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Wednesday, 14 September 2011
Page: 10166


Mr CHESTER (Gippsland) (10:01): I rise to speak in relation to the Protection of the Sea (Prevention of Pollution from Ships) Amendment (Oils in the Antarctic Area) Bill 2011. This bill amends the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 to implement the amendments to annex I of the International Convention for the Prevention of Pollution from Ships—or, as it is known, MARPOL—to implement special requirements for the use and carriage of heavy-grade oils in the Antarctic.

Australia has been a member of the International Maritime Organisation since its establishment in 1948 and, as such, has played an active role in the development of the conventions and treaties over many years. MARPOL has six annexes which deal with different aspects of marine pollution, and all six have been implemented by Labor and coalition governments over time. Relevant to this bill, annex I relates to the prevention of pollution by oil and entered into force internationally on 2 October 1983 and in Australia on 14 January 1988. Its introduction received bipartisan support. In 2004, the Marine Environment Protection Committee of the IMO adopted a revised version of annex I which entered into force in Australia and internationally in 2007. In 2005, a meeting of the Antarctic treaty consultative committee, which Australia attended as a country having an interest in Antarctica, requested that the IMO examine ways to restrict the use of heavy-grade oils in Antarctic waters. As a result of this request, the current amendments to annex I were adopted by the MEPC of the IMO on 26 March 2010, and came into force internationally on 1 August this year. Amendments to other annexes of MARPOL have consistently received bipartisan support, and this is not the first bill implementing MARPOL convention amendments this year. As with legislation earlier this year, the coalition will support this bill.

The rationale behind the annex I amendments is that a potential spill of heavy-grade oils would have a devastating impact on the Antarctic environment which would persist for many years. Heavy-grade oils are more environmentally hazardous than other marine oils because of the lengthy time they take to break down, particularly in the harsh polar environment. A spill, if it occurred, would have a long and damaging impact on wildlife, particularly on seabirds and penguins, and would be very difficult to address because of the remoteness of the Antarctic and the very long travel times from population centres and rescue organisations.

This bill makes a number of amendments. Firstly, the bill inserts section 10A, which prohibits the use or carriage of heavy-grade oil as fuel and the carriage of it in bulk as cargo on Australian ships in the Antarctic area. This section creates two different but very similar offences. Under subsection (1), it provides that the master and the owner of an Australian ship will each be guilty of an ordinary offence with a maximum penalty of 2,000 penalty units if they use or carry heavy-grade oils as fuel or bulk cargo. This equates to a maximum penalty of $220,000. The other offence under subsection (2) provides that the master and the owner of an Australian ship will each be guilty of a strict liability offence with a maximum penalty of 500 penalty units if they use or carry heavy-grade oil as fuel or bulk cargo. Strict liability makes a person legally responsible for damage caused by their actions or omissions regardless of culpability and strict liability means there is no requirement of fault for any of the physical elements of the offence. Shared liability by the master and owner of the ship is consistent with offence provisions in other parts of the PPS act. Additionally, the penalties for the two offences are also consistent with other parts of the PPS act as well as the Navigation Act 1912. Generally, I do not like strict liability offences, as the defendant bears the evidential burden in relation to the offences; however, in this instance, it is hard to conceive of circumstances where a master or a shipowner would not be aware that their vessel was breaching these laws. It is important to note that there is no requirement to clean or flush residues of heavy-grade oil from a tank or pipeline of a ship to comply with the legislation as small amounts of oil would pose a minimum risk to the environment. I am also assured that heavy oil in ship gearboxes or other small-volume applications will be permitted under this legislation.

This flexibility prevents technical breaches of divisions through residue or small quantities of heavy-grade oils being present, which would in reality pose little risk to the environment. Additionally, an offence will not be committed if the Australian vessel is in the Antarctic area to save a life at sea or secure the safety of a ship, which in all circumstances, I think members on both sides would acknowledge, is a very reasonable provision.

The legislation also seeks to insert proposed section 10B, which prohibits the carriage of heavy-grade oil in bulk as cargo and its use or carriage in the Australian Antarctic Territory. As with section 10A, this section creates two different but similar offences: a strict liability offence and an ordinary liability offence. The penalties for breach of the offences are the same as with section 10A. Again, shared liability by the master and owner of the ship is stipulated, the defendant bears the evidential burden and there is no requirement to clean or flush residues of heavy-grade oil from a tank or pipeline to comply with the legislation. Additionally, as with section 10A, rescue voyages are excluded.

There are also some minor technical amendments in the legislation, and the bill removes the old definition of 'engage in conduct' and inserts a new definition, which is the same as that set out in the Criminal Code with subsection 4.1(2) of the code defining 'engage in conduct' to mean:

(a)   Do an act; or

(b)   Omit to perform an act.

This bill also inserts a MARPOL Annex I definition of heavy-grade oil into the PPS Act.

The consultation, which I understand has been undertaken, has been extensive and both Shipping Australia and the Australian Shipowners Association have been consulted and support the bill. Additionally, I have been advised that the Australian Fisheries Management Authority has contacted southern ocean fishing operators who advised that the proposed changes will not impede current or future Antarctic fishing operations.

In conclusion, the coalition is proud of its record and will always support sensible measures designed to protect our unique marine environment, whether that be the Great Barrier Reef off the Queensland Coast or our Antarctic Territory. I am pleased to support the bill.