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PROTECTION OF THE SEA (PREVENTION OF POLLUTION FROM SHIPS) ACT 1983 - SECT 26BCC Prohibition of discharge of sewage

PROTECTION OF THE SEA (PREVENTION OF POLLUTION FROM SHIPS) ACT 1983 - SECT 26BCC

Prohibition of discharge of sewage

Fault - based offences

  (1)   A person commits an offence if:

  (a)   the person engages in conduct; and

  (b)   the person's conduct causes a discharge of sewage from a ship in the Antarctic Area; and

  (c)   the person is reckless or negligent as to causing the discharge by that conduct; and

  (d)   the ship is a ship to which Annex IV to the Convention applies; and

  (e)   if the discharge occurs outside the outer limits of the exclusive economic zone adjacent to the coast of the Australian Antarctic Territory--the ship is an Australian ship.

Penalty:   2,000 penalty units.

  (2)   A person commits an offence if:

  (a)   the person engages in conduct; and

  (b)   the person's conduct causes a discharge of sewage from a ship in Arctic waters; and

  (c)   the person is reckless or negligent as to causing the discharge by that conduct; and

  (d)   the ship is a ship to which Annex IV to the Convention applies; and

  (e)   the ship is an Australian ship.

Penalty:   2,000 penalty units.

Strict liability offences

  (3)   The master and the owner of a ship each commit an offence of strict liability if:

  (a)   sewage is discharged from the ship in the Antarctic Area; and

  (b)   the ship is a ship to which Annex IV to the Convention applies; and

  (c)   if the discharge occurs outside the outer limits of the exclusive economic zone adjacent to the coast of the Australian Antarctic Territory--the ship is an Australian ship.

Penalty:   500 penalty units.

  (4)   The master and the owner of a ship each commit an offence of strict liability if:

  (a)   sewage is discharged from the ship in Arctic waters; and

  (b)   the ship is a ship to which Annex IV to the Convention applies; and

  (c)   the ship is an Australian ship.

Penalty:   500 penalty units.

Exception--discharge of sewage for ship's safety etc.

  (5)   Subsections   (3) and (4) do not apply to the discharge of sewage from a ship if:

  (a)   the discharge is necessary for the purpose of:

  (i)   securing the safety of the ship and persons on board the ship; or

  (ii)   saving life at sea; or

  (b)   both of the following apply:

  (i)   the discharge results from damage to the ship or its equipment;

  (ii)   all reasonable precautions were taken before and after the occurrence of the damage for the purpose of preventing or minimising the discharge.

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

Exception--discharge of comminuted and disinfected sewage etc.

  (6)   Without limiting the generality of subsection   (5), subsections   (3) and (4) do not apply to the discharge of sewage from a ship if the following conditions are satisfied:

  (a)   the ship is not a category A ship, category B ship or passenger ship constructed on or after 1   January 2017;

  (b)   if the sewage has been comminuted and disinfected using a system approved in accordance with the regulations giving effect to paragraph   1.2 of Regulation   9 of Annex IV to the Convention--the discharge is made when the ship is:

  (i)   as far as practicable from areas of ice concentration exceeding 1/10; and

  (ii)   at a distance of more than 3 nautical miles from the nearest land, any ice - shelf or fast ice;

  (c)   if the sewage has not been comminuted or disinfected using such a system--the discharge is made when the ship is:

  (i)   as far as practicable from areas of ice concentration exceeding 1/10; and

  (ii)   at a distance of more than 12 nautical miles from the nearest land, any ice - shelf or fast ice;

  (d)   if the sewage has been stored in a holding tank or originates from spaces containing living animals--the sewage is not discharged instantaneously but is discharged at a prescribed rate when the ship is proceeding en route at a speed of not less than 4 knots.

Note:   A defendant bears an evidential burden in relation to the matter in subsection   (6): see subsection   13.3(3) of the Criminal Code .

Exception--discharge of sewage treated in sewage treatment plant

  (7)   Without limiting the generality of subsection   (5), subsections   (3) and (4) do not apply to the discharge of sewage from a ship if the following conditions are satisfied:

  (a)   the sewage has been treated in a sewage treatment plant on the ship;

  (b)   an inspector has certified that the sewage treatment plant meets the requirements of the regulations giving effect to paragraph   1.1 or 2.1 of Regulation   9 of Annex IV to the Convention;

  (c)   the discharge is made when the ship is as far as practicable from the nearest land, any ice - shelf, fast ice or areas of ice concentration exceeding 1/10;

  (d)   the effluent does not produce visible floating solids in the Antarctic Area or Arctic waters and does not cause discolouration in the Antarctic Area or Arctic waters.

Note:   A defendant bears an evidential burden in relation to the matter in subsection   (7): see subsection   13.3(3) of the Criminal Code .

  (8)   Without limiting the generality of subsection   (5), subsections   (3) and (4) do not apply to the discharge of sewage from a ship if the following conditions are satisfied:

  (a)   the ship is a category A ship or category B ship operating in areas of ice concentration exceeding 1/10 for extended periods of time;

  (b)   the sewage has been treated in a sewage treatment plant on the ship;

  (c)   an inspector has certified that the sewage treatment plant meets the requirements of the regulations giving effect to paragraph   1.1 or 2.1 of Regulation   9 of Annex IV to the Convention;

  (d)   the discharge has been approved in accordance with the regulations.

Note:   A defendant bears an evidential burden in relation to the matter in subsection   (8): see subsection   13.3(3) of the Criminal Code .

Exception--discharge of sewage in territorial waters of foreign country

  (9)   Without limiting the generality of subsection   (5), subsections   (3) and (4) do not apply to the discharge of sewage from a ship if the discharge occurs in the territorial waters of a foreign country in accordance with the law of that country.

Note:   A defendant bears an evidential burden in relation to the matter in subsection   (9): see subsection   13.3(3) of the Criminal Code .