Bills Digest no. 100 2009–10
Protection of the Sea Legislation
Amendment Bill 2010
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Contact officer & copyright details
Passage history
Protection of the Sea Legislation
Amendment Bill 2010
Date introduced: 3 February 2010
House: House of Representatives
Portfolio: Infrastructure, Transport, Regional Development and Local
Government
Commencement: The formal provisions commence on Royal Assent. Schedule 1 commences on the day after Royal Assent or 1 July 2010 (whichever occurs last),
and Schedule 2 commences the day after Royal Assent.
Links: The relevant links to the Bill, Explanatory Memorandum
and second reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/. When Bills have been passed they can
be found at ComLaw, which is at http://www.comlaw.gov.au/.
The Bill amends the Protection of the
Sea (Prevention of Pollution from Ships) Act 1983 (the Prevention of
Pollution from Ships Act) to give domestic effect to recent amendments to Annex VI
of the International Convention for the Prevention of Pollution from Ships,
1973, as modified by the Protocol of 1978 relating thereto (MARPOL).[1]
The Bill also amends the Protection of the Sea (Civil
Liability for Bunker Oil Pollution Damage) Act 2008 (the Bunker Oil Act) to
provide protection for persons or organisations who act reasonably and in good
faith when assisting in a clean-up following a spill of oil from a ship.
MARPOL is one of a number of conventions adopted by the
International Maritime Organization (IMO) to reduce pollution by ships. It
entered into force internationally on 2 October 1983[2] and in Australia on 14 January 1988.[3]
Australia’s obligations under the Convention were given domestic effect (on
behalf of the Commonwealth of Australia) by amendments to the Prevention of
Pollution from Ships Act and the Navigation Act 1912 (the Navigation
Act).
MARPOL has six technical annexes which deal with the
following aspects of maritime pollution:
- Annex I: Prevention of pollution by oil
- Annex II: Control of pollution by noxious liquid substances
- Annex III: Prevention of pollution by harmful substances in
packaged form
- Annex IV: Prevention of pollution by sewage from ships
- Annex V: Prevention of pollution by garbage from ships
- Annex VI: Prevention of air pollution from ships
While about 150 countries have adopted some of the annexes,
Australia has adopted all six.[4]
As previously mentioned, Annex VI deals with air pollution from
ships. It was originally adopted by the IMO in September 1997.[5] While it entered into force internationally on 19 May 2005,[6] Annex VI did not enter into force in Australia until 10 November 2007.[7]
The IMO explains that the purposes of Annex VI are to:
- set limits on sulphur oxide (SOx) and nitrogen oxide (NOx)
emissions from ship exhausts and prohibit deliberate emissions of ozone
depleting substances
- impose a global cap of 4.5 per cent m/m (mass) on the sulphur
content of fuel oil
- call on IMO to monitor the worldwide average sulphur content of
fuel once the Protocol comes into force
- allow special ‘SOx Emission Control Areas’ to be established with
more stringent control on sulphur emissions in those parts of the seas which
are close to heavily populated areas[8]
- prohibit deliberate emissions of ozone depleting substances,
which include halons and chlorofluorocarbons (CFCs)[9]
- set limits on emissions of nitrogen oxides (NOx) from diesel engines,
and[10]
- prohibit the incineration on board ship of certain products, such
as contaminated packaging materials and polychlorinated biphenyls (PCBs).[11]
In October 2008, Annex VI was revised to reduce harmful
emissions from ships even further. The main changes can be summarised as
follows:
- the cap of sulphur oxide (SOx) emissions from ships will
initially be reduced from 4.5 per cent to 3.5 per cent (from
1 January 2012) and subject to a feasibility review to be completed no
later than 2018, the cap will be further reduced to 0.5 per cent (from 1 January
2020)
- the limits applicable in Sulphur Emission Control Areas (SECAs)
will be initially reduced from 1.5 per cent to 1 per cent (from 1 July 2010)
and then further reduced to 0.1 per cent (from 1 January 2015)
- there will be progressive reductions in nitrogen oxide (NOx)
emissions from marine engines, particularly those ‘Tier III’ engines operating
in Emission Control Areas[12]
- emission control areas can be designated for SOx and particulate matter,[13] or NOx (or all three types of emissions from ships), subject to a proposal from
a state party to Annex VI, which would be considered for adoption by the IMO ‘if
supported by a demonstrated need to prevent, reduce and control one or all
three of those emissions from ships’, particularly for health reasons.[14]
These changes enter into force internationally on 1 July
2010.[15] Schedule 1 to the Bill gives domestic force to the amendments, with
effect from either Royal Assent or 1 July 2010 (whichever occurs last).[16]
The Bunker Oil Act gives domestic effect to Australia’s
obligations as a party to the International Convention on Civil Liability for
Bunker Oil Pollution Damage, 2001 (the Bunker Oil Convention). That Convention
was adopted by the IMO on 23 March 2001 and entered into force internationally
on 21 November 2008.[17]
The Bunker Oil Convention entered into force in Australia on 16 June 2009, ‘being
three months after the date on which Australia’s instrument of ratification for
the Bunker Oil Convention was deposited with the Secretary-General of the
International Maritime Organization’.[18]
The purpose of the Bunker Oil Convention is ‘to ensure that
adequate, prompt, and effective compensation is available to persons who suffer
damage caused by spills of oil, when carried as fuel in ships’ bunkers’.[19]
It applies ‘to damage caused on the territory, including the territorial sea,
and in exclusive economic zones’ of states parties to the Convention.[20]
In summary, the Bunker Oil Act establishes a liability and
compensation scheme where shipowners are strictly liable for pollution damage resulting
from a spill of bunker oil from their ships.[21]
(Prior to the making of the Bunker Oil Act, shipowners were only liable if they
were at fault.) Liability is based on the size of the ship, with ships more
than 1000 gross tonnage being required to take out insurance to cover liability
up to the limits set out in the Convention on Limitation for Maritime Claims.
Insurance certificates will be issued by the Australian Maritime Safety
Authority (AMSA) and will need to be carried by ships as proof of insurance.
Schedule 2 to the Bill amends the liability and
compensation scheme currently set out in the Bunker Oil Act. That scheme
applies to cases of pollution damage resulting from a spill of fuel oil from
ships. The rationale for the amendments in Schedule 2 is set out in the
Minister’s second reading speech:
Another important aspect of this bill is to provide
protection for persons or organisations who assist in the clean-up following a
spill of fuel oil from a ship.
Recent experience demonstrates that even small oil spills can
be very costly. For example, the clean-up and compensation costs following the
spill of about 270 tonnes of fuel oil from the Pacific Adventurer off
the south-east coast of Queensland in March 2009 exceeded A$30 million.
It is therefore essential that persons or organisations not
be deterred from providing assistance because they think they may become liable
if their actions inadvertently lead to increased pollution.[22]
There has been only very limited commentary on the Bill or
its contents. In 2009, Shipping Australia Limited stated that implementing the
amendments to Annex VI ‘will present a challenge to the oil refining industry
to increase its refining capacities to deliver the substantial increase in
demand for distillate fuel’.[23]
However, it acknowledged that this would not become a major issue until 2015
‘when the sulphur content of bunkers used in Emission Control Areas will reduce
to 0.1 per cent’.[24]
This acknowledgment gives support to a statement made by the Minister for
Infrastructure, Transport, Regional Development and Local Government, Anthony
Albanese MP, in his second reading speech for the Bill. The Minister said that
the proposed initial reduction in sulphur fuel content to 3.5 per cent from 1
January 2012 (until 1 January 2015) will have ‘little practical impact’ on
vessel operations in Australia because ‘the average sulphur level in world-wide
fuel oil deliveries and the sulphur levels in fuel refined in Australia
currently fall below the 3.5% cap’.[25]
Shipping Australia Limited also noted concern that ‘the
competitiveness of short sea shipping may be affected due to increase in costs,
which may result in a modal shift from shipping to road and rail, which will
cause an increase in CO2 emissions’.[26]
In this regard, it should be noted that elsewhere in the article, Shipping
Australia quoted a finding of the Stern Report to the effect that while
shipping currently carries 90 per cent of the world’s trade, ‘it contributes
only 1.4 per cent of mankind’s CO2 emissions’.[27]
On 4 February 2010, the Selection of Bills Committee
resolved to recommend that the Bill not be referred to a committee.[28]
The Bill has no financial impact.[29]
All of the items in Schedule 1 amend the Prevention
of Pollution from Ships Act, particularly Part IIID, which deals with
prevention of air pollution. Therefore all references to section numbers
appearing immediately below are to existing or proposed sections of that Act.
Items 1 and 2 of Schedule 1 amend
subsection 26FEF(1) to repeal the definition of ‘fuel oil’ and insert
the definition of ‘gas fuel’. The term ‘gas fuel’ is defined to
include liquefied natural gas, compressed natural gas and liquefied petroleum
gas.
Items 3–9 amend section 26FEG to give effect to the
amendments to Annex VI to MARPOL mentioned above. Section 26FEG currently sets
out two offences that are committed if a person uses fuel oil with a sulphur
content of more than 4.5 per cent m/m.
The first offence (existing section 26FEG(1)) carries
a maximum penalty of 2000 penalty units (that is, $220 000 for a natural
person).[30]
It is committed by a person if:
- the person engages in conduct
- the conduct results in fuel oil with a sulphur content of more
than 4.5 per cent being used on board a ship
- the person is reckless or negligent as to causing that result,
and
- the fuel oil is used while the ship is in a particular area.[31]
The second offence (existing subsection 26FEG(2))
carries a maximum penalty of 500 penalty units (that is, $55 000 for a natural
person).[32]
It is committed by the master and the owner of a ship if:
- fuel oil with a sulphur content of more than 4.5 per cent m/m is
used on board the ship, and
- the fuel oil is used while the ship is in a particular area.[33]
Items 3 and 6 replace the current references
in section 26FEG to fuel oil having a sulphur content of more than ‘4.5 per
cent m/m’ with a more generic ‘prescribed limit’.[34] Items 5 and 8 also amend existing section 26FEG by
removing the specific reference to ‘SOx’ emission control areas, thus leaving
only a general reference to ‘emission control areas’ (which may or may not
involve SOx or some other type of emission). The cumulative effect of the
amendments made by items 3, 5, 6 and 8 is that the offences in section 26FEG
will be committed by a master and shipowner if fuel oil with a sulphur content
of more than the prescribed amount is used on board an Australian ship that is
beyond Australia’s exclusive economic zone but not within a general (that is, a
non-SOx-specific) emission control area.
Item 9 inserts proposed subsections 26FEG(5) and (6) setting out the exceptions to each of these offences. The
offence in question does not apply if the person (or master and shipowner):
- took all reasonable steps to obtain fuel oil with a sulphur
content of not more than the prescribed limit, and
- has (in accordance with the regulations) notified a prescribed
officer (and, in the case where the ship’s next port of call is in a foreign
country, the government of that foreign country), that the person ‘has been
unable to obtain fuel oil with a sulphur content of not more than that limit’.
The defendant bears the onus of proving the matters set out
in proposed subsections 26FEG(5) and (6).[35]
Item 22 amends existing subsections 26FEK(1) and (2). Currently, the section provides that where an amendment is made (in
accordance with Annex VI) designating an area as an ‘SOx emission control area’,
then certain provisions in Part IIID do not apply for 12 months
immediately after the amendment concerned enters into force. Item 22 removes the specific reference to ‘SOx’, with the result that certain
provisions in Part IIID will not apply for 12 months after an area is
designated as an ‘emission control area’.
Items 23–34 update some of the terminology used in
existing Division 3 of Part IIID to reflect the 2008 amendments to Annex VI. Division
3 of Part IIID is currently titled ‘Fuel oil quality requirements’, but
following the amendment in item 23, it will be titled ‘Fuel oil
availability and quality requirements’. Items 25, 26, 28, 30 and 32 replace current references in sections 26FEN–26FEP to ‘Regulation 18(1)’ of
Annex VI with a reference to ‘paragraph 3 of Regulation 18’.[36]
Item 27 amends existing subsection 26FEO(1) to restrict the application of the provision to a person who delivers fuel oil
other than gas fuel (see item 2 above). Currently, section 26FEO
contains two offences that are committed if:
(a) a person delivers fuel oil to a ship
(b) the ship has a gross tonnage of 400 or more
(c) the delivery happens while the ship is in a
particular geographic location, and
(d) the
person does not provide to the master of the ship, in accordance with the
regulations:
(i) a
completed bunker delivery note in the approved form for the fuel oil delivered,
and/or
(ii) a
representative sample of the fuel oil that is sealed and signed in accordance
with the regulations.
Each offence carries a maximum penalty of 200 penalty units
(that is, $22 000 for a natural person).[37]
Item 35 inserts proposed section 26FES to
create an offence that is committed if:
- a person delivers gas fuel to a ship
- the ship has a gross tonnage of 400 or more
- the delivery happens while the ship is in a particular geographic
location, and
- the person does not provide to the master of the ship, ‘in
connection with that delivery, documentation specifying the sulphur content for
the gas fuel delivered’.
The documentation will ‘enable the master to be informed
about whether the gas fuel meets the requirements to use fuel with a sulphur
content no more than the prescribed limit’.[38]
The offence is a strict liability offence and carries a maximum penalty of 200 penalty
units (that is, $22 000 for a natural person).[39]
Item 36 inserts proposed Division 4 into Part
IIID to set out provisions relating to the carrying of an ‘ozone depleting
substances record book’ by Australian ships. Proposed section 26FET applies to an Australian ship that:
- has a gross tonnage of 400 or more
- has at least one rechargeable system containing ozone depleting
substances, and
- is engaged on an ‘overseas voyage’.[40]
The ship must carry an ozone depleting substances record
book ‘as required by the regulations’.[41]
The record book must be in accordance with the appropriate prescribed form and
make provision for the necessary signatures.[42]
It is an offence for the master and the owner of ship to
fail to carry the record book.[43]
It is also an offence for the master of the ship:
- to fail to enter details of a prescribed operation or a
prescribed occurrence into the record book, if either of those events is
carried out or occurs,[44] or
- to fail to sign the page of a completed record book entry ‘as
soon as practicable in the circumstances’.[45]
The entry in the record book must be made in English. If
the entry relates to a prescribed operation, the entry must be signed by the
person in charge of the operation.[46]
A person who makes a false or misleading entry in an ozone
depleting substances record book commits an offence which carries a maximum
penalty of 200 penalty units.[47]
The ozone depleting substances record book must be retained
by the master and the owner of a ship for a period of one year after the day on
which the last entry in the book is made.[48]
The ozone depleting substances record book must also be readily available for
inspection by an inspection at all reasonable times during that period.[49]
Schedule 2 amends the Bunker Oil Act. The amendments
are designed to protect persons (or corporations) from civil liability (that
is, being sued for damages) if the persons provide assistance as a result of
fuel oil spills and inadvertently create an increase in pollution damage.[50]
Items 1 and 2 of Schedule 2 amend
section 3 of the Bunker Oil Act, which is the definitions section in that Act. Item 1 inserts a definition for the term ‘constitutional corporation’
(being a corporation to which paragraph 51(xx) of the Australian Constitution
applies). Item 2 inserts a definition for the term ‘shipowner’ (which
is defined to have the same meaning as in the Bunker Oil Convention). There it
is defined in paragraph 3 of Article 1 to mean ‘the owner, including the
registered owner, bareboat charterer, manager and operator of the ship’.[51]
Item 3 inserts proposed section 24A, dealing
with responder immunity. Proposed subsection 24A(1) provides that ‘no
civil action, suit or proceedings lies against a person in relation to anything
done, or omitted to be done, reasonably and in good faith by the person in
relation to preventing or minimising pollution damage’ occurring in Australia,
its external territories and coastal seas or Australia’s exclusive economic
zone.
However, there are two main exceptions to this rule. The
rule does not apply:
- in relation to the ship owner or shipowners concerned (proposed
subsection 24A(2)), and
- in relation to anything done, or omitted to be done:
- with intent to cause damage, or
- recklessly and with knowledge that damage would probably result (proposed
subsection 24A(3)).
In relation to the first exception, the wording of proposed
subsection 24A(2) might benefit from clarification (that is, some rewriting).
It is not entirely clear, for example, whether the shipowner mentioned in this
exception is the owner of the ship which initially caused the pollution damage,
or if it also applies to shipowners who themselves (or their crews) did
anything (or omitted to do anything) reasonably and in good faith to prevent or
minimise pollution damage occurring in Australian waters. Obviously, the
proposed section is aimed at excluding the shipowner(s) whose ships created the
initial pollution damage from the immunity contained in proposed subsection
24A(1), but this could be made clearer in proposed subsection 24A(2).
Proposed subsection 24A(4) states that responder
immunity in proposed subsection 24A(1) applies in relation to anything
done (or omitted to be done) in any of the following situations:
- by a constitutional corporation (or directors, officers,
employees or agents of the corporation acting in such a capacity)
- outside Australia[52]
- in the course of, or in relation to trade and commerce:
- between Australia and places outside Australia
- among the states, or
- within a territory, between a state and a territory, or between
two territories, or
- by the Commonwealth or an authority of the Commonwealth.
Item 4 of Schedule 2 provides that proposed
section 24A applies in relation to anything done (or omitted to be done) on
or after Royal Assent.
[1].
IMO, ‘International Convention for the Prevention of Pollution from
Ships, 1973, as modified by the Protocol of 1978 relating thereto (MARPOL)’
(hereafter ‘Summary of MARPOL’), IMO website, viewed 5 February 2010, http://www.imo.org/Conventions/contents.asp?doc_id=678&topic_id=258
Note that there are also various Australian state laws that give effect to the
Convention.
[2]. Ibid.
[3]. Australian
Maritime Safety Authority, ‘Protection of the Sea—Conventions and legislation’,
viewed 6 February 2010,
http://www.amsa.gov.au/marine_environment_protection/protection_of_pollution_from_ships/conventions_and_legislation.asp
[4]. Annexes
III–VI are optional.
[5]. Ibid., and
IMO, op. cit.
[6]. Ibid.
[7]. Schedule 1
to the Maritime Legislation Amendment (Prevention of Air Pollution from
Ships) Act 2007 (Act No. 24, 2007) amended the Prevention of Pollution from
Ships Act and the Navigation Act to give domestic effect to Annex VI. While
that Act received Royal Assent on 15 March 2007, Schedule 1 did not commence
until 10 November 2007, which was the commencement date provided in the
Proclamation made on 26 September 2007 under the Maritime Legislation
Amendment (Prevention of Air Pollution from Ships) Act 2007. See
Australian Government, ‘Legislative Instrument F2007L03764’, ComLaw website,
viewed 6 February 2010, http://www.comlaw.gov.au/ComLaw/Legislation/LegislativeInstrument1.nsf/asmade/byid/8F1F780E8E705110CA25735B0008A641?OpenDocument
[8]. Department
of Infrastructure, Transport, Regional Development and Local Government, ‘Prevention
of Pollution from Ships’, departmental website, 27 January 2010, viewed
5 February 2010, http://www.infrastructure.gov.au/maritime/environment/pollution.aspx
The IMO explains that in SOx Emission Control Areas, ‘the sulphur content of
fuel oil used on board ships must not exceed 1.5% m/m. Alternatively, ships
must fit an exhaust gas cleaning system or use any other technological method
to limit SOx emissions’. Currently only the Baltic Sea and the North Sea have
been designated as Emission Control Areas. See IMO, ‘New rules to reduce
emissions from ships enter into force’, IMO website, 18 May
2005, viewed 5 February 2010, http://www.imo.org/newsroom/mainframe.asp?topic_id=1018&doc_id=4884
[9]. IMO, ‘New
rules to reduce emissions from ships enter into force’, op. cit. Under Annex
VI, new installations containing ozone-depleting substances are prohibited on
all ships, but new installations containing hydro-chlorofluorocarbons (HCFCs)
are permitted until 1 January 2020.
[10]. A mandatory
NOx Technical Code, developed by IMO, defines how this is to be done.
[11]. IMO,
‘‘Summary of MARPOL’, op. cit., under the heading ‘The Protocol of 1997 (Annex VI
- Regulations for the Prevention of Air Pollution from Ships)’.
[12]. A ‘Tier III’
engine is an engine installed on ships constructed on or after 1 January 2016.
See Regulation 13—Nitrogen Oxides (NOx) of Annex VI, particularly paragraphs
5.1 and 5.2.
[13]. The term
‘particulate matter’ refers to a collection of particles that ‘can be suspended
or will float in the air’. The particles are usually made up of a number of
different substances, including: dust from soil or smoke; pollen grains,
bacteria, fungal spores; dust from wheat, barley and other cereals; tiny pieces
of skin from animals; and dust and fumes from chemical processes, welding,
painting, gritblast cleaning and other industrial processes. See Department of
Primary Industries, Parks, Water and Environment (Tasmania), ‘What is
particulate matter?’, departmental website, viewed 9 February 2010, http://www.environment.tas.gov.au/index.aspx?base=292
[14]. IMO,
‘Summary of MARPOL’, op. cit., under the heading ‘The 2008 amendments’. The
revised text of Annex VI (Resolution MEPC.176(58)) is available electronically
at IMO, ‘Amendments to the Annex of the Protocol of 1997 to amend the
International Convention For The Prevention Of Pollution From Ships, 1973, as
modified by the Protocol of 1978 relating thereto’ (‘Revised MARPOL Annex VI’),
IMO website, 10 October 2008, viewed 5 February 2010, http://www.imo.org/includes/blastDataOnly.asp/data_id%3D23760/176%2858%29.pdf
[15]. IMO,
‘Revised MARPOL Annex VI’, preamble, paragraph 3.
[16]. Clause 2 to
the Bill.
[17].
IMO, ‘International Convention on Civil Liability for Bunker Oil Pollution
Damage, 2001’, IMO website, 2008, viewed 6 February 2010, http://www.imo.org/Conventions/contents.asp?topic_id=256&doc_id=666
The actual text of the Convention is available at Australian Treaty Series,
[2009] ATS 14, Austlii website, viewed 6 February 2010, http://www.austlii.edu.au/cgi-bin/sinodisp/au/other/dfat/treaties/2009/14.html
[18].
Explanatory Statement, Protection of the Sea (Civil Liability for Bunker
Oil Pollution Damage) Regulations 2009 (being Select Legislative Instrument
no. 101 of 2009), viewed 6 February 2010, http://www.austlii.edu.au/au/legis/cth/num_reg_es/potslfbopdr2009n101o2009833.html
A copy of the regulations is available at Australian Government, ‘Legislative
Instrument F2009L02140’, Comlaw website, viewed 6 February 2010, http://www.comlaw.gov.au/comlaw/management.nsf/lookupindexpagesbyid/IP200942550?OpenDocument
[19]. IMO,
‘International Convention on Civil Liability for Bunker Oil Pollution Damage,
2001’, op. cit.
[20]. Ibid.
[21].
As explained in the Bills Digest for the Protection of the Sea (Civil
Liability for Bunker Oil Pollution Damage) Bill 2008, ‘bunker oils’ are oils ‘used
in the operation of the relevant ship, including fuel oil for its engines’ as
opposed to oil carried as cargo. See A Martyn, Protection of the Sea (Civil
Liability for Bunker Oil Pollution Damage) Bill 2008, Bills Digest, no. 100,
2007–08, Parliamentary Library, Canberra, 2008, p. 2, viewed
6 February 2010, http://www.aph.gov.au/library/pubs/bd/2007-08/08bd100.pdf
Note that the Bunker Oil Act does not apply to spills from oil tankers—they are
covered by a separate (but similar) liability and compensation scheme set out
in the International Convention on Civil Liability for Oil Pollution Damage,
1969 (as amended in 1992 and 2000). See IMO, ‘International Convention on
Civil Liability for Oil Pollution Damage (CLC), 1969’, IMO
website, viewed 6 February 2010, http://www.imo.org/Conventions/contents.asp?doc_id=660&topic_id=256
That Convention was given domestic effect in Australia by the Protection of
the Sea (Civil Liability) Act 1981, the Protection of the Sea (Oil
Pollution Compensation Funds) Act 1993 and related legislation.
See http://www.austlii.edu.au/au/legis/cth/consol_act/potspcfa1993566/
and http://www.austlii.edu.au/au/legis/cth/consol_act/potsla1981357/ viewed 6 February 2010.
[22]. A Albanese
MP (Minister for Infrastructure, Transport, Regional Development and Local
Government), ‘Second reading speech: Protection of the Sea Legislation
Amendment Bill 2010’, House of Representatives, Debates, 3 February
2010, p. 6, viewed 5 February 2010, http://parlinfo.aph.gov.au/parlInfo/genpdf/chamber/hansardr/2010-02-03/0025/hansard_frag.pdf;fileType=application%2Fpdf
[23].
Shipping Australia Limited, ‘Major policy issues: Raising coastal costs
will drive cargo to roads’, Shipping Australia, March 2009, p. 52,
viewed 3 February 2010, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22library%2Fjrnart%2FMTLT6%22
[24]. Ibid.
[25]. A Albanese
MP, ‘Second reading speech’, op. cit., p. 5.
[26]. Shipping
Australia Limited, ‘Major policy issues: Raising coastal costs will drive cargo
to roads’, op. cit.
[27]. Ibid. The
Stern review was conducted by Sir Nicholas Stern, Head of the Government
Economic Service and Adviser to the Government on the economics of climate
change and development. Lord Stern was formerly World Bank Chief Economist
too. A copy of the report is available at HM Treasury (UK Government), ‘Stern
Review on the Economics of Climate Change’, HM Treasury website, 30 October
2006, viewed 6 February 2010, http://www.hm-treasury.gov.uk/sternreview_index.htm Note that the methodology used by the Stern review was the subject of an
assessment by the Productivity Commission (Australian Government) in 2008. See
Productivity Commission, ‘The Stern Review: an assessment of its methodology’,
Staff Working Paper, 24 January 2008, viewed 6 February 2010, http://www.pc.gov.au/research/staffworkingpaper/sternreview
[28]. Selection of
Bills Committee, Report No. 1 of 2010, 4 February 2010. See Senate, Debates,
4 February 2010, pp. 67–68.
[29]. Explanatory
Memorandum, Protection of the Sea Legislation Amendment Bill 2010, p. 1.
[30]. The term
‘penalty unit’ is defined in relation to a natural person in subsection 4AA(1)
of the Crimes Act 1914 as $110 (unless a contrary intention is expressed
in an Act). Section 4B of that Act provides that if a body corporate is
convicted of an offence, the penalty that may be imposed on the body corporate
cannot exceed five times the maximum penalty that would apply to a natural
person.
[31]. The
particular areas are currently: (a) in the sea near a state, the Jervis Bay
Territory or an external territory and no law of that state or territory gives
effect to Paragraph 1 of Regulation 14 of Annex VI; (b) Australia’s exclusive
economic zone; or (c) (if the ship is an Australian ship), beyond Australia’s
exclusive economic zone, but not within a sulphur oxide (SOx) emission control
area. Paragraph 1 of Regulation 14 (which is entitled ‘Sulphur Oxides (SOx) and
Particulate Matter’) states:
The sulphur content of
any fuel oil used on board ships shall not exceed the following limits:
.1 4.50% m/m prior
to 1 January 2012;
.2 3.50% m/m on and
after 1 January 2012; and
.3 0.50% m/m on and
after 1 January 2020.
[32]. See footnote
30.
[33]. Ibid.
[34]. Section 33 of
the Prevention of Pollution Act (which is not affected by the current Bill) gives
the Governor-General a discretionary power to make regulations, not
inconsistent with that Act, prescribing matters required or permitted by that
Act to be prescribed or necessary or convenient to be prescribed for carrying
out or giving effect to that Act. Any regulation prescribing the limit on the
sulphur content of fuel oil would be subject to parliamentary disallowance
under Part 5 of the Legislative Instruments Act 2003—noting, of
course, that the limit set out in the regulation would presumably match the
rate set out in Annex VI and there would thus be little role for parliamentary
scrutiny.
[35]. See
subsection 13.3(3) of the Criminal Code.
[36]. Paragraph 3
of Regulation 18 (which deals with Fuel Oil Availability and Quality) sets out
the technical requirements that must be met by fuel oil for combustion purposes
delivered to and used on board ships to which Annex VI applies.
[37]. See footnote
30.
[38]. Explanatory
Memorandum, op. cit., p. 7.
[39]. See footnote
30.
[40]. The term ‘overseas
voyage’ is defined in proposed subsection 26FET(9) to have the same
meaning as in the Navigation Act. There it is defined in section 6 to mean a
voyage in the course of which the ship travels between:
(a) a port in Australia
and a port outside Australia
(b) a port in Australia
and a place in the waters of the sea above the continental shelf of a country
other than Australia
(c) a port outside
Australia and a place in the waters of the sea above the continental shelf of
Australia
(d) a place in the
waters of the sea above the continental shelf of Australia and a place in the
waters of the sea above the continental shelf of a country other than Australia
(e) ports outside
Australia, or
(f) places beyond the
continental shelf of Australia
whether or
not the ship travels between 2 or more ports in Australia in the course of the
voyage.
However, in the case of an
Australian fishing vessel that begins and ends a voyage at a port in Queensland
(which need not be the same port), the voyage is not taken to be an ‘overseas
voyage’ merely because the vessel calls at a port or ports in Papua New Guinea
as an incidental part of the fishing operations done in that voyage (proposed
subsection 26FET(9)).
[41]. Proposed
subsection 26FET(2).
[42]. Proposed
subsection 26FET(3).
[43]. Proposed
subsection 26FET(4). The maximum penalty (for a natural person) is
200 penalty units.
[44]. Proposed
subsection 26FET(6). The maximum penalty is 200 penalty units.
[45]. Proposed
subsection 26FET(7). The maximum penalty is 200 penalty units.
[46]. Proposed
subsection 26FET(8). This is not an offence provision.
[47]. Proposed
section 26FEU.
[48]. Proposed
paragraph 26FEV(1)(a). This is an offence carrying a maximum penalty of
200 penalty units.
[49]. Proposed
paragraph 26FEV(1)(b). This is an offence carrying a maximum penalty of 200 penalty
units
[50]. Explanatory
Memorandum, op. cit., p. 1.
[51]. Australian
Treaty Series, [2009] ATS 14, op. cit.
[52]. Proposed
paragraph 24A(4)(b) states that the term ‘outside Australia’
includes Australia’s territorial sea and exclusive economic zone.
Morag Donaldson
12 February 2010
Bills Digest Service
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