Transport and Communications Legislation Amendment Act (No. 2) 1992 (Cth)
Transport and Communications Legislation Amendment Act (No. 2) 1992
PART 1—PRELIMINARY
Section | |
| Short title |
| Commencement |
PART 2—AMENDMENTS OF THE AIR NAVIGATION ACT 1920 | |
| Principal Act |
| Approval of ratification of Chicago Convention etc. |
| Texts of Chicago Convention etc. |
| New Schedules |
PART 3—AMENDMENTS OF THE AUSTRALIAN MARITIME SAFETY AUTHORITY ACT 1990 | |
| Principal Act |
| Functions of Authority |
PART 4—AMENDMENTS OF THE AUSTRALIAN POSTAL CORPORATION ACT 1989 | |
| Principal Act |
| Extension of Act to certain external Territories |
| Extension of Act to adjacent areas |
| Community service obligations |
PART 5—AMENDMENTS OF THE CIVIL AVIATION ACT 1988 | |
| Principal Act |
| Flying unregistered aircraft etc. |
| Offence related warrants |
| Reimbursement of cost of complying with directions |
| Cessation of lien |
| Insertion of new Division: |
TABLE OF PROVISIONS—
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PART 6—AMENDMENTS OF THE FEDERAL AIRPORTS CORPORATION ACT 1986 | |
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PART VIA—PROVISIONS RELATING TO THE CORPORATION'S LIABILITY TO PAY INCOME TAX | |
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PART 7—AMENDMENT OF THE NAVIGATION ACT 1912 | |
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PART 8—AMENDMENTS OF THE PROTECTION OF THE SEA (POWERS OF INTERVENTION) ACT 1981 | |
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PART 9—AMENDMENTS OF THE PROTECTION OF THE SEA (PREVENTION OF POLLUTION FROM SHIPS) ACT 1983 | |
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| Interpretation |
| Insertion of new section: |
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| Operation of Division |
| Interpretation |
TABLE OF PROVISIONS—
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PART 10—AMENDMENTS OF THE TELECOMMUNICATIONS ACT 1991 | |
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| Applications for general telecommunications licences and certain public mobile licences |
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| A general carrier may replace, repair and maintain facilities etc. |
| Dominant carrier not to discriminate between acquirers of telecommunications services |
| Basic carriage service must be tariffed if supplied to a person other than a carrier |
| Insertion of new section: |
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PART 11—AMENDMENT OF THE TRANSPORT AND COMMUNICATIONS LEGISLATION AMENDMENT ACT 1990 | |
| Principal Act |
| Interpretation |
SCHEDULE 1
ADDITIONAL SCHEDULES TO THE AIR NAVIGATION ACT 1920
SCHEDULE 2
SCHEDULE TO BE ADDED AT THE END OF THE PROTECTION OF THE SEA (POWERS OF INTERVENTION) ACT 1981
SCHEDULE 3
ANNEX TO BE SUBSTITUTED FOR ANNEX III TO THE CONVENTION SET OUT IN SCHEDULE 1 TO THE PROTECTION OF THE SEA (PREVENTION OF POLLUTION FROM SHIPS) ACT 1983
SCHEDULE 4
SCHEDULE TO BE ADDED AT THE END OF THE PROTECTION OF THE SEA (PREVENTION OF POLLUTION FROM SHIPS) ACT 1983
SCHEDULE 5
SCHEDULES TO BE INSERTED IN THE PROTECTION OF THE SEA (PREVENTION OF POLLUTION FROM SHIPS) ACT 1983
SCHEDULE 6
SCHEDULE TO BE ADDED AT THE END OF THE PROTECTION OF THE SEA (PREVENTION OF POLLUTION FROM SHIPS) ACT 1983
Transport and Communications Legislation Amendment Act (No. 2) 1992
[
The Parliament of Australia enacts:
Sections 18 and 23 are taken to have commenced on 1 July 1991.
Sections 20 and 22 are taken to have commenced immediately after the commencement of the
Part 7 is taken to have commenced immediately after the commencement of Part 5 of the
Subsection 30(2), sections 32 and 43 and subsection 44(3) commence on 4 April 1993.
Subsection 30(3), sections 36 to 42 (inclusive) and subsection 44(4) commence on a day to be fixed by Proclamation, being the day on which the Protocol on Environmental Protection to the Antarctic Treaty (being the Protocol a copy of the English text of which, apart from Annexes I, II, III and V to it, is set out in the Schedule set out in Schedule 6) enters into force.
Sections 33, 34 and 35 commence immediately after the commencement of section 26 of the
(8) Subsection 44(1) commences on 1 July 1992.
Part 11 is taken to have commenced immediately after the commencement of section 26 of the
3. In this Part,"Principal Act" means theAir Navigation Act 1920 1 .
4. Section 3A of the Principal Act is amended:
(a) by adding at the end of each of paragraphs (2)(a) to (g) (inclusive) "and";
(b) by adding at the end of subsection (2) the following word and paragraphs:
"; and (k) the Protocol amending Article 56 of the Chicago Convention, approved by the Assembly of the International Civil Aviation Organization on 6 October 1989; and
(1) the Protocol amending Article 50(a) of the Chicago Convention, approved by the Assembly of the International Civil Aviation Organization on 26 October 1990.".
8. Section 6 of the Principal Act is amended:
(a) by inserting after paragraph (1)(c) the following paragraph:"(ca) to provide on request services of a maritime nature, on a commercial basis, to:
(i) the Commonwealth, a State, the Australian Capital Territory or the Northern Territory; or
(ii) an authority or agency of the Commonwealth, a State or either of those Territories; and";
(b) by adding at the end the following subsection:"(4) The Authority must not perform any of its functions otherwise than for a purpose in respect of which the Parliament has the power to make laws.".
"(5) In this section:
13. In this Part,"Principal Act" means theCivil Aviation Act 1988 4 .
14. Section 20AA of the Principal Act is amended:
(a) by omitting from paragraph (1)(a) "regulations" and substituting "Regulations";
(b) by inserting in paragraph (4)(a) "that covers the duration of the flight" after "Regulations".
"(3) This section does not apply to a direction of the Minister:
(a) requiring the Authority to perform a function mentioned in subsection 9AA(2); or
(b) made under section 47 or 56.".
Section 75 of the Principal Act is amended by inserting in subsection (1) ", and only if" after "If".
Part VI of the Principal Act is amended by adding at the end the following Division:
"
"83A. In this Division:
"83B. Income derived by the Authority in a year of income commencing before 1 July 1991 is exempt income for the purposes of the Assessment Act.
"83C.(1) For the purpose of ascertaining under Subdivision B of Division 2 of Part III of the Assessment Act the value to be taken into account at the beginning of the year of income commencing on 1 July 1991 in relation to the Authority's trading stock on hand at that time, the Authority may, in accordance with subsection (2), exercise any option, and give any notice, in relation to the value of its trading stock on hand at the end of the preceding year of income.
"(2) The option or notice is to be exercised or given in accordance with the requirements of Subdivision B of Division 2 of Part III of the Assessment Act on or before the day of lodgment of the Authority's return of income for the year of income commencing on 1 July 1991 or before such later day as the Commissioner of Taxation allows.
"(3) If the Authority does not exercise an option under subsection (1) in relation to particular trading stock, the value to be taken into account in accordance with that subsection in relation to that trading stock is to be the cost price.
"(4) If the Authority, under Subdivision B of Division 2 of Part III of the Assessment Act, adopts cost price as the basis of valuation in relation to any of its trading stock on hand at the end of the year of income commencing on 1 July 1991 that was on hand at the end of the preceding year of income, the cost price of that trading stock is to be taken to be equal to the value at which the trading stock was taken into account in accordance with subsection (1).
"83D. Section 57AL of the Assessment Act, as in force immediately after the commencement of section 38 of the
"83E.(1) If:
(a) the Authority owned an asset at the end of 30 June 1991 (
'the changeover time' ); and(b) the market value of the asset at the changeover time was greater than the amount that would have been the indexed cost base to the Authority in relation to the asset if the Authority had disposed of the asset at that time;
the following provisions have effect for the purpose of working out under Part IIIA of the Assessment Act whether a capital gain accrues in the event of a subsequent disposal of the asset by it:
(c) the Authority is taken to have disposed of the asset at the changeover time for a consideration equal to the amount of that indexed cost base;
(d) the Authority is taken to have immediately re-acquired the asset for a consideration equal to the market value of the asset at the changeover time;
(e) the reference in subsection 160Z(3) of the Assessment Act to the day on which the asset was acquired by the taxpayer is taken to be a reference to the day on which the asset was actually acquired by the Authority.
"(2) If the asset is disposed of within 12 months of its acquisition by the Authority, subsection (1) has effect as if the references in that subsection to the indexed cost base to the Authority in relation to the asset were references to the cost base to the Authority in relation to the asset.
"(3) If:
(a) the Authority owned an asset at the changeover time; and
(b) the market value of the asset at the changeover time was less than the amount that would have been the reduced cost base to the Authority in relation to the asset if the Authority had disposed of the asset at that time;
the following provisions have effect for the purpose of working out under Part IIIA of the Assessment Act whether the Authority incurred a capital loss in the event of a subsequent disposal of the asset by it:
(c) the Authority is taken to have disposed of the asset at the changeover time for a consideration equal to the amount of that reduced cost base;
(d) the Authority is taken to have immediately re-acquired the asset for a consideration equal to the market value of the asset at the changeover time.
"(4) For the purposes of this section, in the case of an asset that was acquired by the Commonwealth and transferred to the Authority for no consideration:
(a) the cost base to the Authority in relation to the asset; and
(b) the indexed cost base to the Authority in relation to the asset; and
(c) the reduced cost base to the Authority in relation to the asset; are to be worked out as if the asset had at all relevant times been an asset
"(5) An asset of the Authority that was acquired by the Commonwealth before 20 September 1985 and transferred to the Authority is taken, for the purposes of Part IIIA of the Assessment Act, to have been acquired by the Authority before that date.
"(6) Unless the contrary intention appears, expressions used in this section, and in Part IIIA of the Assessment Act, have the same respective meanings as in that Part.".
"
(a) a forward exchange rate contract; or
(b) a contract with respect to currency futures;
(a) a deferred delivery contract; or
(b) a contract with respect to financial futures; or
(c) a contract with respect to commodity futures;".
21. Section 42 of the Principal Act is amended:
(a) by omitting from subsection (1) "Where" and substituting "Subject to section (1A), if";
(b) by omitting from subsection (1) ", other than a direction the notice of which stated that the direction is in accordance with the general policy of the Commonwealth Government";
(c) by inserting after subsection (1) the following subsection:
"(1A) Subsection (1) does not apply to a direction given under subsection 41(2) if:
(a) the notice of that direction stated that the direction is in accordance with the general policy of the Commonwealth Government; or
(b) it is a direction requiring the Corporation:
(i) to carry out activities to protect the environment from the effects of, or the effects associated with, the operation and use of aircraft operating to or from Federal airports; or
(ii) to perform any of its functions in a manner referred to in paragraph 7(2)(ca).".
"54AB.(1) Subject to subsection (4), the Corporation may enter into and deal with contracts to which this section applies for hedging purposes in relation to:
(a) a borrowing, or a proposed borrowing, of money by the Corporation; or
(b) an investment of money by the Corporation; or
(c) commodity purchases by the Corporation.
Note: For 'contracts to which this section applies', see subsection (6).
"(2) The Minister may, by written determination, set guidelines for the exercise by the Corporation of its power under subsection (1) and must give the Corporation a copy of each determination made.
"(3) Without limiting subsection (2), the guidelines may provide that:
(a) the Corporation is not to enter into or deal with contracts of a particular kind; or
(b) the Corporation is to enter into or deal with contracts of a particular kind only if the contract relates to specified matters.
"(4) The Corporation must not enter into or deal with a contract to which this section applies contrary to any guidelines in force under subsection (2).
"(5) A contract is taken to be entered into or dealt with for hedging purposes only if the contract is entered into or dealt with for the purposes of:
(a) reducing the risk of adverse variations in:
(i) the costs of a borrowing, or a proposed borrowing, of money by the Corporation; or
(ii) the revenue obtainable by the Corporation from the investment of money of the Corporation; or
(iii) the cost of commodities purchased by the Corporation; or
(b) maintaining the value of:
(i) investments made by the Corporation; or
(ii) property used as security for a borrowing, or a proposed borrowing by the Corporation.
"(6) This section applies to contracts of the following kinds:
(a) currency contracts;
(b) interest rate contracts;
(c) futures contracts;
(d) contracts relating to:
(i) dealings known as currency swaps; or
(ii) dealings known as interest rate swaps; or
(iii) dealings known as commodity swaps;
(e) contracts relating to two or more of the dealings referred to in paragraph (d);
(f) options (including futures options);
(g) contracts of a kind approved in writing by the Minister.".
23. After Part VI of the Principal Act the following Part is inserted:
"
"57A. In this Part:
"57B. Income derived by the Corporation in a year of income commencing before 1 July 1991 is exempt income for the purposes of the Assessment Act.
"57C. Section 57AL of the Assessment Act, as in force immediately after the commencement of section 38 of the
"57D.(1) If:
(a) the Corporation owned an asset at the end of 30 June 1991 (
'the changeover time' ); and(b) the market value of the asset at the changeover time was greater than the amount that would have been the indexed cost base to the Corporation in relation to the asset if the Corporation had disposed of the asset at that time;
the following provisions have effect for the purpose of working out under Part IIIA of the Assessment Act whether a capital gain accrues in the event of a subsequent disposal of the asset by it:
(c) the Corporation is taken to have disposed of the asset at the changeover time for a consideration equal to the amount of that indexed cost base;
(d) the Corporation is taken to have immediately re-acquired the asset for a consideration equal to the market value of the asset at the changeover time;
(e) the reference in subsection 160Z(3) of the Assessment Act to the day on which the asset was acquired by the taxpayer is taken to be a reference to the day on which the asset was actually acquired by the Corporation.
"(2) If the asset is disposed of within 12 months of its actual acquisition by the Corporation, subsection (1) has effect as if the references in that subsection to the indexed cost base to the Corporation in relation to the asset were references to the cost base to the Corporation in relation to the asset.
"(3) If:
(a) the Corporation owned an asset at the changeover time; and
(b) the market value of the asset at the changeover time was less than the amount that would have been the reduced cost base to the Corporation in relation to the asset if the Corporation had disposed of the asset at that time;
the following provisions have effect for the purpose of working out under Part IIIA of the Assessment Act whether the Corporation incurred a capital loss in the event of a subsequent disposal of the asset by it:
(c) the Corporation is taken to have disposed of the asset at the changeover time for a consideration equal to the amount of that reduced cost base;
(d) the Corporation is taken to have immediately re-acquired the asset for a consideration equal to the market value of the asset at the changeover time.
"(4) Part IIIA of the Assessment Act does not apply in relation to: (a) the disposal of an asset of the Corporation that was acquired
by the Commonwealth before 20 September 1985 and transferred to, or vested in, the Corporation; or
(b) the disposal of an asset of the Corporation if the Commonwealth and not the Corporation is entitled to the consideration in respect of the disposal.
"(5) Unless the contrary intention appears, expressions used in this section, and in Part IIIA of the Assessment Act, have the same respective meanings as in that Part.
"57E.(1) For the avoidance of doubt, land that under section 28 is vested in the Corporation is taken, for the purposes of the Assessment Act, to be owned by the Corporation.
"(2) If:
(a) a Federal airport development site consists of or includes land that is owned by the Commonwealth; and
(b) any of that land is leased by the Commonwealth to the Corporation;
buildings and any other fixtures on the land so leased are taken, for the purposes of the Assessment Act, to be owned by the Corporation.
"57F. For the purposes of section 82AAC of the Assessment Act, a payment made by the Corporation to the Commonwealth under arrangements made for the purposes of paragraph 87J(8)(b) of the
24. In this Part,"Principal Act" means theNavigation Act 1912 6 .
"(ae) the amendments to the annex of the Protocol adopted on 16 November 1990 (a copy of the English text of which is set out in Schedule 9); and".
"(af) the amendments to the annex of the Protocol adopted on 4 July 1991 (a copy of the English text of which is set out in Schedule 10); and
(ag) the amendments to the annex of the Protocol adopted on 4 July 1991 (a copy of the English text of which is set out in Schedule 11); and"
"
Note: For a copy of the English text of the Antarctic Treaty, see the Schedule to the
Antarctic Treaty Act 1960 .".
Section 9 of the Principal Act is amended by inserting in paragraph (4)(h) "(other than the Antarctic Area)" after "special area".
After section 11 of the Principal Act the following section is inserted:
"11A.(1) This section applies to:
(a) an Australian ship (whether an oil tanker or not) that has a gross tonnage of 400 or more; and
(b) an Australian ship that is an oil tanker with a gross tonnage of less than 400 but not less than 150.
"(2) In this section:
"(3) There must be kept on board a ship to which this section applies a shipboard oil pollution emergency plan written in the working language of the master of, and the officers on board, the ship.
"(4) A shipboard oil pollution emergency plan must be in accordance with the prescribed form and set out the following particulars:
(a) the procedure to be followed by the master, or any other person having charge, of the ship in notifying a prescribed incident in relation to the ship;
(b) a list of the authorities or persons that are to be notified by persons on the ship if a prescribed incident occurs in relation to the ship;
(c) a detailed description of the action to be taken, immediately after a prescribed incident, by persons on board the ship to reduce or control any discharge from the ship resulting from the incident;
(d) the procedures to be followed for co-ordinating with the authorities or persons that have been contacted (whether in Australia or in a country near to the place where the incident occurred) any action taken in combating the pollution caused by the incident and, in particular, the person on board the ship through whom all communications are to be made.
"(5) The procedure referred to in paragraph (4)(a) must be in accordance with the regulations prescribing, for the purposes of subsection 11(1), the manner in which a prescribed incident is to be notified.
"(6) Subsection (4) does not prevent other relevant particulars from being included in the shipboard oil pollution emergency plan.
"(7) If a ship to which this section applies does not have on board a shipboard oil pollution emergency plan, the master of the ship and the owner of the ship are each guilty of an offence punishable on conviction by a fine not exceeding $50,000.".
"(1) In this Part:
34. Section 26AA of the Principal Act is repealed.
Section 26AB of the Principal Act is amended by omitting from subsection (1) "or in a freight container, portable tank or road and rail tank wagon".
After section 26B of the Principal Act the following Division and heading are inserted in Part IIIB:
"
"26BA. Unless the contrary intention appears, an expression that is used in this Division and in Annex IV of the Antarctic Protocol (whether or not a particular meaning is given to it by that Annex) has, in this Division, the same meaning as in that Annex.
"26BB. The object of this Division is to give effect to Australia's obligations regarding the discharge of sewage in the Antarctic Area under Annex IV of the Antarctic Protocol.
"26BC.(1) Subject to subsections (2) to (4) (inclusive), if any discharge of untreated sewage occurs from a ship (other than a ship certified to carry not more than 10 persons) into the sea in the Antarctic Area, the master of the ship and the owner of the ship are each guilty
of an offence punishable, upon conviction, by a fine not exceeding $200,000.
"(2) Subsection (1) does not apply to the discharge of sewage from a foreign ship unless the discharge occurs in the sea near the Australian Antarctic Territory.
"(3) Subsection (1) does not apply if the sewage was discharged for the purpose of:
(a) securing the safety of the ship and persons on board the ship; or
(b) saving life at sea.
"(4) Without limiting the generality of subsection (3), subsection (1) does not apply to the discharge of sewage from a ship if:
(a) the sewage was stored in a holding tank; and
(b) the sewage is not discharged instantaneously but is discharged from the holding tank at a prescribed rate when the ship is proceeding
en route at a speed of not less than 4 knots; and(c) the discharge is made when the ship is at a distance of not less than 12 nautical miles from the nearest land or ice shelf.
"(5) In proceedings for an offence against subsection (1) in relation to a ship, it is sufficient for the prosecution to allege and prove that a discharge of sewage occurred from the ship into the sea in the Antarctic Area, but it is a defence if it is proved that, because of subsection (2), (3) or (4), subsection (1) does not apply in relation to the discharge.
"
37. Section 26C of the Principal Act is amended:
(a) by omitting "Part" (wherever occurring) and substituting "Division";
(b) by adding at the end the following subsection:
"(2) In this Division:
'sea' does not include the sea in the Antarctic Area.".
"26CA. The object of this Division is to give effect to Australia's obligations regarding the discharge of sewage into the sea under Annex IV of the Convention.".
"(2) Unless the contrary intention appears, an expression that is used in subsection 26F(8A) and in Annex IV to the Antarctic Protocol (whether or not a particular meaning is given by that Protocol) has, in that subsection, the same meaning as in that Annex.".
"26EA. The object of this Part is to give effect to Australia's obligations:
(a) regarding the prevention of pollution by garbage from ships under Annex V to the Convention; and
(b) regarding the disposal of garbage from ships under Annex IV to the Antarctic Protocol.".
42. Section 26F of the Principal Act is amended:
(a) by inserting in subsection (8) "outside the Antarctic Area" after "sea";
(b) by inserting after subsection (8) the following subsection:
"(8A) Without limiting the generality of subsection (5), subsection (1) does not apply to the disposal of garbage, being food wastes, from a ship into the sea in the Antarctic Area if:
(a) the garbage has been passed through a comminuter or grinder so that it is capable of passing through a screen with no opening wider than 25 millimetres; and
(b) the disposal occurs when the ship is as far as practicable from, and is at a distance of not less than 12 nautical miles from, the nearest land or ice shelf.";
(c) by inserting in subsection (12) ", (8A)" after "(8)".
43. Section 32 of the Principal Act is amended:
(a) by inserting after subsection (1) the following subsection:"(1A) Subject to subsection (2), the regulations may provide that any of the provisions of this Act relating to the keeping of
a shipboard oil pollution emergency plan on board of Australian ships apply, with any modifications or exceptions that are prescribed, to foreign ships:
(a) in a port in Australia; or
(b) in the territorial sea of Australia; or
(c) in the sea on the landward side of the territorial sea of Australia.";
(b) by omitting from subsection (2) "made under subsection (1) shall" and substituting "under this section does".
The Principal Act is amended by adding at the end the Schedule set out in Schedule 4 to this Act.
The Principal Act is amended by inserting after Schedule 9 the Schedules set out in Schedule 5 to this Act.
The Principal Act is amended by adding at the end the Schedule set out in Schedule 6 to this Act.
"(1) An eligible corporation may apply to the Minister, in a manner and form approved by the Minister, for a general telecommunications licence.
"(1A) An eligible corporation:
(a) that is the holder of a public mobile licence that the corporation proposes to replace when the licence ceases to have effect; or
(b) to whom it is sought to transfer such a licence under section 59;
may apply to the Minister, in a manner and form approved by the Minister, for a public mobile licence.".
"57A.(1) The Minister is to determine, in writing, an allocation system for the purpose of granting public mobile licences to eligible corporations, other than eligible corporations to which subsection 56(1A) applies.
"(2) Without limiting the operation of subsection (1), an allocation system may:
(a) provide, whether by means of a tendering process or otherwise, for the grantee of a licence under the allocation system to pay for the grant of the licence; and
(b) specify criteria to which the Minister is to have regard in considering whether or not to grant a licence under the allocation system.
"(3) The Minister may vary or revoke a determination made under subsection (1).
"(4) The Minister may grant, or refuse to grant, a public mobile licence to an eligible corporation, other than an eligible corporation to which subsection 56(1A) applies, in accordance with a system determined under subsection (1).
"(5) The Minister must cause a copy of each licence to be laid before each House of the Parliament within 15 sitting days of that House after the licence is granted, but failure to do so does not affect the validity of a licence.".
Section 70 of the Principal Act is amended by inserting in paragraph (1)(a) "or 57A" after "57".
After Division 5 of Part 5 of the Principal Act, the following Division is inserted:
"
"87A. In this Division:
"87B.(1) Subject to subsection (2), charge is to be paid at the time a public mobile licence is granted under section 57A.
"(2) The Minister may determine, in writing, that charge is to be paid:
(a) on a day determined by the Minister; or
(b) in instalments of such amounts, payable at such times, as the Minister determines.
"(3) The Minister may vary a determination made under subsection (2).
"87C. An amount of charge that is payable but has not been paid may be recovered in a court of competent jurisdiction as a debt due to the Commonwealth.".
"(3) Subsection (1) does not apply in relation to discrimination by a carrier in favour of:
(a) a person who is a concessional beneficiary within the meaning of Part VII of the
National Health Act 1953 ; or(b) a person to whom, or in respect of whom, a pension or allowance is being paid under the
Veterans' Entitlements Act 1986 or theSeamen's War Pensions and Allowances Act 1940 ; or(c) any other person that the carrier reasonably believes is disadvantaged on financial or health grounds.".
"(3) Subsection (1) does not apply in relation to such basic carriage services, or in such circumstances, (if any) as are prescribed.".
"402A.(1) A person must not, unless AUSTEL consents in writing:
(a) use in relation to a business, trade, profession or occupation; or
(b) use as the name, or as part of the name, of any firm, body corporate, institution, premises, vehicle, ship or craft (including aircraft); or
(c) apply, as a trade mark or otherwise, to goods imported, manufactured, produced, sold, offered for sale or let or hire; or
(d) use in relation to:
(i) goods or services; or
(ii) the promotion, by any means, of supply or use of goods or services;
either:
(e) a protected name, or a name so closely resembling a protected name as to be likely to be mistaken for it; or
(f) the protected symbol, or a symbol so closely resembling the protected symbol as to be likely to be mistaken for it.
Penalty: $3,000.
"(2) Nothing in subsection (1) limits anything else in that subsection.
"(3) Nothing in subsection (1), so far as it applies in relation to a protected name or in relation to the protected symbol, affects rights conferred by law on a person in relation to:
(a) a trade mark that is registered under the
Trade Marks Act 1955 ; or
(b) a design that is registered under the
Designs Act 1906 ;
and was so registered immediately before the commencement of Part 10 of the
"(4) Nothing in this section, so far as it applies to a protected name or in relation to the protected symbol, affects the use, or rights conferred by law relating to the use, of the name or symbol by a person in a particular manner if, immediately before the commencement of Part 10 of the
(a) was using the name or the symbol in good faith in that manner; or
(b) would have been entitled to prevent another person from passing off, by means of the use of the name or the symbol or a similar name or symbol, goods or services as the goods or services of the first-mentioned person.
"(5) This section does not apply to a person who uses or applies a protected name or the protected symbol for the purpose of labelling customer equipment in accordance with a permit in force under subsection 258(1).
"(6) In this section:
(a) 'AUSTEL'; or
(b) 'Australian Telecommunications Authority';
SCHEDULE 1 Section 6
ADDITIONAL SCHEDULES TO THE AIR NAVIGATION ACT 1920
SCHEDULE 11 Section 4
relating to an amendment to Article 56 of the Convention on International Civil Aviation
THE ASSEMBLY OF THE INTERNATIONAL CIVIL AVIATION ORGANIZATION
HAVING MET in its Twenty-seventh Session at Montreal on 6 October 1989,
HAVING NOTED that it is the general desire of Contracting States to enlarge the membership of the Air Navigation Commission,
HAVING CONSIDERED it proper to increase the membership of that body from fifteen to nineteen, and
HAVING CONSIDERED it necessary to amend, for the purpose aforesaid, the Convention on International Civil Aviation done at Chicago on the seventh day of December 1944,
1. APPROVES, in accordance with the provisions of Article 94(
a ) of the Convention aforesaid, the following proposed amendment to the said Convention:"In Article 56 of the Convention the expression 'fifteen members' shall be replaced by 'nineteen members'."
2. SPECIFIES, pursuant to the provisions of the said Article 94(
a ) of the said Convention, one hundred and eight as the number of Contracting States upon whose ratification the aforesaid amendment shall come into force; and3. RESOLVES that the Secretary General of the International Civil Aviation Organization shall draw up a Protocol, in the English, French, Russian and Spanish languages, each of which shall be of equal authenticity, embodying the amendment above-mentioned and the matters hereinafter appearing:
a) The Protocol shall be signed by the President of the Assembly and its Secretary General.
b) The Protocol shall be open to ratification by any State which has ratified or adhered to the said Convention on International Civil Aviation.
c) The instruments of ratification shall be deposited with the International Civil Aviation Organization.
d) The Protocol shall come into force in respect of the States that have ratified it on the date on which the one hundred and eighth instrument of ratification is so deposited.
e) The Secretary General shall immediately notify all Contracting States of the date of deposit of each ratification of the Protocol.
f) The Secretary General shall immediately notify all States parties to the said Convention of the date on which the Protocol comes into force.
g) With respect to any Contracting State ratifying the Protocol after the date aforesaid, the Protocol shall come into force upon deposit of its instrument of ratification with the International Civil Aviation Organization.
CONSEQUENTLY, pursuant to the aforesaid action of the Assembly,
This Protocol has been drawn up by the Secretary General of the Organization.
IN WITNESS WHEREOF, the President and the Secretary General of the aforesaid Twenty-seventh Session of the Assembly of the International Civil Aviation Organization, being authorized thereto by the Assembly, sign this Protocol.
DONE at Montreal on the sixth day of October of the year one thousand nine hundred and eighty-nine, in a single document in the English, French, Russian and Spanish languages, each text being equally authentic. This Protocol shall remain deposited in the archives of the International Civil Aviation Organization, and certified copies thereof shall be transmitted by the Secretary General of the Organization to all States parties to the Convention on International Civil Aviation done at Chicago on the seventh day of December 1944.
SCHEDULE 12 Section 4
relating to an amendment to Article 50( a ) of the Convention on International Civil Aviation
THE ASSEMBLY OF THE INTERNATIONAL CIVIL AVIATION ORGANIZATION
HAVING MET in its Twenty-eighth Session (Extraordinary) at Montreal on 25 October 1990;
HAVING NOTED that it is the desire of a large number of Contracting States to enlarge the membership of the Council in order to ensure better balance by means of an increased representation of Contracting States;
HAVING CONSIDERED it appropriate to increase the membership of that body from thirty-three to thirty-six;
HAVING CONSIDERED it necessary to amend, for the purpose aforesaid, the Convention on International Civil Aviation done at Chicago on the seventh day of December 1944;
1. APPROVES, in accordance with the provisions of Article 94(a) of the Convention aforesaid, the following proposed amendment to the said Convention:
"In Article 50(
a ) of the Convention the second sentence shall be amended by replacing 'thirty-three' by 'thirty-six'.";
2. SPECIFIES, pursuant to the provisions of the said Article 94(
a ) of the said Convention, one hundred and eight as the number of Contracting States upon whose ratification the proposed amendment aforesaid shall come into force;3. RESOLVES that the Secretary General of the International Civil Aviation Organization draw up a Protocol, in the English, French, Russian and Spanish languages, each of which shall be of equal authenticity, embodying the amendment above-mentioned and the matter hereinafter appearing:
a) The Protocol shall be signed by the President of the Assembly and its Secretary General.
b) The Protocol shall be open to ratification by any State which
has ratified or adhered to the said Convention on International Civil Aviation.
c) The instruments of ratification shall be deposited with the International Civil Aviation Organization.
d) The Protocol shall come into force in respect of the States which have ratified it on the date on which the one hundred and eighth instrument of ratification is so deposited.
e) The Secretary General shall immediately notify all Contracting States of the date of deposit of each ratification of the Protocol.
f) The Secretary General shall immediately notify all States parties to the said Convention of the date on which the Protocol comes into force.
g) With respect to any Contracting State ratifying the Protocol after the date aforesaid, the Protocol shall come into force upon deposit of its instrument of ratification with the International Civil Aviation Organization.
CONSEQUENTLY, pursuant to the aforesaid action of the Assembly,
This Protocol has been drawn up by the Secretary General of the Organization.
IN WITNESS WHEREOF, the President and the Secretary General of the aforesaid Twenty-eighth Session (Extraordinary) of the Assembly of the International Civil Aviation Organization, being authorized thereto by the Assembly, sign this Protocol.
DONE at Montreal on the twenty-sixth day of October of the year one thousand nine hundred and ninety, in a single document in the English, French, Russian and Spanish languages, each text being equally authentic. This Protocol shall remain deposited in the archives of the International Civil Aviation Organization, and certified copies thereof shall be transmitted by the Secretary General of the Organization to all States parties to the Convention on International Civil Aviation done at Chicago on the seventh day of December 1944.
SCHEDULE 2 Section 28
SCHEDULE TO BE ADDED AT THE END OF THE PROTECTION OF THE SEA (POWERS OF INTERVENTION) ACT 1981
SCHEDULE 3 Subsection 3(1)
RESOLUTION MEPC.49(31)
adopted on 4 July 1991
REVISION OF THE LIST OF SUBSTANCES TO BE ANNEXED TO THE PROTOCOL RELATING TO INTERVENTION ON THE HIGH SEAS IN CASES OF MARINE POLLUTION BY SUBSTANCES OTHER THAN OIL
THE MARINE ENVIRONMENT PROTECTION COMMITTEE,
NOTING Resolution 26 of the International Conference on Marine Pollution, 1973 which requested the appropriate body designated by the Organization to establish, not later than 30 November 1974, the list of substances to be annexed to the Protocol relating to Intervention on the High Seas in Cases of Marine Pollution by Substances Other than Oil, 1973, (the 1973 Protocol),
NOTING FURTHER Resolution A.296(VIII) by which the Assembly designated the Committee as the appropriate body referred to in articles I and III of the above-mentioned Protocol,
RECALLING Resolution MEPC.1(II) by which the Committee established on 21 November 1974 a list of substances to be annexed to the Protocol relating to Intervention on the High Seas in Cases of Marine Pollution by Substances Other than Oil, in accordance with Resolution 26 of the International Conference on Marine Pollution, 1973, and Resolution A.296(VIII),
HAVING CONSIDERED proposals by governments for revising the list,
HAVING taken account of scientific advice provided by the Joint Group of Experts on the Scientific Aspects of Marine Pollution (GESAMP) with regard to evaluation of the hazards of harmful substances in the marine environment and by the International Atomic Energy Agency in respect of radioactive materials,
HAVING taken account of technical advice provided by the Sub-Committee on Bulk Chemicals and by the Sub-Committee on the Carriage of Dangerous Goods,
ADOPTS by the required two-thirds majority of the Parties to the 1973 Protocol present and voting in the Committee the amended list which appears in the Annex to this Resolution;
REQUESTS the Secretary-General to communicate the amended list to all Parties to the 1973 Protocol in accordance with article III, paragraph 5, for acceptance, and to inform them that the amended list shall be deemed to have been accepted at the end of the period of six months after it has been communicated, unless within that period an objection to these amendments has been communicated to the Organization by not less than one third of the Parties, and that the amended list shall enter into force three months after it has been deemed to have been accepted;
REQUESTS FURTHER the Secretary-General to annex copies thereof to the authentic text of the Protocol in accordance with article I, paragraph 2(a), once the amended list has been accepted in accordance with article III, paragraph 6, to replace the existing list;
DECIDES that the list should be kept under review, in consultation and co-operation with competent international organizations, in particular the International Atomic Energy Agency in respect of radioactive materials.
ANNEX
LIST OF SUBSTANCES
Appendix 1
| |
Blending stocks |
|
Roofers flux |
|
Straight run residue |
|
| |
Clarified |
|
Road oil |
|
Transformer oil |
|
Aromatic oil (excluding |
|
vegetable oil) |
|
Mineral oil |
|
Motor oil |
|
Penetrating oil |
|
Spindle oil |
|
Turbine oil |
|
| |
Straight run |
|
Flashed feed stocks |
|
| |
Cracked |
|
Solvent | |
Petroleum | |
Heartcut distillate oil |
Appendix 2
Acetone cyanohydrin
Acetic anhydride
Acrylonitrile
Alcohol (C12-C15) poly(l-3) ethoxylates
Alcohol (C12-C15) poly(3-11) ethoxylates
Alcohol (C6-C17) (secondary) poly(3-6) ethoxylates
Alcohol (C6-C17) (secondary) poly(7-12) ethoxylates
Allyl alcohol
Allyl chloride
Ammonium sulphide solution (45% or less)
Aniline
Benzene and mixtures having 10% benzene or more
Benzyl chloride
Butene oligomer
n-Butyl acrylate
Butylbenzenes (all isomers)
Butyl benzyl phthalate
n-Butyraldehyde
Calcium hypochlorite solution (more than 15%)
Calcium naphthenate in mineral oil
Camphor oil
Carbolic oil
Carbon disulphide
Carbon tetrachloride
Chlorinated paraffins (C10-C13)
Chlorobenzene
Chloroform
o-Chloronitrobenzene
m-Chlorotoluene
o-Chlorotoluene
p-Chlorotoluene
Chlorotoluenes (mixed isomers)
Coal tar
Coal tar naphtha solvent
Cobalt naphthenate in solvent naphtha
Creosote (coal tar)
Creosote (wood)
Cresols (all isomers)
Cresylic acid, sodium salt solution
Crotonaldehyde
Cyclohexyl acetate
1,3-Cyclopentadiene dimer (molten)
Cyclopentene
Decene
Decyl acrylate
Decyl alcohol (all isomers)
Dibutyl phthalate
Dichlorobenzenes (all isomers)
1,1-Dichloroethane
Dichloroethyl ether
1,6-Dichlorohexene
2,4-Dichlorophenol
2,4-Dichlorophenoxyacetic acid, diethanolamine salt solution
2,4-Dichlorophenoxyacetic acid, dimethylamine salt solution (70% or less)
2,4-Dichlorophenoxyacetic acid, triisopropanolamine salt solution
1,1-Dichloropropane
1,2-Dichloropropane
1,3-Dichloropropane
1,3-Dichloropropene
Dichloropropene/Dichloropropane mixtures
Diethyl sulphate
Diglycidyl ether of bisphenol A
Diglycidyl ether of bisphenol F
Di-n-hexyl adipate
Diisobutylene
Diisobutyl phthalate
Diisopropylbenzene (all isomers)
Dimethyl adipate
Dimethylamine solution (45% or less)
Dimethylamine solution (greater than 45% but not greater than 55%)
Dimethylamine solution (greater than 55% but not greater than 65%)
Dinitrotoluene (molten)
Diphenyl
Diphenyl/Diphenyl ether mixtures
Diphenyl ether
Diphenyl ether/Diphenyl phenyl ether mixture
Diphenylmethane diisocyanate
Diphenylol propane-epichlorohydrin resins
Dodecene (all isomers)
Dodecyl alcohol
Dodecyl diphenyl ether disulphonate solution
Dodecyl phenol
Drilling brines, containing Zinc salts
Epichlorohydrin
Ethyl acrylate
Ethylene chlorohydrin
Ethylene dibromide
Ethylene dichloride
2-Ethylhexyl acrylate
2-Ethylhexylamine
Ethylidene norbornene
o-Ethylphenol
2-Ethyl-3-propylacrolein
Ethyltoluene
Fluorosilicic acid
Fumaric adduct of rosin, water dispersion
Glycidyl ester of C10 trialkylacetic acid
Heptyl acetate
Hexyl acetate
2-Hydroxyethyl acrylate
Isobutyl acrylate
Isophorone diisocyanate
Isopropylbenzene
Lactonitrile solution (80% or less)
Lauric acid
Mercaptobenzothiazol, sodium salt solution
Metam sodium solution
Methacrylic resin in 1,2-Dichloroethane solution
Methacrylonitrile
Methyl acrylate
Methylcyclopentadiene dimer
2-Methyl-5-ethyl pyridine
Methyl heptyl ketone
Methylnaphthalene
2-Methylpyridine
4-Methylpyridine
N-Methyl-2-pyrrolidone
Methyl salicylate
alpha-Methylstyrene
Motor fuel anti-knock compounds
Naphthalene (molten)
Naphthenic acids
Nitrobenzene
o-Nitrophenol (molten)
Nonene
Nonylphenol
Nonylphenol poly (4-12) ethoxylates
Octane (all isomers)
Octene (all isomers)
Octyl aldehydes
Octyl nitrates (all isomers)
Olefin mixtures (C5-C15)
Oleum
alpha-Olefins (C6-C18) mixtures
Pentachloroethane
Perchloroethylene
Phenol
Phosphorus, yellow or white
Pinene
n-Propyl chloride
Propylene tetramer
Propylene trimer
Rosin
Rosin soap (disproportionated) solution
Sodium hydrosulphide/Ammonium sulphide solution
Sodium hydrosulphide solution (45% or less)
Sodium sulphide solution
Sodium nitrite solution
Sodium thiocyanate solution (56% or less)
Styrene monomer
Tall oil (crude and distilled)
Tall oil soap (disproportionated) solution
Tetrachloroethane
Toluene
Toluene diisocyanate
Tributyl phosphate
1,2,4-Trichlorobenzene
1,1,1-Trichloroethane
1,1,2-Trichloroethane
Trichloroethylene
1,2,3-Trichloropropane
Tricresyl phosphate (containing less than 1% ortho-isomer)
Tricresyl phosphate (containing 1% or more ortho-isomer)
Triethylbenzene
Trimethyl benzenes (all isomers)
Trimethylhexamethylene diisocyanate (2,2,4- and 2,4,4-isomers)
Trixylyl phosphate
Turpentine
1-Undecene
Undecyl alcohol
Vinylidene chloride
Vinyl neodecanoate
Vinyltoluene
White spirit, low (15-20%) aromatic
Xylenol
Appendix 3
Binapacryl
Cadmium compounds, except Cadmium selenide and Cadmium sulphide
Chlorined paraffins (C10-C13)
Chlorophenates
Copper cyanide
Coumarin derivative pesticides as follows:
Brodifacoum
Coumaphos
Cresyl diphenyl phosphate
Cypermethrin
Diphenylamine chloroarsine
Diphenylchloroarsine
Dodecylphenol
Ethyldichloroarsine
Fenpropathrin
Hexachlorobutadienc
Mercuric arsenate
Mercuric chloride
Mercuric nitrate
Mercuric potassium cyanide
Mercurous nitrate
Mercury acetates
Mercury ammonium chloride
Mercury based pesticides
Mercury benzoate
Mercury bromides
Mercury compounds except Mercuric sulphide and Mercury iodide
Mercury cyanide
Mercury gluconate
Mercury nucleate
Mercury oleate
Mercury oxide
Mercury oxycyanide desensitized
Mercury potassium iodide
Mercury salicylate
Mercury sulphates
Mercury thiocyanate
Nickel cyanide
Nickel carbonyl
Organochlorine pesticides as follows:
Aldrin
Camphechlor
Chlordane
DDT
Dieldrin
Endosulfan
Endrin
Heptachlor
Lindane (gamma-BCH)
Organophosphorus pesticides as follows:
Azinphos-methyl
Azinphos-ethyl
Bromophos-ethyl
Carbophenothion
Chlorpyriphos
Chlorthiophos
Dialifos
Diazinon
Dichlofenthion
Dichlorvos
Dimethoate
EPN Ethion
Fenitrothion
Fenthion
Fonofos
Isoxathion
Mevinphos
Parathion
Parathion-methyl
Pirimiphos ethyl
Phenthoate
Phorate
Phosalone
Phosphamidon
Pyrazophos
Sulprophos
Terbufos
Organotin compounds
Organotin pesticides
Osmium tetroxide
Pentachlorophenol
Phenylmercuric acetate
Phenylmercuric compounds
Phenylmercuric nitrate
Phosphorus, white or yellow
Polychlorinated biphenyls or terphenyls
Polyhalogenated biphenyls or terphenyls
Potassium cuprocyanide
Silver arsenite
Sodium cuprocyanide
Sodium pentachlorophenate
Triaryl phosphates
Tricresyl phosphates, more than 1% ortho-isomer
Zinc cyanide
Appendix 4
Radioactive materials which are transported in type B packages, or as fissile materials, or under special arrangement, as covered by the provisions of schedules 10 to 13 of class 7 of the International Maritime Dangerous Goods Code.
Appendix 5
Acetaldehyde
Anhydrous Ammonia
Chlorine
Dimethylamine
Ethyl chloride
Ethylene oxide
Hydrogen chloride, anhydrous
Hydrogen fluoride, anhydrous
Methyl bromide
Methyl chloride
Sulphur dioxide
Vinyl chloride monomer
SCHEDULE 3 Subsection 44(1)
ANNEX TO BE SUBSTITUTED FOR ANNEX III TO THE CONVENTION SET OUT IN SCHEDULE 1 TO THE PROTECTION OF THE SEA (PREVENTION OF POLLUTION FROM SHIPS) ACT 1983
1 Unless expressly provided otherwise, the regulations of this Annex apply to all ships carrying harmful substances in packaged form.
For the purposes of this Annex,
Guidelines for the identification of harmful substances in packaged form are given in the appendix to this Annex.
For the purposes of this Annex,
Such carriage of harmful substances is prohibited except in accordance with the provisions of this Annex.
To supplement the provisions of this Annex, the Government of each Party to the Convention shall issue, or cause to be issued detailed requirements on packing, marking, labelling, documentation stowage, quantity limitations and exceptions for preventing or minimizing pollution of the marine environment by harmful substances.
For the purposes of this Annex, empty packagings which have been used previously for the carriage of harmful substances shall themselves be treated as harmful substances unless adequate precautions have been taken to ensure that they contain no residue that is harmful to the marine environment.
The requirements of this Annex do not apply to ships stores and equipment.
Packages shall be adequate to minimize the hazard to the marine environment having regard to their specific contents.
Packages containing a harmful substance shall be durably marked with the correct technical name (trade names alone shall not be used) and, further, shall be durably marked or labelled to indicate that the substance is a marine pollutant. Such identification shall be supplemented where possible by any other means, for example by the use of the relevant United Nations number.
The method of marking the correct technical name and of affixing labels on packages containing a harmful substance shall be such that this information will still be identifiable on packages surviving at least three months' immersion in the sea. In considering suitable marking and labelling, account shall be taken of the durability of the materials used and of the surface of the package.
Packages containing small quantities of harmful substances may be exempted from the marking requirements.*
In all documents relating to the carriage of harmful substances by sea where such substances are named, the correct technical name of each such substance shall be used (trade names alone shall not be used) and the substance further identified by the addition of the words "
The shipping documents supplied by the shipper shall include, or be accompanied by, a signed certificate or declaration that the shipment offered for carriage is properly packaged and marked or labelled and in proper condition for carriage to minimise the hazard to the marine environment.
Each ship carrying harmful substances shall have a special list or manifest setting forth the harmful substances on board and the location thereof. A detailed stowage plan which sets out the location of the harmful substances on board may be used in place of such a special list or manifest. Copies of such documents shall also be retained on shore by the owner of the ship or his representative until the harmful substances are unloaded. A copy of one of these documents shall be presented before departure to the person or organization designated by the port State authority.
When the ship carries a special list or manifest or a detailed stowage plan, required for the carriage of dangerous goods by the International Convention for the Safety of Life at Sea, 1974, as amended, the documents required by this regulation may be combined with those for dangerous goods. Where documents are combined, a clear distinction shall be made between dangerous goods and harmful substances covered by this Annex.
Harmful substances shall be properly stowed and secured so as to minimise the hazards to the marine environment without impairing the safety of the ship and persons on board.
Certain harmful substances may, for sound scientific and technical reasons, need to be prohibited for carriage or be limited as to the quantity which may be carried aboard any one ship. In limiting the quantity, due consideration shall be given to size, construction and equipment of the ship as well as packaging and the inherent nature of the substances.
Jettisoning of harmful substances carried in packaged form shall be prohibited except where necessary for the purpose of securing the safety of the ship or saving life at sea.
Subject to the provisions of the present Convention, appropriate measures based on the physical, chemical and biological properties of harmful substances shall be taken to regulate the washing of leakages overboard provided that compliance with such measures would not impair the safety of the ship and persons on board.
GUIDELINES FOR THE IDENTIFICATION OF HARMFUL SUBSTANCES IN PACKAGED FORM
For the purposes of this Annex, substances identified by any one of the following criteria are harmful substances
- bioaccumulated to a significant extent and known to produce a hazard to aquatic life or to human health (Hazard Rating " + " in column A
* ); or- bioaccumulated with attendant risk to aquatic organisms or to human health with a short retention of the order of one week or less (Hazard Rating "Z" in column A
* ); or- liable to produce tainting of seafood (Hazard Rating "T" in column A
* ); or- highly toxic to aquatic life, defined by an LC
50 /96** hour less than 1 ppm (Hazard rating "4" in column B* ).
GESAMP Hazard Profiles | ||||
A | B | C | D | E |
Z | ||||
T | 4 | |||
SCHEDULE 4 Subsection 44(2)
SCHEDULE TO BE ADDED AT THE END OF THE PROTECTION OF THE SEA (PREVENTION OF POLLUTION FROM SHIPS) ACT 1983
SCHEDULE 9 Section 3
RESOLUTION MEPC.42(30)
adopted by the Marine Environment Protection Committee on 16 November 1990
ADOPTION OF AMENDMENTS TO THE ANNEX OF THE PROTOCOL OF 1978 RELATING TO THE INTERNATIONAL CONVENTION FOR THE PREVENTION OF POLLUTION FROM SHIPS, 1973
(Designation of Antarctic area as a special area under Annexes I and V of MARPOL 73/78)
THE MARINE ENVIRONMENT PROTECTION COMMITTEE,
RECALLING Article 38(a) of the Convention on the International Maritime Organization concerning the functions of the Committee,
NOTING article 16 of the International Convention for the Prevention of Pollution from Ships, 1973 (hereinafter referred to as the "1973 Convention") and article VI of the Protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships, 1973 (hereinafter referred to as the "1978 Protocol") which confer upon the appropriate body of the Organization the function of considering and adopting amendments to the 1973 Convention, as modified by the 1978 Protocol (MARPOL 73/78),
HAVING CONSIDERED, at its thirtieth session, amendments to the 1978 Protocol proposed and circulated in accordance with article 16(2)(a) of the 1973 Convention,
HAVING CONSIDERED ALSO the objective that all wastes are to be removed from the Antarctic area due to the ecological importance of the fragile ecosystems of the area,
ADOPTS, in accordance with article 16(2)(d) of the 1973 Convention, amendments to the Annex of the 1978 Protocol, the text of which is set out in the Annex to the present resolution;
DETERMINES, in accordance with article 16(2)(f)(iii) of the 1973 Convention, that the amendments shall be deemed to have been accepted on 16 September 1991 unless, prior to this date, one third or
more of the Parties, or the Parties the combined merchant fleets of which constitute fifty per cent or more of the gross tonnage of the world's merchant fleet, have communicated to the Organization their objections to the amendments;
INVITES the Parties to note that, in accordance with article 16(2)(g)(ii) of 1973 Convention, the amendments shall enter into force on 17 March 1992 upon their acceptance in accordance with paragraph 2 above;
DECIDES that the requirements of regulation 10 of Annex I and regulation 5 of Annex V of MARPOL 73/78 in respect of the Antarctic area shall take effect on the day the amendments thereto adopted under this resolution enter into force, which is expected to be 17 March 1992;
REQUESTS the Secretary-General, in conformity with article 16(2)(e) of the 1973 Convention, to transmit to all Parties to Annexes I and V of MARPOL 73/78 certified copies of the present resolution and the text of the amendments contained in Annexes 1 and 2 respectively;
FURTHER REQUESTS the Secretary-General to transmit to the Members of the Organization which are not Parties to Annexes I or V of MARPOL 73/78 copies of the resolution and its Annexes.
ANNEX 1
ADOPTION OF AMENDMENTS TO THE ANNEX OF THE PROTOCOL OF 1978 RELATING TO THE INTERNATIONAL CONVENTION FOR THE PREVENTION OF POLLUTION FROM SHIPS, 1973
ANNEX I
REGULATIONS FOR THE PREVENTION OF POLLUTION BY OIL
Methods for the Prevention of Oil Pollution from Ships While Operating in Special Areas
(1) For the purposes of this Annex, the special areas are the Mediterranean Sea area, the Baltic Sea area, the Black Sea area, the Red Sea area, the "Gulfs area", the Gulf of Aden and the Antarctic area, which are defined as follows:
(a)-(f) No change.
(g) "The Antarctic area means the sea area south of 60° south latitude".
(2) Subject to the provisions of regulation 11 of this Annex:
(a) Any discharge into the sea of oil or oily mixture from any oil tanker, or any ship of 400 tons gross tonnage and above other than an oil tanker, shall be prohibited, while in a special area. In respect of the Antarctic area, any discharge into the sea of oil or oily mixture from any ship shall be prohibited.
(b) Except as provided for in respect of the Antarctic area under paragraph 2(a) of this Regulation, any discharge into the sea of oil or oily mixture from a ship of less than 400 tons gross tonnage, other than an oil tanker, shall be prohibited while in a special area, except when the oil content of the effluent without dilution does not exceed 15 parts per million or alternatively when all of the following conditions are satisfied:
(2)(b)(i), (ii), (iii) No change.
(3)-(7) No change.
(8) Notwithstanding paragraph (7) of this regulation, the following rules apply to the Antarctic area:
(a) The Government of each Party to the Convention whose ports are used by ships departing en route to or arriving from the Antarctic area undertakes to ensure that as soon as practicable adequate facilities are provided for the reception of all sludge, dirty ballast, tank washing water, and other oily residues and mixtures from all ships, without causing undue delay, and according to the needs of the ships using them.
(b) The Government of each Party to the Convention shall ensure that all ships entitled to fly its flag, before entering the Antarctic area, are fitted with a tank or tanks of sufficient capacity on board for the retention of all sludge, dirty ballast, tank washing water and other oily residues and mixtures while operating in the area and have concluded arrangements to discharge such oily residues at a reception facility after leaving the area.
ANNEX 2
ADOPTION OF AMENDMENTS TO THE ANNEX OF THE PROTOCOL OF 1978 RELATING TO THE INTERNATIONAL CONVENTION FOR THE PREVENTION OF POLLUTION FROM SHIPS, 1973
ANNEX V
REGULATIONS FOR THE PREVENTION OF POLLUTION BY GARBAGE FROM SHIPS
Disposal of Garbage within Special Areas
(1) For the purposes of this Annex, the special areas are the Mediterranean Sea area, the Baltic Sea area, the Black Sea area, the Red Sea area, the "Gulfs area", the North Sea area and the Antarctic area, which are defined as follows:
(a)-(f) No change.
(g) The Antarctic area means the sea area south of 60° south latitude.
(2)-(4) No change.
(5) Notwithstanding paragraph 4 of this Regulation, the following rules apply to the Antarctic area:
(a) The Government of each Party to the Convention whose ports are used by ships departing en route to or arriving from the Antarctic area undertakes to ensure that as soon as practicable adequate facilities are provided for the reception of all garbage from all ships, without causing undue delay, and according to the needs of the ships using them.
(b) The Government of each Party to the Convention shall ensure that all ships entitled to fly its flag, before entering the Antarctic area, have sufficient capacity on board for the retention of all garbage while operating in the area and have concluded arrangements to discharge such garbage at a reception facility after leaving the area.
SCHEDULE 5 Subsection 44(3)
SCHEDULES TO BE INSERTED IN THE PROTECTION OF THE SEA (PREVENTION OF POLLUTION FROM SHIPS) ACT 1983
SCHEDULE 10 Section 3
RESOLUTION MEPC.48(31)
adopted on 4 July 1991
AMENDMENTS TO THE ANNEX OF THE PROTOCOL OF 1978 RELATING TO THE INTERNATIONAL CONVENTION FOR THE PREVENTION OF POLLUTION FROM SHIPS, 1973
(Designation of the Wider Caribbean area as a special area under Annex V of MARPOL 73/78)
THE MARINE ENVIRONMENT PROTECTION COMMITTEE,
RECALLING Article 38(a) of the Convention on the International Maritime Organization concerning the functions of the Committee,
NOTING article 16 of the International Convention for the Prevention of Pollution from Ships, 1973 (hereinafter referred to as the "1973 Convention") and article VI of the Protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships, 1973 (hereinafter referred to as the "1978 Protocol") which confer upon the appropriate body of the Organization the function of considering and adopting amendments to the 1973 Convention, as modified by the 1978 Protocol (MARPOL 73/78),
HAVING CONSIDERED, at its thirty-first session, amendments to the 1978 Protocol proposed and circulated in accordance with article 16(2)(a) of the 1973 Convention,
ADOPTS, in accordance with article 16(2)(d) of the 1973 Convention, amendments to the Annex of the 1978 Protocol, the text of which is set out in the Annex to the present resolution;
DETERMINES, in accordance with article 16(2)(f)(iii) of the 1973 Convention, that the amendments shall be deemed to have been accepted on 4 October 1992, unless prior to this date one third or more of the Parties, or the Parties the combined merchant fleets of which constitute fifty per cent or more of the gross tonnage of the world's merchant fleet, have communicated to the Organization their objections to the amendments;
INVITES the Parties to note that, in accordance with article 16(2)(g)(ii) of the 1973 Convention, the amendments shall enter into force on 4 April 1993 upon their acceptance in accordance with paragraph 2 above;
REQUESTS the Secretary-General, in conformity with article 16(2)(e) of the 1973 Convention, to transmit to all Parties to Annex V of the 1978 Protocol certified copies of the present resolution and the text of the amendments contained in the Annex;
FURTHER REQUESTS the Secretary-General to transmit to the Members of the Organization which are not Parties to Annex V of the 1978 Protocol copies of the resolution and its annex.
ANNEX
AMENDMENTS TO REGULATION 5 OF ANNEX V OF MARPOL 73/78 (DESIGNATION OF THE WIDER CARIBBEAN AREA AS A SPECIAL AREA)
Regulation 5—Disposal of Garbage within Special Areas
"(1) For the purposes of this Annex the special areas are the Mediterranean Sea area, the Baltic Sea area, the Black Sea area, the Red Sea area, the 'Gulfs area', the North Sea area, the Antarctic area and the Wider Caribbean Region, including the Gulf of Mexico and the Caribbean Sea, which are defined as follows:"
"(
h ) The Wider Caribbean Region, as defined in article 2, paragraph 1 of the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean region (Cartagena de Indias, 1983), means the Gulf of Mexico and Caribbean Sea proper including the bays and seas therein and that portion of the Atlantic Ocean within the boundary constituted by the 30°N parallel from Florida eastward to 77°30'W meridian, thence a rhumb line to the intersection of 20°N parallel and 59°W meridian, thence a rhumb line to the intersection of 7°20'N parallel and 50°W meridian, thence a rhumb line drawn southwesterly to the eastern boundary of French Guiana."
"(b) except as provided in subparagraph (c) of this paragraph, disposal into the sea of food wastes shall be made as far as practicable from land, but in any case not less than 12 nautical miles from the nearest land,"
"(c) disposal into the Wider Caribbean Region of food wastes which have been passed through a comminuter or grinder shall be made as far as practicable from land, but in any case not subject to regulation 4 not less than 3 nautical miles from the nearest land. Such comminuted or ground food wastes shall be capable of passing through a screen with openings no greater than 25 millimetres."
SCHEDULE 11 Section 3
RESOLUTION MEPC.47(31)
adopted on 4 July 1991
AMENDMENTS TO THE ANNEX OF THE PROTOCOL OF 1978 RELATING TO THE INTERNATIONAL CONVENTION FOR THE PREVENTION OF POLLUTION FROM SHIPS, 1973
(New regulation 26 and other amendments to Annex 1 of MARPOL 73/78)
THE MARINE ENVIRONMENT PROTECTION COMMITTEE,
RECALLING Article 38(a) of the Convention on the International Maritime Organization concerning the functions of the Committee,
NOTING article 16 of the International Convention for the Prevention of Pollution from Ships, 1973 (hereinafter referred to as the "1973 Convention") and article VI of the Protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships, 1973 (hereinafter referred to as the "1978 Protocol") which confer upon the appropriate body of the Organization the function of considering and adopting amendments to the 1973 Convention, as modified by the 1978 Protocol (MARPOL 73/78),
NOTING ALSO that the International Conference on Oil Pollution Preparedness and Response convened by the Organization in November 1990, has adopted the International Convention on Oil Pollution Preparedness, Response and Co-operation, 1990 which required,
HAVING CONSIDERED, at its thirty-first session, amendments to the 1978 Protocol proposed and circulated in accordance with article 16(2)(a) of the 1973 Convention,
ADOPTS, in accordance with article 16(2)(d) of the 1973 Convention, amendments to the Annex of the 1978 Protocol, the text of which is set out in the Annex to the present resolution;
DETERMINES, in accordance with article 16(2)(f)(iii) of the 1973 Convention, that the amendments shall be deemed to have been accepted on 4 October 1992, unless prior to this date one third or more of the Parties, or the Parties the combined merchant fleets of which constitute fifty per cent or more of the gross tonnage of the world's merchant fleet, have communicated to the Organization their objections to the amendments;
(a) the effectiveness of measures taken pursuant to this Protocol;
(b) the need to update, strengthen or otherwise improve such measures;
(c) the need for additional measures, including the need for additional Annexes, where appropriate;
(d) the application and implementation of the environmental impact assessment procedures set out in Article 8 and Annex I;
(e) means of minimising or mitigating environmental impacts of activities in the Antarctic Treaty area;
(f) procedures for situations requiring urgent action, including response action in environmental emergencies;
(g) the operation and further elaboration of the Antarctic Protected Area system;
(h) inspection procedures, including formats for inspection reports and checklists for the conduct of inspections;
(i) the collection, archiving, exchange and evaluation of information related to environmental protection;
(j) the state of the Antarctic environment; and
(k) the need for scientific research, including environmental
monitoring, related to the implementation of this Protocol.
2. In carrying out its functions, the Committee shall, as appropriate, consult with the Scientific Committee on Antarctic Research, the Scientific Committee for the Conservation of Antarctic Marine Living Resources and other relevant scientific, environmental and technical organizations.
ARTICLE 13
Each Party shall take appropriate measures within its competence, including the adoption of laws and regulations, administrative actions and enforcement measures, to ensure compliance with this Protocol.
Each Party shall exert appropriate efforts, consistent with the Charter of the United Nations, to the end that no one engages in any activity contrary to this Protocol.
Each Party shall notify all other Parties of the measures it takes pursuant to paragraphs 1 and 2 above.
Each Party shall draw the attention of all other Parties to any activity which in its option affects the implementation of the objectives and principles of this Protocol.
The Antarctic Treaty Consultative Meetings shall draw the attention of any State which is not a Party to this Protocol to any activity undertaken by that State, its agencies, instrumentalities, natural or juridical persons, ships, aircraft or other means of transport which affects the implementation of the objectives and principles of this Protocol.
ARTICLE 14
In order to promote the protection of the Antarctic environment and dependent and associated ecosystems, and to ensure compliance with this Protocol, the Antarctic Treaty Consultative Parties shall arrange, individually or collectively, for inspections by observers to be made in accordance with Article VII of the Antarctic Treaty.
Observers are:
(a) observers designated by any Antarctic Treaty Consultative Party who shall be nationals of that Party; and
(b) any observers designated at Antarctic Treaty Consultative Meetings to carry out inspections under procedures to be established by an Antarctic Treaty Consultative Meeting.
Parties shall co-operate fully with observers undertaking inspections, and shall ensure that during inspections, observers are given access to all parts of stations, installations, equipment, ships and aircraft open to inspection under Article VII (3) of the Antarctic Treaty, as well as to all records maintained thereon which are called for pursuant to this Protocol.
Reports of inspections shall be sent to the Parties whose stations, installations, equipment, ships or aircraft are covered by the reports. After those Parties have been given the opportunity to comment, the reports and any comments thereon shall be circulated to all the Parties and to the Committee, considered at the next Antarctic Treaty Consultative Meeting, and thereafter made publicly available.
ARTICLE 15
1. In order to respond to environmental emergencies in the Antarctic Treaty area, each Party agrees to:
(a) provide for prompt and effective response action to such emergencies which might arise in the performance of scientific research programmes, tourism and all other governmental and nongovernmental activities in the Antarctic Treaty area for which advance notice is required under Article VII (5) of the Antarctic Treaty, including associated logistic support activities; and
(b) establish contingency plans for response to incidents with potential adverse effects on the Antarctic environment or dependent and associated ecosystems.
2. To this end, the Parties shall:
(a) co-operate in the formulation and implementation of such contingency plans; and
(b) establish procedures for immediate notification of, and co-operative response to, environmental emergencies.
3. In the implementation of this Article, the Parties shall draw upon the advice of the appropriate international organisations.
ARTICLE 16
Consistent with the objectives of this Protocol for the comprehensive protection of the Antarctic environment and dependent and associated ecosystems, the Parties undertake to elaborate rules and procedures relating to liability for damage arising from activities taking place in the Antarctic Treaty area and covered by this Protocol. Those rules and procedures shall be included in one or more Annexes to be adopted in accordance with Article 9 (2).
ARTICLE 17
Each Party shall report annually on the steps taken to implement this Protocol. Such reports shall include notifications made in accordance with Article 13 (3), contingency plans established in accordance with Article 15 and any other notifications and information called for pursuant to this Protocol for which there is no other provision concerning the circulation and exchange of information.
Reports made in accordance with paragraph 1 above shall be circulated to all Parties and to the Committee, considered at the next Antarctic Treaty Consultative Meeting, and made publicly available.
ARTICLE 18
If a dispute arises concerning the interpretation or application of this Protocol, the parties to the dispute shall, at the request of any one of them, consult among themselves as soon as possible with a view to having the dispute resolved by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement or other peaceful means to which the parties to the dispute agree.
ARTICLE 19
1. Each Party, when signing, ratifying, accepting, approving or acceding to this Protocol, or at any time thereafter, may choose, by written declaration, one or both of the following means for the settlement of
disputes concerning the interpretation or application of Articles 7, 8 and 15 and, except to the extent that an Annex provides otherwise, the provisions of any Annex and, insofar as it relates to these Articles and provisions, Article 13:
(a) the International Court of Justice;
(b) the Arbitral Tribunal.
A declaration made under paragraph 1 above shall not affect the operation of Article 18 and Article 20 (2).
A Party which has not made a declaration under paragraph 1 above or in respect of which a declaration is no longer in force shall be deemed to have accepted the competence of the Arbitral Tribunal.
If the parties to a dispute have accepted the same means for the settlement of a dispute, the dispute may be submitted only to that procedure, unless the parties otherwise agree.
If the parties to a dispute have not accepted the same means for the settlement of a dispute, or if they have both accepted both means, the dispute may be submitted only to the Arbitral Tribunal, unless the parties otherwise agree.
A declaration made under paragraph 1 above shall remain in force until it expires in accordance with its terms or until three months after written notice of revocation has been deposited with the Depositary.
A new declaration, a notice of revocation or the expiry of a declaration shall not in any way affect proceedings pending before the International Court of Justice or the Arbitral Tribunal, unless the parties to the dispute otherwise agree.
Declarations and notices referred to in this Article shall be deposited with the Depositary who shall transmit copies thereof to all Parties.
ARTICLE 20
If the parties to a dispute concerning the interpretation or application of Articles 7, 8 or 15 or, except to the extent that an Annex provides otherwise, the provisions of any Annex or, insofar as it relates to these Articles and provisions, Article 13, have not agreed on a means for resolving it within 12 months of the request for consultation pursuant to Article 18, the dispute shall be referred, at the request of any party to the dispute, for settlement in accordance with the procedure determined by Article 19 (4) and (5).
The Arbitral Tribunal shall not be competent to decide or rule upon any matter within the scope of Article IV of the Antarctic Treaty. In addition, nothing in this Protocol shall be interpreted as conferring competence or jurisdiction on the International Court of Justice or any other tribunal established for the purpose of settling disputes between
Parties to decide or otherwise rule upon any matter within the scope of Article IV of the Antarctic Treaty.
ARTICLE 21
This Protocol shall be open for signature at Madrid on the 4th of October 1991 and thereafter at Washington until the 3rd of October 1992 by any State which is a Contracting Party to the Antarctic Treaty.
ARTICLE 22
This Protocol is subject to ratification, acceptance or approval by signatory States.
After the 3rd of October 1992 this Protocol shall be open for accession by any State which is a Contracting Party to the Antarctic Treaty.
Instruments of ratification, acceptance, approval or accession shall be deposited with the Government of the United States of America, hereby designated as the Depositary.
After the date on which this Protocol has entered into force, the Antarctic Treaty Consultative Parties shall not act upon a notification regarding the entitlement of a Contracting Party to the Antarctic Treaty to appoint representatives to participate in Antarctic Treaty Consultative Meetings in accordance with Article IX (2) of the Antarctic Treaty unless that Contracting Party has first ratified, accepted, approved or acceded to this Protocol.
ARTICLE 23
This Protocol shall enter into force on the thirtieth day following the date of deposit of instruments of ratification, acceptance, approval or accession by all States which are Antarctic Treaty Consultative Parties at the date on which this Protocol is adopted.
For each Contracting Party to the Antarctic Treaty which, subsequent to the date of entry into force of this Protocol, deposits an instrument of ratification, acceptance, approval or accession, this Protocol shall enter into force on the thirtieth day following such deposit.
ARTICLE 24
Reservations to this Protocol shall not be permitted.
ARTICLE 25
Without prejudice to the provisions of Article 9, this Protocol may be modified or amended at any time in accordance with the procedures set forth in Article XII (1) (a) and (b) of the Antarctic Treaty.
If, after the expiration of 50 years from the date of entry into force of this Protocol, any of the Antarctic Treaty Consultative Parties so requests by a communication addressed to the Depositary, a conference shall be held as soon as practicable to review the operation of this Protocol.
A modification or amendment proposed at any Review Conference called pursuant to paragraph 2 above shall be adopted by a majority of the Parties, including 3/4 of the States which are Antarctic Treaty Consultative Parties at the time of adoption of this Protocol.
A modification or amendment adopted pursuant to paragraph 3 above shall enter into force upon ratification, acceptance, approval or accession by 3/4 of the Antarctic Treaty Consultative Parties, including ratification, acceptance, approval or accession by all States which are Antarctic Treaty Consultative Parties at the time of adoption of this Protocol.
(a) With respect to Article 7, the prohibition on Antarctic mineral resource activities contained therein shall continue unless there is in force a binding legal regime on Antarctic mineral resource activities that includes an agreed means for determining whether, and, if so, under which conditions, any such activities would be acceptable. This regime shall fully safeguard the interests of all States referred to in Article IV of the Antarctic Treaty and apply the principles thereof. Therefore, if a modification or amendment to Article 7 is proposed at a Review Conference referred to in paragraph 2 above, it shall include such a binding legal regime.
(b) If any such modification or amendment has not entered into force within 3 years of the date of its adoption, any Party may at any time thereafter notify to the Depositary of its withdrawal from this Protocol, and such withdrawal shall take effect 2 years after receipt of the notification by the Depositary.
ARTICLE 26
The Depositary shall notify all Contracting Parties to the Antarctic Treaty of the following:
(a) signatures of this Protocol and the deposit of instruments of ratification, acceptance, approval or accession;
(b) the date of entry into force of this Protocol and any additional Annex thereto;
(c) the date of entry into force of any amendment or modification to this Protocol;
(d) the deposit of declarations and notices pursuant to Article 19; and
(e) any notification received pursuant to Article 25 (5) (b)
ARTICLE 27
This Protocol, done in the English, French, Russian and Spanish languages, each version being equally authentic, shall be deposited in the archives of the Government of the United States of America, which shall transmit duly certified copies thereof to all Contracting Parties to the Antarctic Treaty.
This Protocol shall be registered by the Depositary pursuant to Article 102 of the Charter of the United Nations.
SCHEDULE TO THE PROTOCOL
Article 1
The Arbitral Tribunal shall be constituted and shall function in accordance with the Protocol, including this Schedule.
The Secretary referred to in this Schedule is the Secretary General of the Permanent Court of Arbitration.
Article 2
Each Party shall be entitled to designate up to three Arbitrators, at least one of whom shall be designated within three months of the entry into force of the Protocol for that Party. Each Arbitrator shall be experienced in Antarctic affairs, have thorough knowledge of international law and enjoy the highest reputation for fairness, competence and integrity. The names of the persons so designated shall constitute the list of Arbitrators. Each Party shall at all times maintain the name of at least one Arbitrator on the list.
Subject to paragraph 3 below, an Arbitrator designated by a Party shall remain on the list for a period of five years and shall be eligible for redesignation by that Party for additional five year periods.
A Party which designated an Arbitrator may withdraw the name of that Arbitrator from the list. If an Arbitrator dies or if a Party for any
reason withdraws from the list the name of an Arbitrator designated by it, the Party which designated the Arbitrator in question shall notify the Secretary promptly. An Arbitrator whose name is withdrawn from the list shall continue to serve on any Arbitral Tribunal to which that Arbitrator has been appointed until the completion of proceedings before the Arbitral Tribunal.
4. The Secretary shall ensure that an up-to-date list is maintained of the Arbitrators designated pursuant to this Article.
Article 3
1. The Arbitral Tribunal shall be composed of three Arbitrators who shall be appointed as follows:
(a) The party to the dispute commencing the proceedings shall appoint one Arbitrator, who may be its national, from the list referred to in Article 2. This appointment shall be included in the notification referred to in Article 4.
(b) Within 40 days of the receipt of that notification, the other party to the dispute shall appoint the second Arbitrator, who may be its national, from the list referred to in Article 2.
(c) Within 60 days of the appointment of the second Arbitrator, the parties to the dispute shall appoint by agreement the third Arbitrator from the list referred to in Article 2. The third Arbitrator shall not be either a national of a party to the dispute, or a person designated for the list referred to in Article 2 by a party to the dispute, or of the same nationality as either of the first two Arbitrators. The third Arbitrator shall be the Chairperson of the Arbitral Tribunal.
(d) If the second Arbitrator has not been appointed within the prescribed period, or if the parties to the dispute have not reached agreement within the prescribed period on the appointment of the third Arbitrator, the Arbitrator or Arbitrators shall be appointed, at the request of any party to the dispute and within 30 days of the receipt of such request, by the President of the International Court of Justice from the list referred to in Article 2 and subject to the conditions prescribed in subparagraphs (b) and (c) above. In performing the functions accorded him or her in this subparagraph, the President of the Court shall consult the parties to the dispute.
(e) If the President of the International Court of Justice is unable to perform the functions accorded him or her in subparagraph (d) above or is a national of a party to the dispute, the functions shall be performed by the Vice-President of the Court, except that if the Vice-President is unable to perform the functions or is a national of a party to the dispute the functions shall be
performed by the next most senior member of the Court who is available and is not a national of a party to the dispute.
Any vacancy shall be filled in the manner prescribed for the initial appointment.
In any dispute involving more than two Parties, those Parties having the same interest shall appoint one Arbitrator by agreement within the period specified in paragraph 1 (b) above.
Article 4
The party to the dispute commencing proceedings shall so notify the other party or parties to the dispute and the Secretary in writing. Such notification shall include a statement of the claim and the grounds on which it is based. The notification shall be transmitted by the Secretary to all Parties.
Article 5
Unless the parties to the dispute agree otherwise, arbitration shall take place at The Hague, where the records of the Arbitral Tribunal shall be kept. The Arbitral Tribunal shall adopt its own rules of procedure. Such rules shall ensure that each party to the dispute has a full opportunity to be heard and to present its case and shall also ensure that the proceedings are conducted expeditiously.
The Arbitral Tribunal may hear and decide counterclaims arising out of the dispute.
Article 6
1. The Arbitral Tribunal, where it considers that
(a) at the request of any party to a dispute, indicate such provisional measures as it considers necessary to preserve the respective rights of the parties to the dispute;
(b) prescribe any provisional measures which it considers appropriate under the circumstances to prevent serious harm to the Antarctic environment or dependent or associated ecosystems.
The parties to the dispute shall comply promptly with any provisional measures prescribed under paragraph 1 (b) above pending an award under Article 10.
Notwithstanding the time period in Article 20 of the Protocol, a party to a dispute may at any time, by notification to the other party or parties to the dispute and to the Secretary in accordance with Article 4, request that the Arbitral Tribunal be constituted as a matter of exceptional urgency to indicate or prescribe emergency provisional
measures in accordance with this Article. In such case, the Arbitral Tribunal shall be constituted as soon as possible in accordance with Article 3, except that the time periods in Article 3 (1) (b), (c) and (d) shall be reduced to 14 days in each case. The Arbitral Tribunal shall decide upon the request for emergency provisional measures within two months of the appointment of its Chairperson.
4. Following a decision by the Arbitral Tribunal upon a request for emergency provisional measures in accordance with paragraph 3 above, settlement of the dispute shall proceed in accordance with Articles 18, 19 and 20 of the Protocol.
Article 7
Any Party which believes it has a legal interest, whether general or individual, which may be substantially affected by the award of an Arbitral Tribunal, may, unless the Arbitral Tribunal decides otherwise, intervene in the proceedings.
Article 8
The parties to the dispute shall facilitate the work of the Arbitral Tribunal and, in particular, in accordance with their law and using all means at their disposal, shall provide it with all relevant documents and information, and enable it, when necessary, to call witnesses or experts and receive their evidence.
Article 9
If one of the parties to the dispute does not appear before the Arbitral Tribunal or fails to defend its case, any other party to the dispute may request the Arbitral Tribunal to continue the proceedings and make its award.
Article 10
The Arbitral Tribunal shall, on the basis of the provisions of the Protocol and other applicable rules and principles of international law that are not incompatible with such provisions, decide such disputes as are submitted to it.
The Arbitral Tribunal may decide,
Article 11
1. Before making its award, the Arbitral Tribunal shall satisfy itself that it has competence in respect of the dispute and that the claim or counterclaim is well founded in fact and law.
The award shall be accompanied by a statement of reasons for the decision and shall be communicated to the Secretary who shall transmit it to all Parties.
The award shall be final and binding on the parties to the dispute and on any Party which intervened in the proceedings and shall be complied with without delay. The Arbitral Tribunal shall interpret the award at the request of a party to the dispute or of any intervening Party.
The award shall have no binding force except in respect of that particular case.
Unless the Arbitral Tribunal decides otherwise, the expenses of the Arbitral Tribunal, including the remuneration of the Arbitrators, shall be borne by the parties to the dispute in equal shares.
Article 12
All decisions of the Arbitral Tribunal, including those referred to in Articles 5, 6 and 11, shall be made by a majority of the Arbitrators who may not abstain from voting.
Article 13
This Schedule may be amended or modified by a measure adopted in accordance with Article IX (1) of the Antarctic Treaty. Unless the measure specifies otherwise, the amendment or modification shall be deemed to have been approved, and shall become effective, one year after the close of the Antarctic Treaty Consultative Meeting at which it was adopted, unless one or more of the Antarctic Treaty Consultative Parties notifies the Depositary, within that time period, that it wishes an extension of that period or that it is unable to approve the measure.
2. Any amendment or modification of this Schedule which becomes effective in accordance with paragraph 1 above shall thereafter become effective as to any other Party when notice of approval by it has been received by the Depositary.
ANNEX IV TO THE PROTOCOL ON ENVIRONMENTAL PROTECTION TO THE ANTARCTIC TREATY
PREVENTION OF MARINE POLLUTION
For the purposes of this Annex:
(a) "discharge" means any release howsoever caused from a ship
and includes any escape, disposal, spilling, leaking, pumping, emitting or emptying;
(b) "garbage" means all kinds of victual, domestic and operational waste excluding fresh fish and parts thereof, generated during the normal operation of the ship, except those substances which are covered by Articles 3 and 4;
(c) "MARPOL 73/78" means the International Convention for the Prevention of Pollution from Ships, 1973, as amended by the Protocol of 1978 relating thereto and by any other amendment in force thereafter;
(d) "noxious liquid substance" means any noxious liquid substance as defined in Annex II of MARPOL 73/78;
(e) "oil" means petroleum in any form including crude oil, fuel oil, sludge, oil refuse and refined oil products (other than petrochemicals which are subject to the provisions of Article 4);
(f) "oily mixture" means a mixture with any oil content; and
(g) "ship" means a vessel of any type whatsoever operating in the marine environment and includes hydrofoil boats, air-cushion vehicles, submersibles, floating craft and fixed or floating platforms.
This Annex applies, with respect to each Party, to ships entitled to fly its flag and to any other ship engaged in or supporting its Antarctic operations, while operating in the Antarctic Treaty area.
Any discharge into the sea of oil or oily mixture shall be prohibited, except in cases permitted under Annex I of MARPOL 73/78. While operating in the Antarctic Treaty area, ships shall retain on board all sludge, dirty ballast, tank washing waters and other oily residues and mixtures which may not be discharged into the sea. Ships shall discharge these residues only outside the Antarctic Treaty area, at reception facilities or as otherwise permitted under Annex I of MARPOL 73/78.
This Article shall not apply to:
(a) the discharge into the sea of oil or oily mixture resulting from damage to a ship or its equipment:
(i) provided that all reasonable precautions have been taken after the occurrence of the damage or discovery of the
discharge for the purpose of preventing or minimising the discharge; and
(ii) except if the owner or the Master acted either with intent to cause damage, or recklessly and with the knowledge that damage would probably result; or
(b) the discharge into the sea of substances containing oil which are being used for the purpose of combating specific pollution incidents in order to minimise the damage from pollution.
The discharge into the sea of any noxious liquid substance, and any other chemical or other substances, in quantities or concentrations that are harmful to the marine environment, shall be prohibited.
The disposal into the sea of all plastics, including but not limited to synthetic ropes, synthetic fishing nets, and plastic garbage bags, shall be prohibited.
The disposal into the sea of all other garbage, including paper products, rags, glass, metal, bottles, crockery, incineration ash, dunnage, lining and packing materials, shall be prohibited.
The disposal into the sea of food wastes may be permitted when they have been passed through a comminuter or grinder, provided that such disposal shall, except in cases permitted under Annex V of MARPOL 73/78, be made as far as practicable from land and ice shelves but in any case not less than 12 nautical miles from the nearest land or ice shelf. Such comminuted or ground food wastes shall be capable of passing through a screen with openings no greater than 25 millimeters.
When a substance or material covered by this article is mixed with other such substance or material for discharge or disposal, having different disposal or discharge requirements, the most stringent disposal or discharge requirements shall apply.
The provisions of paragraphs 1 and 2 above shall not apply to:
(a) the escape of garbage resulting from damage to a ship or its equipment provided all reasonable precautions have been taken, before and after the occurrence of the damage, for the purpose of preventing or minimising the escape; or
(b) the accidental loss of synthetic fishing nets, provided all reasonable precautions have been taken to prevent such loss.
6. The Parties shall, where appropriate, require the use of garbage record books.
1. Except where it would unduly impair Antarctic operations:
(a) each Party shall eliminate all discharge into the sea of untreated sewage ("sewage" being defined in Annex IV of MARPOL 73/78) within 12 nautical miles of land or ice shelves;
(b) beyond such distance, sewage stored in a holding tank shall not be discharged instantaneously but at a moderate rate and, where practicable, while the ship is en route at a speed of no less than 4 knots.
This paragraph does not apply to ships certified to carry not more than 10 persons.
2. The Parties shall, where appropriate, require the use of sewage record books.
Articles 3, 4, 5 and 6 of this Annex shall not apply in cases of emergency relating to the safety of a ship and those on board or saving life at sea.
Notice of activities undertaken in cases of emergency shall be circulated immediately to all Parties and to the Committee.
In implementing the provisions of this Annex, due consideration shall be given to the need to avoid detrimental effects on dependent and associated ecosystems, outside the Antarctic Treaty area.
1. Each Party shall undertake to ensure that all ships entitled to fly its flag and any other ship engaged in or supporting its Antarctic operations, before entering the Antarctic Treaty area, are fitted with a tank or tanks of sufficient capacity on board for the retention of all sludge, dirty ballast, tank washing water and other oily residues and mixtures, and have sufficient capacity on board for the retention of garbage, while operating in the Antarctic Treaty area and have concluded arrangements
to discharge such oily residues and garbage at a reception facility after leaving that area. Ships shall also have sufficient capacity on board for the retention of noxious liquid substances.
Each Party at whose ports ships depart en route to or arrive from the Antarctic Treaty area undertakes to ensure that as soon as practicable adequate facilities are provided for the reception of all sludge, dirty ballast, tank washing water, other oily residues and mixtures, and garbage from ships, without causing undue delay, and according to the needs of the ships using them.
Parties operating ships which depart to or arrive from the Antarctic Treaty area at ports of other Parties shall consult with those Parties with a view to ensuring that the establishment of port reception facilities does not place an inequitable burden on Parties adjacent to the Antarctic Treaty area.
In the design, construction, manning and equipment of ships engaged in or supporting Antarctic operations, each Party shall take into account the objectives of this Annex.
This Annex shall not apply to any warship, naval auxiliary or other ship owned or operated by a State and used, for the time being, only on government non-commercial service. However, each Party shall ensure by the adoption of appropriate measures not impairing the operations or operational capabilities of such ships owned or operated by it, that such ships act in a manner consistent, so far as is reasonable and practicable, with this Annex.
In applying paragraph 1 above, each Party shall take into account the importance of protecting the Antarctic environment.
Each Party shall inform the other Parties of how it implements this provision.
The dispute settlement procedure set out in Articles 18 to 20 of the Protocol shall not apply to this Article.
1. In order to respond more effectively to marine pollution emergencies or the threat thereof in the Antarctic Treaty area, the Parties, in accordance with Article 15 of the Protocol, shall develop contingency
plans for marine pollution response in the Antarctic Treaty area, including contingency plans for ships (other than small boats that are part of the operations of fixed sites or of ships) operating in the Antarctic Treaty area, particularly ships carrying oil as cargo, and for oil spills, originating from coastal installations, which enter into the marine environment. To this end they shall:
(a) co-operate in the formulation and implementation of such plans; and
(b) draw on the advice of the Committee, the International Maritime Organization and other international organizations.
2. The Parties shall also establish procedures for co-operative response to pollution emergencies and shall take appropriate response actions in accordance with such procedures.
The Parties shall keep under continuous review the provisions of this Annex and other measures to prevent, reduce and respond to pollution of the Antarctic marine environment, including any amendments and new regulations adopted under MARPOL 73/78, with a view to achieving the objectives of this Annex.
With respect to those Parties which are also Parties to MARPOL 73/78, nothing in this Annex shall derogate from the specific rights and obligations thereunder.
This Annex may be amended or modified by a measure adopted in accordance with Article IX (1) of the Antarctic Treaty. Unless the measure specifies otherwise, the amendment or modification shall be deemed to have been approved, and shall become effective, one year after the close of the Antarctic Treaty Consultative Meeting at which it was adopted, unless one or more of the Antarctic Treaty Consultative Parties notifies the Depositary, within that time period, that it wishes an extension of that period or that it is unable to approve the measure.
Any amendment or modification of this Annex which becomes effective in accordance with paragraph 1 above shall thereafter become effective as to any other Party when notice of approval by it has been received by the Depositary.
1. No. 50, 1920, as amended. For previous amendments, see No. 93, 1936; Nos. 6 and 89, 1947; No. 80, 1950; No. 39, 1960; No. 72, 1961; No. 8, 1963; No. 93, 1966; No. 79, 1971; Nos. 130 and 216, 1973; No. 124, 1974; No. 91, 1977; No. 19, 1979; No. 27, 1980; No. 80, 1982; No. 39, 1983; Nos. 69 and 108, 1984; No. 69, 1986; No. 63, 1988, Nos. 6 and 45, 1989; No. 23, 1990; No. 11, 1991; and No. 82, 1992.
2. No. 78, 1990, as amended. For previous amendments, see Nos. 41, 101 and 173, 1991.
3. No. 64, 1989, as amended. For previous amendments, see No. 23, 1990; and No. 99, 1991.
4. No. 63, 1988, as amended. For previous amendments, see No. 55, 1988; Nos. 6 and 21, 1989; No. 25, 1990; No. 11, 1991; and Nos. 101 and 173, 1991.
5. No. 4, 1986, as amended. For previous amendments, see Nos. 55, 57, 63, 99 and 150, 1988; Nos. 6 and 21, 1989; No. 26, 1990 (as amended by No. 11, 1991); No. 73, 1990; and Nos. 11, 101 and 173, 1991.
6. No. 4, 1913, as amended. For previous amendments, see No. 32, 1919; No. 1, 1921; No. 8, 1925; No. 8, 1926; No. 49, 1934; No. 30, 1935; No. 1, 1943; No. 80, 1950; No. 109, 1952; No. 96. 1953; No. 46, 1956; No. 36, 1958 (as amended by No. 96, 1961; No. 1, 1965 and No. 98, 1979); No. 96, 1961; No. 1, 1965; No. 93, 1966; No. 60, 1967; No. 62, 1968; Nos. 1 and 117, 1970; No. 28, 1972; No. 216, 1973 (as amended by No. 20, 1974; and No. 91, 1976); No. 157, 1976; Nos. 98 (as amended by No. 39, 1983) and 155, 1979; No. 70, 1980; No. 87, 1980 (as amended by Nos. 10 and 74, 1981; No. 84, 1983; No. 57, 1988; and No. 23, 1990); No. 10, 1981 (as amended by No. 74, 1981; and No. 57, 1988); No. 36, 1981 (as amended by No. 40, 1983); Nos. 61 and 74, 1981; No. 80, 1982 (as amended by No. 39, 1983); No. 40, 1984 (as amended by Nos. 84 and 91, 1983); No. 72, 1984 (as amended by No. 165, 1984); Nos. 65 and 193, 1985; Nos. 76, 132, 163, and 167, 1986; Nos. 141, 1987; Nos. 34, 57, 87, 99 and 127, 1988; Nos. 6, 63, 129 and 151, 1989; Nos. 23 and 78, 1990; No. 11, 1991; and No. 7, 1992.
7. No. 33, 1981, as amended. For previous amendments, see No. 99, 1988; and No. 78, 1990.
8. No. 41, 1983, as amended. For previous amendments, see No. 72, 1984; No. 65, 1985; Nos. 81 and 167, 1986; No. 141, 1987; Nos. 57 and 99, 1988; No. 6, 1989; Nos. 23 and 78, 1990; and No. 101, 1991.
9. No. 98, 1991, as amended. For previous amendments, see Nos. 145 and 173, 1991.
10. No. 11, 1991.
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House of Representatives on 7 May 1992
Senate on 1 June 1992
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