BILLS DIGEST NO. 86, 2016–17              29 March 2017

Biosecurity Amendment (Ballast Water and Other Measures) Bill 2017

Paula Pyburne
Law and Bills Digest Section

Date introduced:  15 February 2017

House:  House of Representatives

Portfolio:  Agriculture and Water Resources

Commencement: Sections 1–3 and Schedule 2 on the day after Royal Assent; Schedule 1 commences on the later of the day after Royal Assent or the day that the International Convention for the Control and Management of Ships’ Ballast Water and Sediments comes into force for Australia. However, Schedule 1 does not commence if the Convention does not come into force.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at March 2017.

Purpose of the Bill

The purpose of the Biosecurity Amendment (Ballast Water and Other Measures) Bill 2017 (the Bill) is to amend the Biosecurity Act 2015 to:

•       ensure that Australia will be fully compliant with the International Convention for the Control and Management of Ships’ Ballast Water and Sediments (Ballast Water Convention)[1] when it comes into force on 8 September 2017 and

•       strengthen Australia's ability to manage risks to human health—such as mosquitos carrying Zika virus.

Structure of the Bill

The Bill comprises two Schedules:

•       Schedule 1 to the Bill amends Chapter 5 of the Biosecurity Act which deals with ballast water and sediment

•       Schedule 2 to the Bill makes minor amendments to Chapters 2 and 4 of the Biosecurity Act.

Background

Why do ships carry ballast?

Ships are designed and built to move through water carrying cargo, such as oil, grains, containers, machinery and people. If the ship is travelling without cargo, or has discharged some cargo in one port and is on route to its next port of call, ballast may be taken on board to achieve the required safe operating conditions. This includes keeping the ship deep enough in the water to ensure efficient propeller and rudder operation and to avoid the bow emerging from the water, especially in heavy seas.

Water … is carried in separate tanks used just for ballast, or in empty cargo tanks. When a vessel is departing a port, water and any sediment that may be stirred up, is pumped into the ballast tanks, and released again when it takes on cargo at the next port … Safety, weather conditions, a ship’s load, and the route taken are the primary factors that determine how much ballast water is taken on board a vessel. For example, more ballast is necessary for ships to sit lower in the water during stormy weather. Ballast water is also used to balance the ship as it uses up fuel during a long voyage, or during loading and unloading operations.[2]

Figure 1: ballast water cycle

Source: Transport Canada, ‘Ballast water defined’, Transport Canada website, 21 January 2010.

Why is ballast a biosecurity issue?

Around 10 billion tonnes of ballast water moved by shipping globally each year contains enormous numbers of living organisms and they are moved with ballast water from region to region and country to country; it is anticipated that every day ballast water moves approximately 7,000 species around the world.[3] When ballast water from foreign waters is released, live marine organisms that it contains may establish exotic colonies. Ballast water exchange is a biosecurity issue, therefore, as it is a recognised pathway for the spread of marine pests.

The current main concern over IAS [invasive alien species] is that the impacts of IAS are already large and are quickly growing larger because the international movement of cargo and people is increasing due to globalization. IAS is considered as one of the major threats to worldwide biodiversity because it is almost impossible to eradicate the problem caused by IAS once it is established in the marine environment. Therefore, it is important to take prompt appropriate measures … before IAS is established and affect native marine environment around the world.[4]

Ballast water Convention

The Department of Agriculture and Water Resources (DAWR) is the lead agency of the Australian Government for the regulation of ballast water management by international vessels in Australian seas.[5] DAWR is responsible for ensuring that international ballast water intended for discharge inside Australia’s territorial sea (the area within 12 nautical miles of the Australian coastal baseline) has been managed in accordance with Australia’s requirements.[6] Those requirements are consistent with the International Maritime Organisation (IMO) Ballast Water Convention[7] that aims to minimise the translocation of harmful aquatic species in ships’ ballast water and ballast tank sediments.[8]

When the Ballast Water Convention enters into force:

… all ships in international trade [will be required] to manage their ballast water and sediments to certain standards, according to a ship-specific ballast water management plan. All ships will also have to carry a ballast water record book and an International Ballast Water Management Certificate. The ballast water performance standard will be phased in over a period of time. Most ships will need to install an on-board system to treat ballast water and eliminate unwanted organisms. More than 60 type-approved systems are already available.[9]

Current regulation of ballast water

At present DAWR regulates the management and discharge of international ballast water inside Australian seas (the area within 12 nautical miles of the Australian coastal baseline).

It does not regulate the management of ballast water taken up within Australia’s territorial sea and domestic ports subsequently discharged in Australian domestic ports.[10] This is managed by the state or territory Government agencies responsible for the port location.[11]

Committee consideration

Senate Selection of the Bills Committee

At its meeting of 23 March 2017, the Selection of Bills Committee determined that the Bill would not be referred to a committee for inquiry and report.[12]

Senate Standing Committee for the Scrutiny of Bills

The Standing Committee for the Scrutiny of Bills has commented on a number of aspects of the Bill.[13] These are canvassed under the heading ‘Key issues and provisions’ below.

Policy position of non-government parties/independents

At the time of writing this Bills Digest, no comments about the Bill and its effect on international shipping have been made by non-government parties or independents.

Position of major interest groups

Whilst the Bill was not referred to any committee for inquiry and report, submitters to the Senate Standing Committee on Environment and Communications, Inquiry into Environmental Biosecurity, commented on the tougher ballast water control measures which arise from the Ballast Water Convention coming into force.[14]

According to the Australian Maritime Safety Authority (AMSA) the Ballast Water Convention ‘aims to minimise the biosecurity risk associated with ballast water by providing uniform international control and management arrangements for the shipping industry’.[15] In addition:

… ratification and implementation of the Ballast Water Convention will significantly strengthen Australia's arrangements to prevent the entry and establishment of invasive marine species and pathogens. While there have been mandatory arrangements in place in Australia since 2001, the Ballast Water Convention will require ships to treat ballast water using methods that are considerably more effective at reducing biosecurity risk than the methods that are currently accepted by the Australian Government.[16]

Shipping Australia was of the view that ‘the increased controls on ballast water and hull fouling being introduced by the International Maritime Organisation (IMO) will further enhance the protection of marine environments’.[17]

Financial implications

According to the Explanatory Memorandum ‘no significant direct or indirect financial impact on the Commonwealth will arise from the introduction of the Bill’.[18]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[19]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights has deferred consideration of the Bill.[20]

Schedule 1—key issues and provisions

Implementing the Ballast Water Convention

The amendments in Schedule 1 to the Bill are intended to implement the Ballast Water Convention,[21] as in force from time to time.[22]

The Ballast Water Convention requires reporting of intended or actual discharges of ballast water in Australian territorial seas.[23] Currently, section 270 of the Biosecurity Act gives rise to the offence of discharging ballast water, subject to certain exceptions. There is an additional offence for disposing of sediment. The Bill amends existing offences so that they apply:

•       for an Australian vessel: whether the vessel is in, or outside, Australian seas

•       for a foreign vessel: if the vessel is in Australian seas.[24]

However, the Ballast Water Convention does not apply to any warship, naval auxiliary or other ship owned or operated by a State and used, for the time being, only on government non-commercial service.[25] That being the case, the provisions of Chapter 5 of the Biosecurity Act do not apply to such a vessel whether it is owned and operated by the Australian government or the government of a foreign country.[26]

Where the Ballast Water Convention applies

Currently, for the purposes of the Biosecurity Act, the term Australian seas means the waters (including the internal waters of Australia) within the outer limits of the territorial sea of Australia (including every external Territory).[27] Australia’s territorial sea is the area within 12 nautical miles of the Australian coastal baseline.

The Bill repeals and replaces the definition of Australian seas so that the term means:

•       for Australian vessels and foreign vessels whose Administration[28] is a party to the Ballast Water Convention—the waters (including the internal waters of Australia) that are within the outer limits of the exclusive economic zone of Australia or

•       for all other foreign vessels the Australian territorial seas.[29]

The effect of the amendment is that the term Australian seas has two meanings—one for those Australian vessels and foreign vessels whose Administrations are a party to the Ballast Water Convention and one for all other foreign vessels.

The Bill inserts the definition of Australian territorial seas into section 9 of the Biosecurity Act being the waters (including the internal waters of Australia) within the outer limits of the territorial sea of Australia (including every external Territory)—that is, is the area within 12 nautical miles of the Australian coastal baseline.[30]

Currently section 261 of the Biosecurity Act provides that a foreign vessel that is within the outer limits of the territorial sea of the Australian Antarctic Territory is taken not to be in Australian seas. Item 13 of Schedule 1 to the Bill amends section 261 to make clear that a foreign vessel whose Administration is a party to the Ballast Water Convention and which is within the outer limits of the exclusive economic zone adjacent to the coast of the Australian Antarctic Territory is also taken not to be in Australian seas.[31]

What is the Exclusive Economic Zone?

The Exclusive Economic Zone (EEZ) is an area beyond and adjacent to the territorial sea. The outer limit of the exclusive economic zone cannot exceed 200 [nautical miles] from the baseline from which the breadth of the territorial sea is measured. In the EEZ, Australia has sovereign rights for the purpose of exploring and exploiting, conserving and managing all natural resources of the waters superjacent to the seabed and of the seabed and its subsoil together with other activities such as the production of energy from water, currents and wind. Jurisdiction also extends to the establishment and use of artificial islands, installations and structures, marine scientific research, the protection and preservation of the marine environment, and other rights and duties.

The Australian EEZ is defined in the Seas and Submerged Lands Act 1973 including the amendments to that Act made by the Maritime Legislation Amendment Act 1994.

The outer limit of the Australian EEZ is set out in the Proclamation under the Sea and Submerged Lands Act which was made on 26 July 1994 and published in Gazette S290 on 29 July 1994. That proclamation entered into force on 1 August 1994. The outer boundary is mostly 200NM from the territorial sea baselines. However the Proclamation pulls the boundary back to less than 200NM in areas of agreed or potential delimitation with other countries. The metes and bounds definitions where the boundary has been pulled back are taken from Australia's maritime delimitation agreements with other countries and, where no such agreement exists, largely follow the Fisheries Management Act 1991 'excepted waters' Proclamation which was published in Gazette No.S52 of 14 February 1992.

Geoscience Australia (GA), ‘Maritime boundary definitions’, GA website.

Making a determination

Central to the operation of the Bill is item 144 of Schedule 1, which inserts proposed section 308A into the Biosecurity Act. It gives the Director of Biosecurity a non-delegable power to make a determination, by legislative instrument, prescribing matters that are required or permitted by Chapter 5 or matters that are necessary or convenient to be prescribed for carrying out or giving effect to the terms of Chapter 5. Among other things, the determination may provide for the Director of Biosecurity to:

•       enter into agreements

•       make decisions and

•       determine matters by notifiable instrument.

This power is in addition to the regulation making power which lies in section 645 of the Biosecurity Act.

The Explanatory Memorandum to the Bill provides:

Although Schedule 1 will not commence until the Ballast Water Convention comes into force for Australia, through the operation of section 4 of the Acts Interpretation Act 1901, the Director of Biosecurity will be able to make legislative instruments under Schedule 1 once the Bill receives the Royal Assent. However those instruments cannot commence until Schedule 1 has commenced.[32]

Notice of discharge of ballast water

Part 2 of Chapter 5 currently requires the operator of a vessel to give a report if it is intended that the vessel discharge, or the vessel discharges, ballast water in Australian seas. If the operator later finds the report was incomplete or incorrect, the operator must give additional or corrected information.[33]

The Bill amends the Biosecurity Act to replace references to the term Australian seas with references to Australian territorial seas in Part 2.[34] The Bill amends section 267 so that the operator of the vessel must give the report if the vessel intends to discharge, or discharges ballast water in the Australian territorial seas. The manner and form of that report will be set out in a determination by the Director of Biosecurity under proposed section 308A.[35]

Offences

Currently Part 3 of Chapter 5 of the Biosecurity Act provides that a person in charge, or the operator, of a vessel which is in Australian seas commits an offence if the person discharges ballast water. Both a fault based offence with a maximum penalty of 2,000 penalty units[36] and a strict liability office[37] with a maximum penalty of 500 penalty units[38] arise from a contravention of subsection 270(1)—with the following exceptions:

•       where the ballast water has been managed for discharge in accordance with the Australian Ballast Water Management Requirements[39]

•       where the discharge of ballast water is part of an acceptable ballast water exchange[40]

•       where there has been an approved discharge to a ballast water reception facility[41]

•       where the discharge has been covered by an exemption granted by the Director of Biosecurity[42]

•       where the ballast water that was discharged was taken from the same place[43]

•       where the discharge of ballast water has been necessary for safety of the vessel or persons at sea, the discharge was accidental, or if the discharge was for the purpose of avoiding or minimising pollution from the vessel.[44]

Item 27 of the Bill amends section 270 of the Biosecurity Act to create separate offences for an Australian vessel and for a foreign vessel.

Australian vessel

Section 9 of the Biosecurity Act defines an Australian vessel as one which has Australian nationality under section 29 of the Shipping Registration Act 1981 or is a vessel whose Administration is the Commonwealth.[45] Proposed subsection 270(1), at item 27 of Schedule 1 to the Bill, provides that a person contravenes the subsection if the person is in charge, or the operator, of an Australian vessel and the vessel discharges ballast water (whether in or outside Australian seas).

The exceptions from the offences that are listed above continue to apply to an Australian vessel provided that, in addition, all of the following are satisfied:

•       either the vessel has a ballast water management plan, and a ballast water management certificate is in force for the vessel[46] or the vessel is prescribed under proposed subsection 285A(3) or is granted an exemption in accordance with proposed section 285B[47] and

•       if the vessel has a ballast water management plan and a ballast water management certificate—the management of the ballast water was carried out in accordance with the ballast water management plan[48] and

•       if the vessel has been granted an exemption in accordance with section 285B—any condition of the exemption has been met.[49]

Foreign vessel

Section 9 of the Biosecurity Act provides that a foreign vessel is a vessel that is not an Australian vessel.

Proposed subsection 270(1A) provides that a person contravenes the subsection if the person is in charge, or the operator, of a foreign vessel which is in Australian seas and the vessel discharges ballast water. Item 28 of the Bill amends subsections 270(2) and (3) of the Biosecurity Act to extend the existing fault-based and strict liability offences to a person who contravenes proposed subsection 270(1A).

The key difference is that, for Australian vessels, a contravention can occur anywhere, whereas for foreign vessels, a contravention within the jurisdiction of the Biosecurity Act can only occur in Australian seas.

Explanatory Memorandum, Biosecurity Amendment (Ballast Water and Other Measures) Bill 2017, p. 7.

Scrutiny of Bills Committee

The Scrutiny of Bills Committee drew attention to the reversal of the onus of proof for the offences stating that:

Subsection 13.3(3) of the Criminal Code Act 1995 provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification bears an evidential burden in relation to that matter.

While the defendant bears an evidential burden (requiring the defendant to raise evidence about the matter), rather than a legal burden (requiring the defendant to positively prove the matter), the Committee expects any such reversal of the evidential burden of proof to be justified. The reversal of the evidential burden of proof proposed to be introduced by item 30 has not been addressed in the Explanatory Materials.[50]

That being the case, the Scrutiny of Bills Committee has requested the Minister’s advice as to why it is proposed to use an offence-specific defence (which reverses the evidential burden of proof) in this instance.

Methods of ballast water management

Australian methods

Existing section 272 provides that ballast water discharge from the vessel has been managed for discharge if certain conditions are satisfied. Section 273 allows an application to be made in accordance with regulations to the Director of Biosecurity to approve a method of ballast water management.

Items 34–40 of the Bill amend those sections so that ballast from a vessel has been managed for discharge if:

•       the ballast water has been managed using an approved method[51]

•       at the time the ballast water is discharged the vessel has appropriate ballast water records[52] and

•       the requirements of any determination by the Director of Biosecurity under proposed section 308A have been met.[53]

Section 273 is amended so that an application to approve a method of ballast water management is to be made to the Director of Biosecurity in accordance with a determination under proposed section 308A.

Foreign methods

Item 41 of the Bill repeals and replaces section 274 of the Biosecurity Act to allow the Director of Biosecurity to make a determination under proposed section 308A that a method of ballast water management that has been approved by a foreign country in accordance with the Ballast Water Convention is approved for the purposes of the Biosecurity Act.

Ballast water exchange

Section 275 of the Biosecurity Act provides that ballast water discharged from a tank on the vessel has been managed for discharge in certain circumstances. Items 42–49 of Schedule 1 to the Bill amend section 275 so that ballast water discharged from a tank on a vessel has been managed for discharge if:

•       at least a proportion (by volume) prescribed by a determination under proposed section 308A of the ballast water in the tank immediately before discharge has been taken up in an acceptable ballast water exchange

•       at the time the ballast water is discharged the vessel has appropriate ballast water records

•       the vessel is not specified by a determination to be excluded from the operation of section 275.[54]

For the purposes of the Biosecurity Act, a ballast water exchange will be an acceptable ballast water exchange if it is conducted in an area prescribed, or an area meeting requirements prescribed, by a determination under proposed section 308A.[55]

Exceptions

Sections 277–282 of the Biosecurity Act create exceptions to the offence provisions in section 270 relating to ballast water discharges. The terms of the exceptions remain substantially the same as currently, with references to regulations being replaced by references to a determination under proposed section 308A.[56]

An additional exception is inserted by item 58 of the Bill. Proposed section 278A empowers the Director of Biosecurity to make a determination under proposed section 308A prescribing conditions in relation to a discharge of ballast water from a vessel—provided that the conditions are consistent with the objects of the Biosecurity Act. Those objects, as set out in section 4, include providing for managing risks related to ballast water.

Currently section 280 of the Biosecurity Act provides that an application may be made to the Director of Biosecurity for an exemption for one or more discharges of ballast water from a vessel that are connected with voyages between specified ports or locations if the ballast water was taken up in one or more of those ports and locations. Item 61 of Schedule 1 to the Bill amends section 280 of the Biosecurity Act so that references to ‘locations’ is expanded to also include offshore terminals.

Similarly, section 282 is amended by items 64 and 65 of the Bill so that it is not an offence to discharge ballast water from a vessel if:

•       all the ballast water discharged was taken up at a port, offshore terminal or another point

•       that ballast water was not mixed with other ballast water that had not been managed for discharge and

•       the discharge occurs at the port, offshore terminal or within one nautical mile of the other point where the ballast water was taken up.

Reporting

Section 283 of the Biosecurity Act allows for the discharge of ballast water from the vessel if the discharge is necessary to ensure the safety of the vessel in emergency or saving life at sea. Where this occurs, section 284 requires the person in charge, or the operator, of the vessel to make a report to the Director of Biosecurity. Item 73 of the Bill amends subsection 284(1) so that such a report will be required if the vessel discharges ballast water in Australian territorial seas—rather than as presently in Australian seas. Currently, under subsection 284(4), a person commits an offence of strict liability if the person is in charge, or the operator, of a vessel and the required report is not made. Item 75 of the Bill amends subsection 284(4) of the Biosecurity Act so that the maximum penalty for the offence is reduced from 500 penalty units to 120 penalty units.[57]

Management plans and management certificates

Part 4 of Chapter 5 of the Biosecurity Act provides for ballast water management plans[58] (that is, a document that deals with ballast water management for the vessel and the disposal of sediments from the vessel) and ballast water management certificates for vessels[59] to be issued, endorsed and recognised.

Item 78 of the Bill inserts proposed Division 1A—General requirement to have ballast water management plan and certificate into Part 4 of Chapter 5 of the Biosecurity Act.

Proposed Division 1A will operate as follows:

•       an Australian vessel (whether in or outside Australian seas) must have a ballast water management plan and a ballast water management certificate that is in force[60]

•       a foreign vessel in Australian seas must have a ballast water management plan and a ballast water management certificate that is in force[61]

•       the Director of Biosecurity may make a determination under proposed section 308A to prescribe a scheme or survey authority to grant an exemption to a particular vessel from those requirements[62]

•       a person who is in charge of an Australian vessel or a person who is in charge of a foreign vessel in Australian seas commits an offence if the vessel does not have a ballast water management plan and a ballast water management certificate that is in force, and the vessel has not been exempted from those requirements. The maximum penalty for the offence is 200 penalty units.[63]

According to the Explanatory Memorandum to the Bill the new offences created by proposed section 285C (above) are ‘required to meet Australia’s obligation to establish sanctions wherever a violation of the Ballast Water Convention occurs’.[64]

Survey authority

Item 94 of Schedule 1 to the Bill inserts proposed Division 4—Survey authorities into Part 4 of Chapter 5 of the Biosecurity Act. Within the new Division, proposed section 290A empowers the Director of Biosecurity to authorise a person, in writing, to be a survey authority if the Director is satisfied the person has suitable qualifications to perform the functions of a survey authority.[65]

Ballast water records

Part 5 of Chapter 5 of the Biosecurity Act sets out how vessels are to keep records of their ballast water operations. Currently the Part has different requirements for Australian vessels (in Division 2) and for foreign vessels (in Division 3). Item 121 of Schedule 1 to the Bill repeals Division 3.

Items 95–120 amend Division 2 so that it deals with all vessels. In particular item 98 of Schedule 1 to the Bill amends section 292 of the Biosecurity Act to require an Australian vessel (whether in or outside Australian seas) to have a ballast water record system that complies with the requirements set out in a determination under proposed section 308A. Item 100 inserts proposed subsection 292(1A) in similar terms which applies to a foreign vessel in Australian seas that is capable of carrying ballast water. A person commits an offence of strict liability if they are in charge of the vessel which is capable of carrying ballast water and the vessel does not have a ballast water record system. The maximum penalty for the offence is 200 penalty units.[66]

The offence applies:

•       to Australian vessels, regardless of whether they are inside or outside Australian territory

•       to foreign vessels whose nation is a party to the Ballast Water Convention, in Australia's EEZ

•       to foreign vessels whose nation is not a party to the Ballast Water Convention, in the Australian territorial sea.

This creates inconsistent requirements, depending on the vessel’s flag nation. However this is the only option to ensure that Australia meets its obligations under the Ballast Water Convention (to apply the requirements to Australian vessels regardless of location), while not overstepping its authority in the absence of the Ballast Water Convention being a recognised international rule or standard.

Explanatory Memorandum, Biosecurity Amendment (Ballast Water and Other Measures) Bill 2017, p. 17.

Currently section 293 requires a record to be made if an Australian vessel (whether in or outside Australian seas) conducts a ballast water operation or disposes of sediment. Item 104 of Schedule 1 to the Bill inserts proposed subsection 293(1A) which requires a record to be made by a foreign vessel that conducts a ballast water operation or disposes of sediment in Australian seas. Items 108 and 109 amend existing subsections 293(3) and (4) to extend the strict liability offence of failure to make a record in accordance with the section and the fault-based offence of making a false or misleading record, to foreign vessels. Each of the records made under subsections 293(1) and (1A) must be retained on board the vessel for two years after the record is made.[67]

Disposing of sediment

Part 6 of Chapter 5 of the Biosecurity Act gives rise to an offence of disposing of sediment.

Currently section 298 provides that a person in charge, or the operator, of a vessel which is in Australian seas commits an offence if the vessel disposes of sediment and the sediment is not disposed of to a sediment reception facility.[68]

Item 124 of Schedule 1 to the Bill repeals and replaces subsection 298(1). Proposed subsection 298(1) retains the offence for an Australian vessel which disposes of sediment (whether in or outside Australian seas) if the disposal does not take place at a sediment reception facility. Proposed subsection 298(1A) creates an offence in similar terms where a foreign vessel in Australian seas disposes of sediment if the disposal does not take place at a sediment reception facility. The existing fault-based offence with a maximum penalty of 2,000 penalty units and the strict liability offence with a maximum penalty of 500 penalty units apply to both Australian and foreign vessels.[69]

It is an exception to the offence if:

•       the disposal is necessary for the purpose of ensuring the safety of the vessel in an emergency or saving life at sea[70]

•       the disposal of sediment is accidental and results from damage to the vessel or its equipment, subject to the following provisos:

–      all reasonable precautions to prevent or minimise the disposal are taken before and after the occurrence of the damage, the discovery of the damage and the discovery of the disposal and

–      neither the person in charge of the vessel nor the owner or operator of the vessel intentionally caused the damage, or was reckless as to the occurrence of the damage[71] or

•       the disposal of sediment was for the purpose of avoiding or minimising pollution from the vessel.[72]

These exceptions remain unchanged by the Bill. However, item 126 inserts proposed section 299A which requires such a disposal to be reported to the Director of Biosecurity. A person commits an offence of strict liability if the person is in charge, or the operator, of the vessel and such a report is not made. The maximum penalty for the offence is 120 penalty units.[73]

Scrutiny of Bills Committee

The Scrutiny of Bills Committee commented on proposed section 299A which makes it an offence of strict liability if the person does not make a report when required, stating:

In a criminal law offence the proof of fault is usually a basic requirement. However, offences of strict liability remove the fault (mental) element that would otherwise apply. The committee expects the Explanatory Memorandum to provide a clear justification for any imposition of strict liability, including outlining whether the approach is consistent with the Guide to Framing Commonwealth Offences.[74]

The Scrutiny of Bills Committee noted that the Guide to Framing Commonwealth Offences provides that the application of strict liability is generally only considered appropriate where the offence is punishable by a fine of up to 60 penalty units for an individual. In this case, the proposed strict liability offence is subject to a maximum penalty of up to 120 penalty units. Therefore, the Scrutiny of Bills Committee has requested advice from the Minister was to why the proposed penalty for the strict liability offence is double that which is considered appropriate in the Guide to Framing Commonwealth Offences.[75]

Compliance

Part 7 of Chapter 5 of the Biosecurity Act gives the Director of Biosecurity and biosecurity officers’ powers to enforce the provisions of the Chapter. Proposed section 300A which is inserted by item 128 of Schedule 1 to the Bill makes clear that the powers under Part 7 may be exercised at a port or offshore terminal within the outer limits of the exclusive economic zone of Australia.

Division 2 of Part 7 of the Biosecurity Act currently sets out the power to require the owner of an Australian vessel to provide ballast water records. Item 130 of Schedule 1 to the Bill inserts proposed sections 300B–300D into Division 2 to extend the powers of biosecurity officers to:

•       direct the person in charge, or the operator, of a vessel to secure the vessel[76]

•       take samples of ballast water from the vessel, direct a person in charge of the vessel to deliver samples of ballast water from the vessel, or arrange for another person, with appropriate qualifications or expertise, to take samples of ballast water from the vessel[77] and

•       require a person who the biosecurity officer suspects, on reasonable grounds, has information in relation to a vessel to answer questions, or provide information in writing, in relation to the vessel.[78]

In each case, a person who is given a direction must comply with the direction.[79] A failure to do so gives rise to a maximum civil penalty of 120 penalty units.

Currently section 302 of the Biosecurity Act empowers the Director of Biosecurity or a biosecurity officer to give a direction not to discharge ballast water to a person in charge of the vessel in Australian seas. The person in charge of the vessel must comply with the direction. A person who fails to comply with a direction given under this section may commit an offence under existing section 305. Item 135 of Schedule 1 to the Bill repeals and replaces subsection 302(1) of the Biosecurity Act so that it applies to the person in charge of a vessel—not just an Australian vessel. Consequently, the offence provision is extended to all vessels, including foreign vessels, in all seas.

Item 139 of Schedule 1 to the Bill inserts proposed section 304A which requires the person in charge, or the operator, of the vessel to make a report to the Director of Biosecurity if the person is given a direction under Division 2 or Division 3 of Part 7 of Chapter 5 and the person fails to comply with the direction. The matters to be included in the report are listed in proposed subsection 304A(2).

Schedule 2—key issues and provisions

The provisions of Schedule 2 to the Bill make minor amendments to the Biosecurity Act being:

•       ensuring that Chapter 2 deals mainly, but not exclusively, with listed human diseases[80]

•       inserting the definition of the term vector as meaning an arthropod or other living carrier that transports an infectious agent from an infected plant or animal to an individual[81]

•       moving the requirements to destroy vectors on incoming or outgoing aircraft or vessels out of Chapter 2 and into Chapter 4 of the Biosecurity Act[82]and

•       inserting a power for the Director of Human Biosecurity or a chief human biosecurity officer for a state or territory to direct an operator of first point of entry to carry out activities to control vectors.[83]

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[1].              International Convention for the Control and Management of Ships’ Ballast Water and Sediments (BWM), done in London on 13 February 2004, adopted 13 February 2004 and entering into force on 8 September 2017, [2005] ATNIF 18.

[2].              Transport Canada, ‘Ballast water defined’, Transport Canada website, 21 January 2010.

[3].              KM Kim, ‘A study of the implications of the ballast water management convention for flag states’, World Maritime University dissertations, Paper 398, 2013, p. 9.

[4].              Ibid.

[5].              Department of Agriculture and Water Resources (DAWR), ‘Ballast water’, DAWR website, 22 November 2016.

[6].              DAWR, Australian ballast water management requirements: version 6, DAWR, Canberra, 2016, p. 1.

[7].              International Convention for the Control and Management of Ships’ Ballast Water and Sediments (BWM), op. cit., [2005] ATNIF 18.

[8].              Australia has already experienced incursions by pests such as the Asian green mussel. See A Darby, ‘Beware the Asian green mussel, pest among pests’, The Age, 15 July 2003, p. 7.

[9].              ‘Ballast water convention to enter into force in 2017’, The Maritime Executive, 8 September 2016.

[10].              DAWR, ‘Australian ballast water management requirements—version 6’, DAWR website, 22 November 2016.

[11].              For example, Victoria has additional requirements for the management of Australian sourced domestic ballast water which are enforced by the Victorian State Government Environment Protection Authority (EPA) under the Environment Protection Act 1970 (Vic). These are contained in the Environment Protection (Ships’ Ballast Water) Regulations 2006.

[12].              Selection of Bills Committee, Report, 3, 2017, Senate, Canberra, 23 March 2017.

[13].              Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 3, 2017, Senate, Canberra, 22 March 2017.

[14].              Details of the terms of reference, submissions to the Senate Standing Committee on Environment and Communications, and the Committee’s final report are on the inquiry homepage.

[15].              Australian Maritime Safety Authority (AMSA), Submission to the Senate Standing Committee on Environment and Communications, Inquiry into Environmental Biosecurity, n.d., Submission no. 37, p. 1.

[16].              Ibid., pp. 1–2.

[17].              Shipping Australia, Submission to the Senate Standing Committee on Environment and Communications, Inquiry into Environmental Biosecurity, 5 August 2014, submission no. 9, p. 5.

[18].              Explanatory Memorandum, Biosecurity Amendment (Ballast Water and Other Measures) Bill 2017, p. 2.

[19].              The Statement of Compatibility with Human Rights can be found at page 27 of the Explanatory Memorandum to the Bill.

[20].              Parliamentary Joint Committee on Human Rights, Report, 2, 2017, 21 March 2017, p. 117.

[21].              B Joyce (Deputy Prime Minister and Minister for Agriculture and Water Resources), ‘Second reading speech: Biosecurity Amendment (Ballast Water and Other Measures) Bill 2017’, House of Representatives, Debates, 15 February 2017, p. 1074.

[22].              Item 6 of Schedule 1 to the Bill amends the definition of Ballast Water Convention in section 9 of the Biosecurity Act so that if the Ballast Water Convention is amended the Biosecurity Act refers to that amended Convention.

[23].              Biosecurity Act, proposed amendment to section 3, at item 1 of the Bill.

[24].              Ibid. As explained below, the definition of Australian seas differs according to whether the relevant foreign ship’s country is a party to the Ballast Water Convention.

[25].              International conference on ballast water management for ships, Article 3.2(e).

[26].              Biosecurity Act, proposed section 263A inserted by item 14 of Schedule 1 to the Bill.

[27].              Biosecurity Act, section 9.

[28].              Section 9 of the Biosecurity Act provides that ‘Administration’ has the same meaning as in the Ballast Water Convention. It is defined in Article 1.1 of that Convention as ‘the Government of the State under whose authority the ship is operating’.

[29].              Item 4 of Schedule 1 to the Bill.

[30].              Item 5 of Schedule 1 to the Bill.

[31].              Biosecurity Act, proposed subsection 261(2).

[32].              Explanatory Memorandum, Biosecurity Amendment (Ballast Water and Other Measures) Bill 2017, p. 3. See also Acts Interpretation Act 1901.

[33].              Biosecurity Act, section 266.

[34].              Items 16–18 and 24 of Schedule 1 to the Bill.

[35].              Items 19–20 and 22–23 of Schedule 1 to the Bill.

[36].              This is equivalent to $360,000.

[37].              The imposition of strict liability means that a fault element does not need to be satisfied, but the offence will not criminalise honest errors and a person cannot be held liable if he, or she, had an honest and reasonable belief that they were complying with relevant obligations.

[38].              This is equivalent to $90,000.

[39].              Biosecurity Act, section 271; DAWR, ‘Australian ballast water management requirements—version 6’, op. cit.

[40].              Biosecurity Act, section 276.

[41].              Biosecurity Act, section 277.

[42].              Biosecurity Act, sections 279 and 280.

[43].              Biosecurity Act, section 282.

[44].              Biosecurity Act, section 283.

[45].              See footnote 28 for an explanation of ‘Administration’.

[46].              Biosecurity Act, proposed subparagraph 270(4)(b)(i), at item 30 of Schedule 1 to the Bill.

[47].              Biosecurity Act, proposed subparagraph 270(4)(b)(ii).

[48].              Biosecurity Act, proposed paragraph 270(4)(c).

[49].              Biosecurity Act, proposed paragraph 270(4)(d).

[50].              Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 3, 2017, op. cit., p. 5.

[51].              Biosecurity Act, paragraph 272(a).

[52].              Biosecurity Act, proposed paragraph 272(b).

[53].              Biosecurity Act, proposed paragraph 272(d).

[54].              Biosecurity Act, proposed paragraph 275(1)(c) inserted by item 43 of Schedule 1 to the Bill.

[55].              Biosecurity Act, proposed paragraph 275(3)(a) amended by item 46 of Schedule 1 to the Bill.

[56].              Items 55, 57 and 62 of Schedule 1 to the Bill.

[57].              That is, from $90,000 to $21,600.

[58].              Item 80 of Schedule 1 to the Bill repeals and replaces section 286 of the Biosecurity Act to define the nature of a ballast water management plan for a vessel.

[59].              Item 86 of Schedule 1 to the Bill repeals and replaces section 288 of the Biosecurity Act to define the nature of a ballast water management certificate for a vessel.

[60].              Biosecurity Act, proposed subsection 285A(1).

[61].              Biosecurity Act, proposed subsection 285A(2).

[62].              Biosecurity Act, proposed section 285B.

[63].              Biosecurity Act, proposed subsections 285C(1) and (2).

[64].              Explanatory Memorandum, Biosecurity Amendment (Ballast Water and Other Measures) Bill 2017, p. 13.

[65].              The authorisation is not a legislative instrument. Biosecurity Act, proposed subsection 290A(2).

[66].              Biosecurity Act, subsection 292(2).

[67].              Biosecurity Act, subsection 294(1).

[68].              Item 10 of Schedule 1 to the Bill repeals and replaces the term sediment reception facility in section 9 of the Biosecurity Act to mean: for an Australian vessel that is not in Australian seas—a facility for receiving sediment from vessels for treatment or disposal in accordance with IMO guidelines; or otherwise—a facility in Australian territory  for receiving sediment from vessels for treatment or disposal in a way authorised under a law of the Commonwealth or, if the facility is in a state or territory—a law of the state or territory.

[69].              Item 125 of Schedule 1 to the Bill amends subsections 298(2) and (3) of the Biosecurity Act.

[70].              Biosecurity Act, subsection 299(1).

[71].              Biosecurity Act, subsection 299(2).

[72].              Biosecurity Act, subsection 299(3).

[73].              Biosecurity Act, proposed subsection 299A(3).

[74].              Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 3, 2017, op. cit., p. 6.

[75].              Ibid., p. 7.

[76].              Biosecurity Act, proposed section 300B.

[77].              Biosecurity Act, proposed subsection 300C(2).

[78].              Biosecurity Act, proposed section 300D.

[79].              Biosecurity Act, proposed subsections 300B(2), 300C(4) and 300D(2).

[80].              Items 1–3 and 5 of Schedule 2 to the Bill.

[81].              Item 4 of Schedule 2 to the Bill.

[82].              Items 6 and 7 of Schedule 2 to the Bill.

[83].              Item 10 of Schedule 2 to the Bill.