Pollution of Waters by Oil Act 1973 (Qld)

299 Qltuluqlan4 ANNO VICESIMO SECUNDO EIA DE .E A. SECUN AE R GINAE No® 33 of 1973 An Act relating to the prevention of the pollution by oil of waters within the jurisdiction of Queensland and for purposes connected therewith [ASSENTED TO 26TH APRIL, 1973] BE IT ENACTED by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Assembly of Queensland in Parliament assembled, and by the authority of the same, as follows:- PART I-PRELIMINARY 1. Short title. This Act may be cited as the Pollution of Waters by Oil Act 1973. 2. Commencement of Act. This Act shall come into operation on a date to be appointed by Proclamation. 3. Repeal of scheduled Acts . The Acts specified in the schedule are hereby repealed. 4. Act to other laws. (1) This Act shall be construed as being in addition to and not in derogation of or substitution for any other Act or law of the State.

300 Pollution of Waters by Oil Act 1973, No. 33 (2) Where an act or omission is an offence under this Act and under some other Act or law the offender may be prosecuted and punished under either this Act or under the other Act or law, but he shall not b.- twice punished for the same act or omission. 5. Act binds Crow n. This Act binds the Crown. 6. Arrangement of Act . This Act is arranged as follows:- PART I-PRELIMINARY ( SS. 1-8); PART II - OFFENCES RELATING TO POLLUTION OF WATERS ( SS. 9-12); PART 111-MINISTER'S AND PRESCRIBED AUTHORITIES ' POWERS TO MITIGATE POLLUTION OF WATERS ( SS. 13-18); PART IV-MINISTER'S POWERS RELATING TO DISCHARGES OF OIL FROM SHIPS (SS. 19-24); PART V - DECLARATORY PROVISIONS RELATING TO LIABILITY FOR OIL DAMAGE OR POLLUTION ( Ss. 25-31); PART VI-PROVISIONS DIRECTED TO AVOIDANCE OR MITIGATION OF OIL POLLUTION (ss. 32-36); PART VII-MISCELLANEOUS PROVISIONS (ss. 37-44). 7. Interpretation . ( 1) In this Act, save where a contrary intention appears- air cushion vehicle " means a vehicle that is designed to be supported , when in motion , wholly or partly by air expelled from the vehicle to form a cushion between the under-surface of the vehicle and the water , land, or other surface over which the vehicle is poised or moving; " any waters " means water of the sea within the jurisdiction and waters within the jurisdiction that are not sea (including tidal waters, lakes, water-storages , rivers, streams and watercourses) and includes the waters of all bays and harbours whether natural or man-made and includes the foreshore and banks of all such waters; " chairman " means- (a) in relation to a Harbour Board, the person who is, at the material time , chairman of the board and includes any person who at the time performs the duties of the chairman of the board; (b) in relation to the Harbours Trust, the person who is, at the material time , Director of the Department and includes any person who at the time performs the duties of the Director; (c) in relation to the Marine Board, the person who is, at the material time , chairman of the board and includes any person who at the time performs the duties of the chairman of the board ; " D°partment " means the Department of Harbours and Marine of Queensland; " discharge " means any discharge or escape howsoever caused; " foreshore " means that part of the bed, shore or banks of the sea, or of any harbour, or of any tidal waters that is ordinarily covered and uncovered by the flow and ebb of the tide at spring tides;

Pollution of Waters by Oil Act 1973 , No. 33 301 " harbour " means a harbour or port within the meaning of The Harbours Acts 1955 to 1968; " Harbour Board " means a Harbour Board within the meaning of The Harbours Acts 1955 to 1968 or, in respect of a harbour for which there is not a Harbour Board, means the Harbours Trust within the meaning of those Acts; " harbour master " means the person who at the material time holds the appointment or is deemed to hold the appointment, for the purposes of the Queensland Marine Act 1958-1972, of harbour master at a port and includes any person who at the time performs the duties of the harbour master or any of them; " intrastate ship " means a ship within the jurisdiction save a ship -that goes to or from a port or ports outside the jurisdiction; " Marine Board " means The Marine Board of Queensland constituted under the Queensland Marine Act 1958-1972; " master" means in relation to a ship any person who, at the material time, has, either lawfully or de facto, the command, charge or management of the ship; Minister " means the Minister for Conservation, Marine and Aboriginal Affairs or other Minister of the Crown for the time being charged with the administration of this Act and includes any person who for the time being performs the functions of the Minister; " occupier " means- (a) in relation to a place on land, the person who exercises by himself, his servants or agents any right of occupation thereof or, where there is not any occupier, means the owner thereof; (b) in relation to avehicle, includes the person in charge and the owner thereof but does not mean any person who would be taken to be occupier (apart from this provision) by reason only- (i) that he is the occupier or owner of the land on or over which the vehicle stands or moves; and (ii) of the application of paragraph (a) of this definition; (c) in relation to a pipeline for carrying oil, the person who has undertaken the carriage of oil by means thereof; " oil " means oil of whatever description and from whatever source extracted and includes- (a) spirit produced from oil; (b) coal tar; (c) any mixture of oil with any other matter; oil residues " means waste material consisting of or arising from oil; owner " in relation to- (a) land held from the Crown under a lease or used under a licence granted by the Crown, means a person who is entitled to the use of the land under such lease or licence; (b) a ship, includes a charterer of the ship and a person who has possession of the ship;

302 Pollution of Waters by Oil Act 1973, No. 33 " place on land " includes- (a) any structure or apparatus on, above, or below the surface of any land; (b) any vehicle or thing on or moving over any land; (c) any structure erected or apparatus or thing resting on or under the bed, shore or bank of any waters; (d) any floating structure, apparatus or thing (other than a ship) that is anchored or attached to the bed, shore or bank of any waters or that is used in any operation for the exploration of the sea-bed and the sub-soil thereof or in the exploitation of the natural resources of the sea-bed or the sub-soil thereof; " prescribed authority " means- the person or authority who in relation to the situation in question is the prescribed authority for the purposes of Part III pursuant to sections 17 and 18; " Queensland reef " includes any reef within the jurisdiction; ship " includes a ship, boat, dinghy, lighter, barge, punt, raft, houseboat, seaplane, flying-boat, air cushion vehicle, hulk, pontoon and any vessel of whatever kind used or designed for use for any purpose on the sea or in navigation; " tanker " means a ship constructed or adapted for carrying a cargo of oil in bulk; The Convention " means the International Convention for the Prevention of Pollution of the Sea by Oil 1954 as subsequently amended by any amendment that is accepted by the Commonwealth; " the jurisdiction " means the State of Queensland and the area outside the State over which the State claims . jurisdiction ; (2) A discharge of oil, wherever occurring, that has as a result that the whole or part of the oil discharged enters any waters, either immediately or eventually, is for the purposes of this Act a discharge into those waters of that oil or, as the case may be, of so much of that oil as enters those waters. 8. Di sc harge of oil under licence. A discharge of oil is not a discharge to which this Act refers if the person who would otherwise be liable in respect thereof or for expenses and liabilities incurred in relation thereto shows that the discharge occurred under the authority of a licence, permit, or other authority granted under any Act and in accordance with the terms and conditions applicable to that authority. PART II-OFFENCES RELATING TO POLLUTION OF WATERS 9. Discharge of oil an offence. If a discharge of oil into any waters occurs as a result of a discharge of oil from a ship, or from a place on land, or from an apparatus used for transferring oil from or to a ship (whether to or, from a place on land or to or, from another ship) then, subject to the provisions of this Act- (a) if the discharge is from a ship, both the owner and the master of the ship, or (b) if the discharge is from a place on land, the occupier of that place, or (c) if the discharge is from apparatus used for transferring oil from or to a ship, the person in charge of the apparatus, commits an offence against this Act. Penalty: $50 000.

Pollution of Waters by Oil Act 1973, No. 33 303 10. Discharge of oil during transfer operation. (1) In this section the expression " transfer operation " means any operation involved in the preparation for, or in the commencement, carrying on or termination of a transfer of oil from or to a ship or any place on land. (2) If a discharge of oil into any waters occurs as a result of a discharge of oil referred to in section 9 and by reason of an act done or omission made during a transfer operation- (a) where the discharge is from a ship-on another ship or at a place on land or in connexion with apparatus used in the transfer operation, both the owner and master of that other ship or, as the case may be, the occupier of that place. on land, or the person in charge of that apparatus, (b) where the discharge is from a place on land-at another place on land or on a ship or in connexion with apparatus used in the transfer operation, the occupier of that other place on land or, as the case may be, both the owner and master of the ship, or the person in charge of the apparatus, (c) where the discharge is from apparatus used in the transfer operation-on a ship or at a place on land, both the owner and master of the ship or, as the case may be, the occupier of that place on land, commits an offence against this Act. Penalty: $50 000. (3) Nothing in subsection (2) affects the operation of section 9 and proceedings under that section or under subsection (2) may be taken in respect of any one discharge of oil into any waters. 11. Sec tion 23 of The Crri;.;' Code exclud ed. The operation of section 23 of The Criminal, Code is excluded in respect of the offences defined in section 9 or 10. It is immaterial that the discharge of oil in question occurred without the authority or contrary to the instructions of the owner, master, occupier or, as the case may be, person in charge who is charged with an offence defined in section 9 or 10. 12. Defences to charge of offe nc e agai ns t ss. 9, 10. (1) Where the owner or master of a ship is charged with an offence defined in section 9 or 10 it is a defence to prove- (a) where the discharge of oil that has resulted in a discharge of oil into any waters was intended, that the discharge was necessary to secure the safety of the ship, or to prevent damage to the ship or its cargo, or to save life, and was a reasonable step to take in the circumstances; (b) where the discharge of oil that has resulted in a discharge of oil into any waters was not intended, that the oil escaped- (i) in consequence of damage to the ship and that all reasonable steps were taken after the occurrence of the damage for stopping or reducing the escape of oil; or (ii) in consequence of leakage that could not have been foreseen or avoided and that all reasonable steps were taken for prompt discovery of the leakage and, after discovery, for stopping or reducing the escape of oil.

304 Pollution of Waters by Oil Act 1973 , No. 33 (2) Where the occupier of a place on land, or the person in charge of any apparatus is charged with an offence defined in section 9 or 10 it is a defence to prove that the discharge of oil that has resulted in a discharge of oil into any waters was due to accident that could not have been foreseen or avoided and that all reasonable steps were taken for prompt discovery of the discharge and, after discovery , for stopping or reducing the escape of oil. PART 111-MINISTER ' S AND PRESCRIBED AUTHORITIES' POWERS TO MITIGATE POLLUTION OF WATERS 13. Removal of oil; mi tigation of pollution . ( 1) Where a discharge of oil into any waters has . occurred in any circumstance referred to in sec tion 9 or 10 the prescribed authority may take such action as it considers appropriate- (a) to remove oil from any waters where it is found , being oil the produce of such discharge; (b) to disperse or destroy the oil discharged or any part of it; (c) to prevent the oil discharged or any part of it from reaching or from polluting any waters or from reaching or from fouling anything in or on any waters ; ( d) to mitigate any pollution caused by the oil discharged. (2) Subject to the limitation of liability prescribed by sections 30 and 31 where it applies, the amount of any expense or other liability incurred by the prescribed authority in or in connexion with action taken by or for it under subsection ( 1) is a debt due to the prescribed authority or, where that . authority is the Minister , due to the Crown by, and may be recovered by the authority or, as the case may be, the Crown from the owner or master of the ship concerned in the discharge of oil, from the occupier of the place on^land concerned in the discharge of oil or, as the case may be, from the person in charge of the apparatus concerned in the discharge of oil, whether the owner , master, occupier or person in charge, if he were charged with an offence , could or could not prove by way of defence any matter referred to in section 12. 14. Remedy or prevention of actual or likely discharge of oil fro m land or apparatus . (1) Where there is occurring or where the Minister is satisfied that it is likely there will occur a discharge of oil into any waters from any place on land or from any apparatus used for transferring oil from or to a ship the Minister- (a) may take such action as he considers appropriate to preserve the waters from pollution or further pollution by oil; (b) by notice in writing addressed to and given to the occupier of that place on land or, as the case may be, to the person in charge of that apparatus , or to the occupier of any other place on land or to the person in charge of any other apparatus similarly used from which oil may flow or be carried to the first - mentioned place on land or apparatus , may require- (i) that all or any operations or activity in, on or involving the use of that place on land or apparatus be terminated; (ii) that all or a specified part of the oil contained in that place on land or apparatus or contained in a specified part thereof be removed;

Pollution of Waters by Oil Act 1973, No. 33 305 (iii) that a removal of oil required under the preceding subparagraph to be made be effected in a specified manner or to a specified place; (iv) that all or a specified part of the oil contained in that place on land or apparatus be retained there; (v) that no oil , or no further oil, or no oil in excess of a specified quantity be received in that place on land or apparatus; (vi) that specified restrictions be complied with i n respect of the reception of oil into , the removal of oil from, or the transfer of oil into, from or within that place on land or apparatus; (vii) that specified plant or equipment in or used with that place on land or apparatus be operated or be put into and maintained in operating condition; (viii) that specified repair or reconstruction work be effected in respect of that place on land or apparatus. (2) If an occupier of a place on land or a person in charge of apparatus fails to comply with the requirements, or any of them, of a notice given to him pursuant to subsection ( 1) either within the time specified therefor in the notice or, where a time is not so specified , forthwith he commits an offence against this Act. Penalty: $50 000. 15. Mini s ter may act upon default in complying with notice. (1) If any requirement of a notice given pursuant to subsection ( 1) of section 14 is not complied with as prescribed the Minister , or the Director of the Department or the chairman of the Marine Board ( in either case acting under the Minister ' s authorization) may cause that requirement to be complied with and for that purpose any officer of the Department, or servant or agent of the Minister may, using such force as is necessary to achieve the purpose, (a) enter upon any place on land to which the notice relates; (b) take possession of any ship, place on land or apparatus used for transferring oil from or to a ship, being in any case a ship, place or apparatus to which the notice relates or with which it is concerned , to the extent necessary to secure compliance with the requirement; (c) take possession of and retain any substance or thing and use and operate any plant or equipment in or on that ship, place on land or apparatus. (2) The amount of any expense or other liability incurred in or in connexion with action taken by or for the Minister under provision (a) of subsection ( 1) of section 14 or taken under subsection (1) of this section is a debt due to the Crown by, and may be recovered by the Crown from- (a) in the case of action taken under section 14, the occupier of the place on land or, as the case may be, the person in charge of the apparatus referred to in subsection (1) of that section; (b) in the case of action taken under this section, the occupier or, as the case may be, the person in charge who has failed to comply with the requirement that the Minister or his agent has caused to be complied with.

306 Pollution of Waters by Oil Act 1973, No. 33 16. Methods of recovering ex pense s and liabilities . (1) The amount of any expense or other liability that, as prescribed by sections 13 and 15, the prescribed authority or the Crown is entitled to recover- (a) upon proof in the course of proceedings for recovery of a penalty in respect of the discharge of oil or failure to comply out of which arises the entitlement to recover the amount of the expense or other liability may be awarded in that proceeding, the court that determines the proceedings being hereby empowered to order the defendant to pay to the prescribed authority or to the Crown as the case requires the amount of the expense or other liability; or (b) may be recovered by action in any court of competent jurisdiction as a debt due and owing by the owner, master, occupier or, as the case may be, person in charge from whom the prescribed authority or the Crown is entitled under this Act to recover the same. (2) Without prejudice to any other mode of enforcement available at law, an order to pay the amount of any expense or other liability made pursuant to provision (a) of subsection (1), or a copy thereof purporting to have been issued by the person who has custody of the records of the court wherein it was made, may be filed in the registry of a court having jurisdiction in an action for debt wherein the amount claimed is the amount so ordered to be paid and thereupon the order may be enforced as an order for payment of a debt due and owing to the prescribed authority or to the Crown made by the last-mentioned court. 17. Definition of prescribed authority. Subject to section 18 and to any election made thereunder, for the purposes of this Part, if the oil is in waters or is likely to be discharged into waters- (a) being foreshore or bank that is held by or is under the control and management of a Harbour Board, the prescribed authority is that Harbour Board; (b) being foreshore or bank that is held by or is under the control and management of a Local Authority or other person for public purposes, the prescribed authority is that Local Authority or, as the case may be, that person; (c) within the limits of a harbour under the control and management of a Harbour Board or the Harbours Trust within the meaning of The Harbours Acts 1955 to 1968, not being waters to which provision (b) of this section refers, the prescribed authority is the Harbour Board constituted for that harbour or, as the case may be, the Harbours Trust; (d) other than waters to which provisions (a), (b) and (c) of this section refer- (i) being foreshore or bank, the prescribed authority is the Harbours Trust; (ii) being any other waters, the prescribed authority is the Marine Board. 18. Minister may elect to be prescribed authority . Where a discharge of oil into any waters has occurred in any circumstance referred to in section 9 or 10 the Minister may elect to be the prescribed authority empowered to take action under this Part.

Pollution of Waters by Oil Act 1973, No. 33 307 On and from the making of the election until it is revoked the Minister shall for the purposes of this Part be the prescribed authority to the exclusion of any authority otherwise prescribed to be the prescribed authority for the purposes of this Part but without prejudice to the right of such an authority to recover the amount of any expense or other liability incurred by it in or in connexion with action taken by or for it under this Part prior to the making of the election. PART IV-MINISTER'S POWERS RELATING TO DISCHARGES OF OIL FROM SHIPS 19. This Part additional to other provisions of Act. The powers conferred on the Minister by this Part are in addition to and not in derogation of any other powers or any functions prescribed by this Act. 20. . - . or prevention of actual or likely disch arge of oil from ship. (1) `!here there is occurring or where the Minister is satisfied that it is likely there will occur a discharge of oil from a ship then, for the purpose of preventing or reducing the extent of the pollution or likely pollution by the oil of any waters or of any part of the Queensland coast or of any Queensland reef, the Minister, by notice in writing addressed to the owner of the ship and served in accordance with section 21, may do all or any of the following things:- (a) require such action to be taken in relation to the ship or its cargo, or the ship and its cargo, as is specified in the notice; (b) prohibit the removal of the ship from a place specified in the notice except with and in accordance with the approval of the Minister; or (c) prohibit the removal from the ship of any cargo, or any cargo specified in the notice, except with and in accordance with the approval of the Minister. (2) The Minister shall specify in a notice under subsection (1), in relation to any requirement specified in the notice under provision (a) of that subsection, the time by which the requirement is to be complied with. (3) Without limiting the generality of paragraph (a) of subsection (1), the action that the Minister may, under that subsection, require to be taken in relation to a ship includes- (a) action to prevent the discharge of oil from the ship; (b) the removal of oil from the ship, or a specified part of the ship, in such manner, if any, as is specified by the Minister, to such place, if any, as is so specified; and (c) the removal of the ship to a place specified by the Minister. (4) Nothing in this section shall be construed as preventing the service under subsection (1) of more than one notice in respect of a ship. (5) Where a notice has been served under subsection (1) in respect of a ship (including a notice that has been varied under this subsection), the Minister may, by further notice in writing addressed to the owner of the ship and served in accordance with section 21, revoke or vary the earlier notice and, where the earlier notice is varied, it has effect as varied from the time when the other notice is so served. (6) In this section, " cargo " includes ballast and ship's stores and fuel.

308 Pollution of Waters by, Oil Act 1973, No. 33 21. Service of notice un der s . 20. (1) Service of a notice given under section 20 in respect of a ship shall be effected:- (a) by serving it personally on the owner of the ship or, if the owner is a company, on a director, secretary or other officer of the company; (b) by serving it personally on the agent of the ship or, if the agent is a company, on a director, secretary or other officer of the company; or (c) by serving it personally on the master of the ship or, if for any reason (including the absence of the master, from the ship) it is not practicable to serve the notice on the master, by handing it to any person on board the ship who appears to be an officer of the ship. (2) Where service cannot be effected on any person under subsection (1) the notice shall be deemed to be properly served if the contents are transmitted to the master or person in command of a ship by any manner in which receipt of the contents of the notice is acknowledged by any person on board the ship to have been received and understood. (3) A statement in writing purporting to be made and signed by a person employed as a communications officer whose duties include the transmission of messages to ships at sea that he caused the contents of a notice given under section 20 to be transmitted to a ship at sea and received an acknowledgement of the message from some person on board the ship shall be evidence, until the contrary is proved, of service of the contents of the notice. 22. Fail ur e to comply with notice an offence. ( 1) Where- (a) a notice given under subsection ( 1) of section 20 is served in respect of a ship; and ( b) a requirement specified in the notice under provision (a) of that subsection is not complied with before the time specified in. the notice or a prohibition specified in the notice under provision ( b) or (c ) of that subsection is contravened, the owner of the ship commits an offence against this Act. Penalty: $50 000. (2) It is a defence to a charge of an offence defined in subsection (1) to prove- (a) that the failure to comply or the contravention of the notice resulted from the need to save life at sea; or ( b) that compliance with the notice was not possible. 23. Minister may act upon default in complying with notice. (1) Where a requirement specified in a notice served under section 20 in respect of a ship is not complied with, the Minister may, whether or not the owner of the ship has been convicted of an offence against this Act by reason of the requirement not having been complied with, cause such things to be done as he thinks proper for the carrying out of the action required by the notice to be carried out. (2) Where- (a) a notice under subsection (1) of section 20 is served in respect of a ship which is not a ship to which section 24 applies;

Pollution of Waters by Oil Act 1973, No. 33 309 (b) a requirement specified in the notice is not complied with or a prohibition specified in the notice is contravened; and (c) a discharge of oil from the ship occurs by reason of the requirement not having been complied with or by reason of the prohibition having been contravened, the Minister may, whether or not the owner of the ship has been convicted of an offence against this Act by reason of the requirement not having been complied with or by reason of the prohibition having been contravened, cause such things to be done as he thinks proper to prevent or reduce the extent of the pollution by the oil of any waters, any part of the Queensland coast or any Queensland reef, or to remove or reduce the effects of the pollution by the oil of any such waters, coast or reef. (3) Subject to subsection (4), the amount of any expense or other liability incurred by the Minister in, or by reason of, the exercise of his powers u_ider either subsection (1) or (2) in relation to a ship- (a) is a debt due to the Crown by, and may be recovered by the Crown from, the owner of the ship; and (b) is a charge upon the ship, which, except where the ship is not within the jurisdiction, may be detained by a person authorized by the Minister and may be so detained until the amount is paid or security for the payment of the amount is provided to the satisfaction of the Minister. (4) Subsection (3) does not apply in relation to the amount of any expense or other liability incurred by the Minister in, or by reason of, the exercise of his powers under subsection (2) in relation to oil that has been discharged from a ship where- (a) the failure of the owner of the ship to comply with the notice under subsection (1) of section 20 resulted from the need to save life at sea; or (b) compliance with the notice was not possible. 24. Prevention of pollution by oil discharged from bulk oil tankers. (I) This section applies to a ship carrying oil in bulk as cargo. (2) Where there occurs a discharge of oil from a ship to which this section applies (whether within the jurisdiction or elsewhere), the Minister may (whether or not a notice has been served in respect of the ship under section 20 and whether or not any notice so served has been complied with) cause such. things to be done as he thinks proper to prevent or reduce the extent of the pollution by the oil of any waters, any part of the Queensland coast or any Queensland reef, or to remove or reduce the effects of the pollution by the oil of any such waters, coast or reef. (3) Subject to subsection (4), where the Minister has incurred expenses or other liabilities in or by reason of the exercise of his powers under subsection (2) in relation to any oil that has been discharged from a ship, the total amount of those expenses and liabilities, or, where the discharge of oil did not occur as a result of the actual fault or privity of the owner, that total amount to the extent that it does not exceed the maximum liability applicable to the ship under sections 30 and 31 in relation to that incident- (a) is a debt due to the Crown by, and may be recovered by the Crown from, the owner of the ship; and

310 Pollution of Waters by Oil Act 1973, No. 33 (b) is a charge upon the ship, which , except where the ship is not within the jurisdiction , may be detained by a person authorized by the Minister and may be so detained until the amount is paid or security for the payment of the amount is provided to the satisfaction of the Minister. (4) Subsection ( 3) does not apply in relation to a ship, or the owner of a ship, where the owner of the ship proves that the discharge of the oil- (a) resulted from an act of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional, inevitable and irresistible character; (b) was wholly caused by an act or omission done by a third party with intent to cause damage; or (c) was wholly caused by the negligence or other wrongful act of any government , or other authority , responsible for the maintenance of lights or other navigational aids in the exercise of its functions in relation to those lights or aids. (5) In this section- incident " means an occurrence, or a series of occurrences having the same origin; " owner " means , in relation to a ship from which oil is discharged, the owner of the ship at the time the incident that caused the discharge occurred or, if the incident consisted of a series of occurrences having the same origin , at the time of the first of the occurrences; " third party " means, in relation to a ship, any person other than- (a) the owner of the ship; (b) a servant or agent of the owner of the ship; or (c) the master , an officer or any other member of the crew of the ship or of any other ship also owned by the owner of the ship. PART V-DECLARATORY P ROVISIONS RELATING To LIABILITY FOR OIL DAMAGE OR POLLUTION 25. Recovery of damages for discharge of oil fro ., i f (1) Where by reason of a discharge of oil into any waters from a ship carrying oil in bulk as cargo the Crown or any person suffers loss of or damage to any property, or incurs any expense or other liability in preventing or mitigating such loss or damage, then , subject to the limitation of liability prescribed by sections 30 and 31 where it applies , the Crown.or that person is entitled to recover from the owner of the ship by action in any court of competent jurisdiction the value of such loss or damage and the amount of any expense or liability so incurred. (2) Subsection (1) does not apply in relation to a ship or the owner of a ship if the owner proves that the discharge of oil resulted from or was caused by any circumstance prescribed by subsection (4) of section 24. 26. Liability where oil discharges are mixed . When a discharge of oil into any waters has occurred from two or more ships and it is not reasonable to expect that an indentification of the oil that has been discharged from a particular ship can be made it shall be deemed for the purposes of sections 13, 23, 24 and 25 that all the oil discharged was

Pollution of Waters by Oil Act 1973, No. 33 311 discharged from each of those ships and the owners and masters of those ships shall be jointly and severally liable as prescribed by those sections but the Crown or any person shall not thereby be entitled to recover an amount that exceeds- (a) in the case of action to recover the amount of any expense or other liability incurred, the amount thereof actually incurred; (b) in the case of action to recover damages for loss of or damage to property, the value of such loss or damage. 27. Recovery proceedings to be irrespective of pr osec ution action. It shall not be a prerequisite for bringing an action to recover on account of loss or damage suffered or expense or other liability incurred by reason of a discharge of oil into any waters that proceedings have been taken for recovery of a penalty in respect of the discharge or in respect of a failure to comply with a notice given under this Act and out of which arises the entitlement to recover. 28. Right of recovery not prejudiced by action under this Act. No provision of this Act, nor anything done or omitted under this Act, nor the omission to do anything that might have been done under this Act shall prejudice the right of the Crown or of any person to recover on account of loss or damage suffered or expense or other liability incurred as a consequence of a discharge of oil. 29. No judicia l restraint of administrative action. No proceedings in the nature of an application for an injunction shall lie in any court in respect of action taken or a notice given by a prescribed authority or by the Minister or his agent purportedly under the authority of this Act. 30. Limitation on liability applicable to ship . (1) For the purposes of this Act and for the purposes of any action apart from this Act for the recovery of damages or other moneys arising out of a discharge of oil the maximum liability applicable to a ship and recoverable from its owner or master in relation to an incident that resulted in the discharge of oil from the ship other than such an incident that occurred as a result of the actual fault or privity of the owner or, where the claim is against the master, of the master is- (a) an amount calculated by multiplying the sum of $120 by the tonnage factor applicable to the ship; or (b) the amount of $12 600 000, whichever is the less. (2) In this section- adjusted net tonnage " means, in relation to a ship, the number of tons that would be the net tonnage of the ship if, in ascertaining that tonnage by reference to the gross tonnage of the ship in accordance with the normal rules for measuring the tonnage of ships, no deductions were made from the gross tonnage of the ship in respect of engine-room space; " incident " means an occurrence, or a series of occurrences having the same origin;

312 Pollution of Waters by Oil Act 1973, No. 33 Ci tonnage factor " means, in relation to a ship, a number equal to the number of tons included in the adjusted net tonnage of the ship or, if the ship cannot be measured in accordance with the normal rules for measuring the tonnage of ships, a number equal to 40 per centum of the number of tons of oil that the ship is capable of carrying in bulk as cargo where, for the purposes of this definition, one ton of oil is deemed to occupy 1.1327 cubic metre of space. 31. Limitation of liability of ship owners un der international convention. Where under the terms of a convention between nations to which the Commonwealth is a party the amount that may be recovered from the owner of a ship.on account of a discharge of oil from that ship is limited, generally or in specified circumstances, then for the purposes of this Act and for the purposes of any action apart from this Act for the recovery of damages or other moneys arising out of a discharge of oil the maximum liability of the owner or master of that ship against whom recovery is sought shall be as so limited and no provision of this Act shall be taken to render the owner or master of that ship liable to pay an amount in excess of that amount so limited on account of a discharge of oil from that ship, generally or in the circumstances specified, according as the convention provides. PART VI-PROVISIONs DIRECTED TO AVOIDANCE OR MITIGATION OF OIL POLLUTION 32. Equipment and management of intrastate ships. (I) Every intrastate ship of the class or classes prescribed- (a) shall be equipped with such equipment, calculated to prevent discharge of oil from that ship into any waters, as is prescribed and shall comply in all respects with the regulations relating to the maintenance, operation and management of that equipment; (b) shall comply in all respects with the regulations relating to matters concerned with or incidental to the prevention of a discharge of oil or relating to the maintenance, operation or management of the ship. (2) Where the regulations require intrastate ships to be fitted with prescribed equipment they may further provide- (a) for inspection of ships to which they apply by persons appointed by the Marine Board for the purpose; (b) that the prescribed equipment shall not be installed in a ship to which they apply unless it is of a type tested and approved by a person appointed by the Marine Board for the purpose; (c) that the prescribed equipment, whilst installed in a ship to which they apply, shall be tested by a person appointed by the Marine Board for the purpose, and shall be taken not to comply with the regulations unless it is approved on each test; (d) for payment of fees for every inspection and test made as required by the regulations.

Pollution of Waters by Oil Act 1973, No. 33 313 (3) The regulations may prohibit or regulate the carriage by any ship to which they apply of water or other prescribed substance in any tank that has contained oil unless the tank has first been thoroughly cleansed. (4) The Marine Board may appoint ( generally or in particular cases ) persons to carry out all or any of the inspections and tests required by the regulations to be made in respect of intrastate ships or the equipment thereof. (5) If in the case of any ship there is a failure to comply with or a contravention of any regulation that relates to any matter referred to in this section and that applies to the ship both the owner and the master of the ship commit an offence against this Act. Penalty: $10 000. 33. Records of ships and places on land . ( 1) The regulations may require the owner and master of an intrastate ship of the class or classes prescribed to keep and deal with as prescribed or cause to be kept and dealt with as prescribed- (a) records of any occasion when oil is discharged from the ship to secure its safety or to prevent damage to the ship or its cargo or to save life; (b) records of any occasion when oil is found to be discharging or to have discharged from the ship in consequence of damage to the ship or by reason of leakage; (c) records of the carrying out, on board or in respect of the ship, of such operations as are prescribed including- (i) the ballasting of oil tanks ( whether cargo or bunker fuel tanks ) and the discharge of ballast from , and the cleaning of such tanks; (ii) the separation of oil from water or other substance in any mixture containing oil; (iii) the disposal of oil or water or other substance arising from any operation referred to in provision ( i) or (ii); (iv) the disposal of any other oil residues; (d) records relating to the transfer of oil from or to the ship; ( e) records of any other prescribed operation , matter or occurrence. (2) The regulations may require the occupier of any place on land to keep and deal with as prescribed or cause to be kept and dealt with as prescribed records- (a) records relating to the transfer of oil from or to a ship and to, from or through that place on land; (b) records of the operation of facilities provided at that place on land for the disposal of oil residues from a ship; (c) records of any discharge of oil that occurs in the course of or in connexion with any transfer of oil or disposal of oil residues; (d) records of any other prescribed operation, matter or occurrence. (3) The regulations may- (a) prescribe the form in which records shall be kept and the nature of the entries to be made therein; (b) require the person keeping the records to retain them for a prescribed period and in a prescribed place;

314 Pollution of Waters by Oil Act 1973, No. 33 (c) require that person, at the end of the prescribed period, to transmit the records to a place or person specified by the regulations or nominated by some person pursuant to the regulations; (d) provide for the custody or disposal of the records after their transmission to such place or person. (4) A person who makes in any records required by the regulations to be kept an entry that is to his knowledge false or misleading in any particular commits an offence against this Act. Penalty: $5 000. (5) A person required by the regulations or required for the purposes of the regulations to record any matter shall record it without delay upon the occurrence of the event in relation to which the matter is to be recorded. (6) If any records are not kept or caused to be kept, or retained or transmitted in accordance with any regulation, then- (a) in the case of records referred to in subsection (1) the owner or master of the ship concerned or both, according to the requirement of the regulation; or (b) in the case of records referred to in subsection (2) the occupier of the place on land concerned, commits an offence against this Act. Penalty: $5 000. 34. Reporting and investigation of oil (i . _ ;. (1) If a discharge of oil occurs from any ship, or from any place on land or from any apparatus used for transferring oil from or to any ship (whether to or from a place on land or to or from another ship) into any waters the owner and the master of such ship, or the occupier of such place on land or, as the case may be, the person in charge of such apparatus shall forthwith inform- (a) the Harbour Board, where the discharge occurs into waters within the limits of a harbour; (b) the Marine Board, where the discharge occurs into waters not within the limits of a harbour, of all details of the occurrence, and if he fails to do so he commits an offence against this section. Penalty : $10 000. Where one of them, the owner or master of a ship, has informed as prescribed by this subsection, the other of them shall thereupon be excused from his obligation so to do. (2) For the purpose of investigating any discharge or suspected discharge of oil into any waters, the Harbour Master of any harbour, or any person generally or in a particular case appointed for that purpose by the chairman of the Marine Board or by the chairman of a Harbour Board- (a) may go on board and inspect any ship being within the jurisdiction; (b) may inspect any records required to be kept in respect of the ship by this Act or by the law of any country to which the Convention applies;

Pollution of Waters by Oil Act 1973, No. 33 315 (c) if such records are kept in a language other than English, may be accompanied and assisted by an interpreter; (d) may cause any entry in any such records to be copied and may require the person by whom the records are to be kept to certify the copy as a true copy of the entry; and (e) may, for the purpose of making any report under or for the purposes of this Act, require the attendance before him of all such persons as he thinks fit and may require from such persons answers and returns to any inquiries as he thinks fit to make. (3) A person who is exercising any of the powers conferred by subsection (2) shall not unnecessarily detain the ship concerned or unnecessarily delay the ship concerned from proceeding on its voyage. (4) The Harbour Master of any harbour, or any person generally or in a particular case appointed- for that purpose by the chairman of the Marine Board or by the chairman of a Harbour Board, may enter and inspect any place on land for the purpose of investigating any discharge or suspected discharge of oil and for that purpose may inspect any records required to be kept by this Act in respect of such place, may cause any entry in any such records to be copied and may require the person by whom the records are to be kept to certify the copy as a true copy of the original. (5) Any right of inspection provided in subsection (2) or (4) of this section includes the right to take samples of any substances or mixtures of substances being in, on, or in the vicinity of the ship or place on land inspected, and to require the master of such ship or the occupier of such place on land, or the person in charge of any apparatus referred to in subsection (1) or any person representing such master, occupier or person in charge to certify the taking of such samples, and to require the testing of any equipment or apparatus the condition or efficiency of which is considered by the person making the inspection to be relevant to the discharge or suspected discharge. (6) A person who- (a) assaults, resists, obstructs or hinders a person who is exercising . any power conferred by this section; (b) fails to comply with a requirement made of him under this section; or (c) in giving an answer required of him under this section, makes a statement that to his knowledge is false or misleading in any particular, commits an offence against this Act. Penalty: $2 000 . 35. Pr°ovi, _ _. rp oil reception facilities . (1) Any Harbour Board may provide in such places as it considers necessary facilities for em =r;g ships to dispose of oil residues, or may join with the Crown or any peon in providing such facilities, or may arrange for the provision of such facilities by the Crown or any person. (2) The power of a Harbour Board to make by-laws pursuant to The Harbours Acts 1955 to 1968 includes power to make by-laws fixing charges and imposing conditions in respect of the use of any such facilities.

316 Pollution of Waters by Oil Act 1973, No. 33 (3) Subject to the following provisions of this section , any facilities provided by or by arrangement with any Harbour Board shall be open to all ships on payment of any charges and subject to compliance with any conditions as provided by the by-laws of the Harbour Board. (4) Notwithstanding the provisions of subsection ( 3) a Harbour Board, or the Crown or a person providing facilities by arrangement with a Harbour Board, shall not be obliged to make those facilities available for use by tankers , or for the reception of oil residues disposed of for the purpose of enabling a ship to undergo repairs. (5) Nothing in this section shall be construed as requiring any Harbour Board or the Crown or a person providing facilities by arrangement with a Harbour Board to allow untreated ballast water (that is to say, ballast water that contains oil and has not been subjected to an effective process for separating the oil from the water ) to be disposed of into any facilities provided by, or by arrangement with, the Harbour Board. (6) With the prior approval of the Minister a Harbour Board may require the owner or occupier of premises within the harbour for which it is constituted being premises of an oil terminal , oil depot, oil installation or other premises used for the loading or unloading of oil in bulk, or premises at which ships are repaired or at which there is performed in respect of ships any work that involves the disposal of oil residues- (a) to provide at the premises facilities of a standard satisfactory to the Harbour Board for the disposal of oil residues by ships berthed, docked or otherwise being at such premises; (b) to maintain such facilities in good order and condition; (c) to make such facilities available for enabling ships to dispose of such oil residues. (7) A requisition made pursuant to subsection (6)- (a) shall be signed by the secretary or acting secretary to the Harbour Board or, in the case of the Harbours Trust, the Director of the. Department or the person who at the material time performs the duties of the Director; (b) may, in so far as it relates to the provision of the facilities referred to in that subsection , specify a time within which its requirements are to be complied with; (c) may be revoked or varied as the Harbour Board thinks fit; (d) may , without prejudice to any other mode of service authorized by this Act, be sufficiently served by delivering the same to or by sending the same by post addressed to the person being or appearing to be in charge of the premises on the owner or occupier whereof the requisition is made. (8) An owner or occupier on whom or in relation to whose premises a requisition is made pursuant to subsection ( 6) who fails to comply therewith commits an offence against this Act. Penalty: $5 OGO . 36a Re ' ti as for transfer of oil. (1) Oil shall not be transferred between sunset and sunrise from or to a ship in any waters unless notice has been given to, and permission in writing obtained from- (a) where such waters are within the limits of a harbour for which there is a Harbour Board, such Harbour Board;

Pollution of Waters by Oil Act 1973, No. 33 317 (b) where such waters are within the limits of a harbour for which there is not a Harbour Board, the Harbour Master; or (c) where such waters are waters other than those referred to in paragraphs (a) and (b) of this subsection, the chairman of the Marine Board. (2) Where a transfer of oil is to be performed at a place where such transfers are frequently and regularly carried out- (a) the notice required by subsection (1) to be given may be a general notice that transfers will be carried out within a period specified in the notice; and (b) the permission that may be granted may be general and may be made subject to such conditions as the grantor thinks fit. (3) Where- (a) oil is transferred from or to a ship in contravention of subsection (1); or (b) any condition to which a permission granted under subsection (1) is not complied with in the carrying out of such a transfer, the master of the ship concerned and, if the transfer is to or from a place on land, the occupier of that place on land commits an offence against this Act. Penalty: $2 000. PART VII-MISCELLANEOUS PROVISIONS 37, Inspection as to operation of Act. (1) A person appointed, generally or in a particular case, by the chairman of the Marine Board or by the chairman of a Harbour Board to report to the board whose chairman has made the appointment as to the adequacy of the provisions of this Act and as to the observance of them- (a) may go on board any intrastate ship, or may enter any place on land; (b) may inspect any records required by this Act to be kept; (c) may cause any entry in such records to be copied and may require the person by whom the records are to be kept to certify the copy as a true copy of the entry; (d) may inspect and test all equipment required by this Act to be installed in the ship or in the place on land; (e) may require such persons as he thinks fit to answer such questions as he considers to be relevant to matters touching this Act; (f) may require the production of all books, documents and papers that he considers to be material for the purpose of his report to the board concerned. (2) A person who- (a) assaults , resists, obstructs or hinders a person who is exercising any power conferred by subsection (1); (b) fails to comply with a require ---_: made of him under this section;

318 Pollution of Waters by Oil Act 1973, No. 33 (c) in giving an answer required of him under subsection (1) makes a statement that-to his knowledge is false or misleading in any particular, subject to subsection ( 3), commits an offence against this Act. Penalty: $2 000. (3) A person shall not commit an offence against this Act or incur any liability to a penalty by reason of his failing to answer any question or to certify any copy of a record if an answer or, as the case may be, his certification would tend to criminate him. 38. Mari ne and may dispe nse fro m re ..4 (1) Where in respect of the requirement of any regulation the Marine Board is satisfied- (a) that the requirement has been substantially complied with; (b) that compliance with the requirement is, in the circumstances of the case , impracticable or unnecessary; or (c) that the action taken or provision made in respect of the matter to which the requirement is directed is as effective as or more effective than compliance with the regulat on, the board may direct that compliance with that rec;ui, r _ Fit be dispensed with in the particular case and, while that disfa , s:.ion subsists, the person who otherwise would be bound by the requirement shall be free of its obligation , subject to subsection (2). (2) The Marine Board may , at the time it directs a dispensation pursuant to subsection ( 1) or at any time thereafter , make the dispensation subject to such conditions as it thinks fit and, if it does so, the person who benefits from the dispensation shall comply in all respects with those conditions. (3) If a person who benefits from a dispensation directed by the Marine Board pursuant to subsection ( 1) at any time fails to comply with a condition to which the dispensation is subject the dispensation shall be deemed to be thereby revoked and shall thereupon cease to subsist. (4) The Marine Board may at any time revoke a dispensation directed by it pursuant to subsection (I) by notice in writing given to the person who benefits from the dispensation whereupon the dispensation shall cease to subsist. 39. General offence provision. (1) A person who contravenes or fails to comply with any provision of this Act commits an offence against this Act and, if a penalty therefor is not otherwise provided by this Act, is liable to a penalty not exceeding $2 000. (2) If a person, convicted of an offence against this Act that consists in a failure to comply, persists in the failure that constitutes the offence he shall be taken to commit a separate offence on each day on which the failure continues and he may be prosecuted and shall be liable to the prescribed penalty for each such offence accordingly. (3) A person may be prosecuted for an offence against this Act either summarily or upon. indictment.

Pollution of Waters by Oil Act 1973, No. 33 319 Where proceedings for an offence for which the maximum penalty is $50 000 are brought in a court of summary jurisdiction and the defendant does not plead guilty the court- (a) may commit the defendant for trial, and may exercise in respect of the defendant all or any of the powers conferred by law as if it were a justice taking an examination of witnesses in relation to an indictable offence; or (b) with the consent of the defendant, determine the proceedings. (4) Where proceedings upon indictment are taken in respect of an offence against this Act the tribunal of fact as well as of law shall consist of a judge of the court in which the proceeding is taken sitting alone. (5) Save as is prescribed by subsection (2), a person is not liable to be punished more than once in respect of the same offence. 40. Venue of hearings of charges . Charges of offences against this Act alleged to have been committed in or in respect of any waters may be heard and determined at a place appointed for holding Magistrates Courts in the Magistrates Courts District in which those waters are -situated or on which those waters abut. This-section is in addition to and not in derogation of or in substitution for any other enactment of law that confers jurisdiction on any court. 41. Appropriation of certain penalties. Penalties under this Act recovered in proceedings brought by or on behalf of a Harbour Board shall be paid into its Harbour Fund. 42. Service of documents. (1) Save where this Act requires that a document or writing or the contents thereof shall be served or given in some other manner, a document or writing that is to be served on or given to any person for the purposes of this Act may be so served or given- (a) by serving it personally on the person to whom it is addressed or, if that person is a corporate person, on a director, secretary or other officer of the corporate person; (b) where it is to be served on or given to the owner or master of a ship, by serving it on any agent of the ship within the State by such means as it might have been served on the owner or master, were he within the State; (c) where it is to be served on or given to the owner or master of a ship, by serving it personally on the master or if for any reason (including the absence of the master from the ship) it is not practicable to serve it on the master, by handing it to any person on board the ship who appears to be an officer of the ship. (2) Service on any agent of a ship shall be deemed to be service on the owner and the master of that ship. (3) In the absence of proof to the contrary, a person shall be taken to be an agent of a ship if it be shown that in relation to that ship he has undertaken or performed within the State on behalf of the owner of the ship the functions of ship's husbandry or has made arrangements for or in connexion with the repair or berthing of the ship or the carriage, loading or unloading of cargo, stores or bunkers thereon or therefrom

320 Pollution of Waters by Oil Act 1973, No. 33 or has, in relation to the ship, performed any duty or function under The Harhours Acts 1955 to 1968 or the Queensland Marine Act 1958-1972 or for the purposes of this Act. 43. Evidentiary provisions . (1) In any proceeding under or for the purposes of this Act- (a) a record required by this Act or by the law of any country to which The Convention applies to be kept for the carrying out of the purposes of The Convention shall be admissible as evidence of the matters contained in the record; (b) a copy of an entry in a record referred to in paragraph (a) that is certified to be a true copy of the entry by the person by whom the record is required to be kept or by a person who purports to be such person shall be admissible as evidence of the matters contained in the entry; (c) a document that purports to be a record referred to in paragraph (a) or a copy referred to in paragraph (b) (certified as therein specified) shall be taken to be what it purports to be until the contrary is proved ; (d) an averment in any complaint or charge that- (i) a ship concerned is, or was at the material time, an intrastate ship; (ii) the defendant is, or was at the material time, the occupies of a place on land concerned; (iii) the defendant is, or was at the material time, the person in charge of apparatus concerned used for transferring oil from or to a ship, shall be evidence, and, in the absence of evidence to the contrary, conclusive evidence of the matter averred; (e) the following matters shall be sufficiently evidenced by a statement in writing purporting to be signed by the chairman of the Marine Board or by the chairman of a Harbour Board :-- (i) the appointment of any person to carry out all or any of the inspections and tests referred to in section 32; (ii) the appointment of any person to investigate any discharge or suspected discharge of oil under section 34; (iii) the appointment of any person to report as to the adequacy of the provisions of this Act and as to the observance of them under section 37; (iv) any dispensation directed by the Marine Board, any conditions to which the dispensation is subject, or the revocation of any dispensation directed, under section 38; and (v) the making of a requisition pursuant to subsection (6) of section 35 and the mode of service thereof on the person to whom it is directed and, where the statement in writing is endorsed on or attached to a document in such statement certified to be a true copy of a requisition made pursuant to that subsection, the terms of such requisition. (2) The provisions of the Queensland Marine Act 1958-1972 with respect to evidence or proof in any proceedings under that Act, of any matter or thing evidence or proof whereof is relevant to any proceedings under this Act taken by or on behalf of the Marine Board shall apply with respect to such proceedings under this Act.

Pollution of Waters by Oil Act 1973, No. 33 321 (3) The provision of The Harbours Acts 1955 to 1968 with respect to evidence or proof in any proceedings under those Acts, of any matter or thing evidence or proof whereof is relevant to any proceedings under this Act taken by or on behalf of a Harbour Board shall apply with respect to such proceedings under this Act. 44. Regulations. The Governor in Council may from time to time, upon the recommendation of the Marine Board, make regulations, not inconsistent with this Act, prescribing all matters and things which by this Act are required or permitted to be prescribed (save any matters or things which by this Act are required to be prescribed otherwise than by regulation) or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act, and in particular- (a) for giving effect to Article VII or IX of The Convention in respect of intrastate ships of the class or classes prescribed; (b) for exempting any ship or all or any ships included in a prescribed class of ships from this Act or from any of the provisions of this Act, and either absolutely or subject to conditions. SCHEDULE The Pollution of Waters by Oil Act of 1960 .. [s. 3] .. 9 Eliz. 2 No. 29 The Pollution of Waters by Oil Act Amendment Act of 1961 10 Eliz. 2 No. 44 II