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JOINT STANDING COMMITTEE ON TREATIES
Treaties tabled on 25 November 1997
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JOINT STANDING COMMITTEE ON TREATIES
Mr TONY SMITH
Mr LAURIE FERGUSON
Treaties tabled on 25 November 1997
ACTING CHAIR (Mr McClelland)
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JOINT STANDING COMMITTEE ON TREATIES
- Committee front matter
- Committee witnesses
Mr LAURIE FERGUSON
ACTING CHAIR (Mr McClelland)
Mr TONY SMITH
- Committee witnesses
- Committee witnesses
- Committee witnesses
Content WindowJOINT STANDING COMMITTEE ON TREATIES - 01/12/97 - Treaties tabled on 25 November 1997
CHAIRMAN —I formally declare open this public hearing into the two treaties which were tabled on 25 November: firstly, the 1996 Protocol to the London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter; and, secondly, amendments to the schedule to the International Convention for the Regulation of Whaling.
I welcome our witnesses. We have put everybody together in this first segment. We will call representatives of the Australian Conservation Foundation, Project Jonah, Greenpeace Australia and the World Wide Fund for Nature separately but collectively, so that we might get around it in a reasonable time scale. With each of those, can I suggest that a spokesperson—I understand that you have already arrived at that decision—give a
summary of concerns and indicate briefly what the focus is and what the major concerns about the treaty under consideration might be. In that way we will avoid repetition and optimise our time.
On Monday of next week another hearing has been arranged for Sydney. We will take evidence from Chris Puplick, the Chairman of the National Task Force on Whaling, and from a number of other NGOs who, apart from those who are here today, have an interest in the subject. At that hearing we will also revisit the 1996 Protocol. I now call on spokespersons to make an opening statement.
Mr Tucker —Thank you, Mr Chairman. We are here to discuss the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Waste and Other Matter—the London Convention, 1972—its benefits and obligations, its implementation and effects on business and the outcome of consultations undertaken.
I might briefly start by explaining the London Convention. The London Convention provides an international framework for the effective control of all sources of marine pollution by dumping of wastes or other matter. At present, 77 countries are contracting parties to the London Convention.
The London Convention does not apply to wastes resulting from ships' operations or to vessels that actively fish. These are covered by the International Convention for the Prevention of Pollution by Ships, otherwise known as MARPOL 73/78. Nor does it cover land based marine pollution or waste delivered to the sea at the end of a pipe. These are addressed through the Global Plan of Action for the Protection of Marine Environment from Land Based Activities. Australia's obligations under the Convention are given effect through our domestic legislation, the Environment Protection (Sea Dumping) Act 1981.
The principal issue which we are to talk about is the 1996 Protocol. Australia and 42 other contracting parties adopted the 1996 Protocol to the London Convention at the special meeting of contracting parties in October-November 1996. Australia has now been invited to become a contracting party to the Protocol, which is open for signature until 31 March 1998.
I will now briefly explain the benefits of the Protocol. The benefits of the Protocol are that it will further reduce marine pollution by limiting the types of materials permitted to be dumped at sea to only seven items. It seeks to reduce the amount of and contamination in material dumped at sea. It also incorporates the precautionary approach and promotes the concept of polluter pays. The Protocol also prohibits incineration of waste at sea and the export of wastes or other matter to other countries for dumping or incineration at sea.
I will now briefly explain the obligations under the Protocol. Under the Protocol, only seven materials will be permitted to be dumped at sea. Annex 1 of the Protocol lists
dredged material; sewage sludge; fish waste or materials resulting from industrial fish processing operations; vessels and platforms or other man-made structures at sea; inert inorganic geological material; organic material of natural origin; and bulky items primarily comprising iron, steel, concrete and similarly unharmful materials, for which the concern is physical impact, and limited to those circumstances where such wastes are generated at locations such as small islands with isolated communities, having no practicable access to disposal options other than dumping.
Under the Protocol, Australia will be obliged to ensure compliance with guidance on waste assessment. Proponents will be obliged to undertake a waste prevention audit and to formulate alternative waste strategies and Australia is also obliged to develop an action list for the screening of candidate wastes, as required by the Protocol.
Most importantly, the Protocol updates the London Convention to take into account the United Nations Convention on the Law of the Sea 1994, the Rio Declaration on Environment and Development and Agenda 21. The outcome of applying the Protocol will be that less waste and less contaminated waste will be dumped at sea, thus ensuring better protection of Australia's marine environment.
I will now draw your attention to two matters in the Protocol of particular interest to Australia: states and territories of Australia will continue to manage their own marine internal waters and small islands such as Cocos and Christmas Islands, with no practical access to disposal options other than dumping, will be able to continue to dump bulky items. These issues were strongly argued for and won by Australian negotiators.
On implementation, before Australia can ratify the Protocol, it will be necessary to make amendments to the Environment Protection (Sea Dumping) Act 1981. The government intends to bring a bill before the parliament for this purpose. The role of the states and territories in relation to management of marine internal waters will not be altered as a consequence of implementation of the Protocol or by the legislation.
I now briefly turn to the effects on business. Applicants for sea dumping permits are likely to face increased fees under the 1996 Protocol, with a CPI adjustment to compensate for inflation. Application fees are currently $2,500 for a general permit and $5,000 for a special permit. As fees have not been adjusted since 1984 when the act first came into operation, the new scale of fees, which is yet to be determined, is likely to be higher than the present scale. Applicants will also face increased costs to carry out a waste audit and formulate alternative waste management strategies.
Let me finalise by informing you of the consultation that has taken place. The Minister for the Environment has consulted with all relevant Commonwealth ministers, informing them of the development and adoption of the Protocol and the preparation to sign and ratify it. The minister has also written directly to state and territory environment ministers and the Protocol has been notified to the states and territories through the
Schedule of Treaty Action.
New South Wales, Victoria, Tasmania, South Australia, Western Australia, Northern Territory and ACT and Norfolk Island have no objection to the Commonwealth proceeding to sign and ratify the Protocol. Queensland's Minister for the Environment has queried whether the 1996 Protocol would prohibit the construction of artificial reefs using bulky items. The construction of artificial reefs is not considered to be dumping under the 1996 Protocol provided it does not contravene its objectives.
Information has also been provided to affected industry bodies and clients, such as port authorities and permit holders, through personal correspondence; and a media release from Senator Hill is also in train. A letter in support of the Protocol has been received from the Association of Australian Ports and Marine Authorities Incorporated, AAPMA—the peak body for ports in Australia. Individual port authorities—namely, Newcastle, Brisbane, Gladstone, Port Hedland and Fremantle—BHP Transport and CSIRO have also written in support. Greenpeace International, the International Association of Ports and Harbours and the Oil Industry International Exploration and Production Forum have had observers at all relevant meetings of the London Convention where the Protocol has been discussed. We have received no representations against the proposed signature and ratification of the Protocol.
CHAIRMAN —Does any other department want to make an opening statement before we go to questions? Nobody. Let me say at the outset that I am delighted, Mr Tucker, you have mentioned the word `consultation'. As Ian Biggs and one or two other people would know from consistent experience with this committee, we have been consistently critical of the lack of consultation. Although we have moved in the right direction, we have a fair way to go. I am pleased and will be interested to hear from the NGOs as to whether, as they see it, they share your views. What is likely to be the impact between what happens now in terms of dumping and what is likely to happen under this? Is this a real quantum jump or are we going to see an evolutionary thing?
Mr Tucker —I will answer that in the first instance and then turn to some of my staff who might be able to answer it in more detail. My understanding is that it will not affect much of what we do now. There will not be much difference. Australia has a fairly good record in this area. I might ask Mrs Emmett to explain the detail.
—There is a link in the sense that instead of prohibiting materials that may be dumped and requiring special and general permits to be issued the Protocol will limit to only seven items what may be dumped. That restricts the type of material that can be dumped. It will also restrict the contamination in it because Contracting Parties will now have to screen anything that is going to be dumped against an action list. It is becoming far more rigorous. You said, `Will it be evolutionary?' The Protocol needs to be signed by 26 signatories before it comes into force. Fifteen of those have to be Contracting Parties. That is not likely to happen for two or three years. So we have a window of
opportunity of moving slowly into the Protocol and Australia is already taking some initiatives in that respect.
Mr HARDGRAVE —This Protocol seems to rely upon the concept of deliberate disposal at sea. The definition of `deliberate' is always interesting because it could always be in the eyes of the beholder, I suspect. What about the requirement to perhaps retrieve something that is accidentally dumped? Is there a requirement to retrieve things once dumped?
Mrs Emmett —There are occasions where ships, for instance, due to some event end up on the bottom of the sea. Sometimes they are raised, but it is quite an unusual event to have to raise something and dump it again—but it is not unheard of.
Mr HARDGRAVE —Not necessarily just at sea but perhaps in the coastal waters—something that is dumped, dropped, albeit accidentally, in the eye of the beholder.
Mr Tucker —We would have to assess each case on its basis depending on what the material was—if it was toxic or navigationally hazardous, what the practicalities were of retrieving the material and whether you are going to dump it again anyway in some other place. There are no hard and fast rules, as I understand it. We would have to assess each case on its merit and basis.
Mr HARDGRAVE —Is this a way around the admirable aims of the Convention to say, `It wasn't deliberately dumped?'
Mr Tucker —From your question I gather you are saying that someone is doing something they should not have done and they are claiming that it was an accident.
Mr HARDGRAVE —I can say to you that there are a number of allegations levelled from time to time against one or two well-known waste disposal companies in my city of Brisbane—that they dump material down stormwater drains that is essentially toxic and hazardous waste. There are a lot of allegations that I am not going to waste the committee's time with. I suspect that some of their responses in the past have been that it was an accidental discharge by somebody who did not understand what they were doing and had not appreciated the implications of it. They said, `It is not company policy to deliberately dump this down a stormwater drain. It was accidentally discharged.' I am simply playing devil's advocate, being cynical and asking the question if this is a way around this Protocol.
—If we had a circumstance where there was a company—and this Protocol does not deal with things like stormwater outlets—which hired a vessel to take some material out and accidentally dumped it, it is like any case where we believe someone may have broken the law. We would have to make investigations to establish whether it was deliberate, accidental or whatever and take the necessary legal proceedings
if we believed so.
Mr HARDGRAVE —But you are satisfied that within this Protocol there is sufficient weight to ensure there is an enforcement of that law?
Mr Tucker —The test will be what effect we give it in our domestic legislation. We can put more in our domestic legislation than is in the Protocol if we so wish. But clearly, we would have to put aspects in our domestic legislation that related to potential breaches.
Mr McCLELLAND —How easy is it for companies to dump? For instance, you mentioned general and special permits. I think it is $5,000 for a special permit. Is that an ongoing permit or for one dumping event?
Mr Tucker —It can be a range. We have issued permits for single instances. We can also issue permits for several years under our current legislation. It is up to the permit issuing authority to determine the basis for the permit.
Mr McCLELLAND —Are there any companies that do have a permanent permit or one over a period of years?
Mrs Emmett —There are a number of places now that have permits for two or three years. In fact, we have actively gone in the direction of long-term permits for people that have projects that need certainty.
Mr McCLELLAND —What sort of thing would they be dumping?
Mrs Emmett —They would be dumping fairly clean sands on the North West Shelf with respect to a project dealing with the export of LNG and they need certainty that they can continue it.
Mr Tucker —To get that sort of permit they also have to have a very structured and rigorous monitoring program in place. We specify that.
Senator MURPHY —Can I ask about the national interest analysis? On page 3 there are seven dot points. It says:
. . . bulky items primarily comprising iron, steel, concrete and similarly unharmful materials . . .
In the second paragraph underneath all of that it says:
A number of materials which have been licensed for sea dumping in the past (eg munitions, car tyres, concrete, asbestos and industrial waste) may not be dumped under the Protocol. . .
I just wanted to know whether they can be dumped or not.
Mr Tucker —I see what you mean. The seventh dot point relates to small islands which essentially have no other capacity. For example, they do not have capacity for a landfill. So, for example in relation to small islands, concrete can be dumped, but in general in other parts of Australia we are not permitted to dump concrete under the Protocol.
Senator MURPHY —Would it not be better if you explained that a little bit?
Mr Tucker —Yes. I can see the potential for confusion.
Dr Stevens —This is exactly taken from the text of the Protocol and we cannot really move that text. We could explain it better.
Senator MURPHY —Can I go back to a follow-up question with regard to what Mr McClelland was asking you about those permits? You said they were either for specific items or for periods of time. Is the price the same?
Mrs Emmett —The fees are set at the moment at $2,500 for a general permit and $5,000 for a special permit and we will be looking into those, because they have not been adjusted since 1984. So we will be actively looking into those.
Senator MURPHY —You will be looking at them real hard.
Mrs Emmett —We will.
Mr Tucker —They are actually set by the legislation, so we have to change the regulations to the act.
Senator MURPHY —Why are they not based on a tonnage or weight based fee?
Mr Tucker —That is one of things that we will certainly be looking at and revising the charges. I do not know what the basis was for the setting of costs 13 years ago.
Senator MURPHY —I come along and say that I have 10 kilos or 10 tonnes of whatever and, provided it is permitted to be dumped, I pay $2,500. What is a special permit for?
Mrs Emmett —A special permit is when you need to take special arrangements, perhaps even special monitoring arrangements—if there is slight contamination in the sediments, for instance.
Senator MURPHY —Who pays for that?
—It is the applicant who pays the $5,000.
Senator MURPHY —Yes, but who pays for the ongoing monitoring?
Mrs Emmett —The applicant.
Senator MURPHY —And who does it?
Mrs Emmett —The applicant arranges it and reports to us. We check it.
Senator MURPHY —You check it?
Mrs Emmett —Yes.
Mr Tucker —In our permits we can specify the monitoring that is required and the reporting requirements that will come to us. We can be quite detailed and specific, and we are in many of our permits.
Senator MURPHY —There has been a lot of criticism over time now about things being dumped and the lack of monitoring, et cetera with regard to this permit system. The monitoring and recording is that you get a land base filling out a report, nobody has really done any monitoring, it gets sent to whoever, it gets filed in file 13 and nobody really wants to know about it because it could be a costly exercise.
Mr Tucker —I do not think that has been our experience in the past. We do not actually issue a lot of permits. There are other things that might occur in state controlled waters, which are the state internal waters like bays and so on, which we have no jurisdiction or involvement in. Most of our permits are for port authorities who want to dredge ports and then dump the spoil out to sea. From our view, we have fairly sophisticated monitoring arrangements with those port authorities. It is also in their interests that they have good monitoring, firstly, because they have to continue to apply to us for permits and, secondly, because of the likely public adverse reaction if there were things found which were not in the interests of the protection of the marine environment.
Senator MURPHY —Do you know how many special permits you have outside of port authorities for dredging activities?
Mr Tucker —We have none at this stage.
Mrs Emmett —We did have one with Pasminco which ceased on 29 October.
—I know it expired; that is the only reason I did not ask you about it. Why is it the case that the Commonwealth would not seek an agreement with the states? Just because you dump it within the state controlled waters, I would have thought we would have been better to have at least some common approach with regard to what we permit to be dumped. At the end of the day, there is not a fence there that stops it
from spreading elsewhere.
Mr Tucker —We have had similar discussions ourselves. With the Protocol coming into force, as Mrs Emmett has said, in a couple of years time, I think partly what is required of us now is to enter into discussions with the states. The minister has already informed his state colleagues of the Protocol and its meaning. We have had reply from them that they are happy with the Protocol. We have to make sure that it is not only the Commonwealth giving effect to those commitments but also the states. Clearly one of the activities we will have to enter into between now and change of legislation is clear understanding with our state colleagues what is and what is not to be dumped.
Senator MURPHY —Why is concrete not allowed to be dumped?
Mrs Emmett —It is a bulky item. We had to fight very hard to keep item 7 on this list—the bulky items for small islands. Generally speaking, they want to stop the dumping of bulky items such as big steel items, big concrete items and things like that. Australia was faced with a situation where, if we could not keep this clause in, we could not sign the whole thing, because we cannot just have a small exemption.
Senator MURPHY —I thought there may have been some other reason.
Mrs Emmett —No. Generally speaking, they do not want to dump the concrete.
Mr Tucker —Mr Chairman, if it will help the committee, we can provide the committee with a copy of some existing permits.
Mr TONY SMITH —What is meant by `waste or other matter incidental to or derived from the normal operation of vessels'? What was envisaged by that?
Mrs Emmett —It is waste coming from the operations of ships. The authority I have here is Mr Paul Nelson from AMSA who might be able to fill in the detail for you.
Mr Nelson —Operational waste from ships is oily washings from oil tankers, sludge and that sort of thing. Ships are allowed to discharge operational waste, providing they meet strict requirements—for instance, oil may be discharged at sea provided it is discharged at a rate of no more than 15 parts per million oil in water. Certain types of garbage can be disposed of, providing it is more than 12 miles from the nearest land. There are those sorts of things. But that is all operational waste generated on board the ship and is not covered by this particular instrument. The ship is a separate treaty.
Mr TONY SMITH
—You can have quite a bit of rubbish in a bilge which can make an awful mess, and that does not seem to be picked up then either. Arguably that is not picked up.
Mr Nelson —No. As I said, it is a separate treaty. It is a very comprehensive and technical treaty that deals with where oil can be discharged and the circumstances in which it can be discharged. As I said, generally 15 parts per million—oil in water—is the only permissible discharge at sea.
Ms JEANES —We have a number of artificial reefs in South Australia made from car tyres. I see that car tyres are now prohibited. How will that affect state or territory governments if, as part of their coastal management regimes, they want to build perhaps another similar reef? Would they be able to?
Mr Tucker —This is one of the areas where we have to do some further policy work. The Convention specifies what cannot be dumped and says that you can dump anything provided it does not breach the objectives of the Convention. With car tyres, I think our view at the moment is that we are not that keen on car tyre reefs. But the question is, `Are car tyre reefs directly contravening the objectives of what you are trying to achieve in the Convention?' I do not think the answer to that question is particularly clear at the moment, because there are other reefs which certainly are being built around the world now with specially made material specifically for the construction of artificial reefs which probably you could easily say are not pollution of the marine environment; they are inert substances. We have to investigate how that should be regulated and what the policy parameters and tests would be for the construction of artificial reefs in the future. That is something that will begin quite shortly.
Ms JEANES —And those investigations will include talking to the states and territories?
Mr Tucker —Absolutely.
Mr HARDGRAVE —I have two questions. The first one leads on from that. There are items that are currently dumped which would be within the gamut of this Protocol as prohibited in the future. Are there things that are in our oceans in and around Australian territorial waters that we really should be concerned about to the point of making some remedial steps, or is that now a multi-squillion dollar question?
Mr Tucker —Your last point could be right for certainly some of them. Have we dumped munitions in the past?
Mrs Emmett —Yes, we have. Munitions have been dumped.
Mr HARDGRAVE —So we have munitions out there. What about off our tourist island resorts? Are we finding concrete and umpteen other things being dropped? Would they continue to be dropped as a result of this Protocol? I am thinking about places around the Great Barrier Reef, for instance. Do we know of anything?
Mrs Emmett —I am not aware of any. But it certainly would be prohibited under the Protocol.
Mr HARDGRAVE —It would be, yet they would be a small island by definition.
Mrs Emmett —But they are not in a situation where they do not have any other option. Cocos and Christmas are because, if they actually dig in and try to bury things by land disposal, they actually will invade their precious water supply. That is why they cannot do landfill. That is why they have been allowed to continue to dump. But our islands off the Great Barrier Reef are not in that situation. There are other options which they will be asked to look into.
Mr HARDGRAVE —And you are certain that all of them are in that particular category in that place?
Mrs Emmett —They are certainly not in a situation where they are remote and they do not have any other options.
Mr HARDGRAVE —So the islands in Australia's context that you are talking about are Norfolk, Cocos, Christmas—
Mrs Emmett —Yes.
Mr HARDGRAVE —But every other island is okay and should have an alternative means of disposal?
Mrs Emmett —They certainly are closer to the mainland and the economic cost of looking at other alternatives should be at least feasible. Again, we would have to approach it on a case by case basis.
Mr HARDGRAVE —And you would add Lord Howe Island, I suppose, to the wish list—the list of being away from the coast?
Mr Tucker —There are other considerations that have to be taken into account. With Lord Howe being a world heritage area, you would have to see whether your activity that you want to take potentially could detract from the world heritage values for which it got nominated.
Mr HARDGRAVE —I am just thinking about the countless islands scattered in the Torres Strait, such as the Thursday and Friday islands and those sorts of places and what we are talking about there. Do they have an alternate means of disposal?
—Some of those larger islands certainly could, but we will have to make the judgment about whether it is practical and feasible, for example, for some waste
to be returned to the mainland. The minister has said that, even with the Cocos (Keeling) Islands, his preference would be not to dump any of those goods at sea and he would like to think that we could investigate ways of either returning the waste to the mainland or different processing methods.
Mr HARDGRAVE —It occurs that there is probably a follow-on question seeing that I have raised the Torres Strait Islands, and that is: has the consultation included traditional landowners in the process of trying to understand their needs, demands, what they have perhaps developed as habits and explaining the Protocol to them. Have you done all of that in the consultation process?
Mrs Emmett —We have had public consultations in April and May in three states and we did send the Protocol out to a long list of people. We had those consultations in Sydney, Townsville and Perth. They were open and we discussed the sea dumping guidelines which are guidelines to assist all of the applicants to implement the Protocol.
Mr HARDGRAVE —Have you also spoken to those people? I am thinking of island communities off the Queensland coast. I am thinking of people such as the Palm Island community off Townsville, Thursday Island and the Murray Islanders as well. All of those sorts of people perhaps may have needed some absolute consultation and explanation, and there is nothing specific being targeted at them, I take it?
Mr Tucker —It has not been practical for us in the time frame leading up to the government making the decision on whether it wishes to accede to the Protocol. But it is quite clear that, as we are preparing for it to come into force, we will need to develop measures whereby remote communities are informed.
Senator ABETZ —If I could follow on from Mr Tucker's answer to Ms Jeanes where you talked about the objectives of the Protocol, whereabouts do we find the objectives of Protocol? If I am right, page 19 of our papers tells us `from all sources of pollution'. That can mean a whole range of things. Pollution is basically something foreign introduced into the environment which is not usually there. In that case, the establishment of reefs could be considered by some as polluting the environment, no matter what they are made of.
Mr Tucker —As I said we have to investigate this further. Pollution is defined just above article 2. It is principally as you have stated it. There certainly are artificial reefs which can be made of substances where those substances do not pass foreign material out into the marine waters. There are also benefits that some would see in the creation of artificial reefs in terms of increased fish habitat, potential extra tourism attractions, fishing spots and so on. Our view would be that, clearly if there were materials in the future which you could identify as putting pollutants into the water, whether they were artificial reefs or not, we would not look upon those favourably.
Senator ABETZ —Who ultimately will make the determination? Who will be called upon to determine whether a reef is in breach of the objective?
Mr Tucker —Again, that is an interesting question, because most artificial reefs are presently created in state waters. We currently regulate them through our Commonwealth legislation, although I believe that some states probably could regulate through their own current legislative frameworks.
Senator ABETZ —If I might say so with respect, the Queensland Minister for the Environment has queried the matter with you and you have given him an assurance that it is all okay in general terms, with a slight caveat. Then, if we have an interpretation in 20 years time, as we have had with other Conventions—which seem to be interpretations that were not necessarily in the minds of people when they were drafted—we could come into some problem areas. I want to know how we can tie this down a bit firmer.
Mr Tucker —Other nations who are signatories to the Convention also create artificial reefs. It is not just Australia that does do it.
Senator MURPHY —The Protocols are not retrospective.
Senator ABETZ —But that is not the issue. As I understand it, the Queensland minister asked whether it would prohibit the construction of artificial reefs. I would think the construction is not retrospective action; it is action some time in the future. That is what I am inquiring about.
Mr Tucker —The answer to the minister's question is that it will not prevent construction of artificial reefs provided they are not dumping.
Senator ABETZ —It does not contravene the objectives but we do not know exactly what that means.
Mr Tucker —We do not know what that means. We have to develop our own position in Australia as to how we interpret that and it has to be consistent with the Protocol. We are in the process of beginning that exercise.
Senator ABETZ —What happens in the international community if we determine a definition which is seen as being inconsistent with the international interpretation? Who makes that determination on the international scene?
Mr Tucker —It is a bit hypothetical. We would hope we would make a definition that was not inconsistent.
Senator ABETZ —Yes. But, if we do, who ultimately is the arbiter?
Mrs Emmett —Internationally, the IMO is the arbiter on the Protocol. But with every treaty it depends on what actually happens in national legislation. So we come back to the point that we need to discuss the policy in the future about what will happen on artificial reefs. We have an international treaty and that is interpreting into national legislation. So there is an interpretation which is then put into legislation.
Senator ABETZ —Yes, but I think Australia's experience has been that we have signed up to conventions believing that we were on all fours with our domestic legislation with a convention only to be told 10 or 20 years down the track that in fact we are not. Given, with respect, the degree of cringe factor about international determinations, we then might be in a situation in a decade or so where we have to change our legislation and activities that we thought were in order but are found to no longer be in order. I am wondering whether we can tighten that up so we can in fact ensure that we have learnt from some of our experiences in the past and not leave too many vagaries around the edges.
Mr Tucker —I take your point. I think what we would do to try to make sure we covered those things is that when we got to what our view was on the creation of artificial reefs it would be wise to sound out at least the IMO on where we are going, plus other nations. Other nations clearly are also going to create artificial reefs.
Senator ABETZ —Can we do that straightaway so we can get some indication prior to the federal government legislating and doing things?
Mr Tucker —Yes.
Senator ABETZ —We have been told there has been a lot of consultation. Coming from the state of Tasmania, I am conscious of the electrolytic zinc company that does a bit of offshore dumping. How will they be affected? I know they are working very hard to try to arrange things so they no longer have to.
Mr Tucker —They ceased dumping on 29 October and will never resume. They have written to us handing back their permit.
Senator ABETZ —They are happy with that?
Mr Tucker —They are quite happy with it. We are quite happy with it.
Senator ABETZ —Who are the 77 contracting parties? Does it include countries like Poland, or not?
Mr Tucker —We could provide you with a list.
—If you could that would be helpful.
Mrs Emmett —Poland is a contracting party and they are quite vocal in the IMO.
Senator ABETZ —Good to see. I am sure their navy does not dump at sea. If we could have a list, in any event, of those 77 countries that would be helpful. What is the definition of sewage sludge? Can it be raw sewage or does it have to be some form of treated sewage?
Mrs Emmett —The IMO is currently developing specific guidance for each of the seven items on that list. The definition, although it does not appear specifically in the Protocol, will be defined and elaborated in that specific guidance.
Senator ABETZ —When will that be ready?
Mrs Emmett —They are being developed as we speak. For instance, Australia has developed draft specific guidance on bulky items. Specific guidance has also been developed on geological items and on fish waste. Specific guidance is now being developed on the other four items by different countries.
Senator ABETZ —When would they be ready?
Mrs Emmett —The drafts of the other four are going to be looked at at the Scientific Group meeting which will be held in April. Then they move to the Consultative Meeting where they are agreed. It will take 18 months to two years for specific guidance.
Senator ABETZ —Shouldn't we have all that information before we, as a country, sign up? We might sign up to sewage sludge believing one thing only to have a working party defining it in a way that we never thought possible, but we are stuck having signed the Convention on the Protocol. Shouldn't all that information and definitional work have been done prior to the request for our signature, which I think opens March next year?
Mrs Emmett —No. It is open until March to sign.
Senator ABETZ —Which makes the point, I suppose, even stronger. We want to be good international citizens, we want to sign up but we will not know for 18 months to two years what we are signing up to because we do not know what sewage sludge means, for example.
Mrs Emmett —Under article 24 there are various ways of joining up with this Protocol. One is to sign not subject to ratification. One is to sign subject to ratification. The other one is to accede. What Australia is intending to do is sign subject to ratification. It is open for signature until 31 March, but we cannot ratify until the legislation is put through. We have to go through a lot of domestic procedures before it is ratified.
—More importantly, we should not be ratifying until we know all
the definitions that are being developed.
Mr Tucker —That is quite achievable.
Senator ABETZ —What do you mean `That is quite achievable'?
Mr Tucker —If the government so decides that it does not want to ratify until those definitions are there, then the government can decide that.
Senator ABETZ —Wouldn't it make good commonsense for us as a country not to ratify until we know the exact definitions?
Mrs Emmett —We do not dump sewage sludge. Other countries do, but we do not.
Senator ABETZ —How can you say that until you know exactly what the definition of sewage sludge is?
Mr Tucker —We dump nothing that comes out of human waste through sewers. It is not dumped in our waters through shipping. Coming off land base is not covered by this Convention. Stormwater outlets and sewage pipe outlets are not covered by this Convention. It would only be something that would be physically taken by a vessel out to sea and dumped.
Mrs Emmett —And we do not do that.
Senator ABETZ —So if you dump it via a boat it is potentially sewage sludge. If you do not use a boat but pump it out to sea through a long pipe, that is not sewage sludge.
Mr Tucker —No. It is not covered by this Convention; it is covered by another instrument.
Senator ABETZ —Given that you are dumping usually from land and not by boat because you start off on the landmass and keep filling out to a certain extent, does that therefore mean that man-made reefs, if they are started to be built from the shore, are not dumping?
Dr Stevens —It would not come under the Convention.
Mr Tucker —Most artificial reefs are not built like that; they are actually built out.
—Is concrete in or out? It seems that there is a bit of confusion
on page 7. We have bulky items in, namely, concrete. Then at about point 5 on the page we have a number of materials which have been licensed in the past that may not be dumped.
Mr Tucker —Concrete is in for remote island communities. But for the rest of Australia it is out. It is not explained there clearly. We will attempt to revise that.
Senator COONAN —The other thing I wanted to explore with you very briefly was at point 9 on page 7 of the Protocol where it talks about incorporating a precautionary approach, which is fine, whereby appropriate preventative measures are taken. What I was really interested to know is: how will things such as the waste prevention audit, waste management options and whatever be supervised or enforced? Who is doing the assessing and will proponents really be responsible for self-assessment? How does the process work?
Mr Tucker —It is yet to be determined because we have not done these things to date. Certainly with the way we administer our current permits, we are going to put certain conditions in the permits that they are to meet. For example, they might have to clean something to a certain standard. We will go and check to make sure that has been met. We will either send one of our officers or we will employ somebody else to check that for us and make sure it has been done.
Senator COONAN —Are there enough people to go and have a look at what Christmas Island might want to dump at sea? How does this actually work in practice?
Mr Tucker —We can have other people do it for us on Christmas Island.
Mrs Emmett —We have an environment officer stationed there and they supervise any dumping that occurs. They do check.
Senator COONAN —Do they have the necessary expertise? With some of the criteria you would presumably need to have some specific knowledge about what would be appropriate in the audit process at least to see what you might need to clean off or take out.
Mr Tucker —Audits will probably come to us centrally. We would probably require them to do a draft audit and submit it to us. Then we would look at it, check it and probably consult with appropriate experts and certainly other government departments who have an interest in areas of expertise. We would go back to them with our views on that draft and then subsequently have it finalised, put into practice and have some sort of checking mechanism.
—The short answer to my question is that you are in the course of developing some procedures that will allow you to have some input into the assessment process. Is that correct?
Mr Tucker —That is quite correct. We will have to develop procedures. The Convention before has not required these measures. They are required now. We have to come up with an administrative system to make sure that they are met completely and to the letter of what we are trying to achieve.
Senator COONAN —Also you have said at page 9 that you really do not have any idea how much this might all cost. I suppose you have to know what the procedures will be before you can formulate costings.
Mr Tucker —We have commissioned some preliminary work to give us some idea of what the ballpark might be, but I suspect we probably will not really know until we actually do one.
Mr LAURIE FERGUSON —When you say that we do not allow sewage sludge, does that mean that someone cannot seek a permit, or is it banned by law in Australia? What do you mean by `we do not do it'?
Mrs Emmett —The applicants would have to contact our office and seek a permit if they wished to dump sewerage sludge that is deliberately loaded onto a ship to be disposed of at sea. If they did, we would not agree. We would not issue such a permit.
Mr LAURIE FERGUSON —Even though it is allowed?
Mrs Emmett —No, it will not be.
Mr Tucker —Under the Protocol it will be allowed. Under current circumstances, it is possible that a permit can be issued, but we do not do it.
Mrs Emmett —It is allowed under permit. Let me correct that. Sewage sludge is dumped, but it will be done with a permit and under specific conditions. The point we made is that Australia does not actively deliberately load on a ship and dispose of sewage waste at this time, but it is allowed.
Mr Tucker —The economics determine that for us. Why would you put it on a vessel and incur these costs when there are other much cheaper processing methods already?
Mr LAURIE FERGUSON —I do not know why. The other point was raised in Senator Abetz's concerns and I would be equally worried that there is too much liberality in allowing countries to determine individually what dumping is—such as West African countries without any public services where people are being paid a year later. I would be more concerned that there is a lack of discussion on that front internationally before people sign up to these.
Mrs Emmett —Under article 1 there is a definition of dumping and what dumping does not include. Would you like me to go through that with you?
Mr LAURIE FERGUSON —Not really. We have spent quite a bit of time here today theorising about whether tyres are dumped. That obviously leads me to a possible thought that a country like Liberia might start arguing about what dumping is. That is a concern.
Mr Tucker —I think it is quite possible in the future. It would not surprise me that some of those issues actually come up in the IMO in the next five years or so.
Mr LAURIE FERGUSON —The other point I am not quite on top of concerns the 77 countries. There seem to be quite a few missing. Do I have to get a permit within the country of origin or can I contract to Liberia or wherever to get a permit there? How does this work? I am not too clear on it.
Mr Tucker —I am not sure.
ACTING CHAIR (Mr McClelland) —At the outset in your discussion you said that the treaty prevented companies dumping through another country.
Mr Tucker —That is right.
Senator MURPHY —I want to ask about the definition of `sea'? I thought I understood you to say earlier that you still have to negotiate with the states about state controlled waters. Yet the definition of `sea' seems as though it covers everything from the shoreline out.
Mrs Emmett —Our legislation does start from the low water mark, but it does not cover waters internal to a state.
Senator MURPHY —Out to 12 nautical miles. State waters are 12 nautical miles.
Mrs Emmett —Three nautical miles.
Mr Tucker —There are different definitions, interpretations and descriptions in our legislation and in this. For this particular piece of legislation that we have it operates from the low water mark out. It does not operate on what are called state internal waters which are closing bays, estuaries and so on.
—With regard to the question that was raised about the establishment of reefs, if, say, a state or a country may need to take some action to protect shorelines or channels or some other part of their waterway with the introduction of either artificial reefs or levy banks which can run out to sea for quite a way, how does that cover
that? Do we need to cover that?
Mr Tucker —If it is construction from the shoreline then they are not covered by this Protocol or Convention. Again, it comes back to what is the spirit of the Convention and what it is trying to achieve.
Senator MURPHY —I understand that—with regard to dumping.
ACTING CHAIR —The states have their own obligations, from Australia's point of view, under the treaty. It was negotiated as a federal package.
Mr Tucker —That is correct.
Mr ADAMS —In relation to other countries' fishing boats or boats that may jettison waste that is washed up on our shore, what does the Protocol say about that, if we can prove this came from another country?
Mr Tucker —If we knew who it was and could prove that a vessel in Australian waters deliberately dumped material against our domestic legislation, then we could take action against them. The problem with all those things is trying to identify who it was, whether it was deliberate, whether it occurred in our waters.
Mr ADAMS —What if it came from another shore?
Mrs Emmett —Then it is not deliberate disposal at sea.
Mr ADAMS —I just read here that Norfolk Island still pushes it off into the sea. Let us hope they stop doing that soon. If another country let that happen and they pushed it into the sea and it flooded another part of our shore, the Protocol does not cover that. Hopefully, the next round might get to that.
Mr Tucker —Either that or there may be some other mechanisms. I am not familiar with all aspects of the law of the sea but there may be some dimensions in that.
Mr ADAMS —But off the boat it has to be within our 200 miles, does it? If we can prove it is off a ship of some description and it is within our waters, we can use our own laws.
—I want to make some comments on some of the points that have been made just for the assistance of the committee. As was pointed out earlier, the existing London Convention which the Protocol will replace is given effect to by the Environment Protection (Sea Dumping) Act 1981. It applies in relation to the territorial waters, the exclusive economic zone and above the area of the continental shelf. The map basically shows the area where the thing applies.
ACTING CHAIR —What are you referring to?
Mr Zanker —Certainly, the Environment Protection (Sea Dumping) Act applies in relation to the Australian exclusive economic zone and the area of the continental shelf beyond the Australian Exclusive Economic Zone, not including areas adjacent to the Australian Antarctic Territory. In this case, we would say that it would apply. Perhaps we could have the map reproduced in Hansard .
ACTING CHAIR —That would be handy.
Mr Zanker —Okay. I think it might have been said that the act needed to be changed to change the fee regime. That is not strictly true. Section 40 of the act provides for regulations to prescribe the fees in respect of applications for permits.
If I can just revisit that issue about deliberate disposal, deliberate is a colourful phrase, but the way in which the Convention is implemented in Australian law—and I would imagine the Protocol will be likewise—is to create a range of offences which prohibit the dumping of any material into the sea and then provide for specific defences. I refer you to section 15 of the act. It says:
It is a defence to a charge of an offence . . . if the person proves that—
(a) the dumping the subject of the charge was necessary to secure the safety of human life, or of a vessel, aircraft or platform at sea, in case of a force majeure caused by stress of weather; or
(b) the dumping the subject of the charge appeared to be the only way of averting a threat to human life, or to the safety of a vessel . . .
(c) the dumping was conducted so as to minimise the likelihood of damage to human or marine life; and
(d) a report of the dumping, setting out the prescribed information, was furnished to the Minister as soon as practicable after the occurrence of the dumping.
So some alleged accidental disposal of material at sea would have to be reported to the minister. That is the way that works. It reflects the provisions of the Convention because it does say that dumping can take place if there is some circumstance where human life is likely to be threatened—if it does not actually occur.
The other point I wanted to come to was this business about artificial reefs and dumping. It is a complicated question. In implementing the Protocol, we will have to be careful in drafting the bill to make sure that various considerations that have been referred to by others are carefully taken into account.
In the actual Protocol, article 1 paragraph 4.2.2, states that:
`Dumping' does not include:
placement of matter for a purpose other than the mere disposal thereof, provided such a placement is not contrary to the aims of this Protocol;
I suppose in the case of an artificial reef that was constructed from old railway carriages,
which I understand have sometimes been used for purposes like this, it would be contrary to the aims of the Protocol to dump them if hazardous materials like mercury or other heavy metals would continue in the environment for a long time and potentially pose a health threat.
Similarly, if the materials used for the construction of the reef were dumped into shipping lanes where they presented a hazard to navigation, that would also be contrary to the aims of the Convention. That is one of the things that generally should not be done. The real issue will be actually getting all these matters right when preparing the relevant legislation to amend the Environment Protection (Sea Dumping) Act. That would be done having regard to things like what the International Maritime Organisation would regard as sewage sludge, for example, to come back to that one.
ACTING CHAIR —Thanks very much for those points and thanks very much for everyone coming along.