27ADetention of foreign ships in connection with pollution breaches

27A Detention of foreign ships in connection with pollution breaches

(1) The Authority may detain a foreign ship if: (a) the ship is voluntarily at a port and there are clear grounds for believing that a pollution breach has occurred as a result of acts or omissions in relation to the ship in the territorial sea or the exclusive economic zone; or (b) the ship is in the territorial sea and there are clear grounds for believing that a pollution breach has occurred as a result of acts or omissions in relation to the ship while navigating in the territorial sea; or (c) the ship is in the territorial sea or the exclusive economic zone and there is clear objective evidence that: (i) a pollution breach has occurred as a result of acts or omissions in relation to the ship in the exclusive economic zone; and (ii) the actions resulted in a discharge from the ship that has caused or threatens to cause major damage to the coastline of Australia, to related interests of Australia or to any resources of the territorial sea or exclusive economic zone. (2) If the ship is detained under paragraph (1)(b) or (c), the Authority may escort it to a port. (3) The ship must be immediately released if: (a) security is provided in accordance with subsection (4); or (b) all proceedings that have been instituted in respect of the pollution breach have been discontinued; or (c) all such proceedings have been concluded (whether or not any appeal is pending) without any person being convicted of an offence or being found liable to pay an amount of money; or (d) all such proceedings have been concluded, and all penalties and/or other amounts of money, and all costs and expenses ordered to be paid, in respect of the pollution breach have been paid; or (e) the Authority forms the belief that the pollution breach did not occur, or did not occur as a result of actions in relation to the ship; or (f) the Authority determines for any other reason that the ship should be released. (4) Security referred to in paragraph (3)(a) must: (a) be provided in a form acceptable to the Authority; and (b) be an amount that, in the Authority’s opinion, is equivalent to the maximum amount of all penalties, other amounts of money, costs and expenses that could be payable by the master and any other member of the crew of the ship and the owner of the ship in respect of the pollution breach. (5) The master and owner of the ship commit an offence if: (a) the ship was detained at a port and leaves the port; or (b) the ship was detained in the territorial sea and leaves the outer limits of the territorial sea; or (c) the ship was detained in the exclusive economic zone and leaves the outer limits of the exclusive economic zone; before it is released from detention.

Penalty: 2,000 penalty units.

(5A) An offence under subsection (5) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

(5B) While a foreign ship is detained under subsection (1), a person does not have the power of seizure provided for by section 123 of the Personal Property Securities Act 2009 in relation to the ship. (6) In this section:

Australia includes all the external Territories.

pollution breach means:

(a) a discharge or disposal from a ship that:
(i) contravenes this Act; or
(ii) gives rise to a right of recovery by the Authority under Part IVA of the Protection of the Sea (Civil Liability) Act 1981; or
(b) an offence against section 26FEG in relation to fuel oil used on board a ship as fuel; or
(c) an offence against section 26FEN.

port means a port in Australia, and is taken to include an off‑shore installation over which Australia has jurisdiction.