Queensland: Transport Operations (Marine Pollution) Act 1995 (Qld)

Transport Operations (Marine Pollution) Act 1995 An Act to protect Queensland's marine and coastal environment by minimising deliberate and negligent discharges of ship-sourced pollutants into coastal waters, and for related purposes Part 1 Preliminary Division 1 Introduction 1 Short title This Act may be cited as the Transport Operations (Marine Pollution) Act 1995. 2 [Repealed] Division 2 Act's overall purpose 3 Overall purpose (1) The overall purpose of this Act is to protect Queensland's marine and coastal environment by minimising deliberate and negligent discharges of ship-sourced pollutants into coastal waters. (2) This purpose is to be achieved primarily by giving effect to relevant provisions of the following annexes of MARPOL— • Annex I (which deals with pollution by oil) • Annex II (which deals with pollution by noxious liquid substances in bulk) • Annex III (which deals with pollution by harmful substances in packaged form) • Annex IV (which deals with pollution by sewage) • Annex V (which deals with pollution by garbage). (3) The purpose is also to be achieved by— (a) providing an approach to protecting Queensland's marine and coastal environment from ship-sourced pollutants complementary to the approach of the Commonwealth and the other States; and (b) making provision about the discharge of sewage from ships; and (c) giving power to deal with shipping casualties that are polluting, or threatening to pollute, coastal waters; and (d) enhancing, through education processes, industry and community awareness of the effects of ship-sourced pollutants on Queensland's marine and coastal environment; and (e) providing for the imposition of severe penalties on persons who pollute Queensland's marine and coastal environment in contravention of this Act. Division 3 Interpretation 4 Definitions—the dictionary (1) A dictionary in schedule 1 defines particular words used in this Act. (2) Definitions found elsewhere in the Act are signposted in the dictionary. 5 Words and expressions used in MARPOL and this Act (1) Words and expressions used in MARPOL (other than in an annex) and this Act have the same meanings in this Act they have in MARPOL. (2) Subsection (1) applies— (a) whether or not a particular word or expression is defined in MARPOL; and (b) subject to sections 25, 34, 41, 46, 54 and 60. (3) Except as far as the context or subject matter otherwise indicates or requires, if a word or expression is defined in MARPOL (other than in an annex) and this Act— (a) this Act's definition does not limit or exclude, but may extend, the meaning of the word or expression given under MARPOL; and (b) the definitions are to be read in the context of each other and the other provisions of this Act, but, if the definitions so read are inconsistent, the MARPOL definition is displaced. 6 Meaning of MARPOL (1) MARPOL is the International Convention for the Prevention of Pollution from Ships, 1973— (a) as corrected by the procés-verbal of rectification dated 13 June 1978; and (b) as modified and added to by the 1978 Protocol; and (c) as affected by any amendment made under article 16 of the Convention and that has entered force for Australia. Note— At the commencement of this note, the text of MARPOL is accessible through the Australian Maritime Safety Authority website at http://www.amsa.gov.au. (2) In this section— 1978 Protocol means the Protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships, 1973, as affected by any amendment made under article VI of the Protocol that has entered force for Australia. 7 Meaning of agent (1) An agent of a ship owner is the person who, for the owner— (a) performs a function under the Marine Safety Act or the Transport Infrastructure Act 1994, chapter 8; or (b) performs a function under the domestic commercial vessel national law; or (c) makes an arrangement for berthing the ship, or loading or unloading cargo on or from the ship, in the State; or (d) makes an arrangement for the ship to load bunkers or stores in the State. (2) The person remains the ship owner's agent until— (a) the person, or the ship owner, gives the general manager written notice that the person is no longer the ship's agent; or (b) someone else in the State is appointed by the ship owner as agent; or (c) the ship goes outside coastal waters. (3) If subsection (2)(a) and (b) do not apply, the person again becomes the ship owner's agent when the ship returns to coastal waters. 7A Meaning of length overall (1) The length overall of a ship is the distance in the fore and aft line from the foremost part of the hull of the ship to the aftermost part of the hull of the ship taken at the upper weather tight deck or, for an open ship, at the height of the gunwale. (2) However, the length overall of the ship does not include the length of appendages to the hull. Example— A bowsprit or boarding platform is not taken into account when measuring the length overall of a ship. Division 4 Operation of Act 8 Act binds all persons This Act binds all persons, including the State, and, so far as the legislative power of the Parliament permits, the Commonwealth and the other States. 9 Discharge outside coastal waters that enters coastal waters (1) The discharge of a pollutant, whether or not in packaged form, that happens outside coastal waters is taken to be a discharge into coastal waters under this Act if the discharged pollutant enters coastal waters. (2) The discharge is taken to happen when the discharged pollutant enters coastal waters. Part 2 Information about this Act 10 Why this Act was enacted (1) In 1973, the international community responded to worldwide concern about the threat to the marine environment and coastlines posed by the discharge of ship-sourced pollutants. (2) The international community's response was the International Convention for the Prevention of Pollution from Ships, 1973. (3) The Convention, for the first time, set international standards for the proper construction of ships designed to carry oil and noxious substances and laid down rules about the level of discharges that may be made into the sea without risk to the marine environment. (4) The Convention, as amended, is known as MARPOL. Note— See section 6 for the precise meaning of MARPOL for this Act. (5) MARPOL was ratified by Australia in 1987. (6) This Act gives effect to MARPOL by— (a) enacting as part of Queensland's law provisions to give effect to relevant provisions of MARPOL; and (b) providing a legislative framework in which the provisions can be enforced. (7) This approach complements the approach adopted by the Commonwealth and the other States. 11 Queensland's jurisdiction (1) The body of law governing Australian waters is extremely complex and this section is intended to provide only a very general overview of the State's jurisdiction in the territorial sea. (2) Queensland's jurisdiction in the territorial sea is limited under the Coastal Waters (State Powers) Act 1980 (Cwlth). (3) Because of this limitation, this Act only deals with discharges from ships that happen, or are taken to happen, in the first 3n miles of the territorial sea and other coastal waters subject to the ebb and flow of the tide. (4) These waters are referred to as coastal waters in this Act. Note— See the dictionary in the schedule for the precise meaning of coastal waters for this Act. (5) Waters beyond the 3n mile limit come under Commonwealth jurisdiction to the extent that Australia has jurisdiction. 12 The ships this Act applies to This Act applies to all ships in coastal waters. 13 Ship's general safety obligations, surveying and registration (1) General safety duties for domestic commercial vessels and issues about their survey and certification are generally dealt with under the domestic commercial vessel national law. (2) General safety obligations for Queensland regulated ships and issues about their survey and registration are generally dealt with under the Marine Safety Act. 14 How this Act interacts with other environmental laws (1) This Act deals with the discharge of pollutants into coastal waters happening from ships or because of transfer operations involving ships. (2) If a pollutant is discharged into coastal waters from another source, other environmental laws may apply. Note— See, for example, the Environmental Protection Act 1994. Part 3 [Repealed] Division 1 [Repealed] 15 [Repealed] 16 [Repealed] Division 2 [Repealed] 17 [Repealed] 18 [Repealed] 19 [Repealed] Division 3 [Repealed] 20 [Repealed] 21 [Repealed] 22 [Repealed] Part 4 Prevention of pollution by oil Division 1 Purpose of part 23 Part gives effect to Annex I to MARPOL The purpose of this part is to give effect to relevant provisions of Annex I to MARPOL. Division 2 Interpretation 24 Definitions for part In this part— discharge offence means an offence against section 26(1) or 27(1). oil includes an oily mixture. 25 Words and expressions used in Annex I to MARPOL and this part (1) Words and expressions used in Annex I to MARPOL and this part have the same meanings in this part they have in the annex. (2) Subsection (1) applies whether or not a particular word or expression is defined in Annex I. (3) Except as far as the context or subject matter otherwise indicates or requires, if a word or expression is defined in Annex I to MARPOL and this part— (a) this part's definition does not limit or exclude, but may extend, the meaning of the word or expression given under Annex I; and (b) the definitions are to be read in the context of each other and the other provisions of this Act, but, if the definitions so read are inconsistent, the Annex I definition is displaced. Division 3 Discharge of oil prohibited 26 Discharge of oil into coastal waters prohibited (1) If oil is discharged from a ship into coastal waters, the following persons each commit an offence— (a) the ship's owner; (b) the ship's master; (c) another member of the ship's crew whose act caused or contributed to the discharge, unless the member was complying with an instruction from the master or of someone authorised by the master to give the instruction. Maximum penalty— (a) for an individual—5,000 penalty units; or (b) for a corporation—100,000 penalty units. (2) Subsection (1) applies despite the Criminal Code, sections 23 and 24. Note— The Criminal Code, section 23 deals with a person's criminal responsibility for an act or omission that happens independently of the person's will or for an event which is accidental. The Criminal Code, section 24 deals with a person's criminal responsibility for an act or omission done under an honest and reasonable, but mistaken, belief in the state of things. 27 Oil residues (1) If any oil residues that cannot be discharged from a ship without contravening section 26(1) are not retained on board the ship while the ship is in coastal waters, the ship's master and owner each commit an offence. Example— A ship leaves port A with a quantity of oil residues held in a tank or space and, without leaving coastal waters, arrives at port B with a lesser quantity in the tank or space. This subsection places an onus on the ship's master to explain why there is a discrepancy in the quantity. Maximum penalty— (a) for an individual—5,000 penalty units; or (b) for a corporation—100,000 penalty units. (2) If an event contravenes subsection (1) and section 26(1), the ship's owner and master cannot be punished for the event under both provisions. Division 4 Defences 28 Defences to discharge offence (1) Each of the following is a defence to a prosecution for a discharge offence— (a) the discharge was necessary for the purpose of securing the safety of a ship or saving life at sea; (b) the discharge resulted from damage, other than intentional damage, to the ship or its equipment and all reasonable precautions were taken after the damage happened or the discharge was discovered to prevent or minimise the discharge of the oil; (c) for an oily mixture—the discharge was made to combat specific pollution incidents to minimise the damage from pollution and was approved by an authorised officer; (d) the discharge was authorised by an authorised officer for training purposes. (2) For subsection (1)(b), damage to a ship or its equipment is intentional damage only if the damage arose in circumstances in which the ship's owner or master or, for a discharge offence against section 26(1), another member of the ship's crew— (a) acted with intent to cause damage; or (b) acted recklessly and with knowledge that damage would probably result. Division 5 Exemptions 29 Certain discharges permissible (1) The regulations may exempt discharges from the operation of the discharge offences. (2) However, a regulation may be made only if it gives effect to an exemption allowed under MARPOL. Example— The regulations may prescribe that oil may be discharged outside specified areas, at a rate and under conditions prescribed under MARPOL. A discharge made outside the area, at the prescribed rate and under the prescribed conditions does not contravene this Act. Division 6 General 30 Shipboard oil pollution emergency plan (1) If a ship does not have on board a shipboard oil pollution emergency plan, the ship's owner and master each commit an offence. Maximum penalty—850 penalty units. Note— If a corporation commits an offence against this provision, an executive officer of the corporation may be taken, under section 121, to have also committed the offence. (2) In this section— ship means a ship— (a) more than 24m in length overall if the ship is carrying— (i) oil as cargo; or (ii) a vehicle that is carrying more than 400L of oil as cargo; or (b) otherwise, more than 35m in length overall. Part 5 Prevention of pollution by noxious liquid substances in bulk Division 1 Purpose and application of part 31 Part gives effect to Annex II to MARPOL The purpose of this part is to give effect to relevant provisions of Annex II to MARPOL. 32 Application of part This part applies to all ships carrying noxious liquid substances in bulk. Division 2 Interpretation 33 Definitions for part In this part— discharge offence means an offence against section 35(1). mixture includes ballast water, tank washings and bilge and other residues. noxious liquid substance— (a) includes a mixture containing a noxious liquid substance; and (b) does not include a liquid substance declared under a regulation not to be a noxious liquid substance. oil has the meaning it has in part 4. 34 Words and expressions used in Annex II to MARPOL and this part (1) Words and expressions used in Annex II to MARPOL and this part have the same meanings in this part they have in the annex. (2) Subsection (1) applies whether or not a particular word or expression is defined in Annex II. (3) Except as far as the context or subject matter otherwise indicates or requires, if a word or expression is defined in Annex II to MARPOL and this part— (a) this part's definition does not limit or exclude, but may extend, the meaning of the word or expression given under Annex II; and (b) the definitions are to be read in the context of each other and the other provisions of this Act, but, if the definitions so read are inconsistent, the Annex II definition is displaced. 34A Recategorisation of substances (1) A regulation may declare a category X substance, category Y substance, category Z substance or Other substance to be a substance of a different stated category. (2) A regulation under subsection (1) has effect to categorise the substance for this Act despite the substance being differently categorised under the International Bulk Chemical Code. Division 3 Discharge of noxious liquid substances prohibited 35 Discharge of noxious liquid substances into coastal waters prohibited (1) If a noxious liquid substance is discharged from a ship into coastal waters, the following persons each commit an offence— (a) the ship's owner; (b) the ship's master; (c) another member of the ship's crew whose act caused or contributed to the discharge, unless the member was complying with an instruction from the master or of someone authorised by the master to give the instruction. Maximum penalty— (a) for an individual—5,000 penalty units; or (b) for a corporation—100,000 penalty units. (2) Subsection (1) applies despite the Criminal Code, sections 23 and 24. Note— See the note to section 26(2) for information about sections 23 and 24 of the Code. Division 4 Defences 36 Defences to discharge offence (1) Each of the following is a defence to a prosecution for a discharge offence— (a) the discharge was necessary for the purpose of securing the safety of a ship or saving life at sea; (b) the discharge resulted from damage, other than intentional damage, to the ship or its equipment and all reasonable precautions were taken after the damage happened or the discharge was discovered to prevent or minimise the discharge of the noxious liquid substance; (c) the discharge was for the purpose of combating specific pollution incidents to minimise the damage from pollution and was approved by an authorised officer. Note— See Annex II, regulation 3. (2) For subsection (1)(b), damage to a ship or its equipment is taken to be intentional damage only if the damage arose in circumstances in which the ship's owner, master or other member of the ship's crew— (a) acted with intent to cause damage; or (b) acted recklessly and with knowledge that damage would probably result. Division 5 Exemptions 37 Certain discharges permissible (1) The regulations may exempt discharges from the operation of the discharge offence. (2) However, a regulation may be made only if it gives effect to an exemption allowed under MARPOL. Example— The regulations may prescribe that noxious liquid substances may be discharged outside specified areas, at a rate and under conditions prescribed under MARPOL. A discharge made outside the area, at the prescribed rate and under the prescribed conditions does not contravene this Act. Division 6 General 38 Procedures and arrangements manual (1) If a ship certified to carry noxious liquid substances category X, Y or Z does not have on board a procedures and arrangements manual, the ship's owner and master each commit an offence. Maximum penalty—350 penalty units. Note— If a corporation commits an offence against this provision, an executive officer of the corporation may be taken, under section 121, to have also committed the offence. (2) In this section— procedures and arrangements manual means a Procedures and Arrangements Manual as defined in the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cwlth), section 15. 38A Shipboard marine pollution emergency plan for noxious liquid substances (1) If a prescribed ship does not have on board a shipboard marine pollution emergency plan for noxious substances, the ship's owner and master each commit an offence. Maximum penalty—850 penalty units. Note— If a corporation commits an offence against this provision, an executive officer of the corporation may be taken, under section 121, to have also committed the offence. (2) A regulation may prescribe minimum requirements for a shipboard marine pollution emergency plan for noxious substances. (3) In this section— prescribed ship means a ship— (a) with a gross tonnage of 150 or more; and (b) certified to carry noxious liquid substances. shipboard marine pollution emergency plan for noxious substances means a shipboard marine pollution emergency plan for noxious substances complying with the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cwlth), section 22A. Part 6 Prevention of pollution by packaged harmful substances Division 1 Purpose of part 39 Part gives effect to Annex III to MARPOL The purpose of this part is to give effect to relevant provisions of Annex III to MARPOL. Division 2 Interpretation 40 Definitions for part In this part— discharge offence means an offence against section 42(1). harmful substance see the International Maritime Dangerous Goods Code. 41 Words and expressions used in Annex III to MARPOL and this part (1) Words and expressions used in Annex III to MARPOL and this part have the same meanings in this part they have in the annex. (2) Subsection (1) applies whether or not a particular word or expression is defined in Annex III. (3) Except as far as the context or subject matter otherwise indicates or requires, if a word or expression is defined in Annex III to MARPOL and this part— (a) this part's definition does not limit or exclude, but may extend, the meaning of the word or expression given under Annex III; and (b) the definitions are to be read in the context of each other and the other provisions of this Act, but, if the definitions so read are inconsistent, the Annex III definition is displaced. Division 3 Jettisoning of harmful substance prohibited 42 Jettisoning of harmful substances into coastal waters prohibited (1) If a harmful substance carried as cargo in packaged form is jettisoned from a ship into coastal waters, the following persons each commit an offence— (a) the ship's owner; (b) the ship's master; (c) another member of the ship's crew whose act caused or contributed to the jettisoning, unless the member was complying with an instruction from the master or of someone authorised by the master to give the instruction. Maximum penalty— (a) for an individual—5,000 penalty units; or (b) for a corporation—100,000 penalty units. (2) A harmful substance is taken to have been jettisoned if it is discharged into coastal waters because of a leakage of the substance. (3) Subsection (1) applies despite the Criminal Code, sections 23 and 24. Note— See the note to section 26(2) for information about sections 23 and 24 of the Code. Division 4 Defences 43 Defences to discharge offence The following are defences to a prosecution for a discharge offence— (a) the jettisoning was made for the purpose of securing the safety of a ship or saving life at sea; (b) if the jettisoning was the washing of leakages overboard—the jettisoning in accordance with procedures prescribed by regulation would have impaired the safety of the ship or persons on board the ship. Division 5 Exemptions 44 Certain discharges permissible The regulations may exempt discharges from the operation of the discharge offence. Part 7 Prevention of pollution by sewage Division 1 Interpretation 45 Definitions for pt 7 In this part— culpable person, for a discharge of treated sewage or untreated sewage from a ship, means— (a) the ship's owner; or (b) the ship's master; or (c) another member of the ship's crew whose act caused or contributed to the discharge, unless the member was acting under the direct supervision of the master or of someone authorised by the master for the purpose. declared ship see section 49. discharge offence means an offence against section 47, 48, 50 or 50A(2), (3) or (4). sewage holding device means— (a) a container or receptacle that is designed or constructed to receive sewage and hold it inside the container or receptacle for disposal; or Example for paragraph (a)— a portable toilet or holding tank (b) a treatment system that is fitted with, or connected to, a container or receptacle mentioned in paragraph (a). 46 Words and expressions used in Annex IV to MARPOL and this part (1) Words and expressions used in Annex IV to MARPOL and this part have the same meanings in this part they have in the annex. (2) Subsection (1) applies whether or not a particular word or expression is defined in Annex IV. (3) Except as far as the context or subject matter otherwise indicates or requires, if a word or expression is defined in Annex IV to MARPOL and this part— (a) this part's definition does not limit or exclude, but may extend, the meaning of the word or expression given under Annex IV; and (b) the definitions are to be read in the context of each other and the other provisions of this Act, but, if the definitions so read are inconsistent, the Annex IV definition is displaced. Division 2 Discharge of sewage 47 Discharge of untreated sewage into nil discharge waters for untreated sewage prohibited (1) If untreated sewage is discharged from a ship into nil discharge waters for untreated sewage, each culpable person for the discharge commits an offence. Maximum penalty—850 penalty units. (2) The nil discharge waters for untreated sewage are the coastal waters prescribed under a regulation for this section. (3) This section applies despite the Criminal Code, sections 23 and 24. Note— See the note to section 26(2) for information about sections 23 and 24 of the Code. (4) In this section— ship does not include— (a) a declared ship under section 49; or (b) a prescribed ship under section 50A. 48 Discharge of treated sewage into nil discharge waters for treated sewage prohibited (1) If treated sewage is discharged from a ship into nil discharge waters for treated sewage, each culpable person for the discharge commits an offence. Maximum penalty—850 penalty units. (2) The nil discharge waters for treated sewage are the coastal waters prescribed under a regulation for this section. (3) This section applies despite the Criminal Code, sections 23 and 24. (4) In this section— ship does not include— (a) a declared ship under section 49; or (b) a prescribed ship under section 50A. 48A Ship with fixed toilet operating in prescribed nil discharge waters to be able to hold or treat sewage (1) The owner or master of a ship must not operate the ship in nil discharge waters for treated sewage or untreated sewage from a ship, unless the owner or master complies with the requirements prescribed under a regulation in relation to the holding or treating of sewage on the ship. Maximum penalty—850 penalty units. (2) The nil discharge waters for treated sewage or untreated sewage from a ship are the coastal waters prescribed under a regulation for this section. (3) This section applies despite the Criminal Code, sections 23 and 24. (4) In this section— operate, a ship, includes anchor, berth or moor the ship. ship— (a) means a ship that has a fixed toilet; and (b) does not include— (i) a declared ship under section 49; or (ii) a prescribed ship under section 50A. 49 Declared ship operating in prescribed nil discharge waters to be fitted with sewage holding device (1) The owner or master of a declared ship must not operate the declared ship in nil discharge waters for treated sewage or untreated sewage from a declared ship, unless— (a) the declared ship is fitted with a sewage holding device; and (b) each fixed toilet on the declared ship is connected to a sewage holding device. Maximum penalty—850 penalty units. (2) A declared ship is taken not to be fitted with a sewage holding device unless a sewage holding device fitted to the ship is appropriate having regard to— (a) the maximum number of persons the ship is permitted to carry under— (i) for a domestic commercial vessel—the domestic commercial vessel national law; or (ii) for a Queensland regulated ship—the Marine Safety Act; and (b) the duration of the ship's journey in the nil discharge waters. (3) The nil discharge waters for treated sewage or untreated sewage from a declared ship are the coastal waters prescribed under a regulation for this section. (4) In this section— declared ship means a ship declared under a regulation to be a ship to which this section applies. operate, a declared ship, includes anchor, berth or moor the declared ship. 50 Discharge of sewage from declared ship into nil discharge waters for sewage prohibited (1) If treated sewage or untreated sewage is discharged from a declared ship into the nil discharge waters for treated sewage or untreated sewage from a declared ship under section 49, each culpable person for the discharge commits an offence. Maximum penalty—850 penalty units. (2) This section applies despite the Criminal Code, sections 23 and 24. 50A Discharge of sewage by prescribed ships (1) The owner or master of a prescribed ship must not operate the ship unless the ship has 1 of the following sewage systems— (a) a sewage treatment system; (b) a sewage comminuting and disinfecting system for the temporary storage of sewage when the ship is less than 3n miles from the nearest land; (c) a holding tank— (i) with capacity to retain all sewage, having regard to the ship's operation, the number of persons on board and other relevant factors; and (ii) constructed to have a means to indicate visually the amount of its contents. Maximum penalty—850 penalty units. (2) If untreated sewage is discharged from a prescribed ship into coastal waters, each culpable person for the discharge commits an offence. Maximum penalty—850 penalty units. (3) If treated sewage is discharged from a prescribed ship into prohibited discharge waters, each culpable person for the discharge commits an offence. Maximum penalty—850 penalty units. (4) If treated sewage is discharged from a prescribed ship into coastal waters, each culpable person for the discharge commits an offence, unless each of the following applies— (a) the ship is operating a sewage treatment plant approved by the IMO; Note— Information on sewage treatment plants is available from MSQ, the Australian Maritime Safety Authority or the IMO's website for the Global Integrated Shipping Information System at http://gisis.imo.org/Public. (b) the test results of the treatment system are stated in the ship's International Sewage Pollution Prevention Certificate; (c) the effluent does not produce visible floating solids or discolour the surrounding water. Maximum penalty—850 penalty units. (5) Subsections (2), (3) and (4) apply despite the Criminal Code, sections 23 and 24. (6) In this section— prescribed ship means a ship engaged in an international voyage— (a) with a gross tonnage of at least 400; or (b) with a gross tonnage of less than 400 and certified to carry more than 15 persons. Note— See Annex IV to MARPOL, chapter 1, regulation 2. 51 Shipboard sewage management plan (1) This section applies to a ship declared under a regulation for this section. (2) If a ship does not have on board a shipboard sewage management plan, the ship's owner and master each commit an offence. Maximum penalty—850 penalty units. Note— If a corporation commits an offence against this provision, an executive officer of the corporation may be taken, under section 121, to have also committed the offence. (3) If a ship has on board a shipboard sewage management plan but is not fitted with any equipment that may be required to implement the plan, the ship's owner and master each commit an offence. Maximum penalty—850 penalty units. Note— If a corporation commits an offence against this provision, an executive officer of the corporation may be taken, under section 121, to have also committed the offence. (4) A regulation may prescribe minimum requirements for a shipboard sewage management plan. Division 3 Defence 51A Defence to discharge offence (1) Each of the following is a defence to a prosecution for a discharge offence— (a) the discharge was necessary for the purpose of securing the safety of a ship or saving life at sea; (b) the discharge resulted from damage, other than intentional damage, to the ship or its equipment and all reasonable precautions were taken after the damage happened or the discharge was discovered to prevent or minimise the discharge. (2) For subsection (1)(b), damage to a ship or its equipment is intentional damage only if the damage arose in circumstances in which the ship's owner, master or another member of the ship's crew— (a) acted with intent to cause damage; or (b) acted recklessly and with knowledge that damage would probably result. Division 4 General 51B Treatment system to be in proper working order (1) This section applies if— (a) a ship is operating in coastal waters that are outside the nil discharge waters for treated sewage under section 48 but within the nil discharge waters for untreated sewage under section 47; and (b) the ship is fitted with a treatment system. (2) The owner or master of the ship or a member of the ship's crew responsible for the operation of the treatment system must ensure that the treatment system is not operated, or available to be operated, to discharge the sewage into the coastal waters unless the system is in proper working order. Maximum penalty—350 penalty units. (3) In a proceeding for an offence against subsection (2), the fact that at a particular time an indicator on a treatment system was indicating that the system was malfunctioning is evidence that the system was not in proper working order at the time. (4) In this section— malfunctioning includes the following— (a) faulty; (b) in need of attention; (c) not in proper working order; (d) out of order. 51C Other laws may also apply This part does not limit another law imposing more stringent requirements about the discharge of sewage into coastal waters. Example of another law— Transport Infrastructure (Sunshine Coast Waterways) Management Plan 2000 Division 5 [Repealed] Part 8 Prevention of pollution by garbage Division 1 Purpose 52 Part gives effect to Annex V to MARPOL The purpose of this part is to give effect to relevant provisions of Annex V to MARPOL. Division 2 Interpretation 53 Definitions for part In this part— discharge offence means an offence against section 55(1). garbage includes plastics. 54 Words and expressions used in Annex V to MARPOL and this part (1) Words and expressions used in Annex V to MARPOL and this part have the same meanings in this part they have in the annex. (2) Subsection (1) applies whether or not a particular word or expression is defined in Annex V. (3) Except as far as the context or subject matter otherwise indicates or requires, if a word or expression is defined in Annex V to MARPOL and this part— (a) this part's definition does not limit or exclude, but may extend, the meaning of the word or expression given under Annex V; and (b) the definitions are to be read in the context of each other and the other provisions of this Act, but, if the definitions so read are inconsistent, the Annex V definition is displaced. Division 3 Disposal of garbage prohibited 55 Disposal of garbage into coastal waters prohibited (1) If garbage is disposed of from a ship into coastal waters, the following persons each commit an offence— (a) the ship's owner; (b) the ship's master; (c) another member of the ship's crew whose act caused or contributed to the disposal, unless the member was complying with an instruction from the master or of someone authorised by the master to give the instruction. Maximum penalty—3,500 penalty units. (2) Subsection (1) applies despite the Criminal Code, sections 23 and 24. Note— See the note to section 26(2) for information about sections 23 and 24 of the Code. 55AA Placard about garbage disposal requirements (1) If a ship that is at least 12m in length overall does not display a placard complying with subsection (2), the ship's owner and master each commit an offence. Maximum penalty—20 penalty units. (2) The placard must— (a) notify the ship's crew and passengers of the prohibitions and requirements under this Act for the disposal of garbage; and (b) be written in English and, if the ship is owned or operated by a foreign country, the working language of the ship's crew. 55A Shipboard waste management plan (1) This section applies to a ship— (a) at least 35m in length overall; or (b) designed to sleep at least 15 persons. (2) If the ship does not have on board a shipboard waste management plan, the ship's owner and master each commit an offence. Maximum penalty—850 penalty units. Note— If a corporation commits an offence against this provision, an executive officer of the corporation may be taken, under section 121, to have also committed the offence. (3) If the ship is not fitted with any equipment that may be required to implement the plan, the ship's owner and master each commit an offence. Maximum penalty—850 penalty units. (4) A regulation may prescribe minimum requirements for a shipboard waste management plan. Division 4 Defences 56 Defences to discharge offence Each of the following is a defence to a prosecution for a discharge offence— (a) the disposal was made for the purpose of securing the safety of the ship and the persons on board the ship or saving life at sea; (b) the disposal happened because of damage to the ship or its equipment and all reasonable precautions were taken before and after the damage happened to prevent or minimise the disposal; (c) the disposal was the accidental loss at sea of a synthetic fishing net, or synthetic material used in the repair of a synthetic fishing net, and all reasonable precautions were taken to prevent the loss. Division 5 Exemptions 57 Certain disposals permissible (1) The regulations may exempt disposals from the operation of the discharge offence. (2) However, a regulation may be made only if it gives effect to an exemption allowed under MARPOL or relates to fishing or tourism operations. Part 9 Transfer operations Division 1 Purpose of part 58 Responsibility for pollution from transfer operations and other matters The purpose of this part is— (a) to state when a ship's owner, master or other crew member is responsible for a discharge happening during or because of a transfer operation; and (b) to make provision for other matters about transfer operations. Division 2 Interpretation 59 Definitions for part In this part— discharge offence means an offence against section 61(1). noxious liquid substance has the meaning it has in part 5. oil has the meaning it has in part 4. transfer apparatus, for a ship, means apparatus used in the transfer of a pollutant between a ship and another ship or place. transfer operation, for a ship, means any operation involved in preparing for, or starting, carrying on or finishing, a transfer of a pollutant between a ship and another ship or place. 60 Words and expressions used in Annex I or II to MARPOL and this part (1) Words and expressions used in Annex I or II to MARPOL and this part have the same meanings in this part they have in the annex. (2) Subsection (1) applies whether or not a particular word or expression is defined in Annex I or II. (3) Except as far as the context or subject matter otherwise indicates or requires, if a word or expression is defined in Annex I or II to MARPOL and this part— (a) this part's definition does not limit or exclude, but may extend, the meaning of the word or expression given under Annex I or II; and (b) the definitions are to be read in the context of each other and the other provisions of this Act, but, if the definitions so read are inconsistent, the Annex I or II definition is displaced. Division 3 Discharge during transfer operation prohibited 60A Obligation to monitor transfer operation The ship's owner and the ship's master must ensure that a transfer operation is monitored by a member of the ship's crew. Maximum penalty—850 penalty units. 61 Discharge of pollutant into coastal waters prohibited (1) If a pollutant is discharged into coastal waters during a transfer operation, the following persons each commit an offence— (a) the ship's owner; (b) the ship's master; (c) another member of the ship's crew whose act caused the discharge, unless the member was complying with an instruction from the master or of someone authorised by the master to give the instruction. Maximum penalty—3,500 penalty units. (2) Subsection (1) applies despite the Criminal Code, sections 23 and 24. Note— See the note to section 26(2) for information about sections 23 and 24 of the Code. Division 4 Defences 62 Defences to discharge offence (1) Each of the following is a defence to a prosecution for a discharge offence— (a) the discharge happened because of operator error by someone not under the master's direction and the master took all reasonable precautions after the discharge happened or was discovered to prevent or minimise the discharge; (b) the discharge happened because of a fault in transfer apparatus not operated at the master's direction and— (i) if the person charged with committing the offence is the ship's owner or master— (A) before the transfer operation, the owner or master did not know, or could not reasonably have known, about the existence of the fault and the master took all reasonable steps to find out whether the transfer apparatus was in good working order; and (B) after the discharge happened or was discovered, the master took all reasonable precautions to prevent or minimise the discharge; or (ii) if the person charged with committing the offence is another member of the ship's crew whose act caused the discharge—the person did not know, or could not reasonably have known, about the existence of the fault; (c) the discharge happened because of a fault in transfer apparatus brought onto the ship and operated at the master's direction if— (i) the master took all reasonable steps to ensure that the apparatus was in good working order immediately before the transfer operation started; and (ii) the master took all reasonable precautions after the discharge happened or was discovered to prevent or minimise the discharge; (d) a defence available under another part of this Act for a discharge of the relevant pollutant. (2) For subsection (1)(b)(i)(A), the master must prove that the master took all reasonable steps to find out from all members of the ship's crew any information concerning any fault in the transfer apparatus known to them. (3) In this section— fault, in transfer apparatus, does not include any existing defect in the transfer apparatus resulting from an event, lack of maintenance or anything else that happened while the transfer apparatus was under the direction of the master of the ship. Division 5 General 63 [Repealed] 64 Several liability—ships (1) This section applies to a transfer operation involving oil or noxious liquid substances in bulk. (2) If— (a) a discharge happens from 2 or more ships; and (b) it is not reasonably practicable to identify the oil or noxious liquid substance that has discharged from a particular ship; all of the oil or noxious liquid substance discharged is taken, for this part and sections 113, 115, 122 and 127, to have been discharged from each of the ships. 65 Keeping of records about transfer etc. (1) This section applies to— (a) a ship's owner; and (b) a ship's master; and (c) the occupier of a place to or from which a pollutant is transferred. (2) A person to whom this section applies must keep the records the person is required to keep by regulation. Maximum penalty—350 penalty units. (3) If a happening required under the regulations to be recorded by a person happens, the person must record, without delay, the happening in the way prescribed under the regulations. Maximum penalty—350 penalty units. Part 10 Reception facilities 66 Reception facilities (1) This section applies to the provision of reception facilities— (a) under regulation 38 of Annex I, regulation 18 of Annex II and regulation 7 of Annex V to MARPOL; or (b) under part 7. (2) The general manager may provide, join with someone else in providing, arrange for the provision of, or direct the providing of the reception facilities. (3) Without limiting subsection (2), the Gold Coast Waterways Authority may also provide, join with someone else in providing, arrange for the provision of, or direct the providing of the reception facilities for Gold Coast waters. (4) The general manager or the Gold Coast Waterways Authority may give a notice under subsection (5) to— (a) the owner or occupier or a port operator of a port or terminal; or (b) the owner or occupier or a port operator of an establishment at which ships— (i) are repaired or other work is performed on ships if the repair or work involves the disposal of oily mixtures, mixtures containing noxious liquid substances, oil residues, residues of noxious liquid substances or sewage; or (ii) are berthed, docked or otherwise at the establishment. (5) A notice may direct an owner or occupier or a port operator of a port, terminal or establishment to— (a) provide facilities for the reception or disposal of residues by ships berthed, docked or otherwise at the port, terminal or establishment; and (b) maintain the facilities in good order and condition; and (c) make the facilities available to enable ships to dispose of the residues. (6) A notice— (a) may state a time within which a direction is to be complied with; and (b) must be signed by the general manager or on behalf of the Gold Coast Waterways Authority. (7) An owner or occupier or a port operator must comply with a notice. Maximum penalty— (a) for the first offence—1,750 penalty units; and (b) if the contravention continues after conviction—1,750 penalty units and an additional penalty of 20 penalty units for each day after the last conviction that the contravention continues. (8) An owner's or occupier's or a port operator's obligation to comply with a notice continues until the direction given by the notice is complied with even though, in a particular case, the notice specifies a time by which compliance is required and the time has passed. (9) A charge against an owner or occupier or a port operator for a contravention of subsection (7) continuing after conviction may state the date of the last conviction and the day or period during which the contravention continued. (10) Charges under subsection (9) for a particular continuing contravention may be prosecuted from time to time. (11) In this section— residues include oil, noxious liquid substances, sewage and garbage. terminal includes an oil depot, oil installation or other place used for the loading or unloading in bulk of oil or noxious liquid substances. Part 11 Reporting requirements 67 Duty to report certain incidents (1) In this section— discharge offence has the meaning it has in parts 4 to 9. harmful substance has the meaning it has in part 6. noxious liquid substance has the meaning it has in part 5. oil has the meaning it has in part 4. reportable incident means— (a) a discharge or probable discharge of— (i) oil or a noxious liquid substance that happens in coastal waters; or (ii) untreated sewage in the nil discharge waters for untreated sewage under section 47; or (iii) treated sewage in the nil discharge waters for treated sewage under section 48; or (iv) for a declared ship, treated sewage or untreated sewage in the nil discharge waters for treated sewage or untreated sewage under section 49; or (b) the jettisoning of a harmful substance carried in packaged form from a ship that happens in coastal waters; but does not include a discharge or jettisoning exempted by regulation. (2) A ship's master must notify, without delay, an authorised officer of a reportable incident in the way prescribed by regulation. Maximum penalty—850 penalty units. (3) If the ship's master cannot comply with subsection (2), the ship's owner or the owner's agent must notify, without delay, an authorised officer of the reportable incident in the way prescribed by regulation, unless the owner or owner's agent has a reasonable excuse. Maximum penalty—850 penalty units. (4) A person mentioned in subsection (2) or (3) who has notified an authorised officer of the reportable incident must give a report to an authorised officer about the incident if asked by an authorised officer. Maximum penalty—850 penalty units. (5) The report must include the particulars, and be given to an authorised officer within the time, prescribed under a regulation. (6) A notice given to an authorised officer under subsection (2) or (3), and a report given to an authorised officer under subsection (4), must not, without the consent of the person charged, be admitted in evidence in a prosecution for a discharge offence. Part 11A Insurance 67A Ship's owner to have insurance (1) This section applies if a ship is more than 15m in length overall. (2) The ship's owner must have an insurance policy that, to the limits applying under a regulation, is sufficient to pay for— (a) the clean up costs of the discharge of a pollutant from the ship into coastal waters; and (b) the costs of salvage or removal of the ship from coastal waters if the ship is abandoned or wrecked. Maximum penalty—850 penalty units. Note— If a corporation commits an offence against this provision, an executive officer of the corporation may be taken, under section 121, to have also committed the offence. (3) The Minister may recommend the making of a regulation under subsection (4) only if— (a) the Minister has had regard to the risk of the ship discharging pollutants into, or being abandoned or wrecked in, coastal waters; and (b) the Minister is reasonably satisfied that, for the particular type of ship, an insurance policy mentioned in subsection (2) could not reasonably be obtained or kept in force. (4) A regulation may exempt a ship from the application of this section. (5) A regulation under subsection (4) may provide that, for the exemption to apply, an owner of the ship must comply with conditions stated in the regulation. Example of conditions that a regulation may provide— A regulation may provide that an owner develop and implement a risk management plan including matters mentioned in the regulation or that an owner must not operate the ship with more than a stated type or quantity of pollutant on board the ship. Part 12 Investigation, prevention and minimisation, and enforcement Division 1 General 68 Functions of authorised officers Authorised officers have the following functions— (a) to investigate discharges prohibited by this Act; (b) to monitor compliance with this Act; (c) to monitor transfer operations; (d) to examine ships using coastal waters to minimise discharges; (e) to take action to remove a pollutant discharged into coastal waters or mitigate its effect on Queensland's marine and coastal environment. 69 Authorised officer subject to directions of general manager An authorised officer is subject to the directions of the general manager in exercising the powers of an authorised officer. 70 Powers of authorised officers An authorised officer has the powers given under this or another Act. 71 Limitation on powers of authorised officer (1) The powers of an authorised officer may be limited— (a) under the regulations; or (b) under a condition of appointment; or (c) by notice of the general manager given to the authorised officer. (2) Notice under subsection (1)(c) may be given orally, but must be confirmed in writing as soon as practicable. Division 2 Appointment of authorised officers and other matters 72 Appointment of authorised officers (1) The general manager may appoint any of the following persons as authorised officers— (a) officers of the public service; (b) employees of a port authority; (c) employees of MSQ; (d) employees of the Gold Coast Waterways Authority; (e) other persons prescribed under the regulations. (2) A person may be appointed as an authorised officer only if the general manager considers, on reasonable grounds, that the person has the necessary expertise or experience to be an authorised officer. 73 Authorised officer's appointment conditions (1) An authorised officer holds office on the conditions stated in the instrument of appointment. (2) An authorised officer— (a) if the appointment provides for a term of appointment—ceases holding office at the end of the term; and (b) may resign by signed notice of resignation given to the general manager; and (c) if the conditions of appointment provide—ceases holding office as an authorised officer on ceasing to hold another office stated in the appointment conditions (the main office). (3) However, an authorised officer may not resign from the office of authorised officer (the secondary office) under subsection (2)(b) if a term of the authorised officer's employment to the main office requires the authorised officer to hold the secondary office. 74 Authorised officer's identity card (1) The general manager must give each authorised officer an identity card. (2) The identity card must— (a) contain a recent photograph of the authorised officer; and (b) be signed by the authorised officer; and (c) include an expiry date. (3) A person who ceases to be an authorised officer must return the identity card to the general manager within 21 days after the person ceases to be an authorised officer, unless the person has a reasonable excuse. Maximum penalty—40 penalty units. (4) This section does not prevent the giving of a single identity card to a person under this section and for other provisions, Acts or purposes. 75 Production or display of authorised officer's identity card (1) An authorised officer may exercise a power in relation to someone else if the officer— (a) first produces the officer's identity card for the person's inspection; or (b) has the identity card displayed so it is clearly visible to the person. (2) If, for any reason, it is not practicable to comply with subsection (1), the authorised officer must produce the identity card for inspection by the person at the first reasonable opportunity. 76 Protection from liability (1) An authorised officer or a person acting under the direction of an authorised officer is not civilly liable for an act or omission done honestly and without negligence under this Act. (2) If subsection (1) prevents a civil liability attaching to an authorised officer or person, the liability attaches instead to the State. Division 3 Powers of authorised officers 77 Entry to place by authorised officers (1) An authorised officer may enter a place under this section if— (a) its occupier consents to the entry; or (b) the entry is authorised by a warrant. (2) An authorised officer, without the occupier's consent or a warrant, may— (a) enter a public place when the place is open to the public; or (b) enter the land (including the curtilage) around premises to ask the occupier of the premises for consent to enter the premises. (3) The power of entry given to an authorised officer under this section is in addition to the powers of entry given to an authorised officer under other provisions of this part. (4) Unless entry is authorised by warrant, an authorised officer may only exercise the powers mentioned in section 81 for a place if its occupier consents to the use of the powers when consent for entry is given. 78 Warrants for entry (1) An authorised officer may apply to a magistrate for a warrant for a place. (2) The application must be sworn and state the grounds on which the warrant is sought. (3) The magistrate may refuse to consider the application until the authorised officer gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires. Example— The magistrate may require additional information supporting the application be given by statutory declaration. (4) The magistrate may issue the warrant only if the magistrate is satisfied there are reasonable grounds for suspecting— (a) there is a particular thing or activity (the evidence) that may provide evidence of an offence against this Act; and (b) the evidence is, or may be within the next 7 days, at the place. (5) A warrant must state— (a) that the authorised officer may, with necessary and reasonable help and force, enter the place and exercise the authorised officer's powers under this Act; and (b) the evidence for which the warrant is issued; and (c) the hours when entry may be made; and (d) the day, within 14 days after the warrant's issue, the warrant ends. (6) The magistrate must record the reasons for issuing the warrant. 79 Warrants—applications made otherwise than in person (1) An authorised officer may apply for a warrant by phone, fax, radio or another form of communication if the officer considers it necessary because of urgent circumstances or other special circumstances, including, for example, the officer's remote location. (2) Before applying for the warrant, the authorised officer must prepare an application stating the grounds on which the warrant is sought. (3) The authorised officer may apply for the warrant before the application is sworn. (4) After issuing the warrant, the magistrate must immediately fax a copy to the authorised officer if it is reasonably practicable to fax the copy. (5) If it is not reasonably practicable to fax a copy of the warrant to the authorised officer— (a) the magistrate must— (i) record on the warrant the reasons for issuing the warrant; and (ii) tell the authorised officer the date and time the warrant was signed; and (iii) tell the authorised officer the warrant's terms; and (b) the authorised officer must write on a form of warrant (the warrant form)— (i) the magistrate's name; and (ii) the date and time the magistrate signed the warrant; and (iii) the warrant's terms. (6) The facsimile warrant, or the warrant form properly completed by the authorised officer, authorises the entry and the exercise of the other powers mentioned in the warrant issued by the magistrate. (7) The authorised officer must, at the first reasonable opportunity, send to the magistrate— (a) the sworn application; and (b) if a warrant form was completed by the authorised officer—the completed warrant form. (8) On receiving the documents, the magistrate must attach them to the warrant. (9) Unless the contrary is proven, a court must presume a power exercised by an authorised officer was not authorised by a warrant issued under this section if— (a) a question arises, in a proceeding before the court, whether the exercise of power was authorised by a warrant; and (b) the warrant is not produced in evidence. 80 Boarding of ships (1) An authorised officer may board a ship at any time to find out whether this Act is being or has been complied with. (2) An authorised officer may also board a ship at any time if the officer has reasonable grounds for suspecting that— (a) the ship is being, or has been, used in the commission of an offence against this Act; or (b) the ship, or a document or other thing in or on the ship, may provide evidence of the commission of an offence against this Act. (3) However, an authorised officer must not board a ship if to do so would put the ship, or someone on the ship, at risk from damage or injury. (4) If the ship is moving or about to move, the authorised officer may signal the person in command of the ship or, if no person is in command of the ship, the person in control of the ship to stop the ship or not to move it. (5) To enable the ship to be boarded, the authorised officer may— (a) act with any necessary and reasonable help and force; and (b) require the person in control of the ship to give reasonable help to the officer. (6) A person must obey a signal under subsection (4), unless the person has a reasonable excuse. Maximum penalty—350 penalty units. (7) A person must comply with a requirement under subsection (5)(b), unless the person has a reasonable excuse. Maximum penalty—350 penalty units. (8) It is a reasonable excuse for a person to disobey a signal under