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Protection of the Sea (Prevention of Pollution from Ships) Amendment (Oil Transfers) Bill 2011

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2010-2011

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

PROTECTION OF THE SEA (PREVENTION OF POLLUTION FROM SHIPS) AMENDMENT (OIL TRANSFERS) BILL 2011

 

 

 

 

 

 

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Infrastructure and Transport

the Honourable Anthony Albanese, MP)

 



PROTECTION OF THE SEA (PREVENTION OF POLLUTION FROM SHIPS) AMENDMENT (OIL TRANSFERS) BILL 2011

 

OUTLINE

 

The purpose of the Protection of the Sea (Prevention of Pollution from Ships) Amendment (Oil Transfers) Bill 2011 is to amend the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (PPS Act) to implement amendments to Annex I of the International Convention for the Prevention of Pollution from Ships (MARPOL) which codify existing practices for ship-to-ship (STS) oil transfers between oil tankers.

 

The Marine Environment Protection Committee of the International Maritime Organization adopted the amendments on 17 July 2009.  The intention of the amendments is to prevent marine pollution during STS oil transfer operations between oil tankers.  The new requirements apply to oil tankers of 150 gross tonnage and above.  The Bill will require such tankers involved in STS oil transfer operations to have on board an STS operations plan and for transfers to be carried out in accordance with that plan.

 

 

FINANCIAL IMPACT STATEMENT

 

There is no financial impact arising from this Bill.

 



Abbreviations

 

AMSA:

Australian Maritime Safety Authority

MARPOL:

International Convention for the Prevention of Pollution from Ships

PPS Act:

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

STS:

ship-to-ship



PROTECTION OF THE SEA (PREVENTION OF POLLUTION FROM SHIPS) AMENDMENT (OIL TRANSFERS) BILL 2011

 

 

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 Bill will commence on the day after the proposed Act receives Royal Assent.

 

Clause 3: Schedule(s)

 

Clause 3 provides that the Schedule to the Bill will amend the PPS Act in accordance with the provisions set out in the Schedule.

 

Schedule 1 - Amendments

 

Item 1 inserts new sections 11B, 11C, 11D, 11E, 11F and 11G into the PPS Act.

 

Section 11B  Transfer of oil cargo between oil tankers - transfer to be in accordance with ship-to-ship operations plan

 

New subsection 11B(1) requires STS transfers of oil carried as cargo between oil tankers to be carried out in accordance with an oil tanker's STS operations plan.  The master of an oil tanker will commit an offence with a maximum penalty of 200 penalty units if an STS transfer of oil cargo to or from another tanker is not in accordance with the first tanker's STS operations plan.

 

The requirement for a transfer to occur in accordance with an STS operations plan applies only if one of the following applies:

·          the transfer occurs in the sea near a State or Territory [1]

 -    but if a law of the adjacent State or Territory gives effect to the requirement for an STS operations plan, then that State or Territory law will apply; or

·          the transfer occurs in Australia's exclusive economic zone; or

·            the first tanker is an Australian ship [2] and the transfer occurs while the tanker is beyond Australia's exclusive economic zone.

 

The penalty of 200 penalty units for a breach of subsection 11B(1) is intended to discourage deviation from the oil tanker's STS operations plan, without which there would be an increased risk of an oil spill incident occurring with potential environmental damage.  The penalty is intended to ensure that the master of an oil tanker does not attempt to secure a commercial advantage by taking short cuts during STS oil transfer operations.

 

The level of the penalty is the same as that applying to other non-compliance offences in the PPS Act such as subsection 26FEI(1) where a master is guilty of an offence if the master does not allow sufficient time for a ship's fuel oil system to be flushed of non-compliant fuel before the ship enters an emission control area.

 

In accordance with subsection 11B(3), the requirement in subsection 11B(1) for a transfer to occur in accordance with an STS operations plan does not apply if the transfer is described in paragraph 2, 3, 4 or 5 of Regulation 41 of Annex I to MARPOL [3] .

 

As indicated in the Note following subsection 11B(3), a defendant bears an evidential burden in relation to the matter 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 applied.  A defendant would easily be able to demonstrate that an STS oil transfer operation fell within one of the exceptions set out in paragraphs 2, 3, 4 and 5 of Regulation 41 of Annex I to MARPOL .

 

Section 11C  Transfer of oil cargo between oil tankers in Australian waters - qualified person to be in control

 

New subsection 11C(1) applies where a person in overall advisory control of an STS oil transfer operation is not the master of one of the tankers involved in the oil transfer operation.  In such a case, the person in overall advisory control should satisfy qualification requirements prescribed by the regulations.  If the person does not satisfy prescribed qualification requirements, he or she will be guilty of a strict liability offence with a maximum penalty of 60 penalty units.

 

This requirement to satisfy prescribed qualification requirements will not apply to masters as a master would satisfy the necessary requirements by virtue of being qualified as the master of a tanker.

 

In addition, the requirements in subsection 11C(1) apply only if one of the following applies:

·          the transfer occurs in the sea near a State or Territory

 -    but if a law of the adjacent State or Territory gives effect to the requirement for a qualified person to be in overall advisory control of an STS oil transfer operation, then that State or Territory law will apply; or

·          the transfer occurs in Australia's exclusive economic zone.

 

It is appropriate that strict liability applies to this offence as it would be straightforward for a person in overall advisory control of an STS oil transfer operation to demonstrate the level of qualifications he or she holds.  Applying strict liability is consistent with other offences of this nature a nd 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 .  A defence of honest and reasonable mistake of fact will be available in relation to this offence.

 

In accordance with subsection 11C(3), the requirement in subsection 11C(1) for a qualified person to be in control of an STS oil transfer operation does not apply if the transfer is described in paragraph 2, 3, 4 or 5 of Regulation 41 of Annex I to MARPOL [4] .

 

As indicated in the Note following subsection 11C(3), a defendant bears an evidential burden in relation to the matter 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 applied.  A defendant would easily be able to demonstrate that an STS oil transfer operation fell within one of the exceptions set out in paragraphs 2, 3, 4 and 5 of Regulation 41 of Annex I to MARPOL .

 

Section 11D Transfer of oil cargo involving an Australian ship - ship-to-ship operations plan to be carried

 

New subsection 11D(1) requires an STS operations plan to be carried on board Australian tankers whenever and wherever such tankers are involved in STS oil transfers.  If there is a breach of this requirement, the master and the owner each commit an offence with a maximum penalty of 500 penalty units.  This is the key provision of the Bill.  The carriage of a plan indicates that a tanker is fully prepared to undertake STS oil transfers in accordance with the requirements of Annex I of MARPOL.

 

Should a plan not be in place for a tanker involved in an STS oil transfer, then the risk of an oil spill is greatly increased.  Failure to have a plan is an indication that the tanker may not have sufficient safeguards in place to avoid an oil spill and there is the potential for major environmental damage resulting from the escape of oil during the STS transfer operation.  It is necessary that the penalty be set at a sufficient level so as to ensure that an STS operations plan will be prepared and be carried on board a tanker during all STS oil transfer operations.

 

The offence is directed at the owner and the master of a tanker.  Such persons have shared responsibility and both can be expected to be fully aware of the requirements of the legislation (and of MARPOL) and, in particular, the requirement for an STS operations plan to be carried on board a tanker involved in an STS oil transfer operation.  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 level of the penalty is the same as that applying to similar offences in subsections 11A(7) and 22A(6) of the PPS Act which require ships to carry, respectively, a shipboard oil pollution emergency plan and a shipboard marine pollution emergency plan for noxious liquid substances.

 

In accordance with subsection 11D(3), the requirement in subsection 11D(1) for Australian tankers involved in STS oil transfer operations to carry an STS operations plan does not apply if the transfer is described in paragraph 2, 3, 4 or 5 of Regulation 41 of Annex I to MARPOL [5] .

 

As indicated in the Note following subsection 11D(3), a defendant bears an evidential burden in relation to the matter 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 applied.  A defendant would easily be able to demonstrate that an STS oil transfer operation fell within one of the exceptions set out in paragraphs 2, 3, 4 and 5 of Regulation 41 of Annex I to MARPOL .

 

Section 11E  Transfer of oil cargo involving an Australian ship—making and retaining record of transfer

 

New subsection 11E(1) provides that the master of an Australian oil tanker involved in an STS oil transfer will be guilty of an offence with a maximum penalty of 200 penalty units if the master fails to make a record of the transfer as soon as practicable.

 

The recording of oil transfers (and the retention of records as required by subsection 11E(2)) enables regulatory authorities to monitor STS oil transfers and helps to ensure that transfers are carried out in accordance with the requirements of Annex I of MARPOL.

 

The level of the penalty is the same as that applying to similar offences in subsections 12(5) and 22A(3) of the PPS Act which require the master of a ship to record a prescribed operation or a prescribed occurrence in, respectively, a ship's oil record book or a ship's cargo record book.

 

A record of a transfer, made in accordance with subsection 11E(1), is required to be retained on board the tanker for three years and must be available for inspection by an inspector [6] at all reasonable times during this period.  A strict liability offence with a maximum penalty of 60 penalty units applies to the master and owner if this requirement is breached.

 

This offence is directed at the owner and the master of a tanker.  Such persons have shared responsibility and both can be expected to be fully aware of the requirements of the legislation (and of MARPOL) and, in particular, the requirement to retain records of STS oil transfers and for the records to be available for inspection.  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 .

 

It is appropriate that strict liability applies to this offence as it would be easy for the owner or master to demonstrate that the record of an oil transfer is held on board a ship.  Applying strict liability is consistent with other offences of this nature a nd 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 .  A defence of honest and reasonable mistake of fact will be available in relation to this offence.

 

In accordance with subsection 11E(5), the requirements in subsections 11E(1) and (2) relating to records of STS oil transfers do not apply to transfers described in paragraph 2, 3, 4 or 5 of Regulation 41 of Annex I to MARPOL [7] .

 

As indicated in the Note following subsection 11E(5), a defendant bears an evidential burden in relation to the matter 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 applied.  A defendant would easily be able to demonstrate that an STS oil transfer operation fell within one of the exceptions set out in paragraphs 2, 3, 4 and 5 of Regulation 41 of Annex I to MARPOL .

 

Section 11F  Transfer of oil cargo between oil tankers in Australian waters - notification of transfer

 

New subsection 11F(1) provides that the master of a tanker that has been involved in an STS oil transfer operation in Australian waters will have committed an offence with a maximum penalty of 200 penalty units if the master failed to notify a prescribed officer [8] of the transfer at least 48 hours before the transfer began.

 

Subsection 11F(1) applies where:

·          the transfer occurs in the sea near a State or Territory

 -    but if a law of the adjacent State or Territory gives effect to the requirement for an STS operations plan, then that State or Territory law will apply; or

·          the transfer occurs in Australia's exclusive economic zone.

 

The requirement for prior notification is intended to ensure that Australian authorities will be made aware of any proposed STS oil transfer operations and that they will be able to readily activate pollution response measures in case of an oil pollution incident during the transfer.

 

The level of the penalty is the same as that applying to the offences in subsections 12(5) and 22A(3) of the PPS Act which require the master of a ship to record a prescribed operation or a prescribed occurrence in, respectively, a ship's oil record book or a ship's cargo record book.  While these offences apply in relation to incidents that have already occurred and subsection 11F(1) refers to an STS transfer which is required to be reported before it occurs, both sorts of occurrences impose an obligation on the master to report.

 

Where the master becomes aware that the estimated time of arrival of the oil tanker at the location for an STS oil transfer has changed by more than six hours, the master is required to notify a prescribed officer within two hours of becoming aware of the new estimated time of arrival.  A master who fails to notify a change in estimated arrival time as required will be guilty of a strict liability offence with a maximum penalty of 60 penalty units.

 

It is appropriate that strict liability applies to this offence as it would be straightforward for the master to demonstrate that he or she has provided notice of a changed arrival time through the tanker's records or through the records of the prescribed officer.  Applying strict liability to 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 .  A defence of honest and reasonable mistake of fact will be available in relation to this offence.

 

In accordance with subsection 11F(5), the requirements in subsections 11F(1) and (2) relating to notification of STS oil transfers do not apply to transfers described in paragraph 2, 3, 4 or 5 of Regulation 41 of Annex I to MARPOL [9] .

 

As indicated in the Note following subsection 11F(5), a defendant bears an evidential burden in relation to the matter 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 applied.  A defendant would easily be able to demonstrate that an STS oil transfer operation fell within one of the exceptions set out in paragraphs 2, 3, 4 and 5 of Regulation 41 of Annex I to MARPOL .

 

Section 11G Transfer of oil cargo between oil tankers outside Australian waters - notification of transfer

 

New subsection 11G(1) provides that the master of an Australian tanker that has been involved in an STS oil transfer operation in the territorial sea or the exclusive economic zone of a foreign country that is a party to MARPOL will have committed an offence with a maximum penalty of 200 penalty units if the master failed to notify the government of that foreign country of the transfer at least 48 hours before the transfer began.

 

The requirement for prior notification is intended to ensure that authorities of the foreign country will be made aware of any proposed STS oil transfer operations and that they will be able to readily activate pollution response measures in case of an oil pollution incident during the transfer.

 

The level of the penalty is the same as that applying to the offences in subsections 12(5) and 22A(3) of the PPS Act which require the master of a ship to record a prescribed operation or a prescribed occurrence in, respectively, a ship's oil record book or a ship's cargo record book.  While these offences apply in relation to incidents that have already occurred and subsection 11F(1) refers to an STS transfer which is required to be reported before it occurs, both sorts of occurrences impose an obligation on the master to report.

 

Where the master becomes aware that the estimated time of arrival of the oil tanker at the location for an STS oil transfer has changed by more than six hours, the master is required to notify the government of the country in whose waters the transfer is to occur within two hours of becoming aware of the new estimated time of arrival.  A master who fails to notify a change in estimated arrival time as required will be guilty of a strict liability offence with a maximum penalty of 60 penalty units.

 

It is appropriate that strict liability applies to this offence as it would be straightforward for the master to demonstrate that he or she has provided notice of a changed arrival time through the tanker's records.  Applying strict liability to 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 .  A defence of honest and reasonable mistake of fact will be available in relation to this offence.

 

In accordance with subsection 11G(5), the requirements in subsections 11G(1) and (2) relating to notification of STS oil transfers do not apply to transfers described in paragraph 2, 3, 4 or 5 of Regulation 41 of Annex I to MARPOL [10] .

 

As indicated in the Note following subsection 11G(5), a defendant bears an evidential burden in relation to the matter 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 applied.  A defendant would easily be able to demonstrate that an STS oil transfer operation fell within one of the exceptions set out in paragraphs 2, 3, 4 and 5 of Regulation 41 of Annex I to MARPOL .

 

 

Item 2 is an application provision.

 

Item 2 provides that new sections 11B to 11G will only apply to tankers involved in STS oil transfer operations that begin on or after 1 April 2012.  However, in respect of oil tankers which have undergone an annual, intermediate or renewal survey after the date of commencement of item 1 and before 1 April 2012, new sections 11B to 11G will apply to any STS oil transfer operations involving such a tanker on or after the day that the survey was completed.




[1]      The sea near a State or Territory means:

(a)     the territorial sea of Australia adjacent to the State or Territory; and

(b)     the sea on the landward side of the territorial sea of Australia adjacent to the State or Territory.

[2]      Australian ship is defined in subsection 3(1) of the PPS Act to mean:

(a)     a ship registered in Australia; or

(b)     an unregistered ship having Australian nationality.

[3]      Paragraphs 2, 3, 4 and 5 of Regulation 41 of MARPOL provide, respectively, that the provisions of Annex I of MARPOL which regulate STS oil transfer operations between oil tankers do not apply to:

(a)    oil transfer operations associated with:

-     fixed or floating platforms including drilling rigs;

-     floating production, storage and offloading facilities used for the offshore production and storage of oil; and

-     floating storage units used for the offshore storage of produced oil;

(b)    bunkering operations;

(c)     STS operations necessary for the purpose of securing the safety of a ship or saving life at sea, or for combating specific pollution incidents in order to minimise the damage from pollution; or

(d)    STS operations where either of the ships involved is a warship, a naval auxiliary or another ship owned or operated by a State and used, for the time being, only on government non-commercial service.

[4]      See footnote 3 for a description of paragraphs 2, 3, 4 and 5 of Regulation 41 of Annex I to MARPOL.

[5]      See footnote 3 for a description of paragraphs 2, 3, 4 and 5 of Regulation 41 of Annex I to MARPOL.

[6]      Inspector is defined in subsection 3(1) of the PPS Act to mean a person who:

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

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

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

[7]      See footnote 3 for a description of paragraphs 2, 3, 4 and 5 of Regulation 41 of Annex I to MARPOL.

[8]      In accordance with subsection 3(2) of the PPS Act, a reference in the PPS Act to a prescribed officer is a reference to AMSA or such person, or the holder of such office in AMSA, as is prescribed for the purposes of the section of the PPS Act in which the reference occurs.

[9]      See footnote 3 for a description of paragraphs 2, 3, 4 and 5 of Regulation 41 of Annex I to MARPOL.

[10]     See footnote 3 for a description of paragraphs 2, 3, 4 and 5 of Regulation 41 of Annex I to MARPOL.