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TASMANIA
__________
ENVIRONMENTAL MANAGEMENT AND
POLLUTION CONTROL AMENDMENT BILL 2012
__________
CONTENTS
PART 1 - PRELIMINARY
1. Short title
2. Commencement
PART 2 - ENVIRONMENTAL MANAGEMENT AND POLLUTION
CONTROL ACT 1994 AMENDED
3. Principal Act
4. Section 3 amended (Interpretation)
5. Section 9 amended (Interaction with other Acts)
6. Section 22 amended (Registers of environmental management
and enforcement instruments)
7. Section 24 amended (Assessment of permissible level 1
activities)
8. Section 25 amended (Assessment of permissible level 2
activities)
9. Section 25A amended (Assessment of applications for permits
under Division 2A of Part 3 of the Land Use Planning and
Approvals Act 1993)
10. Section 27A substituted
27A. Classes of assessment
11. Section 27B amended (Notice of intent)
[Bill 38]-IV
12. Section 27C amended (Board to advise of proposed class of
assessment)
13. Section 27E amended (Board may require further information)
14. Section 27I amended (Additional information)
15. Section 28 amended (Environmental agreements)
16. Section 32 amended (Notification of incidents)
17. Section 35 amended (Financial assurance to secure compliance
with Act)
18. Section 43A inserted
43A. False or misleading statements
19. Section 43B inserted
43B. Interpretation of Division
20. Section 44 amended (Environment protection notices)
21. Section 44A inserted
44A. Correction of mistakes
22. Section 45 amended (Duties arising under environment
protection notice)
23. Section 45A inserted
45A. Transfer of environment protection notice
24. Section 46 amended (Registration of environment protection
notices)
25. Section 51B inserted
51B. Offence of contravening permit conditions
26. Section 55A amended (General environmental duty defence)
27. Section 70 repealed
28. Section 74D amended (Content of notices generally)
29. Section 74T substituted
74T. Action if person to be served cannot be found
30. Section 92 amended (Powers of authorized officers and council
officers)
31. Section 95A inserted
95A. Self-incrimination
32. Section 100A amended (Listening Devices Act 1991 not to
apply)
33. Section 102 amended (Regulations)
2
34. Schedule 2 amended (Level 2 Activities)
35. Schedule 3 amended (Provisions with respect to Membership of
the Board)
36. Schedule 5 inserted
SCHEDULE 5 - CHARACTERISTICS TO BE
CONSIDERED IN DETERMINING CLASS OF
ASSESSMENT
37. Schedule 6 amended (Transitional and Miscellaneous
Provisions)
PART 3 - POLLUTION OF WATERS BY OIL AND NOXIOUS
SUBSTANCES ACT 1987 AMENDED
38. Principal Act
39. Section 8 substituted
8. Prohibition of discharge of oil or oily mixtures into
State waters
PART 4 - REPEAL OF ACT
40. Repeal of Act
3
4
ENVIRONMENTAL MANAGEMENT AND
POLLUTION CONTROL AMENDMENT BILL 2012
This Public Bill originated in the House of Assembly, and, having this day passed, is
now ready for presentation to the Legislative Council for its concurrence.
P. R. ALCOCK, Clerk of the House
16 October 2012
(Brought in by the Minister for Environment, Parks and
Heritage, the Honourable Brian Neal Wightman)
A BILL FOR
An Act to amend the Environmental Management and
Pollution Control Act 1994 and the Pollution of Waters by
Oil and Noxious Substances Act 1987
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
PART 1 - PRELIMINARY
1. Short title
This Act may be cited as the Environmental
Management and Pollution Control Amendment
Act 2012.
2. Commencement
This Act commences on the day on which this
Act receives the Royal Assent.
[Bill 38] 5
Environmental Management and Pollution Control Amendment
Act 2012
Act No. of
s. 3 Part 2 - Environmental Management and Pollution Control Act 1994
Amended
PART 2 - ENVIRONMENTAL MANAGEMENT AND
POLLUTION CONTROL ACT 1994 AMENDED
3. Principal Act
In this Part, the Environmental Management and
Pollution Control Act 1994* is referred to as the
Principal Act.
4. Section 3 amended (Interpretation)
Section 3(1) of the Principal Act is amended as
follows:
(a) by inserting ", discharge, depositing or
disturbance" after "emission" in
paragraph (a) of the definition of
environmental nuisance;
(b) by inserting ", discharge, depositing or
disturbance" after "emission" in
paragraph (b) of the definition of
environmental nuisance;
(c) by inserting the following definition after
the definition of State Policy:
threatened species means a taxon of
flora or fauna listed in Schedule
3, 4 or 5 to the Threatened
Species Protection Act 1995;
*No. 44 of 1994
6
Environmental Management and Pollution Control Amendment
Act 2012
Act No. of
Part 2 - Environmental Management and Pollution Control Act 1994 s. 5
Amended
5. Section 9 amended (Interaction with other Acts)
Section 9 of the Principal Act is amended by
omitting subsection (2).
6. Section 22 amended (Registers of environmental
management and enforcement instruments)
Section 22(1) of the Principal Act is amended as
follows:
(a) by omitting from paragraph (f) "notice."
and substituting "notice; and";
(b) by inserting the following paragraph after
paragraph (f):
(g) any notice issued under Part 5A
in respect of a contaminated site,
and any amendment or revocation
of any such notice.
7. Section 24 amended (Assessment of permissible
level 1 activities)
Section 24(4) of the Principal Act is amended as
follows:
(a) by inserting "if it were" after "under this
Act as";
(b) by omitting "if it were".
7
Environmental Management and Pollution Control Amendment
Act 2012
Act No. of
s. 8 Part 2 - Environmental Management and Pollution Control Act 1994
Amended
8. Section 25 amended (Assessment of permissible
level 2 activities)
Section 25 of the Principal Act is amended as
follows:
(a) by inserting in subsection (2)(e) "until
the completion of the Board's assessment
of the activity" after "apply";
(b) by omitting from subsection (5) "Act"
first occurring and substituting "section".
9. Section 25A amended (Assessment of applications
for permits under Division 2A of Part 3 of the Land
Use Planning and Approvals Act 1993)
Section 25A(4) of the Principal Act is amended
by omitting "Subsections (6)" and substituting
"Division 1A of this Part and subsections (6)".
10. Section 27A substituted
Section 27A of the Principal Act is repealed and
the following section is substituted:
27A. Classes of assessment
(1) An assessment by the Board of an
activity, pursuant to section 25 or 27, is
to be one of the following classes:
(a) class 2A;
8
Environmental Management and Pollution Control Amendment
Act 2012
Act No. of
Part 2 - Environmental Management and Pollution Control Act 1994 s. 11
Amended
(b) class 2B;
(c) class 2C.
(2) In determining a class of assessment
under this Part, the Board is to take into
consideration the characteristics set out
in Schedule 5.
(3) The Minister, by order, may amend
Schedule 5 by doing any one or more of
the following:
(a) inserting a characteristic in the
Schedule;
(b) omitting a characteristic from the
Schedule;
(c) omitting a characteristic from the
Schedule and substituting another
characteristic.
(4) The provisions of section 47(3), (3A),
(4), (5), (6) and (7) of the Acts
Interpretation Act 1931 apply to an order
under this section as if the order were
regulations within the meaning of that
Act.
(5) An order under this section is not an
instrument of a legislative character for
the purposes of the Subordinate
Legislation Act 1992.
9
Environmental Management and Pollution Control Amendment
Act 2012
Act No. of
s. 11 Part 2 - Environmental Management and Pollution Control Act 1994
Amended
11. Section 27B amended (Notice of intent)
Section 27B(2) of the Principal Act is amended
by inserting "in sufficient detail to enable the
Board to determine the appropriate class of
assessment" after "information".
12. Section 27C amended (Board to advise of proposed
class of assessment)
Section 27C(a) of the Principal Act is amended
by inserting "that is acceptable to the Board
under section 27B(2)" after "intent".
13. Section 27E amended (Board may require further
information)
Section 27E(2) of the Principal Act is amended
by omitting "in respect of a class 2C
assessment".
14. Section 27I amended (Additional information)
Section 27I(1) of the Principal Act is amended
by inserting ", after the expiration of the relevant
period for representations under section 27G,"
after "The Board".
15. Section 28 amended (Environmental agreements)
Section 28 of the Principal Act is amended by
omitting subsection (6).
10
Environmental Management and Pollution Control Amendment
Act 2012
Act No. of
Part 2 - Environmental Management and Pollution Control Act 1994 s. 16
Amended
16. Section 32 amended (Notification of incidents)
Section 32 of the Principal Act is amended as
follows:
(a) by omitting subsection (1) and
substituting the following subsection:
(1) A person responsible for -
(a) a level 1 activity, other
than an activity in relation
to which a determination
has been made in
accordance with
section 24(4A); or
(b) an activity that is not a
level 2 activity or a level
3 activity, and that has not
been assessed and
approved by the Board
under section 27 -
must notify the relevant council,
as soon as reasonably practicable
but not later than 24 hours, after
becoming aware of the release of
a pollutant occurring as the result
of any incident in relation to that
activity, including an emergency,
accident or malfunction, if this
release causes or may cause an
environmental nuisance.
11
Environmental Management and Pollution Control Amendment
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Act No. of
s. 17 Part 2 - Environmental Management and Pollution Control Act 1994
Amended
(b) by inserting in subsection (2) "an activity
that is to be treated as if it were a level 2
activity in accordance with
section 24(4A), or" after "for";
(c) by inserting the following subsection
after subsection (7):
(8) In this section -
release includes the emission,
discharge, depositing or
disturbance of a pollutant.
17. Section 35 amended (Financial assurance to secure
compliance with Act)
Section 35(1) of the Principal Act is amended as
follows:
(a) by inserting ", or a site in respect of
which a notice issued under Part 5A has
been issued," after "activity";
(b) by omitting from paragraph (c)(ii)
"section 44." and substituting
"section 44; or";
(c) by inserting the following paragraphs
after paragraph (c):
(d) in the case of a notice issued
under Part 5A, complying with
any requirements specified in the
notice; or
12
Environmental Management and Pollution Control Amendment
Act 2012
Act No. of
Part 2 - Environmental Management and Pollution Control Act 1994 s. 18
Amended
(e) complying with any conditions or
restrictions required by the Board
under section 60L(8) of the Land
Use Planning and Approvals Act
1993 to be contained in a special
permit granted under section 60T
of that Act.
18. Section 43A inserted
After section 43 of the Principal Act, the
following section is inserted in Division 1:
43A. False or misleading statements
A person must not, in providing any
information or answering any question
under this Act -
(a) make a statement knowing it to
be false or misleading; or
(b) omit any matter from a statement
knowing that without that matter
the statement is false or
misleading.
Penalty: In the case of -
(a) a body corporate, a fine
not exceeding 250 penalty
units; and
13
Environmental Management and Pollution Control Amendment
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Act No. of
s. 19 Part 2 - Environmental Management and Pollution Control Act 1994
Amended
(b) a natural person, a fine
not exceeding 100 penalty
units.
19. Section 43B inserted
Before section 44 of the Principal Act, the
following section is inserted in Division 2:
43B. Interpretation of Division
For the purposes of this Division -
environmentally relevant activity
includes an activity that is no
longer being carried out.
20. Section 44 amended (Environment protection
notices)
Section 44 of the Principal Act is amended as
follows:
(a) by inserting in subsection (1)(d) "or
restrictions" after "conditions";
(b) by inserting in subsection (2)(d) "or
restrictions" after "conditions";
(c) by inserting in subsection (8) "or
restrictions" after "If the conditions";
(d) by inserting in subsection (8)(a) "or
restrictions" after "conditions";
14
Environmental Management and Pollution Control Amendment
Act 2012
Act No. of
Part 2 - Environmental Management and Pollution Control Act 1994 s. 20
Amended
(e) by inserting in subsection (8)(b) "or
restrictions" after "conditions";
(f) by inserting the following subsections
after subsection (8):
(9) Where the Director or, in the case
of an environment protection
notice issued under
subsection (2), a council officer
considers that 2 or more
environmentally relevant
activities that are subject to
permits, and in respect of which
separate environment protection
notices could be issued to vary
the conditions or restrictions of
those permits, can be viewed as
forming one integrated activity,
the Director or council officer
may issue a single environment
protection notice to vary those
conditions or restrictions.
(10) In this section -
vary the conditions or
restrictions of a permit
includes change existing
conditions or restrictions
and add or remove
conditions or restrictions,
provided that the
fundamental use or
15
Environmental Management and Pollution Control Amendment
Act 2012
Act No. of
s. 21 Part 2 - Environmental Management and Pollution Control Act 1994
Amended
development authorised
by the permit is not
changed.
21. Section 44A inserted
After section 44 of the Principal Act, the
following section is inserted in Division 2:
44A. Correction of mistakes
The Director may correct an environment
protection notice issued, or caused to be
issued, by him or her, and a council
officer may correct an environment
protection notice issued by him or her, if
the notice contains -
(a) a clerical mistake or an error
arising from any accidental slip
or omission; or
(b) an evident material
miscalculation of figures or an
evident material mistake in the
description of any person, thing
or property referred to in the
notice.
16
Environmental Management and Pollution Control Amendment
Act 2012
Act No. of
Part 2 - Environmental Management and Pollution Control Act 1994 s. 22
Amended
22. Section 45 amended (Duties arising under
environment protection notice)
Section 45 of the Principal Act is amended by
omitting subsections (1) and (2) and substituting
the following subsections:
(1) A person who is responsible for an
environmentally relevant activity who,
having been served with an environment
protection notice, intends to cease to be
responsible for or, in any event, to cease
to conduct, the activity in respect of
which the notice was served must, before
that cessation -
(a) notify the Director or, in the case
of an environment protection
notice served by a council officer,
the council in writing of that
intention; and
(b) where there is an intention to
cease to be responsible for the
activity, provide the Director or
the council with full particulars in
writing of any person succeeding
him or her as the person
responsible.
Penalty: Fine not exceeding 10 penalty
units.
(2) Where a person who has ceased to
conduct an environmentally relevant
17
Environmental Management and Pollution Control Amendment
Act 2012
Act No. of
s. 23 Part 2 - Environmental Management and Pollution Control Act 1994
Amended
activity, in respect of which an
environment protection notice was
served upon him or her, intends to
resume conduct of the activity, he or she
must, not less than 30 days before that
resumption, notify the Director or, in the
case of an environment protection notice
served by a council officer, the council in
writing of that intention.
Penalty: Fine not exceeding 10 penalty
units.
23. Section 45A inserted
After section 45 of the Principal Act, the
following section is inserted in Division 2:
45A. Transfer of environment protection notice
(1) On receipt of notification from a person
under section 45(1)(a) and particulars
from that person under section 45(1)(b),
the Director or, in the case of an
environment protection notice served by
a council officer, the council officer may
amend the environment protection notice
by substituting the name of that person
with the name of the person identified in
the particulars.
(2) On the amendment of an environment
protection notice under subsection (1) -
18
Environmental Management and Pollution Control Amendment
Act 2012
Act No. of
Part 2 - Environmental Management and Pollution Control Act 1994 s. 24
Amended
(a) the amended notice must be
served on any person whose
name has been inserted in the
notice in substitution for another
name in accordance with that
subsection; and
(b) any such person is not, in respect
of the service of the amended
notice, a person to whom
section 44(6) applies; and
(c) the person whose name has been
omitted in accordance with
subsection (1) is no longer bound
by the notice, notwithstanding
section 45(4).
(3) On service being effected under
subsection (2)(a), the person served is,
subject to subsection (2)(b), taken to
have been served with an environment
protection notice under section 44(1) or
(2), as the case may be.
24. Section 46 amended (Registration of environment
protection notices)
Section 46 of the Principal Act is amended as
follows:
(a) by omitting from subsection (3)
"subsection (1)(b)" and substituting
"subsection (2)(b)";
19
Environmental Management and Pollution Control Amendment
Act 2012
Act No. of
s. 25 Part 2 - Environmental Management and Pollution Control Act 1994
Amended
(b) by inserting the following subsection
after subsection (5):
(5A) An environment protection notice
that is registered under
subsection (2) binds, to the extent
specified in the notice, any person
who -
(a) is the owner or occupier
of the relevant area of
land when the notice is
registered; and
(b) becomes the owner or
occupier of the relevant
area of land after the
notice has been
registered -
as if the notice were served on
that person.
25. Section 51B inserted
After section 51A of the Principal Act, the
following section is inserted in Division 4:
51B. Offence of contravening permit conditions
A person must not conduct an activity to
which a permit, granted by a planning
authority pursuant to a planning scheme
or order or to a determination of the
20
Environmental Management and Pollution Control Amendment
Act 2012
Act No. of
Part 2 - Environmental Management and Pollution Control Act 1994 s. 26
Amended
Appeal Tribunal, relates in such a way
that constitutes a breach of a condition or
restriction of the permit that -
(a) the Board has required under
section 25(5); or
(b) the Director has caused to be
varied under section 44(1)(d).
Penalty: In the case of -
(a) a body corporate, a fine
not exceeding 1 000
penalty units; or
(b) a natural person, a fine
not exceeding 500 penalty
units.
26. Section 55A amended (General environmental duty
defence)
Section 55A(1) of the Principal Act is amended
as follows:
(a) by inserting in paragraph (a) "or a special
permit, within the meaning of the Land
Use Planning and Approvals Act 1993"
after "permit";
(b) by omitting from paragraph (b)(i) "or
permit" and substituting ", permit or a
special permit, within the meaning of the
21
Environmental Management and Pollution Control Amendment
Act 2012
Act No. of
s. 27 Part 2 - Environmental Management and Pollution Control Act 1994
Amended
Land Use Planning and Approvals Act
1993,".
27. Section 70 repealed
Section 70 of the Principal Act is repealed.
28. Section 74D amended (Content of notices generally)
Section 74D(2) of the Principal Act is amended
as follows:
(a) by inserting "or action" after "work";
(b) by inserting "or actions" after "works".
29. Section 74T substituted
Section 74T of the Principal Act is repealed and
the following section is substituted:
74T. Action if person to be served cannot be
found
(1) If the Director, after reasonable enquiry,
cannot determine -
(a) the whereabouts of the person on
whom the notice is to be served;
or
(b) on whom to serve a notice -
22
Environmental Management and Pollution Control Amendment
Act 2012
Act No. of
Part 2 - Environmental Management and Pollution Control Act 1994 s. 30
Amended
the Director, by his or her agent, may do
any work or take any action that could be
required by the notice.
(2) For the purposes of subsection (1)(a),
"reasonable inquiry" includes advertising
in a daily newspaper circulating in the
relevant region.
30. Section 92 amended (Powers of authorized officers
and council officers)
Section 92(1)(j) of the Principal Act is amended
by inserting "or special permit" after "permit".
31. Section 95A inserted
After section 95 of the Principal Act, the
following section is inserted in Division 1:
95A. Self-incrimination
(1) A person is not excused from a
requirement under this Division to
provide information or answer a
question, or to produce or provide any
record, document or thing, on the ground
that to do so might incriminate the person
or make the person liable to a penalty.
(2) However, any information provided or
answer given, or record, document or
thing produced or provided, by a natural
person in compliance with such a
23
Environmental Management and Pollution Control Amendment
Act 2012
Act No. of
s. 32 Part 2 - Environmental Management and Pollution Control Act 1994
Amended
requirement is not admissible in evidence
against that person in proceedings for an
offence under this Act or for the
imposition of a penalty under this Act
(other than proceedings for an offence
against section 43A, 92A or 95).
32. Section 100A amended (Listening Devices Act 1991
not to apply)
Section 100A of the Principal Act is amended by
inserting "audio or" after "use of".
33. Section 102 amended (Regulations)
Section 102(7)(d) of the Principal Act is
amended as follows:
(a) by omitting "100" and substituting
"1 000";
(b) by omitting "10" and substituting "100".
34. Schedule 2 amended (Level 2 Activities)
Schedule 2 to the Principal Act is amended as
follows:
(a) by omitting from clause 1(b) "gaseous"
and substituting "gaseous,";
(b) by omitting from clause 3(d)(ii) "period."
and substituting "period; or";
24
Environmental Management and Pollution Control Amendment
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Act No. of
Part 2 - Environmental Management and Pollution Control Act 1994 s. 35
Amended
(c) by inserting the following subparagraph
after subparagraph (ii) in clause 3(d):
(iii) anaerobic digesters with a
production capacity of 100 or
more tonnes per year of solid or
liquid fertiliser product.
(d) by inserting in clause 4(d) ", evaporated
milk" after "skimmed milk";
(e) by omitting paragraph (e) from clause 7
and substituting the following paragraph:
(e) Conduct of Certain Activities in
Waters Within the Limits of the
State: the dumping of dredge
spoil or the dumping or sinking of
boats, aircraft, platforms or other
man-made structures and the
placement of artificial reefs in
waters within the limits of the
State.
35. Schedule 3 amended (Provisions with respect to
Membership of the Board)
Clause 6(1) of Schedule 3 to the Principal Act is
amended by omitting "an appointed" and
substituting "a".
25
Environmental Management and Pollution Control Amendment
Act 2012
Act No. of
s. 36 Part 2 - Environmental Management and Pollution Control Act 1994
Amended
36. Schedule 5 inserted
After Schedule 4 to the Principal Act, the
following Schedule is inserted:
SCHEDULE 5 - CHARACTERISTICS TO BE
CONSIDERED IN DETERMINING CLASS OF
ASSESSMENT
Section 27A
Class of assessment Characteristics
1. Class 2A Small-scale projects with
environmental impacts that -
(a) are minor in scale or
consequence; and
(b) are local in extent; and
(c) may be readily avoided
or mitigated through
appropriate management;
and
(d) are unlikely to generate
significant public
interest.
2. Class 2B Any activity that is not included
in Class 2A or Class 2C
3. Class 2C Projects that -
26
Environmental Management and Pollution Control Amendment
Act 2012
Act No. of
Part 2 - Environmental Management and Pollution Control Act 1994 s. 36
Amended
Class of assessment Characteristics
(a) are projects of regional
significance within the
meaning of Part 4 of the
Land Use Planning and
Approvals Act 1993; or
(b) have a reasonable
likelihood of -
(i) requiring
approval from the
Commonwealth
Government
under the
Environment
Protection and
Biodiversity
Conservation Act
1999 of the
Commonwealth;
or
(ii) generating a very
high level of
public interest; or
(c) possess more than one of
the following
characteristics:
(i) a high level of
public interest;
27
Environmental Management and Pollution Control Amendment
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Act No. of
s. 37 Part 2 - Environmental Management and Pollution Control Act 1994
Amended
Class of assessment Characteristics
(ii) very large scale
of development
or potential for
environmental
impacts across a
wide area;
(iii) potential to
significantly
increase pressure
on a threatened
species;
(iv) are subject to
unusual or
complex factors
that are likely to
demand
additional time
during the
environmental
impact
assessment
process.
37. Schedule 6 amended (Transitional and
Miscellaneous Provisions)
Clause 3(4)(a) of Schedule 6 to the Principal Act
is amended by omitting "Director of
28
Environmental Management and Pollution Control Amendment
Act 2012
Act No. of
Part 2 - Environmental Management and Pollution Control Act 1994 s. 37
Amended
Environmental Management" and substituting
"Director, Environmental Protection Authority".
29
Environmental Management and Pollution Control Amendment
Act 2012
Act No. of
s. 38 Part 3 - Pollution of Waters by Oil and Noxious Substances Act 1987
Amended
PART 3 - POLLUTION OF WATERS BY OIL AND
NOXIOUS SUBSTANCES ACT 1987 AMENDED
38. Principal Act
In this Part, the Pollution of Waters by Oil and
Noxious Substances Act 1987* is referred to as
the Principal Act.
39. Section 8 substituted
Section 8 of the Principal Act is repealed and the
following section is substituted:
8. Prohibition of discharge of oil or oily
mixtures into State waters
(1) Subject to subsections (3) and (6), if oil
or an oily mixture is discharged from a
ship into State waters, the master and the
owner of the ship are each guilty of an
offence.
Penalty: In the case of -
(a) a body corporate, a fine
not exceeding 10 000
penalty units; or
(b) an individual, a fine not
exceeding 2 500 penalty
units or imprisonment for
*No. 95 of 1987
30
Environmental Management and Pollution Control Amendment
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Act No. of
Part 3 - Pollution of Waters by Oil and Noxious Substances Act 1987 s. 39
Amended
a term not exceeding 4
years.
(2) An offence against subsection (1) is an
offence of strict liability.
(3) Subsection (1) does not apply to the
discharge of oil or of an oily mixture
from a ship -
(a) for the purpose of securing the
safety of a ship or saving life at
sea; or
(b) if the oil or oily mixture, as the
case may be, escaped from the
ship in consequence of non-
intentional damage to the ship or
its equipment, and all reasonable
precautions were taken after the
occurrence of the damage or the
discovery of the discharge for the
purpose of preventing or
minimising the escape of oil or
oily mixture, as the case may be;
or
(c) in the case of an oily mixture, if
the discharge was for the purpose
of combating specific pollution
incidents in order to minimise the
damage from pollution and was
approved by a prescribed officer
and, where the discharge
31
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Act No. of
s. 39 Part 3 - Pollution of Waters by Oil and Noxious Substances Act 1987
Amended
occurred in the jurisdiction of the
government of a country other
than Australia, by that
government.
(4) For the purposes of subsection (3)(b),
damage to a ship or to its equipment is
not non-intentional damage if the
damage -
(a) arose in circumstances where the
master or owner of the ship -
(i) acted with intent to cause
the damage; or
(ii) acted recklessly and with
knowledge that the
damage would probably
result; or
(b) arose as a result of the negligence
of the master or owner of the
ship.
(5) For the purposes of this section, damage
to a ship or to its equipment does not
include -
(a) deterioration resulting from
failure to maintain the ship or
equipment; or
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Amended
(b) defects that develop during the
normal operation of the ship or
equipment.
(6) Without limiting the generality of
subsection (3) but subject to
subsection (7), subsection (1) does not
apply to -
(a) the discharge of oil or an oily
mixture from a ship that is not
within a special area, if the
following conditions are satisfied:
(i) the ship has a gross
tonnage equal to or
greater than 400 tonnes;
(ii) the ship is proceeding en
route;
(iii) the oily mixture is
processed using oil-
filtering equipment
meeting the requirements
set out by regulations
made under section 42 or
under section 267A of the
Navigation Act;
(iv) the oil content of the
effluent without dilution
does not exceed 15 parts
in 1 000 000 parts;
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Act No. of
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Amended
(v) if the ship is an oil tanker,
the oily mixture does not
originate from the cargo
pump room bilges of the
ship and is not mixed with
oil cargo residues; or
(b) the discharge of oil or an oily
mixture from a ship that is within
a special area other than the
Antarctic area, if the following
conditions are satisfied:
(i) the ship has a gross
tonnage equal to or
greater than 400 tonnes;
(ii) the ship is proceeding en
route;
(iii) the oily mixture is
processed using oil-
filtering equipment
meeting the requirements
set out by regulations
made under section 42 or
under section 267A of the
Navigation Act;
(iv) the oil content of the
effluent without dilution
does not exceed 15 parts
per 1 000 000 parts;
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Act No. of
Part 3 - Pollution of Waters by Oil and Noxious Substances Act 1987 s. 39
Amended
(v) if the ship is an oil tanker,
the oily mixture does not
originate from the cargo
pump room bilges of the
ship and is not mixed with
oil cargo residues; or
(c) the discharge of oil or an oily
mixture within an area other than
the Antarctic area from a ship, if
the following conditions are
satisfied:
(i) the ship has a gross
tonnage of less than 400;
(ii) the ship is proceeding en
route;
(iii) the ship has in operation
equipment, of a kind that
meets the requirements
set out by regulations
made under section 42 or
under section 267A of the
Navigation Act, that
ensures that the oil
content of the effluent
without dilution does not
exceed 15 parts in
1 000 000 parts;
(iv) if the ship is an oil tanker,
the oily mixture does not
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Act No. of
s. 39 Part 3 - Pollution of Waters by Oil and Noxious Substances Act 1987
Amended
originate from the cargo
pump room bilges of the
ship and is not mixed with
oil cargo residues; or
(d) the discharge of oil or an oily
mixture (other than washings
contaminated with oil) from the
cargo area of an oil tanker that is
not within a special area, if the
following conditions are satisfied:
(i) the tanker has a gross
tonnage of 150 or more
tonnes;
(ii) the tanker is more than 50
nautical miles from the
nearest land;
(iii) the tanker is proceeding
en route;
(iv) the instantaneous rate of
discharge of oil content
does not exceed 30 litres
per nautical mile;
(v) if the tanker was delivered
on or before
31 December 1979, the
total quantity of oil
discharged into the sea
does not exceed one part
in 15 000 parts of the total
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Act No. of
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Amended
quantity of the cargo of
oil of which oil
discharged formed a part;
(vi) if the tanker was delivered
after 31 December 1979,
the total quantity of oil
discharged into the sea
does not exceed one part
in 30 000 parts of the total
quantity of the cargo of
oil of which oil
discharged formed a part;
(vii) the tanker has in operation
an oil discharge
monitoring and control
system and a slop tank
arrangement as required
by regulations made
under section 42 or under
section 267A of the
Navigation Act; or
(e) the discharge of washings
contaminated with oil from an oil
tanker that is not within a special
area, if the following conditions
are satisfied:
(i) the tanker is more than 50
nautical miles from the
nearest land;
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Act No. of
s. 39 Part 3 - Pollution of Waters by Oil and Noxious Substances Act 1987
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(ii) the tanker is proceeding
en route;
(iii) the instantaneous rate of
discharge of oil content
does not exceed 30 litres
per nautical mile;
(iv) if the tanker was delivered
on or before
31 December 1979, the
total quantity of oil
discharged into the sea
does not exceed one part
in 15 000 parts of the total
quantity of the cargo of
oil of which oil
discharged formed a part;
(v) if the tanker was delivered
after 31 December 1979,
the total quantity of oil
discharged into the sea
does not exceed one part
in 30 000 parts of the total
quantity of the cargo of
oil of which oil
discharged formed a part;
(vi) the tanker has in operation
an oil discharge
monitoring and control
system and a slop tank
arrangement as required
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Act No. of
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Amended
by regulations made
under section 42 or under
section 267A of the
Navigation Act;
(vii) the discharge of oil or an
oily mixture from the
cargo area of an oil
tanker, either within or
outside a special area, if
the discharge is of clean
or segregated ballast.
(7) A reference to an oily mixture in
subsection (6) is to be read as not
including a reference to an oily mixture
that contains -
(a) chemicals or other substances in
quantities or concentrations that
are hazardous to the marine
environment; or
(b) chemicals or other substances that
have been introduced for the
purpose of attempting to prevent
the application of subsection (1)
to the discharge of an oily
mixture from a ship.
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Act No. of
s. 40 Part 4 - Repeal of Act
PART 4 - REPEAL OF ACT
40. Repeal of Act
This Act is repealed on the three hundred and
sixty fifth day from the day on which it
commences.
40 Government Printer, Tasmania