Two pollution incidents in recent years have prompted the Australian Government to introduce legislation which amends two existing Acts of Parliament : the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (the 1983 Act) and the Navigation Act 1912 (the 1912 Act). The new Statute is the Maritime Legislation Amendment Act 2011 (the 2011 Act), which came into force in December 2011. The 2011 Act extends liability for the discharge of oil from a ship to the Charterer and enhances the liability of the Master and Owner.

The 1983 Act contains a provision imposing strict criminal liability on the Master and Owner for discharge of oil from a ship. The 2011 Act introduces liability for the Charterers as well as the Master and Owners for the discharge, and significantly increases the maximum amount of the penalty for the offence. This rises from 500 penalty units (AU$55,000, approx. US$ 57,500) to 20,000 penalty units (AU$2.2 million, approx.US$ 2.3 million). The penalty is applied to the Master, Owners and Charterers. (However, as a matter of practice, the Owners are likely to incur a higher penalty than Charterers).

The 1912 Act provides for the safe navigation of a ship. The 2011 Act creates new offences for the Master in amending the 1912 Act. The first new offence states that the Master must not operate the ship in a manner which causes pollution or damage to the marine environment in the coastal sea or Exclusive Economic Zone (EEZ). Under the second offence, the Master must ensure that the ship is operated in a manner which does not cause pollution or damage to the marine environment in the coastal sea or EEZ. The Master is punishable by both criminal and civil penalties for violation of the law. In criminal proceedings, the Master's liability is based on recklessness or negligence. On the other hand, in civil proceedings, the Master is strictly liable. The criminal penalty is 600 penalty units (AU$66,000, approx.US$ 70,000) and the civil penalty is 6,000 penalty units (AU$660,000, approx. US$ 700,000) at a maximum.

Furthermore, the 2011 Act creates a new strict liability criminal offence for a Master who fails to report the presence of a ship in a sensitive area like the Great Barrier Reef. The penalty for violation is 240 penalty units (AU$26,400, approx. US$ 28,000).

As stated above, the 2011Act enhances the liability of the Master and Owners for oil pollution from ships, as well as introducing liability for Charterers for such pollution. If oil pollution occurs in Australia a significant penalty is likely to be imposed on the various ship interests, and a huge amount in clean-up and other costs will be incurred. Members are thus strongly recommended to appreciate this situation and to take appropriate measures for preventing pollution.