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Wednesday, 12 October 2011
Page: 11707


Mr TRUSS (Wide BayLeader of The Nationals) (10:10): This morning, I am speaking on the Maritime Legislation Amendment Bill 2011, which seeks to amend the Navigation Act 1912 and the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 by creating an offence for negligent navigation in a manner that causes pollution or damage to the marine environment, by creating an offence for failure to report in a mandatory reporting area and by increasing penalties for the reckless or negligent discharge of oil or oil residues by ships.

The lasting impact of damage to our unique marine environment should not be underestimated. While significant environmental incidents are relatively uncommon, the number of reported oil spills in Australian waters has averaged over 250 per year for the past 10 years. That sounds like a very large number, but many of these spills are quite small and go unreported in the media and in other circles. Nonetheless, it demonstrates that there are issues and that we need to ensure that we have appropriate laws and regulations to protect our marine environment.

Oil spills at sea have the potential to cause lasting damage to our marine ecosystems as well as have an ongoing impact on the maritime, fishing and tourism industries. While sometimes the damage is limited to a very small area—and the marine environment, like the rest of our environment, is surprisingly resilient—the reality is that some of this damage can be long lasting and can have a significant impact on particular species, especially at a local level. In Australia's recent history, two specific maritime incidents stand out: the grounding of the Shen Neng 1 and the Pacific Adventurer oil spill.

The changes proposed in this bill implement some of the recommendations from a report conducted by the Australian Maritime Safety Authority in the wake of the Shen Neng 1 incident. The Shen Neng 1 ran aground 38 nautical miles east of Great Keppel Island, causing damage to a three-kilometre stretch of the Great Barrier Reef. The fuel tanks ruptured and four tonnes of fuel oil leaked into the surrounding waters. Thankfully, the vessel was successful salvaged by Svitzer, preventing the spillage of the coal and heavy fuel oil that were on board that vessel.

The Pacific Adventurer oil spill in March 2009 saw more than 270 tonnes of heavy fuel oil leak into the sea over seven nautical miles east of Cape Moreton. The ship lost 31 containers of ammonium nitrate overboard, which caused the leak. The clean-up operation on shore lasted two months, involved 2,500 people and removed 3,000 tonnes of contaminated sand from Moreton Island. Most of the containers have never been recovered, and so there has been lasting damage from that particular incident. As the member for part of the area—and I am sure that you, Mr Deputy Speaker, were well aware of this as it was also partly in your electorate—I can report that this oil spill caused grave community concern in the tourist areas of the Sunshine Coast that such an incident could occur in the first place and also to some extent about the way in which the clean-up operation was handled by the state authorities. In New Zealand last week the Liberian flagged vessel Rena ran aground on a reef off the North Island in the Bay of Plenty. So far, up to 350 tonnes of heavy fuel oil has leaked into the Bay of Plenty and authorities have been unable to prevent the leak or successfully salvage the vessel due to large swells. Indeed, the last report I saw was that the salvage operators had left the vessel because it was too dangerous to operate and there are now really serious concerns about the potential damage arising from this grounding. The Rena had 1,700 tonnes of heavy fuel oil on board so, should the ship be unable to be salvaged and the weather deteriorate further, the spill could potentially become significantly larger. While the lasting impact will not be known for some time, dead seabirds and fish are already being washed up on local beaches and penguins are being treated in wildlife rescue centres. This is already regarded as New Zealand's worst maritime pollution disaster and highlights the need for vigilance in this area. I am pleased that AMSA has offered its support and expertise in dealing with the disaster across the Tasman. I understand that 30 AMSA officers have been deployed to assist. We wish them well with this important task being undertaken in very difficult circumstances at the present time.

Returning to the measures specifically contained within the bill, the bill implements a number of new proposals. Firstly, proposed subsection 267ZZ(i) requires the master of any ship in Australian waters not to operate the ship in a manner that causes pollution or damage to the marine environment. Additionally, the bill requires that the master of any ship in Australian waters must ensure the ship is operated in a manner that does not cause pollution or damage to the marine environment. Similarly, in relation to an Australian flagged vessel operating on the high seas it is the responsibility of the master not to operate the ship in a manner that causes pollution or damage to their marine environment—that is proposed subsection 267ZZ(l)—and to ensure that the ship is operated in a manner that does not cause pollution or damage to the marine environment. That is proposed subsection 267ZZ(m).

The bill also creates civil and criminal penalties for contravention of these provisions and procedural requirements through which compliance with the bill may be enforced. Criminal and civil penalties are provided for and a higher civil penalty may apply in the case of serious damage. The high penalties are intended to deter non-compliance and take into account the levels of cost saving that shipping operators may achieve through non-compliance and the perceived likelihood that a breach will be identified and a shipping operator prosecuted. The bill also creates an offence where the master of the ship fails to report in a mandatory reporting area such as the Great Barrier Reef. That is proposed section 269E. A strict liability offence is created, so no intention is necessary for an offence to be committed. This makes it clear that the prosecution does not have to establish that the master knew or was reckless to the fact that the ship was in a mandatory reporting area. This is appropriate, as the defendant, the ship's master, is best placed to provide evidence as to whether the section was contravened.

Nonetheless, as a matter of principle I do have some concerns about the creation of these strict liability offences. In many cases it is difficult for a master or somebody in a position of responsibility to be able to account for all of these issues that he is responsible for at any given time. In particular, I recall debates in the Main Committee and in the main chamber about proposals to introduce strict liability offences for aircraft captains in circumstances where they could not possibly have been expected to be able to take responsibility for what had happened. Fortunately, those proposals were defeated. But this is a different circumstance. This is only in relation to an offence where a vessel is in a mandatory reporting area. Frankly, a vessel that is in a mandatory reporting area like the Great Barrier Reef is usually there for quite some time, and it would seem to be incomprehensible that a master could have any excuse for not knowing that he was there and not undertaking the required mandatory reporting processes. So, while as a matter of principle I have concerns about strict liability offences, it seems to me that, in this instance, it is probably a reasonable way to go.

Finally, the bill increases the penalties in the PPS Act for reckless or negligent discharge of oil or oil residues by ships. Australia, as a signatory to the International Convention for the Prevention of Pollution from Ships, is required to ensure that the penalties specified under the law are adequate to discourage violations. Presently the PPS Act imposes a maximum penalty of $220,000 for an individual and $1.1 million for a corporation for reckless or negligent discharge or oil or oil residues into the sea. However, this is significantly less than that imposed by state governments, with spills in New South Wales or Queensland having a maximum penalty of up to $10 million for a corporation.

This bill will increase the fine for a corporation from $1.1 million to a maximum of $11 million—a tenfold increase. The amendment will mean that the severity of the penalty will be based on the seriousness of the offence and not the location of the offence. In view of the enormous damage and high cost associated with recovery from an incident, severe and more substantial penalties are clearly justified.

In increasing the penalty, the bill puts the burden on the polluter to pay the clean-up bill. In the wake of the Pacific Adventurer oil spill, the protection of the sea levy was increased by 3c per registered tonne in order to recover the clean-up costs of the spill. This meant that the industry paid for the mistake of a particular shipping company, as their legal liability was inadequate to cover the cost of the clean-up. It should be noted that the owner of the Pacific Adventurer, Swire Shipping, agreed to pay $25 million in compensation, in excess of their legal obligations arising from the oil spill. But this was still below the total clean-up cost, which was estimated to be $31 million.

It is obvious that there are other people operating ships around our coast and indeed around the world who perhaps do not have the same principles of wanting to do the right thing as Swire has. So it is important that there be a significant deterrent in place to prevent inappropriate behaviour and so that masters are aware of their responsibilities and companies make every effort to ensure that their vessels operate in a safe way.

The coalition is happy to support the bill and will continue to support all sensible measures designed to protect our unique marine environment. The ongoing situation in New Zealand shows that, while major incidents in Australia are rare, they can happen and we need to take steps to deter dangerous and reckless actions at sea and to appropriately deal with incidents should they arise.