Commonwealth Consolidated Acts

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

Ordinary offence

  (1)   A person commits an offence if:

  (a)   the person engages in conduct; and

  (b)   the conduct results in fuel oil with a sulphur content of more than the limit prescribed by the regulations for the purposes of this paragraph being:

  (i)   used on board a ship as fuel; or

  (ii)   carried on board a ship for use on board the ship as fuel; and

  (c)   the person is reckless or negligent as to causing the result mentioned in paragraph   (b); and

  (d)   the result mentioned in paragraph   (b) occurs in one of the following circumstances:

  (i)   the ship is in the sea near a State, the Jervis Bay Territory or an external Territory and no law of that State or Territory gives effect to paragraph   1 of Regulation   14 of Annex VI in relation to the area of the sea where the result occurs;

  (ii)   the ship is in the outer territorial sea;

  (iii)   the ship is in the exclusive economic zone;

  (iv)   the ship is an Australian ship that is beyond the exclusive economic zone, but not within an emission control area.

Penalty:   2,000 penalty units.

Strict liability offence

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

  (a)   fuel oil with a sulphur content of more than the limit prescribed for the purposes of paragraph   (1)(b) is:

  (i)   used on board the ship as fuel; or

  (ii)   carried on board the ship for use on board the ship as fuel; and

  (b)   one of the following applies:

  (i)   the ship is in the sea near a State, the Jervis Bay Territory or an external Territory and no law of that State or Territory gives effect to paragraph   1 of Regulation   14 of Annex VI in relation to the area of the sea where the fuel oil is used or carried as mentioned in paragraph   (a);

  (ii)   the ship is in the outer territorial sea;

  (iii)   the ship is in the exclusive economic zone;

  (iv)   the ship is an Australian ship that is beyond the exclusive economic zone, but not within an emission control 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 .

Presumptions

  (4)   For the purposes of this section and section   26FEGA, fuel oil carried on board a ship is presumed to be carried for use on board the ship as fuel unless the contrary is proved.

Note:   A defendant bears a legal burden in relation to proving the contrary: see section   13.4 of the Criminal Code .

  (5)   For the purposes of subsection   (1) of this section, the result mentioned in paragraph   (1)(b) is presumed to occur in one of the circumstances mentioned in paragraph   (1)(d) unless it is proved that the result did not occur in any of those circumstances.

Note:   A defendant bears a legal burden in relation to proving that the result did not occur in any of those circumstances: see section   13.4 of the Criminal Code .

  (6)   For the purposes of subsection   (2) of this section, each subparagraph in paragraph   (2)(b) is presumed to apply unless it is proved that the subparagraph does not apply.

Note:   A defendant bears a legal burden in relation to proving that the subparagraph does not apply: see section   13.4 of the Criminal Code .