MARITIME LEGISLATION AMENDMENT BILL 2011

i Maritime Legislation Amendment Bill 2011 No. , 2011

Contents

1 Short

title

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2 Commencement

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3 Schedule(s)

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Schedule 1--Amendments

Navigation Act 1912

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

Protection of the Sea (Prevention of Pollution from Ships) Amendment

(Oils in the Antarctic Area) Act 2011

Maritime Legislation Amendment Bill 2011 No. , 2011 1

A Bill for an Act to amend the law relating to the

marine environment and to ships, and for related

purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Maritime Legislation Amendment Act

2011.

2 Commencement

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

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

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

according to its terms.

2 Maritime Legislation Amendment Bill 2011 No. , 2011

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Schedule 1,

items 1 to 6

The day after this Act receives the Royal

Assent.

3. Schedule 1,

item 7

The day after this Act receives the Royal

Assent.

However, if item 3 of Schedule 1 to the

Protection of the Sea (Prevention of

Pollution from Ships) Amendment (Oils in

the Antarctic Area) Act 2011 commences on

or before that day the provision does not

commence at all.

4. Schedule 1,

items 8 to 11

The day after this Act receives the Royal

Assent.

5. Schedule 1,

item 12

The day after this Act receives the Royal

Assent.

However, if item 4 of Schedule 1 to the

Protection of the Sea (Prevention of

Pollution from Ships) Amendment (Oils in

the Antarctic Area) Act 2011 commences on

or before that day the provision does not

commence at all.

6. Schedule 1,

items 13 to 17

The day after this Act receives the Royal

Assent.

7. Schedule 1,

item 18

Immediately after the commencement of the

Protection of the Sea (Prevention of

Pollution from Ships) Amendment (Oils in

the Antarctic Area) Act 2011.

However, if the Protection of the Sea

(Prevention of Pollution from Ships)

Amendment (Oils in the Antarctic Area) Act

2011 commences on or before this Act

receives the Royal Assent, the provision

does not commence at all.

Maritime Legislation Amendment Bill 2011 No. , 2011 3

Note:

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

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

3 Schedule(s)

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

repealed as set out in the applicable items in the Schedule

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

according to its terms.

Schedule 1 Amendments

4 Maritime Legislation Amendment Bill 2011 No. , 2011

Schedule 1--Amendments

Navigation Act 1912

1 Subsection 6(1)

Insert:

civil penalty order has the meaning given by subsection 399B(4).

2 Subsection 6(1)

Insert:

civil penalty provision has the meaning given by section 399A.

3 After Division 12D of Part IV

Insert:

Division 12E--Pollution or damage to the marine

environment

Subdivision A--Preliminary

267ZZG Interpretation

In this Division:

aggravated contravention has the meaning given by

section 267ZZN.

Australia includes the external Territories.

Australian ship means:

(a) a ship registered in Australia; or

(b) an unregistered ship having Australian nationality.

coastal sea of Australia means:

(a) the territorial sea of Australia; and

(b) the sea on the landward side of the territorial sea of Australia

and not within the limits of a State or Territory.

Amendments Schedule 1

Maritime Legislation Amendment Bill 2011 No. , 2011 5

Territory includes the external Territories.

Subdivision B--Ships causing pollution or damage to the

Australian marine environment

267ZZH Application

(1) Section 2 does not have effect in relation to this Subdivision.

(2) This Subdivision applies to the operation of a ship in:

(a) the coastal sea of Australia; or

(b) the exclusive economic zone; or

economic zone of Australia.

Note:

However, a master of a ship is only liable for an offence or civil

penalty under this Subdivision if pollution or damage to the marine

environment that occurs as a result of the master's operation of the

ship occurs in the coastal sea of Australia or the exclusive economic

zone of Australia (see sections 267ZZI and 267ZZJ).

267ZZI Operating a ship in a manner that causes pollution or

damage to the Australian marine environment

(1) A master of a ship must not operate the ship in a manner that

causes:

(a) pollution to the marine environment in the coastal sea of

Australia or the exclusive economic zone; or

(b) damage to the marine environment in the coastal sea of

Australia or the exclusive economic zone.

Offence

(2) A master commits an offence if the master contravenes

subsection (1).

Penalty: 600 penalty units.

(3) The physical elements of the offence are set out in subsection (1).

(4) Recklessness or negligence is the fault element for:

(a) the operation of the ship in the manner that causes the result

mentioned in paragraph (1)(a) or (b); and

(b) the result mentioned in paragraph (1)(a) or (b) occurring.

Schedule 1 Amendments

6 Maritime Legislation Amendment Bill 2011 No. , 2011

(5) In determining the standard of care a reasonable person would

exercise in operating the ship and whether there was a risk that a

result mentioned in paragraph (1)(a) or (b) would happen, the

matters to which the Court may have regard include, but are not

limited to, the following:

(a) the characteristics of the ship;

(b) the ship's cargo and the risks of pollution or damage to the

marine environment if that cargo is released;

pollution or damage to the marine environment if that amount

of oil is released;

(d) the state of visibility;

(e) the state of the wind, sea and current;

(f) the presence of other ships in the vicinity;

(g) the presence of navigation hazards in the vicinity;

(h) the rules under the Prevention of Collisions Convention;

(i) operational requirements imposed by law.

Civil penalty provision

(6) A master is liable to a civil penalty if the master contravenes

subsection (1).

Civil penalty:

(a) for an aggravated contravention--6,000 penalty units; or

(b) in any other case--600 penalty units.

267ZZJ Failure to ensure ship is operated in a manner that does not

cause pollution or damage to the Australian marine

environment

(1) A master of a ship must ensure that the ship is operated in a

manner that does not cause:

(a) pollution to the marine environment in the coastal sea of

Australia or the exclusive economic zone; or

(b) damage to the marine environment in the coastal sea of

Australia or the exclusive economic zone.

Amendments Schedule 1

Maritime Legislation Amendment Bill 2011 No. , 2011 7

Offence

(2) A master commits an offence if the master contravenes

subsection (1).

Penalty: 600 penalty units.

(3) The physical elements for the offence are set out in subsection (1).

(4) Recklessness or negligence is the fault element for:

(a) failure to ensure that the ship is operated in a manner that

does not cause the result mentioned in paragraph (1)(a) or

(b); and

(b) the result mentioned in paragraph (1)(a) or (b) occurring.

(5) The matters to which the Court may have regard in determining the

following include, but are not limited to, the matters set out in

subsection (6):

(a) the standard of care a reasonable person would exercise in

ensuring that the ship is operated in a manner that does not

cause the result mentioned in paragraphs (1)(a) and (b);

(b) whether there was a risk that the result mentioned in

paragraph (1)(a) or (b) would happen.

(6) Those matters are the following:

(a) the characteristics of the ship;

(b) the ship's cargo and the risks of pollution or damage to the

marine environment if that cargo is released;

pollution or damage to the marine environment if that amount

of oil is released;

(d) the state of visibility;

(e) the state of the wind, sea and current;

(f) the presence of other ships in the vicinity;

(g) the presence of navigation hazards in the vicinity;

(h) the rules under the Prevention of Collisions Convention;

(i) operational requirements imposed by law.

Civil penalty provision

(7) A master is liable to a civil penalty if the master contravenes

subsection (1).

Schedule 1 Amendments

8 Maritime Legislation Amendment Bill 2011 No. , 2011

Civil penalty:

(a) for an aggravated contravention--6,000 penalty units; or

(b) in any other case--600 penalty units.

Subdivision C--Australian ships causing pollution or damage

to the marine environment outside of Australia

267ZZK Application

(1) Section 2 does not have effect in relation to this Subdivision.

(2) This Subdivision applies to the operation of a ship in:

(a) the coastal sea of Australia; or

(b) the exclusive economic zone; or

economic zone of Australia.

267ZZL Operating a ship in a manner that causes pollution or

damage to the marine environment outside of Australia

(1) A master of an Australian ship must not operate the ship in a

manner that causes:

(a) pollution to the marine environment in seas that are beyond

the territorial sea and the exclusive economic zone of

Australia; or

(b) damage to the marine environment in seas that are beyond

the territorial sea and the exclusive economic zone of

Australia.

Offence

(2) A master commits an offence if the master contravenes

subsection (1).

Penalty: 600 penalty units.

(3) The physical elements of the offence are set out in subsection (1).

(4) Recklessness or negligence is the fault element for:

(a) the operation of the ship in the manner that causes the result

mentioned in paragraph (1)(a) or (b); and

(b) the result mentioned in paragraph (1)(a) or (b) occurring.

Amendments Schedule 1

Maritime Legislation Amendment Bill 2011 No. , 2011 9

(5) In determining the standard of care a reasonable person would

exercise in operating the ship and whether there was a risk that a

result mentioned in paragraph (1)(a) or (b) would happen, the

matters to which the Court may have regard include, but are not

limited to, the following:

(a) the characteristics of the ship;

(b) the ship's cargo and the risks of pollution or damage to the

marine environment if that cargo is released;

pollution or damage to the marine environment if that amount

of oil is released;

(d) the state of visibility;

(e) the state of the wind, sea and current;

(f) the presence of other ships in the vicinity;

(g) the presence of navigation hazards in the vicinity;

(h) the rules under the Prevention of Collisions Convention;

(i) operational requirements imposed by law.

Civil penalty provision

(6) A master is liable to a civil penalty if the master contravenes

subsection (1).

Civil penalty:

(a) for an aggravated contravention--6,000 penalty units; or

(b) in any other case--600 penalty units.

267ZZM Failure to ensure ship is operated in a manner that does

not cause pollution or damage to the marine environment

outside of Australia

(1) A master of an Australian ship must ensure that the ship is operated

in a manner that does not cause:

(a) pollution to the marine environment in seas that are beyond

the territorial sea and the exclusive economic zone of

Australia; or

(b) damage to the marine environment in seas that are beyond

the territorial sea and the exclusive economic zone of

Australia.

Schedule 1 Amendments

10 Maritime Legislation Amendment Bill 2011 No. , 2011

Offence

(2) A master commits an offence if the master contravenes

subsection (1).

Penalty: 600 penalty units.

(3) The physical elements for the offence are set out in subsection (1).

(4) Recklessness or negligence is the fault element for:

(a) failure to ensure that the ship is operated in a manner that

does not cause the result mentioned in paragraph (1)(a) or

(b); and

(b) the result mentioned in paragraph (1)(a) or (b) occurring.

(5) The matters to which the Court may have regard in determining the

following include, but are not limited to, the matters set out in

subsection (6):

(a) the standard of care a reasonable person would exercise in

ensuring that the ship is operated in a manner that does not

cause the result mentioned in paragraphs (1)(a) and (b);

(b) the risk that the result mentioned in paragraph (1)(a) or (b)

would happen.

(6) Those matters are the following:

(a) the characteristics of the ship;

(b) the ship's cargo and the risks of pollution or damage to the

marine environment if that cargo is released;

pollution or damage to the marine environment if that amount

of oil is released;

(d) the state of visibility;

(e) the state of the wind, sea and current;

(f) the presence of other ships in the vicinity;

(g) the presence of navigation hazards in the vicinity;

(h) the rules under the Prevention of Collisions Convention;

(i) operational requirements imposed by law.

Civil penalty provision

(7) A master is liable to a civil penalty if the master contravenes

subsection (1).

Amendments Schedule 1

Maritime Legislation Amendment Bill 2011 No. , 2011 11

Civil penalty:

(a) for an aggravated contravention--6,000 penalty units; or

(b) in any other case--600 penalty units.

Subdivision D--Aggravated contraventions of civil penalty

provisions

267ZZN Aggravated contraventions of civil penalty provisions

(1) A contravention of a civil penalty provision of this Division by a

person is an aggravated contravention if the conduct the person

engaged in that constituted the contravention:

(a) resulted in serious harm to the marine environment; or

(b) had the potential to cause serious harm to the marine

environment.

(2) In determining whether conduct has resulted in serious harm to the

marine environment, the Court may have regard to the following:

(a)

the

harm;

(b) the size of the affected environment;

(d) the significance of the affected environment;

(e) whether the harm is irreversible;

(f) the measures required to remedy the harm.

(3) In determining whether conduct had the potential to cause serious

harm to the marine environment, the Court may have regard to the

following:

(a) the potential harm;

(b) the size of the potentially affected environment;

(d) the significance of the potentially affected environment;

(e) whether the harm would have been irreversible, had it

occurred;

(f) the measures that would have been required to remedy the

harm, had it occurred.

(4) If the Authority intends to prove that the person has committed an

aggravated contravention, the Authority's application for a civil

Schedule 1 Amendments

12 Maritime Legislation Amendment Bill 2011 No. , 2011

penalty order in relation to the contravention must specify the

relevant aggravated contravention.

(5) If, in proceedings for a civil penalty order in relation to an

aggravated contravention of a provision of this Division, the Court:

(a) is not satisfied that the person has committed an aggravated

contravention against that provision; and

(b) is satisfied beyond reasonable doubt that the person has

contravened that provision;

the Court may make a civil penalty order against the person not for

the aggravated contravention but for the contravention of that

provision.

4 At the end of Part IV

Add:

269E Offence for failure to report in accordance with regulations

(1) The master of a ship commits an offence if:

(a) the master is required to make a report under the regulations

made for the purposes of a provision of this Part; and

(b) the master does not make the report in accordance with the

regulations.

Penalty: 240 penalty units.

(2) Subsection (1) is an offence of strict liability.

Note:

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

5 After Division 3 of Part X

Insert:

Division 3A--Civil penalty provisions

Subdivision A--Application

399A Civil penalty provisions

A provision of this Act is a civil penalty provision if:

(a) the provision sets out at its foot a pecuniary penalty, or

penalties, indicated by the words "Civil penalty"; and

Amendments Schedule 1

Maritime Legislation Amendment Bill 2011 No. , 2011 13

(b) the provision is a subsection, or a section that is not divided

into subsections.

Subdivision B--Obtaining a civil penalty order

399B Civil penalty orders

Application for order

(1) The Authority may apply to the Court for an order that a person,

who is alleged to have contravened a civil penalty provision, pay

the Commonwealth a pecuniary penalty.

(2) The Authority must make the application within 6 years of the

alleged contravention.

Court may order person to pay pecuniary penalty

(3) If the Court is satisfied that the person has contravened the civil

penalty provision, the Court may order the person to pay to the

Commonwealth such pecuniary penalty for the contravention as the

Court determines to be appropriate.

Note:

Subsection (5) sets out the maximum penalty that the Court may order

the person to pay.

(4) An order under subsection (3) is a civil penalty order.

Determining pecuniary penalty

(5) The pecuniary penalty must not be more than:

(a) if the person is a body corporate--5 times the pecuniary

penalty specified for the civil penalty provision; and

(b) otherwise--the pecuniary penalty specified for the civil

penalty provision.

(6) In determining the pecuniary penalty, the Court may take into

account all relevant matters, including:

(a) the nature and extent of the contravention; and

(b) the nature and extent of any loss or damage suffered because

of the contravention; and

Schedule 1 Amendments

14 Maritime Legislation Amendment Bill 2011 No. , 2011

(d) whether the person has previously been found by a court to

have engaged in any similar conduct.

399C Civil enforcement of penalty

(1) A pecuniary penalty is a debt payable to the Commonwealth.

(2) The Commonwealth may enforce a civil penalty order as if it were

an order made in civil proceedings against the person to recover a

debt due by the person. The debt arising from the order is taken to

be a judgement debt.

399D Conduct contravening more than one civil penalty provision

(1) If conduct constitutes a contravention of 2 or more civil penalty

provisions, proceedings may be instituted under this Division

against a person in relation to the contravention of any one or more

of those provisions.

(2) However, the person is not liable to more than one pecuniary

penalty under this Division in relation to the same conduct.

399E Multiple contraventions

(1) The Court may make a single civil penalty order against a person

for multiple contraventions of a civil penalty provision if

proceedings for the contraventions are founded on the same facts,

or if the contraventions form, or are part of, a series of

contraventions of the same or a similar character.

Note:

For continuing contraventions of civil penalty provisions, see

section 399P.

(2) However, the penalty must not exceed the sum of the maximum

penalties that could be ordered if a separate penalty were ordered

for each of the contraventions.

399F Proceedings may be heard together

The Court may direct that 2 or more proceedings for civil penalty

orders are to be heard together.

Amendments Schedule 1

Maritime Legislation Amendment Bill 2011 No. , 2011 15

399G Civil evidence and procedure rules for civil penalty orders

The Court must apply the rules of evidence and procedure for civil

matters when hearing proceedings for a civil penalty order.

399H Contravening a civil penalty provision is not an offence

A contravention of a civil penalty provision is not an offence.

Subdivision C--Civil proceedings and criminal proceedings

399J Civil proceedings after criminal proceedings

The Court may not make a civil penalty order against a person for

a contravention of a civil penalty provision if the person has been

convicted of an offence constituted by conduct that is the same, or

substantially the same, as the conduct constituting the

contravention.

399K Criminal proceedings during civil proceedings

(1) Proceedings for a civil penalty order against a person for a

contravention of a civil penalty provision are stayed if:

(a) criminal proceedings are commenced or have already been

commenced against the person for an offence; and

(b) the offence is constituted by conduct that is the same, or

substantially the same, as the conduct alleged to constitute

the contravention.

(2) The proceedings for the order (the civil proceedings) may be

resumed if the person is not convicted of the offence. Otherwise:

(a) the civil proceedings are dismissed; and

(b) costs must not be awarded in relation to the civil proceedings.

399L Criminal proceedings after civil proceedings

Criminal proceedings may be commenced against a person for

conduct that is the same, or substantially the same, as conduct that

would constitute a contravention of a civil penalty provision

regardless of whether a civil penalty order has been made against

the person in relation to the contravention.

Schedule 1 Amendments

16 Maritime Legislation Amendment Bill 2011 No. , 2011

399M Evidence given in civil proceedings not admissible in criminal

proceedings

(1) Evidence of information given, or evidence of production of

documents by an individual, is not admissible in criminal

proceedings against the individual if:

(a) the individual previously gave the evidence or produced the

documents in proceedings for a civil penalty order against the

individual for an alleged contravention of a civil penalty

provision (whether or not the order was made); and

(b) the conduct alleged to constitute the offence is the same, or

substantially the same, as the conduct alleged to constitute

the contravention.

(2) However, subsection (1) does not apply to criminal proceedings in

relation to the falsity of the evidence given by the individual in the

proceedings for the civil penalty order.

Subdivision D--Miscellaneous

399N Ancillary contravention of civil penalty provisions

(1) A person must not:

(a) attempt to contravene a civil penalty provision; or

(b) aid, abet, counsel or procure a contravention of a civil

penalty provision; or

a civil penalty provision; or

(d) be in any way, directly or indirectly, knowingly concerned in,

or party to, a contravention of a civil penalty provision; or

(e) conspire with others to effect a contravention of a civil

penalty provision.

Note:

Section 399R (which provides that a person's state of mind does not

need to be proven in relation to a civil penalty provision) does not

apply to subsection (1) of this section.

Civil penalty

(2) A person who contravenes subsection (1) in relation to a civil

penalty provision is taken to have contravened the provision.

Amendments Schedule 1

Maritime Legislation Amendment Bill 2011 No. , 2011 17

399P Continuing contraventions of civil penalty provisions

(1) If an act or thing is required under a civil penalty provision to be

done:

(a) within a particular period; or

(b) before a particular time;

then the obligation to do that act or thing continues until the act or

thing is done (even if the period has expired or the time has

passed).

(2) A person who contravenes a civil penalty provision that requires an

act or thing to be done:

(a) within a particular period; or

(b) before a particular time;

commits a separate contravention of that provision in respect of

each day during which the contravention occurs (including the day

the relevant civil penalty order is made or any later day).

399Q Mistake of fact

(1) A person is not liable to have a civil penalty order made against the

person for a contravention of a civil penalty provision if:

(a) at or before the time of the conduct constituting the

contravention, the person:

(i) considered whether or not facts existed; and

(ii) was under a mistaken but reasonable belief about those

facts; and

(b) had those facts existed, the conduct would not have

constituted a contravention of the civil penalty provision.

(2) For the purposes of subsection (1), a person may be regarded as

having considered whether or not facts existed if:

(a) the person had considered, on a previous occasion, whether

those facts existed in the circumstances surrounding that

occasion; and

(b) the person honestly and reasonably believed that the

circumstances surrounding the present occasion were the

same, or substantially the same, as those surrounding the

previous occasion.

Schedule 1 Amendments

18 Maritime Legislation Amendment Bill 2011 No. , 2011

(3) A person who wishes to rely on subsection (1) or (2) in

proceedings for a civil penalty order bears an evidential burden in

relation to that matter.

399R State of mind

(1) In proceedings for a civil penalty order against a person for a

contravention of a civil penalty provision (other than subsection

399N(1)), it is not necessary to prove:

(a) the person's intention; or

(b) the person's knowledge; or

(d) the person's negligence; or

(e) any other state of mind of the person.

(2) Subsection (1) does not affect the operation of section 399Q

(which is about mistake of fact).

Protection of the Sea (Prevention of Pollution from Ships)

Act 1983

6 Subsection 9(1)

Repeal the subsection.

7 Subsection 9(1A)

Repeal the subsection.

8 Subsection 9(1B)

Omit "and the owner of the ship", substitute ", the charterer and the

owner of the ship".

9 Subsection 9(1B)

Omit "500", substitute "20,000".

10 Paragraphs 9(3)(a) and (b)

Omit "or owner of the ship", substitute ", the charterer or the owner of

the ship".

11 Subsection 10(1)

Amendments Schedule 1

Maritime Legislation Amendment Bill 2011 No. , 2011 19

Repeal the subsection.

12 Subsection 10(2)

Repeal the subsection.

13 Paragraph 10(3)(b)

Omit "9(1) or (1B)" substitute "9(1B)".

14 Subsection 10(3)

Omit "and the owner of the ship", substitute ", the charterer and the

owner of the ship".

15 Subsection 10(3)

Omit "500", substitute "20,000".

16 Subsection 11(9)

Repeal the subsection.

17 Subsection 28(4)

Omit "9", substitute "9, 10".

Protection of the Sea (Prevention of Pollution from Ships)

Amendment (Oils in the Antarctic Area) Act 2011

18 Items 3 and 4 of Schedule 1

Repeal the items.

Commonwealth of Australia Bills

MARITIME LEGISLATION AMENDMENT BILL 2011