An Act relating to the levy imposed in respect of certain ships in Australian ports with oil on board
1 Short title
This Act may be cited as the Protection of the Sea (Shipping Levy Collection) Act 1981.
2 Commencement
This Act shall come into operation on the day on which the Protection of the Sea (Shipping Levy) Act 1981 comes into operation.
3 Repeal
The Pollution of the Sea by Oil (Shipping Levy Collection) Act 1972 and the Pollution of the Sea by Oil (Shipping Levy Collection) Amendment Act 1979 are repealed.
4 Interpretation
(1) In this Act, unless the contrary intention appears:
Australian port means a place appointed, proclaimed or prescribed as a port under the Customs Act 1901, or under a law of a State or the Northern Territory.
authorised person means a person appointed under section 4B.
Collector means:
(a) a Collector within the meaning of the Customs Act 1901; or
(b) an authorised person.
foreign‑going ship means a ship that is engaged in making overseas voyages.
levy means levy imposed by the Levy Act.
Levy Act means the Protection of the Sea (Shipping Levy) Act 1981.
master, in relation to a ship, means the person having command or charge of the ship.
oil means any hydrocarbon oil or hydrocarbon liquid fuel, including, but without limiting the generality of the foregoing, crude oil, fuel oil, diesel oil, lubricating oil, heating oil, petrol, aviation fuel and kerosene.
oil in bulk means oil in bunkers or tanks, or in bunkers and tanks.
overseas voyage: a ship’s voyage is an overseas voyage if in the course of the voyage the ship is present (except because of stress of weather, saving life at sea or other unavoidable cause) in waters outside the outer limits of the exclusive economic zone of Australia. However, the voyage is not an overseas voyage if:
(a) the voyage commences from a port in Queensland and ends at the same port or another port in Queensland; and
(b) as an incidental part of its voyage, the ship is present in waters that are outside the outer limits of the exclusive economic zone of Australia but within the Protected Zone; and
(c) the ship is not otherwise present in waters that are outside the outer limits of the exclusive economic zone of Australia.
Protected Zone means the zone that is:
(a) established under Article 10 of the Treaty between Australia and the Independent State of Papua New Guinea concerning Sovereignty and Maritime Boundaries in the area between the two Countries, including the area known as Torres Strait, and Related Matters, done at Sydney on 18 December 1978, as amended and in force for Australia from time to time; and
(b) the area bounded by the line described in Annex 9 to that Treaty.
Note: The text of the Treaty is set out in Australian Treaty Series 1985 No. 4 ([1985] ATS 4). In 2012, the text of a Treaty in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
quarter means a period of 3 months commencing on 1 January, 1 April, 1 July or 1 October in any year.
ship means any kind of vessel used in navigation by water, however propelled or moved, and includes the following:
(a) a barge, lighter or other floating craft;
(b) an air‑cushion vehicle, or other similar craft, used wholly or primarily in navigation by water.
tonnage, in relation to a ship, means the net tonnage of the ship.
Tonnage Measurement Convention means the International Convention on Tonnage Measurement of Ships, done at London on 23 June 1969, as amended and in force for Australia from time to time.
Note: The text of the Convention is set out in Australian Treaty Series 1982 No. 15 ([1982] ATS 15). In 2012, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
(2) Where, at any time, the net tonnage applicable to a ship has been determined otherwise than in accordance with the Tonnage Measurement Convention, then, in the application of this Act to the ship at that time, a reference in this Act to the tonnage of a ship shall be taken to be a reference to the net tonnage of the ship expressed in tons.
4A Application of the Criminal Code
Chapter 2 of the Criminal Code applies to all offences created by this Act.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
4B Appointment of authorised person
(1) The Minister may, in writing, appoint a person to be an authorised person for the purposes of this Act.
(2) The Minister may, in writing, delegate the power of appointment under subsection (1) to an officer of the Department.
5 Exemption in respect of ship in an Australian port by reason of an emergency etc.
Levy is not payable in respect of a ship for a quarter if, at no time during the quarter, was the ship in an Australian port except for the purpose, in the course of a voyage:
(a) of taking on board water, provisions or fuel to be used by the ship for completing the voyage;
(b) of engaging or discharging a member of the crew;
(c) of disembarking a passenger or a member of the crew for urgent medical treatment; or
(d) of sheltering or undergoing repairs.
6 Exempt periods in relation to foreign‑going ships
(1) In the application of this Act and the Levy Act in relation to a foreign‑going ship in respect of a quarter, regard shall not be had to a time when the ship was in an Australian port during the period (if any) that, in accordance with subsection (2), is the exempt period in relation to the ship for the quarter.
(2) Where levy is payable in respect of a foreign‑going ship for a quarter, the exempt period in relation to the ship for the next succeeding quarter is so much of that succeeding quarter as occurs before the expiration of a period of 3 months from the earliest time during the first‑mentioned quarter when the ship was in an Australian port, other than a time by reference to which levy was not payable in respect of the ship for that quarter.
7 Time for payment of levy
Levy in respect of a ship for a quarter becomes payable upon the expiration of the quarter.
8 Payments on account of levy
(1) Subject to subsection (5), there is payable on the first day of a quarter, on account of levy that may become payable for that quarter in respect of a ship, being a ship to which the Levy Act applies other than a foreign‑going ship, an amount equal to the amount of levy that may become so payable.
(3) Where:
(a) a foreign‑going ship, being a ship to which the Levy Act applies, is in an Australian port at any time during a quarter; and
(b) an amount has not previously become payable under this section on account of levy that may become payable in respect of the ship for that quarter;
a Collector may, by written notice given to the master of the ship, require an amount to be paid on account of levy that may become so payable and, subject to subsection (5), there is payable, within such period as is specified in the notice, on account of levy that may become so payable, an amount equal to the amount of levy that may become so payable.
(4) Where an amount is paid to the Commonwealth under this section on account of levy that may become payable in respect of a ship for a quarter, the amount so paid:
(a) shall, if levy becomes payable in respect of the ship for the quarter, be deemed to be payment of the levy; or
(b) shall, if levy does not become so payable, be repaid to the master or owner of the ship.
(5) An amount is not payable under this section on account of levy in respect of a ship for a quarter if the owner or master of the ship satisfies a Collector that levy is not, and is not likely to become, payable in respect of the ship for that quarter.
9 Persons liable to pay levy and amounts on account of levy
The owner and master of a ship are jointly and severally liable to pay levy that is payable in respect of the ship or an amount that, under section 8, is payable on account of levy that may become payable in respect of the ship.
10 Recovery of levy and amounts on account of levy
(1) Levy that has become payable, or an amount that, under section 8, is payable on account of levy, is a debt due to the Commonwealth by the person or persons by whom the levy or the amount is payable.
(2) In proceedings to recover levy in respect of a ship for a quarter, it shall be presumed, unless the contrary is established by the defendant:
(a) that, at some time when the ship was in an Australian port during the quarter, there was on board the ship a quantity of oil in bulk weighing not less than 10 tonnes; and
(b) that, at no time during the quarter, was the ship in an Australian port, in the course of a voyage, only for a purpose specified in section 5.
11 Recovery of unpaid levy by distress
(1) Where levy payable in respect of a ship has not been paid, a Collector may, without prejudice to any other remedy for the recovery of the levy, enter upon the ship and distrain goods or equipment belonging to the ship, and detain them until the levy is paid.
(2) If payment of the levy is not made before the expiration of the period of 3 days after the distress, the Collector may, at any time while the levy remains unpaid, sell by public auction the goods or equipment distrained and, out of the proceeds of the sale, may, to the extent that the amount of those proceeds allows, recover the levy and all reasonable expenses incurred by him under this section.
(3) For the purposes of a sale under subsection (2), the Commonwealth shall be deemed to be the absolute owner of the goods or equipment the subject of the sale.
(4) Where, after deducting from the proceeds of the sale the amount of the levy and the expenses of the Collector, a surplus remains, the Collector shall, on demand, pay that surplus to the owner or master of the ship.
(5) A reference in this section to levy payable in respect of a ship shall be read as including a reference to an amount that, under section 8, is payable on account of levy that may become payable in respect of the ship.
12 Detention of ship for unpaid levy
(1) A ship in respect of which levy is payable may be detained by a Collector until the levy is paid.
(2) If a ship that has been detained by a Collector under subsection (1) goes to sea without having been released by the Collector, the master of the ship commits an offence punishable, upon conviction, by a fine not exceeding 5 penalty units.
(2A) An offence under subsection (2) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) A reference in this section to levy payable in respect of a ship shall be read as including a reference to an amount that, under section 8, is payable on account of levy that may become payable in respect of the ship.
(4) While a ship is detained under subsection (1), a person does not have the power of seizure provided for by section 123 of the Personal Property Securities Act 2009 in relation to the ship.
13 Regulations
The Governor‑General may make regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to this Act, and, in particular, prescribing penalties not exceeding $200 for offences against the regulations.
