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Joint Standing Committee on Treaties
Treaty tabled on 23 March 2011

BRYSON, Mr Robert Patrick, Shipping Manager, Shipping Section, Support Centre, Australian Antarctic Division, Department of Sustainability, Environment, Water, Population and Communities

NELSON, Mr Paul Eric, Manager, Marine Environment Standards, Marine Environment Division, Australian Maritime Safety Authority

TAN, Ms Poh Aye, Section Head, Maritime Policy, Maritime Policy Branch, Surface Transport Policy Branch, Department of Infrastructure and Transport

Committee met at 10 :26

Amendments to the a nnex of the Protocol of 1978 r elating to the International Convention for the Prevention of Pollution from Ships, 1973

CHAIR ( Mr KJ Thomson ): I declare open this public hearing of the Joint Standing Committee on Treaties for its ongoing review of Australia's international treaty obligations. Today the committee will take evidence on the proposed amendments to the annex of the Protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships. This treaty action, known as resolution MEPC.189(60) to the MARPOL, was tabled in parliament on 23 March. I welcome the representatives from the Australian Maritime Safety Authority, the Department of Infrastructure and Transport and the Australian Antarctic Division of the Department of Sustainability, Environment, Water, Population and Communities.

I note we have been joined by Senator O'Brien and, seeing as we paid tribute to Senator McGauran and his service to the committee, I want the record to show our appreciation also of your work, Kerry.

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 response to questions reaches the committee secretariat within seven working days of your receipt of the transcript of today's proceedings. I now invite you to make introductory remarks before we proceed to questions.

Ms Tan : Thank you, Chair. Good morning, committee members. Today we are discussing amendments to Annex I of the International Convention for the Prevention of Pollution from Ships, generally known as MARPO L. MARPOL has six a nnexes dealing with various pollutant types. Annex I is concerned with preventing pollution of the sea by oil from ships. On 26 March last year the Marine Environment Protectio n Committee of the IMO adopted amendments to a nnex I to ban the carri age in bulk of heavy grade oils or their use and carriage as fuel on ships in the Antarctic a rea. The Antarctic a rea is defined as the area south of 60 degrees south latitude. The nearest part of the Antarctic area is about 1,8 00 kilometres south of Tasmania.

There is a specific definition of heavy grade oils in the MARPOL amendment. The rationale for banning their use and carriage in the Antarctic a rea is that their natural degradation process, if spilled at sea in the Antarctic a rea, is very slow. Consequently, heavy grade oils ar e more environmentally hazardous in cold water climates than other marine fuel oils. Heavy grade oils are also very persistent when spilt in cold waters and could have a major impact on the fragile Antarctic environment. There is also a relatively high risk of oil spills in the Antarctic a rea due to conditions such as icebergs, sea ice and uncharted waters. As indicated in the national interest analysis, the ban will affect the operations of the Australian Antarctic Division. Although the main vessel currently used by the AAD, the Aurora Australis, does not use heavy grade oils, the AAD occasionally charters other vessels on short-term contracts to assist with resupply and waste removal from its four stations. While affecting the AAD's work program. It will not stop its operations. The imposition of the ban is supported by the AAD as it will provide greater protection of the Antarctic environment.

These amendments to annex I of MARPOL automatically enter into force internationally, unless objected to by one third of the parties to MARPOL, or by parties with a combined tonnage of 50 per cent of the world's merchant fleet. The amendments were deemed to have been accepted on 1 February this year, being the end of the period within which objections could be lodged. The amendments will enter into force internationally on 1 August this year. I acknowledge that consideration at this time means that the committee is unable to express a meaningful view on whether or not Australia should accept the amendments. The committee had commented on a similar situation in its report 116 and recommended that all future amendments to MARPOL be tabled in sufficient time for the view of parliament to be taken into consideration before the period for objections to the amendments ends. That recommendation is being acted on and I would like to assure the committee that all efforts will be made to ensure that future amendments to MARPOL will be tabled in time to allow the committee to express a meaningful view.

CHAIR: Thank you for that and for the assurance. The national interest analysis indicates that there have been discharges of heavy oil occurring in recent years. Can you give us any detail about these incidents, including the extent of the resulting pollution, the cost of clean-up activities and the like?

Mr Nelson : We do not have details of all the incidents. We can certainly take it on notice if you like and get back to you with the amount of oil lost and any damage, but certainly, over the last four or five years, there have been a number of incidents, not all of which have resulted in pollution. There was a cruise vessel which sank a few years ago obviously with oil on board the vessel, but there are no signs of that oil leaking, although eventually it no doubt will. So we can take that on notice and provide further details.

CHAIR: I would be happy for you to do that. The Australian Antarctic Division currently contracts Russian ships for essential support in the region which, the committee has been told, use heavier oils that are to be banned under the resolution. Have those ships been involved in any oil spillages and, if so, how have they been dealt with?

Mr Bryson : We have not chartered a Russian vessel in about three years and we do not have any intention of doing that in the oncoming season and the next season after that. We have been talking to our ship brokers as well, and the vessel that we used in the past is actually able to run on fuel oil of a lighter grade, so that is not as big a concern to us as it was in the past. None of those vessels that we have used in the past have been involved in any oil spills.

CHAIR: But I take it from what you are saying that you are not expecting that this agreement will have any impact on those contracting arrangements?

Mr Bryson : That is correct, Mr Chair.

CHAIR: Thank you. We got a submission on this treaty which proposed that the area covered should be extended to 38 degrees south latitude, which I am told was the northern point of Western Port. The intention behind this submission was to extend protection to the roosting and foraging sites of the Phillip Island penguins. That is the heart of the submission. I am happy to make the submission available to you if you want to see it in full. But I wondered whether you had any response or comment to that proposal?

Mr Nelson : Certainly the selection of 60 degrees is recognition that the situation is in the Antarctic, where the extreme weather condition, extreme cold, is a unique situation when you have a spill involving heavy fuel oil. That decision was taken by the international maritime organisation. Now, changing that to apply to waters, effectively south of Phillip Bay, I think, is what you are saying.

CHAIR: North point of Western Port.

Mr Nelson : Western Port Bay. Is something that if we were to go down that path, we would be doing that unilaterally outside the convention and also responding to spills of heavily fuel oil in Australia waters is obviously it is not something we would choose to do, but if there is an oil spill near Australia involving heavy fuel oil, we do not have the same problems that we do in the Antarctic. We can get to it, we have a national response plan in place that we can respond to incidents around the Australian coast. So a very different situation anywhere near Australia.

CHAIR: All right. I appreciate that response, but the committee may wish to forward the submission to you so that you can provide a more formal or considered response.

Mr Nelson : Yes, happy to do that.

Senator BIRMINGHAM: Thanks for your evidence today. A few quick questions out of the NIA. Firstly, have any parties lodged an objection to the amendments?

Ms Tan : No.

Mr Nelson : No.

Senator BIRMINGHAM: No, not that you are aware of? Thank you. In regards to paragraph 12 of the NIA which talks about the implementation of the amendments, remind me, Australia claims as territory—what proportion of Antarctica?

Mr Bryson : 43 per cent.

Senator BIRMINGHAM: I assume that roughly equates to about 43 per cent of the Antarctic coastline or thereabouts. How will Australia be able to actually enforce the amendments within our territories?

Mr Nelson : The situation regarding enforcement in territorial waters is normally fairly clear. Close to Australia, obviously we have the ability to our laws on any vessels within 12 nautical miles around the Australian cost. The situation in Antarctica however, is very different. I am not an expert on the Antarctic treaty mechanism, but I understand that all parties to that treaty have, while they all claimed sovereignty in the area, have agreed that sovereignty is generally not recognised in that area. For a convention like this, in those areas, we rely on the flag states—that is, the countries where those vessels are registered to ensure that the vessels comply with these requirements.

From the perspective of the Australian Maritime Safety Authority, we inspect vessels visiting Australian ports, including Hobart, obviously, and in the case of any vessels visiting those ports where we detect they do not comply or have concerns that they might not be in compliance with the international laws, we certainly have powers to detain them until we are satisfied that they would comply. In terms of applying laws to territorial sea, the circumstances in the Antarctic are very different to what they are in most other parts of the world and we rely heavily on the vessels' flag states—that is, the countries where the vessels are registered—to apply these laws. Certainly, I think all of those countries are party to this convention as well. That is what we rely on.

Senator BIRMINGHAM: How many other countries do we currently have operating within our 43 per cent territory, roughly at least?

Mr Bryson : Roughly, I would say we would have five to six other nations operating in our claim area.

Senator BIRMINGHAM: That is just in a shipping context, is it?

Mr Bryson : That is in everything: aviation—

Senator BIRMINGHAM: I thought it was more than five or six. Okay.

Mr Bryson : Within the Prydz Bay area, close to Davis Station, you have the Chinese, the Russians and the Indians, who, at the moment, are in the process of building their station at the Larsemann Hills. In the French claim area you have the French operating. They are the main nations that are operating in our area at the moment.

Senator BIRMINGHAM: All of whom are parties to this convention, I trust?

Mr Bryson : All of them are signatories to the treaty.

Senator BIRMINGHAM: So, if I am right, Mr Nelson, from what you have said, in terms of enforcement capabilities, essentially we would rely primarily on those parties enforcing it on their own ships. Alternatively, the next and really only defining line would be that most of them, en route to Antarctica, would presumably dock in Hobart or somewhere in New Zealand or the like, and that Australia or New Zealand or elsewhere would be inspecting those ships en route.

Mr Nelson : Yes. Port state control is something that we do and, in other countries, other administrations do as well. So, yes, on their way to Antarctica, all these countries—Argentina, Chile, New Zealand, Australia—would be checking the vessels for compliance through port state control.

Senator BIRMINGHAM: And Mr Bryson, in terms of those five or six countries operating within the Australian territory at present, how many of them rely on ships that would currently be in breach of the amendments?

Mr Bryson : I will have to take that on notice. I know that there is a couple of government ships that do still burn heavy fuel oil, but at the same time they could be able to be converted and run on that heavy fuel also. I will take that on notice and get back to you.

Senator BIRMINGHAM: Lastly from me, paragraph 16 of the NIA says that the convention provides an exemption for warships, naval, auxiliary or other ships owned or operated by a state and used only on government non-commercial service. Would that not mean that most vessels in and out of Antarctica are exempted under the convention anyway?

Mr Bryson : You could use that clause if you wanted to, except in Australia. My learned colleague over here will brief you that, under the way that we have signed the MARPOL treaty, we do not have access to that clause. But it is open for the other operators, because most of their ships are nationally flagged ships that are owned and operated by government organisations.

Mr Nelson : But a lot of the activity in recent years has been of cruise ships—there is a lot of tourism activity down there. So one of the aims of this amendment is to address that. But certainly, as my colleague has said, in Australia we have chosen to apply the MARPOL convention to government operated ships. But other countries might not have done that.

Senator BIRMINGHAM: Are we aware of whether the other countries operating within the Australian territory have?

Mr Nelson : No, we are not. That would be a matter for their domestic legislation. It might be a little hard to determine, but we can certainly attempt to find out.

Senator BIRMINGHAM: If you could take it on notice and provide what information you can, that would be appreciated.

Mr Nelson : Yes.

Dr STONE: Thank you. It seems that most of the shipping down there is cruise shipping and most of it goes to the peninsula. And most of the spills have been from those cruise ships in recent times. What success has there been in ensuring that the owners of those vessels have done what they should have in clean-up operations? Is there a legacy of not doing enough at the time to contain the spills or afterwards? I am just wondering what sanctions are available through these new contingencies to ensure that the tourism business, the cruise shipping business, is going to be sufficiently warned, educated and limited—especially since, as they go to the peninsula, they will be nothing to do with us—and then can be quickly made to do the right thing, should there be a spill.

Mr Nelson : Other sections under this convention require all vessels to have, shipboard, all pollution emergency plans on board. Again, that is another item that we check in our port state control inspections and all the other countries do as well. Every vessel has to have a shipboard emergency response plan dealing with how to respond to oil spills. In that part of the world, it would be mainly be a calling for assistance from one of the governments. I mean, there is not a lot that a cruise ship can do, given that safety of life is the primary concern regarding the oil spills. They would mainly be calling on Argentina, Chile or Australia, depending on who is closest and who is in the best position to assist.

Dr STONE: And are the double hull conventions working? We were talking about strength and hulls, for a time, that had to be used. Are they now working? Is there now a complete move to those strengthened vessels compared to what was first going down there?

Mr Nelson : Again, this convention introduced, from 1 January last year, a requirement that all new vessels would have to be built with a double hull around the fuel tanks. That will be phased in as new vessels come along, but it is an important amendment that will certainly reduce the risk of any spills, whether marine diesel or heavy fuel.

Dr STONE: That amendment is not flagged in this material.

Mr Nelson : No, that was an amendment that came into force last year.

Dr STONE: Finally, I know Australia has 42 per cent of the continent, but our coastline is amongst the least visited, as we are aware. Around on the peninsula, where it is basically Argentina, Chile and the UK that are operational, are we concerned there that not all of the flagged cruise vessels are from nations that are in fact part of this deal? Russia has a lot of those cruise ships, but there are others now increasingly flagged to other nations. Are those smaller cruise outfits a worry? It has become the flavour of the month to cruise to the Antarctic and in smaller vessels all the time.

Mr Nelson : I think we also need to be reminded that it comes down to the vessel's flag state. While the operators might be small, they might be flagged in large countries: the Bahamas, Panama, Liberia and other countries.

Dr STONE: Liberia, for example, is one of the most common ones. We cannot expect much cooperation from them.

Mr Nelson : However, in implementing conventions like this, in our experience, they are very good at enforcing these types of standards on their flagged vessels. So it does not necessarily come down to the size of the operator. It is where the vessel is flagged, and the position taken by the vessel's flag state.

Mr Bryson : Could I also add that there is a lot of work going on outside of MARPOL and in the IMO to put in place what is called the polar code, which is applying a whole raft of new practices on ship operators, including design, safety equipment and qualification of ships' navigators in polar waters, in recognition of the fact that these waters are very dangerous and bearing in mind the number of incidents we have had over the last five years.

Dr STONE: Are we worried about the additional cost to Australia's replacement vessel, the Aurora Australis. They are obviously essential, but is there going to be a significant increase in cost for us in our future investment in our shipping?

Mr Bryson : I do not think so. The way the technology is going at the moment in polar ice breaking, it has moved towards those lighter grade fuels, so I do not think it is a major issue.

Dr STONE: It is not going to be a major problem for us?

Mr Bryson : No.

Mr Nelson : I might also add that there is another part of the convention which, by the year 2020, is looking to phase out heavy fuel oil anyway. Over the next 10 years, more and more ships will be using marine diesel fuel for the purposes of greenhouse gas emission reductions anyway. That is another mechanism. Whether or not vessels are covered by this particular amendment, generally the use of heavy fuel will be declining globally over the next 10 years anyway.

Mr Bryson : At the same time, if you look at all the Russian shipping around this area, it is nearing 30 years old now. Thirty years is usually the end of a ship's life, so we should be seeing a churn and a revitalisation within the fleets in the next five to 10 years, hopefully. So this should not be a major issue.

Senator McGAURAN: This is Russia we are talking about?

Mr Bryson : Yes, Russia. I am ever hopeful.

CHAIR: Dr Stone mentioned Aurora Australis, which is apparently reaching the end of its serviceable life. What can you tell us about the replacement plans?

Mr Bryson : At this stage I can say that those replacement plans are very formative. We are looking at our requirements at the moment, in line with a lot of other activities in the division about what the future shape of our program will be like. The Aurora Australis is 21 years old now, and is actually operating out there at the moment. It has had a hard life but we have pretty much got another four years on the current charter to utilise her and, hopefully, by that stage we will have plans well in place for a new ship.

CHAIR: The senators are being summoned by a higher authority. On this question of what other countries are doing, which both Senator Birmingham and Dr Stone touched on, we understand that there are 30 countries which operate bases in Antarctica. How many of those countries are complying with MARPOL and the amendments? Is noncompliance potentially a significant issue?

Mr Nelson : Again, we can take that on notice. We can look at those 30 countries and provide information on which of those countries have adopted the convention.

CHAIR: That would be appreciated. As there are no other questions, I thank you for attending to give evidence today. If the committee has any further questions the committee secretariat may seek further comment from you at a later date.

Resolved (on motion by Ms Parke):

That this committee authorises publication of the transcript of the evidence given before it at public hearing this day.

Committee adjourned at 10 : 50