26ABProhibition of discharge by jettisoning of harmful substances into the sea

26AB Prohibition of discharge by jettisoning of harmful substances into the sea

(1) If: (a) a person engages in conduct that causes a harmful substance, being a substance carried as cargo in packaged form, to be jettisoned from a ship into the sea; and (b) the person is reckless or negligent as to causing the jettisoning by that conduct; and (c) one of the following subparagraphs applies: (i) the jettisoning 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 Regulation 7 of Annex III to the Convention in relation to the area of the sea where the jettisoning occurs; (ia) the jettisoning occurs into the outer territorial sea; (ii) the jettisoning occurs into the sea in the exclusive economic zone; (iii) the jettisoning 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. (3) Subject to subsections (5) and (6), if: (a) a harmful substance, being a substance carried as cargo in packaged form, is jettisoned from a ship into the sea; and (b) one of the following subparagraphs applies: (i) the jettisoning 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 Regulation 7 of Annex III to the Convention in relation to the area of the sea where the jettisoning occurs; (ia) the jettisoning occurs into the outer territorial sea; (ii) the jettisoning occurs into the sea in the exclusive economic zone; (iii) the jettisoning 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. (4) An offence against subsection (3) is an offence of strict liability. (5) Subsection (3) does not apply to the jettisoning of a harmful substance from a ship for the purpose of securing the safety of the ship or saving life at sea.

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

(6) Where a harmful substance referred to in subsection (3) is discharged from a ship into the sea because of a leakage of the substance, the substance shall, for the purposes of this section, be taken to have been jettisoned, but that subsection does not apply to the discharge if: (a) the substance was washed overboard from the ship in accordance with the regulations; or (b) the substance was washed overboard from the ship otherwise than in accordance with such regulations in circumstances where compliance with such regulations would have impaired the safety of the ship or of persons on board the ship.