Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) If:
(a) a person engages in conduct that causes a disposal of garbage from a ship into the sea; and
(b) the person is reckless or negligent as to causing the disposal by that conduct; and
(c) one of the following subparagraphs applies:
(i) the disposal 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, 5 and 6 of Annex V to the Convention in relation to that sea;
(ii) the disposal occurs into the sea in the exclusive economic zone;
(iii) the disposal 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 (11), if:
(a) there is a disposal of garbage from a ship into the sea; and
(b) one of the following subparagraphs applies:
(i) the disposal 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, 5 and 6 of Annex V to the Convention in relation to that sea;
(ii) the disposal occurs into the sea in the exclusive economic zone;
(iii) the disposal 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 disposal 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: The defendant bears an evidential burden of proof of the matters mentioned in this subsection.
(6) Without limiting the generality of subsection (5) but subject to subsection (11), subsection (3) does not apply to the disposal of garbage (being dunnage, lining or packing materials which will float and are not plastics) from a ship into the sea if the following conditions are satisfied:
(a) the disposal takes place when the ship is not within a special area;
(b) the disposal takes place when the ship is as far as practicable from, and is at a distance of not less than 25 nautical miles from, the nearest land;
(c) the disposal takes place when the ship is not alongside, or within 500 metres of, a fixed or floating platform engaged in the exploration, exploitation and associated offshore processing of seabed mineral resources.
Note: The defendant bears an evidential burden of proof of the matters mentioned in this subsection.
(7) Without limiting the generality of subsection (5) but subject to subsection (11), subsection (3) does not apply to the disposal of garbage (not being plastics, garbage referred to in subsection (6) or food wastes) from a ship into the sea if the following conditions are satisfied:
(a) the disposal occurs when the ship is not within a special area;
(b) the disposal occurs when the ship is as far as practicable from the nearest land;
(c) except where paragraph (d) applies--the ship is at a distance of not less than 12 nautical miles from the nearest land;
(d) where the garbage is passed through a comminuter or grinder so that it is capable of passing through a screen with no opening greater than 25 millimetres--when the ship is at a distance of not less than 3 nautical miles from the nearest land;
(e) the disposal occurs when the ship is not alongside, or within 500 metres of, a platform of a kind referred to in paragraph (6)(c).
Note: The defendant bears an evidential burden of proof of the matters mentioned in this subsection.
(8) Without limiting the generality of subsection (5) but subject to subsection (11), subsection (3) does not apply to the disposal of garbage, being food wastes, from a ship into the sea outside the Antarctic Area if:
(a) the following conditions are satisfied:
(i) the disposal 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;
(ii) the disposal occurs when the ship is not alongside, or within 500 metres of, a platform of a kind referred to in paragraph (6)(c); or
(b) the conditions referred to in paragraphs (7)(a), (b) and (d) are satisfied.
Note: The defendant bears an evidential burden of proof of the matters mentioned in this subsection.
(8A) Without limiting the generality of subsection (5), subsection (3) does not apply to the disposal of garbage, being food wastes, from a ship into the sea in the Antarctic Area if:
(a) the garbage has been passed through a comminuter or grinder so that it is capable of passing through a screen with no opening wider than 25 millimetres; and
(b) the disposal 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 ice shelf.
Note: The defendant bears an evidential burden of proof of the matters mentioned in this subsection.
(9) Where garbage escapes from a ship into the sea because of damage to the ship or its equipment, subsection (3) does not apply to the disposal of the garbage if all reasonable precautions were taken before and after the occurrence of the damage for the purpose of preventing or minimising the escape of the garbage.
Note: The defendant bears an evidential burden of proof of the matters mentioned in this subsection.
(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.
(10) Where a synthetic fishing net, or synthetic material used in the repair of such a net, on a ship is accidently lost at sea, subsection (3) does not apply to the disposal of the net or material if all reasonable precautions were taken to prevent the loss.
Note: The defendant bears an evidential burden of proof of the matters mentioned in this subsection.
(11) Without limiting the generality of subsection (5), where:
(a) garbage is mixed with 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) apply to the disposal of the garbage from a ship notwithstanding that the conditions referred to in subsection (6), (7), (8), (9) or (10) are complied with; but
(d) do not apply to the disposal of the garbage from a ship if those more stringent requirements are complied with.
(13) In this section plastics includes synthetic ropes, synthetic fishing nets, plastic garbage bags and incinerator ashes from plastic products that may contain toxic or heavy metal residues.
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