PROTECTION OF THE SEA LEGISLATION AMENDMENT BILL 2010

i Protection of the Sea Legislation Amendment Bill 2010 No. , 2010

Contents

1 Short

title

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2 Commencement

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3 Schedule(s)

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Schedule 1--Prevention of air pollution

Protection of the Sea (Prevention of Pollution from Ships) Act 1983

Schedule 2--Responder immunity

Protection of the Sea (Civil Liability for Bunker Oil Pollution

Damage) Act 2008

Protection of the Sea Legislation Amendment Bill 2010 No. , 2010 1

A Bill for an Act to amend the law in relation to the

protection of the sea, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Protection of the Sea Legislation

Amendment Act 2010.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

2 Protection of the Sea Legislation Amendment Bill 2010 No. , 2010

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Schedule 1

The later of:

(a) the day after this Act receives the Royal

Assent; and

(b) 1 July 2010.

3. Schedule 2

The day after this Act receives the Royal

Assent.

Note:

This table relates only to the provisions of this Act as originally

passed by both Houses of the Parliament and assented to. It will not be

expanded to deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not

part of this Act. Information in this column may be added to or

edited in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Prevention of air pollution Schedule 1

Protection of the Sea Legislation Amendment Bill 2010 No. , 2010 3

Schedule 1--Prevention of air pollution

Protection of the Sea (Prevention of Pollution from Ships)

Act 1983

1 Subsection 26FEF(1) (definition of fuel oil)

Repeal the definition.

2 Subsection 26FEF(1)

Insert:

gas fuel includes liquefied natural gas, compressed natural gas and

liquefied petroleum gas.

3 Paragraph 26FEG(1)(b)

Omit "4.5% m/m", substitute "the prescribed limit".

Note:

The heading to section 26FEG is altered by omitting "4.5% m/m" and substituting "the

prescribed limit".

4 Subparagraph 26FEG(1)(d)(i)

Omit "Regulation 14(1)", substitute "paragraph 1 of Regulation 14".

5 Subparagraph 26FEG(1)(d)(iii)

Omit "SOx".

6 Paragraph 26FEG(2)(a)

Omit "4.5% m/m", substitute "the prescribed limit".

7 Subparagraph 26FEG(2)(b)(i)

Omit "Regulation 14(1)", substitute "paragraph 1 of Regulation 14".

8 Subparagraph 26FEG(2)(b)(iii)

Omit "SOx".

9 At the end of section 26FEG

Add:

Schedule 1 Prevention of air pollution

4 Protection of the Sea Legislation Amendment Bill 2010 No. , 2010

Exceptions

(5) Subsection (1) does not apply if:

(a) the person took all reasonable steps to obtain fuel oil with a

sulphur content of not more than the limit prescribed for the

purposes of paragraph (1)(b); and

(b) the person has, in accordance with the regulations, notified:

(i) a prescribed officer; and

(ii) if the ship's next port of destination, after the fuel oil is

used, is a port in a foreign country--the government of

that foreign country;

that the person has been unable to obtain fuel oil with a

sulphur content of not more than that limit.

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) Subsection (2) does not apply if:

(a) the master or owner of the ship took all reasonable steps to

obtain fuel oil with a sulphur content of not more than the

limit prescribed for the purposes of paragraph (2)(a); and

(b) the master or owner of the ship has, in accordance with the

regulations, notified:

(i) a prescribed officer; and

(ii) if the ship's next port of destination, after the fuel oil is

used, is a port in a foreign country--the government of

that foreign country;

that the master or owner has been unable to obtain fuel oil

with a sulphur content of not more than that limit.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (6): see subsection 13.3(3) of the Criminal Code.

10 Paragraphs 26FEH(1)(a) and (2)(a)

Omit "SOx" (wherever occurring).

Note:

The heading to section 26FEH is altered by omitting "SOx".

11 Subsection 26FEH(4)

Omit "an SOx", substitute "an".

12 Paragraph 26FEH(4)(a)

Omit "1.5% m/m", substitute "the prescribed limit".

Prevention of air pollution Schedule 1

Protection of the Sea Legislation Amendment Bill 2010 No. , 2010 5

13 Paragraph 26FEH(6)(a)

Omit "an SOx", substitute "an".

14 At the end of section 26FEH

Add:

Exception for the unavailability of fuel oil with a sulphur content of

not more than the prescribed limit

(9) Subsection (1) or (2), to the extent it relates to paragraph (4)(a),

does not apply if:

(a) the master or owner of the ship took all reasonable steps to

obtain fuel oil with a sulphur content of not more than the

limit prescribed for the purposes of paragraph (4)(a); and

(b) the master or owner of the ship has, in accordance with the

regulations, notified:

(i) a prescribed officer; and

(ii) if the ship's next port of destination, after the fuel oil is

used, is a port in a foreign country--the government of

that foreign country;

that the master or owner has been unable to obtain fuel oil

with a sulphur content of not more than that limit.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (9): see subsection 13.3(3) of the Criminal Code.

15 Section 26FEI

Before "A person", insert "(1)".

16 Paragraph 26FEI(b)

Omit "SOx".

17 Paragraph 26FEI(d)

Omit "1.5% m/m or less", substitute "not more than the prescribed

limit".

18 Paragraphs 26FEI(e) and (f)

Omit "1.5% m/m", substitute "that limit".

19 Paragraph 26FEI(f)

Schedule 1 Prevention of air pollution

6 Protection of the Sea Legislation Amendment Bill 2010 No. , 2010

Omit "SOx".

20 At the end of section 26FEI

Add:

(2) A person commits an offence if:

(a) the person is the master of an Australian ship; and

(b) the ship enters an emission control area; and

(d) at least one of the fuel oils has a sulphur content of not more

than the prescribed limit; and

(e) at least one of the fuel oils has a sulphur content of more than

that limit; and

(f) when the ship enters the emission control area, the ship does

not carry a written procedure showing how the ship's fuel oil

service system is to be fully flushed of fuel oil with a sulphur

content of more than that limit before the ship enters the

emission control area.

Penalty: 200 penalty units.

21 Paragraph 26FEJ(1)(a)

Omit "after a prescribed fuel-changeover operation on the ship occurs

when the ship enters an SOx emission control area; or", substitute:

after:

(i) the completion of the last prescribed fuel-changeover

operation on the ship before the ship enters an emission

control area; or

(ii) the completion of the first prescribed fuel-changeover

operation on the ship after the ship leaves an emission

control area; or

22 Subsections 26FEK(1) and (2)

Omit "SOx".

Note:

The heading to section 26FEK is altered by omitting "SOx".

23 Division 3 of Part IIID (heading)

Repeal the heading, substitute:

Prevention of air pollution Schedule 1

Protection of the Sea Legislation Amendment Bill 2010 No. , 2010 7

Division 3--Fuel oil availability and quality requirements

24 Subparagraph 26FEL(c)(i)

Omit "Regulation 18(7)(a)", substitute "subparagraph 9.1 of Regulation

18".

25 Paragraph 26FEN(1)(b)

Omit "Regulation 18(1)", substitute "paragraph 3 of Regulation 18".

26 Subparagraph 26FEN(1)(c)(i)

Omit "Regulation 18(1)", substitute "paragraph 3 of Regulation 18".

27 Paragraph 26FEO(1)(a)

After "fuel oil", insert "(other than gas fuel)".

28 Subparagraph 26FEO(1)(c)(i)

Omit "Regulation 18(1)", substitute "paragraph 3 of Regulation 18".

29 Paragraph 26FEO(2)(a)

After "fuel oil", insert "(other than gas fuel)".

30 Subparagraph 26FEO(2)(c)(i)

Omit "Regulation 18(1)", substitute "paragraph 3 of Regulation 18".

31 Subparagraph 26FEP(1)(d)(i)

Omit "Regulation 18(7)(b)", substitute "subparagraph 9.2 of Regulation

18".

32 Paragraph 26FEP(1)(f)

Omit "regulation 18(1)", substitute "paragraph 3 of Regulation 18".

33 Subparagraph 26FEQ(2)(d)(i)

Omit "the ship", substitute "accordance with subsection (5)".

34 At the end of section 26FEQ

Add:

Schedule 1 Prevention of air pollution

8 Protection of the Sea Legislation Amendment Bill 2010 No. , 2010

Retention requirements for masters and owners of Australian ships

(5) For the purposes of subparagraph (2)(d)(i), a bunker delivery note

must be retained:

(a) in the ship; or

(b) at a place approved under subsection (7).

(6) The owner of an Australian ship that engages in scheduled services

may apply in writing to the Authority for approval to retain bunker

delivery notes at a particular place.

(7) If an application is made to the Authority, the Authority must:

(a) either approve, or refuse to approve, the place; and

(b) give the owner of the ship written notice of the decision

including, in the case of a refusal, the reasons for the refusal.

(8) An application may be made to the Administrative Appeals

Tribunal for review of a decision of the Authority under

subsection (7) to refuse to approve a place.

35 At the end of Division 3 of Part IIID

Add:

26FES Notification of sulphur content of gas fuel

(1) A person commits an offence if:

(a) the person delivers gas fuel to a ship; and

(b) the ship has a gross tonnage of 400 or more; and

(i) in the sea near a State, the Jervis Bay Territory or an

external Territory and no law of that State or Territory

gives effect to paragraph 3 of Regulation 18 of Annex

VI in relation to that sea; or

(ii) in the exclusive economic zone; and

(d) the person does not provide to the master of the ship, in

connection with that delivery, documentation specifying the

sulphur content for the gas fuel delivered.

Penalty: 200 penalty units.

(2) An offence against subsection (1) is an offence of strict liability.

Note:

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

Prevention of air pollution Schedule 1

Protection of the Sea Legislation Amendment Bill 2010 No. , 2010 9

36 At the end of Part IIID

Add:

Division 4--Ozone depleting substances record book

26FET Ozone depleting substances record book

(1) This section applies to an Australian ship that:

(a) has a gross tonnage of 400 or more; and

(b) has at least one rechargeable system containing ozone

depleting substances; and

Ship to carry ozone depleting substances record book

(2) The ship must carry an ozone depleting substances record book as

required by the regulations.

(3) An ozone depleting substances record book must:

(a) be in accordance with the appropriate prescribed form; and

(b) make provision for a signature, in accordance with

subsection (7), in relation to each page of it; and

subsection (8), in relation to each entry made in it.

(4) The master and the owner of the ship each commit an offence if the

ship does not carry an ozone depleting substances record book as

required by this section.

Penalty: 200 penalty units.

(5) An offence against subsection (4) is an offence of strict liability.

Note:

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

Recording prescribed operations or prescribed occurrences in

ozone depleting substances record book

(6) The master of the ship commits an offence if:

(a) a prescribed operation or prescribed occurrence is carried out

or occurs in, or in relation to, the ship; and

(b) neither of the following subparagraphs applies:

Schedule 1 Prevention of air pollution

10 Protection of the Sea Legislation Amendment Bill 2010 No. , 2010

(i) the master of the ship makes, without delay, appropriate

entries in accordance with subsection (8) in the ship's

ozone depleting substances record book;

(ii) the master of the ship causes appropriate entries in

accordance with that subsection to be made in that book

as soon as is practicable in the circumstances.

Penalty: 200 penalty units.

Signing of pages of ozone depleting substances record book

(7) The master of the ship commits an offence if:

(a) a page of the ship's ozone depleting substances record book

is completed; and

(b) the master of the ship does not, as soon as is practicable in

the circumstances, sign the page.

Penalty: 200 penalty units.

Form of entries in ozone depleting substances record book

(8) An entry in a ship's ozone depleting substances record book:

(a) must be made in the English language; and

(b) if the entry is made in relation to a prescribed operation--

must be signed by the person in charge of the operation.

Overseas voyage

(9) For the purposes of this section, overseas voyage has the same

meaning as in the Navigation Act 1912. However, if an Australian

fishing vessel (within the meaning of that Act) that is regularly

engaged in making voyages from a port or ports in Queensland:

(a) begins a voyage at a port in Queensland; and

(b) ends the voyage at the same port or another port in

Queensland;

that voyage is not taken to be an overseas voyage merely because,

as an incidental part of its fishing operations on that voyage, the

vessel calls at a port or ports in Papua New Guinea.

Prevention of air pollution Schedule 1

Protection of the Sea Legislation Amendment Bill 2010 No. , 2010 11

26FEU False or misleading entries in ozone depleting substances

record book

A person commits an offence if:

(a) the person makes an entry in an ozone depleting substances

record book of a ship; and

(b) section 26FET applies to the ship; and

Penalty: 200 penalty units.

26FEV Ozone depleting substances record book to be retained

Retention etc. of ozone depleting substances record book in ship

(1) The master and the owner of a ship to which section 26FET applies

each commit an offence if:

(a) the ship's ozone depleting substances record book is not

retained in the ship until the end of one year beginning on the

day after the day on which the last entry is made in the book;

(b) the ship's ozone depleting substances record book is not

readily available for inspection by an inspector at all

reasonable times during that period.

Penalty: 200 penalty units.

(2) An offence against subsection (1) is an offence of strict liability.

Note:

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

Retention etc. of ozone depleting substances record book in ship or

at other places

(3) The owner of a ship to which section 26FET applies commits an

offence if:

(a) none of the following subparagraphs applies in relation to the

ship's ozone depleting substances record book:

(i) it is retained in the ship until the end of 2 years

beginning on the day after the end of the period referred

to in paragraph (1)(a);

(ii) it is retained at the owner's registered office, or at a

place or office whose address is notified under

Schedule 1 Prevention of air pollution

12 Protection of the Sea Legislation Amendment Bill 2010 No. , 2010

subsection (4), until the end of 2 years beginning on the

day after the end of the period referred to in

paragraph (1)(a);

(iii) it is deposited in accordance with subsection (5) until

the end of 2 years beginning on the day after the end of

the period referred to in paragraph (1)(a); or

(b) the ship's ozone depleting substances record book is not

readily available for inspection by an inspector at all

reasonable times during the 2-year period mentioned in

paragraph (a).

Penalty: 200 penalty units.

Notification of places or offices

(4) The owner of a ship to which section 26FET applies who resides in

Australia, or has an office or agent in Australia, may give to a

prescribed officer notice, in writing, of the address of:

(a) the place at which the owner so resides; or

(b) the owner's office in Australia or, if the owner has more than

one office in Australia, the owner's principal office in

Australia; or

owner's agent has more than one office in Australia, the

principal office in Australia of the owner's agent.

Deposit of ozone depleting substances record book

(5) If the owner of a ship to which section 26FET applies does not

reside in Australia and does not have an office or agent in

Australia, the owner may deposit the ship's ozone depleting

substances record book with a prescribed officer.

37 Application and saving

(1)

The amendment made by item 1 does not affect the continuity of the

(Prevention of Pollution from Ships) Act 1983.

(2)

The amendments made by items 3 to 9 apply in relation to the use of

fuel oil on or after the commencement of those items.

Prevention of air pollution Schedule 1

Protection of the Sea Legislation Amendment Bill 2010 No. , 2010 13

(3)

The amendments made by items 10 to 20 apply in relation to voyages of

Australian ships that begin on or after the commencement of those

items.

(4)

The amendment made by item 21 applies in relation to fuel-changeover

operations that occur on or after the commencement of that item.

(5)

The amendment made by item 27 applies in relation to deliveries of fuel

oil that occur on or after the commencement of that item.

(6)

The amendments made by items 33 and 34 apply in relation to bunker

delivery notes that are provided on or after the commencement of those

items.

(7)

The amendment made by item 35 applies in relation to deliveries of gas

fuel that occur on or after the commencement of that item.

(8)

Section 26FET of the Protection of the Sea (Prevention of Pollution

from Ships) Act 1983, as inserted by this Act, applies in relation to

overseas voyages of Australian ships that begin on or after the

commencement of that section.

Schedule 2 Responder immunity

14 Protection of the Sea Legislation Amendment Bill 2010 No. , 2010

Schedule 2--Responder immunity

Protection of the Sea (Civil Liability for Bunker Oil Pollution

Damage) Act 2008

1 Section 3

Insert:

constitutional corporation means a corporation to which

paragraph 51(xx) of the Constitution applies.

2 Section 3

Insert:

shipowner has the same meaning as in the Bunker Oil Convention.

3 Before section 25

Insert:

24A Responder immunity

(1) Subject to this section, no civil action, suit or proceeding lies

against a person in relation to anything done, or omitted to be done,

reasonably and in good faith by the person in relation to preventing

or minimising pollution damage occurring in Australia or the

exclusive economic zone of Australia.

Note:

This section also applies in relation to the coastal sea of Australia and

an external Territory: see section 15B of the Acts Interpretation Act

1901.

Exceptions

(2) Subsection (1) does not prevent an action, suit or proceeding from

being brought against the shipowner or shipowners concerned

(including on the basis of vicarious liability).

(3) Subsection (1) does not apply in relation to anything done, or

omitted to be done:

(a) with intent to cause damage; or

Responder immunity Schedule 2

Protection of the Sea Legislation Amendment Bill 2010 No. , 2010 15

(b) recklessly and with knowledge that damage would probably

result.

Scope of section

(4) Subsection (1) has effect:

(a) in relation to anything done, or omitted to be done, by:

(i) a constitutional corporation; or

(ii) a director, officer, employee or agent of a constitutional

corporation in the capacity of such a director, officer,

employee or agent; and

(b) in relation to anything done, or omitted to be done, outside

Australia; and

course of, or in relation to, any of the following:

(i) trade or commerce between Australia and places outside

Australia;

(ii) trade or commerce among the States;

(iii) trade or commerce within a Territory, between a State

and a Territory or between 2 Territories; and

(d) in relation to anything done, or omitted to be done, by the

Commonwealth or an authority of the Commonwealth.

(5) For the purposes of paragraph (4)(b), outside Australia means

outside the baseline from which the breadth of the territorial sea

(within the meaning of the Seas and Submerged Lands Act 1973) is

measured under section 7 of that Act.

4 Application

The amendment made by item 3 applies in relation to anything done, or

omitted to be done, on or after the commencement of that item.

Commonwealth of Australia Bills

PROTECTION OF THE SEA LEGISLATION AMENDMENT BILL 2010