Commonwealth Consolidated Acts

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

Ordinary offence

             (1)  A person commits an offence if:

                     (a)  the person:

                              (i)  takes an Australian ship into an SOx emission control area; or

                             (ii)  permits an Australian ship to be taken into an SOx emission control area; and

                     (b)  the person is the master or owner of the ship; and

                     (c)  the ship does not meet the SOx emission control conditions while the ship is within that area.

Penalty:  2,000 penalty units.

Strict liability offence

             (2)  A person commits an offence if:

                     (a)  the person:

                              (i)  takes an Australian ship into an SOx emission control area; or

                             (ii)  permits an Australian ship to be taken into an SOx emission control area; and

                     (b)  the person is the master or owner of the ship; and

                     (c)  the ship does not meet the SOx emission control conditions while the ship is within that area.

Penalty:  500 penalty units.

             (3)  An offence against subsection (2) is an offence of strict liability.

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

SOx emission control conditions

             (4)  The SOx emission control conditions for a ship in an SOx emission control area are:

                     (a)  the sulphur content of fuel oil used on board the ship while the ship is within that area does not exceed 1.5% m/m; or

                     (b)  both:

                              (i)  an exhaust gas cleaning system, or other technological method, approved by a prescribed officer, is operating on the ship in accordance with the regulations, while the ship is within that area, to reduce the total emission of sulphur oxides from the ship to (or below) the level prescribed by the regulations; and

                             (ii)  waste streams arising from the operation of such a system or other method are discharged in accordance with the regulations.

             (5)  If an approval under subparagraph (4)(b)(i) is given in writing, the approval is not a legislative instrument.

Exception for emergencies

             (6)  Subsection (2) does not apply to a ship if:

                     (a)  the ship does not meet the SOx emission control conditions while the ship is within an SOx emission control area only because the total emission of sulphur oxides from the ship is more than the level prescribed by the regulations; and

                     (b)  either:

                              (i)  the non‑compliance was a result of securing the safety of a ship or saving life at sea; or

                             (ii)  the non‑compliance was a result of unintentional damage to the ship or its equipment, and all reasonable precautions were taken after the occurrence of the damage, or the discovery of the emission, for the purpose of preventing or minimising the emission.

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

             (7)  For the purposes of subparagraph (6)(b)(ii), damage to a ship or to its equipment is not unintentional if the damage arose:

                     (a)  in circumstances where the master or owner of the ship:

                              (i)  acted with intent to cause the damage; or

                             (ii)  acted recklessly and with knowledge that the damage would probably result; or

                     (b)  as a result of the negligence of the master or owner of the ship.

             (8)  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.