Bills Digest no. 35 2015–16
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WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Sophie Power and Bill McCormick
Science, Technology, Environment and Resources Section
22 October 2015
Contents
Purpose of
the Bill
Structure of
the Bill
Background
Committee
consideration
Policy
position of non-government parties/independents
Position of
major interest groups
Financial
implications
Statement of
Compatibility with Human Rights
Key issues
and provisions
Date introduced: 9
September 2015
House: House of
Representatives
Portfolio: Infrastructure
and Regional Development
Commencement: The substantive provisions of Schedule 1 commence 28 days after Royal
Assent while those of Schedule 2 commence the later of 28 days after Royal
Assent or 1 March 2016.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the ComLaw
website.
The purpose of the Maritime Legislation Amendment Bill
2015 (the Bill) is to:
The Bills contains two schedules. In Schedule 1:
- Part
1 amends the definition of dangerous goods in the Navigation Act
- Part
2 makes minor drafting corrections to the Protection of the Sea (Civil
Liability) Act and the Protection of the Sea (Civil Liability for Bunker
Oil Pollution Damage) Act and
- Part
3 amends the Prevention of Pollution from Ships Act in relation to
waters of the sea that are within the limits of a state or an external
territory of Australia.
Schedule 2 amends the Prevention of Pollution from
Ships Act to ensure offences relating to ships carrying heavy grade oil in
Antarctic waters include situations where such oil is being carried as ballast.
Australia is a party to numerous conventions relating to the
safety of shipping, including:
- International
Convention for Safety of Life at Sea (SOLAS), which is concerned with the
safety of merchant ships and specifies minimum standards for the construction,
equipment and operation of those ships[5]
and
- International
Convention for the Prevention of Pollution from Ships (MARPOL), the main
international convention covering the prevention of pollution of the marine
environment by ships (from accidental or operational causes).[6]
These treaties are administered by the International
Maritime Organization (IMO), a United Nations agency with responsibility for
the safety and security of shipping and the prevention of marine pollution by
ships.[7]
Preventing pollution from ships
MARPOL regulates six sources of ship-sourced marine
pollution through its six separate Annexes:
- Oil
(Annex I)
- Noxious
Liquid Substances in Bulk (Annex II)
- Harmful
Substances Carried by Sea in Packaged Form (Annex III)
- Sewage
from Ships (Annex IV)
- Garbage
from Ships (Annex V) and
- Air
Pollution from Ships (Annex VI).
Decisions on the amendment of MARPOL are made by the
Marine Environment Protection Committee of the IMO.[8]
In Australia, MARPOL is given effect domestically through the Prevention of
Pollution from Ships Act and the Navigation Act.[9]
Prohibition on heavy grade oil in
the Antarctic area
Regulation 43 in Annex I of MARPOL prohibits the carriage
of heavy grade oil (HGO) for use as fuel or as cargo in bulk in the Antarctic
area.[10]
The intent is to prevent the possibility of HGO being spilt in the sensitive
and vulnerable waters of the Antarctic Area. This prohibition is reflected in
Australia in sections 10A and 10B of the Prevention of Pollution from Ships
Act.
Heavy grade oil has a higher density and viscosity than
light oils[11]
and is defined to mean:
- crude
oil having a density at 15°C higher than 900 kg/m3
- oil,
other than crude oil, having a density at 15°C higher than 900 kg/m3
or a kinematic viscosity at 50°C higher than 180 mm2/s or
- bitumen,
tar and their emulsions.[12]
Incident in 2013
In April 2013, Chinese flagged krill fishing vessel, the Kai Xin, caught fire and sank in the Bransfield
Strait, approximately 1,000 kilometres south of South America,
between the South Shetland Islands and the Antarctic Peninsula.[13]
Initial news reports stated that all 97 crew were rescued and there was no indication
of an oil spill.[14]
An oil spill was feared, however maritime governor for
Chile’s Antarctic Region, Captain Juan Villegas, said that due to a fire on
board environmental disaster was unlikely. ‘Experts say if there was any fuel
on board it would have burned out.’[15]
It was discovered that the 104 metre long fishing vessel
was carrying heavy grade oil (HGO) in its ballast tanks for use outside
Antarctic waters.[16]
As noted above, Annex I of MARPOL specifically prohibits the carriage of HGO for
use as fuel or as cargo in bulk in the Antarctic area. However, because MARPOL
did not specifically refer to the use of HGO as ballast, some countries
considered the practice acceptable.[17]
As a result of this incident, an amendment to Regulation 43 of Annex I of MARPOL
was proposed to eliminate this loophole. The amendment, which inserts ‘use of
ballast’ between the words ‘the carriage of bulk as cargo’ and ‘or carriage and
use as fuel’, was adopted by the Marine Environment Protection Committee of
MARPOL on 17 October 2014.[18]
Joint Standing Committee on
Treaties
The Joint Standing Committee on Treaties has considered
the amendments to MARPOL relating to the use of HGO as ballast.[19]
The Committee supported the amendments to MARPOL and recommended that binding
treaty action be taken.[20]
In doing so, the Committee noted that:
The amendment to Annex I will ensure that the original intent
of the Parties to MARPOL is given effect by explicitly banning the carriage of
HGO in bulk as cargo in ballast tanks in the Antarctic Area.[21]
Selection of Bills Committee
The Selection of Bills Committee decided not to refer the
Bill to a committee.[22]
Senate Standing Committee for the
Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills had
no comment on this Bill.[23]
At the time of writing, no non-government parties or
independents appear to have commented on the Bill.
At the time of writing, no major interest groups appear to
have commented on the Bill.
According to the Explanatory Memorandum, the Bill is not
expected to have any significant financial impact.[24]
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[25]
Parliamentary Joint Committee on
Human Rights
The Parliamentary Joint Committee on Human Rights considered
that the Bill does not raise human rights concerns.[26]
Prohibition on heavy grade oil in
the Antarctic Area
Schedule 2 contains the main substantive amendments in the
Bill. These amendments implement the MARPOL amendments to prohibit the use of
HGO as ballast in the Antarctic Area as discussed in the background section of
this Digest.[27]
In particular, Schedule 2 amends sections 10A and 10B of
the Prevention of
Pollution from Ships Act.[28]
Section 10A currently prohibits the carriage or use of heavy grade oil on
Australian ships in the Antarctic Area, while section 10B prohibits the carriage
or use of heavy grade oil on foreign ships in the Australian Antarctic
Territory.[29]
The maximum penalty is 2,000 penalty units which currently equates to $360,000,
while the penalty for the strict liability offence in subsections 10A(2) and
10B(2) is 500 penalty units or $90,000.[30]
Exceptions are provided where it is necessary to secure the safety of a ship or
save life at sea.[31]
In order to implement the amendments to Annex I of MARPOL
as outlined in the background section of this Digest, item 1 of Schedule
2 amends section 10A to insert wording to ensure these offences extend to HGO being
used as ballast in Australian ships in the Antarctic Area. Item 3 makes
the same amendments to section 10B to prohibit HGO being used as ballast
in foreign ships in the Australian Antarctic Territory. Items 2 and 4
extend the existing exemptions so that the offences will not apply to
situations where HGO is being carried as ballast for the purpose of securing
the safety of a ship or saving life at sea.
Definition of dangerous goods in
the Navigation Act
As noted earlier in this Digest, the International
Convention for Safety of Life at Sea, or SOLAS, is concerned with the
safety of merchant ships. Chapter VII of SOLAS regulates carriage of dangerous
goods and requires the carriage of dangerous goods to be in compliance with the
International Maritime Dangerous Goods Code (IMDG Code).[32]
The IMDG Code is issued by the IMO and was developed under SOLAS as a uniform
international code for the transport of dangerous goods by sea covering such
matters as packing, container traffic and stowage. The Code classifies
dangerous goods into different classes, and describes characteristics and
properties of the substances, material and articles which would fall within
each class or division. Individual dangerous goods are also listed in the
Dangerous Goods List under the IMDG Code.[33]
Part 1 of Schedule 1 of the Bill amends the definition of
dangerous goods in the Navigation
Act 2012.[34]
Currently, section 14 defines ‘dangerous goods’ as the ‘goods listed in the
International Maritime Dangerous Goods Code’. Item 1 of Part 1 of
Schedule 1 repeals this definition and inserts a new definition which states
that ‘dangerous goods has the same meaning as in Chapter VII of the Safety
Convention’.[35]
The ‘Safety Convention’ is already defined in section 14 to mean SOLAS ‘as
amended and in force for Australia from time to time’.[36]
Under SOLAS, dangerous goods are defined to mean ‘the substances, materials and
articles covered by the IMDG Code’.[37]
The Explanatory Memorandum suggests this amendment will
‘broaden the definition’ of dangerous goods and will also ensure ‘consistency
with Australia’s treaty obligations, State and Territory legislation, and
industry practice’.[38]
As the Explanatory Memorandum states:
The current definition ... limits the scope of dangerous goods
to those listed in the IMDG Code, whereas the IMDG Code also covers goods that
are properly characterised as dangerous, but which are not yet listed.[39]
The current definition of dangerous goods in the Navigation
Act could indeed be restrictively interpreted to mean only those goods listed
in the IMDG Code, rather than the broader classes of dangerous goods identified
by the IMDG Code. However, the practical implications of these different definitions
are unclear. No examples are given in the Explanatory Memorandum of any
dangerous goods that might not be covered by the current definition. Perhaps
another option to achieve the same result may have been to amend the definition
of dangerous goods in the Navigation Act to simply replace the word
‘listed’ with the word ‘covered by’, given that SOLAS itself defines dangerous
goods as the ‘substances, material and articles covered by the IMDG Code’.
Definitions of ‘sea near’ a State
or external Territory
Part 3 of Schedule 1 of the Bill proposes to amend the
definition of ‘sea near’ a state or external territory in the Prevention
of Pollution from Ships Act. These amendments relate to provisions which
attempt to clarify the application of the Act in the context of Commonwealth
and state or territory jurisdictional boundaries over certain maritime areas.[40]
In particular, the Prevention of Pollution from Ships Act contains a
number of ‘roll back’ provisions which are designed ‘to prevent Commonwealth
legislation prevailing over state/territory legislation where such legislation
applies to that particular sea area’.[41]
For example, section 9 of the Prevention of Pollution from Ships Act contains
a prohibition on the discharge of oil into sea, including into the ‘sea near a
State’ where there is no relevant state law.[42]
The Maritime
Legislation Amendment Act 2012 (2012 Act) amended some of these
‘roll back provisions’ with the aim of clarifying the operation of the Prevention
of Pollution from Ships Act, and the application of Commonwealth jurisdiction
in parts of the territorial sea.[43]
The 2012 Act attempted to do this by inserting new definitions of the
terms ‘sea near’ and ‘outer territorial sea’
into section 3 of the Prevention of Pollution from Ships Act. The idea
was, in applying various offence provisions in the Prevention of Pollution
from Ships Act, to distinguish between activities that occur in the ‘sea
near’ a state or territory (which may be subject to legislation by the state or
territory) and activities which occur in the ‘outer territorial sea’ (over
which the Commonwealth has jurisdiction).[44]
As a result of the 2012 Act, subsection 3(1A) of
the Prevention of Pollution from Ships Act currently provides that, for
the purposes of the Act, the sea near a State is:
(a) the part
or parts of the territorial sea that are:
(i)
within 3 nautical miles of the baseline of the territorial sea; and
(ii)
adjacent to the State; and
(b) the waters
of the sea that are:
(i)
on the landward side of the baseline of the territorial sea; and
(ii)
adjacent to the State and not within the limits of the State.[45]
Part 3 of Schedule 1 amends this definition of ‘sea
near’ a state or external territory in the Prevention of Pollution
from Ships Act. Item 10 of Schedule 1 proposes to repeal paragraph
3(1A)(b), and replace it with:
(b) the
waters of the sea that are on the landward side of that part or those parts of
the territorial sea (including any waters of the sea that are within the limits
of the State).
Item 11 makes the same amendment to paragraph
3(1C)(b), which defines the ‘sea near an external Territory’.
According to the Explanatory Memorandum, these amendments
will ‘reinstate the law so that it applies to any waters of the sea that are
within the limits of the State’.[46]
The Explanatory Memorandum further states that ‘an unintended consequence’ of
the 2012 amendment was that a number of offence provisions in the Prevention
of Pollution from Ships Act that operate by reference to a sea near a state
‘no longer apply in some waters of the sea that are within the limits of that
State’.[47]
No further explanation is provided. It appears that this may mean, for example,
internal waters on the landward side of the baseline of the territorial sea,
such as certain bays, gulfs, estuaries, inlets, ports or harbours which might
be ‘within the limits of the State’.[48]
As such, the 2012 amendments may have actually excluded these sorts of internal
state coastal waters from the operation of the Prevention of Pollution from
Ships Act. This is because the definitions of ‘sea near a State’ and ‘sea
near an external Territory’ excluded waters within the limits of the state or territory.
This may have left a gap in coverage and implementation of MARPOL in certain
situations where the particular state or territory has no relevant legislation.
However, it is unclear whether this has had any practical implications or
consequences, and no examples are given in the Explanatory Memorandum.
Minor drafting corrections
Item 3 of Part 1 of Schedule 1 corrects a minor
drafting error in section 96 of the Navigation Act, which provides a
simplified outline of Chapter 3 of the Act (which relates to Vessel Safety).
Items 7, 8 and 9 in Part 2 of Schedule 1 correct
minor drafting errors in the Protection of the Sea
(Civil Liability for Bunker Oil Pollution Damage) Act 2008 (Bunkers Act).[49]
These errors appear to have occurred during the enactment of the Navigation
Act. In particular, the current definition of ‘domestic voyage ship’ in
section 3 of the Bunkers Act states that it has the meaning given by
subsection 10(3). However, there is no subsection 10(3) in the Bunkers Act.
That subsection was repealed by the Navigation
(Consequential Amendments) Act 2012, which introduced the concept of a
‘regulated Australian vessel’ rather than ‘domestic voyage ship’. Those
amendments also referred to the definition of ‘regulated Australian vessel’ which
can be found in section 15 the Navigation Act.[50]
Items 7, 8 and 9 in this Bill remove remaining references to the concept
of a domestic voyage ship and replace them with references consistent with the
concept of regulated Australian vessels.
Items 4, 5 and 6 in Part 2 of Schedule 1 make
similar minor amendments to the Protection of the Sea
(Civil Liability) Act to refer to the concept of regulated Australian
vessel, instead of a ‘ship defined by subsection 7(4)’, as subsection 7(4) no
longer exists in that Act.[51]
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. Protection of the Sea
(Prevention of Pollution from Ships) Act 1983 (Cth), accessed 29
September 2015.
[2]. Navigation Act 2012
(Cth), accessed 29 September 2015.
[3]. International
Convention for the Safety of Life at Sea (SOLAS), done at London 1
November 1974, [1983] ATS 22 (entered into force for Australia 17 November
1983), accessed 1 October 2015.
[4]. Protection of the Sea
(Civil Liability) Act 1981 (Cth) and the Protection of the Sea
(Civil Liability for Bunker Oil Pollution Damage) Act 2008 (Cth),
both accessed 29 September 2015.
[5]. International
Convention for the Safety of Life at Sea, op. cit.; see also
International Maritime Organization (IMO), ‘International
Convention for the Safety of Life at Sea (SOLAS), 1974’, IMO website,
accessed 30 September 2015.
[6]. Protocol
of 1978 relating to the International Convention for the Prevention of
Pollution from Ships (MARPOL), done at London
17 February 1978, [1988] ATS 29 (entered into force for Australia 1
July 1988).
[7]. IMO,
‘Introduction to IMO’
and ‘List
of IMO conventions’, IMO website, accessed 30 September 2015.
[8]. See
further IMO, ‘International
Convention for the Prevention of Pollution from Ships (MARPOL)’ and ‘Structure of IMO’,
IMO website, accessed 29 September 2015.
[9]. Department
of Infrastructure and Regional Development, ‘The
International Convention for the Prevention of Pollution from Ships (MARPOL)’,
The Department website, accessed 29 September 2015.
[10]. The
‘Antarctic Area’ is defined in Regulation 1 of Annex I of MARPOL to mean ‘the
sea area south of latitude 60°S’. See also IMO, ‘Antarctic
fuel oil ban and North American ECA MARPOL amendments enter into force on 1
August 2011’, briefing, 44, 29 July 2011, accessed 29 September 2015.
[11]. R
Meyer and E Attanasi, ‘Heavy
oil and natural bitumen—strategic petroleum resources’, fact sheet, 70-03, US
Geological Survey website, August 2003, accessed 30 September
2015.
[12]. Defined
in both MARPOL and subsection 3(1) of the Prevention of Pollution from Ships
Act.
[13]. Personal
communication, Department of Infrastructure and Regional Development.
[14]. L
Henao, ‘Environmental disaster ‘ruled out’ as Chinese ship sinks in Antarctic,
Chile says’, NBC News website,
23 April 2013, accessed 24 September 2015.
[15]. Professional
Skipper, ‘Chinese
ship burns on Antarctic waters’, Professional Skipper magazine, July/August
2013, p. 44, accessed 24 September 2015.
[16]. ‘Ballast’
is any heavy material (usually water) carried by a ship or boat to ensure
proper stability.
[17]. Antarctic
and Southern Ocean Coalition, Vessel
Management in the Antarctic Treaty Area, Information paper, presented
at the XXXVII Antarctic Treaty Consultative Meeting, Brasilia, 31 March 2014,
accessed 24 September 2015.
[18]. Marine
Environment Protection Committee (MEPC), Resolution
MEPC.256(67), Amendment to MARPOL Annex I, adopted on 17 October 2014,
accessed 24 September 2015.
[19]. Joint
Standing Committee on Treaties, Report
152: Treaty tabled on 16 June 2015, Canberra, 18 August 2015, accessed
29 September 2015.
[20]. Ibid.,
pp. 8–9.
[21]. Ibid.,
p. 7.
[22]. Selection
of Bills Committee, Report,
12, 2015, The Senate, Canberra, 17 September 2015, p. 3, accessed 24 September
2015.
[23]. Senate
Standing Committee for the Scrutiny of Bills, Alert
digest, 10, 2015, The Senate, Canberra, 16 September 2015, p. 4,
accessed 29 September 2015.
[24]. Explanatory
Memorandum, Maritime Legislation Amendment Bill 2015, p. 1, accessed 24
September 2015.
[25]. The
Statement of Compatibility with Human Rights can be found at pages 2–3 of the
Explanatory Memorandum to the Bill.
[26]. Parliamentary
Joint Committee on Human Rights, Twenty-eighth
report of the 44th Parliament, Canberra, 17 September
2015, p. 1, accessed 29 September 2015.
[27]. As
noted previously, the ‘Antarctic Area’ is defined in Regulation 1 of Annex I of
MARPOL to mean ‘the sea area south of latitude 60°S’.
[28]. The
sections were added by the Protection of the Sea (Prevention of Pollution
from Ships) Amendment (Oils in the Antarctic Area) Act 2011 in order to
implement changes made to Annex I of MARPOL at that time; see further J
Tomaras, Protection
of the Sea (Prevention of Pollution from Ships) Amendment (Oils in the
Antarctic Area) Bill 2011, Bills digest, 61, 2011–12,
Parliamentary Library, Canberra, 13 October 2011, accessed 29 September 2015.
[29]. Further
information on the Australian Antarctic Territory is available at Department of
the Environment, Australian Antarctic Division (AAD), ‘Antarctic
territorial claims’, AAD website, accessed 1 October 2015.
[30]. One
penalty unit is equal to $180 under section 4AA of the Crimes Act 1914
(Cth).
[31]. Prevention
of Pollution from Ships Act, subsections 10A(4) and (5), 10B(4) and (5).
[32]. IMO,
International
Convention for the Safety of Life at Sea (SOLAS), 1974, IMO
website, accessed 22 October 2015.
[33]. IMO,
‘International
Maritime Dangerous Goods (IMDG) Code’, IMO website, accessed 30 September
2015.
[34]. Navigation Act 2012
(Cth), accessed 29 September 2015.
[35]. Item
2 of Part 1 of Schedule 1 is a consequential amendment to repeal the
definition of the IMDG Code, a term which is no longer referred to in the Navigation
Act as a result of the amendment in item 1.
[36]. International
Convention for the Safety of Life at Sea, op. cit.
[37]. SOLAS,
Chapter VII, Regulation 1.
[38]. Explanatory
Memorandum, Maritime Legislation Amendment Bill 2015, p. 2, accessed 29
September 2015.
[39]. Ibid.,
p. 4.
[40]. For
further information on the division of responsibility between the Commonwealth,
states and territories in relation to offshore areas, see Attorney-General’s
Department (AGD), ‘Offshore
constitutional settlement’, AGD website, accessed 1 October 2015. For a
useful outline of the definitions of ‘territorial sea baseline’, ‘coastal
waters’, ‘territorial sea’ and other maritime boundary definitions, see also
Geoscience Australia, ‘Maritime
boundary definitions’, Geoscience Australia website, accessed 1 October
2015.
[41]. Explanatory
Memorandum, Maritime Legislation Amendment Bill 2012, p. 13, accessed 30
September 2015.
[42]. Prevention
of Pollution from Ships Act, subparagraph 9(1B)(b)(i).
[43]. Maritime Legislation
Amendment Act 2012, accessed 30 September 2015; see also Explanatory
Memorandum, Maritime Legislation Amendment Bill 2015, p. 1, accessed 30
September 2015.
[44]. See
further P Pyburne, ‘Maritime
Legislation Amendment Bill 2012’, Bills digest, 3, 2012–13, 14 August 2012,
pp. 6–7, accessed 30 September 2015.
[45]. In
comparison, the definition of ‘sea near a State’ prior to the 2012 amendments
was (a) the territorial sea of Australia adjacent to the State; and (b) the sea
on the landward side of the territorial sea of Australia adjacent to the State.
See subsection 3(1A) of the Protection of the Sea
(Prevention of Pollution from Ships) Act 1983 as at 25 September
2012, accessed 21 October 2015.
[46]. Explanatory
Memorandum, Maritime Legislation Amendment Bill 2015, p. 6.
[47]. Ibid.
[48]. See
section 14 of the Seas
and Submerged Lands Act 1973 (Cth), accessed 19 October 2015, which
suggests that waters within the limits of the state might include bays, gulfs,
estuaries, rivers, creeks, inlets, ports or harbours.
[49]. Protection of the Sea
(Civil Liability for Bunker Oil Pollution Damage) Act 2008 (Cth),
accessed 30 September 2015. This Act gives effect to Australia’s obligations
under the International
Convention on Civil Liability for Bunker Oil Pollution Damage, done at
London on 23 March 2001, [2009] ATS 14 (entered into force for Australia 16
June 2009).
[50]. Navigation
(Consequential Amendments) Act 2012 (Cth), Schedule 2, items 51 and 52,
accessed 30 September 2015.
[51]. Protection of the Sea
(Civil Liability) Act 1981 (Cth), accessed 30 September 2015. This
Act gives effect to Australia’s obligations under the International
Convention on Civil Liability for Oil Pollution Damage, done
at Brussels on 29 November 1969, [1984] ATS 3 (entered into force for Australia
5 February 1984).
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