigned to it by that Annex) has, in this Division the same meaning as in the Annex.

S. 23G inserted by No. 46/1991
s. 17 (as amended by No. 82/1995 s. 189(8) (as amended by No. 63/1997 s. 9(2)).

23G Prohibition of discharge of sewage into State waters

(1) Subject to subsections (2) to (6) (inclusive), if any discharge of sewage occurs from a ship into State waters, the master and the owner of the ship are each guilty of an indictable offence punishable upon conviction—

1. if the offender is a natural person, by a fine not exceeding 2000 penalty units, or imprisonment for 2 years, or both; or

(2) Subsection (1) does not apply to the discharge of sewage from a ship—

(a) for the purposes of securing the safety of a ship and persons on board the ship or of saving life at sea; or

(b) in a case where the sewage escaped from the ship in consequence of damage to the ship or its equipment and all reasonable precautions were taken before and after the occurrence of the damage for the purpose of preventing or minimising the escape of the sewage.

(3) Without limiting the generality of subsection (2) but subject to subsection (5), subsection (1) does not apply to the discharge of sewage from a ship if the following conditions are satisfied:

(a) Where the sewage has been comminuted and disinfected using a system approved in accordance with the regulations, or orders made pursuant to the regulations, giving effect to Regulation 3 of Annex IV to the Convention—the discharge is made when the ship is at a distance of not less than 4 nautical miles from the nearest land;

(b) Where the sewage is not sewage referred to in paragraph (a)—the discharge is made when the ship is at a distance of not less than 12 nautical miles from the nearest land;

(c) Where the sewage has been stored in holding tanks—the sewage is not discharged instantaneously but is discharged at a prescribed rate when the ship is proceeding en route at a speed of not less than 4 knots.

(4) Without limiting the generality of subsection (2) but subject to subsection (5), subsection (1) does not apply to the discharge of sewage from a ship if the following conditions are satisfied—

(a) the sewage has been treated in a sewage treatment plant on the ship, being a plant—

(i) that an authorised officer has certified meets the requirements of the regulations giving effect to Regulation 3 of Annex IV to the Convention; and

(ii) the test results of which are laid down in the ship's sewage certificate within the meaning of Division 12C of Part IV of the Navigation Act; and

(b) the effluent does not produce visible floating solids in the waters of the sea and does not cause discolouration of the waters of the sea.

(5) Without limiting the generality of subsection (2), where—

(a) sewage consists in whole or in part of, or is mixed with, wastes, or waste water, the discharge of which from a ship into State waters is prohibited under another Division unless certain conditions are complied with; and

(b) the conditions referred to in paragraph (a) are more stringent than the conditions referred to subsection (3) and (4)—

subsection (1)—

(c) applies to the discharge of the sewage from a ship notwithstanding that the conditions referred to in subsection (3) or (4) are complied with; but

(d) does not apply to the discharge of the sewage from a ship if those more stringent requirements are complied with.

(6) In proceedings for an offence against subsection (1) in relation to a ship, it is sufficient for the prosecution to allege and prove that a discharge of sewage occurred from the ship into State waters, but it is a defence if it is proved that, by virtue of subsection (2), (3), (4) or (5), subsection (1) does not apply in relation to the discharge.

Pt 2 Div. 2D (Heading and ss 23H–23L) inserted by No. 82/1995 s. 183.

Division 2D—Discharges

S. 23H inserted by No. 82/1995 s. 183.

23H Definitions

agent, in relation to a ship, means any person who performs for or on behalf of the owner of the ship any function or duty under or for the purposes of this Act and includes any person who, within the State, on behalf of the owner of the ship, undertakes or performs the functions of ships' husbandry or makes any arrangements for or in connection with the repair or berthing of the ship or the carriage, loading or unloading of cargo, stores or bunkers on the ship or from the ship;

discharge means any discharge or escape, howsoever caused;

liquid substance and mixture have the same meanings as in Division 2;

occupier—

(a) in relation to a place on land, means the person exercising personally or through servants or agents, any right of occupation of the land or, if there is no such person, the owner of the land; and

(b) in relation to a vehicle, includes the person in charge of the vehicle and the owner of the vehicle but does not include the occupier of the land on or over which the vehicle stands or moves; and

(c) in relation to a pipeline, means the person who undertakes the carriage of oil or an oily mixture by means of the pipeline;

def. of oil amended by No. 74/2000 s. 3(Sch. 1 item 100.2).

oil and oily mixture have the same meanings as in Annex I to the Convention;

oil tanker means a ship constructed or adapted for carrying a cargo of oil in bulk;

oil residues means those parts of an oily mixture that remain after undergoing a separation process;

place on land includes—

(a) any structure or apparatus on land; and

(b) any thing or vehicle resting on or moving over land; and

(c) any thing resting on or lying under the bed, shore or bank of any navigable waters; and

(d) any thing afloat (other than a ship) if it is anchored or attached to the bed, shore or bank of any navigable waters or is used in any operation for the exploration of the sea-bed and sub-soil or the exploitation of the natural resources of the sea-bed and sub-soil;

prohibited discharge means a discharge into State waters of—

(a) oil; or

(b) an oily mixture; or

(c) an undesirable substance;

public statutory body includes any Minister of the Crown and any municipal council;

def. of ship amended by No. 74/2000 s. 3(Sch. 1 item 100.2).

ship has the same meaning as in Annex I to the Convention;

def of transfer operation amended by No. 63/1997
s. 9(1).

transfer operation means any operation involved in the preparation for, or the commencement, carrying on or termination of, the transfer of oil or an oily mixture or a liquid substance or a mixture containing a liquid substance from or to any ship, whether to or from a place on land or to or from another ship;

undesirable substance means—

(a) any solid ballast, rubbish, gravel, earth, stone or wreck; or

(b) any dangerous, flammable, corrosive or offensive substance, whether solid, liquid or gaseous; or

(c) any article or thing or any substance (whether solid, liquid or gaseous) which is capable of constituting a hazard to navigation or of preventing or hindering the proper use of State waters—

but does not include oil or an oily mixture.

(2) A discharge of oil or an oily mixture onto or into any land, water, structure or thing is, if the whole or any part of the oil or oily mixture eventually enters State waters, to be taken for all purposes under this Part to be a discharge into State waters of the oil or oily mixture or of so much of it as enters State waters.

S. 23I
inserted by No. 82/1995 s. 183, amended by No. 39/2018 s. 50(2).

23I Environment Protection Act prevails

To the extent that this Division is inconsistent with any of the provisions of the Environment Protection Act 2017, the provisions of the Environment Protection Act 2017 prevail.

S. 23J
inserted by No. 82/1995 s. 183.

23J Prohibited discharge into State waters

(1) If a prohibited discharge occurs from any apparatus used in a transfer operation, the person in charge of the apparatus is guilty of an indictable offence.

(2) If a prohibited discharge occurs by reason of any act or omission in a transfer operation (not being an act or omission done or made at the place on land or in relation to the apparatus from which the discharge occurs)—

(a) if the act or omission is done or made at a place on land (otherwise than in circumstances described in paragraph (b))—the occupier of that place; or

(b) if the act or omission is done or made in relation to apparatus used in a transfer operation—the person in charge of the apparatus—

is guilty of an indictable offence.

(3) A person who is guilty of an offence under subsection (1) or (2) is liable—

(a) in the case of an individual, to a fine not exceeding 2000 penalty units or imprisonment for 2 years, or both; or

(b) in the case of a body corporate, to a fine not exceeding 10 000 penalty units.

(4) It is a defence to a charge under subsection (1) for the person charged to prove—

(a) that the discharge was due to an accident that could not have been foreseen and avoided; and

(b) that all reasonable steps were taken for the prompt discovery of the discharge and, after the discovery, for stopping or reducing the discharge.

(5) It is a defence to a charge under subsection (2) for the person charged to prove that the act or omission by reason of which the discharge occurred was not done or made wilfully or negligently.

S. 23K inserted by No. 82/1995 s. 183.

23K Discharge from ships

(1) If a discharge into State waters of oil or an oily mixture occurs from any ship that—

(a) is not an oil tanker; and

(b) has a gross tonnage of less than 400—

the owner of that ship is guilty of an indictable offence.

(2) If a discharge into State waters of an undesirable substance (not being a liquid substance or a mixture containing a liquid substance carried as cargo or part cargo in bulk) occurs from any ship, the owner of that ship is guilty of an indictable offence.

(3) A person who is guilty of an offence under subsection (1) or (2) is liable—

(a) in the case of an individual, to a fine not exceeding 2000 penalty units or imprisonment for 2 years, or both; or

(b) in the case of a body corporate, to a fine not exceeding 10 000 penalty units.

(4) It is a defence to a charge under subsection (1) or (2) for the person charged to prove—

(a) that the discharge was due to an accident that could not have been foreseen and avoided; and

(b) that all reasonable steps were taken for the prompt discovery of the discharge and, after the discovery, for stopping or reducing the discharge.

S. 23L inserted by No. 82/1995 s. 183.

23L Duty to report discharges

(1) If a prohibited discharge occurs from any apparatus used in a transfer operation on any place on land or from any ship that is not an oil tanker and has a gross tonnage of less than 400, the occupier of that place, or the owner or master of the ship must, without delay, inform the Authority or its delegate of all details of the occurrence and if the Authority or its delegate is not so notified each of those persons is guilty of an indictable offence punishable, on conviction—

(a) if the offender is an individual, by a fine not exceeding 500 penalty units, or imprisonment for one year, or both; or

(b) if the offender is a body corporate, by a fine not exceeding 2500 penalty units.

(2) If information is given orally under subsection (1), the occupier, owner or master must give to the Authority within 24 hours a written notice confirming the information.

1. 2 penalty units.

(3) A certificate purporting to be issued by the Authority or to be signed by an authorised officer or any other person authorised by the Authority in that behalf certifying that by a particular time any information or notice required to be given to the Authority by subsection (1) or (2) had not been given, is admissible in evidence in any proceedings for an offence under either of those subsections and, in the absence of evidence to the contrary, is proof of the matters stated in the certificate.

Division 3—Miscellaneous

24 Powers of authorised officers

(1) For the purposes of ascertaining—

(a) whether a provision of this Part that is applicable in relation to a ship has been complied with in respect of the ship; or

S. 24(1)(b) amended by No. 82/1995 s. 189(4).

(b) whether there has been a discharge into State waters in contravention of this Part—

an authorised officer may—

S. 24(1)(c) amended by No. 82/1995 s. 189(4).

(c) go on board the ship with such assistants and equipment as the authorised officer considers necessary; and

S. 24(1)(d) amended by No. 82/1995 s. 189(4).

(d) require the master of the ship to take such steps as the authorised officer directs to facilitate the boarding; and

(e) inspect and test any machinery or equipment of the ship; and

S. 24(1)(f) amended by No. 82/1995 s. 189(4).

(f) require the master of the ship to take such steps as the authorised officer directs to facilitate the inspection or testing of any machinery or equipment of the ship; and

(g) open, or require the master of the ship to cause to be opened, any hold, bunker, tank, compartment or receptacle in or on board the ship and inspect the contents of any hold, bunker, tank, compartment or receptacle in or on board the ship; and

(h) require the master of the ship to produce a record book required by this Act to be carried in the ship or any other books, documents or records relating to the ship or its cargo that are carried in the ship; and

(i) make copies of, or take extracts from, any such books, documents or records; and

S. 24(1)(j) amended by No. 82/1995 s. 189(4).

(j) require the master of the ship to certify that a true copy of an entry in a record book required by this Act to be carried in the ship made by the authorised officer is a true copy of such an entry; and

(k) examine, and take samples of, any substances being in, on, or in the vicinity of a ship in respect of which an investigation of a discharge or suspected discharge in breach of a provision of this Act is being made; and

(l) require the master of the ship, or any person representing the master, to certify the taking of the samples; and

(m) require a person to answer questions.

S. 24(2) amended by No. 46/1991
s. 18.

(2) A person shall not—

S. 24(2)(a) amended by No. 82/1995 s. 189(4).

(a) without reasonable excuse, hinder or obstruct or refuse or fail to comply with a requirement made of the person by, an authorised officer in the exercise of his powers under subsection (1); or

(b) in answer to a question that the person is required to answer under subsection (1), make a statement that is false or misleading in a material particular.

S. 24(3) amended by No. 82/1995 s. 189(4).

(3) An authorised officer must not, in exercising powers under subsection (1), unnecessarily delay a ship from beginning a voyage.

Ss 24A, 24B inserted by No. 46/1991
s. 19, repealed by No. 82/1995 s. 184.

S. 24C inserted by No. 46/1991
s. 19.

24C Summary jurisdiction in indictable offences

S. 24C(1) amended by No. 68/2009 s. 97(Sch. item 94).

(1) Part 3.1 of Chapter 3 of the Criminal Procedure Act 2009 enabling the hearing of a charge for certain indictable offences in a summary way has effect with respect to indictable offences under this Act, subject to the following provisions:

S. 24C(1)(a) amended by No. 35/1996
s. 453(Sch. 1 item 66).

(a) Any consent required by those provisions to be given by the person charged may, in the absence of that person, be given on that person's behalf by that person's legal practitioner or the agent of the owner, charterer, manager or operator of the ship in respect of which the offence is alleged to have occurred;

(b) The court may hear and determine that charge in a summary way if it considers of its own motion at any time during or immediately after the hearing of the evidence for the prosecution and whether or not the person charged is present in court or represented in court that it is fitting for the charge to be disposed of summarily;

(c) The court may impose a fine of not more than 500 penalty units, or imprisonment for 2 years, or both;

(d) If the person charged is for the time being out of the jurisdiction, service of any documents relating to the offence is sufficiently served on that person by being served on the agent (if any) of the owner, charterer, manager or operator of the ship in respect of which the offence is alleged to have occurred.

(2) Despite the provisions of any Act, law or usage to the contrary, a person who has been directed to be tried for an indictable offence under this Act may be proceeded against, tried and convicted of the offence in the person's absence.

S. 24D (Heading) inserted by No. 65/2010 s. 420(Sch. 3 item 14.1).

S. 24D inserted by No. 46/1991
s. 19, amended by No. 65/2010 s. 420(Sch. 3 item 14.2).

24D Powers under the Marine (Drug, Alcohol and Pollution Control) Act 1988 additional to powers under this Act

Nothing in this Act affects the operation according to their tenor of sections 45, 46 and 47 of the Marine (Drug, Alcohol and Pollution Control) Act 1988 in relation to matters to which this Act also applies.

S. 24E inserted by No. 46/1991
s. 19.

24E Reception facilities

S. 24E(1) amended by No. 82/1995 s. 185(1)(2)(a).

(1) The Minister may direct the provision of reception facilities in accordance with Regulation 12 of Annex I, Regulation 7 of Annex II, Regulation 10 of Annex IV and Regulation 7 of Annex V to the Convention.

(2) The regulations may prescribe charges and impose conditions for the use of such facilities.

S. 24E(3) amended by No. 82/1995 s. 185(2)(a).

(3) The Minister may serve on—

(a) the owner or the occupier of an oil terminal, oil depot, oil installation or other establishment used for the loading or unloading of oil in bulk or liquid substances in bulk; or

(b) the owner or the occupier of any establishment at which ships are repaired or other work is performed relating to ships and involving the disposal of oily mixtures, mixtures containing liquid substances or oil residues or residues of liquid substances—

a notice containing a requirement set out in subsection (4).

(4) A notice may require an owner or occupier to—

S. 24E(4)(a) amended by No. 82/1995 s. 185(2)(b).

(a) provide facilities of a standard satisfactory to the Minister for the reception or disposal, or both, of residues by ships berthed, docked or otherwise being at the establishment;

(b) maintain the facilities in good order and condition; and

(c) make the facilities available to enable ships to dispose of the residues.

(5) A notice—

(a) may specify a time within which a requirement is to be complied with; and

S. 24E(5)(b) amended by No. 82/1995 s. 185(3).

(b) shall be signed by the Minister; and

(c) may be revoked or varied by a further notice.

(6) An owner or occupier must comply with a requirement made by a notice.

1. 250 penalty units.

(7) A notice may be served—

(a) in any manner in which a summons for an offence against this Act may be served; or

(b) by delivering it to the owner or the occupier or the persons appearing to be in charge of the oil terminal, oil depot, oil installation or establishment.

25 No time limit for prosecution

A prosecution for an offence against this Part may be brought at any time.

26 Service of summonses

S. 26(1) amended by No. 46/1991
s. 20(a).

(1) Any summons to be served on the owner or master of a ship in respect of an offence against this Part may be served by serving it on the agent of the owner, charterer, manager or operator of the ship in any manner in which it might have been served on the owner or master under that section.

S. 26(2) amended by No. 46/1991
s. 20(b).

(2) A summons served on an agent of the owner, charterer, manager or operator of a ship pursuant to subsection (1) shall be deemed to have been served on the owner or master of the ship.

(3) Any summons in respect of an offence against this Part may be issued and served on a Sunday as on any other day.

27 Evidence

In any proceedings for an offence against a provision of this Part—

(a) any record kept in pursuance of this Part is admissible as prima facie evidence of the facts stated in the record; and

(b) a copy of an entry in such a record, being a copy certified by the person by whom the record is required to be kept to be a true copy of the entry, is admissible as prima facie evidence of the facts stated in the entry; and

S. 27(c) amended by No. 82/1995 s. 186.

(c) a document purporting to be a record kept in pursuance of this Part, or purporting to be such a certified copy as referred to in paragraph (b), shall, unless the contrary is proved, be deemed to be such a record or certified copy, as the case may be; and

S. 27(d) inserted by No. 82/1995 s. 186.

(d) a map, plan or chart of any State waters purporting to be certified by the Authority or by a person authorised by the Authority for the purpose is admissible in evidence and, in the absence of evidence to the contrary, is proof of any matter that is apparent from, or can be calculated from, the map, plan or chart.

S. 28 substituted by No. 82/1995 s. 187, amended by No. 39/2018 s. 50(3).

28 Enforcement provisions

Sections 242, 243, 245, 337, 340, 346, 347 and 438 of the Environment Protection Act 2017 must be read and construed as one with this Act.

S. 29 amended by No. 82/1995 s. 189(5).

29 Immunity of authorised officers

No liability shall attach to an authorised officer, or any person acting with the authority or on the direction of an authorised officer, in good faith and in the exercise or purported exercise of a power or in the discharge or purported discharge of a duty under this Part.

30 Regulations

(1) The Governor in Council may make regulations prescribing matters—

(a) required or permitted by this Part to be prescribed; or

(b) necessary or convenient to be prescribed for carrying out or giving effect to this Part—

and, in particular—

(c) for and in relation to giving effect to Regulation 3(1) of Annex I, or Regulations 5(5) or 5(10) of Annex II, to the Convention; and

(d) empowering the Minister to make orders for and in relation to—

(i) giving effect to Regulation 3(1) of Annex I, or Regulation 5(5) or 5(10) of Annex II, to the Convention; and

(ii) the fixing of fees to be paid in respect of any matters under the orders; and

(e) fixing fees to be paid in respect of any matters under this Part; and

(f) prescribing penalties, not exceeding—

(i) in the case of an individual—a fine of 20 penalty units or imprisonment for one year; or

(ii) in the case of a body corporate—a fine of 50 penalty units—

for a contravention of, or failure to comply with, a provision of the regulations or of any of the orders made in pursuance of the regulations; and

(g) so as to apply—

(i) generally or in a particular class of case or in particular classes of case; and

(ii) throughout the State and all State waters or in a prescribed part or prescribed parts of the State or State waters; and

(h) exempting, either absolutely or subject to conditions, a prescribed ship or person, or ships or persons included in a prescribed class of ships or persons, from all or any of the provisions of this Part or of the regulations.

(2) If the Convention is amended, other than by an amendment objected to by Australia, the Governor in Council may by regulations—

(a) amend Schedule 1, Schedule 2 or Schedule 3; or

(b) add a further schedule or schedules—

in order that the schedules may contain relevant parts of the Convention as in force from time to time.

31 Orders

(1) Orders made in pursuance of the regulations are subject to disallowance by Parliament.

(2) Section 28 of the Interpretation of Legislation Act 1984 and sections 5 and 6 of the Subordinate Legislation Act 1962 apply in relation to orders made in pursuance of the regulations as if references in those sections to subordinate instruments or statutory rules were references to such orders.

(3) Unless the contrary intentions appears, expressions used in orders made in pursuance of the regulations have the same meanings as in this Part.

(4) Orders made in pursuance of the regulations shall be read subject to this Part and the regulations and so as not to exceed the power conferred by this Part and the regulations to the intent that, where such orders would, but for this subsection, have been construed as being in excess of the power conferred by this Part and the regulations, they shall be deemed to be valid orders to the extent to which they are not in excess of that power.

(5) Where an order made in pursuance of the regulations is inconsistent with a provision of this Part or the regulations, the latter shall prevail and the former shall, to the extent of the inconsistency, be of no force or effect.

32 Prescribing matters by reference to other instruments

(1) The regulations or orders under this Part may make provision for or in relation to a matter by applying, adopting, or incorporating either wholly or in part or with modifications, any regulations, rules, codes, orders, instructions or other subordinate legislation made, determined or issued under any other Act or under any Act of the Parliament of the Commonwealth.

(2) The regulations made under this Part may make provision for or in relation to a matter by applying, adopting or incorporating any matter contained in orders made in pursuance of the regulations.

S. 33
repealed by No. 46/1991 s. 21.

Part 3—Ships carrying or using oil

Division 1—Preliminary

34 Definitions

This Part applies to—

S. 34A inserted by No. 82/1995 s. 188, amended by No. 39/2018 s. 50(4).

34A Execution of documents by Authority

Section 342 of the Environment Protection Act 2017 must be read and construed as one with this Part.

Division 2—Prevention of Pollution from Ships Convention (ships carrying or using oil)

35 Definitions

(1) In this Division Annex I means Annex I to the Convention.

(2) Except in so far as the contrary intention appears, an expression that is used in this Division and in the Convention, including Annex I but not including any other Annex to the Convention, (whether or not a particular meaning is assigned to it by that Convention) has, in this Division the same meaning as in that Convention.

(3) For the purposes of this Division, a ship shall not be taken to comply with the provisions of Annex I if it does not comply with the regulations and orders referred to in section 36.

36 Regulations to give effect to Regulations 13 to 19 (inclusive) of Annex I

S. 36(1) amended by No. 46/1991
s. 22.

(1) The regulations may make provisions for and in relation to giving effect to Regulations 13 to 19 (inclusive) and 22 to 25 (inclusive) of Annex I.

(2) Without limiting the generality of subsection (1), regulations made for the purposes of that subsection may empower the Minister to make orders with respect to any matter for or in relation to which provision may be made by the regulations by virtue of this section.

(4) Section 28 of the Interpretation of Legislation Act 1984 and sections 5 and 6 of the Subordinate Legislation Act 1962 apply in relation to orders made in pursuance of regulations made under subsection (1) as if references in those sections to subordinate instruments or statutory rules were references to such orders.

(5) Unless the contrary intention appears, expressions used in orders made in pursuance of the regulations made under subsection (1) have the same meanings as in this Division.

(6) Orders made in pursuance of the regulations made under subsection (1) shall be read subject to this Part and the regulations and so as not to exceed the power conferred by this Part and the regulations to the intent that where such orders would, but for this subsection, have been construed as being in excess of the power conferred by subsection (1) and the regulations, they shall be deemed to be valid orders to the extent that they are not in excess of that power.

(7) Where an order made in pursuance of the regulations made under subsection (1) is inconsistent with a provision of this Part or the regulations, the latter shall prevail and the former shall, to the extent of the inconsistency, be of no force or effect.

S. 37 amended by No. 46/1991
s. 23(1).

37 Ship construction certificate

S. 37(1) amended by Nos 82/1995 s. 189(6)(a)(b), 77/2001 s. 32(3)(b)(i)(ii).

(1) Where, on receipt of declarations of survey in respect of a ship, the Director of Marine Safety is satisfied that the ship is constructed in accordance with the provisions of Annex I, the Director may, whether or not the ship is required by Annex I to be constructed in accordance with those provisions, issue in respect of the ship a ship construction certificate in the prescribed form attesting such compliance.

S. 37(2) inserted by No. 46/1991
s. 23(2), amended by No. 74/2000 s. 3(Sch. 1 item 100.3).

(2) Where after the survey of a ship (being an oil tanker) carried out by a survey authority, the authority is satisfied that the ship is constructed in accordance with the provisions of Annex I, the authority may, whether or not the ship is required by Annex I to be constructed, in accordance with those provisions, issue in respect of the ship a ship construction certificate, in the prescribed form attesting such compliance.

38 Alteration etc. of construction of ships and cancellation of certificates

(1) Where the construction of a ship in respect of which a ship construction certificate issued under section 37 is in force is altered, or such a ship is damaged, in a manner which affects its compliance with the provisions of Annex I, the master or owner of the ship shall, within 7 days after the construction of the ship is altered or the ship is damaged, as the case may be, give notice in writing of the alteration or damage to such person, and in such form, as are prescribed and, if the notice is not so given, the master and the owner of the ship are each guilty of an offence punishable upon conviction by a fine not exceeding—

S. 38(1)(a) amended by No. 46/1991
s. 24(a).

(a) if the offender is a natural person—20 penalty units; or

S. 38(1)(b) amended by No. 46/1991
s. 24(b).

(2) Where a notice required to be given under subsection (1) is not given within the period referred to in that subsection, the following provisions of this subsection have effect:

(a) The obligation to give the notice continues, notwithstanding that that period has expired, until the notice is given;

(b) The master and the owner of the ship are each guilty of a separate and further offence in respect of each day during which the notice is not given, being a day after the expiration of that period;

(c) The penalty applicable to each such separate and further offence is a fine not exceeding—

S. 38(2)(i) amended by No. 46/1991
s. 24(c).

S. 38(2)(ii) amended by No. 46/1991
s. 24(d).

S. 38(3) amended by No. 57/1989
s. 3(Sch. item 157.1).

(3) Charges against the same person for any number of offences under subsection (2)(b) relating to a single notice may be joined in the same charge-sheet.

(4) If a person is convicted of two or more offences under subsection (2)(b) relating to a single notice, the court may impose one penalty in respect of both or all of those offences, but that penalty shall not exceed the sum of the maximum penalties that could be imposed if a penalty were imposed in respect of each offence separately.

(5) Where the Minister has reason to believe that—

(a) the report of a surveyor concerning a ship in respect of which a ship construction certificate issued under section 37 is in force was fraudulently or erroneously made or obtained;

(b) a ship construction certificate has been issued under section 37 in respect of a ship upon false or erroneous information;

(c) the construction of a ship in respect of which a ship construction certificate issued under section 37 is in force has been altered, or such a ship has been damaged, in a manner which affects its compliance with the provisions of Annex I; or

(d) the owner of a ship in respect of which a ship construction certificate issued under section 37 is in force has failed to comply with section 39 in respect of the ship—

the Minister may, by instrument signed by the Minister, cancel the certificate.

(6) Where the Minister cancels a ship construction certificate issued by the Minister in respect of a ship, the certificate is of no force or effect after the Minister has given notice in writing of the cancellation addressed to the owner, agent or master of the ship and served in accordance with the regulations.

(7) Where a ship construction certificate issued in respect of a ship is cancelled under this section, the Minister may, by notice in writing addressed to the owner, agent or master of the ship and served in accordance with the regulations, require the certificate to be delivered up to the Minister or to such other person as the Minister specifies, and the Minister may detain the ship until the requirement is complied with.

39 Ships to be surveyed periodically

(1) The owner of a ship in respect of which a ship construction certificate issued under section 37 is in force shall, at least once during each period that is a prescribed period in relation to the ship for the purposes of this section, cause the ship to be surveyed for the purpose of ensuring its compliance with the provisions of Annex I.

(2) Where the owner of a ship in respect of which a ship construction certificate issued under section 37 is in force fails to comply with subsection (1) in relation to the ship and to a period that is a prescribed period in relation to the ship, the owner is guilty of an offence punishable on conviction by a fine not exceeding—

S. 39(2)(b) amended by No. 46/1991
s. 25.

(b) if the owner is a body corporate—100 penalty units.

40 Requirement for ship construction certificates

(a) a trading ship proceeding on an intra-state voyage;

(c) a pleasure vessel—

that is—

(d) an oil tanker of 150 tons gross tonnage and above; or

(e) a ship, other than an oil tanker, of 400 tons gross tonnage and above.

(2) The master of a ship to which this section applies shall not begin a voyage unless there is in force in respect of the ship a ship construction certificate.

Penalty: 100 penalty units or imprisonment for 4 years, or both.

(3) The owner of a ship to which this section applies shall not permit the ship to begin a voyage unless there is in force in respect of the ship a ship construction certificate.

(a) if the offender is a natural person—100 penalty units or imprisonment for 4 years, or both; or

S. 40(3)(b) amended by No. 46/1991
s. 26(a).

S. 40(3A) inserted by No. 46/1991
s. 26(b).

(3A) An offence against subsection (2) or (3) is an indictable offence.

(4) The regulations may exempt ships included in a prescribed class of ships from the application of subsection (1), either absolutely or subject to conditions.

(5) In this section ship construction certificate means—

(a) a ship construction certificate issued under section 37; or

(b) a ship construction certificate issued under section 267B of the Navigation Act; or

(c) a ship construction certificate issued under a law of another State or the Northern Territory and being a certificate of a kind prescribed as acceptable for the purposes of this Division; or

(d) an International Oil Pollution Prevention Certificate issued to a foreign ship under section 267C of the Navigation Act; or

(e) an International Oil Pollution Prevention Certificate issued to an Australian ship under the law of a country other than Australia giving effect to Regulation 6 of Annex I.

S. 40(6) amended by No. 46/1991
s. 26(c).

(6) The owner of a ship to which this section applies in respect of which a ship construction certificate is in force shall cause the certificate to be carried on board the ship.

Division 3—Prevention of Pollution from Ships Convention (ships carrying noxious liquid substances in bulk)

41 Definitions

Annex II means Annex II to the Convention.

(2) Except in so far as the contrary intention appears, an expression that is used in this Division and in the Convention, including Annex II but not including any other Annex to the Convention (whether or not a particular meaning is assigned to it by the Convention) has, in this Division, the same meaning as in the Convention.

(3) For the purposes of this Division, a ship shall not be taken to comply with the provisions of Annex II if it does not comply with the regulations and orders referred to in section 42.

42 Regulations to give effect to Regulation 13 of Annex II

(1) The regulations may make provision for and in relation to giving effect to Regulation 13 of Annex II.

(2) Without limiting the generality of subsection (1), regulations made for the purposes of that subsection may empower the Minister to make orders with respect to any matter for or in relation to which provision may be made by the regulations by virtue of this section.

(4) Section 28 of the Interpretation of Legislation Act 1984 and sections 5 and 6 of the Subordinate Legislation Act 1962 apply in relation to orders made in pursuance of regulations made under subsection (1) as if references in those sections to subordinate instruments or statutory rules were references to such orders.

(5) Unless the contrary intention appears, expressions used in orders made in pursuance of the regulations made under subsection (1) have the same meanings as in this Division.

(6) Orders made in pursuance of the regulations made under subsection (1) shall be read subject to this Part and the regulations and so as not to exceed the power conferred by this Part and the regulations to the intent that where such orders would, but for this subsection, have been construed as being in excess of the power conferred by subsection (1) and the regulations, they shall be deemed to be valid orders to the extent that they are not in excess of that power.

(7) Where an order made in pursuance of the regulations made under subsection (1) is inconsistent with a provision of this part or the regulations, the latter shall prevail and the former shall, to the extent of the inconsistency, be of no force or effect.

S. 43 amended by No. 46/1991
s. 27(1).

43 Chemical tanker construction certificates

(1) Where, on receipt of declarations of survey in respect of a ship, the Minister is satisfied that the ship is constructed in accordance with the provisions of Annex II, the Minister may, whether or not the ship is required by Annex II to be constructed in accordance with those provisions, issue in respect of the ship a chemical tanker construction certificate in the prescribed form attesting such compliance.

S. 43(2) inserted by No. 46/1991
s. 27(2).

(2) Where, after the survey of a ship carried out by a survey authority, the authority is satisfied that the ship is constructed in accordance with the provisions of Annex II, the authority may, whether or not the ship is required by Annex II to be constructed in accordance with those provisions, issue in respect of the ship a chemical tanker construction certificate, in the prescribed form, attesting such compliance.

44 Alteration etc. of construction of ships and cancellation of certificates

(1) Where the construction of a ship in respect of which a chemical tanker construction certificate issued under section 43 is in force is altered, or such a ship is damaged, in a manner which affects its compliance with the provisions of Annex II, the master or owner of the ship shall, within 7 days after the construction of the ship is altered or the ship is damaged, as the case may be, give a notice in writing of the alteration or damage to such person, and in such form, as are prescribed and, if the notice is not so given, the master and the owner of the ship are each guilty of an offence punishable upon conviction by a fine not exceeding—

S. 44(1)(a) amended by No. 46/1991
s. 28(a).

(a) if the offender is a natural person—10 penalty units; or

S. 44(1)(b) amended by No. 46/1991
s. 28(b).

(2) Where a notice required to be given under subsection (1) is not given within the period referred to in that subsection, the following provisions of this subsection have effect—

(a) the obligation to give the notice continues, notwithstanding that that period has expired, until the notice is given;

(b) the master and the owner of the ship are each guilty of a separate and further offence in respect of each day during which the notice is not given, being a day after the expiration of that period;

(c) the penalty applicable to each such separate and further offence is a fine not exceeding—

S. 44(2)(c)(i) amended by No. 46/1991
s. 28(c).

S. 44(2)(c)(ii) amended by No. 46/1991
s. 28(d).

S. 44(3) amended by No. 57/1989
s. 3(Sch. item 157.2).

(3) Charges against the same person for any number of offences under subsection (2)(b) relating to a single notice may be joined in the same charge-sheet.

(4) If a person is convicted of two or more offences under subsection (2)(b) relating to a single notice, the court may impose one penalty in respect of both or all of those offences, but that penalty shall not exceed the sum of the maximum penalties that could be imposed if a penalty were imposed in respect of each offence separately.

(5) Where the Minister has reason to believe that—

(a) the report of a surveyor concerning a ship in respect of which a chemical tanker construction certificate issued under section 43 is in force was fraudulently or erroneously made or obtained; or

(b) a chemical tanker construction certificate has been issued under section 43 in respect of a ship upon false or erroneous information; or

(c) the construction of a ship in respect of which a chemical tanker construction certificate issued under section 43 is in force has been altered, or such a ship has been damaged, in a manner which affects its compliance with the provisions of Annex II; or

(d) the owner of a ship in respect of which a chemical tanker construction certificate issued under section 43 is in force has failed to comply with section 45 in respect of the ship—

the Minister may, by instrument, cancel the certificate.

(6) Where the Minister cancels a chemical tanker construction certificate issued by him in respect of a ship, the certificate is of no force or effect after the Minister has given notice in writing of the cancellation addressed to the owner, agent or master of the ship and served in accordance with the regulations.

(7) Where a chemical tanker construction certificate issued in respect of a ship is cancelled under this section, the Minister may, by notice in writing addressed to the owner, agent or master of the ship and served in accordance with the regulations, require the certificate to be delivered up to the Minister or to such other person as the Minister specifies, and the Minister may detain the ship until the requirement is complied with.

45 Ships to be surveyed periodically

(1) The owner of a ship in respect of which a chemical tanker construction certificate issued under section 43 is in force shall, at least once during each period that is a prescribed period in relation to the ship for the purposes of this section, cause the ship to be surveyed for the purpose of ensuring its compliance with the provisions of Annex II.

(2) Where the owner of a ship in respect of which a chemical tanker construction certificate issued under section 43 is in force fails to comply with subsection (1) in relation to the ship and to a period that is a prescribed period in relation to the ship, the owner is guilty of an offence punishable on conviction by a fine not exceeding—

(b) [1]if the owner is a body corporate—50 penalty units.

46 Requirement for chemical tanker construction certificates

(1) Where a trading ship proceeding on an intra-state voyage is constructed or adapted so that it can carry as cargo, or part cargo, in bulk any substance that, for the purposes of Division 3 of Part 2 is a substance in Category A, B, C or D, the master of that ship shall not begin a voyage, and the owner of that ship shall not permit that ship to begin a voyage, unless there is in force in respect of that ship a chemical tanker construction certificate.

(a) if the offender is a natural person—100 penalty units, or imprisonment for 4 years, or both; or

S. 46(1)(b) amended by No. 46/1991
s. 30(a).

S. 46(1A) inserted by No. 46/1991
s. 30(b).

(2) The regulations may exempt ships included in a prescribed class of ships from the application of subsection (1), either absolutely or subject to conditions.

(3) In this section chemical tanker construction certificate means—

(a) a chemical tanker construction certificate issued under section 43;

(b) a chemical tanker construction certificate issued under section 267Q of the Navigation Act;

(c) a chemical tanker construction certificate issued under a law of another State or the Northern Territory and being a certificate of a kind prescribed as acceptable for the purposes of this Division; or

(d) an International Pollution Prevention Certificate for the Carriage of Noxious Liquid Substances in Bulk issued to a foreign ship under section 267R of the Navigation Act.

S. 46(4) amended by No. 46/1991
s. 30(c).

(4) The owner of a ship of the kind referred to in subsection (1) in respect of which a chemical tanker construction certificate is in force shall cause the certificate to be carried on board the ship.

47 Regulations

(1) The Governor in Council may make regulations for or with respect to any matter or thing required or permitted by this Part to be prescribed or necessary to be prescribed to give effect to this Part.

(2) The regulations may apply, adopt or incorporate (with or without modification) any matter contained in any regulations, rules, codes, orders, instructions or other subordinate instrument made, determined or issued under any other Act or under an Act of the Parliament of the Commonwealth.

Pt 3 Div. 4 (Heading and ss 48, 49) inserted by No. 46/1991
s. 31.

Division 4—Ships carrying harmful substances

S. 48
inserted by No. 46/1991 s. 31.

48 Interpretation

(1) This Division applies to—

(2) In this Division, unless the contrary intention appears—

Annex III means Annex III to the Convention.

(3) Except in so far as the contrary intention appears, an expression that is used in this Division and in the Convention, including Annex III but not including any other Annex to that Convention, (whether or not a particular meaning is assigned to it by that Convention) has, in this Division, the same meaning as in that Convention.

(4) For the purposes of this Division, a ship shall not be taken to comply with the provisions of Annex III if it does not comply with the regulations and orders referred to in section 49.

S. 49
inserted by No. 46/1991 s. 31.

49 Regulations to give effect to Regulations 1 to 6 (inclusive) of Annex III

(1) The regulations may make provision and in relation to giving effect to Regulations 1 to 6 (inclusive) of Annex III.

(2) Without limiting the generality of subsection (1), regulations made for the purposes of that subsection may empower the Minister to make orders with respect to any matter for or in relation to which provision may be made by the regulations by virtue of this section.

(4) Section 28 of the Interpretation of Legislation Act 1984 and sections 5 and 6 of the Subordinate Legislation Act 1962 apply in relation to orders made in pursuance of regulations made under subsection (1) as if references in those sections to subordinate instruments or statutory rules were references to such orders.

(5) Unless the contrary intention appears, expressions used in orders made in pursuance of the regulations made under subsection (1) have the same meanings as in this Division.

(6) Orders made in pursuance of the regulations made under subsection (1) shall be read subject to this Part and the regulations and so as not to exceed the power conferred by this Part and the regulations to the intent that where such orders would, but for this subsection, have been construed as being in excess of the power conferred by subsection (1) and the regulations, they shall be deemed to be valid orders to the extent that they are not in excess of that power.

(7) Where an order made in pursuance of the regulations made under subsection (1) is inconsistent with a provision of this Part or the regulations, the latter shall prevail and the former shall, to the extent of the inconsistency, be of no force or effect.

Pt 3 Div. 5 (Heading and ss 50–55) inserted by No. 46/1991
s. 32.

Division 5—Sewage pollution prevention certificates

S. 50

50 Interpretation

(1) This Division applies to—

(2) In this Division, unless the contrary intention appears—

Annex IV means Annex IV to the Convention.

(3) Except in so far as the contrary intention appears, an expression that is used in this Division and in the Convention, including Annex IV but not including any other Annex to that Convention, (whether or not a particular meaning is assigned to it by that Convention) has, in this Division, the same meaning as in that Convention.

(4) For the purposes of this Division, a ship shall not be taken to comply with the provisions of Annex IV if it does not comply with the regulations and orders referred to in section 51.

S. 51

51 Regulations to give effect to Regulations 3 and 11 of Annex IV

(1) The regulations may make provision for and in relation to giving effect to Regulations 3 and 11 of Annex IV.

(2) Without limiting the generality of subsection (1), regulations made for the purposes of that subsection may empower the Minister to make orders with respect to any matter for or in relation to which provision may be made by the regulations by virtue of this section.

(4) Section 28 of the Interpretation of Legislation Act 1984 and sections 5 and 6 of the Subordinate Legislation Act 1962 apply in relation to orders made in pursuance of regulations made under subsection (1) as if references in those sections to subordinate instruments or statutory rules were references to such orders.

(5) Unless the contrary intention appears, expressions used in orders made in pursuance of the regulations made under subsection (1) have the same meanings as in this Division.

S. 51(6) amended by No. 74/2000 s. 3(Sch. 1 item 100.4).

(6) Orders made in pursuance of the regulations made under subsection (1) shall be read subject to this Part and the regulations and so as not to exceed the power conferred by this Part and the regulations to the intent that where such orders would, but for this subsection, have been construed as being in excess of the power conferred by subsection (1) and the regulations, they shall be deemed to be valid orders to the extent that they are not in excess of that power.

(7) Where an order made in pursuance of the regulations made under subsection (1) is inconsistent with a provision of this Part or the regulations, the latter shall prevail and the former shall, to the extent of the inconsistency, be of no force or effect.

S. 52

52 Sewage Pollution Prevention Certificates

(1) Where, on receipt of declarations of survey in respect of a ship, the Minister is satisfied that the ship is constructed in accordance with the provisions of Annex IV, the Minister may, whether or not the ship is required by Annex IV to be constructed in accordance with those provisions, issue in respect of the ship a Sewage Pollution Prevention Certificate in the prescribed form attesting such compliance.

(2) Where a ship in respect of which a sewage certificate has been issued is not in a port, or at an off-shore terminal, in Victoria at the time when the certificate expires, the Minister may, if he or she considers it appropriate and reasonable to extend the certificate for the purpose of allowing the ship to complete its voyage to the place where it is to be surveyed again for the purpose of subsection (1), extend the certificate for a period not exceeding 5 months but, when the ship reaches that place, the certificate shall, for the purposes of section 55, be taken to have ceased to be in force.

S. 53

53 Alteration etc. of construction of ships and cancellation of certificates

(1) Where the construction of a ship in respect of which a sewage certificate is in force is altered, or such a ship is damaged, in a manner which affects its compliance with the provisions of Annex IV, the master or owner of the ship shall, within 7 days after the construction of the ship is altered or the ship is damaged, as the case may be, give a notice in writing of the alteration or damage to such person, and in such form, as are prescribed and, if the notice is not so given, the master and the owner of the ship are each guilty of an offence punishable upon conviction by a fine not exceeding—

(a) if the offender is a natural person—10 penalty units; or

(2) Where a notice required to be given under subsection (1) is not given within the period referred to in that subsection, the following provisions of this subsection have effect—

(a) the obligation to give the notice continues, notwithstanding that that period has expired, until the notice is given;

(b) the master and the owner of the ship are each guilty of a separate and further offence in respect of each day during which the notice is not given, being a day after the expiration of that period;

(c) the penalty applicable to each such separate and further offence is a fine not exceeding—

(3) Where the Minister has reason to believe that—

(a) the report of a surveyor in respect of a ship in respect of which a sewage certificate issued under section 52 is in force was fraudulently or erroneously made or obtained;

(b) a sewage certificate has been issued under section 52 in respect of a ship upon false or erroneous information;

S. 53(3)(c) amended by No. 74/2000 s. 3(Sch. 1 item 100.5).

(c) the construction of a ship in respect of which a sewage certificate issued under section 52 is in force has been altered, or such a ship has been damaged, in a manner which affects its compliance with the provisions of Annex IV; or

(d) the owner of a ship in respect of which a sewage certificate is in force has failed to comply with subsection 54(1) in respect of the ship—

the Minister may, by instrument signed by the Minister, cancel the certificate.

(4) Where the Minister cancels a sewage certificate issued by the Minister in respect of a ship, the certificate is of no force or effect after the Minister has given notice in writing of the cancellation addressed to the owner, agent or master of the ship and served in accordance with the regulations.

(5) Where a sewage certificate issued in respect of a ship is cancelled under this section, the Minister may, by notice in writing addressed to the owner, agent or master of the ship and served in accordance with the regulations, require the certificate to be delivered up to the Minister or to such other person as the Minister specifies, and the Minister may detain the ship until the requirement is complied with.

S. 54

54 Ships to be surveyed periodically

(1) The owner of a ship in respect of which a sewage certificate issued under section 52 is in force shall, at least once during each period that is a prescribed period in relation to the ship for the purposes of this section, cause the ship to be surveyed for the purpose of ensuring its compliance with the provisions of Annex IV.

(2) Where the owner of a ship in respect of which a sewage certificate issued under section 52 is in force fails to comply with subsection (1) in relation to the ship and to a period that is a prescribed period in relation to the ship, the owner is guilty of an offence punishable upon conviction by a fine not exceeding—

(b) if the owner is a body corporate—100 penalty units.

S. 55

55 Requirement for sewage certificates

(a) a trading ship proceeding on an intra-state voyage;

(2) The master of a ship to which this section applies shall not begin a voyage unless there is in force in respect of the ship a sewage certificate.

Penalty: 100 penalty units or imprisonment for 4 years, or both.

(3) The owner of a ship to which this section applies shall not permit the ship to begin a voyage unless there is in force in respect of the ship a sewage certificate.

(a) if the offender is a natural person—100 penalty units or imprisonment for 4 years, or both; or

(4) The regulations may exempt ships included in a prescribed class of ships from the application of subsection (1), either absolutely or subject to conditions.

(5) The owner of a ship to which this section applies in respect of which a sewage certificate is in force shall cause the certificate to be carried on board the ship.

(6) In this section sewage certificate means—

(a) a Sewage Pollution Prevention Certificate issued under section 52; or

(b) an International Sewage Pollution Prevention Certificate issued under section 267ZG of the Navigation Act; or

(c) a Sewage Pollution Prevention Certificate issued under a law of another State or the Northern Territory and being a certificate of a kind prescribed as acceptable for the purposes of this Division; or

(d) an International Sewage Pollution Prevention Certificate issued to a foreign ship under section 267ZH of the Navigation Act; or

(e) an International Sewage Pollution Prevention Certificate issued to an Australian ship under the law of a country other than Australia giving effect to Regulation 5 of Annex IV.

(7) An offence against subsection (2) or (3), is an indictable offence.

Schedules