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Maritime Legislation Amendment Bill 2011

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2010-2011

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

MARITIME LEGISLATION AMENDMENT BILL 2011

 

 

 

 

 

 

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Infrastructure and Transport

the Honourable Anthony Albanese, MP)



MARITIME LEGISLATION AMENDMENT BILL 2011

 

OUTLINE

 

The Shen Neng 1 grounded on the Douglas shoal in the GBR region on 3 April 2010.  The 225 metre-long bulk carrier left the Port of Gladstone bound for China, carrying 65,000 tonnes of coal as cargo. The Chinese-registered ship was traversing a well known shipping route south of the Douglas Shoal, when it ran hard aground 38 nautical miles east of Great Keppel Island. The impact ruptured the ship’s fuel tanks and released approximately four tonnes of fuel oil into surrounding waters.

 

The ship’s grounding caused damage to the coral reef on the Douglas Shoal, and had the salvage operation been unsuccessful or the ship been more severely damaged as a result of the impact with the reef, the incident could have resulted in a spill of up to 975 tonnes of heavy fuel oil and around 65,000 tonnes of coal, causing significant environmental damage.

 

In an unrelated incident, on 11 March 2009, a Hong Kong China registered general cargo ship, the Pacific Adventurer, lost 31 containers of ammonium nitrate overboard some 7 nautical miles east of Cape Moreton while en route to Brisbane from Newcastle.  The fallen containers caused damage to the ship and resulted in the loss of more than 270 tonnes (estimated) of heavy fuel oil.

 

The oil impacted significant portions of the south-east Queensland coast, in particular the eastern and northern beaches and headlands of Moreton Island (a National Park), the eastern beaches of Bribie Island (north of Brisbane), the beaches and foreshores of the Sunshine Coast (north of Brisbane) and small areas of the Brisbane River.

 

Australia is a signatory to the International Convention for the Prevention of Pollution from Ships (MARPOL), which states at Article 4(4) that “the penalties specified under the law of a Party pursuant to the present Article shall be adequate in severity to discourage violations of the present Convention and shall be equally severe irrespective of where the violations occur.” 

 

Commonwealth legislation giving effect to the MARPOL Convention is significantly out of step with complementary State legislation which imposes much higher penalties for breaches of the Convention.  For example, The Protection of the Sea (Prevention of Pollution from Ships) Act 1983 presently imposes a maximum penalty of 2,000 penalty units, (being $220,000 for an individual and $1.1 million for a corporation) for reckless or negligent discharge of oil or oil residue into the sea, while in New South Wales or Queensland waters the maximum penalties for illegal discharging of oil can be up to $10 million (strict liability offence) for a corporation.

 

The Shen Neng 1 and Pacific Adventurer incidents highlight the need for the regulatory system to be strengthened to provide a sufficient deterrent to shipping companies and their crews from engaging in unsafe and irresponsible actions at sea, particularly near environmentally sensitive marine ecosystems.

 

The purpose of these legislative changes is to:

·          require the master of a ship in Australian waters not to operate the ship in a manner that causes pollution or damage to the marine environment;

·          require the master of any ship in Australian waters to ensure the ship is operated in a manner that does not cause pollution or damage to the marine environment;

·          require the master of an Australian ship anywhere on the high seas not to operate a ship in a manner that causes pollution or damage to the marine environment;



·          require the master of an Australian ship anywhere on the high seas to ensure that the ship is operated in a manner that does not cause pollution or damage to the marine environment;

·          to create criminal and civil penalties for contraventions of these requirements;

·          create an offence where the master of a ship fails to report in accordance with the regulations, for example, in relation to an incident in a mandatory reporting area such as the Great Barrier Reef Marine Park; and

·          increase the level of penalties in the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 for reckless or negligent discharge of oil or oil residues by ships.

 

 

FINANCIAL IMPACT STATEMENT

 

There is no financial impact arising from this Bill.

 

REGULATION IMPACT STATEMENT

 

The amendments are considered to have a minor regulatory impact and the Office of Best Practice Regulation considered that no regulatory impact analysis is required.



MARITIME LEGISLATION AMENDMENT BILL 2011

 

 

NOTES ON CLAUSES

 

Clause 1          Short title

 

1.         This clause provides for the Bill, when enacted, to be cited as the Maritime Legislation Amendment Act 2011 .

 

Clause 2          Commencement

 

2.         This clause sets out the commencement dates for the Act. Sections 1 to 3 of the Act commence on the day on which it receives the Royal Assent.  The substantive amendments in Schedule 1 to the Act commence the day after the Act receives Royal Assent.

 

Clause 3          Schedule(s)

 

3.         This clause is the formal enabling provision for Schedule 1 to the Bill, providing that each Act specified in the Schedule is amended in accordance with the applicable items of the Schedule.  In this Bill, the Navigation Act 1912 (Navigation Act) and the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Prevention of Pollution Act) are being amended.

 

SCHEDULE 1—Amendments

 

Navigation Act 1912

 

Item 1                         Subsection 6(1)

 

4.         This item amends the Navigation Act by inserting a proposed definition in s 6(1) of a civil penalty order.

 

Item 2                         Subsection 6(1)

 

5.         This item amends the Navigation Act by inserting a proposed definition in s 6(1) of a civil penalty provision.

 

Item 3                         After Division 12D of Part IV

 

6.         This item amends the Navigation Act by inserting a proposed new Division 12E into Part IV.  

 

7.         Proposed new subsection 267ZZG provides definitions for the new Division. 

 

7.1       Aggravated contravention has the meaning in new section 267ZZN. 

 

7.2       References to Australia and Territory include the external territories. 

 

 

 

7.3       A reference to an Australian ship is a reference to a ship registered under the Shipping Registration Act 1981 or an unregistered ship that has Australian nationality under section 29 of that Act.

 

7.4       The coastal sea of Australia is the territorial sea of Australia proclaimed under the Seas and Submerged Lands Act 1973 and the sea on the landward side of the territorial sea that is not within the limits of a State or Territory.

 

7.5       Reference to ‘Territory’ includes all external Territories

 

8.         Proposed new subsection 267ZZH (1) provides that the new Division will apply to all ships including ships described in s 2 to which the Navigation Act does not generally apply. 

 

9.         Proposed new subsection 267ZZH (2) provides that the Division will apply in Australia’s coastal sea and exclusive economic zone, and the high seas.

 

10.       Proposed new subsection 267ZZI provides a new offence in circumstances where the master of a ship operates the ship in a negligent or reckless manner that causes pollution or damage to the marine environment in Australian waters.  Criminal and civil penalties are provided for and a higher civil penalty may apply in the case of serious damage.  The high penalties are intended to be appropriate to discourage non-compliance and take into consideration the levels of cost saving that shipping operators may achieve through non-compliance and any perceived likelihood of non-compliant ships being identified and prosecuted.

 

11.       Proposed new subsection 267ZZJ provides a new offence in circumstances where the master of a ship fails to ensure that the ship is not operated in a negligent or reckless manner that causes pollution or damage to the marine environment in Australian waters.  Criminal and civil penalties are provided for and a higher civil penalty may apply in the case of serious damage.  The high penalties are intended to be appropriate to discourage non-compliance and take into consideration the levels of cost saving that shipping operators may achieve through non-compliance and any perceived likelihood of non-compliant ships being identified and prosecuted.

 

12.       Proposed new subsection 267ZZK (1) provides that the new Division will apply to all ships including ships described in s 2 to which the Navigation Act does not generally apply. 

 

13.       Proposed new subsection 267ZZK (2) provides that the Division will apply in Australia’s coastal sea and exclusive economic zone, and the high seas.

 

14.       Proposed new subsection 267ZZL provides a new offence in circumstances where the master of an Australian ship operates the ship in a negligent or reckless manner that causes pollution or damage to the marine environment in waters of the high seas outside Australia.  Criminal and civil penalties are provided for and a higher civil penalty may apply in the case of serious damage.  The high penalties are intended to be appropriate to discourage non-compliance and take into consideration the levels of cost saving that shipping operators may achieve through non-compliance and any perceived likelihood of non-compliant ships being identified and prosecuted.

 

 

 

15.       Proposed new subsection 267ZZM provides a new offence in circumstances where the master of an Australian ship fails to ensure that the ship is not operated in a negligent or reckless manner that causes pollution or damage to the marine environment in waters of the high seas outside Australia.  Criminal and civil penalties are provided for and a higher civil penalty may apply in the case of serious damage. The high penalties are intended to be appropriate to discourage non-compliance and take into consideration the levels of cost saving that shipping operators may achieve through non-compliance and any perceived likelihood of non-compliant ships being identified and prosecuted.

           

16.       Proposed new subsection 267ZZN provides for the circumstances in which an offence is an aggravated offence:  where serious harm to the environment has occurred or may occur as a result of the incident.   Matters which may indicate serious harm include the magnitude of the harm, the size, sensitivity and environmental significance of the area affected and the prospects for repairing the harm.  This provision is based on s 38GB of the Great Barrier Reef Marine Park Act 1975.

 

Item 4                         At the end of Part IV

 

17.       This item amends Division 14 of Part IV of the Navigation Act which provides for mandatory reporting by ships’ masters in relation to the movement of ships in prescribed areas.   The Great Barrier Reef Particularly Sensitive Sea Area is prescribed for this purpose.  Proposed new section 269E creates a strict liability offence where the master of a ship fails to report in a mandatory reporting area.  As a strict liability offence, no fault elements apply to the physical elements of the offence and therefore no intention or state of mind of the master needs to be proved by the prosecution.  The intent is to make it absolutely clear that the prosecution does not have to establish that the master knew or was reckless as to the fact that the ship was in a mandatory reporting area.  This is appropriate in the circumstances because the defendant is the best placed person to provide evidence on whether any culpability should be attached to the physical offence.  It will be easier and less costly for the defendant to disprove an unjust charge than for the prosecutor to make out fault elements of an unjust charge, such as the location of the ship.   

 

18.       The proposed penalty is appropriate and proportionate to the seriousness with which Australia takes its responsibilities in relation to particularly sensitive sea areas, such as in the sea area of the Great Barrier Reef, which are utilized by shipping.  

 

Item 5             After Division 3 of Part X

 

19.       This item inserts proposed new Division 3A into Part X of the Navigation Act to set out the means, other than by prosecuting for criminal offences, through which compliance with the requirements of the Bill may be enforced.  It establishes the scheme by which civil penalty provisions may be enforced through applications for civil penalty orders.

                       

20.       Proposed new section 399A provides that a provision of this Act is a civil penalty provision if the provision sets out at its foot a pecuniary penalty, or penalties, indicated by the words “Civil penalty

 

 

 

 

           

21.       Proposed new section 399B provides that within six years of an alleged contravention of the provisions of this Bill, the designated Authority may apply to the Federal Court for an order that a person who is alleged to have contravened a civil penalty provision of the Navigation Act 1912 pay a pecuniary penalty. It also details the various factors the court may take into account in determining the penalty.

 

22.       Proposed new section 399C provides that a pecuniary penalty is a debt due to the Commonwealth. If a Court orders payment of a civil penalty, the Commonwealth may enforce the order.

 

23.       Proposed new section 399D provides that where conduct contravenes two or more civil penalty provisions, proceedings may be instituted against any of those provisions but the person will only be liable for one pecuniary penalty in relation to the same conduct.

 

24.       Proposed new section 399E provides that the Federal Court can make one civil penalty order for multiple contraventions of a civil penalty provision, if each of the contraventions are founded on the same facts or form a series of contraventions of the same or similar character.  The penalty in this case cannot be greater than the maximum total penalty that could be ordered if a separate civil penalty order were made for each contravention.

 

25.       Proposed new section 399F provides that the Federal Court can direct that more than one civil penalty proceeding be heard at the same time.  Doing so may be in the interest of efficient use of the Court’s time. 

 

26.       Proposed new section 399G provides that the rules of evidence and procedure for civil matters apply to any proceedings for a civil penalty order in the Federal Court.

 

27.       Proposed new section 399H clarifies that a contravention of a civil penalty provision is not an offence.  That is, it is distinct from provisions that may result in criminal prosecution.       

 

28.       Proposed new section 399J provides that where a person is convicted of a criminal offence for conduct under the Navigation Act 1912, the Federal Court cannot make a civil penalty order for conduct that is the same or substantially the same.

 

29.       Proposed new section 399K provides that, if criminal proceedings are underway or commence for an offence under the Navigation Act 1912, any proceedings for a civil penalty order against the same person and in relation to conduct that is the same or substantially the same, are stayed. The civil       penalty proceedings can be resumed if the person is not convicted of the criminal offence.

 

30.       Proposed new section 399L provides that criminal proceedings may be commenced regardless of whether a civil penalty order has been made against the same person for the same or substantially the same conduct.

 

31.       Proposed new section 399M provides that evidence given by an individual in civil penalty proceedings against them for conduct that is the same or substantially the same cannot be used in criminal proceedings. 

This provision does not apply in relation to criminal proceedings pursued for the falsity of any evidence given by the individual during civil penalty proceedings.

 

 

32.       Proposed new section 399N provides that anyone who:

§   attempts to contravene a civil penalty provision;

§   aids in, procures or induces a contravention;

§   is knowingly concerned in a contravention of a civil penalty; or

§   conspires with others to cause a contravention

            will be taken to have contravened the provision.

 

33.       Proposed new section 399P provides that an obligation on a person to do an act or thing under a civil penalty provision within a designated timeframe continues until the act or thing is done.  A person who does not do the act or thing within the timeframes commits a separate contravention for each day the act or thing is not done.

 

34.        Proposed new section 399Q provides that a person will not be liable for a penalty if they can show that they were under a mistaken but reasonable belief about the facts surrounding a contravention, and the correct understanding of the facts would not have lead to a contravention. 

 

35.       For clarification, a person can be regarded as having been under a mistaken belief if the person reasonably believes the circumstances in the present situation to be the same as those in a past situation which did not constitute a contravention.

 

36.       This provision requires a person to prove their own mistake of fact on the balance of probabilities.  This is because the defendant in civil penalty proceedings will be much better placed to present evidence about their state of mind with respect to having a mistaken belief.

 

37.       Proposed new section 399R provides that it is not necessary to prove a person’s intention, knowledge, recklessness, negligence or any other state of mind in order to prove a contravention of a civil penalty provision.

 

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

 

Item 6             Subsection 9(1)

 

38.       This item repeals subsection 9(1) of the Prevention of Pollution Act.

 

Item 7             Subsection 9(1A)

 

39.       This item repeals subsection 9(1A) of the Prevention of Pollution Act.

 

Item 8                         Subsection 9(1B)

 

40.       This item amends subsection 9(1) of the Prevention of Pollution Act to make it clear that the offence applies to a charterer of a ship as well as the owner and master.

 

 

 

 

 

 

 

 

 

 

Item 9                         Subsection 9(1B)

 

41.       This item substantially increases the maximum  penalty attached to the strict liability offence provided for in the subsection of discharging oil or oily mixture from a ship into the sea near the coastline of Australia or one of the external territories, or into Australia’s exclusive economic zone or, in the case of an Australian ship, on the high seas.  In waters near the coastline, the offence in subsection 9(1B) will not apply if a State or Territory law makes provision giving effect to the relevant obligations imposed by the International Convention for the Prevention of Pollution from Ships 1973 .

 

42.       The existing fine of 500 penalty units is inadequate for the potential severity of the harm which the offence may cause and the new maximum fine of 20,000 penalty units is intended to ensure that a penalty can be imposed that is proportionate to the degree of harm as well as provide sufficient deterrent to avoid future harm.  It will also bring the Commonwealth penalty into line with penalties under the Queensland Transport Operations (Marine Pollution) Act 1995 (Qld) and the Marine Pollution Act 1987 (NSW) which will mean that the penalty for an offence is based on the seriousness of the offence and not the location of the offence.

 

Item 10           Paragraphs 9(3)(a) and (b)

 

43.       This item amends paragraphs 9(3)(a) and (b) of the Prevention of Pollution Act to include the charterer as well as the owner of a ship within coverage of the provision.  This amendment is consequential to the amendment to subsection 9(1B) above. 

 

Item 11           Subsection 10(1)

 

44.       This item repeals subsection 10(1) of the Prevention of Pollution Act.

 

Item 12           Subsection (10(2)

 

45.       This item repeals subsection 10(2) of the Prevention of Pollution Act.

 

Item 13           Subsection 10(3)

 

46.       This item amends subsection 10(3) of the Prevention of Pollution Act to extend the offence in the provision to the charterer of a ship as well as the owner and master.

 

Item 14           Subsection 10(3)

 

47.       This item substantially increases the maximum penalty attached to the strict liability offence provided for in the subsection of discharging oily residue from an Australian ship into the sea. 

 

48.       The existing fine of 500 penalty units is inadequate for the potential severity of the harm which the offence may cause and the new maximum fine of 20,000 penalty units is intended to ensure that a penalty can be imposed that is proportionate to the degree of harm as well as provide sufficient deterrent to avoid future harm.  It will also bring the Commonwealth penalty in line with penalties under the Queensland Transport Operations (Marine Pollution) Act 1995 (Qld) and the Marine Pollution Act 1987 (NSW).

 

 

 

Item 15           Paragraph 10(3)(b)

 

49.       This item amends paragraph 10(3)(b) consequential to the repeal of subsections 9(1) and 9(1B) above.

 

Item 16           Subsection 11(9)

 

50.       This item repeals subsection 11(9) consequential to the repeal of subsection 9(1) above.

 

Item 17           Subsection 28(4)

 

51.       This item adds section 10 to the list of offences the penalties for which are limited where a person is convicted in a court of summary jurisdiction,