MARINE POLLUTION BILL 2011

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This is a Bill, not an Act. For current law, see the Acts databases.

MARINE POLLUTION BILL 2011

New South Wales Marine Pollution Bill 2012 Contents Page Part 1 Preliminary 1 Name of Act 2 2 Commencement 2 3 Definitions 2 4 Expressions used in this Act and MARPOL 8 5 Meaning of "responsible" 8 6 Time when ship taken to be proceeding on voyage 8 7 References to tonnage 9 8 Notes 9 Part 2 Application of Act 9 Saving of other laws 10 10 Act subject to Ports and Maritime Administration Act 1995 10 11 Detention of ships and holding of security over them: exclusion of matters from operation of Commonwealth Act 10 b2007-099-11.d70 Marine Pollution Bill 2012 Contents Page 12 Application of Act to mixtures of marine pollutants 11 13 Discharge outside State waters that enters State waters 11 14 Discharges to which Act does not apply 11 Part 3 Prevention of pollution by oil Division 1 Offences relating to discharge of oil 15 Discharging oil into State waters from a ship prohibited 13 16 Causing discharge of oil into State waters from a ship prohibited 13 17 Offence of being responsible for discharge of oil into State waters from a ship 14 Division 2 Defences 18 Defence if discharge was caused by damage to ship or equipment 14 19 Defence if discharge was to secure safety or save life 14 20 Defence if discharge was for purpose of combating pollution 14 21 Defence if discharge was authorised for training 14 22 Defence for certain ships 400 tonnes or more and oil tankers not within special areas 14 23 Defence for certain ships 400 tonnes or more and oil tankers within special areas 15 24 Defence for smaller ships and oil tankers 15 25 Defence for discharge of clean or segregated ballast from oil tankers 16 Division 3 Offence relating to oil residues 26 Failing to retain oil residues 16 Part 4 Prevention of pollution by noxious liquid substances Division 1 Offences relating to carrying uncategorised noxious liquid substances 27 Carrying uncategorised noxious liquid substances prohibited 17 28 Causing carriage of uncategorised noxious liquid substances prohibited 17 Division 2 Offences relating to discharge of noxious liquid substances 29 Discharging noxious liquid substances into State waters from ship prohibited 17 Contents page 2 Marine Pollution Bill 2012 Contents Page 30 Causing discharge of noxious liquid substances into State waters from ship prohibited 18 31 Offence of being responsible for discharge of noxious liquid substances into State waters from a ship 19 Division 3 Defences 32 Defence if discharge was caused by damage to ship or equipment 19 33 Defence if discharge was to secure safety or save life 19 34 Defence if discharge was for purpose of combating pollution 19 35 Defence for discharge of certain Category X substances 20 36 Defence for discharge of certain high-viscosity or solidifying substances in Category Y 21 37 Defence for discharge of certain other Category Y substances 22 38 Defence for discharge of Category Z substances from ships constructed before 1 January 2007 23 39 Defence for discharge of Category Z substances from ships constructed on or after 1 January 2007 23 40 Defence for discharge of bilge water 24 41 Defence for discharge of clean ballast or segregated ballast 24 Division 4 Cleaning of tanks of ships 42 Regulations may make provision for cleaning of tanks of ships 25 Part 5 Prevention of pollution by harmful substances in packaged form Division 1 Offences relating to carriage 43 Certain carriage of harmful substances in packaged form prohibited 26 44 Causing certain carriage of harmful substances in packaged form prohibited 26 Division 2 Offences relating to jettisoning 45 Jettisoning of harmful substances in packaged form into State waters from ship prohibited 26 46 Causing jettisoning of harmful substances in packaged form into State waters from ship prohibited 27 47 Offence of being responsible for jettisoning of harmful substances in packaged form into State waters from a ship 27 Contents page 3 Marine Pollution Bill 2012 Contents Page Division 3 Defences 48 Defence for jettisoning to secure safety or save life 28 49 Defence for certain leakages causing substance to be washed overboard 28 Division 4 Miscellaneous 50 Part does not apply to stores or equipment 28 51 Leakages taken to be jettisoned 28 52 Empty packaging 28 Part 6 Prevention of pollution by sewage Division 1 Offences relating to discharge of sewage 53 Discharge of sewage into State waters from ship prohibited 29 54 Causing discharge of sewage into State waters from ship prohibited 29 55 Offence of being responsible for discharge of sewage into State waters from a ship 30 Division 2 Defences 56 Defence for discharge caused by damage to ship or equipment 30 57 Defence for discharge to secure safety or save life 30 58 Defence for discharge of comminuted and disinfected sewage not less than 3 nautical miles from the nearest land 30 59 Defence of discharge of treated sewage 31 Part 7 Prevention of pollution by garbage Division 1 Offences relating to discharge of garbage 60 Discharging of garbage into State waters from ship prohibited 32 61 Causing discharge of garbage into State waters from ship prohibited 32 62 Offence of being responsible for discharge of garbage into State waters from a ship 33 Division 2 Defences 63 Defence if discharge was caused by damage to ship or equipment 33 64 Defence if discharge was to secure safety or save life 33 65 Defence if accidental loss of nets and other materials 33 66 Defence in relation to certain dunnage, lining or packing materials that will float 33 Contents page 4 Marine Pollution Bill 2012 Contents Page Part 8 Prevention of pollution from transfer operations Division 1 Application of Part 67 Meaning of "prescribed marine pollutant" 35 Division 2 Offences relating to transfer operations 68 Discharge of prescribed marine pollutant from ship in transfer operation prohibited 35 69 Discharge of prescribed marine pollutant from place on land in transfer operation prohibited 36 70 Discharge of prescribed marine pollutant from apparatus on a ship used in transfer operation prohibited 36 71 Discharge of prescribed marine pollutant from apparatus on a place on land used in transfer operation prohibited 37 72 Offence of causing discharge of prescribed marine pollutant from pipeline in connection with transfer operation 37 73 Discharge of prescribed marine pollutant from pipeline in connection with transfer operation prohibited 38 74 Transfer of prescribed marine pollutant at night 38 Division 3 Discharges to which Division 2 does not apply 75 Division 2 does not apply to certain discharges 39 76 Division 2 does not apply to discharge for purposes of combating pollution incidents 39 77 Division 2 does not apply to certain licensed discharges 39 Division 4 Record keeping relating to transfer operations 78 Keeping of records relating to transfer 40 79 Entries required to be made 40 80 Transmission of records relating to transfer operation 40 81 Disposal of records relating to transfer operation 40 82 False or misleading entries prohibited 41 Division 5 Miscellaneous 83 Several liability 41 84 Multiple offenders 41 85 Prohibitions on discharges from ships still apply 41 Part 9 Reporting of pollution incidents Division 1 Meaning of "reportable incident" 86 Meaning of "reportable incident" 42 Contents page 5 Marine Pollution Bill 2012 Contents Page Division 2 Master's obligations 87 Master must report reportable incident 42 88 Master must provide supplementary report if Minister requires it 43 89 Master must provide supplementary report if further developments arise 43 Division 3 Obligations of other persons 90 Duty of other persons to report if ship abandoned or report cannot be obtained 43 91 Duty of other persons to report if report incomplete 44 92 Duty of other persons to provide supplementary report 44 Division 4 Miscellaneous 93 False or misleading reports 45 94 Inadmissibility of certain evidence 45 Part 10 Emergency plans and other plans Division 1 Shipboard oil pollution emergency plan 95 Obligation to carry shipboard oil pollution emergency plan 46 96 Approval of shipboard oil pollution emergency plan 46 97 Contents of shipboard oil pollution emergency plan 46 98 Language of shipboard oil pollution emergency plan 47 99 Plans may be combined 47 Division 2 Shipboard marine pollution emergency plan for noxious liquid substances 100 Obligation to carry shipboard marine pollution emergency plan for noxious liquid substances 48 101 Approval of shipboard marine pollution emergency plan for noxious liquid substances 48 102 Contents of shipboard marine pollution emergency plan for noxious liquid substances 48 103 Language of shipboard marine pollution emergency plan for noxious liquid substances 49 Division 3 Procedures and arrangements manual 104 Procedures and arrangements manual required 49 105 Form and content of procedures and arrangements manual 50 106 Language of procedures and arrangements manual 50 Contents page 6 Marine Pollution Bill 2012 Contents Page Division 4 Shipboard garbage management plan 107 Obligation to carry shipboard garbage management plan 50 108 Contents of shipboard garbage management plan 50 109 Language of shipboard garbage management plan 51 Division 5 Placards relating to garbage disposal requirements 110 Placards relating to requirements for disposal of garbage 51 111 Content of garbage disposal requirements placard 52 112 Language of garbage disposal requirements placards 52 Part 11 Record keeping Division 1 Requirement to carry oil record book 113 Requirement to carry an oil record book 53 114 Form of oil record book 53 115 Language of oil record book 53 116 Master must sign completed page of oil record book 54 117 Entries in relation to prescribed operations or occurrences 54 118 Entries in relation to inspections 54 119 False entries in oil record book 54 120 Oil record book to be retained on ship for one year 55 121 Oil record book to be retained 55 122 Master may be required to certify entry in oil record book 56 123 Admissibility of certified entry in oil record book 56 Division 2 Requirement to carry cargo record book 124 Requirement to carry cargo record book 56 125 Form of cargo record book 56 126 Language of cargo record book 57 127 Master must sign completed page of cargo record book 57 128 Entries in relation to prescribed operations or occurrences 57 129 Entries in relation to inspections 57 130 False entries in cargo record book 58 131 Cargo record book to be retained on ship for one year 58 132 Cargo record book to be retained for two years 58 133 Master may be required to certify entry in cargo record book 59 134 Admissibility of certified entry in cargo record book 59 Division 3 Requirement to carry garbage record book 135 Requirement to carry garbage record book on board ship 59 136 Requirement to carry garbage record book on platform 60 Contents page 7 Marine Pollution Bill 2012 Contents Page 137 Minister may waive requirement to carry garbage record book 60 138 Form of garbage record book 60 139 Language of garbage record book 60 140 Master must sign completed page of garbage record book 60 141 Entries in relation to prescribed operations or occurrences 61 142 Entries in relation to inspections 61 143 False entries in garbage record book 61 144 Garbage record book to be retained on ship for one year 61 145 Garbage record book to be retained 62 146 Master may be required to certify entry in garbage record book 63 147 Admissibility of certified entry in garbage record book 63 Part 12 Certification of construction of ships Division 1 Regulations relating to construction of ships 148 Regulations relating to construction of ships 64 149 References to compliance with Annexes of MARPOL 64 Division 2 Requirement for certification of certain ships 150 Requirement for ship construction certificate 64 151 Requirement for chemical tanker construction certificate 65 152 Requirement for sewage pollution prevention certificate 66 Division 3 Local certification 153 Application for NSW certificate 67 154 Ship to be surveyed 68 155 Issue of NSW certificates 68 156 Duration of NSW certificate 69 Division 4 Surveys after accident or discovery of defect 157 Duty of master and owner to notify Minister of certain accidents 69 158 Duty of master and owner to notify Minister of certain defects 69 159 Minister may investigate ship or require survey after notifiable accident or defect 69 160 Ships to be surveyed after accident or discovery of defect 70 Division 5 Approval of major changes to NSW certified ship 161 Changes to construction of ships must be notified and pre-approved 70 Contents page 8 Marine Pollution Bill 2012 Contents Page 162 Minister may investigate ship or require survey after notice of proposed change 70 163 Ships to be surveyed after notice given of proposed change 71 Division 6 Annual surveying of ships 164 Ships to be surveyed annually 71 Division 7 Renewal of local certification 165 Application for renewal of NSW certificate 71 166 Ship to be surveyed before renewal 71 167 Renewal of NSW certificates 72 168 Extension of NSW certificates 72 Division 8 Cancellation of local certification 169 Cancellation of NSW certificate 72 170 Cancelled NSW certificate has no effect 73 171 Surrender of cancelled NSW certificate 73 172 Detained ship must not leave port 73 Part 13 Ships must be insured against damage by discharge of oil 173 Application of Part 74 174 Ships must be insured against oil pollution 74 175 Ships must carry evidence of insurance 75 176 Ship may be detained 75 177 Detained ship must not leave port 75 Part 14 Reception facilities for collecting waste Division 1 Minister may provide reception facilities 178 Minister may arrange for provision of reception facilities 76 179 Regulations concerning reception facilities 76 Division 2 Minister may direct persons to provide reception facilities 180 Minister may require person to provide, maintain and make available reception facilities 76 181 Owner or occupier must comply with requirement relating to reception facilities 77 182 Notices 77 Contents page 9 Marine Pollution Bill 2012 Contents Page Part 15 Minister may take action to prevent or clean up pollution 183 Minister may take action to prevent or clean up marine pollution 78 184 Recovery of costs and expenses of preventative action or clean-up action 79 185 Costs and expenses incurred by Minister are charges on ship 80 186 Detention of ship until recovery of costs and expenses or giving of security 81 187 Detained ship must not leave port 81 188 Obstruction of officers is an offence 81 189 Oiled Wildlife Care Network 81 Part 16 Marine environment protection notices Division 1 Preliminary 190 Definitions 83 191 Classification of marine environment protection notices 85 192 Marine environment protection notices may be given orally 85 Division 2 Marine pollution clean-up notices 193 Clean-up by polluters 85 194 Clean-up by public authorities 86 195 Fee 87 Division 3 Marine pollution prevention notices 196 Meaning of environmentally unsatisfactory manner 87 197 Preventative action 87 198 Offence 89 199 Commencement of operation of marine pollution prevention notices or variations 89 200 Fee 89 Division 4 Marine pollution prohibition notices 201 Prohibition on activities 90 202 Offence 90 Division 5 Minister may take action if marine environment protection notice not complied with 203 Minister may take action in event of failure to comply 90 204 Obstruction of persons acting in compliance with notice is an offence 91 Contents page 10 Marine Pollution Bill 2012 Contents Page Division 6 Compliance costs 205 Marine pollution compliance cost notices 91 206 Recovery of amounts 92 Division 7 Recovery of costs and expenses if the Minister takes action 207 Costs and expenses incurred by Minister are charges on ship 92 208 Detention of ship until recovery of costs and expenses or giving of security 92 209 Detained ship must not leave port 93 Division 8 Miscellaneous 210 Minister's other preventative powers not affected 93 211 Multiple notices 93 212 Extraterritorial application 93 213 Revocation or variation 93 214 Power to enter land 93 215 Obstruction of persons 94 Part 17 Recovery of costs, expenses and damages Division 1 Recovery of costs, expenses and damages by Minister or any other person 216 Recovery of damages, costs or expenses relating to discharge prohibited by Act 95 217 Recovery of loss, damage, costs or expenses 97 Division 2 Joint liability for damage relating to transfer operations 218 Joint and several liability where oil or noxious liquid substance is discharged from pipeline 97 219 Several liability where oil or noxious liquid substance is discharged from 2 or more ships 97 Division 3 Rights of recovery not affected 220 Rights of recovery not affected 97 Part 18 Detention of ships and taking of securities 221 Ships that are believed to have discharged marine pollutants may be detained 98 222 Detained ships must not depart 98 223 Security may be required to be provided 99 224 Detained ships must be released if security provided or no liability 99 Contents page 11 Marine Pollution Bill 2012 Contents Page 225 Security taken by Minister 99 Part 19 Enforcement Division 1 Appointment of inspectors and authorised persons 226 Appointment of inspectors 101 227 Identity cards for inspectors and authorised persons 101 Division 2 Powers of inspectors and authorised persons 228 Powers of inspectors and authorised persons 101 229 Inspectors and authorised persons may enter or inspect place on land 102 230 Inspector and authorised persons must not unnecessarily delay ships 103 231 Obstruction of inspectors and authorised persons 103 232 Inspectors and certain other persons have no personal liability 103 Part 20 Proceedings for enforcement Division 1 Proceedings for enforcement 233 Time within which proceedings may be commenced 104 234 Proceedings for offences 104 235 Offences by corporations 104 Division 2 Penalties are charges on ship 236 Penalties are charges on ship 104 237 Detention of ship until recovery of penalty or provision of security 105 Division 3 Evidence 238 Records are admissible as evidence 105 239 Proof of certain matters not required 105 240 Evidence of analysts 105 Division 4 Miscellaneous 241 No double jeopardy 106 242 Defences operate separately 107 Part 21 Regulations and orders 243 Regulations 108 244 Regulations may prescribe decisions that are to be reviewable by Administrative Decisions Tribunal 109 Contents page 12 Marine Pollution Bill 2012 Contents Page 245 Orders 109 246 Prescribing matters by reference to other instruments 110 Part 22 Miscellaneous 247 Delegation 111 248 Service of instruments (except in proceedings for offences) 111 249 Act to bind Crown 112 250 Repeal 112 251 Review of Act 112 Schedule 1 Amendment of other Acts 113 Schedule 2 Savings, transitional and other provisions 115 Contents page 13 This PUBLIC BILL, originated in the LEGISLATIVE COUNCIL and, having this day passed, is now ready for presentation to the LEGISLATIVE ASSEMBLY for its concurrence. Clerk of the Parliaments.

egislative Council New South Wales Marine Pollution Bill 2012 Act No , 2012 An Act to protect the State's marine and coastal environment from pollution by oil and certain other marine pollutants discharged from ships; to repeal the Marine Pollution Act 1987; and for other purposes. Clause 1 Marine Pollution Bill 2012 Part 1 Preliminary The Legislature of New South Wales enacts: 1 Part 1 Preliminary 2 1 Name of Act 3 This Act is the Marine Pollution Act 2012. 4 2 Commencement 5 This Act commences on a day or days to be appointed by proclamation. 6 3 Definitions (cf former Act s 3) 7 In this Act: 8 Australian fishing vessel means a fishing vessel that is registered, or 9 entitled to be registered, in Australia or in relation to which an 10 instrument under section 4 (2) of the Fisheries Management Act 1991 11 of the Commonwealth is in force and includes a fishing fleet support 12 vessel within the meaning of the Navigation Act 1912 of the 13 Commonwealth. 14 Australian ship means: 15 (a) a ship registered in Australia, or 16 (b) an unregistered ship having Australian nationality. 17 cargo record book, in relation to a ship, means a book required to be 18 carried on board the ship by section 124. 19 certified: 20 (a) in relation to a ship with a home port in this State--means 21 certified by Roads and Maritime Services or the Australian 22 Maritime Safety Authority, or 23 (b) in relation to an Australian ship with a home port outside this 24 State--means certified by the Australian Maritime Safety 25 Authority or by the interstate maritime authority that regulates its 26 home port, or 27 (c) in relation to a ship having nationality outside Australia--means 28 certified by the relevant national maritime authority of the 29 country whose flag the ship is entitled to fly. 30 discharging includes jettisoning. 31 Page 2 Marine Pollution Bill 2012 Clause 3 Preliminary Part 1 fishing vessel means a vessel used or intended to be used for catching 1 fish, seals, walrus or other living resources of the sea or seabed for profit 2 or reward and includes any such vessel in the course of construction, but 3 does not include any vessel: 4 (a) engaged in harvesting or transportation of algae or aquatic plants, 5 or 6 (b) that is primarily a carrier or a mother vessel. 7 foreign ship means a ship that is not an Australian ship. 8 function includes a power, authority or duty, and exercise a function 9 includes perform a duty. 10 garbage disposal requirements placard, in relation to a ship, means a 11 placard required to be displayed on the ship by section 110. 12 garbage record book: 13 (a) in relation to a ship--means a book required to be carried on 14 board the ship by section 135, or 15 (b) in relation to a platform--means a book required to be carried on 16 the platform by section 136. 17 Government ship has the same meaning as in section 13 (1) of the 18 Protection of the Sea (Civil Liability) Act 1981 of the Commonwealth. 19 harmful substance means a substance that is identified as a marine 20 pollutant in the International Maritime Dangerous Goods Code and 21 includes a substance that meets the criteria in the Appendix of Annex III 22 of MARPOL. 23 inspector means a person who is appointed under section 226 to be an 24 inspector for the purposes of this Act. 25 International Maritime Dangerous Goods Code means the Code 26 adopted by the International Maritime Organization by resolution 27 A.716(17), as amended from time to time. 28 inter-State voyage has the same meaning as in the Navigation Act 1912 29 of the Commonwealth. 30 intra-State voyage means a voyage other than an inter-State voyage or 31 an overseas voyage. 32 jettisoning includes leakage and accidental discharge or loss overboard. 33 large ship means a ship: 34 (a) that has a gross tonnage of 400 tons or more, or 35 (b) that has a gross tonnage of less than 400 tons and that is certified 36 to carry more than 15 persons, or 37 (c) that does not have a measured tonnage and is certified to carry 38 more than 15 persons. 39 Page 3 Clause 3 Marine Pollution Bill 2012 Part 1 Preliminary marine pollutant means any one, or any combination, of the following 1 substances (whether in bulk, packaged or another form): 2 (a) oil, 3 (b) a noxious liquid substance, 4 (c) a harmful substance, whether or not in packaged form, 5 (d) sewage, 6 (e) garbage. 7 MARPOL means the International Convention for the Prevention of 8 Pollution from Ships, 1973: 9 (a) as corrected by the Proces-Verbal of Rectification dated 10 13 June 1978, and 11 (b) as affected by any amendment made under Article 16 of 12 MARPOL, other than an amendment not accepted by Australia or 13 that has not entered into force in Australia, and 14 (c) as modified and added to by the Protocol of 1978 relating to the 15 International Convention for the Prevention of Pollution from 16 Ships, 1973, as affected by any amendment to that Protocol made 17 under Article VI of that Protocol other than an amendment not 18 accepted by Australia or that has not entered into force in 19 Australia. 20 Note. The full text of the 1973 Convention and the 1978 Protocol referred to in 21 this definition (including all amendments) can be found by searching for 22 "MARPOL" on the website of the Australian Maritime Safety Authority 23 (www.amsa.gov.au). The amendments accepted by Australia are the 24 amendments reproduced on that website. 25 master, in relation to a ship, means a person, other than a pilot, having 26 command or charge of the ship. 27 mixture includes ballast water, tank washings and other residues. 28 NSW certificate means: 29 (a) a NSW chemical tanker construction certificate, or 30 (b) a NSW sewage pollution prevention certificate, or 31 (c) a NSW ship construction certificate. 32 NSW chemical tanker construction certificate means a certificate 33 issued under section 155 (2). 34 NSW sewage pollution prevention certificate means a certificate issued 35 under section 155 (3). 36 NSW ship construction certificate means a certificate issued under 37 section 155 (1). 38 Page 4 Marine Pollution Bill 2012 Clause 3 Preliminary Part 1 occupier: 1 (a) in relation to a place on land (other than a pipeline) means: 2 (i) the person exercising personally or by employees or agents 3 the right of occupation of the land, or 4 (ii) if there is no occupier--the owner of the land, and, in the 5 case of a vehicle, includes the person in charge and the 6 owner of the vehicle, but does not include the occupier or 7 owner of the land on or over which the vehicle stands or 8 moves, and 9 (b) in relation to a pipeline means: 10 (i) the owner of the pipeline, and 11 (ii) the lessee, licensee or user of any lease, licence or right of 12 user for the use of the pipeline for the carriage of oil or a 13 noxious liquid substance or any combination of those 14 substances (whether in bulk, packaged or another form). 15 oil record book, in relation to a ship, means a book required to be 16 carried on board the ship by section 113. 17 overseas voyage has the same meaning as in the Navigation Act 1912 of 18 the Commonwealth. 19 packaged form means a form of containment specified for harmful 20 substances in the International Maritime Dangerous Goods Code. 21 place on land includes the following: 22 (a) any structure or apparatus on or above or below the surface of any 23 land, 24 (b) any thing or vehicle resting on or moving over land, 25 (c) any thing resting on or lying under the bed, bank or shore of any 26 State waters, 27 (d) a pipeline, 28 (e) any thing afloat (other than a ship) if it is anchored or attached to 29 the bed, bank or shore of any State waters or is used in any 30 operation for the exploration of the sea-bed or subsoil beneath 31 any State waters or for the exploitation of the natural resources of 32 that sea-bed or subsoil. 33 pleasure vessel means: 34 (a) a vessel used wholly for the purpose of recreational or sporting 35 activities and not for hire or reward, or 36 (b) any other vessel prescribed by the regulations. 37 port has the same meaning as in the Ports and Maritime Administration 38 Act 1995. 39 Page 5 Clause 3 Marine Pollution Bill 2012 Part 1 Preliminary procedures and arrangements manual, in relation to a ship, means a 1 manual for the ship required to be carried on board the ship by 2 section 104. 3 relevant provisions of MARPOL means: 4 (a) in relation to the issue of a ship construction certificate--the 5 provisions of Annex I of MARPOL, or 6 (b) in relation to the issue of a chemical tanker construction 7 certificate--the provisions of Annex II of MARPOL, or 8 (c) in relation to the issue of a sewage pollution prevention 9 certificate--the provisions of Annex IV of MARPOL. 10 responsible--see section 5. 11 ship means a vessel of any type capable of being used on or in water and 12 includes: 13 (a) a hydrofoil boat, or 14 (b) an air-cushion vehicle, or 15 (c) a submersible or submarine, or 16 (d) a floating craft, or 17 (e) a fixed or floating platform, or 18 (f) a barge (whether self-propelled or not), or 19 (g) a sea-plane, or 20 (h) a floating dock (whether self-propelled or not), 21 but does not include a pleasure vessel. 22 shipboard garbage management plan, in relation to a ship, means a 23 plan required to be carried on board the ship by section 107. 24 shipboard marine pollution emergency plan for noxious liquid 25 substances, in relation to a ship, means a plan required to be carried on 26 board the ship by section 100. 27 shipboard oil pollution emergency plan, in relation to a ship, means a 28 plan required to be carried on board the ship by section 95. 29 State waters means: 30 (a) coastal waters of the State (within the meaning of Part 10 of the 31 Interpretation Act 1987), and 32 (b) other waters within the limits of the State prescribed by the 33 regulations for the purposes of this definition. 34 Note. The coastal waters of the State is the area extending from the low water 35 mark, or other baseline, on the coast of the State to an imaginary line 3 nautical 36 miles seaward of that mark or other baseline. 37 Page 6 Marine Pollution Bill 2012 Clause 3 Preliminary Part 1 strictly prohibited oily mixture means a mixture that contains oil and 1 that also contains: 2 (a) chemicals or other substances in quantities or concentrations that 3 are hazardous to the marine environment, or 4 (b) chemicals or other substances that have been introduced for the 5 purpose of attempting to prevent the application of section 15, 16 6 or 17 to the discharge of a mixture containing oil from a ship. 7 survey authority means a corporation or association for the survey of 8 shipping, approved by the Minister in writing, for the purposes of this 9 definition. 10 trading ship means a ship that is used, or being a ship in the course of 11 construction is intended to be used, for or in connection with, any 12 business or commercial activity and, without limiting the generality of 13 the foregoing, includes a ship that is used, or being a ship in the course 14 of construction is intended to be used, wholly or principally for: 15 (a) the carriage of passengers or cargo for hire or reward, or 16 (b) the provision of services to ships or shipping, whether for reward 17 or otherwise, 18 but does not include a Commonwealth ship within the meaning of the 19 Navigation Act 1912 of the Commonwealth or a fishing vessel. 20 transfer operation means any operation that is involved in the 21 preparation for, or in the commencement, carrying on or termination of, 22 a transfer of oil or a noxious liquid substance or any combination of 23 those substances (whether in bulk, packaged or another form) to or from 24 a ship or a place on land. 25 unavoidable damage, in relation to a ship, means any damage other 26 than the following: 27 (a) damage deliberately caused by the master or owner of, or a 28 member of the crew of, the ship, 29 (b) damage recklessly caused by the master or owner of, or a member 30 of the crew of, the ship, with the knowledge that damage would 31 probably result, 32 (c) damage arising as a result of the negligence of the master or 33 owner of, or a member of the crew of, the ship, 34 (d) deterioration resulting from failure to maintain the ship or 35 equipment, 36 (e) defects that develop during the normal operation of the ship or 37 equipment. 38 Page 7 Clause 4 Marine Pollution Bill 2012 Part 1 Preliminary uncategorised noxious liquid substance means a noxious liquid 1 substance: 2 (a) that has not been categorised in accordance with Regulation 6.1 3 of Annex II of MARPOL, and 4 (b) that has not been provisionally assessed in accordance with 5 Regulation 6.3 of Annex II of MARPOL. 6 4 Expressions used in this Act and MARPOL (cf former Act ss 7, 14 and 25) 7 (1) An expression used in this Act that is also used in MARPOL (whether 8 or not a particular meaning is assigned to it by MARPOL), has in this 9 Act the same meaning as in MARPOL. 10 (2) Except as far as the context or subject matter otherwise indicates or 11 requires, if a word or expression is defined in MARPOL (including 12 Protocol I or an Annex of MARPOL) and this Act: 13 (a) this Act's definition does not limit or exclude, but may extend, 14 the meaning of the word or expression given under MARPOL, 15 and 16 (b) the definitions are to be read in the context of each other and the 17 other provisions of this Act, but, if the definitions so read are 18 inconsistent, the MARPOL definition is displaced. 19 5 Meaning of "responsible" 20 For the purposes of this Act, a person is responsible for a discharge if 21 that person, or another person acting under the direction of that person, 22 committed an act that caused the discharge and the person committed 23 the act: 24 (a) with intent to cause the discharge, or 25 (b) recklessly and with the knowledge that the discharge would 26 probably result, or 27 (c) negligently. 28 6 Time when ship taken to be proceeding on voyage 29 For the purposes of the definitions of inter-State voyage, intra-State 30 voyage and overseas voyage, a ship is taken to be proceeding on a 31 voyage from the time when it is got under way for the purpose of 32 proceeding on the voyage until the time when it is got under way for the 33 purpose of proceeding on another voyage. 34 Page 8 Marine Pollution Bill 2012 Clause 7 Preliminary Part 1 7 References to tonnage (cf former Act s 3 (6)) 1 (1) A reference in this Act to the gross tonnage of a ship not expressed in 2 tons is, in the application of this Act to a non-TMC ship, taken to be a 3 reference to the gross tonnage of the ship expressed in tons. 4 (2) In this section: 5 non-TMC ship means a ship the gross tonnage of which has been 6 determined otherwise than in accordance with the Tonnage 7 Measurement Convention. 8 Tonnage Measurement Convention means the International 9 Convention on Tonnage Measurement of Ships 1969, as affected by any 10 amendment made under Article 16 of MARPOL other than an 11 amendment not accepted by Australia. 12 8 Notes 13 Notes and examples included in this Act do not form part of this Act. 14 Note. To assist the reader, many provisions of this Act contain bracketed notes 15 in headings drawing attention to the provision of MARPOL that the provision of 16 this Act gives effect to. 17 For the purposes of comparison, a number of provisions of this Act contain 18 bracketed notes in headings drawing attention ("cf former Act") to equivalent or 19 comparable (though not necessarily identical) provisions of the repealed Marine 20 Pollution Act 1987. 21 Page 9 Clause 9 Marine Pollution Bill 2012 Part 2 Application of Act Part 2 Application of Act 1 9 Saving of other laws (cf former Act s 5) 2 This Act is to be read and construed as being in addition to, and not in 3 derogation of, any other law of the State. 4 Note. It is noted that section 7 (3) of the Protection of the Environment 5 Operations Act 1997 provides that this Act prevails over that Act. 6 10 Act subject to Ports and Maritime Administration Act 1995 (cf former Act 7 s 5A) 8 This Act is subject to the Ports and Maritime Administration Act 1995. 9 11 Detention of ships and holding of security over them: exclusion of 10 matters from operation of Commonwealth Act 11 (1) The exercise, while a ship is compulsorily detained under this Act, of a 12 right of seizure created by the Commonwealth Act is declared to be an 13 excluded matter for the purposes of section 259 of the Commonwealth 14 Act in relation to section 123 of that Act. 15 (2) The priority given to interests (within the meaning of the 16 Commonwealth Act) by Division 2 of Part 2.6 of the Commonwealth 17 Act, to the extent that it would give priority to such an interest over a 18 statutory State interest in a ship, is declared to be an excluded matter for 19 the purposes of section 259 of the Commonwealth Act in relation to 20 Division 2 of Part 2.6 of that Act. 21 (3) In this section: 22 Commonwealth Act means the Personal Property Securities Act 2009 23 of the Commonwealth. 24 compulsorily detained under this Act, in relation to a ship, means the 25 detention of the ship under section 171, 176, 186, 208, 221 or 237 of this 26 Act. 27 right of seizure created by the Commonwealth Act means a right under 28 section 123 of the Commonwealth Act of a secured party (within the 29 meaning of that Act) to seize collateral in the form of a ship. 30 statutory State interest means an interest of the Minister under a 31 security provided in compliance with section 186, 208, 223 or 237 of 32 this Act. 33 Note. New South Wales has referred certain matters relating to security 34 interests in personal property to the Commonwealth, which means that the 35 Commonwealth Parliament has power under section 51(xxxvii) of the 36 Commonwealth Constitution to make laws in respect of those matters. The 37 Commonwealth Parliament passed the Personal Property Securities Act 2009. 38 Normally a law of the Commonwealth prevails over a State law to the extent of 39 any inconsistency between them (see section 109 of the Commonwealth 40 Constitution). However, section 259 of the Personal Property Securities Act 41 Page 10 Marine Pollution Bill 2012 Clause 12 Application of Act Part 2 2009 of the Commonwealth provides that a law of a referring State can declare 1 a matter to be an excluded matter for the purposes of that section. If that is done, 2 the Personal Property Securities Act 2009 does not apply in relation to the 3 excluded matter. This section excludes certain matters in relation to certain 4 provisions of the Commonwealth Act. 5 12 Application of Act to mixtures of marine pollutants 6 (1) In this Act, a reference to a discharge of a marine pollutant or a residue 7 includes a reference to a discharge of a mixture that contains that marine 8 pollutant or residue. 9 (2) If a mixture that contains more than one marine pollutant is discharged 10 into State waters, each of the applicable Parts in relation to each of the 11 marine pollutants in the mixture applies in relation to the mixture. 12 (3) However, a person is not liable to be convicted of an offence under more 13 than one applicable Part in respect of the same discharge of a mixture. 14 (4) In this section: 15 applicable Part means: 16 (a) in relation to oil--Part 3, or 17 (b) in relation to a noxious liquid substance--Part 4, or 18 (c) in relation to a harmful substance--Part 5, or 19 (d) in relation to sewage--Part 6, or 20 (e) in relation to garbage--Part 7. 21 13 Discharge outside State waters that enters State waters (cf former Act 22 s 3 (5)) 23 (1) The discharge of a marine pollutant onto or into any land or waters, or 24 any structure or thing, that occurs outside State waters is, for the 25 purposes of this Act, taken to be a discharge into State waters of the 26 marine pollutant if the whole or any part of the marine pollutant enters 27 any State waters. 28 (2) The discharge is taken to happen when the discharged marine pollutant 29 enters State waters. 30 14 Discharges to which Act does not apply (Article 2 of 1978 Protocol) 31 This Act does not apply to the following discharges: 32 (a) the release of harmful substances directly arising from the 33 exploration, exploitation and associated off-shore processing of 34 sea-bed mineral resources, 35 (b) the release of harmful substances for purposes of legitimate 36 scientific research into pollution abatement or control, 37 Page 11 Clause 14 Marine Pollution Bill 2012 Part 2 Application of Act (c) dumping within the meaning of the Convention on the Prevention 1 of Marine Pollution by Dumping of Wastes and Other Matter 2 1972, done at London on 13 November 1972. 3 Note. The Convention on the Prevention of Marine Pollution by Dumping 4 of Wastes and Other Matter, 1972 defines dumping as: 5 (a) any deliberate disposal at sea of wastes or other matter from 6 vessels, aircraft, platforms or other man-made structures at sea, 7 or 8 (b) any deliberate disposal at sea of vessels, aircraft, platforms or 9 other man-made structures at sea. 10 Under that Convention, dumping does not include: 11 (a) the disposal at sea of wastes or other matter incidental to, or 12 derived from the normal operations of vessels, aircraft, platforms 13 or other man-made structures at sea and their equipment, other 14 than wastes or other matter transported by or to vessels, aircraft, 15 platforms or other man-made structures at sea, operating for the 16 purpose of disposal of such matter or derived from the treatment 17 of such wastes or other matter on such vessels, aircraft, 18 platforms or structures, or 19 (b) placement of matter for a purpose other than the mere disposal 20 thereof, provided that such placement is not contrary to the aims 21 of the Convention. 22 Page 12 Marine Pollution Bill 2012 Clause 15 Prevention of pollution by oil Part 3 Part 3 Prevention of pollution by oil 1 Division 1 Offences relating to discharge of oil 2 15 Discharging oil into State waters from a ship prohibited (Reg 15.1 of 3 Annex I of MARPOL) (cf former Act s 8 (1)) 4 (1) The master and the owner of a ship are each guilty of an offence if any 5 oil is discharged from the ship into State waters. 6 Maximum penalty: 7 (a) in the case of an individual--$500,000, or 8 (b) in the case of a corporation--$10,000,000. 9 (2) In proceedings for an offence against this section in relation to a ship: 10 (a) it is sufficient for the prosecution to allege and prove that oil was 11 discharged from the ship into State waters, but 12 (b) it is a defence if it is proved that, by virtue of Division 2, this 13 section does not apply in relation to the discharge. 14 16 Causing discharge of oil into State waters from a ship prohibited (Reg 15 15.1 of Annex I of MARPOL) (cf former Act s 8A (1)) 16 (1) A crew member of a ship is guilty of an offence if the crew member's 17 act causes any oil to be discharged from the ship into State waters. 18 Maximum penalty: $500,000. 19 (2) A person involved in the operation or maintenance of a ship is guilty of 20 an offence if the person's act causes any oil to be discharged from the 21 ship into State waters. 22 Maximum penalty: 23 (a) in the case of an individual--$500,000, or 24 (b) in the case of a corporation--$10,000,000. 25 (3) In proceedings for an offence against this section in relation to a ship: 26 (a) it is sufficient for the prosecution to allege and prove that: 27 (i) oil was discharged from the ship into State waters, and 28 (ii) the crew member or person involved in the operation or 29 maintenance of the ship committed an act that caused the 30 discharge, but 31 (b) it is a defence if it is proved that, by virtue of Division 2, this 32 section does not apply in relation to the discharge. 33 Page 13 Clause 17 Marine Pollution Bill 2012 Part 3 Prevention of pollution by oil 17 Offence of being responsible for discharge of oil into State waters from 1 a ship (Reg 15.1 of Annex I of MARPOL) (cf former Act s 8A (3)) 2 A person responsible for the discharge of any oil from a ship into State 3 waters is guilty of an offence. 4 Maximum penalty: 5 (a) in the case of an individual--$500,000, or 6 (b) in the case of a corporation--$10,000,000. 7 Division 2 Defences 8 18 Defence if discharge was caused by damage to ship or equipment 9 (Reg 4.2 of Annex I of MARPOL) (cf former Act s 8 (2) (b) and (3)) 10 Division 1 does not apply to the discharge of oil from a ship if: 11 (a) the oil escaped from the ship in consequence of unavoidable 12 damage to the ship or its equipment, and 13 (b) all reasonable precautions were taken after the occurrence of the 14 damage or the discovery of the discharge for the purpose of 15 preventing or minimising the escape of the oil. 16 19 Defence if discharge was to secure safety or save life (Reg 4.1 of Annex I 17 of MARPOL) (cf former Act s 8 (2) (a)) 18 Division 1 does not apply to the discharge of oil from a ship for the 19 purpose of securing the safety of a ship or saving life at sea. 20 20 Defence if discharge was for purpose of combating pollution (Reg 4.3 of 21 Annex I of MARPOL) (cf former Act s 8 (2) (c)) 22 Division 1 does not apply to the discharge of a mixture containing oil 23 from a ship if the discharge was for the purpose of combating specific 24 pollution incidents in order to minimise the damage from pollution and 25 was approved by an officer prescribed by the regulations for the 26 purposes of this section. 27 21 Defence if discharge was authorised for training (cf former Act s 8 (2) (d)) 28 Division 1 does not apply to the discharge of oil from a ship if the 29 discharge was authorised by the Minister for training purposes. 30 22 Defence for certain ships 400 tonnes or more and oil tankers not within 31 special areas (Regs 15.2 and 15.8 of Annex I of MARPOL) 32 Division 1 does not apply to the discharge of oil from a ship if: 33 (a) the ship is not within a special area, and 34 (b) the ship has a gross tonnage of equal to or greater than 400, and 35 Page 14 Marine Pollution Bill 2012 Clause 23 Prevention of pollution by oil Part 3 (c) the ship is proceeding en route, and 1 (d) in the case of a mixture containing oil, the mixture is processed 2 using oil filtering equipment meeting the requirements set out by 3 the regulations referred to in section 9 (4) (a) (iii) of the 4 Protection of the Sea (Prevention of Pollution from Ships) Act 5 1983 of the Commonwealth, and 6 (e) the oil content of the effluent without dilution does not exceed 7 15 parts in 1,000,000 parts, and 8 (f) the mixture is not a strictly prohibited oily mixture, and 9 (g) in the case of a mixture containing oil that is discharged from an 10 oil tanker: 11 (i) the mixture does not originate from the cargo pump room 12 bilges of the ship, and 13 (ii) the mixture is not mixed with oil cargo residue. 14 23 Defence for certain ships 400 tonnes or more and oil tankers within 15 special areas (Regs 15.3 and 15.8 of Annex I of MARPOL) 16 Division 1 does not apply to the discharge of oil from a ship if: 17 (a) the ship has a gross tonnage of equal to or greater than 400, and 18 (b) the ship is within a special area, and 19 (c) the ship is proceeding en route, and 20 (d) in the case of a mixture containing oil, the mixture is processed 21 using oil filtering equipment meeting the requirements set out by 22 the regulations referred to in section 9 (4) (b) (iii) of the 23 Protection of the Sea (Prevention of Pollution from Ships) Act 24 1983 of the Commonwealth, and 25 (e) the oil content of the effluent without dilution does not exceed 15 26 parts in 1,000,000 parts, and 27 (f) the mixture is not a strictly prohibited oily mixture, and 28 (g) in the case of a mixture containing oil discharged from an oil 29 tanker: 30 (i) the mixture does not originate from the cargo pump room 31 bilges of the ship, and 32 (ii) the mixture is not mixed with oil cargo residue. 33 24 Defence for smaller ships and oil tankers (Regs 15.6 and 15.8 of Annex I of 34 MARPOL) 35 Division 1 does not apply to the discharge of oil from a ship if: 36 (a) the ship has a gross tonnage of less than 400, and 37 (b) the ship is proceeding en route, and 38 Page 15 Clause 25 Marine Pollution Bill 2012 Part 3 Prevention of pollution by oil (c) the ship has in operation equipment, of a kind that meets the 1 requirements set out by the regulations referred to in section 2 9 (4) (c) (iii) of the Protection of the Sea (Prevention of Pollution 3 from Ships) Act 1983 of the Commonwealth, that ensures that the 4 oil content of the effluent without dilution does not exceed 5 15 parts in 1,000,000 parts, and 6 (d) the mixture is not a strictly prohibited oily mixture, and 7 (e) in the case of a mixture containing oil discharged from an oil 8 tanker: 9 (i) the mixture does not originate from the cargo pump room 10 bilges of the ship, and 11 (ii) the mixture is not mixed with oil cargo residue. 12 25 Defence for discharge of clean or segregated ballast from oil tankers 13 (Regs 34.2 and 34.4 of Annex I of MARPOL) (cf former Act s 8 (4) (j)) 14 Division 1 does not apply to the discharge from the cargo area of an oil 15 tanker of clean or segregated ballast. 16 Division 3 Offence relating to oil residues 17 26 Failing to retain oil residues (cf former Act s 9) 18 (1) The master and the owner of a ship are each guilty of an offence if any 19 oil residues that cannot be discharged from the ship into State waters 20 without the commission of an offence against section 15 are not retained 21 on board the ship while the ship is in State waters. 22 Maximum penalty: 23 (a) in the case of an individual--$500,000, or 24 (b) in the case of a corporation--$10,000,000. 25 Example. A ship leaves Port A with a quantity of oil residue held in a tank or 26 space and, without leaving State waters, arrives at Port B with a lesser quantity 27 in the tank or space. This subsection places an onus on the ship's master to 28 explain why there is a discrepancy in the quantity. 29 (2) Despite subsection (1), oil residues may be discharged from a ship to a 30 reception facility provided in accordance with Regulation 38 of Annex I 31 of MARPOL. 32 Page 16 Marine Pollution Bill 2012 Clause 27 Prevention of pollution by noxious liquid substances Part 4 Part 4 Prevention of pollution by noxious liquid 1 substances 2 Division 1 Offences relating to carrying uncategorised 3 noxious liquid substances 4 27 Carrying uncategorised noxious liquid substances prohibited 5 (Reg 13.1.3 of Annex II of MARPOL) 6 (1) The master and the owner of an Australian ship are each guilty of an 7 offence if an uncategorised noxious liquid substance is carried as cargo 8 or part cargo in bulk on the ship in State waters. 9 Maximum penalty: 10 (a) in the case of an individual--$6,600, or 11 (b) in the case of a corporation--$33,000. 12 (2) In proceedings for an offence against this section in relation to a ship it 13 is sufficient for the prosecution to allege and prove that an 14 uncategorised noxious liquid substance was carried as cargo or part 15 cargo in bulk on the ship in State waters. 16 28 Causing carriage of uncategorised noxious liquid substances 17 prohibited (Reg 13.1.3 of Annex II of MARPOL) 18 A person is guilty of an offence if the person causes an uncategorised 19 noxious liquid substance to be carried as cargo or part cargo in bulk on 20 an Australian ship in State waters. 21 Maximum penalty: 22 (a) in the case of an individual--$22,000, or 23 (b) in the case of a corporation--$110,000. 24 Division 2 Offences relating to discharge of noxious liquid 25 substances 26 29 Discharging noxious liquid substances into State waters from ship 27 prohibited (Reg 13 of Annex II of MARPOL) (cf former Act s 18 (1)) 28 (1) The master and the owner of a ship that is subject to a chemical tanker 29 construction certificate certifying the ship to carry noxious liquid 30 substances in bulk are each guilty of an offence if any noxious liquid 31 substance is discharged from the ship into State waters. 32 Maximum penalty: 33 (a) in the case of an individual--$500,000, or 34 (b) in the case of a corporation--$10,000,000. 35 Page 17 Clause 30 Marine Pollution Bill 2012 Part 4 Prevention of pollution by noxious liquid substances (2) In proceedings for an offence against this section in relation to a ship: 1 (a) it is sufficient for the prosecution to allege and prove that: 2 (i) the ship was a ship subject to a chemical tanker 3 construction certificate certifying the ship to carry noxious 4 liquid substances in bulk, and 5 (ii) a noxious liquid substance was discharged from the ship 6 into State waters, but 7 (b) it is a defence if it is proved that, by virtue of Division 3, this 8 section does not apply in relation to the discharge. 9 30 Causing discharge of noxious liquid substances into State waters from 10 ship prohibited (Reg 13 of Annex II of MARPOL) (cf former Act s 18A (1)) 11 (1) A crew member of a ship that is subject to a chemical tanker 12 construction certificate certifying the ship to carry noxious liquid 13 substances in bulk is guilty of an offence if the crew member's act 14 causes any noxious liquid substance to be discharged from the ship into 15 State waters. 16 Maximum penalty: $500,000. 17 (2) A person involved in the operation or maintenance of a ship that is 18 subject to a chemical tanker construction certificate certifying the ship 19 to carry noxious liquid substances in bulk is guilty of an offence if the 20 person's act causes any noxious liquid substance to be discharged from 21 the ship into State waters. 22 Maximum penalty: 23 (a) in the case of an individual--$500,000, or 24 (b) in the case of a corporation--$10,000,000. 25 (3) In proceedings for an offence against this section in relation to a ship: 26 (a) it is sufficient for the prosecution to allege and prove that: 27 (i) the ship was a ship subject to a chemical tanker 28 construction certificate certifying the ship to carry noxious 29 liquid substances in bulk, and 30 (ii) a noxious liquid substance was discharged from the ship 31 into State waters, and 32 (iii) the crew member or person involved in the operation or 33 maintenance of the ship committed an act that caused the 34 discharge, but 35 (b) it is a defence if it is proved that, by virtue of Division 3, this 36 section does not apply in relation to the discharge. 37 Page 18 Marine Pollution Bill 2012 Clause 31 Prevention of pollution by noxious liquid substances Part 4 31 Offence of being responsible for discharge of noxious liquid substances 1 into State waters from a ship (Reg 13 of Annex II of MARPOL) (cf former Act 2 s 18A (3)) 3 A person responsible for the discharge of any noxious liquid substance 4 into State waters from a ship that is subject to a chemical tanker 5 construction certificate certifying the ship to carry noxious liquid 6 substances in bulk is guilty of an offence. 7 Maximum penalty: 8 (a) in the case of an individual--$500,000, or 9 (b) in the case of a corporation--$10,000,000. 10 Division 3 Defences 11 32 Defence if discharge was caused by damage to ship or equipment (Reg 12 3.1.2 of Annex II of MARPOL) (cf former Act s 18 (2) (b) and (3)) 13 Division 2 does not apply to the discharge of a noxious liquid substance 14 from a ship if: 15 (a) the noxious liquid substance escaped from the ship in 16 consequence of unavoidable damage to the ship or its equipment, 17 and 18 (b) all reasonable precautions were taken after the occurrence of the 19 damage or the discovery of the discharge for the purpose of 20 preventing or minimising the escape of the noxious liquid 21 substance. 22 33 Defence if discharge was to secure safety or save life (Reg 3.1.1 of 23 Annex II of MARPOL) (cf former Act s 18 (2) (a)) 24 Division 2 does not apply to the discharge of a noxious liquid substance 25 from a ship for the purpose of securing the safety of a ship or saving life 26 at sea. 27 34 Defence if discharge was for purpose of combating pollution (Reg 3.1.3 28 of Annex II of MARPOL) (cf former Act s 18 (2) (c)) 29 Division 2 does not apply to the discharge of a noxious liquid substance 30 from a ship if the discharge was for the purpose of combating specific 31 pollution incidents in order to minimise the damage from pollution and 32 was approved by an officer prescribed by the regulations for the 33 purposes of this section. 34 Page 19 Clause 35 Marine Pollution Bill 2012 Part 4 Prevention of pollution by noxious liquid substances 35 Defence for discharge of certain Category X substances (Regs 13.2.1 and 1 13.6.1 of Annex II of MARPOL) 2 (1) Division 2 does not apply to the discharge of water containing a 3 prescribed residue from a ship if: 4 (a) the discharge of the water containing that residue occurs when 5 the ship is proceeding en route at a speed of: 6 (i) at least 7 knots, if the ship is self-propelled, or 7 (ii) at least 4 knots, if the ship is not self-propelled, and 8 (b) the discharge occurs below the ship's waterline through the 9 ship's underwater discharge outlets at a rate not exceeding the 10 maximum rate for which each underwater discharge outlet is 11 designed, and 12 (c) the discharge occurs when the ship is at least 12 nautical miles 13 from the nearest land and is in water at least 25 metres deep. 14 (2) This section does not apply in relation to a mixture that contains a liquid 15 substance that is neither: 16 (a) a noxious liquid substance, nor 17 (b) a liquid substance referred to in Regulation 6.1.3 of Annex II of 18 MARPOL. 19 (3) In this section: 20 inspector includes a surveyor appointed or authorised by the 21 Government of a country that is a party to MARPOL for the purpose of 22 implementing Regulation 16 of Annex II of MARPOL. 23 prescribed residue means a residue remaining after: 24 (a) the tank of a ship that held a noxious liquid substance categorised 25 as Category X under Regulation 6 of Annex II of MARPOL, or a 26 mixture containing such a substance, has been: 27 (i) emptied to the maximum extent in accordance with 28 procedures in the ship's procedures and arrangements 29 manual, and 30 (ii) cleaned in accordance with regulations made for the 31 purposes of section 42, and 32 (b) the resulting residues in the tank have been discharged to a 33 reception facility until the concentration of that substance in the 34 effluent to that facility is, in the opinion of an inspector, at or 35 below the residual concentration prescribed for that substance in 36 Regulation 13.6.1 of Annex II of MARPOL and until the tank is 37 empty, and 38 (c) the residue remaining in the tank has been subsequently diluted 39 with water. 40 Page 20 Marine Pollution Bill 2012 Clause 36 Prevention of pollution by noxious liquid substances Part 4 36 Defence for discharge of certain high-viscosity or solidifying 1 substances in Category Y (Regs 13.2.1 and 13.7.1 of Annex II of MARPOL) 2 (1) Division 2 does not apply to the discharge of water containing a 3 prescribed residue into State waters from a ship if: 4 (a) the discharge occurs when the ship is proceeding en route at a 5 speed of: 6 (i) at least 7 knots, if the ship is self-propelled, or 7 (ii) at least 4 knots, if the ship is not self-propelled, and 8 (b) the discharge occurs below the ship's waterline through the 9 ship's underwater discharge outlets at a rate not exceeding the 10 maximum rate for which each underwater discharge outlet is 11 designed, and 12 (c) the discharge occurs when the ship is at least 12 nautical miles 13 from the nearest land and is in water at least 25 metres deep. 14 (2) This section does not apply in relation to a mixture that contains a liquid 15 substance that is neither: 16 (a) a noxious liquid substance, nor 17 (b) a liquid substance referred to in Regulation 6.1.4 of Annex II of 18 MARPOL. 19 (3) In this section: 20 prescribed residue means a residue remaining after: 21 (a) the tank of a ship that held: 22 (i) a high-viscosity or solidifying substance that is a noxious 23 liquid substance categorised as Category Y under 24 Regulation 6 of Annex II of MARPOL, or 25 (ii) a mixture containing a high-viscosity or solidifying 26 substance that is a noxious liquid substance categorised as 27 Category Y under Regulation 6 of Annex II of MARPOL 28 (except a mixture containing a noxious liquid substance 29 categorised as Category X under Regulation 6 of Annex II 30 of MARPOL), 31 has been: 32 (iii) emptied to the maximum extent in accordance with 33 procedures in the ship's procedures and arrangements 34 manual, and 35 (iv) washed in accordance with regulations made for the 36 purposes of section 42, and 37 Page 21 Clause 37 Marine Pollution Bill 2012 Part 4 Prevention of pollution by noxious liquid substances (b) the resulting residues in the tank have been discharged to a 1 reception facility until the tank is empty, and 2 (c) the residue then remaining in the tank has been subsequently 3 diluted with water. 4 37 Defence for discharge of certain other Category Y substances (Regs 5 13.2.1 and 13.7.1 of Annex II of MARPOL) 6 (1) Division 2 does not apply to the discharge into State waters from a ship 7 of any residue of a prescribed discharge that has been emptied to the 8 maximum extent in accordance with the procedures in the ship's 9 procedures and arrangements manual, if: 10 (a) the discharge occurs when the ship is proceeding en route at a 11 speed of: 12 (i) at least 7 knots, if the ship is self-propelled, or 13 (ii) at least 4 knots, if the ship is not self-propelled, and 14 (b) the discharge occurs below the ship's waterline through the 15 ship's underwater discharge outlets at a rate not exceeding the 16 maximum rate for which each underwater discharge outlet is 17 designed, and 18 (c) the discharge occurs when the ship is at least 12 nautical miles 19 from the nearest land and is in water at least 25 metres deep. 20 (2) This section does not apply in relation to a mixture that contains a liquid 21 substance that is neither: 22 (a) a noxious liquid substance, nor 23 (b) a liquid substance referred to in Regulation 6.1.4 of Annex II of 24 MARPOL. 25 (3) In this section: 26 prescribed discharge means: 27 (a) a noxious liquid substance categorised as Category Y under 28 Regulation 6 of Annex II of MARPOL that is not a high-viscosity 29 or solidifying substance, or 30 (b) a mixture containing a noxious liquid substance categorised as 31 Category Y under Regulation 6 of Annex II of MARPOL that is 32 not a high-viscosity or solidifying substance (except a mixture 33 containing a high-viscosity or solidifying substance that is a 34 noxious liquid substance categorised as Category X under 35 Regulation 6 of Annex II of MARPOL). 36 Page 22 Marine Pollution Bill 2012 Clause 38 Prevention of pollution by noxious liquid substances Part 4 38 Defence for discharge of Category Z substances from ships constructed 1 before 1 January 2007 (Regs 13.2.1 and 13.2.2 of Annex II of MARPOL) 2 (1) Division 2 does not apply to the discharge into State waters of any 3 residue of a noxious liquid substance categorised as Category Z under 4 Regulation 6 of Annex II of MARPOL, or a mixture containing such a 5 substance, if: 6 (a) the discharge is from a ship that was constructed before 7 1 January 2007, and 8 (b) the tank of the ship, which held the substance or mixture, has 9 been emptied to the maximum extent in accordance with the 10 procedures in the ship's procedures and arrangements manual, 11 and 12 (c) the discharge occurs when the ship is proceeding en route at a 13 speed of: 14 (i) at least 7 knots, if the ship is self-propelled, or 15 (ii) at least 4 knots, if the ship is not self-propelled, and 16 (d) the discharge occurs when the ship is at least 12 nautical miles 17 from the nearest land and is in water at least 25 metres deep. 18 (2) This section does not apply in relation to a mixture that contains a liquid 19 substance that is neither: 20 (a) a noxious liquid substance, nor 21 (b) a liquid substance referred to in Regulation 6.1.4 of Annex II of 22 MARPOL. 23 39 Defence for discharge of Category Z substances from ships constructed 24 on or after 1 January 2007 (Regs 13.2.1 and 13.2.3 of Annex II of MARPOL) 25 (1) Division 2 does not apply to the discharge into State waters of any 26 residue of a noxious liquid substance categorised as Category Z under 27 Regulation 6 of Annex II of MARPOL, or a mixture containing such a 28 substance, if: 29 (a) the discharge is from a ship that was constructed on or after 30 1 January 2007, and 31 (b) the tank of the ship, which held the substance or mixture, has 32 been emptied to the maximum extent in accordance with the 33 procedures in the ship's procedures and arrangements manual, 34 and 35 (c) the discharge occurs when the ship is proceeding en route at a 36 speed of: 37 (i) at least 7 knots, if the ship is self-propelled, or 38 (ii) at least 4 knots, if the ship is not self-propelled, and 39 Page 23 Clause 40 Marine Pollution Bill 2012 Part 4 Prevention of pollution by noxious liquid substances (d) the discharge occurs below the ship's waterline through the 1 ship's underwater discharge outlets at a rate not exceeding the 2 maximum rate for which each underwater discharge outlet is 3 designed, and 4 (e) the discharge occurs when the ship is at least 12 nautical miles 5 from the nearest land and the Minister has not waived that 6 requirement under subsection (3), and 7 (f) the discharge occurs when the ship is in water at least 25 metres 8 deep. 9 (2) The master or owner of a ship may make an application to the Minister, 10 in the form approved by the Minister, for the Minister to waive the 11 requirement in subsection (1) (e). 12 (3) The Minister may, in accordance with the regulations, waive the 13 requirement. 14 (4) The Minister must give written notice of a waiver to the applicant. The 15 notice must specify the particular ship, noxious liquid substance 16 categorised as Category Z under Regulation 6 of Annex II of MARPOL 17 and voyage, for which the condition is waived. 18 (5) This section does not apply in relation to a mixture that contains a liquid 19 substance that is neither: 20 (a) a noxious liquid substance, nor 21 (b) a liquid substance referred to in Regulation 6.1.4 of Annex II of 22 MARPOL. 23 40 Defence for discharge of bilge water (Reg 6.1.4 of Annex II of MARPOL) (cf 24 former Act s 18 (11)) 25 Division 2 does not apply to the discharge from a ship of bilge water, or 26 of a mixture resulting from tank cleaning or de-ballasting operations, 27 that contains one or more noxious liquid substances referred to in 28 Regulation 6.1.4 of Annex II of MARPOL but does not contain any 29 other noxious liquid substance. 30 41 Defence for discharge of clean ballast or segregated ballast (Reg 13.7.2.3 31 of Annex II of MARPOL) (cf former Act s 18 (12)) 32 (1) Division 2 does not apply to the discharge from a ship of clean ballast 33 or segregated ballast. 34 (2) In this section, clean ballast and segregated ballast have the same 35 meaning as in Annex II of MARPOL. 36 Page 24 Marine Pollution Bill 2012 Clause 42 Prevention of pollution by noxious liquid substances Part 4 Division 4 Cleaning of tanks of ships 1 42 Regulations may make provision for cleaning of tanks of ships (Regs 13 2 and 16 of Annex II of MARPOL) (cf former Act s 24) 3 The regulations may make provision for and in relation to giving effect 4 to Regulations 13 and 16 of Annex II of MARPOL. 5 Page 25 Clause 43 Marine Pollution Bill 2012 Part 5 Prevention of pollution by harmful substances in packaged form Part 5 Prevention of pollution by harmful substances 1 in packaged form 2 Division 1 Offences relating to carriage 3 43 Certain carriage of harmful substances in packaged form prohibited 4 (Reg 1.2 of Annex III of MARPOL) 5 (1) The master and the owner of a ship are each guilty of an offence if a 6 harmful substance in packaged form is carried on the ship in State 7 waters otherwise than in accordance with the regulations. 8 Maximum penalty: 9 (a) in the case of an individual--$2,200, or 10 (b) in the case of a corporation--$5,500. 11 (2) In proceedings for an offence against this section in relation to a ship, it 12 is sufficient for the prosecution to allege and prove that a harmful 13 substance in packaged form was carried on the ship in State waters 14 otherwise than in accordance with the regulations. 15 44 Causing certain carriage of harmful substances in packaged form 16 prohibited (Reg 1.2 of Annex III of MARPOL) 17 A person is guilty of an offence if the person causes a harmful substance 18 in packaged form to be carried on a ship in State waters otherwise than 19 in accordance with the regulations. 20 Maximum penalty: 21 (a) in the case of an individual--$2,200, or 22 (b) in the case of a corporation--$5,500. 23 Division 2 Offences relating to jettisoning 24 45 Jettisoning of harmful substances in packaged form into State waters 25 from ship prohibited (Reg 7.1 of Annex III of MARPOL) 26 (1) The master and the owner of a ship are each guilty of an offence if a 27 harmful substance in packaged form carried on the ship is jettisoned 28 from the ship into State waters. 29 Maximum penalty: 30 (a) in the case of an individual--$55,000, or 31 (b) in the case of a corporation--$275,000. 32 Page 26 Marine Pollution Bill 2012 Clause 46 Prevention of pollution by harmful substances in packaged form Part 5 (2) In proceedings for an offence against this section in relation to a ship: 1 (a) it is sufficient for the prosecution to allege and prove that a 2 harmful substance in packaged form was jettisoned from the ship 3 into State waters, but 4 (b) it is a defence if it is proved that, by virtue of Division 3, this 5 section does not apply in relation to the jettisoning. 6 46 Causing jettisoning of harmful substances in packaged form into State 7 waters from ship prohibited (Reg 7.1 of Annex III of MARPOL) 8 (1) A crew member of a ship is guilty of an offence if the crew member's 9 act causes any harmful substance in packaged form to be jettisoned 10 from the ship into State waters. 11 Maximum penalty: $55,000. 12 (2) A person involved in the operation or maintenance of a ship is guilty of 13 an offence if the person's act causes any harmful substance in packaged 14 form to be jettisoned from the ship into State waters. 15 Maximum penalty: 16 (a) in the case of an individual--$55,000, or 17 (b) in the case of a corporation--$275,000. 18 (3) In proceedings for an offence against this section in relation to a ship: 19 (a) it is sufficient for the prosecution to allege and prove that: 20 (i) a jettisoning of a harmful substance in packaged form 21 occurred from a ship into State waters, and 22 (ii) the crew member or person involved in the operation or 23 maintenance of the ship committed an act that caused the 24 jettisoning, but 25 (b) it is a defence if it is proved that, by virtue of Division 3, this 26 section does not apply in relation to the jettisoning. 27 47 Offence of being responsible for jettisoning of harmful substances in 28 packaged form into State waters from a ship (Reg 7.1 of Annex III of 29 MARPOL) 30 A person responsible for any harmful substance in packaged form being 31 jettisoned from a ship into State waters is guilty of an offence. 32 Maximum penalty: 33 (a) in the case of an individual--$220,000, or 34 (b) in the case of a corporation--$1,100,000. 35 Page 27 Clause 48 Marine Pollution Bill 2012 Part 5 Prevention of pollution by harmful substances in packaged form Division 3 Defences 1 48 Defence for jettisoning to secure safety or save life (Reg 7.1 of Annex III of 2 MARPOL) 3 Division 2 does not apply to the jettisoning of a harmful substance in 4 packaged form from a ship for the purpose of securing the safety of a 5 ship or saving life at sea. 6 49 Defence for certain leakages causing substances to be washed 7 overboard (Reg 7.2 of Annex III of MARPOL) 8 Division 2 does not apply to the jettisoning of a harmful substance in 9 packaged form from a ship because of a leakage of the substance if: 10 (a) the substance was washed overboard from the ship in accordance 11 with the regulations or any orders made pursuant to the 12 regulations, or 13 (b) the substance was washed overboard from the ship otherwise 14 than in accordance with such regulations or orders in 15 circumstances where compliance with such regulations or orders 16 would have impaired the safety of the ship or of persons on board 17 the ship. 18 Division 4 Miscellaneous 19 50 Part does not apply to stores or equipment (Reg 1.5 of Annex III of MARPOL) 20 This Part does not apply to a ship's stores or equipment. 21 51 Leakages taken to be jettisoned (Reg 1 of Annex III of MARPOL) 22 A harmful substance in packaged form is, for the purposes of this Act, 23 taken to have been jettisoned from a ship into State waters if there was 24 a leakage of the substance. 25 52 Empty packaging (Reg 1.4 of Annex III of MARPOL) 26 For the purposes of this Part, empty packaging that has been used 27 previously for the carriage of harmful substances is itself taken to be a 28 harmful substance unless the precautions required by the regulations 29 have been taken to ensure that the packaging contains no residue that is 30 harmful to the marine environment. 31 Page 28 Marine Pollution Bill 2012 Clause 53 Prevention of pollution by sewage Part 6 Part 6 Prevention of pollution by sewage 1 Division 1 Offences relating to discharge of sewage 2 53 Discharge of sewage into State waters from ship prohibited (Reg 11 of 3 Annex IV of MARPOL) 4 (1) The master and the owner of a large ship are each guilty of an offence 5 if any sewage is discharged from the ship into State waters. 6 Maximum penalty: 7 (a) in the case of an individual--$55,000, or 8 (b) in the case of a corporation--$275,000. 9 (2) In proceedings for an offence against this section in relation to a ship: 10 (a) it is sufficient for the prosecution to allege and prove that sewage 11 was discharged from the ship into State waters, but 12 (b) it is a defence if it is proved that, by virtue of Division 2, this 13 section does not apply in relation to the discharge. 14 54 Causing discharge of sewage into State waters from ship prohibited 15 (Reg 11 of Annex IV of MARPOL) 16 (1) A crew member of a large ship is guilty of an offence if the crew 17 member's act causes any sewage to be discharged from the ship into 18 State waters. 19 Maximum penalty: $55,000. 20 (2) A person involved in the operation or maintenance of a large ship is 21 guilty of an offence if the person's act causes any sewage to be 22 discharged from the ship into State waters. 23 Maximum penalty: 24 (a) in the case of an individual--$55,000, or 25 (b) in the case of a corporation--$275,000. 26 (3) In proceedings for an offence against this section, it is sufficient for the 27 prosecution to allege and prove that: 28 (a) a discharge of sewage occurred from a ship into State waters, and 29 (b) the crew member or person involved in the operation or 30 maintenance of the ship committed an act that caused the 31 discharge. 32 Page 29 Clause 55 Marine Pollution Bill 2012 Part 6 Prevention of pollution by sewage 55 Offence of being responsible for discharge of sewage into State waters 1 from a ship (Reg 11 of Annex IV of MARPOL) 2 A person responsible for the discharge of any sewage from a large ship 3 into State waters is guilty of an offence. 4 Maximum penalty: 5 (a) in the case of an individual--$220,000, or 6 (b) in the case of a corporation--$1,100,000. 7 Division 2 Defences 8 56 Defence for discharge caused by damage to ship or equipment 9 (Reg 3.1.2 of Annex IV of MARPOL) 10 Division 1 does not apply to the discharge of sewage from a large ship 11 if: 12 (a) the sewage escaped from the ship in consequence of unavoidable 13 damage to the ship or its equipment, and 14 (b) all reasonable precautions were taken before and after the 15 occurrence of the damage for the purpose of preventing or 16 minimising the escape of the sewage. 17 57 Defence for discharge to secure safety or save life (Reg 3.1.1 of Annex IV of 18 MARPOL) 19 Division 1 does not apply to the discharge of sewage from a large ship 20 for the purpose of securing the safety of a ship or saving life at sea. 21 58 Defence for discharge of comminuted and disinfected sewage not less 22 than 3 nautical miles from the nearest land (Reg 11.1.1 of Annex IV of 23 MARPOL) 24 Division 1 does not apply to the discharge of sewage from a large ship 25 if: 26 (a) the sewage has been comminuted and disinfected using a system 27 approved in accordance with the regulations, or orders made 28 pursuant to the regulations, giving effect to Regulation 9.1.2 of 29 Annex IV of MARPOL, and 30 (b) the discharge occurs when the ship is at a distance of not less than 31 3 nautical miles from the nearest land (within the meaning of 32 Annex IV of MARPOL), and 33 (c) if the sewage has been stored in holding tanks or originates from 34 spaces containing living animals--the sewage is not discharged 35 instantaneously but is discharged at a rate prescribed by the 36 regulations when the ship is proceeding en route at a speed of not 37 less than 4 knots. 38 Page 30 Marine Pollution Bill 2012 Clause 59 Prevention of pollution by sewage Part 6 59 Defence of discharge of treated sewage (Reg 11.1.2 of Annex IV of MARPOL) 1 (1) Division 1 does not apply to the discharge of sewage from a large ship 2 engaged in overseas voyages if both of the following apply: 3 (a) the sewage has been treated in a sewage treatment plant on the 4 ship, being a plant: 5 (i) that an inspector has certified meets the requirements of 6 the regulations giving effect to Regulation 9.1.1 of 7 Annex IV of MARPOL, and 8 (ii) the test results of which are laid down in the ship's sewage 9 certificate within the meaning of Division 12C of Part IV 10 of the Navigation Act 1912 of the Commonwealth, 11 (b) the effluent does not produce visible floating solids in State 12 waters and does not cause discolouration of State waters or other 13 surrounding waters. 14 (2) However, the defence created by subsection (1) does not apply to a 15 discharge into a zone prescribed by the regulations for the purposes of 16 this section. 17 Page 31 Clause 60 Marine Pollution Bill 2012 Part 7 Prevention of pollution by garbage Part 7 Prevention of pollution by garbage 1 Division 1 Offences relating to discharge of garbage 2 60 Discharging of garbage into State waters from ship prohibited (Regs 3.1 3 and 5.2 of Annex V of MARPOL) 4 (1) The master and the owner of a ship are each guilty of an offence if any 5 garbage is discharged from the ship into State waters. 6 Maximum penalty: 7 (a) in the case of an individual--$55,000, or 8 (b) in the case of a corporation--$275,000. 9 (2) In proceedings for an offence against this section in relation to a ship: 10 (a) it is sufficient for the prosecution to allege and prove that garbage 11 was discharged from the ship into State waters, but 12 (b) it is a defence if it is proved that, by virtue of Division 2, this 13 section does not apply in relation to the discharge. 14 61 Causing discharge of garbage into State waters from ship prohibited 15 (Regs 3.1 and 5.2 of Annex V of MARPOL) 16 (1) A crew member of a ship is guilty of an offence if the crew member's 17 act causes any garbage to be discharged from the ship into State waters. 18 Maximum penalty: $55,000. 19 (2) A person involved in the operation or maintenance of a ship is guilty of 20 an offence if the person's act causes any garbage to be discharged from 21 the ship into State waters. 22 Maximum penalty: 23 (a) in the case of an individual--$55,000, or 24 (b) in the case of a corporation--$275,000. 25 (3) In proceedings for an offence against this section, it is sufficient for the 26 prosecution to allege and prove that: 27 (a) a discharge of garbage occurred from a ship into State waters, and 28 (b) the crew member or person involved in the operation or 29 maintenance of the ship committed an act that caused the 30 discharge. 31 Page 32 Marine Pollution Bill 2012 Clause 62 Prevention of pollution by garbage Part 7 62 Offence of being responsible for discharge of garbage into State 1 waters from a ship (Regs 3.1 and 5.2 of Annex V of MARPOL) 2 A person responsible for the discharge of any garbage from a ship into 3 State waters is guilty of an offence. 4 Maximum penalty: 5 (a) in the case of an individual--$220,000, or 6 (b) in the case of a corporation--$1,100,000. 7 Division 2 Defences 8 63 Defence if discharge was caused by damage to ship or equipment 9 (Reg 6 (b) of Annex V of MARPOL) 10 Division 1 does not apply to the discharge of garbage from a ship if: 11 (a) the garbage escaped from the ship in consequence of unavoidable 12 damage to the ship or its equipment, and 13 (b) all reasonable precautions were taken before and after the 14 occurrence of the damage for the purpose of preventing or 15 minimising the escape of the garbage. 16 64 Defence if discharge was to secure safety or save life (Reg 6 (a) of Annex V 17 of MARPOL) 18 Division 1 does not apply to the discharge of garbage from a ship for the 19 purpose of securing the safety of a ship or saving life at sea. 20 65 Defence if accidental loss of nets and other materials (Reg 6 (c) of Annex V 21 of MARPOL) 22 Division 1 does not apply to the accidental loss of a synthetic fishing 23 net, or synthetic material used in the repair of such a net, on a ship if all 24 reasonable precautions were taken to prevent the loss. 25 66 Defence in relation to certain dunnage, lining or packing materials that 26 will float (Regs 3.1 (b) (i), 4.1 and 5.2 (a) (ii) of Annex V of MARPOL) 27 (1) Division 1 does not apply to the disposal of dunnage, lining or packing 28 materials that will float, from a ship into State waters if: 29 (a) the disposal occurs when the ship is not within a special area, and 30 (b) the disposal occurs when the ship is as far as practicable from, 31 and is not less than 25 nautical miles from, the nearest land, and 32 Page 33 Clause 66 Marine Pollution Bill 2012 Part 7 Prevention of pollution by garbage (c) the disposal occurs when the ship is not alongside, or within 1 500 metres of, a fixed or floating platform engaged in the 2 exploration, exploitation and associated off-shore processing of 3 seabed mineral resources. 4 (2) This section does not apply to plastics. 5 Page 34 Marine Pollution Bill 2012 Clause 67 Prevention of pollution from transfer operations Part 8 Part 8 Prevention of pollution from transfer 1 operations 2 Division 1 Application of Part 3 67 Meaning of "prescribed marine pollutant" 4 In this Part: 5 prescribed marine pollutant means any one, or any combination, of the 6 following substances (whether in bulk, packaged or another form): 7 (a) oil, 8 (b) a noxious liquid substance. 9 Division 2 Offences relating to transfer operations 10 68 Discharge of prescribed marine pollutant from ship in transfer operation 11 prohibited (cf former Act s 27) 12 (1) A person must not deliberately, recklessly or negligently cause a 13 prescribed marine pollutant to be discharged from a ship in, or in 14 connection with, a transfer operation. 15 Maximum penalty: 16 (a) in the case of an individual--$500,000, or 17 (b) in the case of a corporation--$10,000,000. 18 (2) Each prescribed person in relation to a ship is guilty of an offence if a 19 prescribed marine pollutant is discharged from a ship in, or in 20 connection with, a transfer operation. 21 Maximum penalty: 22 (a) in the case of an individual--$500,000, or 23 (b) in the case of a corporation--$10,000,000. 24 (3) In this section: 25 prescribed person means any of the following: 26 (a) the owner of the ship, 27 (b) the master of the ship, 28 (c) the person in charge of the transfer operation of the ship. 29 Page 35 Clause 69 Marine Pollution Bill 2012 Part 8 Prevention of pollution from transfer operations 69 Discharge of prescribed marine pollutant from place on land in transfer 1 operation prohibited (cf former Act s 27) 2 (1) A person must not deliberately, recklessly or negligently cause a 3 prescribed marine pollutant to be discharged from a place on land in, or 4 in connection with, a transfer operation. 5 Maximum penalty: 6 (a) in the case of an individual--$500,000, or 7 (b) in the case of a corporation--$10,000,000. 8 (2) The occupier of land is guilty of an offence if a prescribed marine 9 pollutant is discharged from a place on the land in, or in connection 10 with, a transfer operation. 11 Maximum penalty: 12 (a) in the case of an individual--$500,000, or 13 (b) in the case of a corporation--$10,000,000. 14 70 Discharge of prescribed marine pollutant from apparatus on a ship used 15 in transfer operation prohibited (cf former Act s 27) 16 (1) A person must not deliberately, recklessly or negligently cause a 17 prescribed marine pollutant to be discharged from an apparatus on a 18 ship in, or in connection with, a transfer operation. 19 Maximum penalty: 20 (a) in the case of an individual--$500,000, or 21 (b) in the case of a corporation--$10,000,000. 22 (2) Each of the prescribed persons in relation to a ship is guilty of an 23 offence if any prescribed marine pollutant is discharged from any 24 apparatus on the ship used in, or in connection with, a transfer 25 operation, whether or not it is being so used. 26 Maximum penalty: 27 (a) in the case of an individual--$500,000, or 28 (b) in the case of a corporation--$10,000,000. 29 (3) In this section: 30 prescribed person means any of the following: 31 (a) the owner of the ship, 32 (b) the master of the ship, 33 (c) the owner of the apparatus, 34 (d) the person in charge of the apparatus. 35 Page 36 Marine Pollution Bill 2012 Clause 71 Prevention of pollution from transfer operations Part 8 71 Discharge of prescribed marine pollutant from apparatus on a place on 1 land used in transfer operation prohibited (cf former Act s 27) 2 (1) A person must not deliberately, recklessly or negligently cause a 3 prescribed marine pollutant to be discharged from an apparatus on a 4 place on land in, or in connection with, a transfer operation. 5 Maximum penalty: 6 (a) in the case of an individual--$500,000, or 7 (b) in the case of a corporation--$10,000,000. 8 (2) Each of the prescribed persons in relation to a transfer operation is 9 guilty of an offence if any prescribed marine pollutant is discharged 10 from any apparatus on a place on land used in, or in connection with, a 11 transfer operation, whether or not it is being so used. 12 Maximum penalty: 13 (a) in the case of an individual--$500,000, or 14 (b) in the case of a corporation--$10,000,000. 15 (3) In this section: 16 prescribed person means any of the following: 17 (a) the occupier of the land, 18 (b) the owner of the apparatus, 19 (c) the person in charge of the apparatus. 20 72 Offence of causing discharge of prescribed marine pollutant from 21 pipeline in connection with transfer operation (cf former Act s 27) 22 (1) A person must not deliberately, recklessly or negligently cause a 23 prescribed marine pollutant to be discharged from a purpose-built 24 pipeline in, or in connection with, a transfer operation. 25 Maximum penalty: 26 (a) in the case of an individual--$500,000, or 27 (b) in the case of a corporation--$10,000,000. 28 (2) Each of the prescribed persons in relation to a purpose-built pipeline is 29 guilty of an offence if any prescribed marine pollutant is discharged 30 from the pipeline in, or in connection with, a transfer operation, whether 31 or not it is being so used. 32 Maximum penalty: 33 (a) in the case of an individual--$500,000, or 34 (b) in the case of a corporation--$10,000,000. 35 Page 37 Clause 73 Marine Pollution Bill 2012 Part 8 Prevention of pollution from transfer operations (3) In this section: 1 prescribed person means any of the following: 2 (a) the occupier of the land, 3 (b) the owner of the pipeline, 4 (c) the person in charge of the pipeline. 5 73 Discharge of prescribed marine pollutant from pipeline in connection 6 with transfer operation prohibited (cf former Act s 27) 7 Each of the following persons is guilty of an offence if any prescribed 8 marine pollutant is discharged from a purpose-built pipeline used in, or 9 in connection with, a transfer operation, whether or not it is being so 10 used: 11 (a) the occupier of the land on which the pipeline is situated, 12 (b) any lessee, licensee or user of any lease, licence or right of user 13 for the use of the pipeline for the carriage of oil, 14 (c) the person in charge of the pipeline, 15 (d) each other person responsible for the discharge. 16 Maximum penalty: 17 (a) in the case of an individual--$500,000, or 18 (b) in the case of a corporation--$10,000,000. 19 74 Transfer of prescribed marine pollutant at night (cf former Act s 32) 20 (1) The master and the owner of a ship in State waters are each guilty of an 21 offence if a prescribed marine pollutant is transferred from the ship 22 between sunset and sunrise and: 23 (a) prior written notice of the transfer has not been given to the 24 harbour master or other person in charge of the waters or the 25 Minister, or 26 (b) permission in writing has not been obtained from the harbour 27 master or other person, or 28 (c) the pollutant is transferred in contravention of a condition 29 attached to a permission. 30 Maximum penalty: $55,000. 31 (2) The occupier of land from which a prescribed marine pollutant is 32 transferred to a ship in State waters, or to which a prescribed marine 33 pollutant is transferred from a ship in State waters, is guilty of an 34 Page 38 Marine Pollution Bill 2012 Clause 75 Prevention of pollution from transfer operations Part 8 offence if a prescribed marine pollutant is transferred to or from the ship 1 between sunset and sunrise and: 2 (a) prior written notice of the transfer has not been given to the 3 harbour master or other person in charge of the waters or the 4 Minister, or 5 (b) permission in writing has not been obtained from the harbour 6 master or other person, or 7 (c) the pollutant is transferred in contravention of a condition 8 attached to a permission. 9 Maximum penalty: $55,000. 10 (3) In the case of a transfer to be carried out at a place where transfers are 11 frequently and regularly carried out: 12 (a) the notice may be a general notice that transfers will be carried 13 out within a period specified in the notice, and 14 (b) the permission may be general and subject to such conditions as 15 the harbour master, other person in charge of the State waters or 16 Minister thinks fit. 17 (4) In this section: 18 harbour master has the same meaning it has in the Marine Safety 19 Act 1998. 20 Division 3 Discharges to which Division 2 does not apply 21 75 Division 2 does not apply to certain discharges (cf former Act s 26 (c)) 22 Division 2 does not apply to a discharge that occurs on the landward 23 side of the first isolating valve on land of any apparatus or purpose-built 24 pipeline used in, or in connection with, a transfer operation, whether or 25 not it is being so used, or at any other place prescribed by the regulations 26 for the purposes of this section. 27 76 Division 2 does not apply to discharge for purposes of combating 28 pollution incidents (cf former Act s 27 (2) (a)) 29 Division 2 does not apply to a discharge if the discharge was for the 30 purpose of combating specific pollution incidents in order to minimise 31 the damage from pollution and was approved by an officer prescribed 32 by the regulations. 33 77 Division 2 does not apply to certain licensed discharges (cf former Act 34 s 27 (2) (b)) 35 Division 2 does not apply to a discharge if the discharge was carried out 36 by the holder of a licence under the Protection of the Environment 37 Operations Act 1997 in accordance with that licence. 38 Page 39 Clause 78 Marine Pollution Bill 2012 Part 8 Prevention of pollution from transfer operations Division 4 Record keeping relating to transfer operations 1 78 Keeping of records relating to transfer (cf former Act s 29 (2)) 2 (1) The responsible person in relation to a transfer operation must keep the 3 records that the person is required to keep by the regulations, in the form 4 in which the records are required to be kept. 5 Maximum penalty: $22,000. 6 (2) In this section: 7 responsible person, in relation to a transfer operation, means: 8 (a) the owner or the master of a ship or the occupier of a place on 9 land to or from which a prescribed marine pollutant is transferred, 10 and 11 (b) the person in charge of an apparatus or a purpose-built pipeline 12 used in, or in connection with, a transfer operation, and 13 (c) the occupier of a purpose-built pipeline used in, or in connection 14 with, a transfer operation. 15 79 Entries required to be made (cf former Act s 29 (4)) 16 A person must, without delay, make the appropriate entry in the record 17 prescribed by the regulations if the regulations require a specified 18 occurrence relating to a transfer operation to be recorded by the person. 19 Maximum penalty: $22,000. 20 80 Transmission of records relating to transfer operation (cf former Act 21 s 29 (5)) 22 A person must not fail to transmit the records relating to a transfer 23 operation that are required to be kept by this Division to the place or 24 person, or in the manner, prescribed by the regulations. 25 Maximum penalty: 26 (a) in the case of an individual--$22,000, or 27 (b) in the case of a corporation--$110,000. 28 81 Disposal of records relating to transfer operation (cf former Act s 29 (3) (d)) 29 A person must not dispose of records relating to a transfer operation that 30 are required to be kept by this Division except in the manner and after 31 the period required by the regulations. 32 Maximum penalty: 33 (a) in the case of an individual--$22,000, or 34 (b) in the case of a corporation--$110,000. 35 Page 40 Marine Pollution Bill 2012 Clause 82 Prevention of pollution from transfer operations Part 8 82 False or misleading entries prohibited (cf former Act s 29 (6)) 1 A person must not make an entry that is false or misleading in a material 2 particular in a record required to be kept by this Division. 3 Maximum penalty: $22,000. 4 Division 5 Miscellaneous 5 83 Several liability (cf former Act s 31) 6 If a prescribed marine pollutant is discharged into State waters from 2 or 7 more ships in, or in connection with, a transfer operation, and it is not 8 reasonably practicable to identify the pollutant that has discharged from 9 a particular ship, all of the pollutant discharged is taken, for the 10 purposes of this Part, to have been discharged from each of those ships. 11 84 Multiple offenders (cf former Act s 25 (3)) 12 For the avoidance of doubt, more than one person may be found guilty 13 of an offence under this Part in relation to a single discharge. 14 85 Prohibitions on discharges from ships still apply 15 (1) To avoid doubt, this Part applies to a discharge whether or not it is a 16 discharge prohibited by Part 3 or 4 (and whether or not a defence is 17 available under those Parts for a discharge of the substance in those 18 circumstances). 19 (2) However, a person is not liable to be convicted in respect of the same 20 discharge of both an offence under Part 3 or 4 and this Part. 21 Page 41 Clause 86 Marine Pollution Bill 2012 Part 9 Reporting of pollution incidents Part 9 Reporting of pollution incidents 1 Division 1 Meaning of "reportable incident" 2 86 Meaning of "reportable incident" 3 In this Part: 4 reportable incident, in relation to a ship, means any of the following: 5 (a) a discharge or probable discharge into State waters from the ship 6 of oil other than a discharge of the kind or in the circumstances 7 specified in sections 22-25, 8 (b) a discharge or probable discharge into State waters from the ship 9 of a noxious liquid substance (other than a substance referred to 10 in Regulation 6.1.4 of Annex II of MARPOL) other than of the 11 kind or in the circumstances specified in sections 35-41, 12 (c) a jettisoning or probable jettisoning from the ship into State 13 waters of a harmful substance in packaged form including a 14 substance in a freight container, portable tank, road and rail 15 vehicle or shipborne barge, 16 (d) in relation to a ship of 15 metres in length or above that is 17 carrying oil or a noxious liquid substance: 18 (i) any damage, failure or breakdown of the ship that affects 19 the safety of the ship, including but not limited to any 20 collision, grounding, fire, explosion, structural failure, 21 flooding or cargo shifting, or 22 (ii) any damage, failure or breakdown of the ship that results 23 in impairment of the safety of navigation, including but not 24 limited to, failure or breakdown of steering gear, 25 propulsion plant, electrical generating system, and 26 essential shipborne navigational aids, 27 (e) in relation to a large ship that has on board a sewage treatment 28 system, any damage, failure or breakdown of the ship's sewage 29 treatment system that could result in the discharge of untreated or 30 inadequately treated sewage. 31 Division 2 Master's obligations 32 87 Master must report reportable incident (Article I (1) of Protocol I of MARPOL) 33 (cf former Act ss 10 (1) and 20 (1)) 34 (1) The master of a ship must, without delay, report any reportable incident 35 that occurs in State waters in relation to the ship to the Minister in the 36 manner prescribed by the regulations. 37 Maximum penalty: $121,000. 38 Page 42 Marine Pollution Bill 2012 Clause 88 Reporting of pollution incidents Part 9 (2) In a prosecution of a person for an offence against subsection (1), it is a 1 defence if the person proves that the person was unable to comply with 2 that subsection. 3 88 Master must provide supplementary report if Minister requires it (Article 4 IV (b) of Protocol I of MARPOL) (cf former Act ss 10 (6) and 20 (6)) 5 The master of a ship must provide a supplementary report to the 6 Minister in relation to the reportable incident within the time prescribed 7 by the regulations and in accordance with the regulations if the Minister 8 requests such a report. 9 Maximum penalty: $121,000. 10 89 Master must provide supplementary report if further developments 11 arise (Article IV (b) of Protocol I of MARPOL) 12 The master of the ship must provide a further supplementary report to 13 the Minister within the time prescribed by the regulations and in 14 accordance with the regulations if any significant further developments 15 arise in relation to the reportable incident after a report or 16 supplementary report was required under this Division. 17 Maximum penalty: $121,000. 18 Division 3 Obligations of other persons 19 90 Duty of other persons to report if ship abandoned or report cannot be 20 obtained (Article I (2) of Protocol I of MARPOL) (cf former Act ss 10 (3) and 20 (3)) 21 (1) The owner, charterer, manager or operator of an abandoned ship in 22 relation to which a reportable incident has occurred in State waters, and 23 any agent of the owner, charterer, manager or operator of the ship, are 24 each guilty of an offence if the reportable incident is not reported to the 25 Minister, without delay, in the manner prescribed by the regulations. 26 Maximum penalty: 27 (a) in the case of an individual--$121,000, or 28 (b) in the case of a corporation--$2,750,000. 29 (2) The owner, charterer, manager or operator of a ship in relation to which 30 a reportable incident has occurred in State waters in other circumstances 31 in which a notification cannot be obtained from the master of the ship 32 under Division 2, and any agent of the owner, charterer, manager or 33 operator of the ship are each guilty of an offence if the reportable 34 Page 43 Clause 91 Marine Pollution Bill 2012 Part 9 Reporting of pollution incidents incident is not reported to the Minister, without delay, in the manner 1 prescribed by the regulations. 2 Maximum penalty: 3 (a) in the case of an individual--$121,000, or 4 (b) in the case of a corporation--$2,750,000. 5 (3) In a prosecution of a person for an offence against this section in relation 6 to a reportable incident, it is a defence if the person proves: 7 (a) that the person was not aware of the incident, or 8 (b) that the person neither knew nor suspected that the ship was 9 abandoned or the circumstances that meant that a report could not 10 be obtained. 11 (4) Subsection (3) does not limit any defence that would, but for that 12 subsection, be available to a person charged with an offence under this 13 section. 14 91 Duty of other persons to report if report incomplete (Article I (2) of 15 Protocol I of MARPOL) (cf former Act ss 10 (3) and 20 (3)) 16 (1) The owner, charterer, manager or operator of a ship and any agent of the 17 owner, charterer, manager or operator of the ship are each guilty of an 18 offence if a notification provided under Division 2 is provided in an 19 incomplete form and the missing particulars are not reported to the 20 Minister without delay. 21 Maximum penalty: 22 (a) in the case of an individual--$121,000, or 23 (b) in the case of a corporation--$2,750,000. 24 (2) In a prosecution of a person for an offence against this section in relation 25 to a reportable incident, it is a defence if the person proves that the 26 person was not aware of the incident. 27 (3) Subsection (2) does not limit any defence that would, but for that 28 subsection, be available to a person charged with an offence under this 29 section. 30 92 Duty of other persons to provide supplementary report (Article IV (b) of 31 Protocol I of MARPOL) (cf former Act ss 10 (7) and 20 (7)) 32 (1) A person who has reported the occurrence of a reportable incident to the 33 Minister pursuant to this Division must provide the Minister with a 34 supplementary report in relation to the reportable incident if the 35 Minister requests the supplementary report. 36 Maximum penalty: $121,000. 37 Page 44 Marine Pollution Bill 2012 Clause 93 Reporting of pollution incidents Part 9 (2) A person who has reported the occurrence of a reportable incident to the 1 Minister pursuant to this Division must provide a further supplementary 2 report to the Minister about any further developments that arise in 3 relation to the reportable incident after a report or supplementary report 4 was required under this Division, within the time prescribed by the 5 regulations and in accordance with the regulations. 6 Maximum penalty: $121,000. 7 Division 4 Miscellaneous 8 93 False or misleading reports (cf former Act ss 10 (8) and 20 (8)) 9 A person must not, in a report or supplementary report required by this 10 Part, make a statement that is false or misleading in a material 11 particular. 12 Maximum penalty: $121,000. 13 94 Inadmissibility of certain evidence (cf former Act ss 10 (9) and 20 (9)) 14 A report or supplementary report given to the Minister pursuant to this 15 Part is not admissible in evidence in a prosecution of an individual for 16 an offence against section 15-17, 27-31, 43-47, 53-55 or 60-62 17 without the consent of the person charged. 18 Page 45 Clause 95 Marine Pollution Bill 2012 Part 10 Emergency plans and other plans Part 10 Emergency plans and other plans 1 Division 1 Shipboard oil pollution emergency plan 2 95 Obligation to carry shipboard oil pollution emergency plan (Reg 37.1 of 3 Annex I of MARPOL) 4 (1) The master and the owner of a prescribed ship that is in State waters are 5 each guilty of an offence if an approved shipboard oil pollution 6 emergency plan is not carried on board the ship. 7 Maximum penalty: $55,000. 8 (2) In proceedings for an offence against this section in relation to a ship, it 9 is sufficient for the prosecution to allege and prove: 10 (a) that the ship is a prescribed ship, and 11 (b) that the ship was in State waters without an approved shipboard 12 oil pollution emergency plan on board. 13 (3) In this section: 14 approved, in relation to a shipboard oil pollution emergency plan, 15 means approved by: 16 (a) the Minister under this Division, or 17 (b) an Administration, within the meaning of Article 2 of the 18 Protocol to MARPOL. 19 prescribed ship means a ship: 20 (a) that is an oil tanker that has a gross tonnage of 150 or more, or 21 (b) that is not an oil tanker and that has a gross tonnage of 400 or 22 more. 23 96 Approval of shipboard oil pollution emergency plan (Reg 37.1 of Annex I of 24 MARPOL) 25 The Minister may, on application by a master of a ship, approve the 26 shipboard oil pollution emergency plan for the ship if, in the opinion of 27 the Minister, it complies with this Division. 28 97 Contents of shipboard oil pollution emergency plan (Reg 37.2 of Annex I of 29 MARPOL) 30 (1) A shipboard oil pollution emergency plan must contain the matter 31 prescribed by the regulations. 32 Page 46 Marine Pollution Bill 2012 Clause 98 Emergency plans and other plans Part 10 (2) A shipboard oil pollution emergency plan must set out, but is not limited 1 to, the following particulars: 2 (a) the procedure to be followed by the master, any crew member, or 3 any other person having charge of the ship in reporting a 4 reportable incident in relation to the ship, 5 (b) a list of the authorities or persons that are to be notified by 6 persons on the ship if such a reportable incident occurs in relation 7 to the ship, 8 (c) a detailed description of the action to be taken immediately after 9 a reportable incident by persons on board the ship to reduce or 10 control any discharge from the ship resulting from the incident, 11 (d) the procedures to be followed for co-ordinating with the 12 authorities or persons that have been contacted (whether in 13 Australia or in a country near to the place where the incident 14 occurred) any action taken in combating the pollution caused by 15 the incident and, in particular, the person on board the ship 16 through whom all communications are to be made, 17 (e) any action to be taken in combating the pollution caused by the 18 incident and, in particular, the person on board the ship through 19 whom all communications are to be made. 20 (3) The procedure referred to in subsection (2) (a) must be in accordance 21 with the procedure prescribed by the regulations under section 87 as the 22 manner in which a reportable incident is to be reported under Part 9. 23 (4) In this section, reportable incident has the same meaning as in 24 section 86. 25 98 Language of shipboard oil pollution emergency plan (Reg 37.2 of Annex I 26 of MARPOL) 27 The shipboard oil pollution emergency plan on a ship must be written in 28 the working language of the master of, and the crew on board, the ship. 29 99 Plans may be combined 30 A ship complies with both sections 95 and 100 if it has on board a plan 31 called a "shipboard marine pollution emergency plan" that complies 32 with this Division and with Division 2. 33 Page 47 Clause 100 Marine Pollution Bill 2012 Part 10 Emergency plans and other plans Division 2 Shipboard marine pollution emergency plan for 1 noxious liquid substances 2 100 Obligation to carry shipboard marine pollution emergency plan for 3 noxious liquid substances (Reg 17.1 of Annex II of MARPOL) 4 (1) The master and the owner of a prescribed ship that is in State waters are 5 each guilty of an offence if there is not a shipboard marine pollution 6 emergency plan for noxious liquid substances that complies with this 7 Division, and is approved by the Minister, on board the ship. 8 Maximum penalty: $55,000. 9 (2) In proceedings for an offence against this section in relation to a ship, it 10 is sufficient for the prosecution to allege and prove that a ship is a 11 prescribed ship and that it was in State waters without a shipboard 12 marine pollution emergency plan for noxious liquid substances that 13 complies with this Division on board. 14 (3) In this section: 15 prescribed ship means an Australian ship: 16 (a) that has a gross tonnage of 150 or more, and 17 (b) that is certified to carry noxious liquid substances in bulk. 18 101 Approval of shipboard marine pollution emergency plan for noxious 19 liquid substances (Reg 17.1 of Annex II of MARPOL) 20 The Minister may, on application by a master of a ship, approve the 21 shipboard marine pollution emergency plan for noxious liquid 22 substances for the ship if, in the opinion of the Minister, it complies with 23 this Division. 24 102 Contents of shipboard marine pollution emergency plan for noxious 25 liquid substances (Reg 17.2 of Annex II of MARPOL) 26 (1) A shipboard marine pollution emergency plan for noxious liquid 27 substances must contain the matter prescribed by the regulations. 28 (2) A shipboard marine pollution emergency plan for noxious liquid 29 substances must set out, but is not limited to, the following particulars: 30 (a) the procedure to be followed by the master, or any other person 31 having charge, of the ship in reporting a reportable incident in 32 relation to the ship, 33 (b) a list of the authorities or persons that are to be notified by 34 persons on the ship if a reportable incident occurs in relation to 35 the ship, 36 Page 48 Marine Pollution Bill 2012 Clause 103 Emergency plans and other plans Part 10 (c) a detailed description of the action to be taken, immediately after 1 a reportable incident, by persons on board the ship to reduce or 2 control any discharge from the ship resulting from the incident, 3 (d) the procedures to be followed for co-ordinating with the 4 authorities or persons that have been contacted (whether in 5 Australia or in a country near to the place where the incident 6 occurred) any action taken in combating the pollution caused by 7 the incident and, in particular, the person on board the ship 8 through whom all communications are to be made, 9 (e) any action to be taken in combating the pollution caused by the 10 incident and, in particular, the person on board the ship through 11 whom all communications are to be made. 12 (3) The procedure referred to in subsection (2) (a) must be in accordance 13 with the procedure prescribed by the regulations under section 87 as the 14 manner in which a reportable incident is to be reported under Part 9. 15 (4) In this section, reportable incident has the same meaning as in 16 section 86. 17 103 Language of shipboard marine pollution emergency plan for noxious 18 liquid substances (Reg 17.2 of Annex II of MARPOL) 19 The shipboard marine pollution emergency plan for noxious liquid 20 substances on a ship must be written in the working language of the 21 master of, and the officers on board, the ship. 22 Division 3 Procedures and arrangements manual 23 104 Procedures and arrangements manual required (Reg 14.1 of Annex II of 24 MARPOL) 25 The master and the owner of a ship in State waters are each guilty of an 26 offence if: 27 (a) a chemical tanker construction certificate under Division 12A of 28 Part IV of the Navigation Act 1912 of the Commonwealth is in 29 force in respect of the ship, and 30 (b) the ship does not have on board a copy of the ship's procedures 31 and arrangements manual that complies with this Division. 32 Maximum penalty: $6,600. 33 Page 49 Clause 105 Marine Pollution Bill 2012 Part 10 Emergency plans and other plans 105 Form and content of procedures and arrangements manual (Reg 14.2 of 1 Annex II of MARPOL) 2 A procedures and arrangements manual for a ship complies with this 3 Division if: 4 (a) it contains the physical arrangements and all the operational 5 procedures with respect to cargo handling, tank cleaning, slops 6 handling and cargo tank ballasting that must be followed in order 7 to comply with the requirements of Annex II of MARPOL, and 8 (b) it is in accordance with the form approved by the Minister. 9 106 Language of procedures and arrangements manual (Reg 14.1 of Annex II of 10 MARPOL) 11 (1) The procedures and arrangements manual for an Australian ship must 12 be written in the English language. 13 (2) The procedures and arrangements manual for a foreign ship must be 14 written in the official language of the country whose flag the ship is 15 entitled to fly, or in one of the official languages of that country. 16 (3) However, if that official language is not English, French or Spanish, the 17 procedures and arrangements manual must also be translated into 18 English, French or Spanish. 19 Division 4 Shipboard garbage management plan 20 107 Obligation to carry shipboard garbage management plan (Reg 9 of Annex 21 V of MARPOL) 22 (1) The master and the owner of a large ship that is in State waters are each 23 guilty of an offence if there is not a shipboard garbage management plan 24 that complies with this Division on board the ship. 25 Maximum penalty: $5,500. 26 (2) In proceedings for an offence against this section in relation to a ship, it 27 is sufficient for the prosecution to allege and prove that a ship is a large 28 ship and that it was in State waters without a shipboard garbage 29 management plan that complies with this Division on board. 30 108 Contents of shipboard garbage management plan (Reg 9 (2) of Annex V of 31 MARPOL) 32 (1) A shipboard garbage management plan must be in writing and must 33 contain the matters prescribed by the regulations. 34 Page 50 Marine Pollution Bill 2012 Clause 109 Emergency plans and other plans Part 10 (2) A shipboard garbage management plan must set out, but is not limited 1 to, the following particulars: 2 (a) the procedures for collecting, storing, processing and disposing 3 of garbage, including the use of the equipment on board the ship 4 for carrying out those procedures, 5 (b) the person who is in charge of carrying out the plan. 6 109 Language of shipboard garbage management plan (Reg 9 (2) of Annex V of 7 MARPOL) 8 (1) The shipboard garbage management plan on an Australian ship must be 9 written in the English language. 10 (2) The shipboard garbage management plan on a foreign ship must be 11 written in the official language of the country whose flag the ship is 12 entitled to fly, or in one of the official languages of that country. 13 (3) The shipboard garbage management plan on any ship must also be 14 written in the working language of the master of, and the majority of 15 officers on board, the ship. 16 Division 5 Placards relating to garbage disposal 17 requirements 18 110 Placards relating to requirements for disposal of garbage (Reg 9 (1) (a) of 19 Annex V of MARPOL) 20 (1) The master and the owner of a ship of 12 metres or more in length that 21 is in State waters are each guilty of an offence if at least one garbage 22 disposal requirements placard that complies with this Division is not 23 displayed on board the ship in a position where it can be easily read by 24 any crew member or any passenger of the ship. 25 Maximum penalty: $5,500. 26 (2) In proceedings for an offence against this section in relation to a ship, it 27 is sufficient for the prosecution to allege and prove: 28 (a) that the ship was of 12 metres or more in length and was in State 29 waters, and 30 (b) that a garbage disposal requirements placard that complies with 31 this Division was not displayed on board the ship. 32 Page 51 Clause 111 Marine Pollution Bill 2012 Part 10 Emergency plans and other plans 111 Content of garbage disposal requirements placard (Reg 9 (1) (a) of Annex V 1 of MARPOL) 2 A garbage disposal requirements placard must describe: 3 (a) the kinds of garbage that may not be disposed of from the ship 4 under this Act and MARPOL, and 5 (b) the kinds of garbage that may be disposed of from the ship and 6 the circumstances in which it is not an offence to dispose of 7 garbage of that kind under this Act and MARPOL. 8 112 Language of garbage disposal requirements placards (Reg 9 (1) (b) of 9 Annex V of MARPOL) 10 The garbage disposal requirements placard or each placard on a ship 11 must be written in the working language of the ship's crew. 12 Page 52 Marine Pollution Bill 2012 Clause 113 Record keeping Part 11 Part 11 Record keeping 1 Division 1 Requirement to carry oil record book 2 113 Requirement to carry an oil record book (Regs 17.1 and 36.1 of Annex I of 3 MARPOL) (cf former Act s 11 (2) and (4)) 4 (1) The master and the owner of a prescribed ship are each guilty of an 5 offence if the ship does not carry on board an oil record book that 6 complies with this Division. 7 Maximum penalty: 8 (a) in the case of an individual--$22,000, or 9 (b) in the case of a corporation--$110,000. 10 (2) In proceedings for an offence against this section in relation to a ship, it 11 is sufficient for the prosecution to allege and prove that the ship is a 12 prescribed ship and that it was in State waters without an oil record book 13 that complies with this Division on board. 14 (3) In this section: 15 prescribed ship means an oil tanker, or a ship that has a gross tonnage 16 of 400 or more, that is: 17 (a) a trading ship proceeding on an intra-state voyage, or 18 (b) an Australian fishing vessel proceeding on a voyage other than an 19 overseas voyage, or 20 (c) a pleasure vessel. 21 114 Form of oil record book (Regs 17.4 and 36.5 of Annex I of MARPOL) (cf former 22 Act s 11 (3)) 23 (1) An oil record book must contain the matters prescribed by the 24 regulations. 25 (2) An oil record book must make provision for: 26 (a) a signature in relation to each entry made in it, and 27 (b) a signature on each page of it. 28 115 Language of oil record book (Regs 17.4 and 36.5 of Annex I of MARPOL) (cf 29 former Act s 11 (6) (a)) 30 (1) The oil record book on an Australian ship must be written in the English 31 language. 32 (2) The oil record book on a foreign ship must be written in the official 33 language of the country whose flag the ship is entitled to fly, or in one 34 of the official languages of that country. 35 Page 53 Clause 116 Marine Pollution Bill 2012 Part 11 Record keeping (3) However, if that official language is not English, French or Spanish, the 1 oil record book must also be translated into English, French or Spanish. 2 116 Master must sign completed page of oil record book (cf former Act s 11 (7)) 3 The master of the ship must sign each page of the ship's oil record book 4 as soon as possible after it is completed. 5 Maximum penalty: $22,000. 6 117 Entries in relation to prescribed operations or occurrences (Regs 17.4 7 and 36.5 of Annex I of MARPOL) (cf former Act s 11 (5)) 8 (1) The master of a ship in relation to which an operation or occurrence 9 prescribed by the regulations occurs: 10 (a) must make appropriate entries in the English language in the 11 ship's oil record book without delay, on the date of the event, or 12 (b) must cause appropriate entries to be made without delay in the 13 English language in the ship's oil record book on the date of the 14 event. 15 Maximum penalty: $22,000. 16 (2) The master of the ship must ensure that any entry made in relation to an 17 operation or occurrence prescribed by the regulations is signed by the 18 officer or other person in charge of the operation on the date of the 19 operation or occurrence. 20 Maximum penalty: $22,000. 21 (3) In this section: 22 appropriate entry means an entry prescribed by the regulations. 23 118 Entries in relation to inspections (Regs 17.1 and 36.8 of Annex I of MARPOL) 24 An inspector who inspects a ship must, without delay, make entries 25 prescribed by the regulations in the ship's oil record book in the English 26 language. 27 119 False entries in oil record book (Regs 17.7 and 36.8 of Annex I of MARPOL) (cf 28 former Act s 12) 29 A person must not make an entry that is false or misleading in a material 30 particular in the oil record book of a ship. 31 Maximum penalty: $22,000. 32 Page 54 Marine Pollution Bill 2012 Clause 120 Record keeping Part 11 120 Oil record book to be retained on ship for one year (Regs 17.6 and 36.7 of 1 Annex I of MARPOL) (cf former Act s 13) 2 The owner of a ship is guilty of an offence if the ship's oil record book: 3 (a) is not retained on the ship until at least the expiration of a period 4 of one year after the day on which the last entry was made in the 5 book, and 6 (b) is not made readily available for inspection at all reasonable 7 times until at least the expiration of that period. 8 Maximum penalty: 9 (a) in the case of an individual--$22,000, or 10 (b) in the case of a corporation--$110,000. 11 121 Oil record book to be retained (Regs 17.6 and 36.7 of Annex I of MARPOL) (cf 12 former Act s 13) 13 (1) The owner of a ship must ensure that the ship's oil record book is, at 14 least until the expiration of a period of two years after the day on which 15 the last entry was made in the book: 16 (a) retained: 17 (i) on the ship, or 18 (ii) at the registered office in the State of the owner, or 19 (b) if the owner does not reside in the State and does not have an 20 office or agent in the State, deposited with an officer prescribed 21 by the regulations for the purposes of this section. 22 Maximum penalty: 23 (a) in the case of an individual--$22,000, or 24 (b) in the case of a corporation--$110,000. 25 (2) The owner of a ship must ensure that the ship's oil record book is made 26 readily available for inspection at all reasonable times at least until the 27 expiration of the period referred to in subsection (1). 28 Maximum penalty: 29 (a) in the case of an individual--$22,000, or 30 (b) in the case of a corporation--$110,000. 31 (3) The owner of a ship who resides in the State, or has an office or agent 32 in the State, may from time to time furnish to an officer prescribed by 33 the regulations for the purposes of this section notice, in writing, of an 34 address, being the address of: 35 (a) the place in the State at which the owner so resides, or 36 (b) the office in the State or, if there is more than one office in the 37 State, the principal office in the State of the owner, or 38 Page 55 Clause 122 Marine Pollution Bill 2012 Part 11 Record keeping (c) the office or place of residence in the State of the owner's agent 1 or, if the agent has more than one office in the State, the principal 2 office in the State of the agent. 3 (4) For the purposes of this section, the registered office of an owner of a 4 ship is the place or office of which an address is furnished for the time 5 being under subsection (3) as the registered office in the State of the 6 owner of the ship. 7 122 Master may be required to certify entry in oil record book (Regs 17.7 and 8 36.8 of Annex I of MARPOL) 9 The master of a ship must, if required to do so by an inspector: 10 (a) provide the inspector with a copy of any entry in the oil record 11 book for the ship specified by the inspector, and 12 (b) certify that the copy of the entry is a true copy, in the manner 13 required by the regulations. 14 Maximum penalty: $22,000. 15 123 Admissibility of certified entry in oil record book (Regs 17.7 and 36.8 of 16 Annex I of MARPOL) 17 An entry in an oil record book certified by the master of a ship is 18 admissible in any proceedings for an offence under this Act as evidence 19 of the facts stated in the entry. 20 Division 2 Requirement to carry cargo record book 21 124 Requirement to carry cargo record book (Reg 15.1 of Annex II of MARPOL) 22 (cf former Act s 21 (2) and (4)) 23 The master and the owner of a ship that is certified to carry noxious 24 liquid substances in bulk are each guilty of an offence if the ship does 25 not carry a cargo record book that complies with this Division. 26 Maximum penalty: 27 (a) in the case of an individual--$22,000, or 28 (b) in the case of a corporation--$110,000. 29 125 Form of cargo record book (Reg 15.1 of Annex II of MARPOL) (cf former Act 30 s 21 (3)) 31 (1) A cargo record book must contain the matters prescribed by the 32 regulations. 33 (2) A cargo record book must make provision for: 34 (a) a signature in relation to each entry made in it, and 35 (b) a signature on each page of it. 36 Page 56 Marine Pollution Bill 2012 Clause 126 Record keeping Part 11 126 Language of cargo record book (Reg 15.4 of Annex II of MARPOL) (cf former 1 Act s 21 (7) (a)) 2 (1) The cargo record book on an Australian ship must be written in the 3 English language. 4 (2) The cargo record book on a foreign ship must be written in the official 5 language of the country whose flag the ship is entitled to fly, or in one 6 of the official languages of that country. 7 (3) However, if that official language is not English, French or Spanish, the 8 cargo record book must also be translated into English, French or 9 Spanish. 10 127 Master must sign completed page of cargo record book (Reg 15.4 of 11 Annex II of MARPOL) (cf former Act s 21 (8)) 12 The master of a ship must sign each page of the ship's cargo record book 13 as soon as possible after it is completed. 14 Maximum penalty: $22,000. 15 128 Entries in relation to prescribed operations or occurrences (Reg 15.2 of 16 Annex II of MARPOL) (cf former Act s 21 (5)) 17 (1) The master of a ship in relation to which an operation prescribed by the 18 regulations is carried out, or an occurrence prescribed by the regulations 19 occurs, must: 20 (a) make appropriate entries in the English language in the ship's 21 cargo record book, without delay, on the date of the operation or 22 occurrence, or 23 (b) cause appropriate entries to be made in the English language in 24 the ship's cargo record book, without delay, on the date of the 25 operation or occurrence. 26 Maximum penalty: $22,000. 27 (2) The master of a ship must ensure that, if an entry is made in relation to 28 an operation or occurrence prescribed by the regulations, the entry is 29 signed by the officer or other person in charge of the operation on the 30 date of the operation or occurrence. 31 Maximum penalty: $22,000. 32 (3) In this section: 33 appropriate entry means an entry prescribed by the regulations. 34 129 Entries in relation to inspections (Reg 15.6 of Annex II of MARPOL) (cf former 35 Act s 21 (6)) 36 An inspector who inspects a ship must, without delay, make appropriate 37 entries in the ship's cargo record book in the English language. 38 Page 57 Clause 130 Marine Pollution Bill 2012 Part 11 Record keeping 130 False entries in cargo record book (Reg 15.6 of Annex II of MARPOL) (cf 1 former Act s 22) 2 A person must not make an entry that is false or misleading in a material 3 particular in the cargo record book of a ship. 4 Maximum penalty: $22,000. 5 131 Cargo record book to be retained on ship for one year (Reg 15.5 of Annex 6 II of MARPOL) (cf former Act s 23) 7 The master and the owner of a ship are each guilty of an offence if the 8 ship's cargo record book: 9 (a) is not retained on the ship at least until the expiration of a period 10 of one year after the day on which the last entry was made in the 11 book, and 12 (b) is not made readily available for inspection at all reasonable 13 times at least until the expiration of that period. 14 Maximum penalty: 15 (a) in the case of an individual--$22,000, or 16 (b) in the case of a corporation--$110,000. 17 132 Cargo record book to be retained for two years (Reg 15.5 of Annex II of 18 MARPOL) (cf former Act s 23) 19 (1) The owner of a ship must ensure that the ship's cargo record book is, at 20 least until the expiration of a period of two years after the day on which 21 the last entry was made in the book: 22 (a) retained: 23 (i) on the ship, or 24 (ii) at the registered office in the State of the owner, or 25 (b) if the owner does not reside in the State and does not have an 26 office or agent in the State, deposited with an officer prescribed 27 by the regulations for the purposes of this section. 28 Maximum penalty: 29 (a) in the case of an individual--$22,000, or 30 (b) in the case of a corporation--$110,000. 31 (2) The owner of a ship must ensure that the ship's cargo record book is 32 made readily available for inspection at all reasonable times at least 33 until the expiration of the period referred to in subsection (1). 34 Maximum penalty: 35 (a) in the case of an individual--$22,000, or 36 (b) in the case of a corporation--$110,000. 37 Page 58 Marine Pollution Bill 2012 Clause 133 Record keeping Part 11 (3) The owner of a ship who resides in the State, or has an office or agent 1 in the State, may from time to time furnish to an officer prescribed by 2 the regulations for the purposes of this section notice, in writing, of an 3 address, being the address of: 4 (a) the place in the State at which the owner so resides, or 5 (b) the office in the State or, if there is more than one office in the 6 State, the principal office in the State of the owner, or 7 (c) the office or place of residence in the State of the owner's agent 8 or, if the agent has more than one office in the State, the principal 9 office in the State of the agent. 10 (4) For the purposes of this section, the registered office of an owner of a 11 ship is the place or office for which an address is furnished for the time 12 being under subsection (3) as the registered office in the State of the 13 owner of the ship. 14 133 Master may be required to certify entry in cargo record book (Reg 15.6 of 15 Annex II of MARPOL) 16 The master of a ship must, if required to do so by an inspector: 17 (a) provide the inspector with a copy of any entry in the cargo record 18 book for the ship specified by the inspector, and 19 (b) certify that the copy of the entry is a true copy, in the manner 20 required by the regulations. 21 Maximum penalty: $8,800. 22 134 Admissibility of certified entry in cargo record book (Reg 15.6 of Annex II of 23 MARPOL) 24 An entry in a cargo record book certified by the master of a ship is 25 admissible in any proceedings for an offence under this Act as evidence 26 of the facts stated in the entry. 27 Division 3 Requirement to carry garbage record book 28 135 Requirement to carry garbage record book on board ship (Reg 9.3 of 29 Annex V of MARPOL) 30 (1) The master and the owner of a large ship are each guilty of an offence 31 if the ship does not carry a garbage record book that complies with this 32 Division. 33 Maximum penalty: 34 (a) in the case of an individual--$5,500, or 35 (b) in the case of a corporation--$22,000. 36 Page 59 Clause 136 Marine Pollution Bill 2012 Part 11 Record keeping (2) However, the master and the owner of a ship the subject of a waiver 1 under section 137 do not commit an offence in relation to a voyage by 2 the ship of one hour or less in duration. 3 136 Requirement to carry garbage record book on platform (Reg 9.3 of 4 Annex V of MARPOL) 5 The owner of a platform must ensure that a garbage record book that 6 complies with this Division is carried on the platform. 7 Maximum penalty: 8 (a) in the case of an individual--$5,500, or 9 (b) in the case of a corporation--$22,000. 10 137 Minister may waive requirement to carry garbage record book (Reg 9.4 of 11 Annex V of MARPOL) 12 The Minister may, on application in writing from the master or the 13 owner of a large ship that is certified to carry more than 15 persons, 14 waive the requirement to carry a garbage record book in relation to any 15 voyage by the ship of one hour or less in duration. 16 138 Form of garbage record book (Reg 9.3 of Annex V of MARPOL) 17 (1) A garbage record book must contain the matters prescribed by the 18 regulations. 19 (2) A garbage record book must make provision for: 20 (a) a signature in relation to each entry made in it, and 21 (b) a signature on each page of it. 22 139 Language of garbage record book (Reg 9.3.a of Annex V of MARPOL) 23 (1) The garbage record book on an Australian ship must be written in the 24 English language. 25 (2) The garbage record book on a foreign ship must be written in the official 26 language of the country whose flag the ship is entitled to fly, or in one 27 of the official languages of that country. 28 (3) However, if that official language is not English, French or Spanish, the 29 garbage record book must also be translated into English, French or 30 Spanish. 31 140 Master must sign completed page of garbage record book (Reg 9.3.a of 32 Annex V of MARPOL) 33 The master of a ship must sign each page of the ship's garbage record 34 book as soon as possible after it is completed. 35 Maximum penalty: $5,500. 36 Page 60 Marine Pollution Bill 2012 Clause 141 Record keeping Part 11 141 Entries in relation to prescribed operations or occurrences (Reg 9.3 of 1 Annex V of MARPOL) 2 (1) The master of a ship in relation to which an operation prescribed by the 3 regulations is carried out, or an occurrence prescribed by the regulations 4 occurs, must: 5 (a) make appropriate entries in the English language in the ship's 6 garbage record book, without delay, on the date of the operation 7 or occurrence, or 8 (b) cause appropriate entries to be made without delay in the English 9 language in the ship's garbage record book on the date of the 10 operation or occurrence. 11 Maximum penalty: $22,000. 12 (2) The master of a ship must ensure that any entry made in relation to an 13 operation or occurrence prescribed by the regulations is signed by the 14 officer or other person in charge of the operation on the date of the 15 operation or occurrence. 16 Maximum penalty: $22,000. 17 (3) In this section: 18 appropriate entry means an entry prescribed by the regulations. 19 142 Entries in relation to inspections (Reg 9.5 of Annex V of MARPOL) 20 An inspector who inspects a ship must, without delay, make appropriate 21 entries in the English language in the ship's garbage record book. 22 143 False entries in garbage record book (Reg 9.5 of Annex V of MARPOL) 23 A person must not make an entry that is false or misleading in a material 24 particular in a garbage record book of a ship or platform. 25 Maximum penalty: $22,000. 26 144 Garbage record book to be retained on ship for one year (Reg 9.3.c of 27 Annex V of MARPOL) 28 The master and the owner of a ship are each guilty of an offence if the 29 ship's garbage record book: 30 (a) is not retained on the ship at least until the expiration of a period 31 of one year after the day on which the last entry was made in the 32 book, and 33 Page 61 Clause 145 Marine Pollution Bill 2012 Part 11 Record keeping (b) is not made readily available for inspection at all reasonable 1 times at least until the expiration of that period. 2 Maximum penalty: 3 (a) in the case of an individual--$5,500, or 4 (b) in the case of a corporation--$22,000. 5 145 Garbage record book to be retained (Reg 9.3.c of Annex V of MARPOL) 6 (1) The owner of a ship must ensure that the ship's garbage record book is, 7 at least until the expiration of a period of one year after the day on which 8 the last entry was made in the book: 9 (a) retained: 10 (i) on the ship, or 11 (ii) at the registered office in the State of the owner, or 12 (b) if the owner does not reside in the State and does not have an 13 office or agent in the State, deposited with an officer prescribed 14 by the regulations for the purposes of this section. 15 Maximum penalty: 16 (a) in the case of an individual--$5,500, or 17 (b) in the case of a corporation--$22,000. 18 (2) The owner of a ship must ensure that the ship's garbage record book is 19 made readily available for inspection at all reasonable times at least 20 until the expiration of the period referred to in subsection (1). 21 Maximum penalty: 22 (a) in the case of an individual--$5,500, or 23 (b) in the case of a corporation--$22,000. 24 (3) The owner of a ship who resides in the State, or has an office or agent 25 in the State, may from time to time furnish to an officer prescribed by 26 the regulations for the purposes of this section notice, in writing, of an 27 address, being the address of: 28 (a) the place in the State at which the owner so resides, or 29 (b) the office in the State or, if there is more than one office in the 30 State, the principal office in the State of the owner, or 31 (c) the office or place of residence in the State of the owner's agent 32 or, if the agent has more than one office in the State, the principal 33 office in the State of the agent. 34 (4) For the purposes of this section, the registered office of an owner of a 35 ship is the place or office for which an address is furnished for the time 36 being under subsection (3) as the registered office in the State of the 37 owner of the ship. 38 Page 62 Marine Pollution Bill 2012 Clause 146 Record keeping Part 11 146 Master may be required to certify entry in garbage record book (Reg 9.5 1 of Annex V of MARPOL) 2 The master of a ship must, if required to do so by an inspector: 3 (a) provide the inspector with a copy of any entry in the garbage 4 record book for the ship specified by the inspector, and 5 (b) certify that the copy of the entry is a true copy, in the manner 6 required by the regulations. 7 Maximum penalty: $8,800. 8 147 Admissibility of certified entry in garbage record book (Reg 9.5 of Annex V 9 of MARPOL) 10 An entry in a garbage record book certified by the master of a ship is 11 admissible in any proceedings for an offence under this Act as evidence 12 of the facts stated in the entry. 13 Page 63 Clause 148 Marine Pollution Bill 2012 Part 12 Certification of construction of ships Part 12 Certification of construction of ships 1 Division 1 Regulations relating to construction of ships 2 148 Regulations relating to construction of ships (Chapters 3 and 4 of Annex I, 3 Regulations 11 and 12 of Annex II, Regulations 1.3 and 2-6 of Annex III and 4 Regulations 2.2, 4 and 11 of Annex IV, of MARPOL) (cf former Act ss 35 and 40) 5 (1) The regulations may make provision for and in relation to giving effect 6 to any of the following: 7 (a) Chapters 3 and 4 of Annex I of MARPOL, 8 (b) Regulations 11 and 12 of Annex II of MARPOL, 9 (c) Regulations 1.3 and 2-6 of Annex III of MARPOL, 10 (d) Regulations 2.2, 4 and 11 of Annex IV of MARPOL. 11 (2) Without limiting the generality of subsection (1), regulations made for 12 the purposes of that subsection may empower the Minister to make 13 orders with respect to any matter for or in relation to which provision 14 may be made by the regulations by virtue of this section. 15 149 References to compliance with Annexes of MARPOL (cf former Act s 33 (3)) 16 For the purposes of this Part: 17 (a) a ship is taken to comply with the provisions of Annex I of 18 MARPOL only if it complies with the regulations and orders 19 referred to in section 148 (1) (a), and 20 (b) a ship is taken to comply with the provisions of Annex II of 21 MARPOL only if it complies with the regulations and orders 22 referred to in section 148 (1) (b), and 23 (c) a ship is taken to comply with the provisions of Annex IV of 24 MARPOL only if it complies with the regulations and orders 25 referred to in section 148 (1) (d). 26 Division 2 Requirement for certification of certain ships 27 150 Requirement for ship construction certificate (Chapter 2 of Annex I of 28 MARPOL) (cf former Act s 39) 29 (1) The master of a prescribed ship must not begin a voyage unless there is 30 a ship construction certificate in force in respect of the ship. 31 Maximum penalty: $11,000 or imprisonment for 4 years, or both. 32 Page 64 Marine Pollution Bill 2012 Clause 151 Certification of construction of ships Part 12 (2) The owner of a prescribed ship must not permit the ship to begin a 1 voyage unless a ship construction certificate is in force in respect of the 2 ship. 3 Maximum penalty: 4 (a) in the case of an individual--$11,000 or imprisonment for 5 4 years, or both, or 6 (b) in the case of a corporation--$55,000. 7 (3) The owner of a prescribed ship in respect of which a ship construction 8 certificate is in force must ensure that the certificate is carried on board 9 the ship. 10 Maximum penalty: $1,100. 11 (4) In this section: 12 prescribed ship means an oil tanker that has a gross tonnage of 150 or 13 more, or that is a ship, other than an oil tanker, that has a gross tonnage 14 of 400 or more, that is: 15 (a) a trading ship proceeding on an intra-state voyage, or 16 (b) an Australian fishing vessel proceeding on a voyage other than an 17 overseas voyage, or 18 (c) a pleasure vessel. 19 ship construction certificate means: 20 (a) a NSW ship construction certificate, or 21 (b) a ship construction certificate issued under section 267B of the 22 Navigation Act 1912 of the Commonwealth, or 23 (c) a ship construction certificate issued under a law of another State 24 or the Northern Territory and being a certificate of a kind 25 prescribed by the regulations as acceptable for the purposes of 26 this Part, or 27 (d) an International Oil Pollution Prevention Certificate issued to a 28 foreign ship under section 267C of the Navigation Act 1912 of the 29 Commonwealth, or 30 (e) an International Oil Pollution Prevention Certificate issued to an 31 Australian ship under the law of a country other than Australia 32 giving effect to Regulation 8 of Annex I of MARPOL. 33 151 Requirement for chemical tanker construction certificate (Reg 9.1 of 34 Annex II of MARPOL) (cf former Act s 44) 35 (1) The master of a prescribed ship must not begin a voyage unless there is 36 a chemical tanker construction certificate in force in respect of the ship. 37 Maximum penalty: $11,000 or imprisonment for 4 years, or both. 38 Page 65 Clause 152 Marine Pollution Bill 2012 Part 12 Certification of construction of ships (2) The owner of a prescribed ship must not permit the ship to begin a 1 voyage unless a chemical tanker construction certificate is in force in 2 respect of the ship. 3 Maximum penalty: 4 (a) in the case of an individual--$11,000 or imprisonment for 5 4 years, or both, or 6 (b) in the case of a corporation--$55,000. 7 (3) The owner of a prescribed ship in respect of which a chemical tanker 8 construction certificate is in force must ensure that the certificate is 9 carried on board the ship. 10 Maximum penalty: $1,100. 11 (4) In this section: 12 chemical tanker construction certificate means: 13 (a) a NSW chemical tanker construction certificate, or 14 (b) a chemical tanker construction certificate issued under 15 section 267Q of the Navigation Act 1912 of the Commonwealth, 16 or 17 (c) a chemical tanker construction certificate issued under a law of 18 another State or the Northern Territory and being a certificate of 19 a kind prescribed by the regulations as acceptable for the 20 purposes of this Part, or 21 (d) an International Pollution Prevention Certificate for the Carriage 22 of Noxious Liquid Substances in Bulk issued to a foreign ship 23 under section 267R of the Navigation Act 1912 of the 24 Commonwealth. 25 prescribed ship means: 26 (a) a trading ship proceeding on an intra-state voyage, or 27 (b) an Australian fishing vessel proceeding on a voyage other than an 28 overseas voyage, or 29 (c) a pleasure vessel, 30 that is: 31 (d) carrying noxious liquid substances in bulk, and 32 (e) engaged in a voyage to a port or terminal in the State. 33 152 Requirement for sewage pollution prevention certificate (Reg 5 of Annex 34 IV of MARPOL) 35 (1) The master of a large ship must not begin a voyage unless there is a 36 sewage pollution prevention certificate in force in respect of the ship. 37 Maximum penalty: $11,000 or imprisonment for 4 years, or both. 38 Page 66 Marine Pollution Bill 2012 Clause 153 Certification of construction of ships Part 12 (2) The owner of a large ship must not permit the ship to begin a voyage 1 unless a sewage pollution prevention certificate is in force in respect of 2 the ship. 3 Maximum penalty: 4 (a) in the case of an individual--$11,000 or imprisonment for 5 4 years, or both, or 6 (b) in the case of a corporation--$55,000. 7 (3) The owner of a large ship in respect of which a sewage pollution 8 prevention certificate is in force must ensure that the certificate is 9 carried on board the ship. 10 Maximum penalty: $1,100. 11 (4) In this section: 12 sewage pollution prevention certificate means: 13 (a) a NSW sewage pollution prevention certificate, or 14 (b) an International Sewage Pollution Prevention Certificate for 15 Australian ships issued under section 267ZG of the Navigation 16 Act 1912 of the Commonwealth, or 17 (c) a sewage pollution prevention certificate issued under a law of 18 another State or the Northern Territory and being a certificate of 19 a kind prescribed by the regulations as acceptable for the 20 purposes of this Part, or 21 (d) an International Sewage Pollution Prevention Certificate issued 22 to a foreign ship under section 267ZH of the Navigation Act 1912 23 of the Commonwealth, or 24 (e) an International Sewage Pollution Prevention Certificate issued 25 to an Australian ship under the law of a country other than 26 Australia giving effect to Regulation 5 of Annex IV of 27 MARPOL. 28 Division 3 Local certification 29 153 Application for NSW certificate 30 The master or owner of a ship may apply to the Minister for a NSW 31 certificate. 32 Page 67 Clause 154 Marine Pollution Bill 2012 Part 12 Certification of construction of ships 154 Ship to be surveyed (Reg 6.1.1 of Annex I, Reg 8.1.1 of Annex II, and Reg 4.1.1 of 1 Annex IV, of MARPOL) 2 The master or owner of a ship who has made an application for a NSW 3 certificate to be issued under this Part must: 4 (a) cause the structure, equipment, systems, fittings, arrangements 5 and materials of the ship to be surveyed by the Minister for the 6 purpose of ensuring its compliance with the relevant provisions 7 of MARPOL, or 8 (b) provide the Minister with declarations of survey of the structure, 9 equipment, systems, fittings, arrangements and materials of the 10 ship conducted by another Administration (within the meaning of 11 the relevant provisions of MARPOL) or by a survey authority. 12 155 Issue of NSW certificates (Reg 7.1 of Annex I, Reg 8.1 of Annex II and Reg 6.1 of 13 Annex IV, of MARPOL) (cf former Act ss 36 and 41) 14 (1) The Minister may issue a NSW ship construction certificate in relation 15 to a ship only if: 16 (a) the Minister receives declarations of survey in respect of the ship 17 (whether conducted under section 154 or provided under that 18 section), and 19 (b) the Minister is satisfied that the ship is constructed in accordance 20 with Annex I of MARPOL and the ship's structure, equipment, 21 systems, fittings, arrangements and material fully comply with 22 the relevant provisions of MARPOL. 23 (2) The Minister may issue a NSW chemical tanker construction certificate 24 in relation to a ship only if: 25 (a) the Minister receives declarations of survey in respect of the ship 26 (whether conducted under section 154 or provided under that 27 section), and 28 (b) the Minister is satisfied that the ship is constructed in accordance 29 with Annex II of MARPOL and the ship's structure, equipment, 30 systems, fittings, arrangements and material fully comply with 31 the relevant provisions of MARPOL. 32 (3) The Minister may issue a NSW sewage pollution prevention certificate 33 in relation to a ship only if: 34 (a) the Minister receives declarations of survey in respect of the ship 35 (whether conducted under section 154 or provided under that 36 section), and 37 (b) the Minister is satisfied that the ship is constructed in accordance 38 with Annex IV of MARPOL and the ship's structure, equipment, 39 Page 68 Marine Pollution Bill 2012 Clause 156 Certification of construction of ships Part 12 systems, fittings, arrangements and material fully comply with 1 the relevant provisions of MARPOL. 2 (4) The Minister may issue a NSW certificate in relation to the ship whether 3 or not the ship is required by the relevant provisions of MARPOL to be 4 constructed in accordance with those provisions. 5 156 Duration of NSW certificate (Reg 10.1 of Annex I, Reg 10 of Annex II and Reg 8 6 of Annex IV, of MARPOL) 7 A NSW certificate has force for 5 years, unless it is cancelled sooner. 8 Division 4 Surveys after accident or discovery of defect 9 157 Duty of master and owner to notify Minister of certain accidents (Reg 10 6.4.3 of Annex I, Reg 8.3.3 of Annex II and Reg 4.9 of Annex IV, of MARPOL) 11 The master and the owner of a ship in respect of which a NSW 12 certificate is in force that is involved in an accident that substantially 13 affects the integrity of the ship or the efficiency or completeness of its 14 equipment must notify the Minister of the accident without delay and in 15 the manner prescribed by the regulations. 16 Maximum penalty: 17 (a) in the case of an individual--$1,100, or 18 (b) in the case of a corporation--$5,500. 19 158 Duty of master and owner to notify Minister of certain defects (Reg 6.4.3 20 of Annex I, Reg 8.3.3 of Annex II and Reg 4.9 of Annex IV, of MARPOL) 21 The master and the owner of a ship in respect of which a NSW 22 certificate is in force that is discovered to have a defect that substantially 23 affects the integrity of the ship or the efficiency or completeness of its 24 equipment must notify the Minister of the defect without delay and in 25 the manner prescribed by the regulations. 26 Maximum penalty: 27 (a) in the case of an individual--$1,100, or 28 (b) in the case of a corporation--$5,500. 29 159 Minister may investigate ship or require survey after notifiable accident 30 or defect (Reg 6.4.3 of Annex I, Reg 8.3.3 of Annex II and Reg 4.9 of Annex IV, of 31 MARPOL) 32 (1) The Minister may investigate a ship, to determine whether or not a 33 survey is necessary, if the Minister is notified of an accident or defect 34 under this Division, or otherwise becomes aware of such an accident or 35 defect. 36 Page 69 Clause 160 Marine Pollution Bill 2012 Part 12 Certification of construction of ships (2) The Minister may direct the owner of a ship to cause the ship to be 1 surveyed if the Minister determines that a survey is required. 2 160 Ships to be surveyed after accident or discovery of defect (Reg 6.4.3 of 3 Annex I, Reg 8.3.3 of Annex II and Reg 4.9 of Annex IV, of MARPOL) 4 The owner of a ship in relation to which the Minister has made a 5 direction under section 159 must cause the structure, equipment, 6 systems, fittings, arrangements and material of the ship to be surveyed 7 for the purpose of ensuring its compliance with the relevant provisions 8 of MARPOL. 9 Maximum penalty: 10 (a) in the case of an individual--$2,200, or 11 (b) in the case of a corporation--$11,000. 12 Division 5 Approval of major changes to NSW certified ship 13 161 Changes to construction of ships must be notified and pre-approved 14 (Reg 6.4.2 of Annex I, Reg 8.3.2 of Annex II and Reg 4.1.3 of Annex IV, of MARPOL) 15 (1) The master and the owner of a ship in respect of which a NSW 16 certificate is in force are each guilty of an offence if the structure, 17 equipment, systems, fittings, arrangements or material covered by a 18 previous survey is changed in any way unless: 19 (a) notice was given in writing, in the form approved by the 20 regulations, of the change to the person prescribed by the 21 regulations, and 22 (b) the Minister approved the change before it was made. 23 Maximum penalty: 24 (a) in the case of an individual--$2,200, or 25 (b) in the case of a corporation--$11,000. 26 (2) This section does not apply to a change that involves the direct 27 replacement of any equipment or fittings. 28 162 Minister may investigate ship or require survey after notice of proposed 29 change (Reg 6.4.3 of Annex I, Reg 8.3.3 of Annex II and Reg 4.1.3 of Annex IV, of 30 MARPOL) 31 (1) The Minister may investigate to determine whether or not a survey is 32 necessary if the Minister is notified of a proposed change under section 33 161, or otherwise becomes aware of such a change. 34 (2) The Minister may direct the owner of a ship to cause the ship to be 35 surveyed if the Minister determines that a survey is required. 36 Page 70 Marine Pollution Bill 2012 Clause 163 Certification of construction of ships Part 12 163 Ships to be surveyed after notice given of proposed change (Reg 6.4.3 of 1 Annex I, Reg 8.3.3 of Annex II and Reg 4.1.3 of Annex IV, of MARPOL) 2 The owner of a ship in relation to which the Minister has made a 3 direction under section 162 must cause the structure, equipment, 4 systems, fittings, arrangements and material of the ship to be surveyed 5 for the purpose of ensuring its compliance with the relevant provisions 6 of MARPOL. 7 Maximum penalty: 8 (a) in the case of an individual--$2,200, or 9 (b) in the case of a corporation--$11,000. 10 Division 6 Annual surveying of ships 11 164 Ships to be surveyed annually (Reg 6.1.4 of Annex I and Reg 8.1.4 of Annex II 12 of MARPOL) (cf former Act s 38) 13 The owner of a ship in respect of which a NSW certificate issued under 14 this Part is in force must cause the structure, equipment, systems, 15 fittings, arrangements and material of the ship to be surveyed for the 16 purpose of ensuring its compliance with the relevant provisions of 17 MARPOL at least once every 12 months. 18 Maximum penalty: 19 (a) in the case of an individual--$2,200, or 20 (b) in the case of a corporation--$11,000. 21 Division 7 Renewal of local certification 22 165 Application for renewal of NSW certificate 23 The master or owner of a ship may apply to the Minister for the renewal 24 of a NSW certificate in force in relation to the ship. 25 166 Ship to be surveyed before renewal (Reg 6.1.2 of Annex I, Reg 8.1.2 of 26 Annex II and Reg 4.1.2 of Annex IV, of MARPOL) 27 The master or owner of a ship who has made an application for the 28 renewal of a NSW certificate must: 29 (a) cause the structure, equipment, systems, fittings, arrangements 30 and material of the ship to be surveyed by the Minister for the 31 purpose of ensuring its compliance with the provisions of 32 Annex I of MARPOL, or 33 (b) provide the Minister with declarations of survey of the structure, 34 equipment, systems, fittings, arrangements and material of the 35 ship conducted by another Administration (within the meaning of 36 Article 2 of the Protocol to MARPOL) or by a survey authority. 37 Page 71 Clause 167 Marine Pollution Bill 2012 Part 12 Certification of construction of ships 167 Renewal of NSW certificates (Reg 6.1.2 of Annex I, Reg 8.1.2 of Annex II and 1 Reg 8 of Annex IV, of MARPOL) 2 (1) The Minister may renew a NSW certificate in relation to a ship only if: 3 (a) the Minister receives declarations of survey in respect of a ship 4 (whether conducted under section 166 or provided for under that 5 section), and 6 (b) the Minister is satisfied that the ship is constructed in accordance 7 with the relevant provisions of MARPOL and the ship's 8 structure, equipment, systems, fittings, arrangements and 9 material fully comply with the relevant provisions of MARPOL. 10 (2) The Minister may renew a NSW ship construction certificate in relation 11 to the ship whether or not the ship is required by the relevant provisions 12 of MARPOL to be constructed in accordance with those provisions. 13 168 Extension of NSW certificates (Reg 10.5 of Annex I, Reg 10.5 of Annex II and 14 Reg 8.5 of Annex IV, of MARPOL) 15 (1) If a ship in respect of which a NSW certificate is in force is not in a port 16 in which it is to be surveyed at the time when the certificate expires, the 17 Minister may extend the period of validity of the certificate by notice in 18 writing. 19 (2) The Minister must only extend the period for the purpose of allowing 20 the ship to complete its voyage to the port in which it is to be surveyed, 21 and then only in cases where it appears proper and reasonable to do so. 22 (3) Without limiting subsection (2), a certificate must not be extended for a 23 period longer than 3 months. 24 (4) An extension under this section ceases to apply once the ship arrives at 25 the port at which it is to be surveyed. 26 Division 8 Cancellation of local certification 27 169 Cancellation of NSW certificate (Reg 10.9 of Annex I, Reg 10.9 of Annex II and 28 Reg 8.8 of Annex IV, of MARPOL) 29 The Minister may, by instrument in writing, cancel a NSW certificate 30 for a ship if the Minister has reason to believe that: 31 (a) the report of a surveyor concerning the ship was fraudulently or 32 erroneously made or obtained, or 33 (b) a NSW certificate has been issued in respect of the ship based on 34 false or erroneous information, or 35 (c) the construction of the ship has been altered, or the ship has been 36 damaged, in a manner that affects its compliance with the 37 relevant provisions of MARPOL, or 38 Page 72 Marine Pollution Bill 2012 Clause 170 Certification of construction of ships Part 12 (d) the owner of a ship in respect of which a NSW certificate is in 1 force has failed to comply with section 154, 160 or 163 in respect 2 of the ship. 3 170 Cancelled NSW certificate has no effect 4 A NSW certificate that has been cancelled is of no effect after the 5 Minister has given notice in writing of the cancellation addressed to the 6 owner, agent or master of the ship and that notice is served in 7 accordance with the regulations. 8 171 Surrender of cancelled NSW certificate 9 The notice given under section 170 may require the NSW certificate to 10 be delivered to the Minister or to any other person whom the Minister 11 specifies, and the Minister may detain the ship until that requirement is 12 complied with. 13 172 Detained ship must not leave port 14 (1) The master and the owner of a ship detained under this Division are each 15 guilty of an offence if the ship departs the port or other place at which 16 it is detained before it is released from detention. 17 Maximum penalty: 18 (a) in the case of an individual--$55,000, or 19 (b) in the case of a corporation--$110,000. 20 (2) A person is not guilty of an offence under this section if the person can 21 establish that he or she was not aware that the ship had been detained. 22 Page 73 Clause 173 Marine Pollution Bill 2012 Part 13 Ships must be insured against damage by discharge of oil Part 13 Ships must be insured against damage by 1 discharge of oil 2 173 Application of Part (cf former Act s 13A (1)) 3 This Part does not apply to: 4 (a) the following ships unless the regulations declare otherwise: 5 (i) a ship that has a gross tonnage of 400 or more, 6 (ii) a ship used wholly for the purpose of recreational or 7 sporting activities and not for hire or reward, 8 (iii) a ship less than 30 metres in length, 9 (iv) a seaplane, 10 (v) a Government ship, other than a Government ship that is 11 being used for commercial purposes, or 12 (b) a ship of any class declared by the regulations to be a class of 13 exempt ship for the purposes of this Part, or 14 (c) a particular ship declared to be an exempt ship for the purposes 15 of this Part by written notice of the Minister given to the owner 16 or master of the ship. 17 174 Ships must be insured against oil pollution (cf former Act s 13B (2) and (3)) 18 (1) The master and the owner of a ship are each guilty of an offence if the 19 ship is in State waters without having adequate insurance. 20 Maximum penalty: 21 (a) in the case of an individual--$55,000, or 22 (b) in the case of a corporation--$110,000. 23 (2) In this section: 24 adequate insurance in relation to a ship means: 25 (a) such insurance or financial security against damage that may be 26 caused by a discharge of oil or a mixture containing oil as the 27 Minister: 28 (i) determines, by order, is adequate in relation to a particular 29 ship or class of ships, or 30 (ii) approves in relation to a particular ship, and notifies in 31 writing to the owner or master of the ship, or 32 (b) if a ship is required by the Protection of the Sea (Civil Liability) 33 Act 1981 of the Commonwealth to carry a relevant insurance 34 certificate on board, such a certificate in respect of the ship that 35 is in force. 36 Page 74 Marine Pollution Bill 2012 Clause 175 Ships must be insured against damage by discharge of oil Part 13 relevant insurance certificate has the same meaning as in the 1 Protection of the Sea (Civil Liability) Act 1981 of the Commonwealth. 2 175 Ships must carry evidence of insurance (cf former Act s 13B (2) and (3)) 3 The master and the owner of a ship are each guilty of an offence if the 4 ship is in State waters without carrying on board evidence of the 5 insurance required by section 174. 6 Maximum penalty: 7 (a) in the case of an individual--$55,000, or 8 (b) in the case of a corporation--$110,000. 9 176 Ship may be detained (cf former Act s 13B (4)) 10 An inspector may detain a ship in a port or at some other place if the 11 inspector believes on reasonable grounds that the ship does not have 12 adequate insurance as required by section 174, or is not carrying on 13 board evidence of that insurance as required by section 175. 14 177 Detained ship must not leave port (cf former Act s 13B (5) and (6)) 15 (1) The master and the owner of a ship detained under this Part are each 16 guilty of an offence if the ship departs the port or other place at which 17 it is detained before it is released from detention. 18 Maximum penalty: 19 (a) in the case of an individual--$55,000, or 20 (b) in the case of a corporation--$110,000. 21 (2) A person is not guilty of an offence under this section if the person can 22 establish that he or she was not aware that the ship had been detained. 23 Page 75 Clause 178 Marine Pollution Bill 2012 Part 14 Reception facilities for collecting waste Part 14 Reception facilities for collecting waste 1 Division 1 Minister may provide reception facilities 2 178 Minister may arrange for provision of reception facilities (cf former Act 3 s 45) 4 The Minister may provide, join with any other person (including the 5 Crown) in providing, arrange for the provision of, or direct the 6 provision of: 7 (a) reception facilities for oil residues, and mixtures containing oil or 8 oil residues, in accordance with Regulation 38 of Annex I of 9 MARPOL, and 10 (b) reception facilities for residues of noxious liquid substances, and 11 mixtures containing residues of noxious liquid substances, in 12 accordance with Regulation 18 of Annex II of MARPOL, and 13 (c) reception facilities for sewage, and mixtures containing sewage, 14 in accordance with Regulation 12 of Annex IV of MARPOL, and 15 (d) reception facilities for garbage, and mixtures containing garbage 16 in accordance with Regulation 7 of Annex V of MARPOL. 17 179 Regulations concerning reception facilities (cf former Act s 45 (2)) 18 The regulations may fix charges and impose conditions for the use of 19 reception facilities provided or arranged under this Part. 20 Division 2 Minister may direct persons to provide reception 21 facilities 22 180 Minister may require person to provide, maintain and make available 23 reception facilities (cf former Act s 45 (4)) 24 (1) The Minister may serve a written notice on the owner or occupier of a 25 reception facility prescribed by the regulations, requiring that owner or 26 occupier: 27 (a) provide facilities of a standard satisfactory to the Minister for the 28 reception or disposal, or both, of waste prescribed by the 29 regulations from or by ships berthed, docked or otherwise being 30 at the establishment, and 31 (b) maintain the facilities in good order and condition, and 32 (c) make the facilities available to enable ships to dispose of the 33 waste prescribed by the regulations. 34 Page 76 Marine Pollution Bill 2012 Clause 181 Reception facilities for collecting waste Part 14 (2) In this section: 1 prescribed waste means any of the following: 2 (a) oil or residues of oil, 3 (b) noxious liquid substances or residues of noxious liquid 4 substances, 5 (c) sewage or residues of sewage, 6 (d) garbage or residues of garbage. 7 reception facility means any of the following: 8 (a) an oil terminal, oil depot, oil installation or other establishment 9 used for the loading or unloading of oil or oil residues, 10 (b) a terminal, depot, installation or other establishment used for the 11 loading or unloading of other prescribed waste, 12 (c) any establishment at which ships are repaired or other work is 13 performed relating to ships and involving the disposal of 14 prescribed waste. 15 181 Owner or occupier must comply with requirement relating to reception 16 facilities (cf former Act s 45 (6)) 17 An owner or occupier of a reception facility prescribed by the 18 regulations under section 180 must comply with a requirement made by 19 a notice served on the owner or occupier under this Part. 20 Maximum penalty: $110,000. 21 182 Notices (cf former Act s 45 (5)) 22 A notice served under this Part: 23 (a) must be served on the owner or occupier of the reception facility 24 prescribed by the regulations under section 180 to which it 25 relates: 26 (i) in any manner in which a summons or other process for an 27 offence against this Act may be served, or 28 (ii) by delivering it to the owner or the occupier or the person 29 appearing to be in charge of the prescribed reception 30 facility, and 31 (b) may specify a time within which the requirement is to be 32 complied with, and 33 (c) may be revoked or varied by a further written notice. 34 Page 77 Clause 183 Marine Pollution Bill 2012 Part 15 Minister may take action to prevent or clean up pollution Part 15 Minister may take action to prevent or clean up 1 pollution 2 183 Minister may take action to prevent or clean up marine pollution (cf 3 former Act ss 46 (1) and 47 (1)) 4 (1) The Minister may take any preventative or clean-up action that the 5 Minister thinks fit, or cause any preventative or clean-up action that the 6 Minister thinks fit to be taken, if the Minister is of the opinion that: 7 (a) a relevant discharge of a marine pollutant has occurred or is 8 occurring, or 9 (b) there is a probability of a relevant discharge of a marine pollutant 10 occurring. 11 (2) For this purpose, an inspector, officer, employee or agent of the 12 Minister, using such force as is necessary, may: 13 (a) enter, take and retain possession of any ship, place, apparatus, 14 facility or pipeline, and 15 (b) take and retain possession of any substance or thing, and 16 (c) use and operate any apparatus or machinery, and 17 (d) do all such things as are necessary for the purpose of causing a 18 marine pollution prevention notice to be complied with. 19 (3) In this section: 20 preventative or clean-up action means action: 21 (a) to prevent or limit a discharge, or 22 (b) to disperse or contain any marine pollutant that has been 23 discharged, or 24 (c) to remove any marine pollutant from waters or land affected by 25 any discharge, or 26 (d) to minimise the damage from pollution resulting from or likely to 27 result from any discharge. 28 relevant discharge of a marine pollutant means: 29 (a) a discharge of oil: 30 (i) from a ship, or 31 (ii) from a place on land in, or in connection with, a transfer 32 operation, or 33 (iii) from any apparatus or purpose-built pipeline used in, or in 34 connection with, a transfer operation, whether or not it is 35 being so used, or 36 Page 78 Marine Pollution Bill 2012 Clause 184 Minister may take action to prevent or clean up pollution Part 15 (b) a discharge of a noxious liquid substance: 1 (i) from a ship, or 2 (ii) from a place on land in, or in connection with, a transfer 3 operation, or 4 (iii) from any apparatus or purpose-built pipeline used in, or in 5 connection with, a transfer operation, whether or not it is 6 being so used, or 7 (c) the jettisoning of a harmful substance in packaged form from a 8 ship, or 9 (d) a discharge of sewage from a large ship, or 10 (e) a discharge of garbage from a ship. 11 184 Recovery of costs and expenses of preventative action or clean-up 12 action (cf former Act ss 46 (2) and 47 (2)) 13 (1) The Minister may recover all costs and expenses incurred by the 14 Minister in respect of action taken by or on behalf of the Minister under 15 this Part from: 16 (a) in the case of a discharge or probable discharge of a marine 17 pollutant from a ship: 18 (i) the owner or master of the ship concerned, or 19 (ii) any other person whose act caused the discharge or 20 probable discharge, or 21 (b) in the case of a discharge or probable discharge of oil or a noxious 22 liquid substance from an apparatus on a ship in, or in connection 23 with, a transfer operation: 24 (i) the owner of the ship, or 25 (ii) the master of the ship, or 26 (iii) the owner of the apparatus, or 27 (iv) the person in charge of the apparatus, or 28 (v) any other person whose act caused the discharge or 29 probable discharge, or 30 (c) in the case of a discharge or probable discharge of oil or a noxious 31 liquid substance from a ship in, or in connection with, a transfer 32 operation: 33 (i) the owner of the ship, or 34 (ii) the master of the ship, or 35 (iii) the person in charge of the transfer operation of the ship, or 36 (iv) any other person whose act caused the discharge or 37 probable discharge, or 38 Page 79 Clause 185 Marine Pollution Bill 2012 Part 15 Minister may take action to prevent or clean up pollution (d) in the case of a discharge or probable discharge of oil or a noxious 1 liquid substance from an apparatus on a place on land in, or in 2 connection with, a transfer operation: 3 (i) the occupier of the land, or 4 (ii) the owner of the apparatus, or 5 (iii) the person in charge of the apparatus, or 6 (iv) any other person whose act caused the discharge or 7 probable discharge, or 8 (e) in the case of a discharge or probable discharge of oil or a noxious 9 liquid substance from a place on land in, or in connection with, a 10 transfer operation: 11 (i) the occupier of the land, or 12 (ii) any other person whose act caused the discharge or 13 probable discharge, or 14 (f) in the case of a discharge or probable discharge of oil or a noxious 15 liquid substance from a purpose-built pipeline in, or in 16 connection with, a transfer operation: 17 (i) the occupier of the land on which the pipeline is situated, 18 or 19 (ii) the person in charge of the pipeline, or 20 (iii) the owner of the pipeline, or 21 (iv) any other person whose act caused the discharge or 22 probable discharge. 23 (2) The costs and expenses referred to in subsection (1): 24 (a) may be awarded in the course of proceedings for an offence in 25 respect of a discharge, whether or not the owner, master or person 26 is convicted of an offence, or 27 (b) may be recovered as a debt due in a court of competent 28 jurisdiction, despite the fact that proceedings have not been taken 29 for an offence in respect of the discharge. 30 185 Costs and expenses incurred by Minister are charges on ship (cf former 31 Act s 52 (1)) 32 The amount of any costs and expenses incurred by the Minister in 33 respect of action taken by or on behalf of the Minister under this Part 34 that relates to a ship is a charge on the ship. 35 Page 80 Marine Pollution Bill 2012 Clause 186 Minister may take action to prevent or clean up pollution Part 15 186 Detention of ship until recovery of costs and expenses or giving of 1 security (cf former Act s 52 (2)) 2 A ship may be detained by a person authorised by the Minister for the 3 purposes of this section until the amount of any costs and expenses 4 incurred by the Minister in respect of action taken by or on behalf of the 5 Minister under this Part is paid or security for the payment of the 6 amount is provided in accordance with Part 18. 7 187 Detained ship must not leave port 8 (1) The master and the owner of a ship detained under this Part are each 9 guilty of an offence if the ship departs the port or other place at which 10 it is detained before it is released from detention. 11 Maximum penalty: 12 (a) in the case of an individual--$55,000, or 13 (b) in the case of a corporation--$110,000. 14 (2) A person is not guilty of an offence under this section if the person can 15 establish that he or she was not aware that the ship had been detained. 16 188 Obstruction of officers is an offence (cf former Act s 50) 17 (1) A person must not wilfully obstruct a person who is taking action on 18 behalf of the Minister under this Part. 19 Maximum penalty: $220,000. 20 (2) This section does not apply to a person who obstructs a person: 21 (a) for the purpose of securing the safety of a ship or saving life at 22 sea, or 23 (b) with the approval of an officer prescribed by the regulations for 24 the purposes of this section, for the purpose of combating specific 25 pollution incidents in order to minimise the damage from 26 pollution. 27 189 Oiled Wildlife Care Network 28 (1) The Minister is to establish an Oiled Wildlife Care Network. 29 (2) The network is to consist of representatives of organisations that have 30 an interest or involvement in the protection of wildlife contaminated by 31 oil or any other marine pollutant, which may include, but are not limited 32 to, representatives of: 33 (a) wildlife care or rehabilitation providers, 34 (b) zoological parks, 35 (c) emergency services, 36 Page 81 Clause 189 Marine Pollution Bill 2012 Part 15 Minister may take action to prevent or clean up pollution (d) regulatory agencies, 1 (e) academic institutions. 2 (3) The Minister is to determine the constitution and procedure of the 3 network. 4 (4) The function of the network is to act as a consultative committee to 5 advise on marine pollution response preparedness. 6 (5) Any expenditure under this section is to be paid out of money to be 7 provided by Parliament. 8 Page 82 Marine Pollution Bill 2012 Clause 190 Marine environment protection notices Part 16 Part 16 Marine environment protection notices 1 Division 1 Preliminary 2 190 Definitions 3 In this Part: 4 clean-up action, in relation to a marine pollution incident, includes: 5 (a) action to prevent, minimise, remove, disperse, destroy or mitigate 6 any pollution resulting or likely to result from the incident, and 7 (b) ascertaining the nature and extent of the pollution incident and of 8 the actual or likely resulting pollution, and 9 (c) preparing and carrying out a remedial plan of action. 10 marine environment protection notice--see section 191. 11 marine pollution clean-up notice means a notice under Division 2. 12 marine pollution compliance cost notice means a notice under 13 Division 6. 14 marine pollution incident means: 15 (a) the discharge of oil into State waters: 16 (i) from a ship, or 17 (ii) from a place on land in, or in connection with, a transfer 18 operation, or 19 (iii) from any apparatus or purpose-built pipeline used in, or in 20 connection with, a transfer operation, whether or not it is 21 being so used, or 22 (b) the discharge of a noxious liquid substance into State waters: 23 (i) from a ship that is subject to a chemical tanker construction 24 certificate certifying the ship to carry noxious liquid 25 substances in bulk, or 26 (ii) from a place on land in, or in connection with, a transfer 27 operation, or 28 (iii) from any apparatus or purpose-built pipeline used in, or in 29 connection with, a transfer operation, whether or not it is 30 being so used, or 31 (c) the jettisoning of a harmful substance in packaged form from a 32 ship into State waters, or 33 (d) the discharge of sewage from a large ship into State waters, or 34 (e) the discharge of garbage from a ship into State waters. 35 marine pollution prevention notice means a notice under Division 3. 36 marine pollution prohibition notice means a notice under Division 4. 37 Page 83 Clause 190 Marine Pollution Bill 2012 Part 16 Marine environment protection notices responsible person means: 1 (a) in the case of a discharge or probable discharge of a marine 2 pollutant from a ship: 3 (i) the owner or master of the ship concerned, or 4 (ii) any other person whose act caused the discharge or 5 probable discharge, or 6 (b) in the case of a discharge or probable discharge of oil or a noxious 7 liquid substance from an apparatus on a ship in, or in connection 8 with, a transfer operation: 9 (i) the owner of the ship, or 10 (ii) the master of the ship, or 11 (iii) the owner of the apparatus, or 12 (iv) the person in charge of the apparatus, or 13 (v) any other person whose act caused the discharge or 14 probable discharge, or 15 (c) in the case of a discharge or probable discharge of oil or a noxious 16 liquid substance from a ship in, or in connection with, a transfer 17 operation: 18 (i) the owner of the ship, or 19 (ii) the master of the ship, or 20 (iii) the person in charge of the transfer operation of the ship, or 21 (iv) any other person whose act caused the discharge or 22 probable discharge, or 23 (d) in the case of a discharge or probable discharge of oil or a noxious 24 liquid substance from an apparatus on a place on land in, or in 25 connection with, a transfer operation: 26 (i) the occupier of the land, or 27 (ii) the owner of the apparatus, or 28 (iii) the person in charge of the apparatus, or 29 (iv) any other person whose act caused the discharge or 30 probable discharge, or 31 (e) in the case of a discharge or probable discharge of oil or a noxious 32 liquid substance from a place on land in, or in connection with, a 33 transfer operation: 34 (i) the occupier of the land, or 35 (ii) any other person whose act caused the discharge or 36 probable discharge, or 37 Page 84 Marine Pollution Bill 2012 Clause 191 Marine environment protection notices Part 16 (f) in the case of a discharge or probable discharge of oil or a noxious 1 liquid substance from a purpose-built pipeline in, or in 2 connection with, a transfer operation: 3 (i) the occupier of the land on which the pipeline is situated, 4 or 5 (ii) the person in charge of the pipeline, or 6 (iii) the owner of the pipeline, or 7 (iv) any other person whose act caused the discharge or 8 probable discharge. 9 191 Classification of marine environment protection notices 10 Marine environment protection notices are of the following kinds: 11 (a) marine pollution clean-up notices, 12 (b) marine pollution prevention notices, 13 (c) marine pollution prohibition notices. 14 192 Marine environment protection notices may be given orally 15 (1) The Minister may, instead of giving a marine environment protection 16 notice by notice in writing, give the notice orally. 17 (2) A notice that can be given orally under this Part by the Minister can be 18 given orally by a person who is acting under delegated or other authority 19 from the Minister. 20 (3) A notice given orally to a person ceases to have effect on the expiration 21 of 72 hours from the time it was given unless confirmed by the Minister 22 by a written marine environment protection notice given to the person. 23 (4) A notice given orally has the same effect as a notice given in writing, 24 and is taken to be a marine environment protection notice of the relevant 25 type. 26 Division 2 Marine pollution clean-up notices 27 193 Clean-up by polluters 28 (1) The Minister may, by notice in writing, do either or both of the 29 following: 30 (a) direct the responsible person for a marine pollution incident that 31 the Minister reasonably suspects has occurred or is occurring, 32 (b) direct a person who is reasonably suspected by the Minister of 33 causing or having caused a marine pollution incident, 34 to take such clean-up action as is specified in the notice and within such 35 period as is specified in the notice. 36 Page 85 Clause 194 Marine Pollution Bill 2012 Part 16 Marine environment protection notices (2) The marine pollution clean-up notice may require the person to whom 1 the notice is given to furnish reports to the Minister regarding progress 2 on the carrying out of the clean-up action. 3 (3) If the person given a marine pollution clean-up notice complies with the 4 notice but was not the person who caused the marine pollution incident, 5 the cost of complying with the notice may be recovered by the person 6 who complied with the notice as a debt in a court of competent 7 jurisdiction from the person who caused the marine pollution incident. 8 (4) A person who, without reasonable excuse, does not comply with a 9 marine pollution clean-up notice given to the person is guilty of an 10 offence. 11 Maximum penalty: 12 (a) in the case of a corporation--$1,000,000 and, in the case of a 13 continuing offence, a further penalty of $120,000 for each day the 14 offence continues, or 15 (b) in the case of an individual--$250,000 and, in the case of a 16 continuing offence, a further penalty of $60,000 for each day the 17 offence continues. 18 194 Clean-up by public authorities 19 (1) If the Minister reasonably suspects that a marine pollution incident has 20 occurred or is occurring, the Minister may, by notice in writing, direct 21 a public authority to take such clean-up action as is specified in the 22 notice. The public authority is authorised and required to take that 23 action. 24 (2) If a public authority reasonably suspects that a marine pollution incident 25 has occurred or is occurring, the public authority may take such 26 clean-up action as it considers necessary. The public authority is 27 authorised to take that action, whether or not it is directed to take 28 clean-up action under subsection (1). 29 (3) Notices may be given, and action may be taken, under this section 30 whether or not a marine pollution clean-up notice has been given under 31 section 193, and (if such a notice has been given) whether or not the 32 period specified in the notice under that section has ended. 33 (4) A public authority may take clean-up action under this section by itself 34 or by its employees, agents or contractors. 35 (5) In this section: 36 public authority means a public or local authority constituted by or 37 under an Act, and includes: 38 (a) a government department, and 39 Page 86 Marine Pollution Bill 2012 Clause 195 Marine environment protection notices Part 16 (b) a local council, and 1 (c) a member of staff or other person who exercises functions on 2 behalf of a public authority. 3 195 Fee 4 (1) The purpose of this section is to enable the Minister to recover the 5 administrative costs of preparing and giving marine pollution clean-up 6 notices. 7 (2) A person who is given a marine pollution clean-up notice by the 8 Minister must within 30 days pay the fee prescribed by the regulations 9 to the Minister. 10 (3) A fee is not payable for the variation of a marine pollution clean-up 11 notice. 12 (4) The Minister may: 13 (a) extend the time for payment of the fee, on the application of a 14 person to whom subsection (2) applies, or 15 (b) waive payment of the whole or any part of the fee, on the 16 Minister's own initiative or on the application of a person to 17 whom subsection (2) applies. 18 (5) A person who does not pay the fee within the time provided under this 19 section is guilty of an offence. 20 Maximum penalty: $22,000. 21 Division 3 Marine pollution prevention notices 22 196 Meaning of environmentally unsatisfactory manner 23 For the purposes of this Division an activity is carried on in an 24 environmentally unsatisfactory manner if: 25 (a) it is carried on in contravention of, or in a manner that is likely to 26 lead to a contravention of, this Act or the regulations or an 27 exemption given under this Act or the regulations, or 28 (b) it causes, or is likely to cause, a marine pollution incident, or 29 (c) it is not carried on by such practicable means as may be necessary 30 to prevent, control or minimise a marine pollution incident. 31 197 Preventative action 32 (1) This section applies when the Minister reasonably suspects that an 33 activity has been or is being carried on in an environmentally 34 unsatisfactory manner on any ship or at any place on land or by any 35 person (otherwise than on a ship or place on land). 36 Page 87 Clause 197 Marine Pollution Bill 2012 Part 16 Marine environment protection notices (2) The Minister may, by notice in writing, do either or both of the 1 following: 2 (a) direct the master or owner of a ship, or responsible person for the 3 relevant apparatus or place on land, 4 (b) direct the person carrying on the activity (whether or not on a ship 5 or place on land), 6 to take such action, as is specified in the notice and within such period 7 (if any) as is specified in the notice, to ensure that the activity is carried 8 on in future in a lawful and environmentally satisfactory manner. 9 (3) The action to be taken may (without limitation) include any of the 10 following: 11 (a) installing, repairing, altering, replacing, maintaining or operating 12 control equipment or other plant, 13 (b) modifying, or carrying out any work on, plant, 14 (c) ceasing to use plant or altering the way plant is used, 15 (d) ceasing to carry on or not commencing to carry on an activity, 16 (e) carrying on an activity in a particular manner, 17 (f) carrying on an activity only during particular times, 18 (g) monitoring, sampling or analysing any pollution or otherwise 19 ascertaining the nature and extent of pollution or the risk of 20 pollution, 21 (h) action with respect to the transportation, collection, reception, 22 re-use, recovery, recycling, processing, storage or disposal of any 23 waste or other substance, 24 (i) preparing and carrying out a plan of action to control, prevent or 25 minimise pollution or waste, 26 (j) reviewing the carrying out of an activity. 27 (4) If the person who is given a notice is not the person carrying on the 28 activity, the notice is taken to require the person to take all available 29 steps to cause the action to be taken. 30 (5) A marine pollution prevention notice may require the person to whom 31 the notice is given to furnish reports to the Minister regarding progress 32 on carrying out the action required to be taken by the notice. 33 Page 88 Marine Pollution Bill 2012 Clause 198 Marine environment protection notices Part 16 198 Offence 1 A person who does not comply with a marine pollution prevention 2 notice given to the person is guilty of an offence. 3 Maximum penalty: 4 (a) in the case of a corporation--$1,000,000 and, in the case of a 5 continuing offence, a further penalty of $120,000 for each day the 6 offence continues, or 7 (b) in the case of an individual--$250,000 and, in the case of a 8 continuing offence, a further penalty of $60,000 for each day the 9 offence continues. 10 199 Commencement of operation of marine pollution prevention notices or 11 variations 12 A marine pollution prevention notice, or a variation of a marine 13 pollution prevention notice, operates from the day the notice or notice 14 of the variation is given or from such later day as the notice specifies. 15 200 Fee 16 (1) The purpose of this section is to enable the Minister to recover the 17 administrative costs of preparing and giving marine pollution 18 prevention notices. 19 (2) A person who is given a marine pollution prevention notice by the 20 Minister must within 30 days pay the fee prescribed by the regulations 21 to the Minister. 22 (3) The Minister may: 23 (a) extend the time for payment of the fee, on the application of a 24 person to whom subsection (2) applies, or 25 (b) waive payment of the whole or any part of the fee, on the 26 Minister's own initiative or on the application of a person to 27 whom subsection (2) applies. 28 (4) A fee is not payable for the variation of a marine pollution prevention 29 notice. 30 (5) A person who does not pay the fee within the time provided under this 31 section is guilty of an offence. 32 Maximum penalty: $22,000. 33 Page 89 Clause 201 Marine Pollution Bill 2012 Part 16 Marine environment protection notices Division 4 Marine pollution prohibition notices 1 201 Prohibition on activities 2 (1) This section applies where the Minister is of the opinion that the 3 discharge of marine pollutants from (or within) any ship or place on 4 land in which any activity is carried on is causing or is likely to cause a 5 marine pollution incident and that the giving of the notice is warranted. 6 (2) The Minister may, by notice in writing, do either or both of the 7 following: 8 (a) direct the master of the ship or the responsible person, 9 (b) direct the person carrying on the activity, 10 to cease carrying on the activity, or any specified aspect of it, for such 11 period as is specified in the notice. 12 (3) If the person who is given a notice is not the person carrying on the 13 activity, the notice is taken to require the person to take all available 14 steps to cause the activity to cease. 15 (4) The Minister may give further notices on the expiry of the period of the 16 earlier notice. 17 202 Offence 18 A person who, without reasonable excuse, does not comply with a 19 marine pollution prohibition notice given to the person is guilty of an 20 offence. 21 Maximum penalty: 22 (a) in the case of a corporation--$1,000,000 and, in the case of a 23 continuing offence, a further penalty of $120,000 for each day the 24 offence continues, or 25 (b) in the case of an individual--$250,000 and, in the case of a 26 continuing offence, a further penalty of $60,000 for each day the 27 offence continues. 28 Division 5 Minister may take action if marine environment 29 protection notice not complied with 30 203 Minister may take action in event of failure to comply (cf former Act 31 s 50 (4)) 32 (1) The Minister may cause any requirement made by a marine 33 environment protection notice that is not being complied with to be 34 complied with by an inspector or other officer, employee or agent of the 35 Minister or any other person authorised by the Minister for the purposes 36 of this section. 37 Page 90 Marine Pollution Bill 2012 Clause 204 Marine environment protection notices Part 16 (2) For this purpose, such an inspector, officer, employee, agent or person, 1 using such force as is necessary, may: 2 (a) enter, take and retain possession of any ship, place, apparatus, 3 facility or pipeline, and 4 (b) take and retain possession of any substance or thing, and 5 (c) use and operate any apparatus or machinery, and 6 (d) do all such things as are necessary for the purpose of causing a 7 marine pollution prevention notice to be complied with. 8 204 Obstruction of persons acting in compliance with notice is an offence 9 (cf former Act s 50) 10 (1) A person must not wilfully obstruct a person who is acting in 11 compliance with a marine environment protection notice under 12 section 203. 13 Maximum penalty: $220,000. 14 (2) This section does not apply to a person who obstructs a person: 15 (a) for the purpose of securing the safety of a ship or saving life at 16 sea, or 17 (b) with the approval of an officer prescribed by the regulations for 18 the purposes of this section, for the purpose of combating specific 19 pollution incidents in order to minimise the damage from 20 pollution. 21 Division 6 Compliance costs 22 205 Marine pollution compliance cost notices 23 (1) If the Minister has given a marine pollution clean-up notice or marine 24 pollution prevention notice to a person, the Minister may, by notice in 25 writing, require the person to pay all or any reasonable costs and 26 expenses incurred by the Minister in connection with: 27 (a) monitoring action under the notice, and 28 (b) ensuring that the notice is complied with, and 29 (c) any other associated matters. 30 (2) A public authority that takes clean-up action under section 194 may, by 31 notice in writing, require: 32 (a) the occupier of the premises at or from which the authority 33 reasonably suspects that the marine pollution incident occurred, 34 or 35 Page 91 Clause 206 Marine Pollution Bill 2012 Part 16 Marine environment protection notices (b) the person who is reasonably suspected by the authority of having 1 caused the marine pollution incident, 2 or both, to pay all or any reasonable costs and expenses incurred by it in 3 connection with the clean-up action. 4 (3) If the Minister takes action under section 203 because a marine 5 environment protection notice is not complied with, the Minister may, 6 by notice in writing, require the person to whom the notice was given to 7 pay all or any reasonable costs and expenses incurred by the Minister in 8 taking the action. 9 206 Recovery of amounts 10 (1) The Minister or a public authority may recover any unpaid amounts 11 specified in a marine pollution compliance cost notice as a debt in a 12 court of competent jurisdiction. 13 (2) If the person given a marine pollution compliance cost notice complies 14 with the notice but was not the person who caused the pollution or 15 marine pollution incident, the cost of complying with the notice may be 16 recovered by the person who complied with the notice as a debt in a 17 court of competent jurisdiction from the person who caused the 18 pollution or marine pollution incident. 19 Division 7 Recovery of costs and expenses if the Minister 20 takes action 21 207 Costs and expenses incurred by Minister are charges on ship (cf former 22 Act s 52 (1)) 23 The amount of any costs and expenses incurred by the Minister in 24 respect of action taken by or on behalf of the Minister under this Part 25 that relates to a ship is a charge on the ship. 26 208 Detention of ship until recovery of costs and expenses or giving of 27 security (cf former Act s 52 (2)) 28 A ship may be detained by a person authorised by the Minister for the 29 purposes of this section until the amount of any costs and expenses 30 incurred by the Minister in respect of action taken by or on behalf of the 31 Minister under this Part is paid or security for the payment of the 32 amount is provided in accordance with Part 18. 33 Page 92 Marine Pollution Bill 2012 Clause 209 Marine environment protection notices Part 16 209 Detained ship must not leave port 1 (1) The master and the owner of a ship detained under this Division are each 2 guilty of an offence if the ship departs the port or other place at which 3 it is detained before it is released from detention. 4 Maximum penalty: 5 (a) in the case of an individual--$55,000, or 6 (b) in the case of a corporation--$110,000. 7 (2) A person is not guilty of an offence under this section if the person can 8 establish that he or she was not aware that the ship had been detained. 9 Division 8 Miscellaneous 10 210 Minister's other preventative powers not affected 11 This Part does not limit the generality of the Minister's power to take 12 action under Part 15. 13 211 Multiple notices 14 More than one notice under a provision of this Part may be given to the 15 same person. 16 212 Extraterritorial application 17 A notice may be given under this Part to a person in respect of a matter 18 or thing even though the person is outside the State or the matter or thing 19 occurs or is located outside the State, so long as the matter or thing 20 affects the environment of this State. 21 213 Revocation or variation 22 (1) A notice given under this Part may be revoked or varied by a subsequent 23 notice or notices given by the Minister. 24 (2) A notice may be varied by modification of, or addition to, its terms and 25 specifications. 26 (3) Without limiting the above, a notice may be varied by extending the 27 time for complying with the notice. 28 (4) A fee is not payable for the variation of a marine environment protection 29 notice under this Part. 30 214 Power to enter land 31 (1) The Minister or a public authority may, by the Minister's or the 32 authority's employees, agents or contractors, enter any premises at any 33 Page 93 Clause 215 Marine Pollution Bill 2012 Part 16 Marine environment protection notices reasonable time for the purpose of exercising the Minister's or the 1 public authority's functions under this Part. 2 (2) For the purpose of entering or leaving any such premises, the power 3 conferred by this section extends to entering other premises. 4 (3) A power to enter premises conferred by this section authorises entry by 5 foot or by means of a motor vehicle or other vehicle, or in any other 6 manner. 7 (4) Entry may be effected under this section by the Minister or a public 8 authority with the aid of such authorised officers or police officers as the 9 Minister or authority considers necessary and with the use of reasonable 10 force. 11 215 Obstruction of persons 12 A person who wilfully delays or obstructs: 13 (a) a person who is carrying out any action in compliance with a 14 marine environment protection notice, or another person 15 authorised by the person to carry it out, or 16 (b) a public authority that is taking clean-up action under Division 2, 17 or another person authorised by the authority to carry it out, or 18 (c) a person who is taking action under section 203, 19 is guilty of an offence. 20 Maximum penalty: 21 (a) in the case of a corporation--$1,000,000 and, in the case of a 22 continuing offence, a further penalty of $120,000 for each day the 23 offence continues, or 24 (b) in the case of an individual--$250,000 and, in the case of a 25 continuing offence, a further penalty of $60,000 for each day the 26 offence continues. 27 Page 94 Marine Pollution Bill 2012 Clause 216 Recovery of costs, expenses and damages Part 17 Part 17 Recovery of costs, expenses and damages 1 Division 1 Recovery of costs, expenses and damages by 2 Minister or any other person 3 216 Recovery of damages, costs or expenses relating to discharge 4 prohibited by Act (cf former Act s 51) 5 (1) This section applies to any of the following discharges, whether or not 6 there would be a lawful defence or excuse to a charge for an offence 7 relating to the discharge: 8 (a) a discharge of oil into State waters: 9 (i) from a ship, or 10 (ii) from a place on land in, or in connection with, a transfer 11 operation, or 12 (iii) from any apparatus or purpose-built pipeline used in, or in 13 connection with, a transfer operation, whether or not it is 14 being so used, 15 (b) a discharge of a noxious liquid substance into State waters: 16 (i) from a ship that is subject to a chemical tanker construction 17 certificate certifying the ship to carry noxious liquid 18 substances in bulk, or 19 (ii) from a place on land in, or in connection with, a transfer 20 operation, or 21 (iii) from any apparatus or purpose-built pipeline used in, or in 22 connection with, a transfer operation, whether or not it is 23 being so used, 24 (c) the jettisoning of a harmful substance in packaged form from a 25 ship into State waters, 26 (d) a discharge of sewage from a large ship into State waters, 27 (e) a discharge of garbage from a ship into State waters. 28 (2) A person who suffers loss of or damage to property because of a 29 discharge to which this section applies, or who incurs costs or expenses 30 in preventing or mitigating or in attempting to prevent or mitigate any 31 loss of or damage to property (including the property of another) as a 32 result of such a discharge, may recover the amount of the loss or damage 33 and the costs or expenses incurred from: 34 (a) in the case of a discharge or probable discharge of a marine 35 pollutant from a ship: 36 (i) the owner or master of the ship concerned, or 37 Page 95 Clause 216 Marine Pollution Bill 2012 Part 17 Recovery of costs, expenses and damages (ii) any other person whose act caused the discharge or 1 probable discharge, or 2 (b) in the case of a discharge or probable discharge of oil or a noxious 3 liquid substance from an apparatus on a ship in, or in connection 4 with, a transfer operation: 5 (i) the owner of the ship, or 6 (ii) the master of the ship, or 7 (iii) the owner of the apparatus, or 8 (iv) the person in charge of the apparatus, or 9 (v) any other person whose act caused the discharge or 10 probable discharge, or 11 (c) in the case of a discharge or probable discharge of oil or a noxious 12 liquid substance from a ship in, or in connection with, a transfer 13 operation: 14 (i) the owner of the ship, or 15 (ii) the master of the ship, or 16 (iii) the person in charge of the transfer operation of the ship, or 17 (iv) any other person whose act caused the discharge or 18 probable discharge, or 19 (d) in the case of a discharge or probable discharge of oil or a noxious 20 liquid substance from an apparatus on a place on land in, or in 21 connection with, a transfer operation: 22 (i) the occupier of the land, or 23 (ii) the owner of the apparatus, or 24 (iii) the person in charge of the apparatus, or 25 (iv) any other person whose act caused the discharge or 26 probable discharge, or 27 (e) in the case of a discharge or probable discharge of oil or a noxious 28 liquid substance from a place on land in, or in connection with, a 29 transfer operation: 30 (i) the occupier of the land, or 31 (ii) any other person whose act caused the discharge or 32 probable discharge, or 33 (f) in the case of a discharge or probable discharge of oil or a noxious 34 liquid substance from a purpose-built pipeline in, or in 35 connection with, a transfer operation: 36 (i) the occupier of the land on which the pipeline is situated, 37 or 38 (ii) the person in charge of the pipeline, or 39 Page 96 Marine Pollution Bill 2012 Clause 217 Recovery of costs, expenses and damages Part 17 (iii) the owner of the pipeline, or 1 (iv) any other person whose act caused the discharge or 2 probable discharge. 3 217 Recovery of loss, damage, costs or expenses (cf former Act s 51) 4 The person may recover the amount of the loss or damage and the costs 5 or expenses incurred as a debt in a court of competent jurisdiction from 6 the person specified in section 216. 7 Division 2 Joint liability for damage relating to transfer 8 operations 9 218 Joint and several liability where oil or noxious liquid substance is 10 discharged from pipeline (cf former Act s 30) 11 The following persons are, for the purposes of this Part, jointly and 12 severally liable if oil or a noxious liquid substance is discharged into 13 State waters from a pipeline used in, or in connection with, a transfer 14 operation, whether or not it is being so used: 15 (a) the owner of the pipeline, 16 (b) any lessee, licensee or user of any lease, licence or right of user 17 for the use of the pipeline for the carriage of oil or a noxious 18 liquid substance. 19 219 Several liability where oil or noxious liquid substance is discharged from 20 2 or more ships (cf former Act s 31) 21 If oil or a noxious liquid substance is discharged into State waters from 22 2 or more ships in, or in connection with, a transfer operation, and it is 23 not reasonably practicable to identify the oil or noxious liquid substance 24 that has discharged from a particular ship, all of the oil or noxious liquid 25 substance is taken, for the purposes of this Part, to have been discharged 26 from each of those ships. 27 Division 3 Rights of recovery not affected 28 220 Rights of recovery not affected (cf former Act s 47 (5)) 29 Except as provided by this Part, nothing in this Act affects or qualifies 30 any rights of the Minister or of any other person to recover damages in 31 respect of the consequences of any discharge from a ship or otherwise. 32 Page 97 Clause 221 Marine Pollution Bill 2012 Part 18 Detention of ships and taking of securities Part 18 Detention of ships and taking of securities 1 221 Ships that are believed to have discharged marine pollutants may be 2 detained (cf former Act s 52A) 3 (1) This section applies to any of the following discharges, whether or not 4 there would be a lawful defence or excuse to a charge for an offence 5 relating to the discharge: 6 (a) a discharge of oil into State waters, 7 (b) a discharge of a noxious liquid substance into State waters (but 8 only where it occurs from a ship that is subject to a chemical 9 tanker construction certificate certifying the ship to carry noxious 10 liquid substances in bulk), 11 (c) the jettisoning of a harmful substance in packaged form from a 12 ship into State waters, 13 (d) a discharge of sewage from a large ship into State waters, 14 (e) a discharge of garbage from a ship into State waters. 15 (2) A ship in State waters may be detained by a person authorised by the 16 Minister for the purposes of this section if the Minister has reasonable 17 cause to believe: 18 (a) that a discharge to which this section applies has occurred from 19 the ship, and 20 (b) that, if the Minister were to establish that the discharge had 21 occurred from the ship, the Minister could take proceedings to 22 recover the costs and expenses incurred by the Minister in taking 23 action in relation to that discharge under this Act, and 24 (c) that the ship will depart from State waters before the completion 25 of the Minister's investigation into the source of the discharge. 26 222 Detained ships must not depart (cf former Act s 52C) 27 (1) The master and the owner of a ship detained under this Part that departs 28 State waters before it is released from detention are each guilty of an 29 offence against this section. 30 Maximum penalty: 31 (a) in the case of an individual--$22,000, or 32 (b) in the case of a corporation--$110,000. 33 (2) A person is not guilty of an offence under this section if the person can 34 establish that he or she was not aware that the ship had been detained. 35 Page 98 Marine Pollution Bill 2012 Clause 223 Detention of ships and taking of securities Part 18 223 Security may be required to be provided (cf former Act s 52A (3)) 1 Security may be required to be provided for the payment of: 2 (a) any amount that might, in the opinion of the Minister, be 3 recoverable by the Minister under this Act from the owner or 4 master of a ship in relation to a discharge, and 5 (b) the maximum amount of penalties that can be imposed under this 6 Act against the owner or master of the ship in relation to the 7 discharge. 8 224 Detained ships must be released if security provided or no liability (cf 9 former Act s 52A (2)) 10 A ship that has been detained must be immediately released: 11 (a) if security is provided in accordance with section 223, or 12 (b) if proceedings are instituted in relation to the discharge and are 13 discontinued, or 14 (c) if proceedings are instituted in relation to the discharge and are 15 concluded, whether or not an appeal is pending, without any 16 person being convicted or costs or expenses being awarded 17 against any person, or 18 (d) if proceedings in relation to the discharge are concluded and all 19 costs and expenses ordered to be paid and all penalties imposed 20 have been paid, or 21 (e) if the Minister has sought to recover costs and expenses incurred 22 by the Minister as a debt due and the amount has been paid, or 23 (f) if the Minister forms the belief that the discharge did not occur 24 from the ship, or 25 (g) if the Minister determines for any other reason that the ship 26 should be released. 27 225 Security taken by Minister (cf former Act s 52B) 28 (1) Any security taken by the Minister under this Act must be in a form 29 acceptable to the Minister. 30 (2) The amount available under any security taken by the Minister under 31 this Act is to be applied only as follows: 32 (a) in payment of any costs or expenses that have been ordered to be 33 paid by the master or owner of a ship in the course of proceedings 34 for an offence in respect of the discharge or that are recoverable 35 Page 99 Clause 225 Marine Pollution Bill 2012 Part 18 Detention of ships and taking of securities under this Act against the master or owner of the ship as a debt 1 due, 2 (b) in payment of any penalty imposed by a court in the course of 3 proceedings for an offence in respect of the discharge. 4 Page 100 Marine Pollution Bill 2012 Clause 226 Enforcement Part 19 Part 19 Enforcement 1 Division 1 Appointment of inspectors and authorised 2 persons 3 226 Appointment of inspectors 4 The Minister may appoint any person to be an inspector for the purposes 5 of this Act. 6 227 Identity cards for inspectors and authorised persons 7 (1) The Minister is required to give an identity card: 8 (a) to each inspector the Minister appoints, and 9 (b) to each person whom the Minister authorises for the purposes of 10 a section of this Act. 11 (2) An inspector or person whom the Minister authorises for the purposes 12 of a section of this Act is required to produce his or her identity card if 13 requested to do so by an affected person in the course of exercising 14 functions under this Act. This subsection does not apply to a direction 15 given by radio or other communication device. 16 (3) A person who has been issued with an identity card must return it to the 17 Minister, or the person who provided it, on demand. 18 Maximum penalty (subsection (3)): $1,100. 19 Division 2 Powers of inspectors and authorised persons 20 228 Powers of inspectors and authorised persons (cf former Act s 53 (1)) 21 (1) The powers in this section may be exercised for the purposes of 22 ascertaining: 23 (a) whether a provision of this Act that is applicable in relation to a 24 ship has been complied with in respect of the ship, or 25 (b) whether there is a probability of, or has been, a discharge into 26 State waters in contravention of this Act. 27 (2) An inspector, or other person authorised by the Minister for the 28 purposes of this section, may do any of the following: 29 (a) go on board the ship with such assistants and equipment as the 30 inspector or person considers necessary, 31 (b) require the master of the ship to take such steps as the inspector 32 or person directs to facilitate the boarding, 33 (c) inspect and test any machinery or equipment of the ship, 34 Page 101 Clause 229 Marine Pollution Bill 2012 Part 19 Enforcement (d) require the master of the ship to take such steps as the inspector 1 or person directs to facilitate the inspection or testing of any 2 machinery or equipment of the ship, 3 (e) open, or require the master of the ship to cause to be opened, any 4 hold, bunker, tank, compartment or receptacle in or on board the 5 ship and inspect the contents of any hold, bunker, tank, 6 compartment or receptacle in or on board the ship, 7 (f) require the master of the ship to produce a record book required 8 by this Act or the Protection of the Sea (Prevention of Pollution 9 from Ships) Act 1983 of the Commonwealth to be carried in the 10 ship or any other books, documents or records relating to the ship 11 or its cargo that are carried in the ship, 12 (g) make copies of, or take extracts from, any such books, documents 13 or records, 14 (h) require the master of the ship or other person to certify that a true 15 copy of an entry in a record book required by this Act to be 16 carried in the ship or kept by the person, made by the inspector or 17 person whom the Minister authorises for the purposes of a section 18 of this Act is a true copy of such an entry, 19 (i) examine, and take samples of, any substances being in, on, or in 20 the vicinity of, a ship, purpose-built pipeline or place on land in 21 respect of which an investigation of a discharge or suspected 22 discharge in breach of a provision of this Act is being made, 23 (j) require the master of the ship or the owner or occupier of the 24 pipeline or place, or any person representing the master, owner or 25 occupier, to certify the taking of the samples, 26 (k) require the testing of any apparatus in or on the ship, pipeline or 27 place, the condition or efficiency of which is, in the opinion of the 28 inspector or person, relevant to the probability of a discharge, a 29 discharge or a suspected discharge into State waters in breach of 30 a provision of this Act, 31 (l) require a person to answer questions. 32 229 Inspectors and authorised persons may enter or inspect place on land 33 (cf former Act s 53 (2)) 34 For the purposes of investigating the probability of a discharge, a 35 discharge or a suspected discharge into State waters in contravention of 36 a provision of this Act, an inspector or other person authorised by the 37 Minister for the purposes of section 228, may enter and inspect any 38 place on land, other than a place being used for residential purposes. 39 Page 102 Marine Pollution Bill 2012 Clause 230 Enforcement Part 19 230 Inspector and authorised persons must not unnecessarily delay ships 1 (cf former Act s 53 (4)) 2 An inspector or person whom the Minister authorises for the purposes 3 of a section of this Act must not, in exercising powers under this Part, 4 unnecessarily delay a ship from beginning a voyage. 5 231 Obstruction of inspectors and authorised persons (cf former Act s 53 (3)) 6 A person must not: 7 (a) wilfully delay or obstruct an inspector or person whom the 8 Minister authorises for the purposes of a section of this Act in the 9 exercise of the inspector's or authorised person's functions under 10 this Act, or 11 (b) fail to comply with a requirement under this Part to produce a 12 document, record or other thing in the person's possession, 13 custody, or control or to answer a question. 14 Maximum penalty: $22,000. 15 Note. It is an offence under section 307B of the Crimes Act 1900 to give false 16 or misleading information to a person exercising a power, authority or duty 17 under, or in connection with, a law of the State. 18 232 Inspectors and certain other persons have no personal liability (cf former 19 Act s 60) 20 A matter or thing done or omitted to be done by an inspector, a person 21 whom the Minister authorises for the purposes of a section of this Act 22 or any person acting with the authority or on the direction of an 23 inspector or the Minister does not, if the matter or thing was done or 24 omitted in good faith for the purpose of executing this or any other Act, 25 subject the inspector or person so acting personally to any action, 26 liability, claim or demand. 27 Page 103 Clause 233 Marine Pollution Bill 2012 Part 20 Proceedings for enforcement Part 20 Proceedings for enforcement 1 Division 1 Proceedings for enforcement 2 233 Time within which proceedings may be commenced (cf former Act s 54) 3 A prosecution for an offence against this Act in the Local Court must be 4 brought within 2 years of the alleged commission of the offence. 5 234 Proceedings for offences (cf former Act s 55) 6 (1) Proceedings for an offence against this Act or the regulations may be 7 dealt with summarily before: 8 (a) the Local Court, or 9 (b) the Land and Environment Court in its summary jurisdiction. 10 (2) In proceedings for an offence against this Act or the regulations brought 11 in the Local Court, the maximum penalty that the Court may impose is, 12 notwithstanding any other provision of this Act: 13 (a) $55,000 or 2 years imprisonment, or both, or 14 (b) the maximum penalty provided by this Act or the regulations for 15 the offence, 16 whichever is the lesser. 17 235 Offences by corporations (cf former Act s 56) 18 (1) If a corporation contravenes, whether by act or omission, any provision 19 of this Act or the regulations, each person who is a director of the 20 corporation or who is concerned in the management of the corporation 21 is taken to have contravened the same provision if the person knowingly 22 authorised or permitted the contravention. 23 (2) A person may be proceeded against and convicted under a provision 24 pursuant to subsection (1) whether or not the corporation has been 25 proceeded against or has been convicted under the provision. 26 (3) Nothing in this section affects any liability imposed on a corporation for 27 an offence committed by the corporation under this Act or the 28 regulations. 29 Division 2 Penalties are charges on ship 30 236 Penalties are charges on ship (cf former Act s 52 (1)) 31 The amount of any penalty that can be imposed under this Act against 32 the owner or master of a ship in relation to a discharge is a charge on the 33 ship. 34 Page 104 Marine Pollution Bill 2012 Clause 237 Proceedings for enforcement Part 20 237 Detention of ship until recovery of penalty or provision of security (cf 1 former Act s 52 (2)) 2 A ship may be detained by a person authorised by the Minister for the 3 purposes of this section until the amount of any penalty that can be 4 imposed under this Act is paid or security for the payment of the amount 5 is provided in accordance with Part 18. 6 Division 3 Evidence 7 238 Records are admissible as evidence (cf former Act s 58) 8 In any proceedings for an offence against a provision of this Act: 9 (a) any record kept in compliance with an obligation under this Act 10 is admissible as evidence (until evidence is given to the contrary) 11 of the facts stated in the record, and 12 (b) a copy of an entry in such a record, being a copy certified by the 13 person by whom the record is required to be kept to be a true copy 14 of the entry, is admissible as evidence (until evidence is given to 15 the contrary) of the facts stated in the entry, and 16 (c) a document purporting to be a record kept in pursuance of this 17 Act, or purporting to be a copy certified by the person by whom 18 the record is required to be kept to be a true copy of the record, is 19 (until evidence is given to the contrary) taken to be such a record 20 or certified copy, as the case may be. 21 239 Proof of certain matters not required (cf former Act s 58 (d) and (e)) 22 In any legal proceedings for an offence under this Act, proof is not 23 required (until evidence is given to the contrary) of the following: 24 (a) the giving of a notice by the Minister, 25 (b) the appointment of a person as an inspector. 26 240 Evidence of analysts (cf former Act s 59) 27 (1) The Minister may, by instrument in writing, appoint appropriately 28 qualified persons to be analysts for the purposes of this Act. 29 (2) Subject to subsection (4), a certificate of such an analyst stating that the 30 analyst has analysed or examined a substance and stating the result of 31 the analysis or examination is admissible (until evidence is given to the 32 contrary) in evidence in any proceedings for an offence against a 33 provision of this Act as evidence of the facts stated in the certificate and 34 of the correctness of the result of the analysis or examination. 35 (3) For the purposes of this section, a document purporting to be a 36 certificate under this section is, unless the contrary is proved, taken to 37 be such a certificate. 38 Page 105 Clause 241 Marine Pollution Bill 2012 Part 20 Proceedings for enforcement (4) A certificate under this section must not be received in evidence in 1 pursuance of this section unless the person charged has been given a 2 copy of the certificate together with reasonable notice of the intention 3 of the prosecution to produce the certificate as evidence in the 4 proceedings. 5 (5) Where, in pursuance of this section, a certificate of an analyst is 6 admitted in evidence, the person charged may require the analyst to be 7 called as a witness for the prosecution and the analyst may be 8 cross-examined as if the analyst had given evidence of the matters 9 stated in the certificate. 10 Division 4 Miscellaneous 11 241 No double jeopardy 12 (1) A prosecution of a person under section 16 or 17 does not affect the 13 prosecution of the master or owner of a ship (or both of them) under 14 section 15. 15 (2) However, a person is not liable to be convicted in respect of the same 16 discharge of both an offence: 17 (a) under sections 15 and 16, or 18 (b) under sections 15 and 17, or 19 (c) under sections 16 and 17. 20 (3) A prosecution of a person under section 28 does not affect the 21 prosecution of the master or owner of a ship (or both of them) under 22 section 27. 23 (4) However, a person is not liable to be convicted in respect of the same 24 discharge of both an offence under sections 27 and 28. 25 (5) A prosecution of a person under section 30 or 31 does not affect the 26 prosecution of the master or owner of a ship (or both of them) under 27 section 29. 28 (6) However, a person is not liable to be convicted in respect of the same 29 discharge of both an offence: 30 (a) under sections 29 and 30, or 31 (b) under sections 29 and 31, or 32 (c) under sections 30 and 31. 33 (7) A prosecution of a person under section 44 does not affect the 34 prosecution of the master or owner of a ship (or both of them) under 35 section 43. 36 Page 106 Marine Pollution Bill 2012 Clause 242 Proceedings for enforcement Part 20 (8) However, a person is not liable to be convicted in respect of the same 1 carriage of both an offence under sections 43 and 44. 2 (9) A prosecution of a person under section 54 or 55 does not affect the 3 prosecution of the master or owner of a ship (or both of them) under 4 section 53. 5 (10) However, a person is not liable to be convicted in respect of the same 6 discharge of both an offence: 7 (a) under sections 53 and 54, or 8 (b) under sections 53 and 55, or 9 (c) under sections 54 and 55. 10 (11) A prosecution of a person under section 61 or 62 does not affect the 11 prosecution of the master or owner of a ship (or both of them) under 12 section 60. 13 (12) However, a person is not liable to be convicted in respect of the same 14 discharge of both an offence: 15 (a) under sections 60 and 61, or 16 (b) under sections 60 and 62, or 17 (c) under sections 61 and 62. 18 242 Defences operate separately 19 (1) Nothing in sections 18-25 limits the generality of any other of those 20 sections. 21 (2) Nothing in sections 32-41 limits the generality of any other of those 22 sections. 23 (3) Nothing in sections 48 and 49 limits the generality of the other of those 24 sections. 25 (4) Nothing in sections 56-59 limits the generality of any other of those 26 sections. 27 (5) Nothing in sections 63-66 limits the generality of any other of those 28 sections. 29 Page 107 Clause 243 Marine Pollution Bill 2012 Part 21 Regulations and orders Part 21 Regulations and orders 1 243 Regulations (cf former Act s 61) 2 (1) The Governor may make regulations, not inconsistent with this Act, for 3 or with respect to any matter that by this Act is required or permitted to 4 be prescribed or that is necessary or convenient to be prescribed for 5 carrying out or giving effect to this Act. 6 (2) In particular, regulations may be made for or with respect to any of the 7 following: 8 (a) giving effect to MARPOL, other than provisions of MARPOL to 9 which effect is given by a provision of this Act, 10 (b) empowering the Minister to make orders for and in relation to: 11 (i) giving effect to MARPOL, other than provisions of 12 MARPOL to which effect is given by a provision of this 13 Act, and 14 (ii) the fixing of fees to be paid in respect of any matters under 15 the orders, 16 (c) preventing or regulating the pollution of State waters or other 17 waters by vessels or by facilities used for loading, unloading, 18 berthing or other operations of vessels, 19 (d) the installation and operation on vessels in particular State waters 20 or other waters of toilet and other waste control facilities, 21 (e) the form in which records must be kept and the nature of the 22 entries to be made in them, 23 (f) requiring the person keeping the records to retain them for a 24 prescribed period and in a prescribed place, 25 (g) requiring the records, at the end of that period, to be transmitted 26 to a place or person determined by or under the regulations, 27 (h) providing for the custody or disposal of the records after their 28 transmission, 29 (i) fixing fees to be paid in respect of any matters under this Act, 30 (j) prescribing penalties, not exceeding $11,000, for a contravention 31 of a provision of the regulations or of any of the orders made in 32 pursuance of the regulations, 33 (k) exempting, either absolutely or subject to conditions, a 34 prescribed ship or person, or ships or persons included in a 35 prescribed class of ships or persons, from all or any of the 36 provisions of this Act or of the regulations. 37 Page 108 Marine Pollution Bill 2012 Clause 244 Regulations and orders Part 21 (3) Regulations may apply: 1 (a) generally or in a particular class of case or in particular classes of 2 case, and 3 (b) throughout the State and all State waters or in a part or parts of 4 the State or State waters prescribed by the regulations. 5 244 Regulations may prescribe decisions that are to be reviewable by 6 Administrative Decisions Tribunal 7 (1) The regulations may authorise a person to apply to the Administrative 8 Decisions Tribunal for a review of a decision, of a class prescribed by 9 the regulations, that is made under this Act or the regulations. 10 Note. Section 38 (1) of the Administrative Decisions Tribunal Act 1997 provides 11 that the Tribunal has jurisdiction to review a decision (or a class of decisions) if 12 an Act or statutory rule provides that applications may be made to it for a review 13 of any such decision (or class of decisions). However, section 38 (2) of that Act 14 provides that nothing in section 38 (1) of that Act enables jurisdiction to review 15 a decision to be conferred on the Tribunal by a statutory rule unless the 16 conferral of jurisdiction by such means is expressly authorised by an Act. 17 (2) Any such regulation cannot be made without the concurrence of the 18 Minister administering the Administrative Decisions Tribunal Act 1997. 19 245 Orders (cf former Act s 62) 20 (1) The following sections of the Interpretation Act 1987 apply to an order 21 made under this Act, or in pursuance of the regulations, in the same way 22 as they apply to a statutory rule: 23 (a) section 30 (Effect of amendment or repeal of Acts and statutory 24 rules), 25 (b) section 39 (The making of statutory rules), 26 (c) section 40 (Notice of statutory rules to be tabled), 27 (d) section 41 (Disallowance of statutory rules). 28 (2) Unless the contrary intention appears, expressions used in orders made 29 under this Act, or in pursuance of the regulations, have the same 30 meanings as in this Act. 31 (3) Orders made in pursuance of the regulations are to be read subject to this 32 Act and the regulations and so as not to exceed the power conferred by 33 this Act and the regulations to the intent that, where such orders would, 34 but for this subsection, have been construed as being in excess of the 35 power conferred by this Act and the regulations, they are taken to be 36 valid orders to the extent to which they are not in excess of the power 37 conferred by this Act and the regulations. 38 Page 109 Clause 246 Marine Pollution Bill 2012 Part 21 Regulations and orders (4) Where an order made in pursuance of the regulations is inconsistent 1 with a provision of this Act or the regulations, the latter is to prevail and 2 the former is, to the extent of the inconsistency, of no force or effect. 3 246 Prescribing matters by reference to other instruments (cf former Act s 63) 4 (1) The regulations or orders under this Act may make provision for or in 5 relation to a matter by applying, adopting, or incorporating either 6 wholly or in part or with modifications, any regulations, rules, codes, 7 orders, instructions or other subordinate legislation made, determined 8 or issued under any other Act or under any Act of the Parliament of the 9 Commonwealth. 10 (2) The regulations made under this Act may make provision for or in 11 relation to a matter by applying, adopting or incorporating any matter 12 contained in the orders made in pursuance of the regulations. 13 (3) Nothing in this section affects the operation of section 42 of the 14 Interpretation Act 1987. 15 Page 110 Marine Pollution Bill 2012 Clause 247 Miscellaneous Part 22 Part 22 Miscellaneous 1 247 Delegation 2 (1) The Minister may delegate the exercise of any function of the Minister 3 under this Act (other than this power of delegation) to any approved 4 person. 5 (2) An approved person may sub-delegate to another approved person any 6 function delegated by the Minister (other than this power of 7 sub-delegation) if the delegate is authorised in writing to do so by the 8 Minister. 9 (3) In this section: 10 approved person means: 11 (a) Roads and Maritime Services or a member of staff of Roads and 12 Maritime Services, or 13 (b) Transport for NSW or a member of staff of the Transport Service, 14 or 15 (c) the Newcastle Port Corporation, Port Kembla Port Corporation 16 or Sydney Ports Corporation or a member of the staff of any of 17 those port corporations, or 18 (d) a person appointed as, or exercising functions of, a harbour 19 master under the Marine Safety Act 1998, or 20 (e) a member of the Government Service, or 21 (f) any person of a class prescribed by the regulations. 22 248 Service of instruments (except in proceedings for offences) 23 (1) Any notice or other instrument issued, made or given for the purposes 24 of this Act may be served: 25 (a) by delivering it personally to the person to whom it is addressed, 26 or 27 (b) by delivering it to the place of residence or business of the person 28 to whom it is addressed and by leaving it there with some person 29 for him or her, or 30 (c) by posting it to the person addressed to the place last shown in the 31 records of the Minister as his or her place of residence or 32 business, or 33 Page 111 Clause 249 Marine Pollution Bill 2012 Part 22 Miscellaneous (d) in any manner in which any court attendance notice or other 1 process in any proceedings for an offence under the marine 2 legislation may be served, or 3 (e) if it is to be served on a person on board a vessel--by transmitting 4 its contents to the master of the vessel in any manner or by any 5 other manner authorised by this section. 6 (2) For the purposes of this section, a person's place of residence or 7 business includes a vessel on which the person resides or works. 8 (3) This section does not apply to the service of any court attendance notice 9 or other process in any proceedings for an offence under the marine 10 legislation or to the service of any notice or other instrument for which 11 provision is specifically made in the marine legislation. 12 249 Act to bind Crown (cf former Act s 4) 13 (1) This Act binds the Crown in right of New South Wales and, in so far as 14 the legislative power of the Parliament permits, the Crown in all its 15 other capacities. 16 (2) Nothing in this Act renders the Commonwealth or a State or Territory 17 of the Commonwealth liable to be prosecuted for an offence. 18 (3) Subsection (2) does not affect any liability of any servant or agent of the 19 Commonwealth or of a State or Territory of the Commonwealth to be 20 prosecuted for an offence. 21 250 Repeal 22 The Marine Pollution Act 1987 is repealed. 23 251 Review of Act 24 (1) The Minister is to review this Act to determine whether the policy 25 objectives of the Act remain valid and whether the terms of the Act 26 remain appropriate for securing those objectives. 27 (2) The review is to be undertaken as soon as possible after the period of 28 5 years from the date of assent to this Act. 29 (3) A report on the outcome of the review is to be tabled in each House of 30 Parliament within 12 months after the end of the period of 5 years. 31 Page 112 Marine Pollution Bill 2012 Amendment of other Acts Schedule 1 Schedule 1 Amendment of other Acts 1 1.1 Fire Brigades Act 1989 No 192 2 [1] Section 4 Application of Act 3 Omit "Marine Pollution Act 1987" from section 4 (2). 4 Insert instead "Marine Pollution Act 2012". 5 [2] Section 20A Hazardous material incidents outside area to which Act 6 applies 7 Omit "Marine Pollution Act 1987" from the definition of State waters in 8 section 20A (4). 9 Insert instead "Marine Pollution Act 2012". 10 1.2 Land and Environment Court Act 1979 No 204 11 Section 21 Class 5--environmental planning and protection summary 12 enforcement 13 Insert before section 21 (i): 14 (he) proceedings for an offence under the Marine Pollution 15 Act 2012, 16 1.3 Marine Safety Act 1998 No 121 17 [1] Section 4 Definitions 18 Omit "Marine Pollution Act 1987" from the definition of marine legislation 19 in section 4 (1). 20 Insert instead "Marine Pollution Act 2012". 21 [2] Section 4 (1), definition of "State waters" 22 Omit "Marine Pollution Act 1987" from the note to the definition. 23 Insert instead "Marine Pollution Act 2012". 24 [3] Section 114 Application of Division 25 Omit "Marine Pollution Act 1987" from section 114 (3). 26 Insert instead "Marine Pollution Act 2012". 27 Page 113 Marine Pollution Bill 2012 Schedule 1 Amendment of other Acts 1.4 Ports and Maritime Administration Act 1995 No 13 1 [1] Section 3 Definitions 2 Omit "Marine Pollution Act 1987" from the definition of marine legislation 3 in section 3 (1). 4 Insert instead "Marine Pollution Act 2012". 5 [2] Section 24 Marine safety functions generally 6 Omit "Marine Pollution Act 1987" from section 24 (c). 7 Insert instead "Marine Pollution Act 2012". 8 [3] Section 25 Particular marine safety functions 9 Omit "Marine Pollution Act 1987" from section 25 (c). 10 Insert instead "Marine Pollution Act 2012". 11 1.5 Protection of the Environment Operations Act 1997 No 156 12 [1] Section 7 General relationship with other Acts 13 Omit section 7 (3). Insert instead: 14 (3) Marine Pollution Act 2012 prevails 15 The provisions of, or made under, the Marine Pollution Act 2012 16 (except Part 8), in their application to State waters within the 17 meaning of that Act, prevail over this Act, to the extent of any 18 inconsistency. 19 [2] Section 146F 20 Insert after section 146E: 21 146F Application of Part to State waters 22 This Part extends to State waters within the meaning of the 23 Marine Pollution Act 2012, but not so as to make a person liable 24 to be punished for both: 25 (a) an offence under this Part, and 26 (b) an offence under the Marine Pollution Act 2012 or the 27 regulations under that Act. 28 Page 114 Marine Pollution Bill 2012 Savings, transitional and other provisions Schedule 2 Schedule 2 Savings, transitional and other 1 provisions 2 Part 1 Regulations 3 1 Regulations 4 (1) The regulations may contain provisions of a savings or transitional 5 nature consequent on the enactment of the following Acts: 6 this Act 7 (2) Any such provision may, if the regulations so provide, take effect from 8 the date of assent to the Act concerned or a later date. 9 (3) To the extent to which any such provision takes effect from a date that 10 is earlier than the date of its publication on the NSW legislation website, 11 the provision does not operate so as: 12 (a) to affect, in a manner prejudicial to any person (other than the 13 State or an authority of the State), the rights of that person 14 existing before the date of its publication, or 15 (b) to impose liabilities on any person (other than the State or an 16 authority of the State) in respect of anything done or omitted to 17 be done before the date of its publication. 18 Part 2 Savings and transitional provisions 19 consequent on enactment of this Act 20 2 Definition 21 In this Part: 22 former Act means the Marine Pollution Act 1987. 23 3 Former Act continues to apply 24 Despite the repeal of the former Act, the provisions of the former Act 25 continue to apply, after the commencement of this clause, in relation to 26 any discharge or transfer of oil or a noxious liquid substance, that 27 occurred before the commencement of this clause as if the former Act 28 had not been repealed. 29 4 Notices relating to pollution 30 Nothing in this Act affects any notice issued under section 48 of the 31 former Act before the commencement of section 191 of this Act and the 32 provisions of the former Act are to continue to apply in respect of any 33 such notice as if the former Act were still in force. 34 Page 115 Marine Pollution Bill 2012 Schedule 2 Savings, transitional and other provisions 5 Notices relating to oil transfer restrictions 1 A permission granted under section 32 of the former Act is taken to have 2 been granted under section 74 of this Act. 3 6 Inspector 4 A person appointed as an inspector under the former Act is taken to have 5 been appointed as an inspector under section 226 of this Act. 6 7 Certificates relating to construction of ships 7 (1) A ship construction certificate issued under section 36 of the former Act 8 is taken to be a NSW ship construction certificate issued under 9 section 155 (1) of this Act. 10 (2) A chemical tanker construction certificate issued under section 41 of the 11 former Act is taken to be a NSW chemical tanker construction 12 certificate issued under section 155 (2) of this Act. 13 Page 116

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