Commonwealth Consolidated Acts

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

             (1)  If:

                     (a)  a person engages in conduct that causes a discharge of sewage from a ship into the sea; and

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

                     (c)  one of the following subparagraphs applies:

                              (i)  the discharge occurs into the sea near a State, the Jervis Bay Territory or an external Territory and there is no law of that State or Territory that makes provision giving effect to Regulation 3 and to paragraph 1 of Regulation 11 of Annex IV to the Convention in relation to that sea;

                             (ii)  the discharge occurs into the sea in the exclusive economic zone;

                            (iii)  the discharge occurs into the sea beyond the exclusive economic zone and the ship is an Australian ship;

the person commits an offence punishable, on conviction, by a fine not exceeding 2,000 penalty units.

             (2)  In subsection (1):

"engage in conduct has the same meaning as in the Criminal Code" .

             (3)  Subject to subsections (5) to (9), if:

                     (a)  sewage is discharged from a ship into the sea; and

                     (b)  one of the following subparagraphs applies:

                              (i)  the discharge occurs into the sea near a State, the Jervis Bay Territory or an external Territory and there is no law of that State or Territory that makes provision giving effect to Regulation 3 and paragraph 1 of Regulation 11 of Annex IV to the Convention in relation to that sea;

                             (ii)  the discharge occurs into the sea in the exclusive economic zone;

                            (iii)  the discharge occurs into the sea beyond the exclusive economic zone and the ship is an Australian ship;

the master and the owner of the ship each commit an offence punishable, on conviction, by a fine not exceeding 500 penalty units.

             (4)  An offence against subsection (3) is an offence of strict liability.

             (5)  Subsection (3) does not apply to the discharge of sewage from a ship:

                     (a)  for the purpose of securing the safety of a ship and persons on board the ship or of saving life at sea; or

                     (b)  in a case where the sewage escaped from the ship in consequence of damage to the ship or its equipment and all reasonable precautions were taken before and after the occurrence of the damage for the purpose of preventing or minimising the escape of the sewage.

Note:          The defendant bears an evidential burden of proof of the matters mentioned in this subsection.

          (5A)  For the purposes of this section, damage to a ship or to its equipment does not include:

                     (a)  deterioration resulting from failure to maintain the ship or equipment; or

                     (b)  defects that develop during the normal operation of the ship or equipment.

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

                     (a)  where the sewage has been comminuted and disinfected using a system approved in accordance with the regulations, or orders made pursuant to 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 at a distance of not less than 3 nautical miles from the nearest land;

                     (b)  where the sewage is not sewage referred to in paragraph (a)--the discharge is made when the ship is at a distance of not less than 12 nautical miles from the nearest land;

                     (c)  where the sewage has been stored in holding tanks, 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:          The defendant bears an evidential burden of proof of the matters mentioned in this subsection.

             (7)  Without limiting the generality of subsection (5), subsection (3) does 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, being a plant:

                              (i)  that an inspector has certified meets the requirements of the regulations giving effect to paragraph 1.1 of Regulation 9 of Annex IV to the Convention; and

                             (ii)  the test results of which are laid down in the ship's sewage certificate within the meaning of Division 12C of Part IV of the Navigation Act 1912 ; and

                     (b)  the effluent does not produce visible floating solids in the waters of the sea and does not cause discolouration of the waters of the sea.

Note:          The defendant bears an evidential burden of proof of the matters mentioned in this subsection.

             (8)  Without limiting the generality of subsection (5), subsection (3) does not apply to the discharge of sewage if the discharge is made into the territorial waters of a foreign country in accordance with the law of that country.

Note:          The defendant bears an evidential burden of proof of the matters mentioned in this subsection.