1. This Act may be cited as the Transport Legislation Amendment Act 1991.

Commencement

3. A person who:

retains, in respect of that office, such rights (if any) in relation to leave of absence for recreation as had accrued to the person immediately before that commencement.

6. Section 21 of the Principal Act is amended:

7. In this Part, “Principal Act” means the Australian National Railways Commission Act 1983².

8. Section 45 of the Principal Act is amended:

9. Section 48 of the Principal Act is amended by omitting from subsection (1) “1970” and substituting “1982”.

10. In this Part, “Principal Act” means the Civil Aviation Act 1988³.

11. Section 3 of the Principal Act is amended by inserting in subsection (1) the following definitions:

“ ‘inspection powers’, in relation to prescribed premises, means the following powers:

‘investigator’ means an investigator appointed under section 32aa;

‘occupier’, in relation to prescribed premises, being an aircraft, vessel or vehicle, means the person apparently in charge of the aircraft, vessel or vehicle;

‘premises’ means:

(a) an area of land or any other place, whether or not it is enclosed or built on; or

(b) a structure, building, aircraft, vessel or vehicle;

and includes a part of any such premises;

‘prescribed premises’ means premises connected with, or used for the purposes of, activities related to civil aviation, or where any records relating to such activities are kept;”.

12. After Part III of the Principal Act the following Part is inserted:

“ PART II I a —INVESTIGATION POWERS

Appointment of investigators

“32aa. The Authority may, in writing, appoint an officer to be an investigator for the purposes of this Part.

Identity cards

“32ab. (1) The Authority must cause each investigator to be issued with an identity card in a form approved by the Authority and bearing a recent photograph of the investigator.

“(2) A person who stops being an investigator must, as soon as practicable, return his or her identity card to the Authority.

“(3) A person who, without reasonable excuse, contravenes subsection (2) is guilty of an offence punishable on conviction by a fine not exceeding $100.

Monitoring powers —exercised with consent

“32ac. (1) For the purpose of finding out whether the relevant legislation is being complied with, an investigator may, with the consent of, and after producing the investigator’s identity card for inspection by, the occupier of prescribed premises, enter, and exercise inspection powers on, the premises.

“(2) In this section:

‘relevant legislation’ means this Act, the regulations and the Civil Aviation Orders.

Monitoring warrants

“32ad. (1) An investigator may apply to a magistrate for a warrant under this section in relation to particular prescribed premises.

“(2) Subject to subsection (3), the magistrate may issue the warrant if satisfied, by information on oath, that it is reasonably necessary that the investigator should have access to the premises for the purpose of finding out whether the relevant legislation is being complied with.

“(3) The magistrate must not issue the warrant unless the investigator or someone else has given the magistrate, either orally or by affidavit, any further information the magistrate may require about the grounds on which the issue of the warrant is being sought.

“(4) The warrant must:

“(5) In this section:

‘relevant legislation’ has the same meaning as in section 32ac.

Offence powers —exercised with consent

“32ae. (1) Where an investigator has reasonable grounds for suspecting that there is on or in any premises a particular thing that may afford evidence of the commission of an offence against this Act, or the regulations, the investigator may, with the consent of, and after producing the investigator’s identity card for inspection by, the occupier of the premises:

“(2) An investigator who has entered premises under subsection (1) must leave them if asked to do so by their occupier.

Offence related warrants

“32af. (1) An investigator may apply to a magistrate for a warrant under this section in relation to particular premises.

“(2) Subject to subsection (3), the magistrate may issue the warrant if satisfied, by information on oath, that there are reasonable grounds for suspecting that there is, or there may be within the next 72 hours,

on the premises a particular thing that may afford evidence of the commission of an offence against this Act or the regulations.

“(3) The magistrate must not issue the warrant unless the investigator or someone else has given the magistrate, either orally or by affidavit, any further information the magistrate may require about the grounds on which the issue of the warrant is being sought.

“(4) The warrant must:

(a) authorise an investigator named in the warrant, with such assistance and by such force as is necessary and reasonable:

(i) to enter the premises; and

(ii) to search the premises for the thing; and

(iii) if the thing is found—to seize it; and

Warrants may be granted by telephone

“32ag. (1) Where, because of circumstances of urgency, an investigator thinks it necessary to do so, the investigator may apply for a warrant under section 32af by telephone, in accordance with this section.

“(2) Before making such an application, an investigator must prepare an information of the kind mentioned in subsection 32af (2) that sets out the grounds on which the issue of the warrant is being sought, but may, if it is necessary to do so, make the application before the information has been sworn.

“(3) Where a magistrate to whom an application under this section is made is satisfied:

that there are reasonable grounds for issuing the warrant, the magistrate must complete and sign a warrant that is the same as the warrant that the magistrate would issue under section 32AF if the application had been made under that section.

“(4) Where a magistrate signs a warrant under subsection (3):

(a) the magistrate must inform the investigator of the terms of the warrant, the date and time when it was signed, and the day on

which it ceases to have effect, and record on the warrant the reasons for issuing it; and

(b) the investigator must complete a form of warrant in the terms given to the investigator by the magistrate and write on it the magistrate’s name and the date and time when the warrant was signed.

“(5) Where an investigator completes a form of warrant, the investigator must, not later than the day after:

whichever happens first, send the magistrate who signed the warrant the form of warrant completed by the investigator and the information duly sworn in connection with the warrant.

“(6) Upon receipt of the documents mentioned in subsection (5), the magistrate must attach to them the warrant signed by the magistrate and deal with the documents in the same way that the magistrate would have dealt with the information if the application for the warrant had been made under section 32af.

“(7) The form of warrant completed by an investigator under subsection (4) is, if it is in accordance with the terms of the warrant signed by the magistrate, authority for any entry, search, seizure or other exercise of a power that the warrant so signed authorised.

“(8) Where, in any proceedings, the court must be satisfied that an entry, search, seizure, or other exercise of power, was authorised under this section, and the warrant signed by a magistrate under this section authorising the entry, search, seizure, or other exercise of power, is not produced in evidence, the court must assume, unless the contrary is proved, that the entry, search, seizure, or other exercise of power, was not authorised by such a warrant.

Discovery of evidence

“32ah. (1) Where an investigator who enters premises under ‘evidence’) which the investigator entered the premises to find:section 32ae or under a warrant under section 32af or 32ag finds the thing (in this subsection called

must allow it to be inspected at any reasonable time by anyone who would be entitled to inspect it if it were not in the investigator’s possession.

“(2) If, in the course of searching premises entered under section 32ae or under a warrant under section 32af or 32ag, the investigator:

(a) finds a thing that he or she believes on reasonable grounds to be:

(i) a thing (other than the evidence mentioned in subsection (1)) that will afford evidence of the commission of the offence mentioned in that subsection; or

(ii) a thing that will afford evidence of the commission of another offence against this Act or the regulations; and

(b) the investigator believes, on reasonable grounds, that it is necessary to seize the thing to prevent its concealment, loss or destruction;

subsection (1) applies to the thing as if it were the evidence mentioned in that subsection.

“(3) The Authority may, in writing, authorise the release of any thing seized under subsection (2) to its owner, or to the person from whom it was seized, either unconditionally or subject to such conditions as the Authority thinks fit.

Power to require persons to answer questions and produce documents

“32aj. (1) An investigator who is on or in premises that he or she has entered under a warrant under this Part may require anyone on or in the premises to:

“(2) A person must not, without reasonable excuse, fail to comply with a requirement under subsection (1).

“(3) It is not a reasonable excuse for a person to refuse or fail to answer a question or produce a book, record or document on the ground that to do so would tend to incriminate the person, but the answer to any question, or any book, record or document produced, or any information or thing obtained as a direct or indirect consequence of answering the question or producing the book, record or document is not admissible in evidence against the person in any criminal proceedings, other than proceedings for an offence against subsection (2).

Powers in relation to aircraft etc.

“32ak. (1) An investigator may, for the purpose of performing the functions or exercising the powers of an investigator under this Part in relation to an aircraft, vessel or vehicle, require the person apparently in control of the aircraft, vessel or vehicle to do either or both of the following:

“(2) A person must not, without reasonable excuse, fail to comply with a requirement under subsection (1).

13. Section 37 of the Principal Act is repealed and the following section is substituted:

Leave of absence

“37. (1) Subject to Public Service Act 1922, a Chairperson appointed as a full-time member has such recreation leave entitlements as are determined by the Remuneration Tribunal.section 87e of the

“(2) The Minister may grant a Chairperson referred to in subsection (1) leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Minister determine, in writing.

“(3) The Minister may grant leave to a Chairperson appointed as part-time member to be absent from a meeting or meetings of the Board.

“(4) The Chairperson may grant leave to another member to be absent from a meeting or meetings of the Board.”.

14. Section 42 of the Principal Act is amended:

Regulations

16. If, before the commencement of this section, an asset was transferred from the Commonwealth to the Civil Aviation Authority under section 49 or 50 of the Principal Act or under section 118 of the Lands Acquisition Act 1989, the day of transfer is, for the purposes of section 51 of the Principal Act, taken to be 1 July 1988.

17. In this Part, “Principal Act” means the Federal Airports Corporation Act 1986⁴.

18. Section 3 of the Principal Act is amended:

(a) by omitting from subsection (1) the definition of “financial year”;

(b) by inserting in subsection (1) the following definition:

“ ‘airport security’, in relation to Federal airports, means a combination of measures and human and material resources intended to safeguard the security of aircraft, persons and property at those airports;”;

(c) by adding at the end the following subsection:

“(5) For the purposes of this Act, each of the following periods is taken to be a financial year:

19. Section 8 of the Principal Act is amended by inserting after paragraph (1) (b) the following paragraph:

“(ba) providing, or arranging for the provision of, airport security at, or in relation to, Federal airports;”.

20. Section 17 of the Principal Act is amended by omitting subsection (1) and substituting the following subsections:

“(1) Subject to Public Service Act 1922, a Chairperson appointed as a full-time member has such recreation leave entitlements as are determined by the Remuneration Tribunal.section 87e of the

“(1a) The Minister may grant a Chairperson referred to in subsection (1) leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Minister determines in writing.

“(1b) The Minister may grant leave to a Chairperson appointed as a part-time member to be absent from a meeting or meetings of the Board.”.

21. Section 19 of the Principal Act is amended:

22. Section 65 of the Principal Act is amended by omitting subsection (1) and substituting the following subsection:

“(1) The Corporation must, as soon as practicable after the last day in each financial year that ends after the commencement of this subsection, prepare and give to the Minister a report on its operations during that financial year, together with financial statements for that financial year in such form as the Minister for Finance approves.”.

23. In this Part, “Principal Act” means the Protection of the Sea (Prevention of Pollution from Ships) Act 1983⁵.

24. Section 3 of the Principal Act is amended:

“(ab) the amendments to the Annex of the Protocol adopted on 1 December 1987 (a copy of the English text of which is set out in Schedule 6); and

(ac) the amendments to the Annex of the Protocol adopted on 17 March 1989 (a copy of the English text of which is set out in Schedule 7); and

(ad) the amendments to the Annex of the Protocol adopted on 17 October 1989 (a copy of the English text of which is set out in Schedule 8); and”.

25. After section 29 of the Principal Act the following section is inserted:

Service on master or owner of ship

“29a. (1) A document to be served on the master or owner of a ship in respect of an offence against this Act may be served on the agent of the ship instead.

“(2) A document served on the agent of a ship under subsection (1) is taken to have been served on the master or owner of the ship.”.

26. The Principal Act is amended by adding at the end the Schedules set out in Schedule 1 to this Act.

27. The Principal Act is further amended as set out in Schedule 2.

SCHEDULE 1 Section 26

NEW SCHEDULES 6, 7 AND 8 TO BE ADDED TO THE PROTECTION OF THE SEA (PREVENTION OF POLLUTION FROM SHIPS) ACT 1983

SCHEDULE 6 Section 3

ADOPTION OF AMENDMENTS TO THE ANNEX OF THE PROTOCOL OF 1978 RELATING TO THE INTERNATIONAL CONVENTION FOR THE PREVENTION OF POLLUTION FROM SHIPS, 1973

adopted on 1 December 1987

(Designation of the Gulf of Aden as a Special Area)

THE MARINE ENVIRONMENT PROTECTION COMMITTEE,

NOTING the functions which article 16 of the International Convention for the Prevention of Pollution from Ships, 1973 (hereinafter referred to as the “1973 Convention”) and resolution A.297 (VIII) confer on the Marine Environment Protection Committee for the consideration and adoption of amendments to the 1973 Convention,

NOTING FURTHER 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”),

HAVING CONSIDERED at its twenty-fifth session amendments to the 1978 Protocol proposed and circulated in accordance with article 16 (2) (a) of the 1973 Convention,

SCHEDULE 1—continued

ANNEX

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

Regulation 10

Methods for the Prevention of Oil Pollution from Ships while operating in Special Areas

The existing text of paragraph (1) is replaced by the following: “(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” and the Gulf of Aden area, which are defined as follows:

(f) The Gulf of Aden area means that part of the Gulf of Aden between the Red Sea and the Arabian Sea bounded to the west

SCHEDULE 1—continued

by the rhumb line between Ras si Ane (12°28.5′N, 43°19.6′E) and Husn Murad (12°40.4′N, 43°30.2′E) and to the east by the rhumb line between Ras Asir (11°50′N, 51°16.9′E) and Ras Fartak (15°35′N, 52°13.8′E).”

The existing text of paragraph 7 (b) is replaced by the following:

“(b) Red Sea area, Gulfs area and Gulf of Aden area:”.

______________

SCHEDULE 7 Section 3

ADOPTION OF AMENDMENTS TO THE ANNEX OF THE PROTOCOL OF 1978 RELATING TO THE INTERNATIONAL CONVENTION FOR THE PREVENTION OF POLLUTION FROM SHIPS, 1973

(Appendices II and III of Annex II of MARPOL 73/78)

adopted on 17 March 1989

THE MARINE ENVIRONMENT PROTECTION COMMITTEE,

RECALLING article 38 (a) of the Convention on the International Maritime Organization concerning the function of the Committee conferred upon it by International Conventions for the Prevention and Control of Marine Pollution,

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 together specify the amendment procedure of the 1978 Protocol and confers 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),

BEING DESIROUS of keeping appendices II and III of Annex II of MARPOL 73/78 up-to-date and compatible with the International Code for the Construction and Equipment of Ships Carrying Dangerous Chemicals in Bulk (IBC Code) and the Code for the Construction and Equipment of Ships Carrying Dangerous Chemicals in Bulk (BCH Code),

NOTING FURTHER resolution MEPC.34 (27) by which the Committee adopted amendments to the IBC Code,

RECOGNIZING the need to bring the corresponding amendments to appendices II and III of Annex II of MARPOL 73/78 into force on the date on which the amendments to the IBC Code enter into force,

SCHEDULE 1—continued

HAVING CONSIDERED, at its twenty-seventh session, the amendments to appendices II and III of Annex II of MARPOL 73/78 proposed by the Sub-Committee on Bulk Chemicals at its eighteenth session and circulated in accordance with article 16 (2) (a) of the 1973 Convention,

ANNEX

AMENDMENTS TO APPENDICES II AND III OF ANNEX II OF MARPOL 73/78

The lists contained in Appendices II and III of Annex II of MARPOL 73/78 are replaced by the following:

APPENDIX II

SCHEDULE 1—continued

Pollution Category in brackets indicates that the substance has been provisionally included in this list and that further data are necessary in order to complete the evaluation of its environmental hazards, particularly in relation to living resources. Until the hazard evaluation is completed the Pollution Category assigned shall be used.

* UN number refers to 10-35%.

SCHEDULE 1—continued

**UN number 1114 applies to Benzene.

SCHEDULE 1—continued

SCHEDULE 1—continued

SCHEDULE 1—continued

SCHEDULE 1—continued

SCHEDULE 1—continued

SCHEDULE 1—continued

SCHEDULE 1—continued

SCHEDULE 1—continued

* UN number 2574 applies to Tricresyl phosphate containing more than 3% ortho-isomer.

SCHEDULE 1—continued

SCHEDULE 1—continued

APPENDIX III

SCHEDULE 1—continued

SCHEDULE 1—continued

SCHEDULE 8 Section 3

ADOPTION OF AMENDMENTS TO THE ANNEX OF THE PROTOCOL OF 1978 RELATING TO THE INTERNATIONAL CONVENTION FOR THE PREVENTION OF POLLUTION FROM SHIPS, 1973

(Amendments to Annex V of MARPOL 73/78) adopted on 17 October 1989

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 twenty-eighth session, amendments to the 1978 Protocol proposed and circulated in accordance with article 16 (2) (a) of the 1973 Convention,

1. 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;

2. DETERMINES, in accordance with article 16 (2) (f) (iii) of the 1973 Convention, that the amendments shall be deemed to have been accepted on 17 August 1990, 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;

SCHEDULE 1—continued

5. 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

TEXT OF AMENDMENTS TO REGULATIONS OF ANNEX V OF MARPOL 73/78

(Regulation 5—Designation of the North Sea as a Special Area and Regulation 6—Exemptions)

Regulation 5—Discharge of Garbage within Special Areas

The introductory sentence was amended to read as follows:

“(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’ and the North Sea area which are defined as follows:

New subparagraph (f) was added as follows:

“(f) The North Sea area means the North Sea proper, including seas therein the boundary between:

(i) the North Sea southwards of latitude 62° N and eastwards of longitude 4° W;

(ii) the Skagerrak, the southern limit of which is determined east of the Skaw by latitude 57°44.8′N; and

(iii) the English Channel and its approaches eastwards of longitude 5°W″ and northward of latitude 48°30′N.

Regulation 6—Exemptions

Paragraph (c) was amended to read as follows:

“(c) the accidental loss of synthetic fishing nets, provided that all reasonable precautions have been taken to prevent such loss”.

SCHEDULE 2 Section 27

FURTHER AMENDMENTS OF THE PROTECTION OF THE SEA (PREVENTION OF POLLUTION FROM SHIPS) ACT 1983

INCREASE IN PENALTIES

Subsection 9 (1):

Omit everything from and including “exceeding:”, substitute “exceeding $200,000.”.

Subsection 10 (1):

Omit everything from and including “exceeding:”, substitute “exceeding $200,000.”.

SCHEDULE 2—continued

Subsection 11 (1) (Penalty):

Omit “$5,000”, substitute “$50,000”.

Subsection 11 (3):

Omit everything from and including “exceeding:”, substitute “exceeding $50,000.”.

Subsection 11 (6) (Penalty):

Omit “$5,000”, substitute “$20,000”.

Subsection 11 (7) (Penalty):

Omit “$5,000”, substitute “$20,000”.

Subsection 11 (8) (Penalty):

Omit “$5,000”, substitute “$20,000”.

Subsection 12 (4):

Omit everything from and including “exceeding:”, substitute “exceeding $20,000.”.

Subsection 12 (5) (Penalty):

Omit “$5,000”, substitute “$20,000”.

Subsection 12 (7) (Penalty):

Omit “$5,000”, substitute “$20,000”.

Section 13 (Penalty):

Omit “$10,000”, substitute “$20,000”.

Subsection 14 (2):

Omit everything from and including “exceeding:”, substitute “exceeding $20,000.”.

Subsection 14 (4):

Omit everything from and including “exceeding:”, substitute “exceeding $20,000.”.

Section 20:

Omit everything from and including “exceeding:”, substitute “exceeding $20,000.”.

Subsection 21 (1):

Omit everything from and including “exceeding:”, substitute “exceeding $200,000.”.

SCHEDULE 2—continued

Subsection 22 (1) (Penalty):

Omit “$5,000”, substitute “$50,000”.

Subsection 22 (3):

Omit everything from and including “exceeding:”, substitute “exceeding $50,000.”.

Subsection 22 (6) (Penalty):

Omit “$5,000”, substitute “$20,000”.

Subsection 22 (7) (Penalty):

Omit “$5,000”, substitute “$20,000”.

Subsection 22 (8) (Penalty):

Omit “$5,000”, substitute “$20,000”.

Subsection 23 (4):

Omit everything from and including “exceeding:”, substitute “exceeding $20,000.”.

Subsection 23 (5) (Penalty):

Omit “$5,000”, substitute “$20,000”.

Subsection 23 (8) (Penalty):

Omit “$5,000”, substitute “$20,000”.

Section 24 (Penalty):

Omit “$10,000”, substitute “$20,000”.

Subsection 25 (2):

Omit everything from and including “exceeding:”, substitute “exceeding $20,000.”.

Subsection 25 (4):

Omit everything from and including “exceeding:”, substitute “exceeding $20,000.”.

Subsection 26 b (3) (Penalty):

Omit “$5,000”, substitute “$50,000”.

Subsection 26 b (5):

Omit everything from and including “exceeding:”, substitute “exceeding $50,000.”.

Subsection 26b (8) (Penalty):

Omit “$5,000”, substitute “$20,000”.

SCHEDULE 2—continued

Subsection 26 b (9) (Penalty):

Omit “$5,000”, substitute “$20,000”.

Subsection 26 b (10) (Penalty):

Omit “$5,000”, substitute “$20,000”.

Subsection 26 d (1):

Omit everything from and including “exceeding:”, substitute “exceeding $200,000.”.

Subsection 26f (1):

Omit everything from and including “exceeding:”, substitute “exceeding $200,000.”.

Subsection 27 (2):

Omit the subsection, substitute:

“(2) A person must not, without reasonable excuse, refuse or fail to comply with a requirement made of the person by an inspector under subsection (1).

“(2a) A person must not, in answering a question that the person is required to answer under subsection (1), make a statement that is false or misleading in a material particular.

Paragraph 28 (3) (a):

Omit “$2,000”, substitute “$8,000”.

Paragraph 28 (3) (b):

Omit “$10,000”, substitute “$40,000”.

Paragraph 28 (4) (a):

Omit “$5,000”, substitute “$20,000”.

Paragraph 28 (4) (b):

Omit “$25,000”, substitute “$100,000”.

NOTES

NOTES—continued

[Minister’s second reading speech made in—

House of Representatives on 29 May 1991

Senate on 5 June 1991]