Part Part IVA - Protection of the Sea (Civil Liability) Act 1981 - Recovery of loss etc. incurred by the Authority because of discharges or threatened discharges from ships | Zoe
An Act relating to civil liability for pollution damage
Part I—Preliminary
1 Short title
This Act may be cited as the Protection of the Sea (Civil Liability) Act 1981.
2 Commencement
(1) This Act shall come into operation on a date to be fixed by Proclamation.
(2) The date fixed under subsection (1) shall not be a date earlier than the date on which the International Convention on Civil Liability for Oil Pollution Damage comes into force for Australia.
3 Interpretation
(1) In this Act, unless the contrary intention appears:
applied provisions of the Convention means the provisions of the Convention that, by virtue of section 8, have the force of law as part of the law of the Commonwealth.
Australia includes the external Territories.
Authority means the Australian Maritime Safety Authority.
Civil Liability Convention means the International Convention on Civil Liability for Oil Pollution Damage (a copy of the English text of which is set forth in Schedule 1).
country to which the Civil Liability Convention applies means a country or territory specified in a notice under section 6.
regulated Australian vessel: a ship is a regulated Australian vessel if it is a regulated Australian vessel for the purposes of the Navigation Act 2012.
the 1992 Protocol means the Protocol of 1992 to amend the International Convention on Civil Liability for Oil Pollution Damage, 1969 (a copy of the English text of which is set out in Schedule 2), as amended by resolution LEG.1(82) adopted by the Legal Committee of the International Maritime Organization on 18 October 2000 (a copy of the English text of which is set out in Schedule 3).
the Convention means Articles I to XII ter, including the model certificate, of the Civil Liability Convention as amended by the 1992 Protocol.
(2) Except in so far as the contrary intention appears, an expression that is used in either Part II or Part III and in the Convention (whether or not a particular meaning is assigned to it by the Convention) has, in that Part, the same meaning as in the Convention.
4 Act binds the Crown
This Act binds the Crown in each of its capacities.
5 Operation of Act
This Act applies both within and outside Australia and extends to every external Territory.
6 Declaration of countries to which Civil Liability Convention applies
The Minister may, by notice published in the Gazette, declare that, for the purposes of this Act, a country or territory, other than Australia, specified in the notice is a country or territory to which the Civil Liability Convention applies.
6A Application of the Criminal Code
Chapter 2 (except Part 2.5) of the Criminal Code applies to all offences created by this Act.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Part II—Liability and limitation of liability under Convention
7 Application of this Part
(1) This Part, the applied provisions of the Convention and regulations made for the purposes of section 12 do not apply in relation to a ship that is not a regulated Australian vessel, when the ship is in a particular area, so far as a law of a State or the Northern Territory gives effect to the applied provisions of the Convention in relation to that ship when it is in that area.
(2) However, subsection (1) does not apply in relation to an incident that:
(a) is an incident Article IV of the Convention applies to; and
(b) involves both:
(i) one or more ships that are regulated Australian vessels; and
(ii) one or more ships that are not regulated Australian vessels.
8 Certain provisions of Convention to have the force of law
(1) The following provisions of the Convention have the force of law as part of the law of the Commonwealth: Articles I to VI (inclusive), paragraphs 1, 8 and 9 of Article VII, Article VIII, paragraphs 1 and 3 of Article IX, Article XII bis (other than paragraph (b)), paragraph 1 of Article XI.
(2) For the purposes of paragraph 1 of Article VII of the Convention as so having the force of law, that paragraph shall be treated as requiring the owner of a ship referred to in that paragraph, being a ship registered in Australia, to maintain the insurance or other financial security referred to in that paragraph.
9 Claims for compensation
The Supreme Courts of the States are invested with federal jurisdiction, and jurisdiction, to the extent that the Constitution permits, is conferred on the Supreme Courts of the Territories, to hear and determine claims for compensation under the applied provisions of the Convention in respect of incidents:
(a) that have caused pollution damage in a place to which the Convention applies; or
(b) in relation to which preventive measures have been taken to prevent or minimize pollution damage in a place to which the Convention applies.
10 Applications to determine limit of liability
(1) Where a claim for compensation under the applied provisions of the Convention is made in the Supreme Court of a State or Territory against, or is apprehended by, the owner of a ship, or the insurer or other person providing financial security for the liability of the owner of a ship for pollution damage, the owner, the insurer or that other person, as the case may be, may apply:
(a) in a case where a claim for compensation under the applied provisions of the Convention has been made in the Supreme Court of a State or Territory—to that Court; or
(b) in any other case—to the Supreme Court of any State or the Supreme Court of any Territory having jurisdiction under this subsection;
to determine whether he or she may limit his or her liability under the applied provisions of the Convention and, if so, the limit of that liability.
(2) Where the Supreme Court of a State or Territory determines that a person may limit his or her liability under the applied provisions of the Convention, the Court may make such orders as it thinks fit with respect to the apportionment and distribution, in accordance with those provisions, of a fund for the payment of claims under those provisions.
(3) The Supreme Courts of the States are invested with federal jurisdiction, and, jurisdiction, to the extent that the Constitution permits, is conferred on the Supreme Courts of the Territories, to hear and determine proceedings under this section.
11 Transfer of proceedings
(1) The Supreme Court of a State or Territory in which a claim for compensation has been made under the applied provisions of the Convention, or in which proceedings under section 10 have been instituted, may, if the Court thinks fit, at any stage in the proceedings, upon application or of its own motion, by order, transfer the proceedings to another Supreme Court.
(2) Where proceedings are transferred from a Supreme Court in pursuance of subsection (1):
(a) all documents filed, and moneys or guarantees lodged, in that Court in those proceedings shall be transmitted by the Registrar or other proper officer of that Court to the Registrar or other proper officer of the Court to which the proceedings are transferred; and
(b) the Court to which the proceedings are transferred shall proceed as if the proceedings had been originally instituted in that Court and as if the same proceedings had been taken in that Court as had been taken in the Court from which the proceedings were transferred.
12 Regulations giving effect to applied provisions of Convention etc.
(1) The regulations may prescribe matters that are necessary or convenient to be prescribed for the purpose of carrying out or giving effect to the applied provisions of the Convention and, for or in connection with that purpose, may make provision for and in relation to:
(a) the conversion of the amounts of money referred to in paragraph 1 of Article V of the Convention into amounts of money expressed in the currency of Australia;
(b) the kinds of guarantees that are acceptable for the purposes of paragraph 3 of Article V of the Convention;
(c) the extent to which the right of subrogation provided for in paragraph 5 of Article V of the Convention may be exercised by a person other than a person referred to in that paragraph; and
(d) the ascertainment of the tonnage of a ship, including the estimation of the tonnage of a ship in circumstances where it is not possible or reasonably practicable to measure its tonnage.
(2) Subsection (1) shall not be taken as limiting the power of a judge or judges of the Supreme Court of a State or Territory to make rules of court with respect to a matter that is not provided for in the applied provisions of the Convention or in regulations made by virtue of that subsection.
Part III—Insurance certificates relating to liability for pollution damage
13 Interpretation
(1) In this Part, Government ship means a ship (including a warship) owned by a country, and includes a ship owned by the Commonwealth or by a State.
(2) In this Part:
(a) a reference to a contract of insurance, or other financial security, in respect of a ship shall be construed as a reference to a contract of insurance, or other financial security, covering the liability of the owner of the ship under the applied provisions of the Convention for pollution damage caused in Australia or on the territory, including the territorial sea, of a country to which the Civil Liability Convention applies;
(b) a reference to the limits of the liability prescribed by paragraph 1 of Article V of the Convention, in relation to a ship, shall be construed as a reference to the amount to which the owner of the ship is entitled, under that paragraph, in its application to the ship as part of the law of the Commonwealth, to limit his or her liability under the Convention in respect of any one incident;
(c) a reference to a State shall be construed as including a reference to the Northern Territory.
14 Application
(1) Subject to subsection (2), this Part applies to every ship that is carrying more than 2,000 tons of oil in bulk as cargo and, where such a ship is unregistered, this Part applies to and in relation to the ship as if it were registered in the country whose flag the ship is flying.
(2) This Part does not apply to a Government ship, other than a Government ship that is being used for commercial purposes.
15 Insurance certificates to be carried on certain ships
(1) Where a ship to which this Part applies enters or leaves, or attempts to enter or leave, a port in Australia, or arrives at, or leaves, or attempts to arrive at or leave, a terminal in the territorial sea of Australia, without carrying on board the ship a relevant insurance certificate in respect of the ship, being such a certificate that is in force, the master and owner of the ship each commit an offence against this subsection punishable, upon conviction, by a fine not exceeding:
(a) in the case of the master—500 penalty units;
(b) in the case of the owner, if the owner is not a body corporate—500 penalty units; and
(c) in the case of the owner, if the owner is a body corporate—1,000 penalty units.
(2) Where a ship to which this Part applies, being a ship registered in Australia, enters or leaves, or attempts to enter or leave, a port in a country other than Australia, or arrives at, or leaves, or attempts to arrive at or leave, a terminal in the territorial sea of a country other than Australia, without carrying on board the ship a relevant insurance certificate in respect of the ship, being such a certificate that is in force, the master and owner of the ship each commit an offence against this subsection punishable, upon conviction, by a fine not exceeding:
(a) in the case of the master—500 penalty units;
(b) in the case of the owner, if the owner is not a body corporate—500 penalty units; and
(c) in the case of the owner, if the owner is a body corporate—1,000 penalty units.
(3) Where, otherwise than in circumstances to which subsection (1) applies or, in the case of a ship registered in Australia, to which subsection (2) applies, at any time a relevant insurance certificate is in force in respect of a ship to which this Part applies and is not carried on board the ship, the master and owner of the ship each commit an offence against this subsection punishable, upon conviction, by a fine not exceeding:
(a) in the case of the master—20 penalty units;
(b) in the case of the owner, if the owner is not a body corporate—20 penalty units; and
(c) in the case of the owner, if the owner is a body corporate—50 penalty units.
(3A) An offence under subsection (1), (2) or (3) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(4) An officer may require the master or other person in charge of a ship to which this Part applies to produce a relevant insurance certificate in respect of the ship, being such a certificate that is in force, and, if he or she fails to produce the certificate to the officer, he or she commits an offence against this subsection punishable, upon conviction, by a fine not exceeding 20 penalty units.
(4A) An offence under subsection (4) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(5) Where an officer has reasonable grounds to believe that the master or other person in charge of a ship to which this Part applies is attempting to take the ship out of a port in Australia at a time when a relevant insurance certificate in respect of the ship, being such a certificate that is in force, is not being carried on board the ship, the officer may detain the ship until such time as such a certificate is obtained or produced to the officer, as the case requires.
(6) This section is not intended to exclude or limit the concurrent operation of a provision of a law of a State giving effect to paragraphs 1, 2 and 3 of Article VII of the Convention in relation to a ship that is not a regulated Australian vessel.
(7) For the purposes of this section, a relevant insurance certificate in respect of a ship is:
(a) if the ship is registered in Australia and is not a Government ship:
(i) in the case of a ship that is a regulated Australian vessel—a certificate issued under section 16 in respect of the ship; or
(ii) in the case of a ship that is not a regulated Australian vessel—a certificate issued under section 16 in respect of the ship, or a certificate issued in respect of the ship under a law of a State that makes provision giving effect to paragraphs 1, 2 and 3 of Article VII of the Convention in relation to that ship; or
(b) if the ship is registered in a country to which the Civil Liability Convention applies and is not a Government ship—a certificate issued, for the purposes of Article VII of the Convention, by or under the authority of the Government of that country; or
(c) if the ship is registered in a country that is not a country to which the Civil Liability Convention applies and is not a Government ship—a certificate issued under section 16 or a certificate that is, under the regulations, to be taken to be a relevant insurance certificate in respect of the ship for the purposes of this paragraph; or
(d) if the ship is owned by the Commonwealth—a certificate issued under section 18 in respect of the ship; or
(e) if the ship is owned by a State:
(i) a certificate issued under section 18 in respect of the ship; or
(ii) a certificate issued under a provision of the law of the State that makes provision in relation to ships owned by the State that corresponds with the provisions of section 18 in relation to ships owned by the Commonwealth; or
(f) if the ship is owned by the Government of a country other than Australia—a certificate of a kind referred to in subsection 18(1) issued by the Government of that country.
(8) In this section, officer means:
(a) an officer of Customs within the meaning of the Customs Act 1901; or
(b) an inspector within the meaning of the Navigation Act 2012; or
(c) a person included in a class of persons declared by the regulations to be a class of officers for the purposes of this section.
16 Issue of insurance certificates
(1) The owner, master or agent of a ship to which this Part applies, being a ship that is registered in Australia or in a country that is not a country to which the Civil Liability Convention applies, may make application to the Minister for the issue of an insurance certificate in respect of the ship.
(2) An application under subsection (1):
(a) shall be in accordance with the form approved in an instrument under subsection (2A); and
(b) shall be lodged with a person who is a prescribed person for the purposes of this subsection.
(2A) The Minister may, by notifiable instrument, approve a form for the purposes of paragraph (2)(a).
(2B) The Minister must cause the form to be published on the Authority’s website.
(3) Where application is made to the Minister under subsection (1) in respect of a ship, the Minister shall:
(a) if he or she is satisfied that the owner of the ship is maintaining insurance or other financial security in respect of the ship in an amount that will cover the limits of liability prescribed by paragraph 1 of Article V of the Convention in relation to the ship—issue to the applicant an insurance certificate in respect of the ship; or
(b) if he or she is not so satisfied—refuse to issue such a certificate in respect of the ship.
(4) An insurance certificate issued under subsection (3) in respect of a ship:
(a) shall be in accordance with the form approved in an instrument under subsection (4A), being a form which contains, but is not limited to containing, the particulars specified in paragraph 2 of Article VII of the Convention;
(b) comes into force on such day as is specified in the certificate; and
(c) remains in force, subject to this Part, until the expiration of such day as is specified in the certificate, being:
(i) the day that is the last day in the period of 12 months commencing on the day on which the certificate comes into force; or
(ii) the day that the Minister is satisfied is the last day in the balance of the period during which the insurance or other financial security in respect of the ship is to remain in force;
whichever is the earlier day.
(4A) The Minister may, by notifiable instrument, approve a form for the purposes of paragraph (4)(a).
(4B) The Minister must cause the form to be published on the Authority’s website.
(5) Such fees (if any) as are prescribed are payable in respect of the issue of an insurance certificate in respect of a ship under this section.
(6) Where an insurance certificate is issued under this section in respect of a ship registered in Australia, the Minister shall cause a copy of the certificate to be forwarded to a person who is a prescribed person for the purposes of this subsection.
17 Extension, cancellation and lapsing of insurance certificates
(1) Where:
(a) a ship in respect of which an insurance certificate has been issued under section 16 is not at a port in Australia at the time when the certificate expires or is about to expire; and
(b) the Minister is satisfied that, after the day specified in the certificate as the day until which it is to remain in force, there will be in force a contract of insurance or other financial security in respect of the ship in an amount that will cover the limits of liability prescribed by paragraph 1 of Article V of the Convention in relation to the ship;
the Minister may, if it appears proper and reasonable to do so, extend the certificate for a period that expires on or before the day that the Minister is satisfied is the last day in the balance of the period during which that contract of insurance or other financial security is to remain in force, being a period that does not exceed one month from the day referred to in paragraph (b).
(2) An extension of an insurance certificate under subsection (1) is of no further force or effect after the arrival of the ship at a port in Australia.
(3) The Minister may cancel an insurance certificate issued under section 16 that is in force in respect of a ship if he or she is satisfied that, by reason of any modification or variation of, or to, the contract of insurance or other financial security in respect of the ship, the owner of the ship will not be covered for an amount that is not less than the limits of liability prescribed by paragraph 1 of Article V of the Convention in relation to the ship.
(4) If, while an insurance certificate issued under section 16 in respect of a ship registered in Australia or in a country that is not a country to which the Civil Liability Convention applies is in force, the ship ceases to be registered in Australia or in that country, as the case may be, the certificate so issued thereupon ceases to be in force.
(5) Where an insurance certificate issued under section 16 in respect of the ship is cancelled under subsection (3) or ceases to be in force by virtue of subsection (4), the master shall forthwith cause the certificate to be lodged with a person referred to in paragraph 16(2)(b).
Penalty: 20 penalty units.
18 Government ships
(1) Where a ship is owned by the Commonwealth or by a State, the Minister may issue:
(a) in the case of a ship owned by the Commonwealth—a certificate certifying that the ship is owned by the Commonwealth and that any liability for pollution damage up to the limits of liability applicable in relation to the ship under Article V of the Convention will be met by the Commonwealth; or
(b) in the case of a ship owned by a State—a certificate certifying:
(i) that the ship is owned by the State; and
(ii) if the Minister is satisfied that any liability for pollution damage up to the limits of liability applicable in relation to the ship under Article V of the Convention will be met by the State—that any such liability will be so met by the State.
(2) Subject to subsection (3), a certificate issued under subsection (1) remains in force for such period as is specified in the certificate.
(3) If, while a certificate issued under subsection (1) in respect of a ship owned by the Commonwealth or by a State is in force, the ship ceases to be owned by the Commonwealth or by the State, as the case may be, the certificate so issued thereupon ceases to be in force.
(4) Every country to which the Civil Liability Convention applies shall, in any proceedings brought in a court in Australia to enforce a claim in respect of a liability incurred under the applied provisions of the Convention, be deemed to have submitted to the jurisdiction of that court and to have waived any defence based on its status as a sovereign country, but nothing in this subsection shall permit the levy of execution against the property of such a country.
19 Review of decisions
(1) Application may be made to the Administrative Review Tribunal for review of:
(a) a decision to refuse to issue an insurance certificate under section 16; or
(b) a decision to cancel an insurance certificate under subsection 17(3).
(2) Where the Minister makes a decision referred to in subsection (1) and gives to a person whose interests are affected by the decision notice in writing of the decision, that notice shall include a statement to the effect that, subject to the Administrative Review Tribunal Act 2024, an application may be made to the Administrative Review Tribunal for review of the decision by or on behalf of any person whose interests are affected by the decision.
(3) Any failure to comply with the requirements of subsection (2) in relation to a decision does not affect the validity of the decision.
Part IIIA—Proof of possession of adequate insurance cover by certain ships
19A Definitions
In this Part:
Government ship means a ship (including a warship) owned by a country, and includes a ship owned by the Commonwealth or by a State.
officer means:
(a) an officer of Customs within the meaning of the Customs Act 1901; or
(b) an inspector within the meaning of the Navigation Act 2012; or
(c) a member or a special member of the Australian Federal Police within the meaning of the Australian Federal Police Act 1979; or
(d) a person included in a class of persons declared by the regulations to be a class of officers for the purposes of this section.
owner has the same meaning as in the Convention.
relevant insurance certificate, in relation to a ship, means a document or documents that contain the prescribed information, being information relevant to establishing that the owner of the ship is maintaining insurance or other financial security in respect of the ship that covers the liability of the owner for pollution damage caused in Australia for an amount that is not less than the prescribed amount.
State includes the Northern Territory.
19B Application
(1) Subject to subsection (2), this Part applies to a ship:
(a) that carries oil as cargo or bunker; and
(b) that has a gross tonnage of 400 or more; and
(c) to which Part III does not apply; and
(d) to which Part 3 of the Protection of the Sea (Civil Liability for Bunker Oil Pollution Damage) Act 2008 does not apply.
(2) This Part does not apply to a Government ship, other than a Government ship that is being used for commercial purposes.
19C Insurance certificates to be carried on ships to which Part applies
(1) If a ship enters or leaves, or attempts to enter or leave, a port in Australia without carrying on board a relevant insurance certificate in respect of the ship, the master and the owner of the ship each commit an offence punishable, upon conviction, by a fine of not more than 500 penalty units.
(2) An officer may require the master or other person in charge of a ship to produce a relevant insurance certificate in respect of the ship and, if the master or other person refuses or fails to produce such a certificate to the officer, he or she commits an offence punishable, upon conviction, by a fine of not more than 20 penalty units.
(3) If an officer has reasonable grounds to believe that the master or other person in charge of a ship is attempting to take the ship out of a port in Australia at a time when the ship is not carrying on board a relevant insurance certificate in respect of the ship, the officer may detain the ship until such time as such a certificate is obtained or produced to the officer, as the case requires.
(4) The master of a ship detained at a port under subsection (3), and the owner of such a ship, each commit an offence punishable on conviction by a fine of not more than 500 penalty units if the ship leaves the port before it has been released from detention.
(5) Strict liability applies to subsections (1), (2) and (4).
(6) Chapter 2 of the Criminal Code applies to an offence against this section.
Part IV—Recovery of expenses of Authority under the Protection of the Sea (Powers of Intervention) Act 1981
20 Expenses etc. incurred by Authority debt due to Commonwealth
(1) Subject to this section, where the Authority incurs any expense or other liability in, or by reason of, the exercise of the Authority’s powers under section 8, 9 or 10 of the Protection of the Sea (Powers of Intervention) Act 1981 in respect of an incident, the amount of that expense or other liability is:
(a) if that expense or other liability was incurred in, or by reason of, the exercise of those powers in relation to a single ship—a debt due to the Commonwealth by the owner of that ship; or
(b) if that expense or other liability was incurred in, or by reason of, the exercise of those powers in relation to 2 or more ships—a debt due to the Commonwealth jointly and severally by the owners of those ships.
(2) Subsection (1) does not apply in relation to the owner of a ship in respect of an incident referred to in that subsection where the owner proves that the incident:
(a) resulted from an act of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional, inevitable and irresistible character;
(b) was wholly caused by an act or omission done by a third party with intent to cause damage; or
(c) was wholly caused by the negligence or other wrongful act of any government, or other authority, responsible for the maintenance of lights or other navigational aids in the exercise of its functions in relation to those lights or aids.
(3) Subject to subsection (6), where an incident referred to in subsection (1) did not occur as a result of the actual fault or privity of the owner of a ship, the liability of the owner of the ship under subsection (1) in respect of the incident shall not exceed the limit of any liability in respect of the incident that applies to the incident under the provisions of one or more international conventions, being provisions in force in relation to Australia.
(4) A debt due to the Commonwealth by a person by virtue of this section may be recovered from the person in any court of competent jurisdiction.
(5) This section does not apply in relation to pollution damage within the meaning of the Convention.
(7) In this section:
incident means an occurrence, or a series of occurrences having the same origin.
owner, in relation to a ship in respect of an incident, means the owner of the ship at the time of the incident or, if the incident consists of a series of occurrences having the same origin, at the time of the first of the occurrences.
third party, in relation to a ship, means any person other than:
(a) the owner of the ship;
(b) a servant or agent of the owner of the ship; or
(c) the master, an officer or any other member of the crew of the ship or of any other ship also owned by the owner of the ship.
21 Expenses etc. incurred by Authority charge on ship
The amount:
(a) that the owner of a ship is liable, or the owners of 2 or more ships are jointly and severally liable, under the applied provisions of the Convention, to pay to the Commonwealth by way of compensation for any expense or other liabilities incurred by the Authority in, or by reason of, the exercise of the Authority’s powers under section 8, 9 or 10 of the Protection of the Sea (Powers of Intervention) Act 1981; or
(b) that the owner of a ship is liable, or the owners of 2 or more ships are jointly and severally liable, to pay to the Commonwealth under section 20;
is a charge on that ship, or on each of those ships, as the case may be.
22 Detention of ships
(1) Subject to subsection (2), where an amount is, by virtue of section 21, a charge on a ship, the ship may be detained by a person authorized in writing by the Minister for the purposes of this section and may be so detained until the amount is paid or security for the payment of the amount is provided to the satisfaction of the Minister.
(1A) If a ship is detained under this section, the person authorised to detain it may escort it to a port in Australia.
(1B) While a ship is detained under this section, a person does not have the power of seizure provided for by section 123 of the Personal Property Securities Act 2009 in relation to the ship.
(2) Subsection (1) does not apply in relation to a foreign ship unless the ship is in Australian waters or in the exclusive economic zone.
(3) Where a ship that has been detained under this section goes to sea before it is released from detention, the master and owner of the ship each commit an offence against this subsection punishable, upon conviction:
(a) in the case of the master—by a fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years, or both;
(b) in the case of the owner, if the owner is not a body corporate—by a fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years, or both; or
(c) in the case of the owner, if the owner is a body corporate—by a fine not exceeding 100 penalty units.
(3A) An offence under subsection (3) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(4) In this section:
Australian waters means:
(a) the territorial sea of Australia; and
(b) the sea on the landward side of the territorial sea of Australia.
exclusive economic zone means the exclusive economic zone, within the meaning of the Seas and Submerged Lands Act 1973, adjacent to the coast of Australia or the coast of an external Territory.
foreign ship means a ship:
(a) that is not registered in Australia; and
(b) that does not have Australian nationality.
Part IVA—Recovery of loss etc. incurred by the Authority because of discharges or threatened discharges from ships
22A Recovery of loss etc. by the Authority
(1) This section applies if the Authority suffers loss or damage, or incurs costs or expenses, in preventing or mitigating or in attempting to prevent or mitigate any pollution damage, because of:
(a) a discharge or disposal in contravention of the Protection of the Sea (Prevention of Pollution from Ships) Act 1983; or
(b) action taken by the Authority in performance of its function, under paragraph 6(1)(a) of the Australian Maritime Safety Authority Act 1990, to combat pollution in the marine environment caused by a discharge or disposal from a ship, or to combat a threat of pollution in the marine environment caused by a threat of a discharge or disposal from a ship.
(2) The Authority may recover from:
(a) the owner or the master of the ship from which the discharge or disposal occurred, or from which there was the threat of a discharge or disposal; or
(b) any person whose act caused the discharge or disposal, or the threat of a discharge or disposal;
the amount of the loss, damage, costs and expenses.
(3) The amount is recoverable as a debt in a court of competent jurisdiction.
Part V—Miscellaneous
23 Prosecution of offences against subsections 15(1), (2) and (3) and 22(3)
(1) Subject to subsection (2), an offence against subsection 15(1) or (2) or 22(3) is an indictable offence.
(2) Notwithstanding that an offence referred to in subsection (1) is an indictable offence, a court of summary jurisdiction may hear and determine proceedings in respect of such an offence if the court is satisfied that it is proper to do so and the defendant and the prosecutor consent.
(3) Where, in accordance with subsection (2), a court of summary jurisdiction convicts a person of an offence referred to in subsection (1), the penalty that the court may impose is a fine not exceeding:
(a) in the case of a person, not being a body corporate—20 penalty units; and
(b) in the case of a person, being a body corporate—50 penalty units.
(4) Where, in proceedings for an offence against subsection 15(1), (2) or (3) or 22(3) in respect of any conduct engaged in by a corporation, it is necessary to establish the state of mind of the corporation, it is sufficient to show that a director, servant or agent of the corporation, being a director, servant or agent by whom the conduct was engaged in within the scope of his or her actual or apparent authority, had that state of mind.
(5) Any conduct engaged in on behalf of a corporation:
(a) by a director, servant or agent of the corporation within the scope of his or her actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of a director, servant or agent of the corporation, where the giving of such direction, consent or agreement is within the scope of the actual or apparent authority of the director, servant or agent;
shall be deemed, for the purposes of a provision of this Act that creates an offence, to have been engaged in by the corporation.
(6) A reference in subsection (4) to the state of mind of a person includes a reference to the knowledge, intention, opinion, belief or purpose of the person and the person’s reasons for the intention, opinion, belief or purpose.
24 No time limit for prosecution
A prosecution for an offence against this Act may be brought at any time.
25 Regulations to give effect to Article X of Convention
(1) The regulations may make provision for and in relation to giving effect to Article X of the Convention including:
(a) provision for investing the Supreme Courts of the States with federal jurisdiction, and conferring, to the extent that the Constitution permits, jurisdiction on the Supreme Courts of the Territories, with respect to matters arising under regulations made by virtue of this section; and
(b) provision fixing fees to be paid in respect of any matters under regulations made by virtue of this section.
(2) Subsection (1) shall not be taken as limiting the power of a judge or judges of the Supreme Court of a State or Territory to make rules of court with respect to a matter that is not provided for in regulations made by virtue of that subsection.
26 Delegation
(1) The Minister may, either generally or as otherwise provided by the instrument of delegation, by writing signed by the Minister, delegate to a person any of his or her powers under this Act, other than this power of delegation.
(2) A power so delegated, when exercised by the delegate, shall, for the purposes of this Act, be deemed to have been exercised by the Minister.
(3) A delegation under this section does not prevent the exercise of a power by the Minister.
27 Regulations
The Governor‑General may make regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to this Act.