21Prohibition of discharge of substances into the sea

21 Prohibition of discharge of substances into the sea

Ordinary offence (1) If: (a) a person engages in conduct that causes a discharge of a liquid substance, or of a mixture containing a liquid substance, being a substance or mixture carried as cargo or part cargo in bulk, from a ship into the sea; and (b) the person is reckless or negligent as to causing the discharge by that conduct; and (c) one of the following subparagraphs applies: (i) the discharge occurs into the sea near a State, the Jervis Bay Territory or an external Territory and there is no law of that State or Territory that makes provision giving effect to regulations 3, 6 and 13 of Annex II to the Convention in relation to the area of the sea where the discharge occurs; (ia) the discharge occurs into the outer territorial sea; (ii) the discharge occurs into the sea in the exclusive economic zone; (iii) the discharge occurs into the sea beyond the exclusive economic zone and the ship is an Australian ship; the person commits an offence punishable, on conviction, by a fine not exceeding 2,000 penalty units. Strict liability offence (1B) Subject to subsections (2) and (4) to (11), if: (a) a liquid substance, or a mixture containing a liquid substance, being a substance or mixture carried as cargo or part cargo in bulk is discharged from a ship into the sea; and (b) one of the following subparagraphs applies: (i) the discharge occurs into the sea near a State, the Jervis Bay Territory or an external Territory and there is no law of that State or Territory that makes provision giving effect to regulations 3, 6 and 13 of Annex II to the Convention in relation to the area of the sea where the discharge occurs; (ia) the discharge occurs into the outer territorial sea; (ii) the discharge occurs into the sea in the exclusive economic zone; (iii) the discharge occurs into the sea beyond the exclusive economic zone and the ship is an Australian ship; the master and the owner of the ship each commit an offence punishable, on conviction, by a fine not exceeding 500 penalty units. (1C) An offence against subsection (1B) is an offence of strict liability. Exception for emergencies (2) Subsection (1B) does not apply to the discharge of a liquid substance or a mixture from a ship: (c) for the purpose of securing the safety of a ship or saving life at sea; (d) if the substance or the mixture, as the case may be, escaped from the ship in consequence of non‑intentional damage to the ship or its equipment, and all reasonable precautions were taken after the occurrence of the damage or the discovery of the discharge for the purpose of preventing or minimizing the escape of the substance or the mixture, as the case may be; or (e) if the discharge was for the purpose of combating specific pollution incidents in order to minimize the damage from pollution and was approved by a prescribed officer and, where the discharge occurred in the jurisdiction of the government of a country other than Australia, by that government.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code.

(3) For the purposes of subsection (2), damage to a ship or to its equipment is not non‑intentional damage if the damage: (a) arose in circumstances where the master or owner of the ship: (i) acted with intent to cause the damage; or (ii) acted recklessly and with knowledge that the damage would probably result; or (b) arose as a result of the negligence of the master or owner of the ship. (3A) For the purposes of this section, damage to a ship or to its equipment does not include: (a) deterioration resulting from failure to maintain the ship or equipment; or (b) defects that develop during the normal operation of the ship or equipment. Substance in Category X (4) Subject to subsections (12) and (13), if: (a) the tank of a ship that held a substance in Category X or a mixture containing a substance in Category X has been: (i) emptied to the maximum extent in accordance with procedures in the Procedures and Arrangements Manual; and (ii) washed in accordance with the prewash procedure specified in Appendix VI to Annex II; and (b) the resulting residues in the tank have been discharged to a reception facility until the concentration of that substance in the effluent to that facility is, in the opinion of an inspector, at or below the residual concentration prescribed for that substance in regulation 13.6.1 of Annex II and until the tank is empty; and (c) the residue then remaining in the tank has been subsequently diluted with water; subsection (1B) does not apply to the discharge from the ship of the water containing that residue if the conditions in subsection (9A) are satisfied.

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

High‑viscosity or solidifying substance in Category Y (5) Subject to subsections (12), (13) and (13A), if: (a) the tank of a ship that held: (i) a high‑viscosity or solidifying substance in Category Y; or (ii) a mixture containing a high‑viscosity or solidifying substance in Category Y (except a mixture containing a substance in Category X); has been: (iii) emptied to the maximum extent in accordance with procedures in the Procedures and Arrangements Manual; and (iv) washed in accordance with the prewash procedure specified in Appendix VI to Annex II; and (b) the resulting residues in the tank have been discharged to a reception facility until the tank is empty; and (c) the residue then remaining in the tank has been subsequently diluted with water; subsection (1B) does not apply to the discharge into the sea of the water containing that residue if the conditions in subsection (9A) are satisfied.

Note: A defendant bears an evidential burden in relation to the matters in subsection (5) (see subsection 13.3(3) of the Criminal Code).

Regulated persistent floaters in Category Y (5A) Subject to subsections (12) and (13), if: (a) the tank of a ship that held: (i) a regulated persistent floater in Category Y; or (ii) a mixture containing a regulated persistent floater in Category Y; has been: (iii) emptied to the maximum extent in accordance with procedures in the Procedures and Arrangements Manual; and (iv) washed in accordance with the prewash procedure specified in Appendix VI to Annex II; and (b) the resulting residues in the tank have been discharged to a reception facility at the port of unloading until the tank is empty; and (c) the residue then remaining in the tank has been subsequently diluted with water; subsection (1B) does not apply to the discharge from the ship of the water containing that residue, into the North West European waters, the Baltic Sea area, the Western European waters or the Norwegian Sea, if the conditions in subsection (9A) are satisfied.

Note: A defendant bears an evidential burden in relation to the matters in subsection (5A) (see subsection 13.3(3) of the Criminal Code).

Other substances in Category Y (6) Subject to subsections (12), (13) and (13A), if the tank of a ship that held: (a) a substance in Category Y (except a substance in Category Y referred to in subsection (5)); or (b) a mixture containing a substance in Category Y (except a substance in Category Y referred to in subsection (5)) except a mixture containing a substance in Category X; has been emptied to the maximum extent in accordance with the procedures in the Procedures and Arrangements Manual, subsection (1B) does not apply to the discharge into the sea of any residue of that substance or mixture if the conditions in subsection (9A) are satisfied.

Note: A defendant bears an evidential burden in relation to the matters in subsection (6) (see subsection 13.3(3) of the Criminal Code).

Substances in Category Z—ship constructed before 1 January 2007 (7) Subject to subsections (12) and (13), if: (a) a ship was constructed before 1 January 2007; and (b) the ship’s tank held a substance in Category Z or a mixture containing a substance in Category Z; and (c) the tank has been emptied to the maximum extent in accordance with the procedures in the Procedures and Arrangements Manual; subsection (1B) does not apply to the discharge into the sea of any residue of that substance or mixture if the following conditions are satisfied: (d) the discharge is made when the ship is proceeding en route at a speed of: (i) at least 7 knots, if the ship is self‑propelled; or (ii) at least 4 knots, if the ship is not self‑propelled; (e) the discharge is made when the ship is at least 12 nautical miles from the nearest land and is in water at least 25 metres deep.

Note: A defendant bears an evidential burden in relation to the matters in subsection (7) (see subsection 13.3(3) of the Criminal Code).

Substances in Category Z—ship constructed on or after 1 January 2007 (8) Subject to subsections (12) and (13), if: (a) a ship is constructed on or after 1 January 2007; and (b) the ship’s tank held a substance in Category Z or a mixture containing a substance in Category Z; and (c) the tank has been emptied to the maximum extent in accordance with the procedures in the Procedures and Arrangements Manual; subsection (1B) does not apply to the discharge into the sea of any residue of that substance or mixture if the conditions in subsection (9A) are satisfied.

Note: A defendant bears an evidential burden in relation to the matters in subsection (8) (see subsection 13.3(3) of the Criminal Code).

(9) On application to the Authority in the approved form, the Authority may, in accordance with the regulations, waive the condition in paragraph (9A)(c) in relation to the discharge into the sea of residue referred to in subsection (8). The Authority must give written notice of a waiver to the applicant. The notice must specify the particular ship, substance in Category Z, and prescribed voyage, for which the condition is waived. Conditions for the discharge of residue into the sea (9A) For the purposes of subsections (4), (5), (5A), (6) and (8), the following conditions must be satisfied in relation to the discharge of any residue into the sea: (a) the discharge is made when the ship is proceeding en route at a speed of: (i) at least 7 knots, if the ship is self‑propelled; or (ii) at least 4 knots, if the ship is not self‑propelled; (b) the discharge is made below the ship’s waterline through the ship’s underwater discharge outlets at a rate not exceeding the maximum rate for which each underwater discharge outlet is designed; (c) the discharge is made when the ship is at least 12 nautical miles from the nearest land; (d) the discharge is made when the ship is in water at least 25 metres deep. Discharge of bilge water etc. (10) Subsection (1B) does not apply to the discharge from a ship of bilge water, or of a mixture resulting from tank cleaning or de‑ballasting operations, that contains one or more liquid substances referred to in regulation 6.1.4 of Annex II but does not contain any other liquid substance.

Note: A defendant bears an evidential burden in relation to the matters in subsection (10) (see subsection 13.3(3) of the Criminal Code).

Discharge of clean ballast or segregated ballast (11) Subsection (1B) does not apply to the discharge from a ship of clean ballast or segregated ballast.

Note: A defendant bears an evidential burden in relation to the matters in subsection (11) (see subsection 13.3(3) of the Criminal Code).

Subsections (4) to (9) do not apply to a mixture that contains no noxious liquid substance (12) Subsections (4) to (9) do not apply in relation to a mixture that contains a liquid substance that is neither a noxious liquid substance nor a liquid substance referred to in regulation 6.1.4 of Annex II. Subsections (4) to (9) do not apply to discharges in Antarctic Area or Arctic waters (13) Subsections (4) to (9) do not apply to the discharge from a ship of noxious liquid substances, or mixtures containing noxious liquid substances, in the Antarctic Area or Arctic waters. Subsections (5) and (6) do not apply to discharges of regulated persistent floaters in certain waters (13A) Subsections (5) and (6) do not apply to the discharge from a ship of water containing residues from tanks that held regulated persistent floaters, or mixtures containing regulated persistent floaters, in the North West European waters, the Baltic Sea area, the Western European waters or the Norwegian Sea. No limitations on generality of subsections (14) Nothing in subsections (2) to (11) limits the generality of any of those subsections. Inspector (15) In this section:

inspector includes a surveyor appointed or authorized by the Government of a country that is a Party to the Convention for the purpose of implementing regulation 16 of Annex II.