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Protection of the Sea (Powers of Intervention) Amendment Bill 2006

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2004-2005-2006

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

PROTECTION OF THE SEA (POWERS OF INTERVENTION) AMENDMENT BILL 2006

 

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by Authority of the Minister for Transport and Regional Services, the Honourable Warren Truss MP)

 



 

PROTECTION OF THE SEA (POWERS OF INTERVENTION) AMENDMENT BILL 2005

 

OUTLINE

 

The Protection of the Sea (Powers of Intervention) Amendment Bill 2006 amends two Acts:

 

  • the Legislative Instruments Act 2003 ; and
  • the Protection of the Sea (Powers of Intervention) Act 1981

 

Amendment to the Legislative Instruments Act 2003 (the LIA)

 

The LIA establishes a comprehensive regime for the registration, tabling, scrutiny and sunsetting of Commonwealth legislative instruments. The Act commenced on 1 January 2005.

 

Item 1 of Schedule 1 of the Bill amends the LIA.  The amendment is a technical amendment to delete a table item from section 54 of the LIA as a consequence of amendments to the Protection of the Sea (Powers of Intervention) Act 1981 ( the Act) .

 

Table Item 33 in section 54(2) of the LIA refers to Section 24 of the Act.  Section 24 deals with making of Marine Orders, but this section is repealed by Item 64 of this Bill as a consequence of other amendments.  With this change the requirement to continue to exempt such Marine Orders under the Legislative Instruments Act 2003 ceases.

 

Amendments to the Protection of the Sea (Powers of Intervention) Act 1981

 

Schedule 1 of the Bill amends the Act. 

 

The Act is the Australian Government legislation that gives effect to the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 1969 (Intervention Convention).  The Act empowers the Australian Maritime Safety Authority (AMSA) to intervene on the high seas when there is a ‘grave and imminent’ danger of serious pollution to the Australian coastline from a maritime incident.  AMSA also has the powers to act within the coastal seas when oil or noxious substances are escaping or are likely to escape from a maritime casualty.  The Act has a general provision that provides for AMSA to take any action considered necessary to prevent, mitigate or eliminate risks of marine pollution occurring in Australian waters and in waters nearby.  The Act also contains more specific provisions which provide that AMSA can give appropriate directions to the owner of a stricken vessel, its master and/or the salvor in possession of the ship, to minimise risks of pollution or to mitigate its effects.  It is required that these directions be reasonable and proportionate to the underlying danger.  The Act imposes penalties for non-compliance with such a direction.

 

While the Act, prima facie , confers wide powers to AMSA, the Australian and State and Northern Territory Governments have agreed that it is desirable to clarify the extent of powers available to the Government in responding to a threat of serious marine pollution from a marine casualty and to ensure that it has clear and unambiguous authority to deliver the desired pollution prevention outcomes. 

 

To this effect the Australian, States and Northern Territory Governments have agreed to the details of a national approach to emergency response arrangements which require the Australian Government to undertake the role of the national co-ordinator and decision-maker in relation to responses to a maritime casualty in Australian waters.

 

The amendments in this Bill will give effect to the regulatory elements of the agreed national maritime emergency response arrangements and will enable expeditious and effective decision-making with assurance of full support and cooperation from Commonwealth and State agencies.  Experience of recent maritime incidents in Europe and elsewhere has shown that from a national perspective a single national decision-making framework is the most effective model for managing and coordinating a response to an actual or potential pollution incident.

 

The Bill will amend the Act to:

·          clarify the status and scope of the Australian Government’s power of intervention in Australia’s Exclusive Economic Zone (EEZ);

·          align the scope of powers available to the Australian Government in the EEZ with that in the coastal sea;

·          extend the application of the Act to all ships in the coastal sea which present a threat of significant pollution;

·          clarify the extent and scope of intervention powers in relation to prevention of pollution by extending  powers of direction for: 1)  release of tugs or other assets; 2) determination of a place of refuge; and 3) directions to persons other than ship owners, masters and salvors in possession of the ship;

·          provide that intervention directions issued by AMSA will prevail over directions of any other person where these conflict with AMSA’s directions;

·          revise penalties for non-compliance with a direction given under provisions of the Act;

·          provide for responder immunity from liability for decisions made with due care; and

·          provide for reimbursement on just terms for the use of requisitioned property including compensation for damage or loss occurring while the property is under requisition.

 

 

FINANCIAL IMPACT STATEMENT

 

There is no direct financial impact. 

 

The costs incurred by the AMSA in taking measures under the Act are recoverable from the owner of the shipping casualty under Parts IV and IVA of the Protection of the Sea (Civil Liability) Act 1981 (the Civil Liability Act).  The Bill reinforces this right to recover the Authority’s costs from the shipowner, and clarifies that other parties incurring costs as a result of complying with directions issued under the Act may also recover their costs from the shipowner, consistent with the rights of shipowners to limit their liabilities under international law.

 



ABBREVIATIONS

 

AIA

Acts Interpretation Act 1901

AMSA

Australian Maritime Safety Authority

Civil Liability Act

Protection of the Sea (Civil Liability) Act 1981

CLC

The Civil Liability for Oil Pollution Damage Convention 1969

Crimes Act

Crimes Act 1914

EEZ

Exclusive Economic Zone

Intervention Convention

International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 1969 (Intervention Convention) 

LIA

Legislative Instruments Act 2003

Protocol

Protocol Relating to Intervention on the High Seas in Cases of Pollution by Substances other than Oil, 1973

The Act

The Protection of the Sea (Powers of Intervention) Act 1981

UNCLOS

United Nations Convention on the Law of the Sea 1982

 

 

 

 

 



 

PROTECTION OF THE SEA (POWERS OF INTERVENTION) AMENDMENT BILL 2006

 

NOTES ON CLAUSES

 

Clause 1: Short title

 

This clause is a formal provision that provides for the Bill, when enacted, to be cited as the Protection of the Sea (Powers of Intervention) Amendment Act 2006 .

 

Clause 2: Commencement

 

Clause 2 provides for the commencement of the provisions of the Bill.

 

This clause provides that the Act commences on the day after the proposed Act receives Royal Assent.

 

Clause 3: Schedule(s)

 

By virtue of this clause, the provisions of the Act specified in the Schedule are amended or repealed as set out in the Schedule and other items in the Schedule have effect according to their terms.

 

Schedule 1 Amendments

 

There are 98 amendment items in this Schedule amending two Australian Government Acts.  Item 1 amends the Legislative Instruments Act 2003 , the other 97 items amend the Protection of the Sea (Powers of Intervention) Act 1981 .

 



 

Amendment to the Legislative Instruments Act 2003

 

The Legislative Instruments Act 2003 establishes a comprehensive regime for the registration, tabling, scrutiny and sunsetting of Commonwealth legislative instruments. The Act commenced on 1 January 2005.

 

Schedule 1 of the Legislative Instruments Regulations 2004 lists a number of commonly found instruments which are not legislative instruments, for example, instruments of appointment and delegations. Sections 7, 44 and 54 of the Act and various Schedules of the Regulations contain a range of exemptions from the whole or parts of the Act.   Table 54 currently includes Marine Orders made under the Act.  Marine Orders Part 92, Powers of Intervention - Noxious Substances, is the only Marine Order made under the Act.

 

Item 1 - Section 54

 

Item 1 of the Bill amends section 54 of the LIA .

 

This item repeals table item 33 in subsection 54(2) of the LIA Table item 33 refers to Section 24 of Act which deals with making of Orders.   Item 64 of this Bill repeals this section, which has become redundant as a consequence of amendments made by this Bill.  As there will be no Marine Orders made in relation to defining noxious substances for the purposes of intervention, there will be no requirement to continue to exempt such Marine Orders under the LIA.

 

 

Amendments to the Protection of the Sea (Powers of Intervention) Act 1981

 

Items 2,3,4,5,6,7,8,9,10,11,12,13,14,15,16,17,18,19,20,21 - Subsection 3(1)

 

Section 3 of the Act is the interpretation section.  Items 2 to 21 (inclusive) amend subsection 3(1) by inserting definitions or meaning of terms which will be used in the Act.  The definitions add clarity to the provisions of the Act.    

 

Of special relevance in the following list is the definition of the ‘exclusive economic zone’ (EEZ) and the ‘high seas’.  The current legislation does not mention the EEZ and the meaning of ‘high seas’ in the Act is not compatible with contemporary understanding and international law.

 

The Intervention Convention 1969 came into force in Australia in 1981 with the enactment of the Act.  At that time there was no concept of an EEZ and the term ‘high seas’ as used in the Intervention Convention and given effect in the Act includes the area of the sea now referred to as the EEZ.  The UN Convention on the Law of the Sea (UNCLOS) 1982, as ratified by Australia, subsequently defined the various maritime zones including the EEZ and the ‘high seas’.  The EEZ for Australia was defined in 1994 in the Gazette on 29 July of that year.  It is now intended to separately define the EEZ and the ‘high seas’ in the Act consistent with UNCLOS definitions.



The definitions are self explanatory.  Definitions of the following new terms have been inserted in subsection 3(1). 

 

Item 2        inserts the definition of aircraft

Item 3        inserts the definition of Australian Coastal Sea

Item 4         inserts the definition of Australian ship

Item 5        inserts the meaning of civil proceedings

Item 6        inserts the meaning of constitutional corporation

Item 7        inserts the meaning of controller of a tangible asset

Item 8        makes the meaning of Convention dynamic and adaptive to amendments

Item 9        inserts the meaning of electronic communication

Item 10      inserts the meaning of engage in conduct

Item 11       inserts the meaning of exclusive economic zone

Item 12       inserts the meaning of goods

Item 13      inserts the definition of high seas

Item 14      inserts the meaning of internal waters

Item 15      makes the meaning of Protocol dynamic and adaptive to amendments

Item 16      inserts the meaning of services

Item 17      inserts the meaning of the term ship in the context of the Bill

Item 18      inserts the meaning of the term supply as used in the Bill

Item 19      inserts the meaning of tangible asset as used in the Bill

Item 20      inserts the meaning of territorial sea as used in this Bill

Item  21     inserts the definition of the UN Convention on the Law of the Sea

 

Item 22 - Section 3A

 

This item repeals subsection 3A of the Act which provides that section 2 of the Criminal Code applies to all offences created by this Act.  Item 22 repeals this redundant provision as such matters are defined in the Criminal Code itself.

 

Item 23 - Subsection 4(3)

 

Section 4 of the Act sets the general principle that binds the Crown to the Act. Subsection 4(1) of the Act provides that the Act binds the Commonwealth, the States, the Northern Territory and Norfolk Island.  Subsection 4(2) provides that nothing in the Act will make the Australian Government, AMSA or a State or Territory liable to be prosecuted for an offence.  Subsection 4(3) however provides that this exemption from liability does not exempt a ‘servant’ or agent of the Australian Government, AMSA or a State or Territory. 

 

Item 23 is a technical amendment to update the text with current drafting language.  This item replaces the ‘a servant’ with “an employee” in subsection 4(3). 



Item 24 - Subsection 5(1)

 

Section 5 of the Act has the heading “Savings Of” and subsection 5(1) provides that this Commonwealth Act shall be read and construed as being in addition to, and not in derogation of, or in substitution for, any other law of the Commonwealth or any law of a State or Territory.  Prima facie there is a concern that persons can construe, on this basis, that State law could prevail over Commonwealth law if there is a conflict between the two. 

 

This amendment repeals this subsection and inserts a new subsection 5(1) which clarifies that the provisions of this Commonwealth Act will run concurrently with State and Territory law when there is no conflict.  The inserted subsection 5(1A) clarifies that a direction made under the Act will have precedence over any other direction made under State/Territory Law to the extent of any conflict.  Subsection 5(1B) refers to the Constitutional provisions in support of primacy of Commonwealth law over State or Territory law.  These clearly provide that the Authority’s powers to direct persons recognised in the Act will prevail over inconsistent directions given by any other person under State or Territory law.  Subsection 5(1C) also confirms that a direction given under this Act will also prevail over directions given under other extant Commonwealth law unless the other law expressly states otherwise.

 

These provisions remove all doubts about the Australian Government’s powers under this Act.  The amendments are aimed at providing clarity which is essential for effective and co-ordinated decision-making in times of emergency and to ensure that decisions can be taken from a national perspective, rather than from a local and regional perspective, to ensure maximum benefit for pollution prevention.  International experience, such as that of the Prestige incident in Europe, has shown that this clarity of authority is desirable to ensure effective response to maritime pollution threats.

 

The heading to section 5 is altered to “Relationship to” to reflect the changing emphasis as provided in the note following this item.

 

Items 25, 26, 27, 28 and 29 - Section 7

 

Section 7 deals with the Minister’s power of delegation of these powers under the Act. The aim of the amendments is to simplify section 7 by removing unnecessary provisions and streamlining the text.  Item 29 amends section 7 by repealing subsections 7(2) and 7(3).  This deletes the unnecessary clauses that describe how the Minister may delegate to a person any of these powers under the Act.  This aligns the Act with the Acts Interpretation Act 1901 ( the AIA ) and a note is inserted at the end of this section referring to sections 34A and 34B of the AIA.

 



Items 30, 31, 32 - Section 8

 

Currently section 8 of the Act deals with issues related to taking of measures in accordance with the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 1969 (Intervention Convention).  This Convention deals explicitly with ‘measures on the high seas’ when there is a ‘grave and imminent’ danger of pollution, or a threat of pollution, to the coastline of a State.  However, the Convention is not clear about whether the casualty that is causing the pollution or posing the risks of pollution from oil needs to be on the high sea for a State to intervene. 

 

Item 30 clarifies the situation by specifying that the measures referred to in this section are to be applicable to casualties that are on the high seas.  Item 31 provides that, on the other hand, measures can be taken on the high seas or elsewhere.  Practical considerations for effective measures to mitigate or minimise the risks or impacts of pollution from a maritime casualty on the high seas may require that actions be taken elsewhere, for example within Australia.  The list of specific measures provided in subsections 8(2) and 8(2B) (Item 34 below) indicate that actions may have to be taken at sea or ashore.  These are practical measures that may have to be taken to prevent or minimise the risks of pollution.  For example, it might be required that a tug be directed out from a port to assist the casualty or a shore based repair yard may have to be made available to take in a damaged ship, or stevedores ashore may be directed to unload the cargo from a casualty. 

 

Item 32 deletes ‘high seas’ from subsection 8(2) consistent with the above rationale to allow for measures to be taken on the high seas and elsewhere. 

 

The note under Item 30 proposes to change the heading of section 8 to reflect that the intervention measures in this section relate to a pollution threat from casualties on the high seas.  The specific reference to the Intervention Convention has been removed since the measures are broader than those explicitly provided by the Intervention Convention but are consistent with the intent of the Convention and Australia’s pollution prevention objectives.

 

The Australian Government Solicitors has advised that these amendments are legally acceptable and will not breach Convention obligations. 

 

Item 33 - Paragraph 8(2)(b)

 

Subsection 8(2) of the Act acknowledges the general powers that have been provided to the Authority by virtue of subsection 8(1).  Paragraph 8(2)(a) currently provides a list of specific but non-exhaustive actions that the Authority can take to prevent, mitigate or eliminate risks of pollution from oil.

 

Paragraph 8(2)(b) currently provides that the Authority can take the measure of ‘directing’ certain persons in accordance with section 11 of the Act.  This subsection also contains a list of persons, specifically related to the casualty, who can be directed by the Authority.  Notwithstanding the general power granted by subsection 8(1), it is desirable that the Act clearly states that the Authority has clear power to issue directions to persons beyond those expressly specified in paragraph 8(2)(b).

 

Item 33 expressly allows for directions to a wider range of persons than is currently specified in the Act.  The desired outcome of a quick, effective and co-ordinated action to prevent, mitigate or eliminate pollution incidents requires directions to be given to persons in addition to those specifically associated with a casualty.  This outcome can not be achieved if a restrictive interpretation is made.  For example the ‘direction’ to ‘move cargo from a ship’ in accordance with paragraph11(1) (b) would require cooperation from a port to accept the ship into the port and make a berth available, or from stevedores who would work on the ship or a owner of a barge to accept cargo if that is what is required.  Apart from this, it is also a concern that, in case of non-compliance by these entities if the general power is invoked, any such directions would not carry the consequence for non-compliance as set out in section 19 of the Act. 

 

This item amends subsections 8(2) by adding a provision to allow the Authority to issue directions to ‘any other person’.  All ‘directions’ and ‘actions’ will continue to be subject to the tests of reasonableness and proportionality as required under section 8(4). 

 

Item 34 - Subsection 8(2)

 

This item inserts two new subsections after subsection 8(2A).  These are inserted to provide greater clarity with regard to the range of persons who are most likely to be directed by the Authority, and the circumstances under which the Authority will have such powers to direct.

 

The new subsection 8(2B) flows from the amendment effected by Item 33 and, without affecting the general meaning of the new subparagraph 8(2)(b)(iv), it provides a wider list of persons who can be directed.  This is not an exhaustive list but includes the most likely persons to be directed in a situation under section 8 of the Act.

 

These include:

(a)     the owner of any other ship; or

(b)     the master of any other ship; or

(c)     the owner of a tangible asset; or

(d)     the controller of a tangible asset; or

(e)     the supplier of goods; or

(f)      a person to whom goods are being, or are proposed to be, supplied; or

(g)     the supplier of a service; or

(h)     a person to whom a service is being, or is proposed to be, supplied.

 

Subsection 8(2C) clarifies the jurisdiction of the Authority to issue a direction to a owner or master of another ship, i.e. a ship that itself is not the casualty presenting a pollution risk, in relation to the geographical location of the ship and/or its nationality.  It provides, consistent with UNCLOS and the Intervention Convention, that freedom of navigation of foreign ships may not be hampered on the high seas but directions can be given in the EEZ and landward zones to assist to prevent, mitigate or eliminate a risk of significant pollution.  For Australian ships, however, the Authority will retain the right to issue directions anywhere.



Item 35, 36 - Subsections 8(4), 8(6)

 

Subsection 8(4) of the Act explicitly refers to the Intervention Convention, making it obligatory, when taking measures in relation to the exercise of Section 8 powers, to comply with Articles III and V of the Intervention Convention. 

 

Article III of the Intervention Convention sets the requirements in relation to consultation by the coastal State, including consultation with all stakeholders and expert groups, and general obligations towards safety of life of seafarers of the distressed vessel.  Article V sets the principle that all actions need to be reasonable and proportionate to the actual or potential threat of pollution.

 

Since the Convention refers only to measures taken on the ‘high seas’, amendments made by Item 35 clarify that the measures extend to areas other than the high seas.  The reasoning for this clarification is the same as in Item 30. 

 

Item 36 amends subsection 8(6) and similarly clarifies that the term ‘high seas’ as used in the section is not to be interpreted in accordance with the Intervention Convention as the term ‘high seas’ has been subsequently defined by UNCLOS.  The UNCLOS definition is the universally accepted definition and unlike the Intervention Convention definition, ‘high seas’ in ‘UNCLOS’ extend outward from the limits of a State’s EEZ.

 

Item 37 - Subsections 8(6), 8(7)

 

This item amends subsection 8(6) to clarify that while terms used in section 8 are generally to be interpreted in accordance with the Intervention Convention when they occur in both this section and in that Convention, there are exceptions with regard to the terms used in paragraphs 8(2B) (c), (d), (e), (f), (g) or (h)  and 8(2C)(a), (b), (c) or (d) which are to be interpreted in accordance with section 3 of the amended Act.  The terms used in these paragraphs have been defined adequately to give clarity to section 8.

 

Item 38 - Section 8

 

Item 38 inserts a new section 8(7) establishing a legal relationship between a ship that is involved in a maritime casualty and ‘any other person’ who can be directed in order to prevent, mitigate or eliminate risks of pollution.  The need for this amendment arises from the necessity of clearly establishing a legal relationship between the casualty and any other person who is otherwise not related to the casualty, but has been directed to act by AMSA in accordance with section 8 powers.  This will allow that person to benefit from the immunity and compensation provisions as provided under this Bill.

 

Items 39, 40, 41 - Section 9

 

These amendments are similar to those made by Items 30, 31 and 32.  They relate to section 9 of the Act which deals with taking of measures in accordance with the Protocol Relating to Intervention on the High Seas in Cases of Pollution by Substances other than Oil, 1973 (the Protocol).  This Protocol deals explicitly with ‘measures on the high seas’ when there is ‘grave and imminent’ danger of pollution or threat of pollution from a substance other than oil.  However, as explained in Item 30, the Protocol is not clear if the casualty that is causing the significant pollution or posing the risks of significant pollution from these other substances has to be on the ‘high seas’.  Item 39 clarifies the situation by specifying that the measures in this section are to be applicable to casualties that are on the high seas.  Item 40 provides that, on the other hand, measures can be taken on the high seas or elsewhere.  The lists of specific measures are provided in subsections 9(2) and 9(2B).  Item 43 below indicates that actions may have to be taken at sea or ashore. 

 

Item 41 deletes ‘high seas’ from subsection 9(2) consistent with the above rationale to allow for measures to be taken on the high seas and elsewhere. 

 

The note under Item 39 proposes to change the heading of section 9 to reflect that the intervention measures in this section relate to a pollution threat from a substance other than oil from a casualty on the high seas.  The specific reference to the Protocol has been removed since the provision relates to casualties on the high seas, not intervention measures on the high seas as in the Protocol. 

 

The Australian Government Solicitors has advised that these amendments are legally acceptable and will not breach Convention obligations. 

 

Item 42 - Paragraph 9(2)(b)

 

This item is similar to Item 33 and concerns section 9 of the Act which deals with the taking of ‘measures on the high seas’ when the risk of pollution is not from oil but from other noxious and harmful substances.  The Protocol is the relevant international instrument. 

 

The provisions of section 9 of the Act are otherwise similar to those in section 8 and the amendment proposed by this item is similar to Item 33.  The explanation for Item 33 is equally applicable.  The purpose is to remove any presumption that the Authority can only direct the persons listed in paragraph 9(2)(b) by inserting the provision, (iv) ‘any other person’.

 

Item 43 - Section 9

 

Similar to the amendment proposed by Item 34, the new subsection 9(2B) flows from the amendment effected by Item 42.  Without affecting the general meaning of the new subparagraph 9(2)(b)(iv), this amendment inserts a wider list of persons who can be directed by the Authority.  This is not an exhaustive list but includes the most likely persons who will be directed in a situation requiring the Authority to act to prevent, mitigate or eliminate the risk of pollution.  



These include:

(a)     the owner of any other ship; or

(b)     the master of any other ship; or

(c)     the owner of a tangible asset; or

(d)     the controller of a tangible asset; or

(e)     the supplier of goods; or

(f)      a person to whom goods are being, or are proposed to be, supplied; or

(g)     the supplier of a service; or

(h)     a person to whom a service is being, or is proposed to be, supplied.

 

Similarly, subsection 9(2C) clarifies the jurisdiction of the Authority to issue a direction to an owner or master of another ship, i.e. a ship that itself is not causing the risk of pollution, in relation to the geographical location of the ship and/or its nationality.  It provides, consistent with UNCLOS and the Protocol, that freedom of navigation of foreign ships may not be hampered on the high seas but directions can be given in the EEZ and landward zones to mitigate or eliminate a risk of significant pollution.  For Australian ships, however, the Authority will retain the right to issue directions anywhere.

 

Items 44, 45, 46 - Subsections 9(4), 9(6)

 

Item 44 amends subsection 9(4) which defines the way powers granted by section 9 in relation to a pollution threat on the high seas from substances other than oil need to be exercised.  This subsection explicitly provides that the requirements of Articles III and V of the Intervention Convention will need to be adhered to in order to comply with Article II of the Protocol even if the Protocol has not entered into force. 

 

Article III of the Intervention Convention sets the requirements in relation to consultation by the coastal State, including consultation with all stakeholders and expert groups, and general obligations towards safety of life of seafarers of the distressed vessel.  Article V sets the principle that all actions need to be reasonable and proportionate to the actual or potential threat of pollution.

 

The amendment proposed by Item 44 aligns the text by explicitly providing that the Articles III and V obligations will extend to all measures taken under this section even when they are taken in waters other than on the high seas, i.e. in the EEZ, coastal waters or internal waters. 

 

Items 45 and 46 amend subsection 9(6).  This subsection describes how expressions used in the Act are to be interpreted.  Item 45 is similar to Item 37 and clarifies that terms used in section 9 are generally to be interpreted in accordance with the Protocol when they occur in both this section and in the Protocol, or in accordance with the Convention if they occur in the Convention.  Item 46 lists the exceptions to this general rule of interpretation and provides that the terms used in paragraphs 9(2B) (c), (d), (e), (f), (g) or (h) and 9(2C)(a), (b), (c) or (d) are to be interpreted in accordance with section 3 of the amended Act. 



Item 47 - Section 9

 

This item is similar to Item 38.  The amendment inserts a new subsection 9(7), establishing a legal relationship between a ship that is involved in a maritime casualty and ‘any other person’ who can be directed in order to mitigate or minimise risks of pollution from substances other than oil.  The need for this amendment arises from the necessity of clearly establishing a legal relationship between the casualty and any other person who is otherwise not related to the casualty in any obvious way but has been directed under this section.  This will allow that person to benefit from immunity and compensation provisions as provided under the Bill.

 

Item 48 - Subsection 10(1)

 

Section 10 of the Act deals with the extent of the general powers of the Authority to act in relation to casualties in waters other than on the ‘high seas’ when ‘oil or a noxious substance is escaping or has escaped from a ship’, or when the Authority is ‘satisfied that oil or noxious substance is likely to escape from such a ship’.  Unlike sections 8 and 9, the casualty in this case is currently either in the territorial water or in internal waters.  The coastal State’s jurisdiction and powers to intervene are defined by national laws rather than international Conventions.

 

Section 10 sets out the jurisdiction of the Authority over ships which are in waters other than the ‘high seas’.  Item 48 sets the exception to the broad general application by referring to proposed new subsections 10(3B) and 10(3C) (Item 52) which deal with the issue of ‘direction’ to ‘any other ship’ or ‘another ship’, that is a ship which is not the casualty causing or likely to cause pollution.  The effect is that section 10 will apply to ships in the various maritime zones in or around Australia other than on the ‘high seas’, which are causing or likely to cause pollution, except that a direction to render assistance in accordance with subsection 10(3B) and 10(3C) may also be given to another person in addition to the casualty.

 

The Note at the end of Item 48 amends the heading of Section 10 by removing the reference to the Convention and the Protocol, since they do not apply in these zones, and calling it appropriately ‘general powers’.

 

Item 49 - Subsection 10(1)

 

Item 49 amends section 10 and flows on from the previous amendment.  The Act at present states that this section applies all ships in internal waters except those engaged in intra-state trade, or that are fishing or are pleasure vessels (by virtue of subsection 10(6)).  The Australian and State and Northern Territory Governments have agreed that the Australian Government’s powers of intervention should be extended to include all ships in all waters, including internal waters of a State.

 

The Act already enables the Authority to exercise its powers within internal waters of a State for incidents involving ships on international or interstate voyages.  This amendment will enable a casualty of any type of ship on any type of voyage to be managed all the way through an incident until an appropriate place of refuge is achieved where the incident is brought under control.  This may involve bringing a casualty into State internal waters, which may include a port or other suitable coastal area.  The application of the Authority’s powers within State internal waters allows for one competent authority to manage the incident to conclusion without the unnecessary delays or disputes over change of jurisdiction when a ship is moved to a place of refuge within internal waters.

 

Item 49 amends subsection 10(1) by defining the constitutional heads of power available to the Australian Government to regulate ships within internal waters of a State.

Amendments proposed through new paragraph 10(1)(a) are aimed at dispelling any constitutional concerns over the Australian Government’s authority for taking action in relation to a vessel which may otherwise  be operating within the limits of a State or Territory. 

 

Item 50 - Subsection 10(1)

 

Item 50 amends subsection 10 (1) by inserting a new paragraph 10(1)(ba) to apply section 10 to casualties within the EEZ.  Section 10 currently defines the scope of application of this section in relation to ships (a casualty or a potential casualty) in various maritime zones, namely the internal waters, the coastal waters and for Australian ships, the high seas. 

 

Inclusion of the EEZ within section 10 is intended to enable the Authority to take action in response to a casualty within the EEZ at an earlier stage than is presently available under the Act.   The test for intervention under section 10, being the escape or likely escape of oil or a noxious substance, is more favourable for the coastal State than under sections 8 and 9, which require that there be a ‘grave and imminent danger’ of pollution.  The objective is to enable intervention that will prevent a casualty from becoming a pollution risk, rather than waiting until the pollution risk is ‘grave and imminent’.

 

The Attorney-General’s Office of International Law has advised that the proposed amendments to powers of intervention within the EEZ are consistent with Australia’s rights and obligations under international law.  The UNCLOS provides for coastal States to implement measures to protect the marine environment of their EEZ and to avoid pollution from maritime casualties.  Article 221 of UNCLOS gives the coastal State broader rights than the Intervention Convention of 1969 to improve and strengthen protective measures in the EEZ.

 

Item 51 - Subsection 10(3)

 

This item amends subsection 10(3).  This amendment is similar to that proposed by Item 33.

 

Subsection 10(2) provides the Authority with widespread powers to take ‘such measures as it considers necessary’ to prevent, minimise or mitigate risks or effects of pollution, where oil or noxious substance is escaping or likely to escape from a ship in waters covered by section 10.   

 

Section 10(3) recognises these wide general powers but also provides a list of specific measures, including issuing of directions to other persons, that the Authority might take under the circumstances.  In relation to issuing of a direction, paragraph 10(3)(b) lists a number of persons who can be directed under this provision in order to put beyond doubt that notwithstanding the general power granted by virtue of subsection 10(2), the Authority has the powers to issue directions to persons beyond those expressly specified in paragraph 10(3)(b).

 

The desired outcome of a quick, effective and co-ordinated action to mitigate pollution incidents can not be achieved if a restrictive interpretation is made.  For example a ‘direction’ to ‘move cargo from a ship’ in accordance with paragraph 11(1)(b) would be hampered if no co-operation is forthcoming from a port to accept the ship in the port and make a berth available, or from stevedores who would work on the ship or an owner of a barge to accept the cargo, if that is what is required. 

 

Apart from this practical concern, it is also noted that in case of non-compliance by these persons if the general power is invoked, any such directions would not carry the consequence for non-compliance as set out in section 19 of the Act.  It is proposed expressly to allow for directions to a wider range of persons than is currently specified in the Act. 

 

This item amends paragraph 10(3)(b) by inserting a provision to allow the Authority to issue directions ‘to any other persons’.  Directions to these other persons are subject to section 10(4) which requires the Minister and the Authority to act in accordance with the principles of reasonableness and proportionality.  Item 52 below adds to the existing list including persons or entities most likely to be ‘directed’ in a maritime emergency under the Act. 

 

Item 52 - Section 10

 

This item amends section 10 and the amendment is similar to those proposed by items 34 and 43.

 

This item adds two new subsections after subsection 10(3A).  These are added to provide greater clarity with regard to persons who are most likely to be directed in accordance with this section and when the Authority will have such powers.

 

The new subsection 10(3B) flows from the amendment effected by Item 51 and provides a wider list of persons who can be directed, without affecting the general meaning of the new subparagraph 10(3)(b)(iv).  This is not an exhaustive list but includes the most likely persons who could be directed in a situation giving rise to the operation of the Act.



These include:

(a)     the owner of any other ship; or

(b)     the master of any other ship; or

(c)     the owner of a tangible asset; or

(d)     the controller of a tangible asset; or

(e)     the supplier of goods; or

(f)      a person to whom goods are being, or are proposed to be, supplied; or

(g)     the supplier of a service; or

(h)     a person to whom a service is being, or is proposed to be, supplied.

 

As in the previous cases, subsection 10(3C) clarifies the jurisdiction of the Authority to issue a direction to an owner or master of another ship, i.e. a ship that itself is not causing pollution, in relation to the geographical location of the ship and/or its nationality.  It provides, consistent with UNCLOS and the Intervention Convention, that freedom of navigation of foreign ships may not be hampered on the high seas but directions can be given to ships in the EEZ and landward zones to prevent, mitigate or eliminate a risk of significant pollution.  For Australian ships, however, the Authority will retain the right to issue directions anywhere.

 

Item 53 - Subsection 10(6)

 

This item amends subsection 10(6) of the Act.  The current subsection 10(6) defines the ships that are excluded from the application of this subsection.  This has become redundant as a consequence of amendment made by Item 49.  Item 53 repeals subsection 10(6).

 

A new subsection 10(6) has been inserted which is similar to Items 47 and 38.  The new 10(6) establishes a legal relationship between a ship that is involved in a maritime casualty in accordance with section 10 and ‘any other person’ who can be directed in order to prevent, mitigate or eliminate risks of pollution from oil or other substances in waters other than the ‘high seas’.

 

As in the other cases, the need for this amendment arises from the necessity of clearly establishing a legal relationship between the casualty and any other person who is otherwise not related to the casualty in any obvious way but has been directed under this section.  This will allow that person to benefit from the immunity and compensation provisions as provided under the Act.

 

Items 54, 55, 56, 57, 58, 59 - Subsection 10(8)

 

These items amend subsection 10(8) of the Act. 

 

The definition of ‘Australian Coastal Sea’ in this subsection has become redundant as a consequence of Item 3 which has inserted a new definition of ‘Australian Coastal Sea’ in section 3.  Item 54 deletes this definition in subsection 10(8).

 

Item 55 inserts the definition of ‘continental shelf’ in subsection 10(8) to clarify the meaning of this term in the definition of ‘Australian reef’ in this section. 

 

Item 56 deletes the definition of ‘internal waters’ in subsection 10(8) which has become redundant as a consequence of Item 11.

 

Item 57 deletes the current definition of ‘a noxious substance’ in this subsection and replaces it with a simple definition.  This amendment is to be read together with Item 59 which provides the required linkage with the Protocol meaning of this term by defining the meaning of the term ‘substance other than oil’.  This amendment removes the need for separate prescription of ‘noxious substances’ through regulations or Marine Orders for the purposes of intervention in coastal waters, and aligns intervention actions in respect of noxious substances in coastal waters with the range of noxious substances for which intervention actions can be taken on the high seas under the Intervention Convention and its Protocol.  This will provide consistency for intervention actions in all waters, and greater certainty and simplicity for ship operators and intervention authorities.

 

Item 58 deletes the definition of ‘ship’ in subsection 10(8) which has become redundant because of the new definition of ‘ship’ in section 3 introduced by Item 13.

 

Item 60 - Subsection 11(1)

 

Section 11 deals with ‘directions’ under the Act.  Under sections 8, 9 and 10, the Authority can give directions to the owner, master or a salvor of a vessel which presents a threat of serious pollution.  Directions can be also given to other persons necessary to prevent, mitigate or eliminate the risks of pollution.  Section 11 sets out the measures that can be taken under the heading of ‘direction’.

 

Subsection 11(1) provides the general framework of this ‘direction’ in relation to a ship.  This defines what can be done with respect to the ship or its cargo or prohibiting doing of something to the ship or its cargo.  Though the powers of direction are generally broad and not restrictive, paragraphs (a), (b), (c), (d), (e) and (f) provide specific examples of what a direction may require or prohibit to be done.

 

Item 60 introduces the concept of the ‘first ship’ in relation to a direction, meaning the ship that is the casualty and subject to an intervention.  This clarity is essential given that under the Act a number of other ships may be directed, such as salvage tugs or other ships in the vicinity. 

 

Items 61, 62, 63 - Paragraph 11(1)(a)

 

Amendments proposed by Items 61, 62 and 63 flow from Item 60.  Item 61 is a consequential amendment which follows the deletion effected by Item 60.  This amends paragraph 11(1)(a) by providing within this paragraph that a direction may require or prohibit movement of a vessel or any of its parts. 

 

Item 63 inserts ‘or’ at the end of paragraph 11(1)(a).  This is a drafting correction to clarify that the measures in the different subparagraphs are independent and are not required to be considered concurrently.



Items 64, 65, 66 - Paragraph 11(1)(b)

 

These amendments follow Item 60.  Item 64 amends paragraph 11(1)(b) as in Item 61.  This is a consequential amendment flowing from amendment 60.

 

Item 65 clarifies that the ship in question is the ‘first ship’ as explained above, and as in Item 63, Item 66 is a technical amendment, inserting ‘or’ at the end of the paragraph.

 

Items 67, 68, 69, 70 - Paragraph 11(1)(c)

 

These items amend paragraph 11(1)(c) and follow previous amendments concerning subsection 11(1).  Item 67 is similar to Items 61 and 64 above and flows from Item 60.  Items 68 and 69 clarify that the direction relates to a ‘first ship’ or parts of a ‘first ship’ while Item 70 is a technical amendment as in the preceding cases.

 

Items 71, 72, 73 - Paragraph 11(1)(d)

 

These items amend paragraph 11(1)(d) as in the preceding amendments.  Item 71 inserts the words ‘require or prohibit’ at the beginning of the subsection as in the preceding cases.  This is a consequential amendment like Items 61, 64 and 67 and flows from the deletion effected by Item 60.  Item 72 is also similar to the preceding amendments, inserting the word ‘first’ before ‘ship’ as it occurs in this subsection, to make the identity of the ship in question explicit.  Item 73 similarly is a technical amendment by inserting ‘or’ at the end of this subsection.

 

Items 74, 75 - Paragraph 11(1)(e)

 

Items 74 and 75 amend paragraph 11(1)(e).  These amendments are similar in nature to the preceding ones.  Item 74 is a consequential amendment flowing from Item 60 and is similar to Items 61, 64, 67 and 71 in effect.  Item 75 again inserts the word ‘first’ before the word ‘ship’ in this subsection to make the identity of the ship explicit.

 

Items 76, 77 - Paragraph 11(1)(f)

 

Items 76 and 77 amend paragraph 11(1)(f).  These amendments are also similar to the preceding amendments.  Item 76 is a consequential amendment that flows from Item 60 as in the case of Items 61, 64, 67, 71 and 74.  Item 77 similarly inserts ‘first’ before the word ‘ship’ within this subsection.

 

Item 78 - Subsection 11(1)

 

Item 78 amends subsection 11(1) by adding to the list of specific examples of types of directions that may be given.  This amendment is complementary to amendments in relation to sections 8, 9 and 10 of this Act.  These sections provide that the Authority can ‘direct’ various persons to take certain measures in order to prevent, mitigate or eliminate risks of pollution from oil or other substances on the high seas or in other waters.  This power of direction not only relates to the ‘first’ ship, i.e. the casualty but also to other entities such as another ship or other persons who may have control over necessary resources or infrastructure, such as a port authority or a shipyard.  This broad power has been always available to the Authority, under the general powers to take such measures as the Authority considers necessary.  Item 78 adds clarity to the types of directions that may be given to put beyond doubt the powers of the Authority and avoid dispute during an emergency response, rather than relying on the unspecified general powers. 

 

Sections 8, 9 and 10 refer to section 11, indicating that this section provides the non exhaustive guidance on the types of measures that the Authority may require someone to comply with when issuing a ‘direction’.  Section 11 currently identifies the ‘measures’ for the actual or potential casualty, the ‘first ship’.  Item 78 adds a range of measures in respect of types of directions that can be given to other persons who may have to be directed by the Authority to prevent, mitigate or eliminate a threat of pollution. 

 

This amendment is a large insertion.  New paragraphs 11(1)(g) to 11(1)(u) have been inserted. 

 

Paragraphs 11(1)(g) to (l) are inserted to provide guidance on what may be required from a ship other than a casualty when a direction is issued.  Paragraphs 11(1)(m) to (r) refer to ‘tangible assets (other than ships)’ and describe what may be required or prohibited in relation to these tangible assets when a direction is issued to an owner or controller of a tangible asset under the Act.  The term ‘tangible asset’ has been defined in section 3.  In this context a tangible asset may be, for example, pollution prevention equipment or material, a repair berth, port assets such as cranes to discharge cargo or any such thing that is required to address the pollution threat posed by a casualty.

 

Paragraph 11(1)(s) refers to a ‘place of refuge’ for the first ship and provides the Authority with clear powers to direct a ‘controller’ of a tangible asset, most likely the person in charge of a port or a harbour, to allow access to the place as a ‘place of refuge’. The Australian and State and Northern Territory Governments have agreed national guidelines for establishing places of refuge for ships in distress.  The need for a place of refuge arises from the concern to ensure that a ship in distress is able to seek shelter to conduct repairs and to prevent further damage to or loss of the ship that may cause significant loss of life or environmental damage from pollution.

 

Actual decision-making to determine an appropriate place of refuge is made on a case by case basis having regard to the circumstances of each case prevailing at the time. Decision-making is shared between Australian and State or Northern Territory authorities depending on the circumstances.  There is a potential for conflict between Australian or State or Northern Territory directions concerning places of refuge, especially where fears of localised pollution may lead to delays and potentially worse pollution outcomes. There is agreement between the Australian Government and State and Northern Territory Governments for a national decision maker to determine the place of refuge in the wider national interest. 

 

Paragraph 11(1)(t) refers to ‘supply of services’ and describes what can be required from a supplier of services as provided in sections 8, 9 and 10 when a direction is issued.  Subparagraphs (i) and (ii) clearly indicate that these mainly relate to directions in relation to cargo on board the ‘first ship’ and other services related to repairs, piloting, towing and mooring of vessels. 

 

Paragraph 11(1)(u) relates to a direction to ‘a person to whom goods are being, or are proposed to be, supplied’ (see Items 34, 43, 52).  It addresses the concern that existing commercial and contractual arrangements may act as a deterrent against compliance with a direction due to an existing legal obligation.  For example a tug that is needed to assist a casualty offshore may be constrained from responding by existing contractual arrangements with ports and shipping companies.  This insertion clearly provides the legal basis to direct the ‘port’ or the ‘shipping line’ to release the tug to provide assistance as required under the circumstances. 

 

Items 79  - Section 12

 

Item 79 is a technical amendment to subsection 12(1) by inserting ‘or’ at the end of this subsection to emphasise the independence of each subparagraph.  This also makes this consistent with other subparagraphs.

 

Item 80 - Section 12

 

Item 80 inserts new paragraphs 12(d) and 12(e) which provide for how the owner of a tangible asset, or the controller of a tangible asset are to be addressed when a direction is issued.  This is a consequential amendment to the addition of owners and controllers of tangible assets to the list of persons who may be directed.

 

Items 81, 82 - Section 14

 

Items 81 and 82 amend section 14 of the Act which deals with the issue of addressing a direction under the Act to a ship where there is more than one owner, or more than one salvor in possession of the ship.  As a consequence of adding owners of tangible assets to the list of persons who may be given a direction, it is also necessary to address the issue of direction in relation to owners of tangible assets when there is more than one owner or controller.

 

As a consequential amendment Item 82 changes the heading of this section to reflect that this section also provides for addressing directions in relation to tangible assets when there is more than one owner or controller.

 

Items 83, 84 - Section 17

 

Items 83 and 84 amend section 17 which provides for how directions under the Act are to be served, as a consequence of adding owners or controllers of tangible assets to the list of persons who can be directed.  

 

Item 83 deletes existing subsection 17(1) and inserts a new subsection 17(1) which explicitly provides the mechanism of service of a direction on the owner of a ship, the master of a ship or the salvor in possession of a ship.  It also provides the mechanism of determining the time at which the service will be considered to have been served.  A legally defined timing of service is essential to establish if there has been a breach in accordance with section 19 of the Act.

 

Item 84 inserts new subsections 17(8), 17(9) and 17(10).  Subsection 17(8) provides that a direction on persons other than the owner, master or salvor of a ship has to be served in accordance with subsections 17(9) and 17(10). 

 

Subsection 17(9) provides that the service to these other persons may, where the person is an individual or a body corporate, be effected in accordance with section 28A of the AIA or by electronic communication.  Section 28A of the AIA deals with the legal meaning of ‘service’ and provides what constitutes a service in relation to individuals and bodies corporate.  The acceptable modes of delivery under AIA are by means of personal delivery or by prepaid post.  The inclusion of the electronic communication aligns the Act with modern practice.

 

Subsection 17(10) provides for the service of a direction on these other persons, when any such person can not be considered as either an individual or a body corporate.  This subsection refers to service on a ‘body politic’, meaning a State or one of its subordinate civil authorities , such as a local government or a port authority, that may be required to assist in responding to a casualty.

 

Item 85 - New Sections 17A and 17B

 

Item 85 amends the Act by inserting two new sections after section 17, sections 17A and 17B.

 

Subsections 17A(1)-(4) provide legal immunity from criminal and civil liabilities to the Minister, a delegate of the Minister, the Authority, a member of the Authority, a delegate of the Authority and other persons specified in a direction in the Act or persons directed under the Act.  The immunity provisions are intended to encourage persons to respond to a shipping casualty that poses a risk of pollution by ensuring that persons acting in good faith and with reasonable care do not suffer from legal actions arising from taking any measures to prevent or minimise pollution, either by taking action, issuing a direction or complying with a direction.

 

The international community has increasingly recognised the need to protect persons who are acting in the public interest, such as preventing a major pollution incident, from prosecutions or civil liabilities as a result of their actions taken in good faith.

Such protections are now a feature of recently developed international conventions, and it is appropriate to apply a similar protection in relation to intervention actions.

The immunity will remove a disincentive to persons who may be in a position to prevent, mitigate or eliminate the threat of pollution, so that they will not be reluctant to make available their expertise or facilities due to the threat of litigation against them.

Examples might be where a port authority is prosecuted by environmental authorities for allowing a casualty to enter a port and causing some local pollution, or where a third party cargo interest sues a port or towage provider for business losses when a tug is taken away to attend a casualty.

Potential civil litigants will not be disadvantaged as, in accordance with international conventions, claims for compensation for third party losses can be brought against the owner of the casualty.  Shipowners are required to have significant insurance to meet such claims, up to internationally agreed limits of liability, and there are international funds in place to provide additional compensation for oil pollution damage.  The Civil Liability for Oil Pollution Damage Convention 1969 (CLC) and the subsequent 1992 Fund Protocol, allows proceedings to be brought against the owners of a tanker for all pollution damages arising from oil carried as cargo.  The Australian Government has ratified CLC and may already recover its costs of intervention in a maritime casualty and for pollution response and clean up under Parts IV and IVA of the Civil Liability Act .

Subsection 17A(1)(5) explicitly preserves the right of the Authority and others to recover intervention and pollution clean up costs under the Civil Liability Act , even if that owner or the master is subsequently directed in accordance with the Act.  The proposed amendments make it clear that, to the extent that the Authority or others are entitled to recover their costs under existing laws, those rights are not affected by the proposed responder immunity provision giving a person complying with a direction immunity from civil or criminal proceedings.

 

Subsection 17A(6) makes it explicit that in cases where the granting of immunity to a shipowner or another person conflicts with international obligations when a direction is issued to do an act or to omit doing something, the immunity provision will not apply. This preserves the shipowner’s general liabilities under international Conventions.

 

Subsection 17A(7) refers to compensation for acquisition of property which is dealt with in new section 22, inserted by Item 97.  This subsection provides that in relation to proceedings for compensation, the immunity granted by this section will not apply, allowing proceeding to be brought against the Authority if compensation is not provided in accordance with section 22.

 

Subsection 17A(8) provides that a direction under the Act means the varied direction when a direction has been varied or revoked by a further direction in accordance with section 15 of the Act.

 

Subsection 17A(9) provides the coming into force of the immunity provisions, stating explicitly that these provisions will not apply to an act done or omitted before the commencement of this section, i.e. these provisions can not be applied retrospectively.

 

Section 17B makes an owner of the casualty liable for the expenses incurred by a third person in complying with a direction given under the Act. It involves the costs of providing a service to the shipowner, such as a pilot used for berthing, occupying a berth in a port, ship repairs and so forth.  Such services in practice are billed directly to the shipowner by the service provider.  The intent of this section is to ensure that a shipowner cannot refuse to pay for such services on the grounds that he has been directed to use the service by the Authority.

 

Subsection 17B(1)(f) prevents “double dipping” by the supplier of the service if the service already has been paid for in some other way, for example when the Authority requisitions an asset and pays compensation or when the Authority charters or hires an asset.  In those cases the Authority is entitled to recover its costs from the owner of the casualty under Parts IV and IVA of the Civil Liability Act.

 

Subsection 17B(2) provides that all expenses or costs incurred are to be treated as debts owed by the shipowner or shipowners, allowing direct civil action to be brought by the concerned parties in the Federal Court of Australia or in any other competent jurisdiction. 

 

Subsection 17B(3) upholds the primacy of international treaty obligations if there is any conflict with the provisions of this section.  Subsection 17B(4) similarly deals with the meaning of the term ‘direction under this Act’ in relation to a varied direction and subsection 17B(5) clarifies that the section can not be applied retrospectively in relation to actions taken prior to commencement of this section.

 

Item 86 - Subsections 18(1), 18(2)

 

Section 18 of the Act addresses the practical issue of change in ownership of a ship or change of its master after a direction has been served.  There is a concern that a direction may not be transmitted to the new owner or master, creating a situation in which the new owner and master are likely to act in contravention of the direction, creating a potentially dangerous situation in relation to the outcome of the Authority’s intervention.  Section 18 at present is only concerned with the implications of change in the casualty’s ownership or its command, and sets the onus on the incumbent owner or master to advise the Authority of the change in ownership.

 

Item 86 amends subsections 18(1) and 18(2).  These are consequential amendments to section 17 arising out of Items 55A and 55B.  As a consequence of these amendments, the scope of section 17 has been augmented, now including provisions for servicing of a ‘direction’ on persons other than the owner of a ship, the master or the salvor in possession of a ship. 

 

Subsections 18(1) and (2) provide direction as to what is to be done when the ownership of a ship has changed or a master has been changed after a direction has been issued under the Act. It originally referred to section 17, the section dealing with service of direction.  However, since section 17 now includes subsections 17(8), 17(9) and 17(10), which do not deal with directions to a shipowner or a master of a ship, the reference is amended to accommodate these changes.

 

Item 86 replaces ‘section 7’ in subsections 18(1) and 18(2) with ‘subsections 17(2) to (7)’ which are the relevant subsections dealing with change of a ship’s owner or its master.

 

The “Note” at the end of section 18 changes the heading of section 18 to include owners of tangible assets.

 

Items 87, 88 - Section 18

 

Item 87 amends section 18 by deleting the penalty provision at the end of existing section 18.  The current penalty for a breach of section 18 obligations is set in money terms at $2000. 



Item 88 also amends section 18 by inserting new subsections 18(3) and 18(4) to include an owner or controller of tangible assets.  Subsection 18(3) addresses the issue of change in ownership of a tangible asset after a direction has been issued.  In line with the general principle of section 18, it provides that the onus of transmitting the direction and advising the Authority lies on the person who was the owner at the time the direction was served.

 

Subsection 18(4) has another consequential amendment arising from Item 87.  This is the new offence provision in relation to breach of section 18 obligations of communicating a direction to a new owner of a ship, a new master or a new owner of a tangible asset and advising the Authority of a change in ownership.  

 

The offence provision includes a penalty for a conduct which can be construed as a breach of subsection 18(1) to (3) obligations.  Item 88 inserts the new penalty provision which is set at 50 penalty units.  Section 4B of the Crimes Act 1914 (Crimes Act) will result in the penalty for an individual being 50 penalty units and for a body corporate being a maximum fine of 250 penalty units.

 

Item 89 - Subsections 19(1), 19(2), 19(3)

 

Item 89 deals with section 19 of the Act which is the offence provision in relation to contravention or non compliance with a direction made under this Act.

 

Old offence provisions in sections 19(1) to (3) set a breach as an indictable offence but also allow proceedings to be brought by a court of summary jurisdictions at its discretion.  Penalties for breaches are different for bodies corporate and natural persons, and these also differ on whether an offence is considered indictable or not.  These subsections are repealed and replaced by a new subsection 19(1).

 

Consistent with the provisions of the Crimes Act and modern drafting practice, the simple replacement subsection 19(1) sets the penalty in penalty units and refers to a ‘person’ in relation to a breach which includes both bodies corporate as well as natural persons in accordance with section 4B of the Crimes Act.

 

The proposed amendments considered earlier clarify and strengthen the powers of the Authority and include specific powers to issue directions to other classes of persons, that is, persons ashore or in respect of vessels other than the casualty, to enable the national decision maker to requisition assets to assist interventions and resolution of actual or potential emergencies.  The amendments also introduce “responder immunity” provisions for any person authorised to issue directions to third parties and for persons acting in compliance with the directions.  

 

Under the Australian Government’s powers of intervention arrangements, it is possible that a person having the control of major response capability or assets might be directed to attend to a casualty or to assist in the response.  Failure to attend to or provide that assistance could result in delays, weakening effective response implementation, which in turn can result in environmental damage spreading over very large geographic areas, costs escalating by millions of dollars and the long term effect of possible environmental degradation lasting for years.  Such pollution could adversely impact on social and cultural amenities, ecosystems and the economies that rely on them.  An effective and enforceable penalty regime is essential to ensure that legitimate directions are complied with immediately and effectively so as to limit and minimise these impacts.

 

Section 19 of the Act sets the penalties for not acting in accordance with directions made under the Act.  As currently drafted, the penalty for contravention or non compliance is set, upon conviction, at a maximum of $20,000 for an individual or $50,000 for a body corporate.  Where a court of summary jurisdiction is involved, the penalties are then $2,000 and $5,000 respectively.  These penalty settings reflect 1981 levels and practice.

 

In 2006, the daily charter rates of some of the assets needed to combat a major maritime incident may well exceed the maximum $50,000 penalty.  It is important, therefore, that penalty settings be set at a level that ensures compliance.  In this context it should be noted that the Item 67 also provides for payment on just terms for any assets requisitioned for use in an emergency.

 

Item 89 sets the penalties for breaches of directions served in accordance with section 17 at a maximum fine of 2,000 penalty units or a maximum term of imprisonment for 5 years, or both, for an individual.  Section 4B of the Crimes Act will result in the penalty for a body corporate being a maximum fine of 10,000 penalty units.  Item 89 also repeals subsections 19(2) and 19(3). These subsections currently provide that a court of summary jurisdiction may hear and determine proceedings in respect of an offence under the Act and may set appropriate penalties.  Appropriate provisions for courts of summary jurisdiction are already legislated in the Crimes Act.

 

These settings are proposed in line with the current rules concerning setting of penalties in Federal legislation, and these have due regard to the potential negative impacts that non compliance could cause, the need for the penalties to appropriately punish serious breaches, and the need for penalties to provide a real disincentive for any person who might otherwise consider that the penalties applied might be commercially justified in light of other business options the person might have.

 

Items 90, 91, 92 - Subsection 19(4)

 

These items amend subsection 19(4) which provides the grounds for defence against prosecution under section 19.

 

These are technical amendments.  Item 90 deletes reference to subsection (5) from the defence provision which is redundant, and makes a technical correction to the text.  There is no substantive change.

 

Item 91 amends paragraph 19(4)(a), replacing the term ‘contravention of, or non compliance with’ with ‘breach’.  Item 92 inserts ‘or’ at the end of this paragraph to indicate independence of operation of each paragraph consistent with standard drafting practice.



Item 93 - Subsection 19(5)

 

Item 93 is a technical amendment with the same effect as Item 91.  It replaces the words ‘contravention of, or non compliance with’ in subsection 19(5) with reference to a direction under the Act with ‘breach’. 

 

Items 94, 95, 96 - Section 21

 

Section 21 addresses the practical issue of service of a direction on the owner of a ship by serving it on the ‘agent’ of the ship owner, whether the agent is a natural person or a body corporate.  As mobile units ships move from port to port and the agent acts as the legitimate conduit between the owner and the coastal and port State.  It would be the most likely case that the owner of a foreign ship will be served with a direction through the agent.  This section brings the agent within the regulatory regime and establishes a legal burden.

 

Item 94 is a technical amendment.  The reference to subsection 10(6) definition of ‘ship’ is redundant following amendment effected by Item 53.  Item 94 repeals subsection 21(1) which refers to subsection 10(6).  

 

Items 95 and 96 are drafting amendments to reflect the new structure of section 21.

 

Item 97 - Subsection 21(2)(note)

 

Item 97 amends section 22 of the Act.  Section 22 currently provides the transition provisions at the time of commencement of the Act in 1981 and which have become redundant.  Item 97 inserts a new section 22 to provide a fair mechanism for compensation for acquisition of property arising from operation of this Act.

 

Section 51(xxxi) of the Constitution requires that any compensation for acquisition of property by the Commonwealth be on just terms.  The Authority may need to acquire private or other properties not belonging to the Commonwealth to achieve the intended pollution prevention outcomes of the Act.  For example, a barge may have to be positioned near a casualty, or fire fighting equipment or chemicals to fight spills may have to be acquired on an expeditious basis to prevent pollution.  Under these circumstances it is required that the Commonwealth provides compensation on just terms. 

 

Subsection 22(1) provides that a reasonable amount of compensation will be provided to a person by the Commonwealth if a requisition of property has taken place on any terms but just terms in accordance with constitutional provisions.  Subsection (2) provides the forum for proceedings if there is any dispute with regard to the compensation.  The Federal Court has been specifically provided given its competence in matters related to admiralty proceedings and its jurisdiction over this area of law.

 

Subsection (3) defines the terms ‘acquisition of property’ and ‘just terms’.



Item 98 - Section 22

 

Item 98 deletes section 24 which is redundant as a consequence of amendments effected by Items 57 and 59.  Following these amendments to sections 10(8), a simpler definition of ‘noxious substance’ is used in the Act by referring it to the Protocol.  There is no need for making Marine Orders to define ‘noxious substance’ under the Act.