APPENDIX 3
SUBMISSION BY THE OFFICE OF INTERNATIONAL LAW, COMMONWEALTH ATTORNEY-GENERAL'S
DEPARTMENT
Introduction
1. The aim of this submission is to inform the Committee of the major
legislation currently in place at both the Commonwealth and State/Territory
levels with regard to both land-sourced and sea-sourced marine pollution,
with a view to assisting the Committee in assessing the adequacy of
such legislation in giving effect to Australia's obligations under the
United Nations Convention on the Law of the Sea (UNCLOS) and
other international treaties, as referred to at part (a) of the Committee's
Terms of Reference.
2. This submission is divided into two parts, Part A dealing with land-sourced
marine pollution, Part B dealing with sea-sourced marine pollution.
Each part will, first, mention briefly the main international law instruments
and, secondly, the legislation giving effect to those instruments.
PART A: LAND-BASED SOURCES OF MARINE POLLUTION
International obligations
3. At present there exists no specific treaty regime dealing in detail
with the protection of the marine environment from land-based sources
of pollution. While the United Nations Environment Program (UNEP) will
be formulating a global action plan on land-based sources of marine
pollution, to be concluded at a meeting in Washington DC in November
of this year [1995], the action plan is not intended to be legally binding
and it remains to be seen whether and to what extent it will provide
a relevant plan of action for Australia. The Department of the Environment,
Sport and Territories, and not the Attorney-General's Department, is
responsible for managing the Australian role in the action plan. It
will not be referred to further in this submission.
UNCLOS
4. Part XII of UNCLOS deals with the protection and preservation of
the marine environment. It contains two specific provisions relating
to pollution from land-based sources, namely Article 207 and Article
213.
5. Article 207 sets out in general terms the obligations imposed on
States Parties. It provides:
1. States shall adopt laws and regulations to prevent, reduce and control
pollution of the marine environment from land-based sources, including
rivers, estuaries, pipelines and outfall structures, taking into account
internationally agreed rules, standards and recommended practices and
procedures.
2. States shall take other measures as may be necessary to prevent,
reduce and control such pollution.
3. States shall endeavour to harmonise their policies in this connection
at the appropriate regional level.
4. States acting especially through competent international organisations
or diplomatic conference, shall endeavour to establish global and regional
rules, standards and recommended practices and procedures to prevent,
reduce and control pollution of the marine environment from land-based
sources, taking into account characteristic regional features, the economic
capacity of developing States and their need for economic development.
Such rules, standards and recommended practices and procedures shall
be re-examined from time to time as necessary.
5. Laws, regulations, measures, rules, standards and recommended practices
and procedures referred to in paragraphs 1, 2 and 4 shall include those
designed to minimise, to the fullest extent possible, the release of
toxic, harmful or noxious substances, especially those which are persistent,
into the marine environment'.
6. As can be seen, Article 207 provides a framework within which States
are obliged to operate with a view to protecting the marine environment
from land-based sources of pollution. The adoption of laws and regulations
is only one of the measures envisaged by Article 207 to achieve this
purpose. Paragraph 1 of Article 207 does not provide any details as
to what the laws should cover, apart from stating that any legislation
must take into account internationally agreed rules, standards, practices
and procedures and that it should cover pollution from sources such
as rivers, estuaries, pipelines and outfall structures. The precise
content of the legislation is left to individual State Governments.
7. Article 213 deals with enforcement and requires States Parties to
UNCLOS first, to enforce their laws and regulations adopted in accordance
with Article 207 and, secondly, to adopt laws and regulations and to
take other measures necessary to implement applicable international
rules and standards established through competent international organisations
or diplomatic conference to prevent, reduce and control pollution of
the marine environment from land-based sources.
8. Article 213 may accordingly be relied upon to provide the basic
constitutional framework for Commonwealth legislation enacted to enforce
anti-pollution measures taken in accordance with Article 207. Moreover,
because the obligations imposed by Article 213 have been imposed on
Australia as a whole, any enforcement measures adopted by individual
State/Territory Governments to enforce the obligations pursuant to Article
207 could be relied upon by the Federal Government as evidence that
Australia has properly implemented its international obligations pursuant
to these provisions of UNCLOS.
9. Article 207(3) of UNCLOS refers to the need for States to endeavour
to harmonise their policies at the appropriate regional level. The major
regional treaty for the control of pollution to which Australia is party
is the Convention for the Protection of the Natural Resources and
Environment of the South Pacific Region, 1986 (SPREP) and its two
1986 Protocols (these Protocols will be referred to below when dealing
with sea-based sources of marine pollution).
10. The obligations imposed upon Australia by the SPREP are less emphatically
stated than those in the UNCLOS. Thus, Article 5 which deals with general
obligations provides at para. 1 that the Parties `shall endeavour ...
to take all appropriate measures ... to prevent, reduce and control
pollution of the Convention Area, from any source ...'.
11. The language employed in this Article indicates that States Parties
are obliged merely to use their best endeavours to adopt sound environmental
practices and laws and that they should implement this obligation in
good faith, taking into account the national situation. The Convention
thus allows a good deal of leeway for States with regard to the measures
that they may take. Article 7 refers to pollution from land-based sources
and requires the Parties to take `all appropriate measures to prevent,
reduce and control pollution in the Convention Area caused by coastal
disposal or by discharges emanating from rivers, estuaries, coastal
establishments, outfall structures, or any other sources in their territory'.
In this regard, the obligations of the SPREP are very similar to those
contained in Article 207 of UNCLOS. In addition, Article 13 of SPREP
refers to mining and coastal erosion and requires the Parties to `take
all appropriate measures to prevent, reduce, control environmental damage
... in particular coastal erosion caused by coastal engineering, mining
activities, sand removal, land reclamation and dredging'.
12. Pollution is defined at Article 2(f) as meaning the `introduction
by man, directly or indirectly, of substances or energy into the marine
environment (including estuaries) which results or is likely to result
in such deleterious effects as harm to living resources and marine life,
hazards to human health, hindrance to marine activities, including fishing
and other legitimate uses of the sea, impairment of quality for use
of sea water and reduction of amenities'.
13. Like the UNCLOS, the SPREP provides little by way of detail as
to how the various obligations are to be implemented, leaving the manner
in which these obligations are discharged very much to the discretion
of each State Party. The SPREP, like the UNCLOS, should be regarded
as a framework agreement within which States have a general obligation
to prevent pollution.
Legislation to implement these international obligations
Commonwealth
14. There is no Commonwealth legislation dealing specifically with
land-based sources of marine pollution.
State/Territory legislation
15. There is no State or Territory legislation dealing specifically
with land-sourced marine pollution. Pollution of the territorial seas
from sources on land, however, is covered in most States with varying
degrees of generality by environmental legislation. None of this legislation
is expressed to give effect to Australia's obligations arising under
international conventions. However, some are expressed in terms of broad
environmental protection principles found at an international level,
such as ecologically sustainable development; intergenerational equity
(eg. New South Wales, South Australia).
16. A number of different approaches are taken to the issue of pollution
of waters. Some of States have legislation dealing directly with water
pollution (New South Wales, Northern Territory); while the remainder
use general environmental legislation, in which the marine environment
is part of a broadly defined `environment' for the purposes of statutory
protection against pollution.
17. Tasmania has a highly integrated approach to its environment and
planning legislation. New South Wales has a less integrated approach,
but recent legislation brings together, at least at an administrative
level, various disparate acts relating to pollution and protection of
the environment. The Northern Territory deals only briefly with marine
pollution, while South Australia and Victoria are have comprehensive
legislative frameworks. Queensland's environment legislation is extremely
generalised in its definitions and operation. Victoria has both an Act
dealing specifically with marine pollution, and a general environment
Act which encompasses protection of the marine environment from land
sourced pollution.
a. New South Wales
18. Pollution of waters in New South Wales is covered specifically
by the Clean Waters Act 1970, operating in conjunction with the
Protection of the Environment Administration Act 1991, and supplemented
by the Environmental Offences and Penalties Act 1989. While both
pollution and waters are widely defined under the Clean Waters Act,
the Act is chiefly concerned with land-sourced pollution, leaving ship-sourced
pollution to the control of the Marine Pollution Act, which prevails
in the event of an inconsistency between regulations made under the
two Acts (Clean Waters Act, s 4). It is administered by the Environment
Protection Authority, established under the Protection of the Environment
Administration Act 1991 (NSW) to deal with protection of the environment
generally. Contraventions of provisions under the Act are offences under
the Environmental Offences and Penalties Act (NSW) 1989 (Clean
Waters Act, s 36).
Clean Waters Act 1970 (NSW)
19. This Act governs the quality of water in New South Wales. Its area
of application includes `seas of the State', being the territorial sea
adjacent to the State, and the sea on the landward side of the territorial
sea adjacent to the State that is not within the limits of the State
(s 4).
20. The Act requires specific authorisation for certain activities,
including the pollution of waters, installation or construction of equipment
or works for the discharge of pollutants into waters, for the treatment
of pollutants for the purpose of their discharge into waters and for
the storage, treatment and disposal of certain matter.
21. The main substance of the Act with respect to land-sourced marine
pollution lies in its very broad definition of pollution of waters.
To pollute any waters means to place in or on, or otherwise introduce
into or on to, the waters, (whether through an act or omission) any
refuse, litter, debris or other matter, whether solid, liquid or gaseous,
so that the physical, chemical or biological condition of the water
is changed; or it makes or is likely to make the waters unclean, noxious,
poisonous or impure, detrimental to the health, safety, welfare or property
of persons, undrinkable for farm animals, poisonous or harmful to aquatic
life, animals, birds, or fish in or around the waters or unsuitable
for use in irrigation, or obstructs or interferes with, or is likely
to obstruct or interfere with persons in the exercise or enjoyment of
any right in relation to the waters (s 5).
22. This definition is extended still more in Part 5 of the Act, which
deals with the control of pollution of waters. There is a general prohibition:
a person shall not pollute any waters (s 16). This includes polluting
waters by placing any matter in a position where it does or is likely
to fall, descend, be washed, be blown or percolate into any waters,
the dry bed of any waters, any drain, channel or gutter used or designed
to receive or pass rainwater, floodwater, or any water that is not polluted;
or causing or permitting any such matter to be placed there; when the
matter would have polluted or been likely to pollute any waters in which
it had been placed (s 16).
23. The Act also creates various licensing requirements relating to
the pollution of waters, particularly waters classified by the Environmental
Protection Authority under Part 3 of the Act. It is an offence to allow
a drain to pollute classified waters without a licence (s 17). Equipment
for the discharge, storage, treatment or disposal of pollutants or prescribed
substances requires approval (s 19). A person can apply under Part 3A
of the Pollution Control Act 1970 for a licence to pollute waters
as defined in the Clean Waters Act.
24. As a general measure for protecting State waters from pollution,
the Minister has emergency powers to authorise or prohibit the discharge
of pollutants (s 26); and the Environment Protection Authority is authorised
to serve notices requiring an occupier of premises to clean up pollution
risk areas (s 27A).
25. The Act is enforced through the authorisation of officers to enter
premises and inspect equipment for the discharge of waste, or take samples
where they suspect a prohibited discharge may be occurring (s 29). Officers
are also empowered to stop and sample loads being transported by tanker
within the State, if they suspect a pollutant is being conveyed without
authorisation (s 29A).
26. There is a broad power to make regulations under the Act with respect
to matters including prescribing standards and tests for determining
the extent of pollution of any waters; requiring the installation of
monitoring equipment; and more generally, the prevention, control, abatement
or mitigation of the pollution of waters (s 36).
Protection of the Environment Administration Act 1991 (NSW)
27. This Act establishes the Environment Protection Authority (s 5),
which administers the Clean Waters Act. Its objective is to provide
integrated administration for environment protection across New South
Wales (s 4). The Authority must make state of the environment reports
to the Minister (s 10), and may set performance targets for public authorities
in relation to environmental pollution and protection (s 11).
28. In administering the Clean Waters Act, the Authority must
follow the objectives of the 1991 Act. These include protecting, restoring
and enhancing the quality of the environment (including water) in New
South Wales, considering the need to maintain ecologically sustainable
development; and preventing the degradation of the environment by reducing
to harmless levels the discharge into the air, land or water of substances
likely to cause harm to the environment (s 6). The Act also adopts the
precautionary principle, and principles of intergenerational equity,
conservation of biological diversity and ecological integrity (s 6).
29. While the Clean Waters Act does not refer to any international
obligations of Australia with respect to pollution of waters, the Protection
of the Environment Administration Act provides a context for the
operation of the Act which draws on principles suggestive of present
international concerns and objectives in relation to the environment.
Environmental Offences and Penalties Act 1989
30. This Act supplements the Clean Waters Act in protecting
the environment from pollution, by dealing with the pollution of waters
by waste disposal. It creates an offence of wilfully or negligently
disposing of waste, or causing any substance to leak, spill or otherwise
escape, in a manner which harms or is likely to harm the environment,
without authority (ss 5, 6). The `environment' is defined to include
land, waters and atmosphere (s 4); and `harm to the environment' encompasses
the pollution of waters within the meaning of the Clean Waters Act.
31. It is an ancillary offence under the Act to aid, abet, counsel
or procure another person to commit these offences, or to attempt or
conspire to commit them (s 6B).
32. The Act has a wide operation with respect to land sourced pollution
of waters, as it expressly includes acts occurring beyond State boundaries.
As defined, an offence against this Act occurs even if an act or omission
is done outside New South Wales if it causes any substance to come within
New South Wales, that causes or is likely to cause harm to the environment,
and the act or omission would have constituted an offence against the
Act if it had been done in New South Wales (s 4A).
b. South Australia
33. Pollution of waters in South Australia is covered by general environmental
legislation, in the form of the Environment Protection Act 1993.
Again, the Act does not refer directly to international environmental
obligations, but the objectives of the Act are expressed in terms drawn
from the international arena, including the need to promote principles
of ecologically sustainable development, and to minimise harm to the
environment through adopting the precautionary approach to the assessment
of risk of environmental harm (s 10).
Environment Protection Act 1993 (SA)
34. The Act protects the environment, including the marine environment,
from pollution generally. It applies to the coastal waters of the State,
and the air above and earth beneath these waters (s 9). Coastal waters
here comprise that part of the sea that is from time to time included
in the coastal waters of the State by virtue of the Coastal Waters
(State Powers) Act 1980 (Cth) (s 3).
35. The Act creates a general offence of environmental pollution: a
person must not undertake an activity that pollutes, or might pollute,
the environment unless the person takes all reasonable and practicable
measures to prevent or minimise any resulting environmental harm (s
25). It is also an offence to cause serious or material environmental
harm by polluting the environment intentionally or recklessly (Part
9, ss 79-80).
36. It is a defence that an alleged offence did not result from any
failure on the defendant's part to take all reasonable and practicable
measures to prevent the commission of the offence or offences of a similar
nature, or that an act was justifiable on the basis of the need to protect
life, the environment or property in a situation of emergency, and that
the defendant took all reasonable and practicable measures to prevent
or deal with such an emergency (s 124).
37. The Act also provides for the formulation of environment protection
policies containing directly enforceable mandatory provisions (Part
5).
38. Activities which are stated to be of environmental significance
require authorisation (Part 6). These include a number of activities
relevant to land-sourced marine pollution, such as pulp or paper works,
sewage treatment works, piggeries, cattle feedlots, slaughterhouses,
fish processing works, milk processing works, dredging, marinas and
boating facilities, mineral processing, maritime construction works,
stormwater drainage systems, bulk shipping facilities, and discharges
to marine or inland waters which raise the temperature of the receiving
waters, or contain antibiotic or chemical water treatments.
39. Enforcement of the Act is by authorised officers empowered under
Part 10. In addition, the Environment Protection Authority may issue
clean-up orders where the Act is contravened, to make good any resulting
environmental damage (s 99).
Coast Protection Act 1972
40. The Coast Protection Board established under this Act is authorised
(and has the duty) to carry out works necessary or expedient for the
purpose of repairing or restoring any damage to any portion of the coast
resulting from pollution (ss 14, 21).
c. Tasmania
41. The Tasmanian legislation with respect to environment protection,
pollution, planning and development forms a highly integrated framework
with interdependent objectives of sustainable use and development of
natural and physical resources, and air, land and water. It is based
around four principal Acts:
State Policies and Projects Act 1993 (Tas)
Land Use Planning and Approvals Act 1993 (Tas)
Resource Management and Planning Appeal Tribunal Act 1993 (Tas)
Environmental Management and Pollution Control Act 1994 (Tas)
42. Pollution of the marine environment is covered chiefly by the Environmental
Management and Pollution Control Act, which deals with pollution
of the environment at a general level, and in accordance with the principles
of the wider legislative framework.
Environmental Management and Pollution Control Act 1994 (Tas)
43. The Act establishes an environmental management and pollution control
system, with objectives which include: to protect and enhance the quality
of the Tasmanian environment; to prevent environmental degradation and
adverse risks to human and ecosystem health by promoting pollution prevention;
to regulate, reduce or eliminate the discharge of pollutants and hazardous
substances to air, land or water consistent with maintaining environmental
quality; and to control the generation, storage, collection, transportation,
treatment and disposal of waste with a view to reducing, minimising
and where practicable eliminating harm to the environment (Schedule
1, Part 2).
44. The Act covers coastal waters of the State, as defined under the
Coastal Waters (State Powers) Act 1980 (Cth), and deals with
pollution of the environment generally, including water. Under this
Act, `environment' means components of the earth including land, air
and water. The Act does not apply, however, where the Environment
Protection (Sea Dumping) Act 1987 (Tas) and the Pollution of
Waters by Oil and Noxious Substances Act 1987 apply.
45. The pollution control system regulates pollution as a component
of protecting the environment from harm generally, through planning,
assessment and management measures. Pollution is defined in terms of
capacity for causing environmental harm, Environmental harm is any adverse
effect on the environment, whatever the degree or duration of the effect.
This is wide enough to include any adverse effect on the marine environment
in the coastal waters of Tasmania where the source of harm is a land
use.
46. The Act creates the general offences of causing serious environmental
harm by polluting the environment intentionally or recklessly and with
the knowledge that serious environmental harm will or might result (s
50); or material environmental harm (s 51). Defences include the need
to protect life, the environment or property in a situation of emergency,
where all reasonable and practicable measures were taken to prevent
or deal with such an emergency (s 55). There is a duty to notify of
incidents causing or threatening serious environmental harm (s 33).
47. The also Act establishes a Board of Environmental Management and
Pollution Control (s 12),whose functions include protecting the environment
of Tasmania, and ensuring the prevention or control of any act or emission
which causes or is capable of causing pollution (s 14). The Board assesses
applications for permits to undertake Level 2 activities, in accordance
with Environmental Impact Assessment principles (s 25). Level 2 activities
are listed in Schedule 2. They include pulp and paper works, waste treatment
and disposal works, and food production and processing works.
48. Regulations can be made under the Act with respect to the management
of waste, including classification, removal, transport and disposal
of waste; and prohibiting or regulating the disposal of things that
are or contain pollutants and the use and operation of places that will
or may cause or increase pollution of the environment (s 102).
Land Use Planning and Approvals Act 1993 (Tas)
49. The objectives of the planning process established by this Act
include ensuring that the effects on the environment are considered
when decisions are made about the use and development of land (Part
2, Schedule 1). It is the obligation of any person on whom a function
is imposed or a power is conferred under this Act to perform the function
or exercise the power in accordance with the objectives of the resource
management and planning system of Tasmania (s 5). Pollution control
is an indirect part of this system, because the principle of sustainable
development as an element of the system requires consideration of any
adverse effects of activities on the environment. Therefore the prevention
and mitigation of pollution of coastal waters is specifically part of
the land use planning system in Tasmania.
State Policies and Projects Act 1993 (Tas)
50. The Act provides for the making of Tasmanian sustainable development
policies (Part 2), which operate in accordance with the objectives of
the resource management and planning system of Tasmania. It is an offence
to contravene or fail to comply with such policies (s 14).
51. A Sustainable Development Advisory Council is also established
(Part 5), whose functions include producing State of the Environment
Reports relating to the condition of the environment; trends and changes
in the environment; the achievement of resource management objectives;
and recommendations for future action to be taken in relation to the
management of the environment (Part 4).
e. Queensland
52. Pollution of Queensland's marine environment from land sources
is regulated through the general environmental control afforded by the
Environmental Protection Act 1994. The Act does not apply where
the Transport Operations (Marine Pollution) Act applies (s 20).
While the Act does not specifically mention pollution of waters, it
deals with harm to the environment in very broad terms, sufficient to
cover land-sourced pollution of the marine environment.
Environmental Protection Act 1994 (Qld)
53. The broad aim of this Act is to protect Queensland's environment
while allowing for development that improves the total quality of life,
both now and in the future, in an ecologically sustainable way (s 3).
The environment includes ecosystems, all natural and physical resources,
and qualities and characteristics of locations that contribute to their
biological diversity and integrity, scientific interest, amenity, harmony
and sense of community (s 8).
54. The Act creates a general environmental duty (s 36) that a person
must not carry out any activity that causes, or is likely to cause,
environmental harm unless the person takes all reasonable and practicable
measures to prevent or minimise the harm. A range of offences constitute
unlawful environmental harm (s 119), through causing serious environmental
harm (s 120) or material environmental harm (s 121). Environmental harm
is any adverse effect, or potential adverse effect (whether temporary
or permanent and of whatever magnitude, duration and frequency) on an
environmental value (the quality or physical characteristic of the environment
that is conducive to ecological health or public amenity or safety -
s 9). It may be caused as a direct or indirect result of activity; or
from the combined effects of the activity and other factors (s 14).
55. There is also a duty to notify of the threat or occurrence of serious
environmental harm. (s 37).
56. A licence or approval is required to carry out an environmentally
relevant activity (ss 339-340). An activity can be prescribed by regulation
as an environmentally relevant activity if a contaminant may or will
be released when the activity is carried out and the release may or
will cause environmental harm (s 38). Standard criteria must be followed
in considering whether to grant such a licence or authority (s 44),
including the principles of ecologically sustainable development set
out in the National Strategy for Ecologically Sustainable Development
endorsed by the Council of Australian Governments in 1992.
57. Enforcement of the requirements and obligations under the Act is
achieved through empowering officers to issue environmental protection
orders (s 109).
f. Victoria
58. Victorian legislation comprehensively covers land-sourced pollution
of the marine environment. The Environment Protection Act 1970
deals broadly with pollution of the environment, and specifically encompasses
pollution of water. The Marine Act 1988 refers chiefly to ship-sourced
pollution, but expressly includes marine pollution from land sources.
The provisions of the Environment Protection Act 1970 (Vic) prevail
if there is any inconsistency between that Act and provisions of the
Marine Act 1988 (Vic) (s 35).
Environment Protection Act 1970 (Vic)
59. This Act takes a thorough (and extensive) approach to environmental
protection. The environment specifically includes waters (s 4). Waters
include any reservoir, tank, billabong, anabranch, canal, spring, swamp,
natural or artificial channel, lake, lagoon, waterway, dam, tidal water,
coastal water or groundwater (s 4).
60. Part V of the Act deals specifically with clean water. The discharge
or deposit of wastes into Victorian waters must at all times be in accordance
with State environment protection policies specifying acceptable conditions
for the discharge or deposit of wastes into waters in the environment
(s 38).
70. It is an offence to pollute any waters so that the condition of
the waters is so changed as to make those waters noxious or poisonous;
harmful or potentially harmful to the health, welfare, safety or property
of human beings; poisonous, harmful or potentially harmful to animals,
birds, wildlife, fish, other aquatic life, plants or other vegetation;
or detrimental to any beneficial use made of those waters (s 39). This
includes causing or permitting to be placed in or on any waters or in
a place where it may gain access to any waters any matter whether solid,
liquid or gaseous which is prohibited under the Act, or does not comply
with any standard prescribed for that matter.
71. Land-sourced pollution of waters is dealt with specifically. It
is an offence to cause or permit waste to be placed in any position
whereby it could reasonably be expected to gain access to any waters
in circumstances where if access was gained the waste would be likely
to result in those waters being polluted.
72. It is an offence to cause or permit waste to be discharged or deposited
onto the dry bed of any waterway in circumstances where if the waterway
had contained waters the discharge or deposit would be likely to result
in those waters being polluted (s 39).
73. Land-sourced pollution is also dealt with in the regulation of
`Schedule 2 premises'. Schedule 2 premises are those from which waste
is or is likely to be discharged or deposited onto any land or into
any waters (s 4). The occupier of schedule 2 premises shall not install,
construct or modify any equipment for the discharge or deposit of waste
onto any land or into any waters, or for the treatment of waste prior
to and for the purpose of the discharge or deposit of waste onto any
land or into any waters; or do anything which is likely to cause the
discharge or deposit of waste or an increase or alteration in the discharge
or deposit of any waste onto any land or into any waters unless authorised
or licensed (ss 19A, 20). A discharge or deposit of waste into any waters
includes a discharge, deposit or other disposal of waste so that the
waste gains access or is likely to gain access to any waters or onto
the dry bed of any waterway (s 19A).
74. Defences are that the discharge, emission or deposit of waste occurred
in an emergency to prevent danger to life or limb in the absence of
negligence, and the EPA was notified as soon as reasonably practicable
(s 30B).
75. The Act establishes an Environment Protection Authority (s 5),
to administer the Act, coordinate the discharge of wastes into the environment,
for industrial waste management policy, and to issue works approvals
and licences for waste discharges, deposits, and other sources of pollutants
and of substances which are of danger or potential danger to the quality
of the environment; to coordinate research into and long range planning
for pollution control, and to liaise with other States and the Commonwealth
with respect to environment protection, pollution control and waste
management (s 13).
76. The EPA may serve an abatement notice requiring the occupier of
premises from which waste is being discharged into the works of a sewerage,
to limit, modify or monitor the waste discharged from those premises
(s 28B).
77. The Act creates an offence of aggravated pollution. It is an offence
to intentionally, recklessly or negligently pollute the environment
or cause or permit an environmental hazard which results in serious
damage to the environment, a serious threat to public health, or a substantial
risk of these (s 59E).
78. Officers have emergency powers to deal with pollutants where there
is actual or likely imminent danger to life, limb or the environment
(s 62B).
79. There is an extensive regulation-making power which includes waste
and pollution control, regulations and prohibition (s 71), including
specifying the quality and quantity of waste discharged into waters;
specifying the maximum permissible concentrations of any matter that
may be present in or discharged in to waters; regulating the construction,
installation, operation and maintenance of any plant, equipment or facility
so as to prevent or minimise the pollution of waters; prescribing the
processes to be used for the treatment of waste so as to prevent or
minimise the pollution of waters; and prohibiting or regulating bathing,
swimming, boating or other aquatic activity in or around any waters
that may be detrimental to health or welfare or for preventing pollution
(s 71).
80. Industrial waste is subject to stricter controls under the Act.
Any person who handles industrial waste must not cause or permit an
environmental hazard; and must comply with any industrial waste management
policy and regulations (s 27A).
Marine Act 1988 (Vic) - Part 5
81. This Act protects State waters from any discharge of oil, an oily
mixture or an undesirable substance, including a discharge from any
place on land. A discharge of oil or any oily mixture onto or into land
is taken to be a discharge into State waters if it eventually enters
State waters from its source in or on land (s 3).
82. A prohibited discharge is a discharge into State waters of oil,
an oily mixture, or an undesirable substance - which includes any solid
ballast, rubbish, gravel, earth, stone or wreck; any dangerous, flammable,
corrosive or offensive substance, whether solid, liquid or gas, and
any article or thing or any substance capable of constituting a hazard
to navigation or of preventing or hindering the proper use of State
waters (s 3).
83. It is an offence for a prohibited discharge into State waters to
occur from any place on land (s 36). Defences are unforeseeable accident,
and that all reasonable steps were taken for the prompt discovery of
the discharge and, after the discovery, for stopping or reducing the
discharge (s 36).
84. If a prohibited discharge occurs, the appropriate authority or
any public statutory body may take such action as it deems appropriate
to remove, disperse, destroy or mitigate the pollution or to reinstate
or restore any land, building, structure or vessel that has been damaged
by the pollution (s 38).
85. Regulations may require records to be kept by the occupier of a
place, relating to the transfer of oily, an oily mixture, a liquid substance,
or a mixture containing a liquid substance from or to any vessel and
to, from or through that place on land; and the operation of facilities
at that place on land for the disposal of oil residues (s 40).
86. There is a duty to report if a prohibited discharge occurs from
any place on land or any vessel (s 41). Authorised officers may enter
any place on land or a vessel to take samples if they suspect a prohibited
discharge has occurred (s 41).
87. Oil must not be transferred in State waters from or on to a vessel,
whether to or from a place on land or to or from another vessel, without
authorisation (s 42).
Water Act 1989 (Vic)
88. A water authority that has a sewerage district must provide, manage
and operate systems for the conveyance, treatment and disposal of sewage
and some trade waste. It must perform its functions in an environmentally
sound way, having regard to the need to preserve aspects which have
landscape and flora and fauna values (s 173).
g. Western Australia
89. Land-sourced marine pollution in Western Australia falls under
the general regulation of the Environmental Protection Act 1986.
Environmental Protection Act 1986 (WA)
90. The Act deals with the protection of the environment and the prevention
of pollution. The environment is defined broadly to cover waters, and
`waters' refers to any waters whatsoever, whether in the sea or on or
under the surface of the land (s 3). `Pollution' means direct or indirect
alteration of the environment, to its detriment or degradation, to the
detriment of any beneficial use, or of a prescribed kind.
91. Part V of the Act deals with control of pollution. It is an offence
under the Act to cause or allow to be caused pollution (s 49). It is
also an offence to cause or allow waste to be placed in any position
from which the waste could reasonably be expected to gain access to
any portion of the environment and would in so gaining access be likely
to result in pollution (s 50). This encompasses land sourced pollution
of waters.
92. An occupier of any premises (including water) must comply with
any prescribed standard for the discharge of waste and take all reasonable
and practicable measures to prevent or minimise the discharge of waste
from those premises (s 51). The discharge of waste from prescribed premises
requires authorisation (s 56). An application to discharge waste into
a designated area, which includes a catchment area, public water supply
area or irrigation district, requires approval from the Water Authority
(s 57). It is a defence to these offences that a discharge occurred
to prevent danger to human life or health or irreversible damage to
a significant portion of the environment, or as a result of an accident
not caused by the person's own negligence (s 74).
93. There is a duty to notify where a discharge of waste occurs as
a result of an emergency, accident or malfunction, or breaches a licence
or pollution abatement notice, and has caused or is likely to cause
pollution (s 72). The Chief Executive Officer can arrange to remove,
destroy, disperse, dispose of or otherwise deal with the waste that
is discharged, and prevent, control or abate resultant pollution (s
73).
94. It is also an offence to construct, manufacture, assemble or sell
a vehicle or vessel capable of discharging into any waters any matter
that does not comply with standards prescribed, or a device required
by the Act to prevent or minimise the discharge, unless exempted by
regulations (s 76).
95. At an administrative level, the Act continues the existence of
the Environmental Protection Authority of Western Australia, to protect
the environment and to prevent, control and abate pollution.(Part II).
The functions of the Authority include assessment and study of environmental
pollution (s 16),
96. The Authority is required to prepare draft environmental policies
where necessary for the protection of a portion of the environment,
or the prevention, control or abatement of pollution. (Part II). An
approved policy may specify environmental quality objectives, and establish
a program to meet those objectives, including prescribing qualities
and maximum quantities of waste permitted to be discharged into that
part of the environment, and measures designed to minimise the possibility
of pollution (s 35).
97. Part VI, dealing with enforcement of the Act, authorises inspectors
to enter premises and take samples to assess and monitor the effects
of discharge of waste. Breaches of the pollution provisions are enforced
through the issue of Pollution Abatement Notices (s 65).
98. Regulations can be made under the Act for the control, prevention
or abatement of pollution generally (Schedule 2, s 123).
d. Northern Territory
99. Pollution of the marine environment is not comprehensively covered
by Northern Territory legislation. There is no general environmental
legislation. However, the Conservation Commission Act 1980 establishes
a Commission whose functions include promoting the conservation and
protection of the natural environment (which is undefined) of the Territory
(s 19). Pollution of waters in the Northern Territory is dealt with
by two Acts, the Water Act 1992, and the Darwin Port Authority
Act 1983.
Water Act 1992 (NT)
100. The Water Act contains specific provisions for preventing and
regulating water pollution in the Northern territory. The central prohibition
is that a person shall not without specific authorisation cause, suffer
or permit waste to come into contact with water, or allow water to be
polluted, directly or indirectly (s 16). In an emergency, however, the
discharge of waste into water may be authorised by the Minister (s 97).
101. Pollution of water refers to a change in the physical, thermal,
chemical, biological or radioactive properties of the water so as to
render it less fit for a prescribed beneficial use, or so as to cause
a condition hazardous or potentially hazardous to specific elements
of the environment. These elements are: public health, safety and welfare;
animals, birds, fish or aquatic life or other organisms; and plants
(s 3).
102. The Act applies to tidal water, which includes water within the
geographical area of the Territory which is directly affected by the
tide, and coastal waters of the Territory under the Coastal Waters
(Northern Territory Powers) Act 1980 (Cth) declared by the Minister
to be tidal for the purposes of this Act, as well as water in a waterway,
and ground water (s 3).
Darwin Port Authority Act 1983
103. This Act applies to the Port area, the parameters of which are
set out in detail in Schedule 1 to the Act. It is relevant to the matter
of marine pollution, because the Darwin Port Authority is empowered
to make by-laws with respect to the prevention of pollution (s 48).
104. In addition, it is an offence under the Act to put an undesirable
substance into or on a part of the Port, or to allow it to fall or flow
into or on the Port (s 34). An undesirable substance includes: rubbish,
gravel, earth, stone or wreck; flammable, corrosive or offensive substances,
including dangerous goods, and an article, thing or substance capable
of constituting a hazard to navigation, or hindering use of the Port
(s 5). It does not, however, include oil.
105. Defences include the necessity of securing the safety of the vessel,
preventing damage to the vessel or cargo or saving life, where the action
was reasonable in the circumstances; and damage to a vessel resulting
in the flow, followed by the taking of all reasonable steps to minimise
the escape of the substance (s 35).
106. The Port Authority may take such actions as it thinks fit to remove,
destroy, disperse or mitigate the effect of an undesirable substance
which is put, falls or flows into the port. It also has power to seize,
remove, attach or dispose of a vessel, hulk, or hull which is unsafe,
sunk or stranded within the Port (s 17).
Some conclusions
107. As noted above, at para 15, although there is no State or Territory
legislation dealing expressly with land-based sources of marine pollution,
each State as well as the Northern Territory has implemented a system
of environmental controls which covers pollution of the territorial
seas from sources on land. And, while none of this legislation is expressed
to give effect to Australia's international obligations pursuant to
international treaties, nevertheless, much of the legislation is compatible
with these international obligations. Moreover, because the international
obligations set out in UNCLOS and SPREP are phrased in very general
terms only and do not go to any matters of detail, it is possible to
conclude that Australia has, as a nation, abided by its obligation to
adopt laws and regulations to prevent, reduce and control pollution
of the marine environment from land-based sources. Nevertheless, because
of the current absence of any internationally agreed rules, standards
and recommended practices and procedures of the type mentioned in Article
207 of UNCLOS, there are currently no international standards in place
by which to make any realistic assessment regarding the adequacy in
practical terms of the legislative measures adopted by individual State
and Territory Governments within Australia.
PART B: SEA-BASED SOURCES OF MARINE POLLUTION
International Obligations
UNCLOS
108. In contra-distinction to the position regarding land-based sources
of marine pollution, there are several international treaty regimes
while deal both generally and specifically with the protection of the
marine environment from sea-based sources of pollution. As with land-based
sources of marine pollution, a general framework is provided by Part
XII of UNCLOS. Articles 208 and 214 relate to pollution from sea-bed
activities subject to national jurisdiction. The former obliges Australia,
as a coastal State, to adopt laws and regulations as well as to take
any other measures to prevent, reduce and control pollution of the marine
environment arising out of sea-bed activities or from artificial islands,
installations and structures subject to Australian jurisdiction. These
measures must be at least as effective as international rules, standards
and recommended practices and procedures.
109. Article 214 complements Article 208 and requires Australia to
enforce its laws and regulations adopted in accordance with Article
208 as well as to implement applicable international rules and standards
established through competent international organisations or from any
conference.
110. Articles 210 and 216 relate to pollution by dumping. The former
requires States to adopt laws and regulations as well as other measures
to prevent, reduce and control pollution of the marine environment by
dumping. These laws and other measures must be at least as effective
as any existing international rules and standards, in particular, they
must prohibit unauthorised dumping. In this regard Article 210(5) provides
that `dumping within the territorial sea and the exclusive economic
zone or onto the continental shelf shall not be carried out without
the express prior approval of the coastal State, which has the right
to permit, regulate and control such dumping...'.
111. Article 216 complements Article 210 by providing for enforcement
mechanisms. These enable Australia, as the relevant coastal State, to
adopt laws and regulations with regard to dumping within its territorial
sea or the EEZ or onto the continental shelf (Article 216 (1)(a)). In
addition as a flag State, Australia is also obliged to adopt laws with
respect to dumping by vessels flying the Australian flag or vessels
or aircraft registered in Australia (Article 216 (1)(b)). Australia
is also obliged to adopt laws regarding the loading of wastes or other
matter occurring within its territory or at its off-shore terminals
(Article 216 (1)(c)).
112. There are several provision of UNCLOS which relate to the control
of pollution from vessels. These include Articles 211, 217, 218, 219,
220 and 221.
113. Article 211 covers a variety of measures which Australia, as the
coastal State or as the flag State is required to adopt to reduce pollution
or the threat of pollution from vessels. These include:
- the adoption `of routeing systems designed to minimise the threat
of accidents which might cause pollution of the marine environment,
including the coastline, and pollution damage to the related interests
of coastal States' (para 1);
- the adoption of `laws and regulations for the prevention, reduction
and control of pollution ... from vessels flying their flag or of their
registry' (para 2);
- measures may also be adopted `as a condition for the entry of foreign
vessels into their ports or internal waters or for a call at their off-shore
terminals', provided due publicity of such requirements is given (para
3);
- Australia is also entitled in the exercise of sovereignty within the
territorial sea, to adopt laws and regulations for the prevention, reduction
and control of marine pollution from foreign vessels, including those
exercising the right of innocent passage, provided innocent passage
itself is not thereby hampered (para 4);
- laws may also be adopted with regard to vessels polluting in the exclusive
economic zone provided these give effect `to generally accepted international
rules and standards established through the competent international
organisation or general diplomatic conference' (para 5). Where these
are inadequate, coastal States may act through the IMO for the adoption
of special rules (para 6).
114. Article 217 details the action required by Australia, as a flag
State, to ensure compliance by vessels flying the Australian flag with
applicable international rules and standards for the prevention, reduction
and control of pollution. These include prohibiting an offending vessel
from proceeding to sea (para 2); requiring Australian vessels to carry
on board relevant certification relating to the condition of the vessel
(para 3); the carrying out of investigations and where appropriate the
institution of legal proceedings in respect of alleged violations of
international rules and standards by vessels (para 4); and the provision
of penalties `adequate in severity to discourage violations wherever
they occur' (para 8).
115. Article 218 relates to enforcement by Australia, as a port State,
and empowers Australia to undertake investigations of foreign vessels
which are voluntarily within an Australian port or at an off-shore terminal
and, if necessary, to institute legal proceedings in respect of any
discharge from that vessel outside the internal waters, territorial
sea or exclusive economic zone in violation of applicable international
rules and standards (para 1). Certain restrictions on the institution
of proceedings apply.
116. In addition, pursuant Article 219, Australia may take administrative
measures to prevent vessels sailing from an Australian port or off-shore
terminal where the vessel is `in violation of applicable international
rules and standards relating to seaworthiness of these vessels and thereby
threatens damage to the marine environment'. As with Article 218 certain
restrictions apply.
117. Article 220 relates to the action Australia, as a coastal State,
may take for the prevention, reduction and control of pollution from
vessels in Australian waters or in the exclusive economic zone. These
measures vary according to the maritime zone in which the vessel is
located. As a rule of thumb, less drastic action may be taken where
the vessel is beyond the territorial sea.
118. Article 221 should also be mentioned. This enables Australia to
`take and enforce measures beyond territorial sea proportionate to the
actual threatened damage to protect their coastline or related interests,
including fishing, from pollution or threat of pollution following from
a maritime casualty or acts relating to such a casualty, which may reasonably
be expected to result in major harmful consequences' (para 1).
Other International Obligations: Specific Treaty Regimes
119. As may be seen the various provisions of the UNCLOS cited above
contain numerous references to `applicable international rules and standards
established through the competent international organisation or general
diplomatic conference'. This amounts to an acknowledgment that the provisions
of the UNCLOS were intended to operate merely as a framework treaty
and that many of the details had already been or would be picked up
in other international regimes, which could be established either through
specific treaties or, for example, by resolutions or decisions of organisations
such as the International Maritime Organisation (IMO). Several international
treaties to which Australia is a party have been negotiated and these
deal with specific aspects of marine pollution. It is impossible in
the course of this brief review to discuss the detail of any of these
treaty regimes, most of which have been implemented by legislation in
Australia. However, the submission will endeavour to highlight some
of the major features of the most relevant treaties.
MARPOL
120. Australia is a party to the International Convention for the
Prevention of Pollution from Ships, 1973 (commonly known as MARPOL).
The MARPOL regime consists of a basic convention, two Protocols adopted
in 1978 and, at present, five Annexures. The aim of the MARPOL is to
control harmful discharges from ships. To this end, each Annexure deals
with different substances: Annexure I- oil; Annexure II - noxious liquid
substances carried in bulk; Annexure 3 - harmful packages; Annexure
IV - sewage (not yet in force internationally); Annexure V - garbage.
Each Annexure is differently constructed. For example, in the case of
Annexure I (oil) tankers are required to carry on board certificates
to the effect that they comply with the provisions of the Convention.
Apart from those provisions preventing (Regulation 10) or controlling
(Regulation 9) the discharge of oil, there are provisions relating to
the physical construction of oil tankers which must be complied with.
For example, Regulation 13 requires new oil tankers of 70,000 tonnes
or more to be provided with segregated ballast tanks of certain specifications.
Each ship is required to carry on board certification that it complies
with the provisions of the Convention, and the certification is subject
to inspection by port States. Port States are required to prevent ships
from sailing where they pose an `unreasonable threat of harm to the
marine environment' (Article 5).
CLC-FUND
121. The essential aim of the MARPOL regime, as noted above, is to
prevent or to minimise pollution incidents through the use of international
regulations regarding the construction of ships coupled with a detailed
regime for emission controls. The MARPOL does not, however, establish
a liability and compensation regime in the event of a pollution incident
occurring. This has been left to other international instruments. Compensation
for damage caused by oil spills from laden tankers is governed by the
1969 International Convention on Civil Liability for Oil Pollution
Damage (CLC) and the 1971 International Convention on the Establishment
of an International Fund for Compensation for Oil Pollution Damage
(FUND). Both the CLC and FUND have been amended by Protocols in 1984
and again in 1992.
122. The CLC governs the liability of ship owners for oil pollution
damage. The Convention is premised on the principle of strict liability,
thus obviating the need to prove that the ship owner was negligent.
The ship owner is obliged to take out compulsory liability insurance,
in return for which the ship owner's liability is limited or capped
at an amount linked to the tonnage of the ship. This cap may be lifted
if the ship owner was at fault.
123. The FUND Convention, which is supplementary to the CLC, establishes
a regime for compensating victims when the compensation under the CLC
is inadequate. The 1992 Protocol has made these limits of compensation
even higher. Like the CLC the FUND is also premised on the system of
strict liability. The FUND is financed by contributions levied on all
persons who have received in the calender year more than one hundred
and fifty thousand tonnes of crude oil and heavy fuel oil in a State
Party to the FUND Convention. The levy of contributions is based on
reports of oil receipts in respect of individual contributors. The reports
are submitted by Governments but the contributions are paid by the individual
members. Governments have no responsibility for these payments unless
they have voluntarily accepted such responsibility.
124. Compensation under the CLC-FUND is comprehensive. As amended by
the 1992 Protocol compensation is available for pollution damage from
both laden and unladen tankers if this damage is caused in the territory,
including the territorial sea of a Contracting State or within the exclusive
economic zone. Compensation will be paid for all damage to property,
including contaminated fishing boats, fishing gear, yachts, beaches,
piers and embankments. The costs for cleaning polluted property or the
reasonable cost of replacement will also be compensated. Economic loss
suffered by those who depend directly from earnings from coastal or
sea-related activities is also recoverable, for example, loss of earnings
suffered by fisher folk or by hoteliers and restaurateurs at seaside
resorts. Expenses incurred for clean-up operations at sea or on the
shore are also included. These may relate to the deployment of vessels,
the salaries of crew, the use of booms and the spraying of dispersant.
The cost of preventative measures will also be compensated provided
these are reasonable. As for damage to the environment, the IOPC Fund
Assembly adopted in 1980 a Resolution in which it is stated that the
assessment of compensation `is not to be made on the basis of an abstract
quantification of damage calculated in accordance with theoretical models"'
Translated this means that only quantifiable economic loss is recoverable
and not non-economic environmental damage. However, any reasonable measures
for reinstating the measures which have actually been undertaken will
be recoverable.
125. The CFC/FUND regime covers only damage caused by the spill of
oil at sea. A Diplomatic Conference is due to be held in April 1996
under the auspices of the International Maritime Organisation (IMO)
with the aim of adopting a new International Convention creating a liability
and compensation regime for damage caused at sea by hazardous and noxious
substances other than oil. This proposed HNS regime is structured loosely
along the lines of the CLC/FUND.
The Intervention Convention
126. The International Convention Relating to Intervention on the
High Seas in Cases of Oil Pollution Casualties 1969 (Intervention
Convention) is specifically aimed at protecting the interests of States
against the consequences of maritime casualties resulting in danger
of oil pollution of the sea and the coast. To this end it enables States
Parties to `take such measures on the high seas as may be necessary
to prevent, mitigate or eliminate grave and imminent danger to their
coastline or related interests from pollution or threat of pollution
of the sea by oil, following upon a maritime casualty or acts related
to such a casualty, which may reasonably be expected to result in major
harmful consequences' (Article 1(1)).
127. The Intervention Convention does not stipulate what measures may
be taken by the coastal State, thereby giving the States a fair measure
of discretion in this regard. Nevertheless, there are certain steps
which coastal States must follow in exercising its right of intervention,
which are detailed in Article III, one of these being the need to consult
with other States affected by the maritime casualty, particularly with
the flag State or States (para a).
128. This Convention, which does not apply to warships, allows Australia
as a coastal State to take measures in an emergency situation on the
high seas which it might otherwise not have the jurisdiction to undertake.
Salvage Convention
129. In 1989 the International Convention on Salvage was drawn
up which replaced the previous Convention of a similar name which had
been negotiated in 1910 and which was widely regarded as outdated.
130. The main objective of the Salvage Convention is to regulate salvage
operations wherever these take place. In this sense the Convention is
not directly concerned with the prevention or control of pollution of
the marine environment. However, as stated in the Preamble, the States
Parties to the Convention were very conscious of the need to protect
the environment and several provisions of the 1989 text reflect this
concern. Accordingly, Article 8 (1)(b) requires the salvor, in carrying
out salvage operations, `to exercise due care to prevent or minimise
damage to the environment'. A similar duty is imposed on the owner and
master of the vessel or the owner of other property in danger (Article
8 (2)(b)).
131. In addition, Article 9 provides that nothing in the Convention
`shall affect the right of the coastal State concerned to take measures
in accordance with generally recognised principles of International
Law to protect its coastline or related interests from pollution or
the threat of pollution following upon a maritime casualty or acts related
to such a casualty which may reasonably be expected to result in major
harmful consequences, including the right of a coastal State to give
directions in relation to salvage operations'.
132. One of the criteria for fixing the reward due to salvors is the
`skill and efforts of the salvors in preventing or minimising damage
to the environment' (Article 13(1)) and Article 14 provide that, in
the event that a salvor fails to earn a reward under Article 13, special
compensation shall be payable `if the salvor has carried out salvage
operations in respect of a vessel which by itself or its cargo threatened
damage to the environment' (para 1).
133. These provisions, which were not contained in the 1910 Convention,
reflect the growing awareness of the international community of the
need to take into account environmental concerns in the conduct of salvage
operations. The measures adopted, if implemented, should provide the
necessary encouragement to salvors to operate in such a way that will
cause minimal damage to the environment from pollution.
SOLAS
134. Australia is also a party to several International Conventions
which are concerned primarily with the safety of ships and shipping
and thereby indirectly with the prevention of pollution of the marine
environment. These Conventions include the Load Line Convention as
well as the International Convention for Safe Containers but
the most important of these Conventions is undoubtedly the 1974 International
Convention on the Safety of Life at Sea (SOLAS Convention).
135. The SOLAS Convention contains a large number of complex regulations
laying down standards relating to the construction of ships, fire-safety
measures, life-saving appliances, the carriage of navigational equipment
and other aspects of the safety of navigation, the carriage of dangerous
goods as well as special rules for nuclear ships. These standards are
to be prescribed by Contracting States for their vessels. Enforcement
lies largely with the flag State, but port States have a limited degree
of control. They are entitled to see that ships of other Contracting
Parties in their ports have on board valid certificates of the kind
required by the Convention. Where there are `clear grounds for believing
the condition of the ship or of its equipment does not correspond substantially
with the particulars of any of the certificates, or where a certificate
has expired, or where a ship or its equipment do not comply with the
provisions of Regulation 11 of Chapter I of the SOLAS Convention (which
requires the condition of the ship and its equipment to be maintained
after a survey), the authorities of the port State `shall take such
steps as will ensure that the ship shall not sail until it can proceed
to sea without danger to passengers and crew' (Chapter I, Regulation
19).
London Dumping Convention
136. Australia is a party to both international and regional anti-dumping
regimes. In 1972 the Convention on the Prevention of Marine Pollution
by Dumping of Wastes and Other Matter (London Dumping Convention)
was adopted on the basis that, as stated in the Preamble, international
action to control pollution of sea by dumping was urgently required.
The parties to the London Dumping Convention recognised, however, that
other steps should also be taken and the final paragraph of the Preamble
encourages States with a common interest in particular geographical
regions to enter into appropriate agreements supplementary to this Convention.
The Convention for the Protection of the Natural Resources and Environment
of the South Pacific Region, 1986, (SPREP) is accordingly to be
regarded as an `appropriate agreement' supplementary to the London Dumping
Convention.
137. The definition of `dumping' in the two instruments is identical.
It means:
any deliberate disposal at sea of wastes or other matter from vessels,
aircraft, platforms or other man-made structures at sea;
any deliberate disposal at sea of vessels, aircraft, platforms or other
man-made structures at sea (London Dumping Convention, Article III (1)(a);
SPREP, Article 2(b)).
138. Both Conventions specify that dumping does not include:
the disposal at sea of waste or other matter incidental to, or derived
from the normal operations of vessels, aircraft, platforms or other
man-made structures at sea and their equipment, other than waste or
other matter transported by or to vessels, aircraft, platforms or other
man-made structures at sea, operating for the purpose of disposal of
such matter or derived from the treatment of such wastes and other matter
on such vessels, aircraft, platforms or structures;
placement of matter for a purpose other than the mere disposal thereof,
provided that such placement is not contrary to the aims of the Conventions
(London Dumping Convention, Article III (1)(b); SPREP, Article 2(b)).
139. Both the London Dumping Convention and the SPREP Protocol create
a regulatory regime for preventing and controlling the dumping at sea
of wastes or other matter (being material and substances of any kind,
form or description).
140. Both treaty regimes prohibit the dumping of certain wastes and
materials (which are listed in an Annex attached to the Conventions).
A second Annex contains a further list of other wastes and materials
the dumping of which requires a prior special permit. All other wastes
may only be dumped pursuant to a prior general permit (London Dumping
Convention, Article IV; SPREP Protocol, Articles IV, V, VI). There is
an addition a list of the factors contained in a third Annex which must
be taken into account in determining whether or not to grant a permit
(London Dumping Convention, Article IV(2); SPREP Protocol, Article VII).
141. Both treaty regimes require States Parties to apply the measures
to all vessels flying their flag and all vessels and aircraft registered
in their territory; to vessels and aircraft loading in their territory
or territorial seas matters which is to be dumped; and to vessels and
aircraft and fixed or floating platforms under their jurisdiction believed
to be engaged in dumping (London Dumping Convention, Article VII(1);
SPREP Protocol, Article 12(1)).
Legislation to implement these international obligations
UNCLOS
142. With regard to the UNCLOS, it should be noted at the outset that
there has been no implementation of the Convention through one piece
of legislation. However, the Federal Government has from time to time
drawn on the provisions of the UNCLOS, using them as a basis for different
legislative provisions. For pollution prevention purposes, the declaration
of a 200 nautical mile exclusive economic zone (based on Article 57
of UNCLOS) was very significant. The Maritime Legislation Amendment
Act No 20 of 1994 amended the Maritime Legislation Act by
inserting definitions of the terms `contiguous zone', `exclusive economic
zone', and `territorial sea', identical to those contained in the relevant
provisions of the UNCLOS (s 6). While there has as yet been no proclamation
of a contiguous zone, in July 1994 the Governor-General did proclaim
a 200 nautical mile exclusive economic zone under s 7 of the Seas
and Submerged Lands Act 1973 (Special Gazette, No S290 Friday 29
July 1994). Section 10A of the Maritime Legislation Amendment Act
declares that `the rights and jurisdiction of Australia in its exclusive
economic zone are vested in and exercisable by the Crown in Right of
the Commonwealth'. Section 9 of the Maritime Legislation Act
deals with limits of the territorial sea and amends s 7 of the Principle
Act by substituting references in that Act to the Territorial Sea
Convention by a reference to `S 2 of Part II of the Convention' (ie,
UNCLOS). The overall effect of these amendments is to ensure that Australia's
maritime zones are now consistent with those under UNCLOS. The foundation
has accordingly been laid for the exercise of Australia's powers as
well as the execution of its duties under the UNCLOS. Finally, in this
regard, it should be mentioned that several other Commonwealth Acts
were consequentially amended as a result of the amendments introduced
by the Maritime Legislation Amendment Act and these Acts (and
the amendments thereto) are set out in Schedule 1. Among the Acts consequentially
amended is the Sea Installations Act 1987, where the definition
of `Australian fishing zone' has been omitted and the definition of
an `exclusive economic zone' has been inserted (at s 4(1)). These amendments
facilitate the implementation, at least in part, of Articles 208 and
214 of UNCLOS (discussed above at paras 108-109) at least in relation
to sea installations in the Australian exclusive economic zone.
143. The other obligations and powers referred to at paras 108-118
above will be discussed below in conjunction with the legislative measures
taken by Australia to implement the specific treaty regimes.
MARPOL
144. The provisions of the MARPOL Convention and its five annexes have
been comprehensively implemented into Australian law by a mixture of
both Commonwealth and State legislation. The relevant Commonwealth legislation
is the Protection of the Sea (Prevention of Pollution from Ships)
Act 1983 as well as the Navigation Act 1912. The Navigation
Act implements those provisions of the MARPOL relating to ships,
including ship construction, and survey. The Protection of the Sea
(Prevention of Pollution from Ships) Act implements those provisions
of the MARPOL relating directly to prevention of pollution. In this
regard the Act is divided into several Parts, each Part implements a
different Annexure attached to the MARPOL Convention.
145. Essentially, the Act makes it an offence to discharge oil or other
substances into the sea contrary to the conditions set out in the MARPOL.
Other provisions of the Act intended to avoid or minimise the effects
of marine pollution include the obligation to report certain incidents
involving oil or oily mixtures (s 11) other liquid substances (s 22),
harmful packages (s 26B). In 1994 the Act was amended by the provisions
of the Transport and Communication Legislation Amendment Act No 64
so that the Act now applies not only to the Australian territorial sea
but also to the exclusive economic zone.
146. Amendments to the Act introduced by the 1994 legislation also
enable the Authority to require the master of a foreign ship to provide
certain information where the ship is navigating in the territorial
sea or the exclusive economic zone and there are clear grounds for believing
that an act or omission that constitutes a contravention of the Act
has occurred in relation to the ship while in the exclusive economic
zone.
147. Included in the Act are various powers of enforcement. Pursuant
to s 22 and s 27 inspectors have powers of boarding and inspecting ships
for the purpose of ascertaining whether there has been a discharge from
a ship in contravention of the Acts and whether other provisions of
the Act or the MARPOL have been complied with. However, pursuant to
an amendment introduced by the 1994 legislation, no inspections of foreign
ships navigating in the exclusive economic zone are authorised in relation
to acts or omissions of the ship in that zone unless there appear to
be grounds for believing that the act or omission was a substantial
discharge or disposal causing or threatening to cause significant pollution
of the marine environment and a requirement for information pursuant
to s 26G of the Act has not been complied with. This provision was inserted
in order to ensure that the powers of inspection authorised by the legislation
do not exceed those permitted at international law pursuant to UNCLOS,
in particular, the provisions of Article 220.
148. The 1994 amendments also authorise the detention of foreign ships
in connection with pollution breaches. These provisions, contained at
s 27A of the Protection of the Sea (Prevention of Pollution from
Ships) Act have been crafted so as to comply with Australia's powers
pursuant to UNCLOS. For example, it provides for release of the ship
if adequate security has been made. This accords with the provisions
of Article 220(7) of UNCLOS.
149. The Act also provides for prosecution of offences (s 28) and the
1994 amendments now provide, inter alia that the prosecution
must be suspended or terminated if this is required by the provisions
of Article 228 of UNCLOS. This would mean, for example, that legal proceedings
should be suspended if the flag State of the foreign vessels itself
institutes proceedings.
150. The Act also contains a so-called `roll-back' clause which provides,
in effect, that the provisions of the Commonwealth Act will not apply
to the extent that a law of a State or a Territory makes provision giving
effect to the MARPOL (s 33(2)). All six Australian States have passed
their own legislation implementing the provisions of MARPOL. If any
gaps exist, however, they will be covered by the provisions of the Commonwealth
Act.
Legislation of NSW, Tasmania, South Australia, Western Australia
151. The relevant legislation in these four States is the Marine
Pollution Act 1987 (NSW); the Pollution of Waters by Oil and
Noxious Substances Act 1987 (Tas); the Pollution of Waters by
Oil and Noxious Substances Act 1987 (SA); and the Pollution of
Waters by Oil and Noxious Substances Act 1987 (WA).
152. As these Acts are substantively similar, only the West Australian
legislation will be dealt with here. The Act applies to State waters,
which means the territorial sea adjacent to the State, the sea on the
landward side of the territorial sea adjacent to the State that is not
within the limits of the State; and waters within the limits of the
State (s 3). A discharge of oil or of an oily substance or liquid substance
on to or into any land, waters or structure, resulting in all or part
of the oil, oily mixture or liquid substance eventually entering State
waters, is deemed to discharge into those State waters (s 3).
153. Part II deals with pollution by oil. Section 8 makes it an offence
to discharge oil or an oily mixture from a ship into State waters, while
s 10 creates the offence of discharging oil residues into State waters.
Section 9 makes it an offence to discharging oil residues into State
waters and to discharge oil or oily mixtures into any State waters by
reason of a wrongful or a negligent act or omission in a transfer operation,
involving transfer of oil or an oily mixture to or from a ship or a
place on land. Certain exceptions apply, for example, where the discharge
occurred for the purpose of securing the safety of a ship or saving
life at sea; or in consequence of damage to the ship or its equipment
where all reasonable precautions were taken to prevent or minimise the
escape of the oil or oily mixture (s 8). Discharge of oil or an oily
mixture from an oil tanker or large vessel is permissible within prescribed
limits, provided the discharge does not contain chemicals or other substances
in quantities or concentrations that are hazardous to the marine environment
(s 8).
154. As with the Commonwealth legislation, there is a duty to notify
of incidents involving the discharge of oil (s 11) and there is also
a duty for an occupier to notify if any discharge of oil or of an oily
mixture occurs from a place on land into State waters (s 12). As with
the Commonwealth legislation certain vessels, including oil tankers,
are required to keep an oil record book (s 13).
155. Part III deals with pollution by noxious substances. Liquid substances
may be designated and categorised as Category A, B, C or D, in accordance
with Appendix II to Annex II of the Convention (s 18) or listed in Appendix
III to Annex II (s 19).
156. It is an offence to discharge a liquid substance, in prescribed
quantities or concentrations from a ship into State waters, other than
a discharge necessary to save life or secure the safety of the ship
at sea; escape is a result of accidental damage to the ship; or discharges
authorised to combat and minimise specific pollution incidents (s 20).
There is a duty to report if such a discharge occurs (s 22). As with
oil, a cargo book must be carried and maintained by trading ships on
an intrastate voyage carrying liquid substances in bulk (ss 23-25).
157. The Act is enforced through the empowering inspectors to board
ships and take samples where there is a prohibited discharge (s 29).
158. The West Australian legislation contains no provisions for the
detention and release of their source, nor, unlike the Commonwealth
legislation, does not contain any provisions relating to the suspension
or termination of a criminal proceedings pursuant to UNCLOS.
Queensland
159. Queensland enacted the Transport Operations (Marine Pollution)
Act 1995 which is intended to implement the provisions of the MARPOL
but which also contains rather more detailed provisions than the West
Australian legislation noted above.
160. The Act protects Queensland's marine and coastal environment by
minimising deliberate and negligent discharges of ship-sourced pollutants
into coastal waters. (s 3). This is done primarily by giving effect
to relevant provisions of Annexes I, II, III and V of MARPOL. It is
also achieved by providing an approach to protecting Queensland's marine
and coastal environment from ship-sourced pollutants complementary to
the approach of the Commonwealth and other States; by regulating the
discharge of sewage from ships; by giving power to deal with shipping
casualties that are polluting or threatening to pollute coastal waters;
by enhancing industry and community awareness of the effects of ship-sourced
pollutants on Queensland's marine and coastal environment, and by providing
severe penalties for the pollution of Queensland's marine and coastal
environment in contravention of the Act (s 3).
161. The discharge of a pollutant outside coastal waters is taken to
be a discharge into coastal waters under the Act if the discharged pollutant
enters coastal waters (s 9).
162. Queensland's jurisdiction in the territorial sea is limited to
three miles, under the Coastal Waters (State Powers) Act 1980
(Cth). Therefore the Act only deals with discharges from ships that
happen within the three mile limit, or in other coastal waters subject
to the ebb and flow of the tide (s 11).
163. The Act provides for the implementation of marine pollution strategies,
and marine pollution prevention and response programs, to achieve the
objects of the Act, taking into account Australia's international obligations
under MARPOL (s 16-17).
164. Sections 26-28 give effect to Annex I of MARPOL. The discharge
of oil or oil residues from a ship into coastal waters is prohibited.
It is a defence that the discharge was necessary for the purpose of
securing the safety of a ship, or saving life at sea; that the discharge
resulted from unintentional damage to the ship and all reasonable precautions
were taken to prevent or minimise the discharge; that the discharge
was made to combat specific pollution incidents to minimise the damage
from pollution and was approved; or the discharge was authorised for
training purposes. Ships are required to have an onboard oil pollution
emergency plan.
165. Sections 35-36 give effect to Annex II of MARPOL. It is an offence
to discharge a noxious liquid substance from a ship into coastal waters.
Defences are that the discharge was necessary for the purpose of securing
the safety of a ship, or saving life at sea; that the discharge resulted
from unintentional damage to the ship and all reasonable precautions
were taken to prevent or minimise the discharge, and that the discharge
was made to combat specific pollution incidents to minimise the damage
from pollution and was approved.
166. Section 42-43 give effect to Annex III of MARPOL. It is an offence
to jettison a harmful substance carried as cargo in packaged form from
a ship into coastal waters. This includes a leakage of the substance.
Defences are that the jettisoning was made for the purpose of securing
the safety of a ship or saving life at sea; or that the jettisoning
was the washing of leakages overboard, where jettisoning in accordance
with procedures prescribed by regulation would have impaired the safety
of the ship or persons on board.
167. Part 7 of the Act prevents pollution by sewage and gives effect
to Annex IV of MARPOL. Areas of coastal waters can be classified as
high, moderate or low sensitivity zones. It is an offence to discharge
sewage from a ship into a high, moderate or low sensitivity zone. Defences
are that the discharge happened because of damage to the ship or its
equipment, and all reasonable precautions were taken before and after
the damage happened to prevent or minimise the escape of the sewage
(s 48).
168. Part 8 prevents pollution of waters by garbage, to give effect
to Annex V of MARPOL. It is an offence to dispose of garbage (including
plastics) from a ship into coastal waters (s 55). Defences are that
the disposal was made for the purpose of securing the safety of the
ship and persons on board the ship or saving life at sea; that the disposal
happened because of damage to the ship or its equipment and all reasonable
precautions were taken before and after the damage happened to prevent
or minimise the disposal; or that the disposal was the accidental loss
at sea of a synthetic fishing net or repair material, and all reasonable
precautions were taken to prevent the loss (s 56). Exemptions may be
created under regulations, provided that they are exemptions existing
under MARPOL, or relate to fishing or tourism operations (s 57).
169. Part 9 prohibits pollution of coastal waters during transfer operations,
consistently with Annex I and II of MARPOL. It is an offence to discharge
a pollutant into coastal waters during a transfer of pollutants between
a ship and another ship or place (s 61). Defences are operator error,
or fault in apparatus, where all reasonable precautions were taken after
the discharge occurred to prevent or minimise the damage (s 62). Night
transfer operations require authorisation (s 63). Records of transfer
operations must be kept (s 64).
170. Part 10 of the Act provides for reception facilities for waste
under Regulation 12 of Annex I, Regulation 7 of Annex II and Regulation
7 of Annex V to MARPOL (s 66).
171. There is a duty to report incidents which involve a discharge
or probable discharge of oil, a noxious liquid substance or the jettisoning
of a harmful substance carried in packaged form from a ship that happens
in coastal waters (s 67).
172. Authorised officers are empowered to board a ship and take samples
of any pollutant on the ship, or analyse the release of pollutants into
coastal waters from the ship; or to install equipment in the ship to
monitor the release of pollutants into coastal waters from the ship
(s 81). State or port authorities are empowered to direct and coordinate
the response to a discharge or probable discharge of pollutants into
coastal waters (s 93).
173. An authorised officer has emergency powers where satisfied that
a discharge of pollutant into coastal waters has happened or is likely
to happen, and urgent action is necessary to prevent or minimise the
discharge and its effect on Queensland's marine and coastal environment.
The officer can take action to remove, destroy or disperse a discharged
pollutant; to prevent the pollutant from reaching a stated place on
water or land; and to mitigate damage or injury caused to a stated place
or thing on water or land by the pollutant (s 95). An authorised officer
may direct the emergency release of a pollutant into coastal waters
if it is necessary and reasonable to release the pollutant because of
an emergency, and there is no practicable alternative. The release must
be accompanied by all reasonable and practicable precautions to prevent
or minimise harm being caused to Queensland's marine and coastal environment
(s 96).
174. Where there is grave and imminent danger, following a maritime
casualty, to the Queensland coastline, or to related Queensland interests,
from the discharge or threat of discharge of pollutant into coastal
waters that may reasonably be expected to result in major harmful consequences,
the chief executive has powers to intervene to prevent, minimise or
eliminate the danger (s 98). Unless the power to intervene must be exercised
urgently, the chief executive before exercising the power of intervention,
must have regard to Australia's obligations under the International
Convention relating to Intervention on the High Seas in Cases of Oil
Pollution Casualties (s 100).
175. Regulations can be made under the Act about marine pollution issues,
matters necessary to give further effect to MARPOL or another treaty,
convention or international agreement or document about marine pollution;
to give effect to Regulation 8 of Annex II to MARPOL, and adding or
removing a stated liquid substance from the list of those designated
in Appendix II to Annex II; and categorising Category A, B or C substances
(s 133).
176. The Act does not apply to Australian Defence Force ships (s 134).
Victoria
177. In Victoria the provisions of the MARPOL appear to have been implemented
through two separate Acts. The first is the Pollution of Waters by
Oil and Noxious Substances Act, 1986 the stated purpose of which
is to implement the Convention (s 1). There is also the more general
Marine Act 1988, Part V of which is intended to protect State
Waters from any discharge of oil, and oily mixture or of an undesirable
substance. The provisions of these Acts may overlap in certain areas.
The provisions also appear to implement certain provisions of MARPOL
(but will not be elaborated upon in this submission).
178. The Pollution of Waters by Oil and Noxious Substances Act
is expressed to apply, as does the West Australian legislation, to State
Waters (s 3).
Pollution of Waters by Oil and Noxious Substances Act 1986
179. Where there is a discharge of oil or of an oily mixture, or of
a liquid substance or a mixture containing a liquid substance (s 6);
or of a harmful substance (s 7); or of sewage (s 8); or a disposal of
garbage (s 9), on to or into waters or any structure or thing and the
whole or part of it eventually enters any State waters, it is deemed
a discharge or disposal into those State waters.
180. Part 2 of the Act deals with the prevention of pollution from
ships. It is an offence to discharge oil or an oily mixture from a ship
into State waters (s 8), unless the discharge occurred for the purpose
of securing the safety of a ship or saving life at sea; or in consequence
of damage to the ship or its equipment, where all reasonable precautions
were taken to prevent or minimise the escape of the oil or oily mixture;
or that the oily mixture was discharged to combat specific pollution
incidents in order to minimise the damage from pollution and was authorised.
It is also an offence to discharge oil residues (s 9).
181. Discharge of oil or an oily mixture from an oil tanker or large
vessel is permissible within prescribed limits and conditions, provided
the discharge does not contain chemicals or other substances in quantities
or concentrations that are hazardous to the marine environment (s 8).
182. There is a duty to notify of incidents involving the discharge
of oil or an oily mixture into State waters in relation to a ship(s
10). Certain vessels, including oil tankers, are required to keep an
oil record book (s 11).
183. With regard to pollution by noxious substances, regulations may
categorise a liquid substance under Appendix II or III to Annex II to
the Convention (ss 16,17). Liquid substances may be designated and categorised
as Category A, B C, or D, in accordance with Appendix II to Annex II
of the Convention (s 16), or listed in Appendix III to Annex II (s 17).
184. It is an offence to discharge a liquid substance, or a mixture
containing a liquid substance, being a substance or mixture carried
as cargo or part cargo in bulk, from a ship into State waters, in excess
of prescribed quantities or concentrations, other than a discharge necessary
to save life or secure the safety of the ship at sea; escape as a result
of accidental damage to the ship; or discharge authorised to combat
and minimise specific pollution incidents (s 18). There is a duty to
report if such a discharge occurs (section 19).
185. A cargo book must be carried and maintained by trading ships on
an intrastate voyage carrying liquid substances in bulk (ss 20-22).
Regulations may be made to give effect to Regulation 8 of Annex II,
to the Convention (s 23).
186. It is an offence to dispose of garbage from a ship in State waters,
unless it is for the purpose of securing the safety of the ship and
persons on board or saving life at sea (s 23B). This does not apply
to the disposal of garbage (being dunnage, lining or packing materials
which will float and are not plastics) from a ship into the sea if the
ship is not within a special area; the disposal takes place when the
ship is as far as practicable, and at least 25 nautical miles, from
nearest land, and is not within 500 metres of a platform for seabed
exploration. The ship can be at least 12 nautical miles from land if
the garbage is not dunnage, lining or packing materials which will float,
or plastics or food wastes, or at least 3 nautical miles of land if
it is then passed through a fine grinder. Food wastes can be discharged
at least 12 nautical miles if ground. (s 23B).
187. It is not an offence if the garbage escaped because of damage
to the ship or its equipment, and all reasonable precautions were taken
to prevent or minimise the escape. If the garbage is mixed with matter
the disposal of which attracts more stringent conditions, those conditions
must be complied with. (s 23B).
188. The Act also deals with pollution by packaged harmful substances,
being those identified as a marine pollutant in the International Dangerous
Goods Code (IDMG) (ss 23C). This provision is not reflected in the other
State legislation.
189. There is a duty to report prescribed incidents in State waters
(s 23D). This means a discharge or the probable discharge from the ship
of a harmful substance carried as cargo in a packaged form or in a freight
container, portable tank or road and rail tank wagon, other than the
substance being washed overboard in accordance with regulations (s 23D).
190. Discharge by jettisoning of a harmful substance, being a substance
carried as cargo in packaged form or in a freight container, portable
tank or road and rail tank wagon, from a ship into State waters, is
an offence (s 23E). Exceptions are a discharge for the purposes of securing
the safety of the ship or saving life at sea, or a leakage washed overboard
in accordance with regulations or where compliance with regulations
would have impaired the safety of the ship or persons on board (s 23E).
191. The Act deals with the prevention of pollution of State waters
by sewage, giving effect to Annex IV to the Convention (s 23F). It is
an offence to discharge sewage from a ship into State waters (s 23G).
Exceptions are a discharge necessary to save life or secure the safety
of the ship at sea; or the escape of sewage as a result of accidental
damage to the ship or its equipment, where all reasonable precautions
were taken before and after the occurrence of the escape to prevent
or minimise the escape of sewage (s 23G). This does not apply where
the sewage has been comminuted and disinfected, or treated in a sewage
treatment plant on the ship, in accordance with regulations, complying
with Regulation 3 of Annex IV to the Convention; or the ship is at least
12 nautical miles from land, or it is discharged at a prescribed rate.
192. If the sewage is mixed with wastes the discharge of which attracts
more stringent conditions under the Act, those conditions must be complied
with. (s 23G).
193. The Act is enforced through empowering inspectors to board ships
and take samples where there is a suspected prohibited discharge (s
24).
194. A Port Authority may provide reception facilities, in accordance
with Regulation 12 of Annex I, Regulation 7 of Annex II, Regulation
10 of Annex IV, and Regulation 7 of Annex V to the Convention (s 24E).
195. Part 3 of the Act deals with the application of Annex I to the
MARPOL to ships carrying or using oil. It applies to trading vessels
on an intra state voyage, Australian fishing vessels on a non-foreign
voyage, and pleasure vessels (s 34). Regulations made be made under
this Part to give effect to regulations 13 to 19 and 22 to 25 of Annex
I to the Convention (s 36). Ships must be constructed in accordance
with Annex I requirements, and carry ship construction certificates
as required (ss 37, 38, 40). Certain ships must be surveyed regularly
to ensure their compliance with Annex I requirements (s 39).
196. Section 42 authorises regulations be made under this part to give
effect to Regulation 13 of Annex II (s 42). Certain ships must be constructed
in accordance with the requirements of Annex II, and have a chemical
tanker construction certificate (ss 43, 44, 46). Such ships must be
surveyed regularly to ensure their compliance with Annex II requirements
(s 45).
197. Certain ships must be constructed in accordance with the requirements
of Annex II, and have a chemical tanker construction certificate (ss
43, 44, 46). Such ships must be surveyed regularly to ensure their compliance
with Annex II requirements (s 45).
Northern Territory
198. The Northern Territory has an Act entitled the Prevention of
Pollution of Waters by Oil Act 1962. This Act gives effect to the
1954 International Convention for the Prevention of Pollution of the
Sea by Oil (OILPOL), which was the forerunner of the MARPOL Convention.
The Act has not been repealed nor has it been updated in order to take
into account the obligations of the MARPOL Convention.
199. It should be noted in this regard that the provisions of the MARPOL
supersede those of OILPOL for Australia as from 2 October 1983, which
is the date of entry into force of the MARPOL for Australia.
200. Nevertheless, despite this lack of action in updating its legislation
by the Northern Territory Government, because of the operation of the
`roll-back' clause in the Commonwealth legislation, to the extent that
the Northern Territory legislation does not implement the provisions
of the MARPOL, the Commonwealth legislation would operate to cover that
gap. Australia is not therefore in breach of any international obligations
by virtue of the Northern Territory legislation.
CLC/Fund
201. The CLC/Fund Conventions are implemented in Australia by two pieces
of Commonwealth legislation, namely the Protection of the Sea (Civil
Liability) Act 1981 and the Protection of the Sea (Oil Pollution
Compensation Fund) Act 1993. Unlike the situation with the MARPOL
Convention, there is no parallel State or Territory legislation for
implementing these international law regimes. Nevertheless the Protection
of the Sea (Civil Liability) Act does contain a `roll-back' clause
which would enable the provisions of the CLC Convention to be implemented
by State or Territory laws (s 7).
202. Apart from providing that certain provisions of the CLC have the
force of law in Australia (s 8), the Protection of the Sea (Civil
Liability) Act also has specific provisions investing the Supreme
Courts of the States and Territories with jurisdiction to hear and determine
claims of compensation under the provisions of the CLC in respect of
incidents that have caused pollution damage in Australia or in relation
to which preventative measures have been taken to prevent minimised
pollution damage in Australia (s 9). Related provisions concerning limitation
of liability and transfer of proceedings are also included in the Act.
203. Part III of the Act deals with insurance certificates relating
to liability for pollution damage. This implements that part of the
CLC which requires the masters of oil tankers to carry on board the
requisite certificates of insurance.
204. In 1994 amendments effected by the Transport and Communications
Legislation Amendment Act extended the operation of the Act to foreign
ships in the Australian exclusive economic zone. For practical purposes
this means that ships may be detained for breaches of the Act if they
are in the exclusive economic zone and to this end may be escorted into
a port in Australia (s 22). These amendments are in line with Australia's
powers pursuant to the UNCLOS.
205. The Fund Convention was implemented by the provisions of the Protection
of the Sea (Oil Pollution Compensation Fund) Act 1993, s 31 which
provides that several provisions of the Convention have the force of
law in Australia. The Act also makes provision for action against the
Fund for compensation to be brought in the Federal Court of Australia
or in the Supreme Court of State or Territory (s 32). The Act also provides
that the Fund is a legal person and several provisions deal with the
obligation to make contributions to the Fund in accordance with the
provisions of the Convention.
The Intervention Convention
206. The Intervention Convention has been implemented in Australia
by the Protection of Sea (Powers of Intervention) Act 1981 (Cth).
There is no complementary State or Territory legislation implementing
this Convention.
207. Because of the fact that the Intervention Convention expressly
authorises coastal State to take intervening action on the high seas,
the Act is expressed to apply both `within and outside Australia and
extends to every Territory' (s 6). Essentially, the Act authorises the
Australian Maritime Safety Authority, if of the view that, following
upon a maritime casualty or acts related to such a casualty, there is
a grave and imminent danger to the coastline of Australia, or to the
related interests of Australia, from pollution or threat of pollution
of the sea by oil which may reasonably be expected to result in major
harmful consequences, to take such measures on the high seas as it considers
it necessary to prevent, mitigate or eliminate the danger (s 8(1)).
208. The powers conferred on AMSA by the Act are substantial and include
the power to move the ship from one place to another; to remove cargo
from ships; to salvage the ship or its cargo; to sink or destroy the
ship or part of the ship; to sink, destroy or discharge into the sea
any of the ships cargo; or to take over control of the ship or part
of the ship (s 8(2)). The exercise of these powers are, however, subject
to the approval of the Minister (s 8(2A)) who is obliged to act in accordance
with Articles III and V of the Intervention Convention (s 8(4)).
209. Other provisions of the Act empower AMSA to take similar measures
in relation to the prevention of pollution of the sea by substances
other than oil - these measures implement the Protocol to the Convention
which, like the Convention itself is attached to the Act as a separate
Schedule.
210. Section 10 of the Act empowers the AMSA to act to prevent pollution
of the marine environment in situations that are not covered by the
provisions of the Intervention Convention or its Protocol. In this regard
AMSA is authorised to take action in relation to all ships in internal
waters and the Australian coastal sea and with regard to any Australian
ship on the high seas (s 10(1)). Where oil or a noxious substance is
escaping or has escaped from a ship, AMSA is empowered to any necessary
measures to prevent or reduce the extent of the pollution or likely
pollution of any Australian waters, any part of the Australian coast
or any Australian reef (s 10(2)). Once again, certain safeguards are
built into this section of the Act. In particular, the Minister must
approve any action taken by AMSA (s 10(3A)). Any action taken by the
Minister or AMSA must be proportionate to the danger threatened (s 10(4)).
211. These provisions of the Act, although not sanctioned by the Intervention
Convention or its Protocol, nevertheless accord with the powers vested
in Australia as the coastal State by the provisions of Article 221 of
UNCLOS, noted at para 118 above.
The Salvage Convention
212. The Salvage Convention, which will enter into force internationally
in July 1996, will be implemented in Australia by amendments to the
Navigation Act 1912 (Cth) effected by the Transport Legislation
Amendment Act 1994. The Amendment Act received Royal Assent
on 27 July 1995. Australia is yet to deposit its Instrument of Accession
with the IMO which will make Australia party to the Salvage Convention.
Accession is, however, expected to take place within the near future.
213. The effect of these legislative amendments is to substitute the
1910 Salvage Convention by the 1989 Salvage Convention thereby enabling
Australia to take advantage of those provisions of the new Convention
which relate specifically to protection of the marine environment as
discussed above at paras 130 to 133.
SOLAS
214. Part IV of the Navigation Act 1912 on Ships and Shipping
implement the provisions of the SOLAS Convention relating to the standards
to be employed with regard to the construction of ships, safety measures
and related matters. As noted above at paras 134-135 the provisions
of this Convention, by aiming to ensure the adequacy of ship standards,
indirectly contribute to keeping the marine environment free from pollution.
They are not, however, directly concerned with the control of pollution.
London Dumping Convention/SPREP
215. At the Commonwealth level the London Dumping Convention has been
incorporated into Australian law by the Environment Protection Sea
Dumping Act 1981. The 1981 Act was amended in 1994 by the Environment
Protection (Sea Dumping) Amendment Act to bring within its scope
the obligations undertaken by the SPREP. In addition, four of the States,
namely South Australia, Western Australia, Tasmania and Queensland have
enacted legislation giving effect to the London Dumping Convention.
216. The Act creates a regulatory regime for the dumping of wastes
as required by the Conventions. Section 9A prohibits the dumping of
radioactive material into Australian waters from any vessel or aircraft
or into any part of the sea from any Australian vessel, Australian aircraft
or Australian platform. Liability attaches not only to the owner and
person in charge of the vessel, aircraft or platform but also to the
owner of the material.
217. The term `Australian waters' for both this and other sections
of the Act means:
the territorial sea of Australia and any sea that is on the landward
side of the territorial sea other than any part of the sea that is within
the limits of a State or of the Northern Territory;
the territorial sea of an external territory and any sea that is on
the landward side of that territorial sea;
each area of sea that consists of that part of the Australian fishing
zone adjacent to and on the seaward side of, the territorial side of
Australia or the territorial sea of an external territory; or
any other area of sea -
(a) that is above the Australian continental shelf or the continental
shelf of an external territory; and
(b) that does not form part of the Australian fishing zone (s 4).
218. The expression `Australian fishing zone' has the same meaning
as in the Fisheries Management Act 1991 (Cth) (s 4) and the term
`dumping' has the meaning prescribed by the London Dumping Convention
(s 4(4)).
219. The Act also prohibits the dumping of wastes or other matter (other
than radioactive material) without a permit (s 10); the dumping of vessels
otherwise than in accordance with the permit (s 11); the loading of
wastes or other matter without a permit for the purpose of being dumped
into the sea and or being incinerated at sea (s 12). The Act also prohibits
the incineration at sea of a range of listed wastes or other matter
or requires a licence for such incineration (s 14).
220. The Act also sets up a comprehensive system for the granting of
permits. On the enforcement side, the Act has provisions for the appointment
of inspectors (s 28) and sets out the powers and functions of such inspectors.
These include the boarding of vessels (s 29), access to premises (s
30), powers of search (s 31), and powers of arrest (s 32).
221. As noted above, Australia's obligations under the London Dumping
Convention are also given effect in the legislation of four States:
Environment Protection (Sea Dumping) Act 1984 (SA)
Western Australian Marine (Sea Dumping) Act 1981(WA)
Environment Protection (Sea Dumping) Act 1987 (Tas)
Queensland Marine (Sea Dumping) Act 1985 (Qld)
These Acts deal with ship-sourced marine pollution within coastal waters
in almost identical ways. The main obligations relate to the dumping
of wastes or other prohibited matter within coastal waters, the incineration
of certain wastes at sea, and the loading of such wastes for the purpose
of being dumped or incinerated in coastal waters.
222. The Acts are expressed to apply to coastal waters, as defined
under the Coastal Waters (State Powers) Act 1980 (Cth). The West
Australian Act also applies to port waters. With the exception of Queensland,
however, none of the Acts apply to the disposal of wastes in relation
to the exploration, exploitation and processing of seabed mineral resources.
The Tasmanian Act also excludes the disposal of dredgings from ports
within port waters which are not part of the territorial sea of the
Commonwealth.
223. Each Act gives effect to Article IV of the London Dumping Convention,
by prohibiting the dumping of any wastes or other matter, or of any
vessel, aircraft or platform, in the coastal waters of the State without
a permit. It is also an offence under the Queensland Act to dump
wastes from seabed mineral exploration, exploitation or processing into
coastal waters.
224. In accordance with Article V of the Convention, there are two
defences available for a breach of this prohibition. The first requires
proof that the dumping was necessary to secure the safety of human life,
or of a vessel, aircraft or platform, at sea in a case of force majeur
caused by stress of weather. The second requires a defendant to prove
that the dumping was the only reasonable way of averting a threat to
human life, or to the safety of a vessel, aircraft or platform, at sea
and there was every probability that the damage caused by such dumping
would be less than would otherwise occur. In either case, the dumping
also must have been conducted so as to minimise the likelihood of damage
to human or marine life; and a report must be furnished to the relevant
Minister as soon as practicable afterwards.
225. The Acts also implement the 1978 Amendments to the Convention
dealing with incineration of wastes at sea. Incineration at sea carried
out on a vessel in coastal waters or a platform fixed to the seabed
beneath coastal waters is prohibited absolutely for wastes and other
matter listed in paragraphs 2, 3, 4, 6 and 7 of Annex I to the London
Dumping Convention, except in an emergency posing an unacceptable risk
to human life and admitting of no other feasible solution. It is prohibited
in the absence of a permit for any other wastes or other matter, including
wastes or other matter listed in paragraphs 1 and 5 of Annex I, or listed
in Annex II, to the Convention.
226. The actual control exercised by the States over dumping and incineration
is extended beyond the coastal waters limits of the above provisions,
by creating offences with respect to the loading of vessels, in accordance
with Article VI of the Convention. The four Acts make it an offence
to load onto a vessel or aircraft in the State or in coastal waters
any wastes or other matter, or any vessel, aircraft or platform, for
the purpose of dumping it into the sea or having it incinerated at sea,
without a permit.
227. The grant of permits by a Minister for dumping, incineration or
loading is subject to controls laid out in the Convention. Permits may
only be granted for the dumping or loading of waste or other matter
to which Annex I of the Convention applies where there is an emergency
posing an unacceptable risk to human health and admitting no other feasible
solution. Likewise, permits may not be granted for the incineration
at sea of wastes listed in paragraphs 2, 3, 4, 6 and 7 of Annex I to
the Convention.
228. In deciding whether to grant a permit for dumping, the Minister
must consider the factors set out in Annex III of the Convention; Section
B of Annex II where that applies; and recommendations referred to in
Section D of Annex II where the section applies. In granting a permit
for incineration at sea of wastes or other matter listed in Annex I
or II, the Minister must consider the Addendum to Annex I and the Technical
Guidelines adopted by the contracting parties. For radioactive wastes
in particular, it may be a condition of the grant of a permit that an
escort accompany a vessel to observe loading and dumping procedures,
monitor radiation levels caused by the wastes, and give appropriate
directions.
229. Preventative or control measures are implemented in the Acts by
empowering the relevant Minister to take steps to repair or remedy any
condition, or mitigate any damage arising from dumping in coastal waters
that is likely to constitute a danger or obstruction to vessels, result
in harm to human or marine life (Tasmania includes birdlife), or (except
for Tasmania) result in interference with the exercise of the sovereign
rights of Australia as a coastal State to explore and exploit the natural
resources of the seabed and subsoil lying beneath Australian waters.
230. Given the fact that the Commonwealth Act does not apply to waters
within the limit of this State or of the Northern Territory, coupled
with the fact that only four of the States have adopted legislation
implementing the London Dumping Convention, it is possible that there
would be some gaps in coverage, insofar as the act of dumping occurs
in waters which are within the limits of NSW, Victoria and the Northern
Territory.