PROTECTION OF THE SEA (PREVENTION OF POLLUTION FROM SHIPS) ACT 1983 - SECT 26F Prohibition of discharge of garbage into the sea

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

  (1)   If:

  (a)   a person engages in conduct that causes a discharge of garbage 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 when the ship is not within a special area, 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 Regulations   3, 4 and 7 of Annex V to the Convention in relation to the area of the sea where the discharge occurs;

  (ia)   the discharge occurs when the ship is within a special area, 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 Regulations   3, 6 and 7 of Annex V to the Convention in relation to the area of the sea where the discharge occurs;

  (ib)   the discharge occurs into the outer territorial 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.

Strict liability offence

  (3)   Subject to subsections   (5) to (11), if:

  (a)   there is a discharge of garbage from a ship into the sea; and

  (b)   one of the following subparagraphs applies:

  (i)   the discharge occurs when the ship is not within a special area, 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 Regulations   3, 4 and 7 of Annex V to the Convention in relation to the area of the sea where the discharge occurs;

  (ia)   the discharge occurs when the ship is within a special area, 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 Regulations   3, 6 and 7 of Annex V to the Convention in relation to the area of the sea where the discharge occurs;

  (ib)   the discharge occurs into the outer territorial 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.

Exception--discharge of garbage for ship's safety or for saving life

  (5)   Subsection   (3) does not apply to the discharge of garbage from a ship for the purpose of securing the safety of the ship and the persons on board the ship or of saving life at sea.

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 fishing gear from a ship

  (5A)   Subsection   (3) does not apply to the discharge of fishing gear from a ship if the discharge is for the protection of the marine environment or for the safety of the ship or its crew.

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

Exception--discharge of food wastes if health risk

  (5B)   Subsection   (3) does not apply to the discharge of food wastes from a ship if the retention of those wastes on board the ship presents an imminent health risk to the persons on board the ship.

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

Exception--discharge of food wastes outside a special area or Arctic waters

  (6)   Subsection   (3) does not apply to the discharge of garbage from a ship if the following conditions are satisfied:

  (a)   the discharge occurs when the ship is not within a special area and not in Arctic waters;

  (b)   the discharge occurs when the ship is proceeding en route and is as far as practicable from the nearest land;

  (c)   the garbage is food wastes;

  (d)   in the case of food wastes that have been passed through a comminuter or grinder so that the wastes are capable of passing through a screen with no opening greater than 25 millimetres:

  (i)   if the discharge occurs when the ship is not alongside, or within 500 metres of, a fixed or floating platform--the discharge occurs when the ship is at a distance of not less than 3 nautical miles from the nearest land; or

  (ii)   if the discharge occurs when the ship is alongside, or within 500 metres of, a fixed or floating platform--the discharge occurs when the ship is at a distance of not less than 12 nautical miles from the nearest land;

  (e)   in the case of all other food wastes:

  (i)   the discharge occurs when the ship is at a distance of not less than 12 nautical miles from the nearest land; and

  (ii)   the discharge occurs when the ship is not alongside, or within 500 metres of, a fixed or floating platform.

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 cargo residues outside a special area or Arctic waters

  (7)   Subsection   (3) does not apply to the discharge of garbage from a ship if the following conditions are satisfied:

  (a)   the discharge occurs when the ship is not within a special area and not in Arctic waters;

  (b)   the discharge occurs when the ship is proceeding en route and is as far as practicable from the nearest land;

  (c)   the garbage is cargo residues that cannot be recovered using commonly available methods for unloading;

  (d)   the cargo residues do not contain any prescribed substances;

  (da)   if the cargo residues are residues of solid bulk cargoes (except grain)--the master of the ship has a written declaration made by the shipper stating that:

  (i)   the solid bulk cargoes have been classified in accordance with the criteria mentioned in Appendix I of Annex V to the Convention; and

  (ii)   the solid bulk cargoes are not harmful to the marine environment;

  (e)   the discharge occurs when the ship is at a distance of not less than 12 nautical miles from the nearest land;

  (f)   the discharge occurs when the ship is not alongside, or within 500 metres of, a fixed or floating platform.

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

Exception--discharge of animal carcasses outside a special area or Arctic waters

  (8)   Subsection   (3) does not apply to the discharge of garbage from a ship if the following conditions are satisfied:

  (a)   the discharge occurs when the ship is not within a special area and not in Arctic waters;

  (b)   the discharge occurs when the ship is proceeding en route and is as far as practicable from the nearest land;

  (c)   the garbage is animal carcasses;

  (d)   the prescribed requirements are satisfied;

  (e)   the discharge occurs when the ship is not alongside, or within 500 metres of, a fixed or floating platform.

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 cleaning agents or additives outside a special area or Arctic waters

  (8A)   Subsection   (3) does not apply to the discharge of garbage from a ship if the following conditions are satisfied:

  (a)   the discharge occurs when the ship is not within a special area and not in Arctic waters;

  (b)   the garbage is cleaning agents or additives contained in deck wash water or other external surfaces wash water;

  (c)   the cleaning agents or additives are not prescribed cleaning agents or additives;

  (d)   the discharge occurs when the ship is not alongside, or within 500 metres of, a fixed or floating platform.

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

Exception--discharge of food wastes in a special area or Arctic waters

  (8B)   Subsection   (3) does not apply to the discharge of garbage from a ship if the following conditions are satisfied:

  (a)   the discharge occurs when the ship is within a special area or in Arctic waters;

  (b)   the discharge occurs when the ship is proceeding en route;

  (c)   the garbage is food wastes;

  (d)   the food wastes have been passed through a comminuter or grinder so that the wastes are capable of passing through a screen with no opening greater than 25 millimetres;

  (e)   the food wastes have not been contaminated by any other kind of garbage;

  (f)   if the discharge occurs when the ship is within a special area other than the Antarctic Area--the discharge occurs when the ship is as far as practicable from, and is at a distance of not less than 12 nautical miles from, the nearest land or nearest ice - shelf;

  (fa)   if the discharge occurs when the ship is in the Antarctic Area or Arctic waters--the discharge occurs when the ship is:

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

  (ii)   at a distance of not less than 12 nautical miles from the nearest land, nearest ice - shelf or nearest fast ice;

  (fb)   if the discharge occurs when the ship is in the Antarctic Area or Arctic waters--the food wastes are not discharged onto ice;

  (g)   if the discharge is of introduced avian products (including poultry and poultry parts) in the Antarctic Area--those products have been treated to be made sterile.

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

Exceptions--discharge of cargo residues, cleaning agents or additives in a special area or Arctic waters

  (8C)   Subsection   (3) does not apply to the discharge of garbage from a ship if the following conditions are satisfied:

  (a)   the discharge occurs when the ship is within a special area or in Arctic waters;

  (b)   the discharge occurs when the ship is proceeding en route;

  (c)   either:

  (i)   the garbage is cargo residues that are contained in cargo hold wash water, that cannot be recovered using commonly available methods for unloading and that do not contain any prescribed substances; or

  (ii)   the garbage is cleaning agents or additives contained in cargo hold wash water and the cleaning agents or additives are not prescribed cleaning agents or additives;

  (ca)   if the garbage is cargo residues that are contained in cargo hold wash water and that are residues of solid bulk cargoes (except grain)--the master of the ship has a written declaration made by the shipper stating that:

  (i)   the solid bulk cargoes have been classified in accordance with the criteria mentioned in Appendix I of Annex V to the Convention; and

  (ii)   the solid bulk cargoes are not harmful to the marine environment;

  (d)   both the port of departure and the next port of destination are either within the special area or in Arctic waters;

  (e)   the ship's voyage plan (however described), as in force immediately before the start of the ship's voyage, does not show the ship transiting outside the special area or Arctic waters (as the case may be) between the port of departure and the next port of destination;

  (f)   if both the port of departure and the next port of destination are within the special area--there are no reception facilities at those ports that comply with guidelines (as in force from time to time) developed by the International Maritime Organization for the purposes of subparagraph   1.2.5 of Regulation   6 of Annex V to the Convention;

  (g)   if both the port of departure and the next port of destination are in Arctic waters--there are no reception facilities at those ports that comply with guidelines (as in force from time to time) developed by the International Maritime Organization for the purposes of subparagraph   5.2.1.5.3 of Chapter   5 of Part   II - A of the Polar Code;

  (ga)   if the discharge occurs when the ship is within a special area other than the Antarctic Area--the discharge occurs when the ship is as far as practicable from, and is at a distance of not less than 12 nautical miles from, the nearest land or nearest ice - shelf;

  (gb)   if the discharge occurs when the ship is in the Antarctic Area or Arctic waters--the discharge occurs when the ship is:

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

  (ii)   at a distance of not less than 12 nautical miles from the nearest land, nearest ice - shelf or nearest fast ice;

  (h)   the discharge occurs when the ship is not alongside, or within 500 metres of, a fixed or floating platform.

Note 1:   A defendant bears an evidential burden in relation to the matter in subsection   (8C): see subsection   13.3(3) of the Criminal Code .

Note 2:   The guidelines mentioned in paragraphs   (8C)(f) and (g) could in 2016 be viewed on the International Maritime Organization website (http://www.imo.org).

  (8D)   Subsection   (3) does not apply to the discharge of garbage from a ship if the following conditions are satisfied:

  (a)   the discharge occurs when the ship is within a special area or in Arctic waters;

  (b)   the discharge occurs when the ship is proceeding en route;

  (c)   the garbage is cleaning agents or additives contained in deck wash water or other external surfaces wash water;

  (d)   the cleaning agents or additives are not prescribed cleaning agents or additives;

  (e)   the discharge occurs when the ship is not alongside, or within 500 metres of, a fixed or floating platform.

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

Exception--accidental loss of garbage because of damage to a ship or its equipment

  (9)   If garbage from a ship is accidentally lost into the sea because of damage to the ship or its equipment, subsection   (3) does not apply to the discharge of the garbage if all reasonable precautions were taken before and after the occurrence of the damage to prevent or minimise the loss.

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

Meaning of damage to a ship or its equipment

  (9A)   For the purposes of subsection   (9), 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.

Exception--accidental loss of fishing gear

  (10)   If fishing gear from a ship is accidentally lost into the sea, subsection   (3) does not apply to the discharge of the gear if all reasonable precautions were taken to prevent the loss.

Note:   A defendant bears an evidential burden in relation to the matter in subsection   (10): see subsection   13.3(3) of the Criminal Code .

Other more stringent requirements

  (11)   If:

  (a)   garbage is mixed with, or contaminated by, matter the discharge or disposal of which from a ship into the sea is prohibited under another Part unless certain conditions are complied with; and

  (b)   the conditions referred to in paragraph   (a) are more stringent than the conditions referred to in subsections   (6) to (10) (inclusive);

subsection   (3):

  (c)   applies to the discharge of the garbage from a ship notwithstanding that the conditions referred to in subsection   (6), (7), (8), (8A), (8B), (8C), (8D), (9) or (10) are complied with; but

  (d)   does not apply to the discharge of the garbage from a ship if those more stringent requirements are complied with.

Interpretation

  (12)   Subsections   (6) to (8D) do not limit the generality of subsections   (5) and (5B).

  (12A)   Subsection   (11) does not limit the generality of subsections   (5), (5A) and (5B).

  (13)   In this section plastics includes synthetic ropes, synthetic fishing nets, plastic garbage bags and incinerator ashes from plastic products.