The amendments to the Navigation Act provide for new offences where:
- the master of a ship operates the ship in a negligent or reckless manner that causes pollution or damage to the marine environment in Australian waters (s 267ZZI) or in waters of the high seas outside Australia (s 267ZZL); or
- the master of a ship fails to ensure that the ship is not operated in a negligent or reckless manner that causes pollution or damage to the marine environment in Australian waters (s 267ZZJ) or in waters of the high seas outside Australia (s 267ZZM).
An offending corporation may be liable for fines of up to $3.3 million where serious harm to the environment has occurred or may occur as a result of the incident (s 267ZZN).
The Bill also proposes amendments to Division 14 of Part IV of the Navigation Act which provides for mandatory reporting by a ships master in relation to the movement of their ship in prescribed areas, for example the Great Barrier Reef Particularly Sensitive Area. The proposed amendment creates a strict liability offence where the master of a ship fails to report in a mandatory reporting area. Being a strict liability offence, the intention or state of mind of the master will not need to be proved in establishing the offence.
A new Division 3A has been proposed to set out the means, other than by prosecuting for criminal offences, through which compliance with the requirements of the Bill may be enforced. The new Division establishes a scheme by which the Court may require an offender to pay a pecuniary penalty to the Commonwealth, otherwise known as a civil penalty order, rather than imposing criminal liability. To be liable for a civil penalty order the offender must have contravened a provision of the Bill, which sets out a pecuniary “civil penalty” as an appropriate sentence. Civil penalty orders impose more significant fines than criminal penalties within the Bill; however, they do not constitute a criminal offence (s 399H).
Protection of the Sea Act
The proposed amendments to the Protection of the Sea Act broaden the scope of liability for oil pollution offences beyond masters and owners of ships. Charterers will now also be liable where there is the discharge of oil, an oily mixture or an oily residue from a ship into the sea near the coastline of Australia or one of the external territories, or into Australia’s exclusive economic zone or, in the case of an Australian ship, on the high seas (s 9(1B) and s 10(3)).
The term “charterer” is not a defined term in the Act nor has it been subject to parliamentary or judicial consideration.
Defences are available to masters, owners and charterers of ships for offences involving the discharge of oil or an oily mixture from the ship, including:
- if the discharge was for the purpose of securing the safety of the ship or saving life at sea;
- if the oil or oily mixture, as the case may be, escaped from the ship in consequence of non-intentional damage to the ship or its equipment, and all reasonable precautions were taken after the occurrence of the damage or discovery of the discharge for the purpose of preventing or minimizing the escape of oil or oily mixture; or
- in the case of an oily mixture, if the discharge was for the purpose of combating specific pollution incidents in order to minimize the damage from pollution and was approved by a prescribed officer and, where the discharge occurred in the jurisdiction of the government of a country other than Australia, by that government (s 9(2)).
In regards to the second defence above, “non-intentional damage” means that the owner, master or charterer did not act with intent to cause damage or did not act recklessly with the knowledge that that the damage would probably result (s 9(3)). Further, “damage to the ship or its equipment” does not include deterioration resulting from failure to maintain the ship or equipment or defects that develop during the normal operation of the ship (s 9(3A)).
The Bill will increase the maximum fine for a corporation from $1.1 million to $11 million for an offence under the amended provisions (s 9(1B) and s 10(3)).