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Protection of the Sea Legislation Amendment Bill 2010

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2010

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

PROTECTION OF THE SEA LEGISLATION AMENDMENT BILL 2010

 

 

 

 

 

 

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Infrastructure and Transport,

the Honourable Anthony Albanese, MP)



PROTECTION OF THE SEA LEGISLATION AMENDMENT BILL 2010

 

OUTLINE

 

The purpose of the Protection of the Sea Legislation Amendment Bill 2010 is to amend the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (PPS Act) and the Protection of the Sea (Civil Liability for Bunker Oil Pollution Damage) Act 2008 (Bunkers Act).

 

The PPS Act implements the operational requirements of the International Convention for the Prevention of Pollution from Ships (MARPOL).  MARPOL is the main international convention covering prevention of pollution of the marine environment by ships.  It has six technical Annexes dealing, respectively, with:

·          Prevention of Pollution by Oil

·          Control of Pollution by Noxious Liquid Substances in Bulk

·          Prevention of Pollution by Harmful Substances Carried by Sea in Packaged Form

·          Prevention of Pollution by Sewage from Ships

·          Prevention of Pollution by Garbage from Ships

·          Prevention of Air Pollution by Ships.

 

A revised version of Annex VI (Air Pollution) was adopted by the Marine Environment Protection Committee of the International Maritime Organization on 10 October 2008.  Amongst other things, Annex VI is intended to limit the emission of sulphur oxides and nitrogen oxides from ship exhausts and prohibits deliberate emissions of ozone depleting substances.  The main effect of the revised Annex VI is to provide for a stepped reduction in the sulphur level in fuel oil used in ships to reduce the emission of sulphur oxides.  The amendments in Schedule 1 of this Bill will implement the revised Annex VI.

 

The Bunkers Act has established a liability and compensation regime to apply in cases of pollution damage resulting from a spill of fuel oil from ships (other than oil tankers in respect of which there is a separate liability and compensation regime).  There is concern that persons or organisations providing assistance following a spill of fuel oil may become liable to pay compensation if their actions inadvertently lead to an increase in pollution damage.  The amendments in Schedule 2 of this Bill will add a "responder immunity" provision to the Bunkers Act to protect such persons who act reasonably and in good faith.

 

FINANCIAL IMPACT STATEMENT

 

There is no financial impact arising from this Bill.



Abbreviations

 

AMSA:

Australian Maritime Safety Authority

Bunkers Act:

Protection of the Sea (Civil Liability for Bunker Oil Pollution Damage) Act 2008

MARPOL:

International Convention for the Prevention of Pollution from Ships

PPS Act:

Protection of the Sea (Prevention of Pollution from Ships) Act 1983



PROTECTION OF THE SEA LEGISLATION AMENDMENT BILL 2010

 

NOTES ON CLAUSES

 

Clause 1: Short Title

 

Clause 1 is a formal provision specifying the title of the proposed Act.

 

Clause 2: Commencement

 

Clause 2 provides that the proposed Act will commence on the day after it receives Royal Assent.

 

Clause 3: Schedules

 

Clause 3 provides that the Schedules to the Bill will amend the Acts set out in those Schedules in accordance with the provisions set out in each Schedule.

 

 

Schedule 1 - Prevention of Air Pollution

 

Schedule 1 amends Part IIID of the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (the PPS Act) to implement the revised Annex VI of MARPOL.

 

Item 1  repeals the definition of fuel oil in subsection 26FEF(1) of the PPS Act.

 

Subsection 26FEF(2) provides that expressions used in Part IIID of the PPS Act and in Annex VI have the same meaning in Part IIID as they have in Annex VI.  There was not a definition of fuel oil in the original Annex VI but there is a definition of that term in the revised Annex VI so there is no need to continue to define it in Part IIID.

 

The definition of fuel oil in the revised Annex VI (and which will apply in Part IIID of the PPS Act) is as follows:

Fuel oil means any fuel delivered to and intended for combustion purposes for propulsion or operation on board a ship, including distillate and residual fuels.

 

Item 2 inserts a new definition of gas fuel into subsection 26FEF(1) of the PPS Act.

 

This new definition is necessary because the new definition of fuel oil in the revised Annex VI covers gases which are used as fuels on ships.  There are different requirements applying to fuels that are gases and those which are not gases.  The differing requirements are reflected by some of the amendments made by this Bill.

 

Items 3-8 make minor amendments to section 26FEG.

 

Section 26FEG requires ships to use fuel oil which has a sulphur content of no more than 4.5% m/m.  Paragraphs 26FEG(1)(b) and (2)(a) and the heading to section 26FEG are amended to replace references to "4.5% m/m" with "the prescribed limit".  This will allow maximum allowable sulphur levels in fuel oil to be changed by regulation in accordance with future amendments to Annex VI.

 

References in subparagraphs 26FEG(1)(d)(i) and (2)(b)(i) of the PPS Act to specific paragraphs of Annex VI are changed to reflect a new method of numbering of paragraphs in revised Annex VI.

 

The older version of Annex VI refers to "SOx emission control areas", being areas in which ships are required to use fuel with a lower sulphur content to limit the emission of sulphur oxides.  Revised Annex VI refers to "emission control areas" in which, as well as limits on the sulphur content of fuel, there are also limits on the emission of nitrogen oxides.  Subparagraphs 26FEG(1)(d)(iii) and 2(b)(iii) are amended by deleting "SOx" to reflect this change in terminology.

 

Item 9 adds new subsections (5) and (6) to section 26FEG to provide defences to the existing offences in that section of using fuel oil with a sulphur content more than the prescribed limit.  The defences will apply where compliant fuel is unavailable.

 

In the case of a ship whose next port of destination is in Australia, the offences will not apply if, after taking reasonable steps to obtain fuel oil with a sulphur content no more than the prescribed limit:

·            the person (in the case of new subsection (5)) or the master or owner (in the case of new subsection (6)) has been unable to obtain such fuel oil; and

·            the person, master or owner, as the case may be, has, in accordance with the regulations, notified a prescribed officer [1] that he or she has been unable to obtain fuel oil with a sulphur content no more than the prescribed limit.

 

If the ship's next port of destination is in a foreign country, the above defence applies in a similar manner with the additional requirement that the person, master or owner, as the case may be, must have notified the government of that foreign country as well as a prescribed officer.

 

As indicated in the Notes following new subsections 26FEG(5) and (6), a defendant bears an evidential burden in relation to the matters set out in those subsections.  It is reasonable that the defendant should have to adduce or point to evidence that suggests a reasonable possibility that the matters set out in these subsections occurred.  A defendant would easily be able to demonstrate what steps he or she took to obtain fuel oil that has a sulphur content no more than the prescribed limit and to provide evidence that no such fuel was available.  Similarly, a defendant would easily be able to show that he or she contacted a prescribed officer and, where required, the government of a foreign country.

 

Items 10-13 make minor amendments to section 26FEH.

 

The older version of Annex VI refers to "SOx emission control areas", being areas in which ships are required to use fuel with a lower sulphur content to limit the emission of sulphur oxides.  Revised Annex VI refers to "emission control areas" in which, as well as limits on the sulphur content of fuel, there are also limits on the emission of nitrogen oxides.  Paragraphs 26FEH(1)(a), 2(a) and (6)(a), subsection 26FEH(4) and the heading to section 26FEH are amended by deleting "SOx" to reflect this change in terminology.

 

Section 26FEG requires ships in emission control areas to use fuel oil which has a sulphur content of no more than 1.5% m/m.  Paragraph 26FEH(4)(a) is amended to replace the reference to "1.5% m/m" with "the prescribed limit".  This will allow maximum sulphur levels applying to the fuel oil in ships in emission control areas to be changed by regulation in accordance with future amendments to Annex VI.

 

Item 14 adds a new subsection (9) to section 26FEH to provide defences to the existing offence in that section of an Australian ship using fuel oil with a sulphur content more than the prescribed limit in an emission control area.

 

In the case of a ship whose next port of destination is in Australia, the offences will not apply if, after taking reasonable steps to obtain fuel oil with a sulphur content no more than the prescribed limit:

·          the master or owner has been unable to obtain such fuel oil; and

·            the master or owner has, in accordance with the regulations, notified a prescribed officer that he or she has been unable to obtain fuel oil with a sulphur content no more than the prescribed limit.

 

If the ship's next port of destination is in a foreign country, the above defence applies in a similar manner with the addition that the master or owner must have notified the government of that foreign country as well as a prescribed officer.

 

As indicated in the Note following new subsection 26FEH(9), a defendant bears an evidential burden in relation to the matters set out in that subsection.  It is reasonable that the defendant should have to adduce or point to evidence that suggests a reasonable possibility that the matters set out in that subsection occurred.  A defendant would easily be able to demonstrate what steps he or she took to obtain fuel oil that has a sulphur content no more than the prescribed limit and to provide evidence that no such fuel was available.  Similarly, a defendant would easily be able to show that he or she contacted a prescribed officer and, where required, the government of a foreign country.

 

Items 15-19 make minor amendments to section 26FEI.

 

As a consequence of the addition to section 26FEI by item 20 of a new subsection (2), "(1)" is inserted at the beginning of the current section.

 

The older version of Annex VI refers to "SOx emission control areas", being areas in which ships are required to use fuel with a lower sulphur content to limit the emission of sulphur oxides.  Revised Annex VI refers to "emission control areas" in which, as well as limits on the sulphur content of fuel, there are also limits on the emission of nitrogen oxides.  Paragraphs 26FEI(b) and (f) are amended by deleting "SOx" to reflect this change in terminology.

 

Section 26FEI applies to Australian ships which have separate fuel oils, one with a higher sulphur content which may be used when a ship is not in an emission control area and the other fuel, with a lower sulphur content, to be used when the ship is within an emission control area.  Such ships are required to flush the higher sulphur fuel from their fuel oil service systems before entering an emission control area.  Paragraph 26FEI(d) is amended to replace the reference to "1.5% m/m" (the current sulphur limit for fuels used in emission control areas) with "the prescribed limit".  This will allow references to the maximum allowable sulphur levels applying to fuel oil in ships in emission control areas to be changed by regulation in accordance with future amendments to Annex VI.  Paragraphs 26FEI(e) and (f) are amended to replace the reference to "1.5% m/m" with "that limit" (which is referring back to "the prescribed limit" in the amended paragraph 26FEI(d)).

 

Item 20 adds a new subsection (2) to section 26FEI to require Australian ships which use fuel with a sulphur content higher than the limit prescribed for use in emission control areas and another fuel with a sulphur content of not more than that prescribed limit to carry on board written procedures showing how the ships' fuel systems will be flushed of fuel oil with a higher sulphur content before entering an emissions control area.

 

If such a ship enters an emissions control area without having written procedures on board, the master will be guilty of an offence with a maximum penalty of 200 penalty units.  The penalty for a breach of new subsection 26FEI(2) is intended to discourage shipping operators from attempting to avoid compliance with the requirement to develop written procedures as a cost saving measure.  The maximum penalty is proportionate to discourage non-compliance and takes into consideration the levels of cost savings that shipping operators may achieve and the perceived likelihood of non-compliant ships being identified and prosecuted.  The penalty of 200 penalty units is consistent with the penalty for a breach of existing section 26FEI.

 

Item 21 amends section 26FEJ to ensure that the records of fuel-changeover operations that occur for an Australian ship passing through emission control areas indicate when fuel of a higher sulphur content begins to be used after passing through such an area.  This is in addition to the current requirement for the records to indicate when fuel of a lower sulphur content begins to be used before the ship enters an emission control area.

 

Item 22 amends subsections 26FEK(1) and (2) and the heading to section 26FEK to remove references to "SOx".  These amendments reflect the change in terminology between the older version of Annex VI which refers to "SOx emission control areas" and the revised Annex VI which refers to "emission control areas".

 

Item 23 amends the heading to Division 3 of Part IIID to include a reference to fuel oil availability to reflect the contents of Division 3 after these proposed amendments.

 

Item 24 amends subparagraph 26FEL(c)(i) to reflect the new method of numbering of paragraphs in revised Annex VI.

 

Items 25 and 26 amend paragraph 26FEN(1)(b) and subparagraph 26FEN(1)(c)(i) to reflect the new method of numbering of paragraphs in revised Annex VI.

 

Items 27 to 30 make minor amendments to section 26FEO to ensure that the section does not apply to gas fuel and to reflect the new method of numbering of paragraphs in revised Annex VI.

 

Items 31 and 32 amend subparagraph 26FEP(1)(d)(i) and paragraph 26FEP(1)(f) to reflect the new method of numbering of paragraphs in revised Annex VI.

 

Item 33 amends subparagraph 26FEQ(2)(d)(i) consequential upon the addition by item 34 of new subsection (5) to section 26FEQ.

 

Item 34 adds new subsections (5) to (8) to section 26FEQ.  Section 26FEQ relates to the retention and inspection of bunker delivery notes that must be provided to the master of a ship whenever fuel oil (other than gas fuel) is delivered to a ship.  Bunker delivery notes must be retained on Australian ships for at least three years.

 

The new subparagraphs will, on application by the owner of an Australian ship engaged in scheduled services, allow AMSA to approve a place, other than on the ship, for the retention of bunker delivery notes.  The owner of a ship may apply to the Administrative Appeals Tribunal for the review of a decision by AMSA to refuse to approve a place other than on the ship for the retention of bunker delivery notes.

 

Item 35 adds new section 26FES to Division 3 of Part IIID of the PPS Act to require a person who delivers gas fuel to a ship to specify the sulphur content of the fuel in documentation provided to the master in connection with the delivery.  This will enable the master to be informed about whether the gas fuel meets the requirements to use fuel with a sulphur content no more than the prescribed limit.

 

A strict liability offence with a maximum penalty of 200 penalty units applies to a person who delivers gas fuel to a ship if the documentation provided to the master in connection with the delivery does not specify the sulphur content of the fuel.

 

It is appropriate that this be a strict liability offence as it would be very difficult for the prosecution to establish that the information was not specified in documentation provided to the master but it is very easy for the defendant to provide a copy of any such documentation that specifies the sulphur content of gas fuel delivered to a ship.  This offence is consistent with other offences of this nature, and complies with the recommendations of the Senate Standing Committee for the Scrutiny of Bills, Sixth Report of 2002, Application of Absolute and Strict Liability Offences in Commonwealth Legislation .  It is also consistent with the guidelines approved by the then Minister for Home Affairs in December 2007 titled, A Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers .

 

There is no requirement for the retention on a ship of documentation relating to gas fuel as there is no such requirement in the revised Annex VI.  However, it would be in the master's interest to retain the documentation provided by the person who delivers gas fuel to the ship so the master can demonstrate that the ship is using fuel with a sulphur content no higher than the prescribed limits.

 

Item 36 adds new Division 4 (sections 26FET-26FEV) to Part IIID of the PPS Act.

 

New section 26FET requires an Australian ship engaged in an overseas voyage with a gross tonnage of 400 or more and which has on board at least one rechargeable system containing ozone depleting substances to carry an ozone depleting substances record book and for the making of records in that record book.  In accordance with proposed subsections 26FET(4) and (5), a strict liability offence of 200 penalty units applies to the owner and the master of a ship for failure to carry an ozone depleting substances record book.

 

It is appropriate that an offence for a breach of proposed subsection 26FET(4) be a strict liability offence because there are likely to be difficulties in proving that there was an intention not to carry an ozone depleting substances record book.  This offence is consistent with other offences of this nature, and complies with the recommendations of the Senate Standing Committee for the Scrutiny of Bills, Sixth Report of 2002, Application of Absolute and Strict Liability Offences in Commonwealth Legislation .  It is also consistent with the guidelines approved by the then Minister for Home Affairs in December 2007 titled, A Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers .

 

The offence is directed at the owner and master of a ship.  Such persons have a shared responsibility and both can be expected to be fully aware of the requirements of the legislation (and of Annex VI) and the requirement to carry an ozone depleting substances record book.  While the master has immediate responsibility for the ship, he or she is subject to the direction of the shipowner.  Shared liability is consistent with offence provisions in other parts of the PPS Act and in other maritime legislation such as the Navigation Act 1912 .

 

The master of a ship will commit an offence if:

·            after a prescribed operation or prescribed occurrence, an entry is not made in the ozone depleting substances record book; or

·            the master fails to sign each completed page of the ozone depleting substances record book.

 

The penalty of 200 penalty units for offences under 26FET is the same level as the existing penalties for equivalent offences under the following sections of the PPS Act:

·            section 12 for failure to carry an oil record book; and

·            section 23 for failure to carry a cargo record book.

 

New section 26FEU provides for a penalty of 200 penalty units to apply to a person who makes a false or misleading entry in a ozone depleting substances record book.

 

The penalty of 200 penalty units for offences under 26FEU is the same level as the existing penalties for equivalent offences under the following sections of the PPS Act:

·            section 13 for making a false entry in an oil record book; and

·            section 24 for making a false entry in a cargo record book.

 

New section 26FEV requires ozone depleting record books to be retained.

 

In accordance with new subsections 26FEV(1)(and (2), the master and owner of a ship will be each guilty of a strict liability offence with a maximum penalty of 200 penalty units if the ship's ozone depleting substances record book is not retained on board the ship and is not readily available for inspection by an inspector [2] for at least a year after the last entry is made in the book.

 

It is appropriate that an offence for a breach of proposed subsection 26FEV(1) be a strict liability offence because there are likely to be difficulties in proving that the ozone depleting substances record book is not on board but it will be very easy for a defendant to show that it is on board.  This offence is consistent with other offences of this nature, and complies with the recommendations of the Senate Standing Committee for the Scrutiny of Bills, Sixth Report of 2002, Application of Absolute and Strict Liability Offences in Commonwealth Legislation .  It is also consistent with the guidelines approved by the then Minister for Home Affairs in December 2007 titled, A Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers .

 

The offence is directed at the owner and master of a ship.  Such persons can be expected to be fully aware of the requirements of the legislation (and of Annex VI) and the requirement to carry an ozone depleting substances record book.  Shared liability is consistent with offence provisions in other parts of the PPS Act and in other maritime legislation such as the Navigation Act 1912 .

 

There is a requirement for the owner of a ship to ensure that an ozone depleting substances record book is retained for a further two years following the year it is required to be retained on the ship and it must be readily available for inspection by an inspector at all reasonable times during that two year period.  During that two year period, the ozone depleting substances record book may be retained in the ship or at the registered office or place or residence of the owner or the owner's agent.  If the owner does not reside in Australia and does not have an office or agent in Australia, the book may be deposited with a prescribed officer.

 

The owner of a ship will commit an offence with a maximum penalty of 200 penalty units if an ozone depleting substances record book is not retained and made available for inspection as described above.  The penalty of 200 penalty units for this offence is the same level as the existing penalties for equivalent offences under the following sections of the PPS Act:

·            section 14 for failure to retain an oil record book; and

·            section 25 for making a false entry in a cargo record book.

 

Item 37 has the following application and saving provisions:

·            the repeal of the definition of fuel oil by item 1 will not affect the continuity of the Register of Local Suppliers of Fuel Oil established by section 26FEM of the PPS Act

­-    this will ensure that the delivery of fuel oil is not disrupted by requiring persons who deliver fuel oil to ships to seek re-registration before being able to supply fuel oil;

·            there will be no retrospective application of the provisions implementing the revised Annex VI:

-    the amendments to section 26FEG made by items 3 to 9 will only apply in relation to the use of fuel oil on or after the commencement of those items;

-    the amendments made by items 10 to 20 apply only to voyages of Australian ships that begin on or after the commencement of those items;

-    the amendment made by item 21 applies only in relation to fuel oil changeover operations that occur on or after the commencement of that item;

-    the amendment made by item 27 applies only in relation to deliveries of fuel oil that occur on or after the commencement of that item;

-    the amendments made by items 33 and 34 apply only in relation to bunker delivery notes that are provided on or after the commencement of those items;

-    the amendment made by item 35 applies only in relation to deliveries of gas fuel that occur on or after the commencement of that item; and

·            new section 26FET of the PPS Act applies only in relation to overseas voyages of Australian ships that begin on or after the commencement of item 36.

 

 

Schedule 2 - Responder immunity

 

Schedule 2 adds a responder immunity provision to the Protection of the Sea (Civil Liability for Bunker Oil Pollution Damage) Act 2008 (Bunkers Act).

 

Items 1 and 2 add new definitions of, respectively, constitutional corporation and shipowner to section 3 of the Bunkers Act.  These two terms are used in the proposed new section 24A, to be inserted by item 3.

 

Item 3 inserts new section 24A into the Bunkers Act.  The new section provides that no civil action, suit or proceeding lies against a person who has acted reasonably and in good faith in trying to prevent or minimise pollution damage in Australia or in Australia's exclusive economic zone.  "Pollution damage", which has the same meaning in the Bunkers Act as it has in the International Convention on Civil Liability for Bunker Oil Pollution Damage, means, in that Convention:

(a)   loss or damage caused outside the ship by contamination resulting from the escape or discharge of fuel oil from the ship, wherever such escape or discharge may occur, provided that compensation for impairment of the environment other than loss of profit from such impairment shall be limited to costs of reasonable measures of reinstatement actually undertaken or to be undertaken; and

(b)   the costs of preventive measures and further loss or damage caused by preventive measures.

 

A shipowner will continue to be generally liable for pollution damage resulting from a spill of fuel oil and the proposed new section 24A will not affect that liability.

 

Immunity from action, suit or proceedings will not apply in relation to actions or omissions that were intended to cause damage or which were undertaken recklessly knowing that damage would probably result.

 

New subsection 24A(4) sets out the constitutional basis of the immunity from action, suit or proceedings provided for in subsection 24A(1).  The immunity will apply:

·            to any actions or omissions by a constitutional corporation (defined in item 1) or by a director, officer, employee or agent of a constitutional corporation;

·          to any actions or omissions outside Australia

-    for this purpose "outside Australia" means outside the baseline from which the breadth of the territorial sea is measured.  This will ensure that the external affairs power can be invoked to the maximum extent possible for purposes of the responder immunity provision.  It will extend the responder immunity to individuals in the territorial sea to whom the immunity may not otherwise apply;

·            in relation to any acts or omissions in the course of trade or commerce between Australia and places outside Australia; among the States; within a Territory; between a State and a Territory; and between two Territories; and

·          to any actions or omissions by the Commonwealth or an authority of the Commonwealth.

 

Item 4 is an application provision to provide that the responder immunity provision applies only to anything done, or omitted to be done, after the commencement of the provision.  The intention of this application provision is to remove any possibility that the proposed responder immunity provision could give rise to an acquisition of property otherwise than on just terms.  This application provision will ensure that any legal claims existing prior to the commencement of the responder immunity provision will not be extinguished by that provision.




[1]      Existing subsection 3(2) of the PPS Act provides that a reference to a prescribed officer in a section of the PPS Act is a reference to the Authority (that is, the Australian Maritime Safety Authority or AMSA) or such person, or the holder of such office in the Authority, as is prescribed for the purposes of that section.

[2]      In accordance with the definition in subsection 3(1) of the PPS Act, an inspector is a person who is:

(a)     a surveyor for the purpose of the  Navigation Act 1912 ; or

(b)     a member or a special member of the Australian Federal Police; or

(c)     appointed by AMSA, in writing, to be an inspector for the purposes of the PPS Act.