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Joint Standing Committee on Treaties - 22/06/2015 - Treaties tabled on 16 June 2015

CRISTOFANI, Ms Katrina Joy, Acting Director, Maritime Safety and Environment Section, Maritime and Shipping Branch, Surface Transport Policy Division, Department of Infrastructure and Regional Development

GOOD, Mr Peter John, Acting Senior Policy Adviser, Maritime Safety and Environment Section, Maritime and Shipping Branch, Surface Transport Policy Division, Department of Infrastructure and Regional Development

JOHNSTON, Mr Matthew Jason, Acting General Manager, Marine Environment Division, Australian Maritime Safety Authority

MASON, Mr David, Executive Director, Treaties Secretariat, International Legal Branch, Department of Foreign Affairs and Trade

SUTTON, Mr Michael, General Manager, Maritime and Shipping Branch, Surface Transport Policy Division, Department of Infrastructure and Regional Development

Committee met at 11:20

Amendments to the Annexes of the Protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships, 1973 and Amendments to the Annex of the Protocol of 1997 to Amend the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto. (London, 17 October 2014)

CHAIR ( Wyatt Roy ): I declare open this public hearing. The committee will take evidence on the amendments to the Annexes of the Protocol to the International Convention for the Prevention of Pollution from Ships. I welcome representatives from the Department of Infrastructure and Regional Development, the Australian Maritime Safety Authority and the Department of Foreign Affairs and Trade. Witnesses might like to note that the proceedings today will be broadcast. Do you have any comment to make on the capacity in which you appear?

Mr Sutton : I am Acting Executive Director, Surface Transport Policy, Department of Infrastructure and Regional Development.

CHAIR: Thank you. Although the committee does not require you to give evidence under oath, I should advise you that this hearing is a legal proceeding of the parliament and warrants the same respect as proceedings of the House and the Senate. The giving of false or misleading evidence is a serious matter and may be regarded as a contempt of parliament. If you nominate to take any questions on notice, could you please ensure that your written responses to questions reach the committee secretariat within seven working days of your receipt of the transcript of today's proceedings. Does anyone have any introductory remarks?

Mr Sutton : Today we are discussing amendments to the International Convention for the Prevention of Pollution from Ships 1973, as modified by the Protocol of 1978 and the Protocol of 1997, known as MARPOL. MARPOL is one of the key international instruments addressing the problem of marine pollution from ships and contains six technical annexes, dealing with oil, noxious liquid substances in bulk, harmful substances in packaged form, sewage, garbage and air pollution. MARPOL is administered by the International Maritime Organization, known as the IMO, a specialised agency of the United Nations. The IMO committee with responsibility for International Maritime Organisation is the Marine Environment Protection Committee, known as MEPC.

On 17 October 2014, MEPC adopted three resolutions that would amend MARPOL. All three amendments are aimed at ensuring the safety of ships and personnel and protecting the marine environment from ship-sourced pollution in Australian and international waters. The first resolution we are discussing today is MEPC.256. The first resolution would amend regulation 43 of MARPOL Annex 1 to clarify the prohibition of the carriage of heavy grade oil, HGO, in bulk as cargo or carriage and use as fuel in the Antarctic also applies to the carriage of HGO as ballast. In 2014, MEPC was made aware that a fishing vessel had sunk in Antarctic waters while carrying HGO in its ballast tanks for later use as fuel once the ship had left the Antarctic area. A ballast tank assists the ship's stability and would ordinarily hold water. The ship was sailing under a Chinese flag and did not take any action, as they interpreted that the regulation did not extend to HGO carried as ballast. MEPC concluded that this interpretation is inconsistent with the original intent of regulation 43, to minimise the presence of HGO in the Antarctic area to the maximum extent practicable. This amendment therefore closes a loophole that exposed the Antarctic area, including the Australian Antarctic Territory, to potential environmental damage.

The second resolution is MEPC.257. The second resolution would exclude radioactive materials from the scope of the harmful substance criteria and instead add a footnote referring the user to the section of the International Maritime Dangerous Goods (IMDG) Code that deals with radioactive materials. This amendment will remove duplicated requirements for handling and transporting dangerous goods from MARPOL. However, it will not impact safety or environmental outcomes, as the carriage of radioactive materials will still be regulated under the IMDG Code. It has been recognised that the IMDG code requirements for the packing, labelling and transport of radioactive materials also address the environmental hazards as they will be clearly labelled as radioactive materials. Markings indicating an environmentally hazardous substance do not provide any additional safety or pollution prevention benefit in addition to the class 7 labelling required by the IMDG code. This amendment helps to harmonise the international legal regimes governing the transport of dangerous goods, clarifying their application for Australia and simplifying compliance burdens.

The third resolution is MEPC.258. The third resolution extends the application of regulation 13 of MARPOL annex VI, which regulates the emission of nitrogen oxides, known as NOx, to gas fuelled ships built on or after 1 March 2016 and makes minor amendments to the International Air Pollution Prevention Certificate, or IAPP certificate, to clarify existing requirements and to give effect to previous MEPC decisions.

MEPC.67 adopted amendments that mean that engines fuelled solely by gaseous fuels will be required to comply with NOx emission requirements set out in regulation 13 of MARPOL annex VI. The decision to include gas fuelled ships was not controversial at MEPC. Dual fuel ships—that is, those that use diesel pilot injection to ignite the gas fuel—are already covered by annex VI because the diesel elements bring them within the existing definition. Consideration of single-fuel gas fuelled ships arose in a correspondence group established by MEPC to look at various technologies that were available to meet NOx standards. It is expected that gas fuelled ships generally will meet the NOx emission requirements without modification. The correspondence group found that several compliant gas fuelled engine models had been in operation for up to 20 years. No Australian ships will be affected by the amendment.

The IAPP certificate is a document required to be carried by all ships of 400 gross tonnes and above on international voyages. It is issued by the ship's flag state and certifies that the ship's equipment systems, fittings, arrangements and material comply with certain regulations under MARPOL annex VI. The amendments involve minor adjustments in the way compliance with a small number of regulations is recorded. The changes will improve transparency by making it easier to relate the documentation on board the ship to specific MARPOL requirements, allowing ship owners and flag state administrators to more easily verify their compliance is being achieved by these ships.

All three resolutions are considered tacit acceptance treaty actions—that is, they will be deemed accepted unless not less than one-third of the parties or parties that constitute not less than 50 per cent of the gross tonnage of the world's merchant fleet have communicated to IMO their objection to the amendments by 1 September this year. I can advise that the decisions reflected in IMO resolutions are reached by consensus, and it is unusual that objections are lodged once a resolution has been adopted. As a party to MARPOL, if Australia does not accept the amendments outlined in the three resolutions the amendments will still apply to Australian ships on international voyages where the destination country has implemented the amendment, and Australia, as a port state, would be unable to enforce the higher standard introduced by the amendment on ships arriving in Australian waters. In addition, by not accepting these amendments Australian ships would be at a disadvantage when operating internationally as they would not be operating to the highest international standard.

Subject to the deemed acceptance process, all three resolutions will enter into force internationally on 1 March 2016. A minor amendment to the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 is required to prohibit the carriage of HGO as ballast. Legislative amendments are not required to implement the second and third resolutions.

CHAIR: You said these come into effect from 1 September and that the proposed amendments were agreed to in October 2014. Why did it take until June 2015 to come before the parliament? Is there any particular reason? It seems like a long time.

Mr Johnston : Yes, the reason for that is these matters are also considered by the Maritime Safety Committee, which met in October last year, and then they flow through to the Marine Environment Protection Committee, which met in May this year.

Mr KELVIN THOMSON: Two things; the first is: are Chinese flagged ships generally compliant with MARPOL in general and regulation 43 in particular? So, was this response of that ship unusual or is it par for the course?

Mr Sutton : I think we would have to take that on notice in terms of the details of the compliance of Chinese ships with MARPOL. But it is certainly my understanding that it was unusual for a ship to be carrying HGO as ballast in the Antarctic region. It is unusual. The amendment to MARPOL is very much closing off a loophole. It is not as if there is a general pattern of behaviour here by any flagged state.

Mr KELVIN THOMSON: In part, you have responded to my second question, which is whether fishing vessels using heavy grade oil as ballast is a common practice or an unusual one. And I take it from something in your introduction that Australian fishing vessels do not engage in this practice and therefore will not be affected by this change?

Mr Sutton : I think that is right, yes.

Senator BACK: Thank you for that explanation. I was not aware that anything other than water was used for ballast; you have advised us now that HGO was being used and in the future would be illegal. Are there any other fluids other than HGO that have been used for ballast or are being used legally for ballasting?

Mr Johnston : We are not aware of anything else being used. It was obviously a loophole that was being used in terms of carrying fuel and it seems to be a one-off. No other reports were made when this was considered either by the Antarctic Treaty convention or by the Marine Environment Protection Committee meeting of the IMR.

Senator BACK: Has there been any objection or concern raised by the Chinese representatives, equivalent to you, of this proposed move to ban HGO?

Mr Sutton : Not that we are aware of. It seemed to be—

Senator BACK: Sorry to interrupt you, Mr Sutton; I will extend it beyond that: by China or anybody else?

Mr Sutton : Not that we are aware of. It seems to be very much the case that there had been an assumption that people had, as you had, that water was the substance that was used for ballast. It was a loophole and it was the MEPC who decided it was necessary or desirable to take action to close the loophole.

Senator BACK: Yes, because clearly there is no way in the world that HGO could have been pumped out of the ballast tanks in any event, down in the Antarctic; the product would have been solid or near solid.

Mr WHITELEY: I have a crazy question out of left field. With these amendments, is there any impact on or connection with cruise ships?

Mr Sutton : We are aware, certainly, that there are cruise ships that operate from Australia to the Antarctic. I understand they were consulted in the consideration of this resolution and there were no objections raised.

Ms PARKE: Just following on from other questions, is there some reason why the amendments do not specify that only water can be used as ballast? It prohibits heavy grade oil being used but does not prohibit anything else being used.

Mr Sutton : We might take that on notice. But I think the general observation is: nobody anticipated this sort of occurrence happening. As you say, water is the ballast of choice, and for fairly obvious reasons. It was felt necessary to close this loophole, but no further action is considered necessary.

Ms PARKE: Until they use something else and then they will ban that too?

Mr Sutton : I think that is highly unlikely.

CHAIR: Are you happy with that answer?

Ms PARKE: Yes.

CHAIR: We do not need to take it on notice then. Thank you so much for appearing before us today, and if we have any further questions the committee secretariat will be in contact at a later date.

Resolved that these proceedings be published.

Committee adjourned at 11:34