Protection of the Sea (Prevention of Pollution from Ships) Amendment (Oil Transfers) Act 2011 No. 90, 2011 An Act to amend the Protection of the Sea (Prevention of Pollution from Ships) Act 1983, and for related purposes Contents 1 Short title 2 Commencement 3 Schedule(s) Schedule 1—Amendments Protection of the Sea (Prevention of Pollution from Ships) Act 1983 Protection of the Sea (Prevention of Pollution from Ships) Amendment (Oil Transfers) Act 2011 No. 90, 2011 An Act to amend the Protection of the Sea (Prevention of Pollution from Ships) Act 1983, and for related purposes [Assented to 4 August 2011] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Protection of the Sea (Prevention of Pollution from Ships) Amendment (Oil Transfers) Act 2011. 2 Commencement This Act commences on the day after this Act receives the Royal Assent. 3 Schedule(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Amendments Protection of the Sea (Prevention of Pollution from Ships) Act 1983 1 After section 11A Insert: 11B Transfer of oil cargo between oil tankers—transfer to be in accordance with ship‑to‑ship operations plan (1) A person commits an offence if: (a) the person is the master of an oil tanker (the subject oil tanker); and (b) the subject oil tanker has a gross tonnage of 150 or more; and (c) the subject oil tanker is engaged in the transfer of oil cargo with another oil tanker that has a gross tonnage of 150 or more; and (d) one of the following subparagraphs applies: (i) the transfer occurs while the subject oil tanker is in 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 41 of Annex I to the Convention in relation to that sea; (ii) the transfer occurs while the subject oil tanker is in the exclusive economic zone; (iii) the transfer occurs while the subject oil tanker is beyond the exclusive economic zone and the subject oil tanker is an Australian ship; and (e) the transfer is not in accordance with the subject oil tanker's ship‑to‑ship operations plan. Penalty: 200 penalty units. (2) For the purposes of this section, a ship‑to‑ship operations plan for an oil tanker is: (a) if the oil tanker is an Australian ship—a plan: (i) that is in accordance with the appropriate prescribed form; and (ii) that is written in the working language of the master of, and the officers on board, the oil tanker; or (b) otherwise—a plan referred to in paragraph 1 of Regulation 41 of Annex I to the Convention. Exception (3) Subsection (1) does not apply if the transfer is described in paragraph 2, 3, 4 or 5 of Regulation 40 of Annex I to the Convention. Note: A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code. 11C Transfer of oil cargo between oil tankers in Australian waters—qualified person to be in control (1) A person commits an offence if: (a) an oil tanker (the subject oil tanker) has a gross tonnage of 150 or more; and (b) the subject oil tanker is engaged in the transfer of oil cargo with another oil tanker that has a gross tonnage of 150 or more; and (c) either of the following subparagraphs applies: (i) the transfer occurs while the subject oil tanker is in 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 41 of Annex I to the Convention in relation to that sea; (ii) the transfer occurs while the subject oil tanker is in the exclusive economic zone; and (d) the person has overall advisory control of the transfer; and (e) the person is not the master of either oil tanker; and (f) the person does not satisfy the qualification requirements prescribed by the regulations. Penalty: 60 penalty units. Strict liability offence (2) An offence against subsection (1) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. Exception (3) Subsection (1) does not apply if the transfer is described in paragraph 2, 3, 4 or 5 of Regulation 40 of Annex I to the Convention. Note: A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code. 11D Transfer of oil cargo involving an Australian ship—ship‑to‑ship operations plan to be carried (1) The master and the owner of an oil tanker (the subject oil tanker) each commit an offence if: (a) the subject oil tanker has a gross tonnage of 150 or more; and (b) the subject oil tanker is an Australian ship; and (c) the subject oil tanker is engaged in the transfer of oil cargo with another oil tanker that has a gross tonnage of 150 or more; and (d) while the transfer occurs, the subject oil tanker does not carry the subject oil tanker's ship‑to‑ship operations plan. Penalty: 500 penalty units. (2) For the purposes of this section, a ship‑to‑ship operations plan for an oil tanker is a plan: (a) that is in accordance with the appropriate prescribed form; and (b) that is written in the working language of the master of, and the officers on board, the oil tanker. Exception (3) Subsection (1) does not apply if the transfer is described in paragraph 2, 3, 4 or 5 of Regulation 40 of Annex I to the Convention. Note: A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code. 11E Transfer of oil cargo involving an Australian ship—making and retaining record of transfer Offence—failure to make record (1) A person commits an offence if: (a) the person is the master of an oil tanker (the subject oil tanker); and (b) the subject oil tanker has a gross tonnage of 150 or more; and (c) the subject oil tanker is an Australian ship; and (d) the subject oil tanker is engaged in the transfer of oil cargo with another oil tanker that has a gross tonnage of 150 or more; and (e) the person does not cause a ship‑to‑ship record to be made of the transfer as soon as is practicable in the circumstances. Penalty: 200 penalty units. Offence—failure to retain record etc. (2) The master and the owner of an oil tanker (the subject oil tanker) each commit an offence if: (a) the subject oil tanker has a gross tonnage of 150 or more; and (b) the subject oil tanker is an Australian ship; and (c) the subject oil tanker is engaged in the transfer of oil cargo with another oil tanker that has a gross tonnage of 150 or more; and (d) either: (i) a ship‑to‑ship record of the transfer is not retained in the subject oil tanker until the end of 3 years beginning on the day the record is made; or (ii) a ship‑to‑ship record of the transfer is not readily available for inspection by an inspector at all reasonable times during that period. Penalty: 60 penalty units. Ship‑to‑ship record (3) For the purposes of this section, a ship‑to‑ship record is a written record that contains the information prescribed by the regulations for the purposes of this subsection. Strict liability offence (4) An offence against subsection (2) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. Exception (5) Subsection (1) or (2) does not apply if the transfer is described in paragraph 2, 3, 4 or 5 of Regulation 40 of Annex I to the Convention. Note: A defendant bears an evidential burden in relation to the matter in subsection (5): see subsection 13.3(3) of the Criminal Code. 11F Transfer of oil cargo between oil tankers in Australian waters—notification of transfer Main offence (1) A person commits an offence if: (a) the person is the master of an oil tanker (the subject oil tanker); and (b) the subject oil tanker has a gross tonnage of 150 or more; and (c) the subject oil tanker is engaged in the transfer of oil cargo with another oil tanker that has a gross tonnage of 150 or more; and (d) either of the following subparagraphs applies: (i) the transfer occurs while the subject oil tanker is in 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 42 of Annex I to the Convention in relation to that sea; (ii) the transfer occurs while the subject oil tanker is in the exclusive economic zone; and (e) if the ship‑to‑ship transfer information was available to the person at least 48 hours before the transfer began—either or both of the following subparagraphs apply: (i) the person did not notify a prescribed officer, in the manner prescribed by the regulations, of the transfer at least 48 hours before the transfer began; (ii) the person did not notify a prescribed officer, in the manner prescribed by the regulations, of that information at least 48 hours before the transfer began; and (f) if the ship‑to‑ship transfer information was not available to the person at least 48 hours before the transfer began—either or both of the following subparagraphs apply: (i) the person did not notify a prescribed officer, in the manner prescribed by the regulations, of the transfer at least 48 hours before the transfer began; (ii) the person did not notify a prescribed officer, in the manner prescribed by the regulations, of that information before the transfer began. Penalty: 200 penalty units. Offence—failure to notify change of arrival time (2) A person commits an offence if: (a) the person is the master of an oil tanker (the subject oil tanker); and (b) the subject oil tanker has a gross tonnage of 150 or more; and (c) the subject oil tanker is engaged in the transfer of oil cargo with another oil tanker that has a gross tonnage of 150 or more; and (d) either of the following subparagraphs applies: (i) the transfer occurs while the subject oil tanker is in 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 42 of Annex I to the Convention in relation to that sea; (ii) the transfer occurs while the subject oil tanker is in the exclusive economic zone; and (e) the person notified a prescribed officer, in the manner prescribed by the regulations, of the transfer, and of the ship‑to‑ship transfer information, at least 48 hours before the transfer began; and (f) after the notification referred to in paragraph (e), the estimated time of arrival of the subject oil tanker at the location for the transfer changed by more than 6 hours; and (g) the person did not notify a prescribed officer, in the manner prescribed by the regulations, of the new estimated time of arrival within 2 hours of the person becoming aware of the new estimated time of arrival. Penalty: 60 penalty units. Ship‑to‑ship transfer information (3) For the purposes of this section, ship‑to‑ship transfer information is information prescribed by the regulations for the purposes of this subsection. Strict liability offence (4) An offence against subsection (2) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. Exception (5) Subsection (1) or (2) does not apply if the transfer is described in paragraph 2, 3, 4 or 5 of Regulation 40 of Annex I to the Convention. Note: A defendant bears an evidential burden in relation to the matter in subsection (5): see subsection 13.3(3) of the Criminal Code. 11G Transfer of oil cargo between oil tankers outside Australian waters—notification of transfer Main offence (1) A person commits an offence if: (a) the person is the master of an oil tanker (the subject oil tanker); and (b) the subject oil tanker has a gross tonnage of 150 or more; and (c) the subject oil tanker is an Australian ship; and (d) the subject oil tanker is engaged in the transfer of oil cargo with another oil tanker that has a gross tonnage of 150 or more; and (e) the transfer occurs while the subject oil tanker is in the territorial sea, or in the exclusive economic zone, of a foreign country that is a party to the Convention; and (f) if the ship‑to‑ship transfer information was available to the person at least 48 hours before the transfer began—either or both of the following subparagraphs apply: (i) the person did not notify the government of that foreign country, in the manner prescribed by the regulations, of the transfer at least 48 hours before the transfer began; (ii) the person did not notify the government of that foreign country, in the manner prescribed by the regulations, of that information at least 48 hours before the transfer began; and (g) if the ship‑to‑ship transfer information was not available to the person at least 48 hours before the transfer began—either or both of the following subparagraphs apply: (i) the person did not notify the government of that foreign country, in the manner prescribed by the regulations, of the transfer at least 48 hours before the transfer began; (ii) the person did not notify the government of that foreign country, in the manner prescribed by the regulations, of that information before the transfer began. Penalty: 200 penalty units. Offence—failure to notify change of arrival time (2) A person commits an offence if: (a) the person is the master of an oil tanker (the subject oil tanker); and (b) the subject oil tanker has a gross tonnage of 150 or more; and (c) the subject oil tanker is an Australian ship; and (d) the subject oil tanker is engaged in the transfer of oil cargo with another oil tanker that has a gross tonnage of 150 or more; and (e) the transfer occurs while the subject oil tanker is in the territorial sea, or in the exclusive economic zone, of a foreign country that is a party to the Convention; and (f) the person notified the government of that foreign country, in the manner prescribed by the regulations, of the transfer, and of the ship‑to‑ship transfer information, at least 48 hours before the transfer began; and (g) after the notification referred to in paragraph (f), the estimated time of arrival of the subject oil tanker at the location for the transfer changed by more than 6 hours; and (h) the person did not notify the government of that foreign country, in the manner prescribed by the regulations, of the new estimated time of arrival within 2 hours of the person becoming aware of the new estimated time of arrival. Penalty: 60 penalty units. Ship‑to‑ship transfer information (3) For the purposes of this section, ship‑to‑ship transfer information is information prescribed by the regulations for the purposes of this subsection. Strict liability offence (4) An offence against subsection (2) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. Exception (5) Subsection (1) or (2) does not apply if the transfer is described in paragraph 2, 3, 4 or 5 of Regulation 40 of Annex I to the Convention. Note: A defendant bears an evidential burden in relation to the matter in subsection (5): see subsection 13.3(3) of the Criminal Code. Definitions (6) In this section: exclusive economic zone has the same meaning as in the Seas and Submerged Lands Act 1973. territorial sea has the same meaning as in the Seas and Submerged Lands Act 1973. 2 Application Sections 11B to 11G of the Protection of the Sea (Prevention of Pollution from Ships) Act 1983, as inserted by this Act, apply in relation to transfers of oil cargo that begin: (a) on or after 1 April 2012; or (b) if, for the subject oil tanker, the first survey of the kind referred to in paragraph 1 of Regulation 41 of Annex I to the Convention is completed during the period beginning on the day this item commences and ending immediately before 1 April 2012—on or after the day after that survey is completed. [Minister's second reading speech made in— House of Representatives on 25 May 2011 Senate on 4 July 2011] (90/11)