1998-1999-2000-2001 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA 

HOUSE OF REPRESENTATIVES 

INTERNATIONAL MARITIME CONVENTIONS LEGISLATION AMENDMENT BILL 2001

SUPPLEMENTARY EXPLANATORY MEMORANDUM 

Amendments and new clauses to be moved on behalf of the Government

(Circulated by authority of the Minister for Transport and Regional Services,
the Honourable John Anderson, MP) 

ISBN:  0642 459827

AMENDMENTS TO THE INTERNATIONAL MARITIME CONVENTIONS LEGISLATION AMENDMENT BILL 2001

OUTLINE

The amendments to the International Maritime Conventions Legislation Amendment Bill 2001, to be moved by the Government, are in response to a decision in the NSW Court of Criminal Appeal in Morrison v Peacock & Roslyndale Shipping Company Pty Ltd [2000] NSWCCA 452.

In a number of sections of the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (the Pollution Prevention Act which is being amended by Schedule 3 of the Bill), the master or owner of a ship is strictly liable if there is a discharge from the ship into the sea of, for example, oil, sewage or garbage.  There are a number of defences available to the master or owner.  In two sections of the Pollution Prevention Act, it is not an offence if the discharge was the result of non‑intentional damage.  This defence is not available if the master or owner intended to cause the damage, acted recklessly with knowledge that the damage would probably result or the damage was the result of the negligence of the master or owner.  In another two sections, it is a defence if the discharge was a consequence of damage to a ship or its equipment.

In the Morrison v Peacock case, the NSW Court of Criminal Appeal held that, in the similar NSW Act, "damage" includes "wear and tear".  This is outside the intention of the meaning of the term as used in the International Convention for the Prevention of Pollution from Ships where "damage" is intended to mean accidental damage, that is, damage resulting from an accident.  The precedent value of this decision might mean the "wear and tear" defence can be used in the case of a discharge resulting from poor maintenance of a ship.  The amendments will ensure that the "wear and tear" defence cannot be used inappropriately.

Financial impact statement

There is no financial impact.

AMENDMENTS TO THE INTERNATIONAL MARITIME CONVENTIONS LEGISLATION AMENDMENT BILL 2001

NOTES ON CLAUSES

Amendment 1 - Discharge of oil

Section 9 of the Pollution Prevention Act, as amended by the Bill, provides that the owner or master of a ship is strictly liable if there is a discharge from the ship into the sea of oil or an oily mixture.  It is a defence if the discharge was the result of damage to a ship or its equipment that was non-intentional damage.

Amendment 1 will add a new subsection 9(3A) to provide that damage to the ship or its equipment does not include:
(a)	deterioration resulting from a failure to maintain the ship or equipment; or
(b)	defects that develop during the normal operation of the ship or equipment.

Amendment 2 - Discharge of substances

Section 21 of the Pollution Prevention Act, as amended by the Bill, provides that the owner or master of a ship is strictly liable if there is a discharge from the ship into the sea of a liquid substance, or a mixture containing a liquid substance, carried in bulk as cargo.  It is a defence if the discharge was the result of damage to the ship or its equipment that was non-intentional damage.

Amendment 2 will add a new subsection 21(3A) to provide that damage to a ship or its equipment does not include:
(a)	deterioration resulting from a failure to maintain the ship or equipment; or
(b)	defects that develop during the normal operation of the ship or equipment.

Amendment 3 - Discharge of sewage

Section 26D of the Pollution Prevention Act, as amended by the Bill, provides that the owner or master of a ship is strictly liable if there is a discharge of sewage from the ship into the sea.  It is a defence if the discharge was the consequence of damage to the ship or its equipment.

Amendment 3 will add a new subsection 26D(5A) to provide that damage to a ship or its equipment does not include:
(a)	deterioration resulting from a failure to maintain the ship or equipment; or
(b)	defects that develop during the normal operation of the ship or equipment.

Amendment 4 - Discharge of garbage

Section 26F of the Pollution Act, as amended by the Bill, provides that the owner or master of a ship is strictly liable if there is a disposal of garbage from the ship into the sea.  It is a defence if the disposal was the consequence of damage to the ship or its equipment.

Amendment 3 will add a new subsection 26F(9A) to provide that damage to a ship or its equipment does not include:
(a)	deterioration resulting from a failure to maintain the ship or equipment; or
(b)	defects that develop during the normal operation of the ship or equipment.