Protection of the Sea (Powers of Intervention) Act 1981
In ForceCTH
Jurisdiction
Commonwealth
Act Number
33 of 1981
Collection
act
Plain English Summary
7/10 complexity
This Act lets the Australian Maritime Safety Authority (with Minister approval for sinking or destruction) take or direct measures to prevent or respond to pollution from maritime casualties on the high seas, in Australian waters, or involving Australian ships. Measures can include moving, unloading, salvaging, taking control of, or sinking ships or cargo (ss8–10; addressees: s8(2B), s9(2B), s10(3B)). The Minister and Authority must act in accordance with Convention Articles (s8(4), s9(4), s10(4)). The Act creates offences for non‑compliance and sets liability, immunity and compensation rules.
This Act creates statutory powers for the Australian Maritime Safety Authority (the Authority) and the Minister to intervene, by written direction or by direct action, to prevent, mitigate or eliminate pollution of the sea from ships and related sources where Australian interests are threatened. The intervention powers operate in three principal scenarios set out in separate sections.
Section 8 authorises the Authority to take measures where, after a maritime casualty on the high seas, the Authority is satisfied there is "grave and imminent danger" to the Australian coastline or related Australian interests from oil pollution that may reasonably be expected to result in major harmful consequences. The measures may be taken on the high seas or elsewhere and include moving a ship, removing cargo, salvaging, sinking or destroying a ship or cargo, or taking over control of a ship, and issuing directions to owners, masters, salvors or other persons (s 8(1)-(2), (7)).
Section 9 mirrors s 8 but applies to substances other than oil, operating where a maritime casualty on the high seas creates a similar danger from pollution by noxious substances (s 9(1)-(2)).
Section 10 provides general powers applicable within Australian internal waters, Australian coastal sea, the exclusive economic zone and to Australian ships on the high seas. Where oil or a noxious substance is escaping or likely to escape, the Authority may take measures to prevent or reduce pollution of Australian waters or to protect related interests (s 10(1)-(2), (3)).
A direction under the Act can require or prohibit many specific acts in relation to a ship, its cargo, other ships and tangible assets, including requiring places to be treated as places of refuge and temporarily releasing contractual obligations that impede compliance with other directions (s 11(1), (1)(s), (1)(u)). Directions must be in writing and are served in the ways specified (s 16, s 17). The Act supplies definitions and scope rules (s 3), applies both within and outside Australia and to external Territories (s 6), binds the Crown but preserves Crown immunity from criminal prosecution (s 4), and sets out how directions interact with State, Territory and other Commonwealth laws (s 5). It also addresses liability and compensation: persons who act in compliance with directions are generally protected from civil or criminal proceedings (s 17A), certain expenses incurred complying with directions may be recoverable from shipowners (s 17B), and if the operation of the Act effects an acquisition of property other than on just terms, the Commonwealth is liable to pay reasonable compensation (s 22). Breach of a direction is a criminal offence with heavy penalties and no limitation period for prosecution (s 19, s 20).
Current sections
Direct links to the current provisions in Protection of the Sea (Powers of Intervention) Act 1981.
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1
Short title
1 Short title
This Act may be cited as the Protection of the Sea (Powers of Intervention) Act 1981.
2
Commencement
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 Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties comes into force for Australia.
3
Interpretation
3 Interpretation
(1) In this Act, unless the contrary intention appears:
aircraft means any machine or craft that can derive support in the atmosphere from the reactions of the air.
Australia includes the external Territories.
Australian coastal sea means:
(a) the territorial sea of Australia; and
(b) the sea on the landward side of the territorial sea of Australia and not within the limits of a State or the Northern Territory.
Australian ship means:
(a) a ship registered in Australia; or
(b) an unregistered ship having Australian nationality.
Authority means the Australian Maritime Safety Authority established by the Australian Maritime Safety Authority Act 1990.
cargo includes ballast and ship’s stores and fuel.
civil proceeding includes a civil action.
constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.
controller of a tangible asset means:
(a) in the case of land, seabed or premises—the occupier of the land, seabed or premises; or
(b) in the case of a facility, structure or installation—the person in charge of the facility, structure or installation; or
(c) in the case of goods—the person in control or possession of the goods.
Convention means the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (a copy of the English text of which is set forth in Schedule 1), as amended from time to time.
direction under this Act means a direction under paragraph 8(2)(b), 9(2)(b) or 10(3)(b) or a further direction under section 15.
electronic communication has the same meaning as in the Electronic Transactions Act 1999.
engage in conduct has the same meaning as in the Criminal Code.
goods has the same meaning as in the Competition and Consumer Act 2010.
high seas means all parts of the sea to which Part VII of the UN Convention on the Law of the Sea applies.
Note: Article 86 of the UN Convention on the Law of the Sea provides that the provisions of Part VII of the Convention apply to “all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State”.
internal waters means waters of the sea within the limits of a State or the Northern Territory. For this purpose, sea includes any waters within the ebb and flow of the tide.
master, in relation to a ship, means the person having command or charge of the ship.
owner, in relation to a ship that is operated by a person (not being the owner of the ship) who has whole possession and control of the ship, means the operator of the ship.
Protocol means the Protocol Relating to Intervention on the High Seas in Cases of Pollution by Substances other than Oil, 1973 (being the Protocol a copy of whose English text is set out in Schedule 2), as affected by the following resolutions of the Marine Environment Protection Committee of the International Maritime Organization revising the list of substances to be annexed to the Protocol:
(a) the resolution adopted on 4 July 1991 (being the resolution a copy of whose English text is set out in Schedule 3);
(b) the resolution adopted on 10 July 1996 (being the resolution a copy of whose English text is set out in Schedule 4);
and as amended from time to time.
services has the same meaning as in the Competition and Consumer Act 2010, and includes services provided by an employee.
ship:
(a) when used in relation to a matter arising under, or relating to, section 8 or 9—has the same meaning as in the Convention; or
(b) when used in relation to a matter arising under, or relating to, section 10—has the same meaning as vessel has in the Navigation Act 2012.
supply has the same meaning as in the Competition and Consumer Act 2010.
tangible asset means:
(a) land or seabed; or
(b) premises; or
(c) a facility; or
(d) a structure; or
(e) an installation; or
(f) any of the following goods:
(i) a vessel;
(ii) an aircraft;
(iii) a vehicle;
(iv) an item of equipment or machinery;
(v) a tool;
(vi) any other article.
UN Convention on the Law of the Sea means the United Nations Convention on the Law of the Sea done at Montego Bay on 10 December 1982.
Note: The text of the Convention is set out in Australian Treaty Series 1994 No. 31. In 2006, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
(2) It is hereby declared to be the intention of the Parliament that the provisions of this Act that relate to the Protocol shall have full force and effect whether or not the Protocol has entered into force.
4
Act to bind Crown
4 Act to bind Crown
(1) This Act binds the Crown in each of its capacities.
(2) This Act does not make the Crown liable to be prosecuted for an offence.
(3) Subsection (2) does not affect any liability of an employee or agent of the Commonwealth, the Authority or a State or Territory to be prosecuted for an offence.
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Relationship to other laws
5 Relationship to other laws
State/Territory laws
(1) This Act is not intended to exclude or limit the operation of a law of a State or Territory to the extent that the law is capable of operating concurrently with this Act.
(1A) A direction under this Act prevails over a direction (however described) under a law of a State or Territory to the extent of any inconsistency.
(1B) Subsection (1A) does not, by implication, limit:
(a) the application of section 109 of the Constitution to a law of a State; or
(b) the application of the corresponding principle to a law of a Territory.
Commonwealth laws
(1C) A direction under this Act prevails over a direction (however described) under another Act to the extent of any inconsistency, unless the other Act:
(a) is enacted after the commencement of this subsection; and
(b) refers specifically to a direction under this Act.
(2) Nothing in the Underwater Cultural Heritage Act 2018 affects the operation of this Act.
6
Operation of Act
6 Operation of Act
This Act applies both within and outside Australia and extends to every external Territory.
7
Delegation
7 Delegation
The Minister may, by writing signed by him or her, delegate to a person any of his or her powers under this Act.
Note: See sections 34AA, 34AB and 34A of the Acts Interpretation Act 1901.
8
Taking of measures to prevent pollution of sea by oil—maritime casualty on the high seas
8 Taking of measures to prevent pollution of sea by oil—maritime casualty on the high seas
(1) Where the Authority is satisfied that, following upon a maritime casualty on the high seas or acts related to such a casualty, there is grave and imminent danger to the coastline of Australia, or to the related interests of Australia, from pollution or threat of pollution of the sea by oil which may reasonably be expected to result in major harmful consequences, the Authority may take such measures, whether on the high seas or elsewhere, as it considers necessary to prevent, mitigate or eliminate the danger.
(2) Without limiting the generality of subsection (1), the measures that the Authority may take under this section in relation to the ship, or any of the ships, involved in the maritime casualty include:
(a) the taking of action, whether or not directions have been issued under paragraph (b) in relation to the ship:
(i) to move the ship or part of the ship to another place;
(ii) to remove cargo from the ship;
(iii) to salvage the ship, part of the ship or any of the ship’s cargo;
(iv) to sink or destroy the ship or part of the ship;
(v) to sink, destroy or discharge into the sea any of the ship’s cargo; or
(vi) to take over control of the ship or part of the ship; or
(b) the issuing of directions of the kind authorized by section 11:
(i) to the owner of the ship;
(ii) to the master of the ship; or
(iii) to any salvor in possession of the ship; or
(iv) to any other person.
(2A) The Authority must not exercise its powers under subparagraph (2)(a)(iv) without the approval of the Minister.
(2B) Without limiting subparagraph (2)(b)(iv), a direction under that subparagraph may be issued to:
(a) the owner of any other ship; or
(b) the master of any other ship; or
(c) the owner of a tangible asset; or
(d) the controller of a tangible asset; or
(e) the supplier of goods; or
(f) a person to whom goods are being, or are proposed to be, supplied; or
(g) the supplier of a service; or
(h) a person to whom a service is being, or is proposed to be, supplied.
(2C) The Authority must not issue a direction under subparagraph (2)(b)(iv) to the owner or master of another ship unless the other ship is:
(a) in internal waters; or
(b) in the Australian coastal sea; or
(c) in the exclusive economic zone of Australia; or
(d) an Australian ship.
(3) This section does not authorize the taking of measures against a warship or other ship owned or operated by a foreign State and used, for the time being, only on government non‑commercial service.
(4) The Minister and the Authority shall, in and in relation to the exercise of powers under this section, act in accordance with Articles III and V of the Convention. For this purpose, those Articles are taken to extend to the taking of measures under this section elsewhere than on the high seas.
(5) This section shall not be construed as limiting or otherwise affecting any right or power that the Commonwealth may have, whether under international law, under this Act or otherwise, apart from this section.
(6) An expression (other than high seas) that is used in this section (other than paragraph (2B)(c), (d), (e), (f), (g) or (h) or (2C)(a), (b), (c) or (d)) and in the Convention (whether or not a particular meaning is assigned to it by the Convention) has, in this section, the same meaning as in the Convention.
(7) A direction under this Act is taken to relate to a ship involved in a maritime casualty referred to in subsection (1) even if the direction is issued under subparagraph (2)(b)(iv).
9
Taking of measures to prevent pollution of sea by substances other than oil—maritime casualty on the high seas
9 Taking of measures to prevent pollution of sea by substances other than oil—maritime casualty on the high seas
(1) Where the Authority is satisfied that, following upon a maritime casualty on the high seas or acts related to such a casualty, there is grave and imminent danger to the coastline of Australia, or to the related interests of Australia, from pollution or threat of pollution of the sea by substances other than oil which may reasonably be expected to result in major harmful consequences, the Authority may take such measures, whether on the high seas or elsewhere, as it considers necessary to prevent, mitigate or eliminate the danger.
(2) Without limiting the generality of subsection (1), the measures that the Authority may take under this section in relation to the ship, or any of the ships, involved in the maritime casualty include:
(a) the taking of action, whether or not directions have been issued under paragraph (b) in relation to the ship:
(i) to move the ship or part of the ship to another place;
(ii) to remove cargo from the ship;
(iii) to salvage the ship, part of the ship or any of the ship’s cargo;
(iv) to sink or destroy the ship or part of the ship;
(v) to sink, destroy or discharge into the sea any of the ship’s cargo; or
(vi) to take over control of the ship or part of the ship; or
(b) the issuing of directions of the kind authorized by section 11:
(i) to the owner of the ship;
(ii) to the master of the ship; or
(iii) to any salvor in possession of the ship; or
(iv) to any other person.
(2A) The Authority must not exercise its powers under subparagraph (2)(a)(iv) without the approval of the Minister.
(2B) Without limiting subparagraph (2)(b)(iv), a direction under that subparagraph may be issued to:
(a) the owner of any other ship; or
(b) the master of any other ship; or
(c) the owner of a tangible asset; or
(d) the controller of a tangible asset; or
(e) the supplier of goods; or
(f) a person to whom goods are being, or are proposed to be, supplied; or
(g) the supplier of a service; or
(h) a person to whom a service is being, or is proposed to be, supplied.
(2C) The Authority must not issue a direction under subparagraph (2)(b)(iv) to the owner or master of another ship unless the other ship is:
(a) in internal waters; or
(b) in the Australian coastal sea; or
(c) in the exclusive economic zone of Australia; or
(d) an Australian ship.
(3) This section does not authorize the taking of measures against a warship or other ship owned or operated by a foreign State and used, for the time being, only on government non‑commercial service.
(4) The Minister and the Authority shall, in and in relation to the exercise of powers under this section, act in accordance with Articles III and V of the Convention as applying by virtue of Article II of the Protocol or, if the Protocol has not entered into force, in accordance with those Articles of the Convention as they would apply by virtue of that Article of the Protocol if the Protocol had entered into force. For this purpose, those Articles of the Convention as applying by virtue of Article II of the Protocol are taken to extend to the taking of measures under this section elsewhere than on the high seas.
(5) This section shall not be construed as limiting or otherwise affecting any right or power that the Commonwealth may have, whether under international law, under this Act or otherwise, apart from this section.
(6) Where an expression (other than high seas) is used in this section (other than paragraph (2B)(c), (d), (e), (f), (g) or (h) or (2C)(a), (b), (c) or (d)):
(a) if the expression is also used in the Protocol (whether or not a particular meaning is assigned to it by the Protocol)—the expression has, in this section, the same meaning as in the Protocol; or
(b) subject to paragraph (a), if the expression is also used in the provisions of the Convention referred to in paragraph 1 of Article II of the Protocol (whether or not a particular meaning is assigned to it by the Convention)—the expression has, in this section, the same meaning as in the Convention.
(7) A direction under this Act is taken to relate to a ship involved in a maritime casualty referred to in subsection (1) even if the direction is issued under subparagraph (2)(b)(iv).
10
Taking of measures to prevent pollution of sea by oil or noxious substances—general powers
10 Taking of measures to prevent pollution of sea by oil or noxious substances—general powers
(1) This section (other than subsections (3B) and (3C)) applies in relation to:
(a) any ship in internal waters, where:
(i) the ship is a ship in relation to which Australia has relevant international rights or obligations, whether arising under an international convention, treaty or otherwise; or
(ii) the ship is engaged in trade or commerce between Australia and a place or places outside Australia; or
(iii) the ship is engaged in trade or commerce between 2 places outside Australia; or
(iv) the ship is engaged in trade or commerce among the States; or
(v) the ship is engaged in trade or commerce within a Territory, between a State and a Territory or between 2 Territories; or
(vi) the ship is engaged in operations incidental to trade or commerce referred to in subparagraph (ii), (iii), (iv) or (v); or
(vii) the ship is owned, operated, managed or controlled by a constitutional corporation; or
(viii) the ship is demised or sub‑demised to, or in the exclusive possession of, a constitutional corporation; or
(ix) the beneficial interest in the ship is vested in a constitutional corporation; and
(b) any ship in the Australian coastal sea; and
(ba) any ship in the exclusive economic zone of Australia; and
(c) any Australian ship on the high seas.
(2) Where oil or a noxious substance is escaping, or has escaped, from a ship in relation to which this section applies, or the Authority is satisfied that oil or a noxious substance is likely to escape from such a ship, the Authority may, subject to subsection (4), take such measures as it considers necessary:
(a) to prevent, or reduce the extent of, the pollution or likely pollution, by the oil or noxious substance, of any Australian waters, any part of the Australian coast or any Australian reef;
(b) to prevent damage, or reduce the extent, or likely extent, of damage, to any of the related interests of Australia by reason of the pollution, or likely pollution, of the sea by the oil or noxious substance;
(c) to protect any Australian waters, any part of the Australian coast or any Australian reef from pollution or likely pollution by the oil or noxious substance;
(d) to protect any other related interests of Australia from damage by reason of the pollution, or likely pollution, of the sea by the oil or noxious substance; or
(e) in a case where the oil or noxious substance has escaped—to remove or reduce the effects, or likely effects, of pollution or likely pollution, by the oil or noxious substance, on any Australian waters, any part of the Australian coast, any Australian reef or any of the related interests of Australia.
(3) Without limiting the generality of subsection (2), the measures that the Authority may take under this section in relation to the ship include:
(a) the taking of action, whether or not directions have been issued under paragraph (b) in relation to the ship:
(i) to move the ship or part of the ship to another place;
(ii) to remove cargo from the ship;
(iii) to salvage the ship, part of the ship or any of the ship’s cargo;
(iv) to sink or destroy the ship or part of the ship;
(v) to sink, destroy or discharge into the sea any of the ship’s cargo; or
(vi) to take over control of the ship or part of the ship; or
(b) the issuing of directions of the kind authorized by section 11:
(i) to the owner of the ship;
(ii) to the master of the ship; or
(iii) to any salvor in possession of the ship; or
(iv) to any other person.
(3A) The Authority must not exercise its powers under subparagraph (3)(a)(iv) without the approval of the Minister.
(3B) Without limiting subparagraph (3)(b)(iv), a direction under that subparagraph may be issued to:
(a) the owner of any other ship; or
(b) the master of any other ship; or
(c) the owner of a tangible asset; or
(d) the controller of a tangible asset; or
(e) the supplier of goods; or
(f) a person to whom goods are being, or are proposed to be, supplied; or
(g) the supplier of a service; or
(h) a person to whom a service is being, or is proposed to be, supplied.
(3C) The Authority must not issue a direction under subparagraph (3)(b)(iv) to the owner or master of another ship unless the other ship is:
(a) in internal waters; or
(b) in the Australian coastal sea; or
(c) in the exclusive economic zone of Australia; or
(d) an Australian ship.
(4) The Minister and the Authority shall, in the exercise of powers under this section, act in accordance with the following principles:
(a) measures taken under this section shall be in proportion to the damage, whether actual or threatened, in relation to which the measures are taken;
(b) in determining whether measures are in proportion to the damage in relation to which the measures are taken, regard shall be had to:
(i) the extent and probability of imminent damage if the measures are not taken;
(ii) the likelihood of those measures being effective; and
(iii) the extent of the damage which may be caused by the measures;
(c) measures taken under this section shall not exceed those reasonably necessary to achieve the end sought to be achieved by the measures and shall cease as soon as that end has been achieved;
(d) measures taken under this section shall not unnecessarily interfere with the rights and interests of other countries, and of any persons, likely to be affected by the measures;
(e) in taking measures under this section, any risk to human life shall, as far as possible, be avoided.
(5) Where oil or a noxious substance is being, has been or is likely to be, discharged, intentionally or otherwise, from a ship, the discharge or likely discharge of the oil or noxious substance from the ship shall, for the purposes of this section, be deemed to be an escape or likely escape of the oil or noxious substance, as the case may be, from the ship.
(6) A direction under this Act is taken to relate to a ship referred to in subsection (2) even if the direction was issued under subparagraph (3)(b)(iv).
(8) In this section:
Australian coast includes the coast and the shores of any island forming part of Australia and the shores of any internal waters.
Australian reef means a reef in Australian waters or a reef outside Australian waters but forming part of the continental shelf of Australia.
Australian ship means:
(a) a ship registered in Australia; or
(b) an unregistered ship having Australian nationality.
Australian waters means the Australian coastal sea and internal waters.
noxious substance means a substance other than oil.
oil means crude oil, fuel oil, diesel oil and lubricating oil.
related interests of Australia, in relation to an escape or likely escape of oil or a noxious substance from a ship, means the interests of Australia directly affected or threatened by the escape or likely escape and, without limiting the generality of the foregoing, includes any of the following interests of Australia:
(a) maritime coastal, port or estuarine activities, including fisheries activities, in or connected with Australia, being activities constituting an essential means of livelihood of persons;
(b) the tourist attractions of any part of Australia; and
(c) the health of the coastal population of, and the well‑being of, any area of Australia, including the conservation of living marine resources and of wildlife in or connected with any area of Australia.
sea includes any waters within the ebb and flow of the tide.
substance other than oil has the same meaning as in the Protocol.
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Directions under Act may require taking of action etc.
11 Directions under Act may require taking of action etc.
(1) A direction under this Act issued in relation to a ship (the first ship) covered by either of the following paragraphs:
(aa) a ship involved in a maritime casualty referred to in subsection 8(1) or 9(1);
(ab) a ship referred to in subsection 10(2);
may require the doing of any act or thing with respect to the first ship or the first ship’s cargo, or prohibit the doing of any such act or thing and, without limiting the generality of the foregoing, may:
(a) require or prohibit the movement of the first ship or part of the first ship, its movement to a place or area or its removal from a place or area; or
(b) require or prohibit the removal of cargo from the first ship; or
(c) require or prohibit the taking of salvage measures in relation to the first ship, part of the first ship or any of the first ship’s cargo; or
(d) require or prohibit the sinking or destruction of the first ship or part of the first ship; or
(e) require or prohibit the sinking, destruction or discharging into the sea of any of the first ship’s cargo; or
(f) require or prohibit the handing over of control of the first ship or part of the first ship; or
(g) require another ship to be made available for purposes in connection with unloading, receiving, treating, storing or disposing of any of the first ship’s cargo; or
(h) require another ship to be made available for purposes in connection with repairing, piloting, towing, berthing or securing the first ship; or
(i) require:
(i) the movement of another ship; or
(ii) the removal of another ship from a place or area;
where the movement or removal facilitates unloading, receiving, treating, storing or disposing of any of the first ship’s cargo; or
(j) require:
(i) the movement of another ship; or
(ii) the removal of another ship from a place or area;
where the movement or removal facilitates repairing, piloting, towing, berthing or securing the first ship; or
(k) prohibit:
(i) the movement of another ship; or
(ii) the removal of another ship from a place or area;
where the movement or removal is likely to impede or interfere with unloading, receiving, treating, storing or disposing of any of the first ship’s cargo; or
(l) prohibit:
(i) the movement of another ship; or
(ii) the removal of another ship from a place or area;
where the movement or removal is likely to impede or interfere with repairing, piloting, towing, berthing or securing the first ship; or
(m) require a tangible asset (other than a ship) to be made available for purposes in connection with unloading, receiving, treating, storing or disposing of any of the first ship’s cargo; or
(n) require a tangible asset (other than a ship) to be made available for purposes in connection with repairing, piloting, towing, berthing or securing the first ship; or
(o) require:
(i) the movement of a tangible asset (other than a ship); or
(ii) the removal of a tangible asset (other than a ship) from a place or area;
where the movement or removal facilitates unloading, receiving, treating, storing or disposing of any of the first ship’s cargo; or
(p) require:
(i) the movement of a tangible asset (other than a ship); or
(ii) the removal of a tangible asset (other than a ship) from a place or area;
where the movement or removal facilitates repairing, piloting, towing, berthing or securing the first ship; or
(q) prohibit:
(i) the movement of a tangible asset (other than a ship); or
(ii) the removal of a tangible asset (other than a ship) from a place or area;
where the movement or removal is likely to impede or interfere with unloading, receiving, treating, storing or disposing of any of the first ship’s cargo; or
(r) prohibit:
(i) the movement of a tangible asset (other than a ship); or
(ii) the removal of a tangible asset (other than a ship) from a place or area;
where the movement or removal is likely to impede or interfere with repairing, piloting, towing, berthing or securing the first ship; or
(s) require a specified place to be treated as a place of refuge for the first ship; or
(t) require the supply of services by way of, or in connection with:
(i) unloading, receiving, treating, storing or disposing of any of the first ship’s cargo; or
(ii) repairing, piloting, towing, berthing or securing the first ship; or
(u) require the temporary release of contractual obligations, where the fulfilment of those obligations is likely to impede or interfere with the carrying out of any other direction under this Act that relates to the first ship.
(1A) The Authority must not issue a direction under paragraph (1)(d) without the approval of the Minister.
(2) Without limiting the generality of subsection (1), a direction under this Act may:
(a) require that an act or thing be done in accordance with the direction, or with the approval, or in accordance with the instructions, of a specified person; or
(b) prohibit the doing of an act or thing except in accordance with the direction, or with the approval, or in accordance with the instructions, of a specified person.
12
Addressing of directions under Act etc.
12 Addressing of directions under Act etc.
A direction under this Act:
(a) in the case of a direction to the owner of a ship—may be addressed to the owner of the ship without specifying the name of the owner or any of the owners of the ship; or
(b) in the case of a direction to the master of a ship—may be addressed to the master of the ship without specifying him or her by name; or
(c) in the case of a direction to the salvor in possession of a ship—may be addressed to the salvor in possession of the ship without specifying him or her by name; or
(d) in the case of a direction to the owner of a tangible asset (other than a ship)—may be addressed to the owner of the tangible asset without specifying the name of the owner, or any of the owners, of the tangible asset; or
(e) in the case of a direction to the controller of a tangible asset (other than a ship)—may be addressed to the controller of the tangible asset without specifying the name of the controller, or any of the controllers, of the tangible asset.
13
Issuing of more than one direction in relation to a ship
13 Issuing of more than one direction in relation to a ship
Nothing in this Act shall be taken to prevent the issuing (whether to the same person or to different persons) of more than one direction under this Act, or under a provision of this Act, in relation to a ship.
14
Directions under Act to ship or tangible asset with more than one owner etc.
14 Directions under Act to ship or tangible asset with more than one owner etc.
(1) Where there is more than one owner of a ship or more than one salvor in possession of a ship, a direction under this Act issued to the owner of the ship or to the salvor in possession of the ship has effect, for the purposes of this Act, as a direction issued to each of the owners of the ship or each salvor in possession of the ship, as the case requires.
(2) If there is more than one owner of a tangible asset (other than a ship), a direction under this Act issued to the owner of the tangible asset has effect, for the purposes of this Act, as a direction issued to each of the owners of the tangible asset.
(3) If there is more than one controller of a tangible asset (other than a ship), a direction under this Act issued to the controller of the tangible asset has effect, for the purposes of this Act, as a direction issued to each of the controllers of the tangible asset.
15
Revocation and variation of directions under Act
15 Revocation and variation of directions under Act
Where the Authority has issued a direction under this Act to a person or to 2 or more persons, the Authority may, by a further direction issued to that person or those persons, revoke or vary the earlier direction.
16
Directions under Act to be in writing
16 Directions under Act to be in writing
A direction under this Act shall be in writing.
17
Service of directions under Act
17 Service of directions under Act
Service of directions on the owner, master or salvor of a ship
(1) A direction under this Act to any of the following persons:
(a) the owner of a ship;
(b) the master of a ship;
(c) the salvor in possession of a ship;
is to be served on the person in accordance with subsections (2) to (7) and, for the purposes of section 19, is taken to have been issued to the person at the time when it is served on the person in accordance with subsections (2) to (7).
(2) Service of a direction under this Act on the owner or the owners of a ship may be effected:
(a) by serving it personally on the owner or on all or any of the owners, as the case may be, of the ship or, if an owner who is to be served is a body corporate, on a director, secretary or other officer of the body corporate;
(b) by serving it personally on any agent of the ship or, if an agent who is to be served is a body corporate, on a director, secretary or other officer of the body corporate; or
(c) by serving it on the master of the ship.
(3) Where there is more than one owner of a ship, a direction under this Act that is served on any of the owners of the ship shall be deemed, for the purposes of this Act, to be served on all those owners.
(4) Service of a direction under this Act on the master of a ship may be effected by serving it personally on the master of the ship or, if for any reason (including the absence of the master from the ship) it is not practicable to serve the notice on the master, by delivering it to any person on board the ship who appears to be an officer of the ship.
(5) Service of a direction under this Act on a salvor in possession of a ship may be effected by serving it personally on the person who appears to be in charge of salvage operations.
(6) Where it is not reasonably practicable to serve a direction under this Act in accordance with the preceding provisions of this section, the direction shall be deemed to have been served on the person or persons to whom it is issued if the contents are transmitted to the ship concerned by any means and receipt of the transmission is acknowledged by a person on board the ship.
(7) A person authorized in writing by the Authority for the purposes of this section may go on board a ship for the purpose of serving a direction under this Act on a person on board the ship.
Service of directions on persons other than the owner, master or salvor of a ship
(8) A direction under this Act to a person other than:
(a) the owner of a ship; or
(b) the master of a ship; or
(c) the salvor in possession of a ship;
is to be served on the person in accordance with subsection (9) or (10) and, for the purposes of section 19, is taken to have been issued to the person:
(d) if paragraph (9)(d) applies—at the time when it is served on the person in accordance with section 28A of the Acts Interpretation Act 1901; or
(e) if paragraph (9)(e) applies—at the time of receipt of the electronic communication (see section 14 of the Electronic Transactions Act 1999); or
(f) if paragraph (10)(d) applies—at the time when it is served on the person in accordance with that paragraph; or
(g) if paragraph (10)(e) applies—at the time of receipt of the electronic communication (see section 14 of the Electronic Transactions Act 1999).
Note: See also section 29 of the Acts Interpretation Act 1901.
(9) Service of a direction under this Act on a person other than:
(a) the owner of a ship; or
(b) the master of a ship; or
(c) the salvor in possession of a ship;
may, in a case where the person is an individual or a body corporate, be effected:
(d) in accordance with section 28A of the Acts Interpretation Act 1901; or
(e) by sending the contents of the direction to the person by means of an electronic communication.
(10) Service of a direction under this Act on a person other than:
(a) the owner of a ship; or
(b) the master of a ship; or
(c) the salvor in possession of a ship;
may, in a case where the person is a body politic, be effected:
(d) by leaving it at, or sending it by pre‑paid post to, an office of a department or agency of the body politic; or
(e) by sending the contents of the direction to the person, or to a representative of the person, by means of an electronic communication.
17A
Liability for acts and omissions
17A Liability for acts and omissions
Minister
(1) Criminal or civil proceedings do not lie against:
(a) the Minister; or
(b) a delegate of the Minister;
because of an act done or omitted to be done in the exercise of any power conferred on the Minister by or under this Act.
Authority
(2) Criminal or civil proceedings do not lie against:
(a) the Authority; or
(b) a member of the Authority; or
(c) a member of the staff of the Authority; or
(d) a delegate of the Authority;
because of an act done or omitted to be done in the exercise of any power conferred on the Authority by or under this Act.
Persons specified in directions under this Act
(3) If a person was specified in a direction under this Act as mentioned in paragraph 11(2)(a) or (b), criminal or civil proceedings do not lie against the person because of an act done or omitted to be done in the exercise of any power conferred on the person by or under the direction.
Persons subject to directions under this Act
(4) If a direction under this Act is or was issued to a person, criminal or civil proceedings do not lie against the person because of an act done or omitted to be done in compliance with the direction.
(5) Subsection (4) does not apply to a proceeding under the Protection of the Sea (Civil Liability) Act 1981.
(5A) Subsection (4) does not apply to:
(a) a proceeding under the Protection of the Sea (Civil Liability for Bunker Oil Pollution Damage) Act 2008; or
(b) a proceeding on a maritime claim referred to in paragraph 4(3)(ba) of the Admiralty Act 1988 (about claims relating to bunker oil pollution damage).
(6) Subsection (4) does not apply to the extent to which it is inconsistent with an international agreement to which Australia is a party.
Compensation for acquisition of property
(7) This section does not apply to a proceeding under section 22.
Varied direction
(8) A reference in this section to a direction under this Act must, in the case of a direction that has been varied by a further direction issued under section 15, be construed as a reference to the direction as so varied by that further direction.
Application
(9) Subsections (1), (2), (3) and (4) do not apply to an act done, or omitted to be done, before the commencement of this section.
17B
Expenses of compliance with certain directions under Act may be recovered from owner of ship
17B Expenses of compliance with certain directions under Act may be recovered from owner of ship
(1) If:
(a) a person is or was subject to a direction under this Act; and
(b) the direction relates to:
(i) a ship involved in a maritime casualty referred to in subsection 8(1) or 9(1); or
(ii) a ship referred to in subsection 10(2); and
(c) the person is not the owner, or one of the owners, of the ship; and
(d) the person incurs a reasonable expense in complying with the direction; and
(e) the direction requires the supply of a service to the owner of the ship; and
(f) apart from this section, the owner of the ship is not liable to pay the amount of the expense to the person;
the amount of the expense is a debt due to the person:
(g) if there is only one owner of the ship—by the owner of the ship; or
(h) if there are 2 or more owners of the ship—jointly and severally by the owners of the ship.
(2) A debt due under subsection (1) may be recovered in:
(a) the Federal Court of Australia; or
(b) any other court of competent jurisdiction.
(3) Subsection (1) does not apply to the extent to which it is inconsistent with an international agreement to which Australia is a party.
Varied direction
(4) A reference in this section to a direction under this Act must, in the case of a direction that has been varied by a further direction issued under section 15, be construed as a reference to the direction as so varied by that further direction.
Application
(5) Subsection (1) does not apply to a direction issued before the commencement of this section.
18
Change in ownership or master of ship, or change in ownership of tangible asset
18 Change in ownership or master of ship, or change in ownership of tangible asset
(1) Where a direction under this Act issued to the owner of a ship is served in accordance with subsections 17(2) to (7) and a change in the ownership of the ship subsequently occurs while the direction is in force, the person who was the owner at the time the notice was served:
(a) shall forthwith notify any new owner of the ship of the existence and contents of the direction; and
(b) shall forthwith notify the Authority, in accordance with the regulations, of the change in the ownership of the ship and furnish the Authority with such particulars of the change as are prescribed for the purposes of this subsection.
(2) Where a direction under this Act issued to the master of a ship is served in accordance with subsections 17(2) to (7) and the person who is the master of the ship subsequently ceases to be the master of the ship while the direction is in force, the person who ceases to be the master of the ship:
(a) shall forthwith notify the new master (if any) of the existence and contents of the direction; and
(b) shall forthwith notify the Authority, in accordance with the regulations, of his or her ceasing to be the master of the ship and furnish the Authority with such particulars as are prescribed for the purposes of this subsection.
(3) If a direction under this Act issued to the owner of a tangible asset (other than a ship) is served in accordance with subsection 17(9) or (10) and a change in the ownership of the tangible asset subsequently occurs while the direction is in force, the person who was the owner at the time the notice was served:
(a) must immediately notify any new owner of the tangible asset of the existence and contents of the direction; and
(b) must immediately notify the Authority, in accordance with the regulations, of the change in the ownership of the tangible asset and give the Authority such particulars of the change as are prescribed for the purposes of this subsection.
(4) A person commits an offence if:
(a) a person is subject to a requirement under subsection (1), (2) or (3); and
(b) the person engages in conduct; and
(c) the person’s conduct breaches the requirement.
Penalty: 50 penalty units.
19
Contravention of direction under Act etc.
19 Contravention of direction under Act etc.
(1) A person commits an offence if:
(a) a person is subject to a direction under this Act; and
(b) the person engages in conduct; and
(c) the person’s conduct breaches the direction.
Penalty: 2,000 penalty units or imprisonment for 5 years, or both.
(4) It is a defence to a prosecution for an offence against subsection (1) if it is proved:
(a) that the breach of the direction resulted from the need to save life at sea; or
(b) that compliance with the direction was not possible; or
(c) if the direction requires an act or thing to be done before a particular time—that compliance with the direction was not possible before that time and the direction was complied with as soon as possible after that time.
(5) A reference in this section to a direction under this Act shall, in the case of a direction that has been varied by a further direction issued under section 15, be construed as a reference to the direction as so varied by that further direction.
20
No time limit for prosecution
20 No time limit for prosecution
A prosecution for an offence against this Act may be brought at any time.
21
Evidence
21 Evidence
Where in proceedings for an offence against a provision of this Act it is established:
(a) that a direction under this Act has been served on the owner of a ship by serving it on a person or body corporate as the agent of the ship; and
(b) that the person or body corporate had, at any time before the direction was so served, acted as an agent of the ship;
the person or body corporate shall be deemed, unless the contrary is proved, to have been an agent of the ship at the time when the direction was served.
Note: The defendant bears a legal burden in relation to the matter in this section (see section 13.4 of the Criminal Code).
22
Compensation for acquisition of property
22 Compensation for acquisition of property
(1) If the operation of this Act would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.
(2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in:
(a) the Federal Court of Australia; or
(b) any other court of competent jurisdiction;
for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.
(3) In this section:
acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.
just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.
23
Regulations
23 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 and, in particular, exempting, either absolutely or subject to conditions, a prescribed ship, or ships included in a prescribed class of ships, from all or any of the provisions of this Act.
Source text: opening excerpt
Sourced from the Federal Register of Legislation (legislation.gov.au), CC BY 4.0.
1 Short title
1 Short title
This Act may be cited as the Protection of the Sea (Powers of Intervention) Act 1981.
2 Commencement
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 Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties comes into force for Australia.
3 Interpretation
3 Interpretation
(1) In this Act, unless the contrary intention appears:
aircraft means any machine or craft that can derive support in the atmosphere from the reactions of the air.
Australia includes the external Territories.
Australian coastal sea means:
(a) the territorial sea of Australia; and
(b) the sea on the landward side of the territorial sea of Australia and not within the limits of a State or the Northern Territory.
Australian ship means:
(a) a ship registered in Australia; or
(b) an unregistered ship having Australian nationality.
Authority means the Australian Maritime Safety Authority established by the Australian Maritime Safety Authority Act 1990.
cargo includes ballast and ship’s stores and fuel.
civil proceeding includes a civil action.
constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.
controller of a tangible asset means:
(a) in the case of land, seabed or premises—the occupier of the land, seabed or premises; or
(b) in the case of a facility, structure or installation—the person in charge of the facility, structure or installation; or
(c) in the case of goods—the person in control or possession of the goods.
Convention means the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (a copy of the English text of which is set forth in Schedule 1), as amended from time to time.
The Act requires the Authority and Minister to act in accordance with Articles III and V of the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, and links definitions and meaning of terms to the Convention and to the Protocol Relating to Intervention on the High Seas in Cases of Pollution by Substances other than Oil where relevant (s 8(4), s 9(4), s 10(4), s 3). The Minister may delegate powers in writing (s 7). The Governor‑General may make regulations, including exempting particular ships or classes of ships from the Act (s 23).
The mechanical changes introduced by the text supplied are therefore a statutory framework that: (1) authorises proactive, often compulsory intervention relating to ships, cargo and tangible assets to prevent marine pollution; (2) prescribes how directions are formed, served, varied and enforced; (3) sets out defences, immunities and recovery routes; and (4) imposes criminal penalties for non‑compliance alongside avenues for compensation where property is effectively acquired.
Main concepts
The Act is structured around a small set of recurring legal and operational concepts. Each of these concepts appears in several provisions and shapes who decides, who pays and what behaviour is required.
Authority and Minister. The central decision‑maker is the Authority, defined by reference to the Australian Maritime Safety Authority Act 1990 (s 3). The Authority exercises most operational powers, subject in a limited number of cases to required Ministerial approval (see sinking or destruction powers at s 8(2A), s 9(2A), s 10(3A) and s 11(1A)). The Minister also has powers and may delegate any of them in writing (s 7).
"Direction under this Act". The Act uses the term "direction under this Act" to cover specific written instructions authorised by ss 8-11 and further directions under s 15. A direction is the primary legal instrument to require or prohibit conduct of ship owners, masters, salvors and other persons (s 11).
Geographic and subject‑matter scope. The Act applies both outside and inside Australia (s 6). The different intervention heads define scope: s 8 and s 9 target maritime casualties on the high seas threatening Australia, for oil and other substances respectively; s 10 is broader and applies to ships in internal waters, Australian coastal sea, the EEZ and to Australian ships on the high seas, and triggers where oil or a noxious substance is escaping or likely to escape (s 8(1), s 9(1), s 10(1)-(2)).
Definitions that structure reach. Several definitions fix who and what is captured: Australian ship (s 3), ship (with differing definitions depending on whether the provision is tied to the Convention or the Navigation Act, s 3), tangible asset (a wide list including land, seabed, premises, facilities, vessels, aircraft, machinery, tools and other articles, s 3), goods, services and suppliers (defined by cross reference to the Competition and Consumer Act 2010), and related interests of Australia (an inclusive list comprising maritime activities, tourism and coastal health, s 10(8)).
Legal effect of directions. Directions may require or prohibit specific acts in relation to a first ship and related ships/tangible assets (s 11(1)(a)-(u)). They can be addressed generically by role rather than by name (s 12). They must be in writing (s 16) and follow specified service rules (s 17). A direction can be varied or revoked by a further direction (s 15).
Liability and compensation. The Act creates civil and criminal immunities for the Minister, Authority and persons exercising powers under a direction (s 17A). Notwithstanding those immunities, s 17B creates a commercial recovery right against shipowners for reasonable expenses incurred by others in complying with certain directions. Section 22 preserves constitutional protections for acquisition of property and a right to compensation where just terms are not provided.
Prevalence over inconsistent laws. The Act states a direction under it prevails over a State or Territory direction to the extent of any inconsistency (s 5(1A)). Similarly, directions prevail over other Commonwealth Acts unless the other Act is later and specifically refers to this Act (s 5(1C)). The Act also explicitly preserves operation of the Underwater Cultural Heritage Act 2018 by providing it does not affect this Act (s 5(2)).
Criminal enforcement. Contravention of a direction issued under the Act attracts a heavy criminal penalty , 2,000 penalty units or five years’ imprisonment, or both , with specified statutory defences and no limitation period for prosecution (s 19, s 20, s 19(4)).
International law tethering. The Authority and the Minister are obliged to act in accordance with key Articles of the Convention and, where relevant, the Protocol, and the Act imports meanings of expressions from those instruments where used (s 8(4)-(6), s 9(4)-(6), s 10(4), s 10(6)-(8), s 3).
These concepts together create a framework where the Authority can impose operational obligations across a broad geography and on a wide set of private actors, with mechanisms for service, immunity from prosecution for compliance, recovery of some costs, and heavy criminal sanctions for defiance.
Who it affects
The Act targets a defined set of actors by reference to roles and assets. The text supplies the boundaries.
Owners and masters of ships. Owners (including operators who have whole possession and control, under s 3) and masters are primary addressees of directions. A direction may be addressed to an owner or master without naming them (s 12(a)-(b)). Service rules specify how an owner or master is to be served, and service on an agent or the master in some circumstances is deemed to be service on the owner (s 17(2)-(6), s 21).
Salvors. A salvor in possession of a ship is explicitly a target of directions (s 11(1), s 12(c), s 17(5)). If more than one salvor is in possession, a direction to "salvor in possession" operates as a direction to each (s 14(1)).
Suppliers and recipients of goods and services and controllers/owners of tangible assets. The Act permits directions to be issued, in specified circumstances, to suppliers or proposed recipients of goods or services, owners or controllers of tangible assets (which include land, seabed, premises, facilities, installations, vessels, aircraft and equipment), and to other shipowners or masters (s 8(2B), s 9(2B), s 10(3B)). These categories are broad and capture third parties who might supply equipment, storage, transport or services needed to respond to pollution risk.
Persons made subject to a direction. The person specified in a direction may be required to act as if vested with powers under the direction; the Act protects persons who act in compliance from civil or criminal proceedings in most circumstances (s 17A(3)-(4)).
The Commonwealth, the Minister and the Authority. The Act binds the Crown (s 4(1)), but the Crown is immune from criminal prosecution under the Act (s 4(2)). The Minister and the Authority and their delegates are protected from civil and criminal proceedings for acts done in the exercise of powers under the Act (s 17A(1)-(2)).
Shipowners who are not parties performing services. Section 17B creates a right for persons who are not owners but who supply services in compliance with a direction to recover reasonable expenses from the shipowner, where otherwise no liability would have existed. That places a financial obligation on shipowners for third‑party compliance costs in certain scenarios.
States, Territories and other Commonwealth bodies. A direction under the Act prevails over inconsistent State or Territory directions (s 5(1A)) and over inconsistent directions under other Commonwealth Acts except as constrained by s 5(1C) and constitutional limitations noted in s 5(1B). The Underwater Cultural Heritage Act 2018 is stated not to affect this Act (s 5(2)).
Parties to contracts. The Act may temporarily release contractual obligations where their fulfilment would impede compliance with other directions (s 11(1)(u)). That directly affects counterparties whose contract performance may be suspended by an authorised direction.
Persons affected by property acquisition. If the operation of the Act results in acquisition of property otherwise than on just terms, the affected person is entitled to reasonable compensation from the Commonwealth (s 22).
Geographic reach is also a key limiter and determinant of affectedness. The Act applies within and outside Australia, extends to external Territories (s 6; s 3 definition of Australia includes external Territories), and differentiates intervention triggers by location and ship type (s 8-10). The Act therefore affects foreign‑registered ships in Australian waters where specific triggers apply (s 10 and s 8/9 cross‑references).
In short, the Act places obligations and potential liabilities on owners, masters, salvors, suppliers, controllers of tangible assets and potential recipients of goods and services, while protecting the Authority and Minister and providing recovery mechanisms and compensation safeguards for third parties and dispossessed property holders.
Key duties and rights
The Act creates duties to comply with directions, duties to notify changes in ownership or mastership, rights to recover certain expenses and rights to compensation for acquired property, alongside immunities and procedural duties.
Duties to comply with directions
The central duty is to comply with directions issued under the Act. A person who is subject to a direction and engages in conduct that breaches it commits an offence (s 19(1)). Directions can require or prohibit a wide array of acts in respect of a ship, related ships, tangible assets and services (s 11(1)(a)-(u)). Directions must be in writing (s 16) and are capable of being varied or revoked by further direction (s 15).
Service and addressing duties
Directions can be addressed without naming individual owners, masters or salvors (s 12). Service on an owner can be effected by personal service on the owner, service on an agent, or service on the master, and service on an agent or master can be evidence of service on the owner (s 17(2)-(4), s 21). Where service by the usual means is not reasonably practicable, transmissions to the ship with acknowledgement by someone on board are treated as service (s 17(6)). Service on persons other than owners, masters or salvors may be effected in accordance with the Acts Interpretation Act 1901 or by electronic communication (s 17(9)-(10)).
Notification duties on change of ownership or master
If a direction has been served on an owner and ownership changes while the direction remains in force, the previous owner must notify the new owner of the existence and contents of the direction and notify the Authority of the change with prescribed particulars (s 18(1)). Similar immediate notification duties apply where the master changes (s 18(2)) and where a tangible asset changes ownership while a direction remains in force (s 18(3)). Breach of these notification duties is an offence punishable by 50 penalty units (s 18(4)).
Duties to follow specified persons/approvals
A direction may require acts to be done in accordance with the approval or instructions of a specified person (s 11(2)(a)-(b)). The Authority may not exercise certain sinking/destroying powers without the approval of the Minister (s 8(2A), s 9(2A), s 10(3A), and s 11(1A)).
Rights to recovery and compensation
Persons who incur reasonable expenses complying with a direction, where they are not the owner and where the direction relates to a maritime casualty or a ship to which s 10(2) applies, and where the direction requires supply of a service to the owner and the owner would not otherwise be liable, acquire a debt against the owner in respect of those expenses (s 17B(1)). That debt can be recovered in the Federal Court or other competent court (s 17B(2)).
If operation of the Act results in acquisition of property other than on just terms, the Commonwealth must pay reasonable compensation and the person may apply to the Federal Court or other competent court to recover compensation (s 22(1)-(2)).
Immunities and limitations
The Minister, delegates, the Authority, members of the Authority and their staff and delegates are protected from criminal or civil proceedings for acts done or omitted in exercise of powers under the Act (s 17A(1)-(2)).
If a person is specified in a direction as having powers under s 11(2)(a) or (b), that person has protection from civil or criminal proceedings for acts done in the exercise of the powers conferred by the direction (s 17A(3)).
If a direction is issued to a person, that person is protected from civil or criminal proceedings for acts done or omitted in compliance with the direction (s 17A(4)). The protection in s 17A(4) does not apply to proceedings under the Protection of the Sea (Civil Liability) Act 1981, the Protection of the Sea (Civil Liability for Bunker Oil Pollution Damage) Act 2008, or certain maritime claims under the Admiralty Act 1988 (s 17A(5), (5A)).
Defences to contravention
It is a statutory defence to a prosecution for contravening a direction if the breach resulted from the need to save life at sea, compliance was not possible, or where the direction required an act before a specific time, it was not possible to comply before that time and compliance occurred as soon as possible afterward (s 19(4)(a)-(c)).
Procedural rights and limitations
There is no statutory time limit for prosecution under the Act (s 20). Section 21 creates evidential presumptions regarding agents used for service and notes that the defendant bears a legal burden in relation to that matter, referencing s 13.4 of the Criminal Code.
Interaction rights
Directions under this Act prevail over State or Territory directions insofar as inconsistency exists (s 5(1A)), subject to constitutional limits and other Commonwealth Acts enacted later that reference this Act (s 5(1B)-(1C)).
Operational principles
The Act requires the Minister and Authority to adhere to proportionality and other operational principles when exercising powers under s 10: proportionality to the damage threatened, consideration of likelihood and effectiveness, minimisation of interference with other countries and persons, and avoidance of risk to human life as far as possible (s 10(4)(a)-(e)).
Taken together, the Act imposes strict duties to comply with written directions, to notify ownership or master changes, and to follow prescribed service and procedural steps; it confers recovery rights and compensation rights against the Commonwealth; and it protects public decision makers and compliant persons from a wide range of civil and criminal proceedings, subject to specified exceptions.
Penalties and enforcement
The Act creates a compliance architecture with heavy criminal penalties for breach of directions, service and enforcement mechanisms, immunity carve outs, recovery procedures for compliance costs and a route for compensation where property is acquired.
Criminal penalties
The principal criminal offence is contravention of a direction. Section 19(1) states that a person commits an offence if they are subject to a direction under the Act, engage in conduct, and that conduct breaches the direction. The penalty is 2,000 penalty units or imprisonment for five years, or both (s 19(1)). The Act contains a statutory defence limited to life‑saving necessity, impossibility, or delayed compliance where a time limit was specified (s 19(4)(a)-(c)).
A separate offence attaches to failure to comply with notification duties under s 18(1)-(3), with a penalty of 50 penalty units (s 18(4)).
The Act specifies no limitation period for prosecution: proceedings may be brought at any time (s 20).
Service and evidential mechanics
Directions must be in writing (s 16). Service rules are detailed at s 17. For owners, service may be personal on the owner or an agent, or on the master (s 17(2)); if not practicable, transmission to the ship with acknowledgement by someone on board is permitted (s 17(6)). For persons other than owners, masters or salvors, service may be effected in accordance with Acts Interpretation Act provisions or by electronic communication (s 17(9)-(10)), referencing the Electronic Transactions Act 1999 for the timing of receipt (s 17(8)(e)/(g)). Section 21 contains a presumption about agency when an agent has acted before service and notes the legal burden sits with the defendant in relation to that matter.
A person authorised in writing by the Authority may go on board a ship for the purpose of serving a direction (s 17(7)). Service is tied to the time the direction is treated as issued for the purposes of section 19 (s 17(1), (8)).
Protections and immunities affecting enforcement
The Act shields the Minister, the Authority, their delegates and staff from criminal or civil proceedings for acts done in exercise of powers under the Act (s 17A(1)-(2)) and shields persons who are specified in directions or who act in compliance with directions from criminal or civil proceedings, subject to exceptions (s 17A(3)-(6)). Notably, those immunities do not apply to proceedings under specific civil liability Acts dealing with pollution and bunker oil damage (s 17A(5), (5A)), nor do they remove the Commonwealth’s obligation to provide compensation for acquisitions of property (s 17A(7), s 22).
Ministerial approvals and checks on enforcement
The Authority must not exercise particular destructive powers without the approval of the Minister, creating an additional executive check on the most intrusive operational step of sinking or destroying a ship or part of it (s 8(2A), s 9(2A), s 10(3A), s 11(1A)).
Civil recovery and court routes
Where a person other than the owner incurs reasonable expense in complying with a direction that requires supply of a service to the owner, and where that person would not otherwise be owed payment, the amount is a debt due from the owner and may be recovered in the Federal Court or any other court of competent jurisdiction (s 17B(1)-(2)). This creates a private enforcement mechanism through civil litigation rather than administrative fine.
Section 22 gives a right to seek compensation from the Commonwealth in court where the operation of the Act would result in acquisition of property otherwise than on just terms. Proceedings for compensation may be instituted in the Federal Court or other competent courts (s 22(2)).
Interaction with other enforcement regimes
Directions under the Act prevail over State/Territory directions in case of inconsistency (s 5(1A)), and over other Commonwealth Act directions except where a later Act specifically refers to this Act (s 5(1C)). The Act expressly maintains its operation notwithstanding the Underwater Cultural Heritage Act 2018 (s 5(2)).
Operational enforcement risks
The Act leaves substantial factual determinations to the Authority’s satisfaction (for trigger conditions in s 8(1) and s 9(1)) and to the Authority’s judgement where oil or noxious substances are "escaping" or "likely to escape" (s 10(2)). These satisfaction and assessment steps are not judicially prescribed in the text supplied, meaning enforcement relies on executive factual decision making and the instruments of written directions and service.
In summary, enforcement uses a mix of criminal sanction, civil recovery and administrative instruments, with heavy penalties for non‑compliance, detailed service and evidential rules, immunities for persons acting under directions, and rights for recovery and compensation. The Act couples strong compulsory powers with statutory protections for those exercising the powers and constrained exceptions for private liabilities.
How it interacts with other laws
The Act expressly positions itself in relation to a small set of domestic and international instruments and gives textual rules for conflict and incorporation of international definitions.
Relationship with State and Territory laws
The Act provides it is not intended to exclude or limit State/Territory laws to the extent those laws can operate concurrently (s 5(1)). However, a direction under this Act prevails over a direction under a law of a State or Territory to the extent of any inconsistency (s 5(1A)). That saving does not, by implication, limit operation of s 109 of the Constitution to a State law, or the corresponding principle to a Territory law (s 5(1B)). These provisions create a specific federal primacy rule for directions under the Act while acknowledging constitutional limits.
Relationship with other Commonwealth laws
Section 5(1C) provides that a direction under this Act prevails over a direction under another Commonwealth Act except where the other Act is enacted after commencement of s 5(1C) and expressly refers to a direction under this Act. That rule allows later Commonwealth legislation to carve out a different coordinate scheme only by explicit cross reference, thereby insulating the Act’s directions from inadvertent conflict with pre‑existing Commonwealth direction powers.
The Act cross‑references the Electronic Transactions Act 1999 and the Acts Interpretation Act 1901 for timing and service rules (s 17(8), s 17(9)-(10)), thereby integrating procedural norms from those general statutes.
Interaction with pollution liability and compensation Acts
Section 17A(5) and (5A) carve out that the immunity for persons complying with directions does not apply to proceedings under the Protection of the Sea (Civil Liability) Act 1981, the Protection of the Sea (Civil Liability for Bunker Oil Pollution Damage) Act 2008, or certain maritime claims under the Admiralty Act 1988. The Act therefore preserves the operation of other pollution liability regimes despite the broad immunities granted elsewhere in s 17A.
International law instruments and definitions
The Act imports the Convention , the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties , and the Protocol Relating to Intervention on the High Seas in Cases of Pollution by Substances Other than Oil. Articles III and V of the Convention (and the Protocol where invoked) are to be followed by the Minister and Authority in relation to the exercise of powers under ss 8, 9 and 10 (s 8(4), s 9(4), s 10(4)). Sections 8(6), 9(6) and 10(6)-(8) adopt the meaning of expressions used in the Convention and Protocol in certain contexts. The commencement provisions tie operation to the Convention coming into force for Australia (s 2(2)), and s 3(2) declares Parliamentary intention that provisions relating to the Protocol have full force whether or not the Protocol has entered into force.
Other specific Acts and exclusions
The Act expressly states that nothing in the Underwater Cultural Heritage Act 2018 affects its operation (s 5(2)). That places the Act above any contrary operation of that specific statute.
Administrative law and delegation
The Minister may delegate any of his or her powers under this Act in writing (s 7), with a Note linking to the Acts Interpretation Act provisions. That creates a standard administrative law structure for internal decision allocation.
Evidential and criminal law cross‑references
Section 21 contains an evidentiary presumption tied to agency and service that references the Criminal Code by noting the defendant bears a legal burden in relation to the matter (see note citing s 13.4 of the Criminal Code). Service timing and electronic communication rules refer to the Electronic Transactions Act 1999 (s 17(8), (9)(e), (10)(e)).
Regulation‑making power and exemptions
The Governor‑General may make regulations not inconsistent with the Act, and regulations may exempt ships or classes of ships from all or some provisions, either absolutely or subject to conditions (s 23). Those regulations could modify practical regulatory scope as allowed by the Act.
Taken together, the Act provides a specific federal scheme that imports relevant parts of international instruments, prescribes primacy over inconsistent State/Territory directions and many pre‑existing Commonwealth directions, integrates established service and electronic communication rules by cross‑reference, preserves pollution liability regimes, allows regulations to create exemptions, and allows delegation under general interpretative norms.
Amendment history
The supplied text does not include a chronology of amendments, schedules of repeals or editorial notes recording legislative changes. The document sets out the Act’s substantive provisions, definitions, enforcement rules and the Convention and Protocol texts as Schedules, but it contains no legislative history or amendment table.
What the text itself does show
The body of the Act as supplied already cross‑references the Australian Maritime Safety Authority Act 1990, the Electronic Transactions Act 1999, the Competition and Consumer Act 2010 and several pollution liability Acts (Protection of the Sea (Civil Liability) Act 1981; Protection of the Sea (Civil Liability for Bunker Oil Pollution Damage) Act 2008) in its operative provisions. That indicates the Act as currently drafted interacts with later Commonwealth statutes, but the supplied text does not indicate when these cross‑references were inserted or amended.
The commencement section specifies the Act shall come into operation on a date to be fixed by proclamation and not earlier than the date on which the Convention comes into force for Australia (s 2(1)-(2)). The text makes a separate declaration that Parliament intends provisions relating to the Protocol to have full force whether or not the Protocol has entered into force (s 3(2)). The supplied text therefore anticipates interplay with treaty entry into force timing but does not record amendment events.
Limits on what can be stated from this text
Because the supplied text contains no schedules or notes of amendment, it is not possible from this document alone to say whether any section has been amended since original enactment, nor to list the dates, amending Acts, or textual changes. The Act as supplied should be treated as the operative text for the purposes of this memo but not a source of amendment history.
Where to obtain an amendment history (procedural guidance)
For an authoritative amendment history, a practitioner ought to consult the Federal Register of Legislation, the Parliamentary counsel’s compilation, or a commercial legal database that records amendment instruments and parliamentary bill history. Those sources will show enactment dates, commencement proclamations, amending Acts and reprints that reflect the current text. The supplied document, by itself, does not permit reconstruction of that legislative chronology.
In short, the supplied Act text contains no amendment history. Any further work that depends on the precise state of enactment on a particular date should query official consolidated legislation sources for up‑to‑date amendment and commencement details.
Litigation history
The supplied text contains no judicial decisions, case names, or recorded litigation concerning the Act. The body of the Act includes notes and references to other statutes and to the Criminal Code evidentiary provision, but it does not report any cases or judicial interpretation under the Act.
What to take from the absence
Because no litigation is reported in the supplied material, one cannot, from this document alone, describe how courts have interpreted key concepts such as "grave and imminent danger", "likely to escape", the scope of "related interests of Australia", the procedural adequacy of service by transmission to the ship, or the constitutional interaction with s 109 limits identified in s 5(1B). The Act leaves many factual and legal judgments to administrative decision makers; absent reported cases there is no judicial gloss included here.
Practical next steps for litigators and researchers
To map the litigation landscape, search national case law databases and consolidated legislation commentary for decisions construing the Act. Look especially for decisions that address:
standards of review for Authority decisions and the meaning of "is satisfied" under ss 8(1) and 9(1);
the operation and limits of s 19 criminal sanctions and the scope of s 19(4) defences;
the practical effect of s 17A immunities and their interaction with the civil liability Acts carved out at s 17A(5)-(5A);
recovery claims under s 17B and compensation claims under s 22; and
conflicts between State directions and directions under this Act where s 5(1A) is invoked.
In the absence of cases recorded in the supplied text, practitioners should assume a conservative approach and verify any precedent through an up‑to‑date legal database.
Summary
The supplied Act text contains no litigation history. Any use of judicial interpretation or precedent must be based on independent case law research outside the supplied document.
Gotchas
The Act contains a number of features that can create legal and operational risks if overlooked. The following are concrete items to watch for, with textual references.
Wide, discretionary triggers and executive factual satisfaction (s 8(1), s 9(1), s 10(2))
The Authority may act where it "is satisfied" there is "grave and imminent danger" or that oil or a noxious substance "is likely to escape". Those are broad, non‑precise thresholds left to administrative judgement. There is no statutory checklist or judicially prescribed standard in the Act itself for how those satisfactions must be reached.
Directions can be addressed generically (s 12)
Directions may be addressed to "the owner" or "the master" without naming individuals. This simplifies issuing a direction but can complicate service and proof of notice, especially where ownership chains are opaque or ships fly foreign flags.
Service by transmission and electronic communication (s 17(6), s 17(9)(e), s 17(10)(e))
If it is not reasonably practicable to serve personally, transmission to the ship with acknowledgement by a person on board is allowed. Service by electronic communication is explicitly permitted for non‑owners/masters/salvors and is timed in accordance with the Electronic Transactions Act 1999. This reduces friction in urgent situations but raises issues of proof and disputes over receipt and acknowledgement.
Immunity scope and carve‑outs (s 17A(1)-(8))
Persons acting in compliance with directions are protected from civil and criminal proceedings, but immunity does not apply to proceedings under certain civil liability Acts (s 17A(5), (5A)). Parties should not assume blanket immunity for pollution claims, especially those governed by the Protection of the Sea (Civil Liability) Act 1981 or the 2008 bunker oil Act.
Criminal penalties are severe with no limitation period (s 19(1), s 20)
Breach of a direction can attract imprisonment and substantial fines, and prosecutions can be commenced at any time. This elevates compliance risks and potential exposure even many years after an event.
Ministerial approval required for certain destructive measures (s 8(2A), s 9(2A), s 10(3A), s 11(1A))
The Authority cannot sink or destroy a ship or exercise corresponding powers without Ministerial approval. Operational plans that assume unilateral Authority action may be constrained by the need for ministerial sign‑off.
Temporary release of contractual obligations (s 11(1)(u))
Directions may require the temporary release of contractual obligations where performance would impede compliance. That is an extraordinary interference with contract freedom and may create commercial exposure between counterparties; suppliers and purchasers should treat a direction that invokes s 11(1)(u) as potentially suspending contractual remedies.
Recovery of expenses against owners limited and conditional (s 17B)
The right to recover expenses incurred in complying with a direction applies only where the person incurring the expense is not the owner, the direction relates to specified types of ships (maritime casualty or s 10(2) ship), the direction requires supply of a service to the owner, and the owner would not otherwise be liable (s 17B(1)(a)-(f)). The recovery right does not apply to directions issued before s 17B commenced (s 17B(5)). Practically, suppliers should document the direction and the absence of an existing liability to support recovery claims.
Competing obligations and primacy rules (s 5)
Although the Act intends not to exclude State/Territory laws capable of concurrent operation (s 5(1)), a direction under the Act prevails over an inconsistent State or Territory direction (s 5(1A)). However, s 5(1A) does not limit the operation of s 109 of the Constitution. Practitioners should therefore analyse conflicts with State laws carefully, especially where constitutional issues may arise.
Notification duty on change of ownership or master and strict penalty (s 18)
The outgoing owner or master must immediately notify the incoming owner/master and the Authority of the change where a direction is in force. Failure to do so is a 50 penalty unit offence. In fast turnover markets, this can catch parties by surprise.
Interaction with international law and treaty entry (s 2, s 3(2), s 8(4), s 9(4), s 10(4))
The Act requires compliance with Convention Articles and imports definitions from the Convention and Protocol in certain contexts. Commencement is tied to the Convention coming into force for Australia and the Act declares Parliamentary intention for the Protocol provisions even if the Protocol has not entered into force. This can create complexity in interpreting technical terms that the Act defers to international instruments for.
Potential acquisition of property and compensation exposure (s 22)
If the Act's operation results in acquisition of property otherwise than on just terms, the Commonwealth must pay reasonable compensation. Operational plans that involve physical seizure, destruction or long‑term control of assets may trigger compensation claims.
Regulatory exemption power (s 23)
The Governor‑General may make regulations exempting prescribed ships or classes of ships from the Act. Existence of possible exemptions may not be obvious to operators and should be checked in the regulations.
These are practical "gotchas" a compliance officer, shipowner, insurer or lawyer should test against facts when dealing with possible intervention under this Act. Each arises from a specific textual provision noted above.
How to comply
This section sets out concrete compliance steps and operational checklists for owners, masters, salvors, suppliers, controllers of tangible assets, and legal advisers who receive or may be the target of a direction under the Act.
Immediate actions on receipt of a direction
Confirm validity and form
Ensure the direction is in writing, as required by s 16. Record the time and method of receipt. If received by electronic communication, note the time of receipt in line with the Electronic Transactions Act 1999 references in s 17(8) and s 17(9)(e)/s 17(10)(e).
Identify addressee and scope
Check whether the direction is addressed generically (to "the owner" or "the master") under s 12, and confirm whether you are the person to whom it is directed. If named, verify identity and authority to act.
Read for mandatory instructions, approvals and specified persons
Identify whether the direction requires acting "in accordance with the approval, or in accordance with the instructions, of a specified person" (s 11(2)(a)-(b)). If so, immediately contact the specified person to obtain necessary approvals or instructions.
Assess immediate compliance feasibility and life‑saving exceptions
If compliance with the direction is not possible, or compliance would endanger life at sea, note that s 19(4) provides statutory defences for necessity and impossibility. Even where a defence may exist, document all factual reasons why compliance was not possible and actions taken to comply as soon as possible.
Operational and documentation requirements while complying
Keep contemporaneous records
Log all communications, times of actions, decisions, identities of personnel who implemented tasks, invoices for expenses, orders to third parties, and any approvals sought or obtained. Those records will be crucial for criminal defence (s 19(4)), civil recovery under s 17B and for any compensation claims under s 22.
Invoice and contractual records where supplying services
If you supply services in compliance with a direction and you are not the owner, preserve the direction itself and all evidence that the direction required supply to the owner and that the owner was not otherwise liable. Under s 17B(1) you may have a debt due from the owner for reasonable expenses; evidence that the service was performed in compliance with the direction and that it was reasonable will be essential in recovering the debt in court (s 17B(2)).
Escalate to insurers and P&I clubs
Notify insurers and protection and indemnity clubs promptly. The Act interacts with other pollution liability regimes and insurers will need to evaluate exposure, including the possibility that immunities in s 17A will not shield the owner from claims under the Protection of the Sea (Civil Liability) Act 1981 or the bunker oil Act (s 17A(5), (5A)).
Notices on change of ownership or master
Immediate notification duties on transfer or change in master
If a direction was served on an owner and the ship’s ownership changes while the direction is in force, the outgoing owner must "forthwith" notify the new owner and notify the Authority in accordance with the regulations and furnish prescribed particulars (s 18(1)). Similar "forthwith" duties apply for change of master (s 18(2)) and for ownership changes in tangible assets (s 18(3)). Failure to notify is a 50 penalty unit offence (s 18(4)), so ensure prompt compliance with the Authority’s notification process and regulations.
Service and acceptance protocols
Establish shipboard acknowledgement procedures
Because service may occur by transmission to the ship with acknowledgement by someone on board (s 17(6)), operators should ensure shipboard personnel know to record and confirm receipt of any official transmission from the Authority or Minister, and to forward such transmissions ashore immediately.
Ensure agent contact details are current
The Act permits service on agents and treats service on an agent who has been acting as agent as presumptively service on the owner (s 17(2), s 21). Owners should maintain accurate agency records and ensure their agents are authorised and prepared to receive and act on directions.
Regulatory and contractual management
Review contracts for s 11(1)(u) triggers
If a direction requires temporary release of contractual obligations where performance would impede compliance with another direction (s 11(1)(u)), parties should have procedures to obtain and document such releases, and to handle disputes over suspension of contractual rights and liabilities.
Prepare to claim recovery or compensation
If you are a third party who incurred reasonable expense complying with a direction, prepare to make a debt claim against the owner under s 17B by documenting the obligation, the absence of pre-existing liability, and the reasonableness of expenses. If you suffer acquisition of property through the Act’s operation, preserve evidence to support a compensation claim under s 22.
Interacting with the Authority and Minister
Seek clarification where directions are ambiguous
Directions can be varied or revoked (s 15). If a direction is ambiguous, seek written clarification or variation from the Authority to ensure compliance will not later be treated as a breach.
Where destructive measures are contemplated, note ministerial approval requirement
If an Authority action would involve sinking or destroying a ship or part of it, ensure any operational plan is coordinated with the Minister’s office because certain powers cannot be exercised without Ministerial approval under s 8(2A), s 9(2A), s 10(3A) and s 11(1A).
Legal and risk management checklist
Obtain legal advice promptly
Given the penal consequences in s 19 and the statutory defences in s 19(4), immediate legal advice is advisable to evaluate compliance options, evidence needs and potential criminal exposure.
Liaise with cross‑jurisdictional authorities
If the ship is in State waters but the Authority issues a direction under the Act, coordinate with State authorities given s 5(1A) and potential inconsistencies. Seek to document any conflicts and the Authority’s basis for acting under this Act.
Insurer and claimant liaison
Engage insurers and potential claimants early if pollution has occurred or is threatened, and document claims and mitigation measures. Immunities under s 17A do not automatically negate civil claims under other pollution regimes.
Audit and compliance training
Shipowners and managers should run compliance drills that include receipt of directions, service acknowledgement, central logging and immediate notification procedures for change in ownership or master while any direction is in force.
Regulatory monitoring and updates
Monitor regulations and any exemptions
Check Federal regulations published under s 23 for any exemptions applicable to particular ship classes and for prescribed particulars required under s 18 for notification. Regulations can modify practical compliance obligations.
Keep treaty timing and definitions under review
The Act imports meanings from the Convention and Protocol in some contexts and links commencement to treaty entry (s 2, s 3(2), ss 8-10). Practitioners should monitor the Convention and Protocol status and authoritative interpretations that could affect operational definitions.
By following these steps and preserving contemporaneous evidence, a person subject to a direction can reduce criminal exposure, preserve civil recovery rights and position themselves to seek compensation where the Act effects a property acquisition. Legal advisers and compliance officers should prepare templates for receipt acknowledgement, documented requests for approvals, and standard invoicing and evidence bundles for s 17B claims.
direction under this Act means a direction under paragraph 8(2)(b), 9(2)(b) or 10(3)(b) or a further direction under section 15.
electronic communication has the same meaning as in the Electronic Transactions Act 1999.
engage in conduct has the same meaning as in the Criminal Code.
goods has the same meaning as in the Competition and Consumer Act 2010.
high seas means all parts of the sea to which Part VII of the UN Convention on the Law of the Sea applies.
Note: Article 86 of the UN Convention on the Law of the Sea provides that the provisions of Part VII of the Convention apply to “all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State”.
internal waters means waters of the sea within the limits of a State or the Northern Territory. For this purpose, sea includes any waters within the ebb and flow of the tide.
master, in relation to a ship, means the person having command or charge of the ship.
owner, in relation to a ship that is operated by a person (not being the owner of the ship) who has whole possession and control of the ship, means the operator of the ship.
Protocol means the Protocol Relating to Intervention on the High Seas in Cases of Pollution by Substances other than Oil, 1973 (being the Protocol a copy of whose English text is set out in Schedule 2), as affected by the following resolutions of the Marine Environment Protection Committee of the International Maritime Organization revising the list of substances to be annexed to the Protocol:
(a) the resolution adopted on 4 July 1991 (being the resolution a copy of whose English text is set out in Schedule 3);
(b) the resolution adopted on 10 July 1996 (being the resolution a copy of whose English text is set out in Schedule 4);
and as amended from time to time.
services has the same meaning as in the Competition and Consumer Act 2010, and includes services provided by an employee.
ship:
(a) when used in relation to a matter arising under, or relating to, section 8 or 9—has the same meaning as in the Convention; or
(b) when used in relation to a matter arising under, or relating to, section 10—has the same meaning as vessel has in the Navigation Act 2012.
supply has the same meaning as in the Competition and Consumer Act 2010.
tangible asset means:
(a) land or seabed; or
(b) premises; or
(c) a facility; or
(d) a structure; or
(e) an installation; or
(f) any of the following goods:
(i) a vessel;
(ii) an aircraft;
(iii) a vehicle;
(iv) an item of equipment or machinery;
(v) a tool;
(vi) any other article.
UN Convention on the Law of the Sea means the United Nations Convention on the Law of the Sea done at Montego Bay on 10 December 1982.
Note: The text of the Convention is set out in Australian Treaty Series 1994 No. 31. In 2006, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
(2) It is hereby declared to be the intention of the Parliament that the provisions of this Act that relate to the Protocol shall have full force and effect whether or not the Protocol has entered into force.
4 Act to bind Crown
4 Act to bind Crown
(1) This Act binds the Crown in each of its capacities.
(2) This Act does not make the Crown liable to be prosecuted for an offence.
(3) Subsection (2) does not affect any liability of an employee or agent of the Commonwealth, the Authority or a State or Territory to be prosecuted for an offence.
5 Relationship to other laws
5 Relationship to other laws
State/Territory laws
(1) This Act is not intended to exclude or limit the operation of a law of a State or Territory to the extent that the law is capable of operating concurrently with this Act.
(1A) A direction under this Act prevails over a direction (however described) under a law of a State or Territory to the extent of any inconsistency.
(1B) Subsection (1A) does not, by implication, limit:
(a) the application of section 109 of the Constitution to a law of a State; or
(b) the application of the corresponding principle to a law of a Territory.
Commonwealth laws
(1C) A direction under this Act prevails over a direction (however described) under another Act to the extent of any inconsistency, unless the other Act:
(a) is enacted after the commencement of this subsection; and
(b) refers specifically to a direction under this Act.
(2) Nothing in the Underwater Cultural Heritage Act 2018 affects the operation of this Act.
6 Operation of Act
6 Operation of Act
This Act applies both within and outside Australia and extends to every external Territory.
7 Delegation
7 Delegation
The Minister may, by writing signed by him or her, delegate to a person any of his or her powers under this Act.
Note: See sections 34AA, 34AB and 34A of the Acts Interpretation Act 1901.
8 Taking of measures to prevent pollution of sea by oil—maritime casualty on the high seas
8 Taking of measures to prevent pollution of sea by oil—maritime casualty on the high seas
(1) Where the Authority is satisfied that, following upon a maritime casualty on the high seas or acts related to such a casualty, there is grave and imminent danger to the coastline of Australia, or to the related interests of Australia, from pollution or threat of pollution of the sea by oil which may reasonably be expected to result in major harmful consequences, the Authority may take such measures, whether on the high seas or elsewhere, as it considers necessary to prevent, mitigate or eliminate the danger.
(2) Without limiting the generality of subsection (1), the measures that the Authority may take under this section in relation to the ship, or any of the ships, involved in the maritime casualty include:
(a) the taking of action, whether or not directions have been issued under paragraph (b) in relation to the ship:
(i) to move the ship or part of the ship to another place;
(ii) to remove cargo from the ship;
(iii) to salvage the ship, part of the ship or any of the ship’s cargo;
(iv) to sink or destroy the ship or part of the ship;
(v) to sink, destroy or discharge into the sea any of the ship’s cargo; or
(vi) to take over control of the ship or part of the ship; or
(b) the issuing of directions of the kind authorized by section 11:
(i) to the owner of the ship;
(ii) to the master of the ship; or
(iii) to any salvor in possession of the ship; or
(iv) to any other person.
(2A) The Authority must not exercise its powers under subparagraph (2)(a)(iv) without the approval of the Minister.
(2B) Without limiting subparagraph (2)(b)(iv), a direction under that subparagraph may be issued to:
(a) the owner of any other ship; or
(b) the master of any other ship; or
(c) the owner of a tangible asset; or
(d) the controller of a tangible asset; or
(e) the supplier of goods; or
(f) a person to whom goods are being, or are proposed to be, supplied; or
(g) the supplier of a service; or
(h) a person to whom a service is being, or is proposed to be, supplied.
(2C) The Authority must not issue a direction under subparagraph (2)(b)(iv) to the owner or master of another ship unless the other ship is:
(a) in internal waters; or
(b) in the Australian coastal sea; or
(c) in the exclusive economic zone of Australia; or
(d) an Australian ship.
(3) This section does not authorize the taking of measures against a warship or other ship owned or operated by a foreign State and used, for the time being, only on government non‑commercial service.
(4) The Minister and the Authority shall, in and in relation to the exercise of powers under this section, act in accordance with Articles III and V of the Convention. For this purpose, those Articles are taken to extend to the taking of measures under this section elsewhere than on the high seas.
(5) This section shall not be construed as limiting or otherwise affecting any right or power that the Commonwealth may have, whether under international law, under this Act or otherwise, apart from this section.
(6) An expression (other than high seas) that is used in this section (other than paragraph (2B)(c), (d), (e), (f), (g) or (h) or (2C)(a), (b), (c) or (d)) and in the Convention (whether or not a particular meaning is assigned to it by the Convention) has, in this section, the same meaning as in the Convention.
(7) A direction under this Act is taken to relate to a ship involved in a maritime casualty referred to in subsection (1) even if the direction is issued under subparagraph (2)(b)(iv).
9 Taking of measures to prevent pollution of sea by substances other than oil—maritime casualty on the high seas
9 Taking of measures to prevent pollution of sea by substances other than oil—maritime casualty on the high seas
(1) Where the Authority is satisfied that, following upon a maritime casualty on the high seas or acts related to such a casualty, there is grave and imminent danger to the coastline of Australia, or to the related interests of Australia, from pollution or threat of pollution of the sea by substances other than oil which may reasonably be expected to result in major harmful consequences, the Authority may take such measures, whether on the high seas or elsewhere, as it considers necessary to prevent, mitigate or eliminate the danger.
(2) Without limiting the generality of subsection (1), the measures that the Authority may take under this section in relation to the ship, or any of the ships, involved in the maritime casualty include:
(a) the taking of action, whether or not directions have been issued under paragraph (b) in relation to the ship:
(i) to move the ship or part of the ship to another place;
(ii) to remove cargo from the ship;
(iii) to salvage the ship, part of the ship or any of the ship’s cargo;
(iv) to sink or destroy the ship or part of the ship;
(v) to sink, destroy or discharge into the sea any of the ship’s cargo; or
(vi) to take over control of the ship or part of the ship; or
(b) the issuing of directions of the kind authorized by section 11:
(i) to the owner of the ship;
(ii) to the master of the ship; or
(iii) to any salvor in possession of the ship; or
(iv) to any other person.
(2A) The Authority must not exercise its powers under subparagraph (2)(a)(iv) without the approval of the Minister.
(2B) Without limiting subparagraph (2)(b)(iv), a direction under that subparagraph may be issued to:
(a) the owner of any other ship; or
(b) the master of any other ship; or
(c) the owner of a tangible asset; or
(d) the controller of a tangible asset; or
(e) the supplier of goods; or
(f) a person to whom goods are being, or are proposed to be, supplied; or
(g) the supplier of a service; or
(h) a person to whom a service is being, or is proposed to be, supplied.
(2C) The Authority must not issue a direction under subparagraph (2)(b)(iv) to the owner or master of another ship unless the other ship is:
(a) in internal waters; or
(b) in the Australian coastal sea; or
(c) in the exclusive economic zone of Australia; or
(d) an Australian ship.
(3) This section does not authorize the taking of measures against a warship or other ship owned or operated by a foreign State and used, for the time being, only on government non‑commercial service.
(4) The Minister and the Authority shall, in and in relation to the exercise of powers under this section, act in accordance with Articles III and V of the Convention as applying by virtue of Article II of the Protocol or, if the Protocol has not entered into force, in accordance with those Articles of the Convention as they would apply by virtue of that Article of the Protocol if the Protocol had entered into force. For this purpose, those Articles of the Convention as applying by virtue of Article II of the Protocol are taken to extend to the taking of measures under this section elsewhere than on the high seas.
(5) This section shall not be construed as limiting or otherwise affecting any right or power that the Commonwealth may have, whether under international law, under this Act or otherwise, apart from this section.
(6) Where an expression (other than high seas) is used in this section (other than paragraph (2B)(c), (d), (e), (f), (g) or (h) or (2C)(a), (b), (c) or (d)):
(a) if the expression is also used in the Protocol (whether or not a particular meaning is assigned to it by the Protocol)—the expression has, in this section, the same meaning as in the Protocol; or
(b) subject to paragraph (a), if the expression is also used in the provisions of the Convention referred to in paragraph 1 of Article II of the Protocol (whether or not a particular meaning is assigned to it by the Convention)—the expression has, in this section, the same meaning as in the Convention.
(7) A direction under this Act is taken to relate to a ship involved in a maritime casualty referred to in subsection (1) even if the direction is issued under subparagraph (2)(b)(iv).
10 Taking of measures to prevent pollution of sea by oil or noxious substances—general powers
10 Taking of measures to prevent pollution of sea by oil or noxious substances—general powers
(1) This section (other than subsections (3B) and (3C)) applies in relation to:
(a) any ship in internal waters, where:
(i) the ship is a ship in relation to which Australia has relevant international rights or obligations, whether arising under an international convention, treaty or otherwise; or
(ii) the ship is engaged in trade or commerce betwe
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