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Maritime Legislation Amendment Bill 2012

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2010-2011-2012

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

MARITIME LEGISLATION AMENDMENT BILL 2012

 

 

 

 

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

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

the Honourable Anthony Albanese, MP)

 



 

MARITIME LEGISLATION AMENDMENT BILL 2012

 

OUTLINE

 

The primary purpose of the Maritime Legislation Amendment Bill 2012 (“the Bill”) is to amend the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (“PPS Act”) to implement amendments to the Annexes to the International Convention for the Prevention of Pollution from Ships (“MARPOL”) which were adopted by the Marine Environment Protection Committee (“MEPC”) of the International Maritime Organization (“IMO”) on 15 July 2011.

MARPOL is the key international convention addressing the problem of marine pollution from ships.  It has six technical annexes dealing respectively with oil, noxious liquid substances in bulk, harmful substances in packaged form, sewage, garbage and air pollution.

The amendments to MARPOL, which will enter into force on 1 January 2013, will:

·       impose new restrictions on the discharge of sewage from passenger ships in special areas of the sea which are particularly sensitive or vulnerable to pollution;

·       strengthen the regulations relating to the disposal by ships of garbage at sea; and

·       make mandatory the current voluntary Energy Efficiency Design Index for new ships of 400 gross tonnage (“GT”) and over that will be built on or after 1 January 2013 for international trade, and the current voluntary Ship Energy Efficiency Management Plan from that date for all ships of 400 GT and over that are engaged in international trade.

The Bill also:

·       clarifies the application of Federal jurisdiction in the parts of the territorial sea that lie between Australian baselines (which are generally at or near the shore) and 3 nautical miles out to sea from those baselines; and

·       repeals the Stevedoring Levy (Imposition) Act 1998 and the Stevedoring Levy (Collection) Act 1998 , which imposed the stevedoring levy and which are redundant since the stevedoring levy ceased in May 2006.

 





 

Abbreviations

 

EEDI:              Energy Efficiency Design Index

GT:                  Gross Tonnage

IEEC:              International Energy Efficiency Certificate

IAPP:              International Air Pollution Prevention

IMO:               International Maritime Organization

MARPOL:      International Convention for the Prevention of Pollution from Ships

MEPC:            Marine Environment Protection Committee

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

SEEMP:          Ship Energy Efficiency Management Plan

ECA                Emissions Control Area

VOC:              Volatile Organic Compound

 



The amendments relating to the discharge of sewage

(Part 1 of Schedule 1 of the Bill)

 

Overview of the amendments relating to the discharge of sewage

Annex IV of MARPOL contains regulations for the prevention of pollution by sewage from ships.

Annex IV has been amended by Resolution MEPC.200(62), which was adopted by IMO’s MEPC on 15 July 2011.  (The amendments made by that resolution will be referred to in this explanatory memorandum as “the Annex IV amendments”.)  The purpose of the Annex IV amendments is to impose stricter restrictions on the discharge of sewage from passenger ships in special areas.  The most important substantive change made by the Annex IV amendments is to require that all sewage discharged by passenger ships in special areas must be treated by a certified sewage treatment plant on the ship.

Part IIIB of the PPS Act (which contains sections 26BA to 26DA) imposes restrictions on the discharge of sewage by ships.  Part IIIB implements Australia’s commitments under Annex IV by imposing restrictions in relation to:

-    the discharge of sewage by ships of any nationality in the parts of the sea that are within Australia’s territorial jurisdiction; and

-    the discharge of sewage by Australian ships in any part of the sea.

Part 1 of Schedule 1 of the Bill amends Part IIIB of the PPS Act to give effect to the Annex IV amendments, thereby bringing Part IIIB into line with Annex IV as amended by the Annex IV amendments.

 

Description of Annex IV (as in force before the Annex IV amendments)

Annex IV contains regulations for the prevention of pollution by sewage from ships.

Annex IV applies to ships of 400 GT or more and ships of less than 400 GT that are certified to carry more than 15 persons.  (Hereafter, in this section of this explanatory memorandum which is headed The amendments relating to the discharge of sewage , a reference to a ship is a reference to a ship of a kind to which Annex IV applies.)

The provisions of Annex IV, as in force before the Annex IV amendments, can be summarised as follows:

·       Ships are required to be equipped with one of the following three types of systems:

-       a sewage treatment plant of a type approved by the Administration taking into account standards and test methods developed by the IMO;

-       a sewage comminuting and disinfecting system, which must be fitted with facilities to temporarily store sewage while the ship is within 3 nautical miles from the nearest land, and which is approved by the Administration;

-       a holding tank with the capacity to retain all sewage, which includes a means to visually indicate the amount of its contents, and which is to the satisfaction of the Administration.

·       “Administration” means the government of the State where the ship is registered or the State whose flag the ship is entitled to fly.  (Regulation 9 of Annex IV.)

·       State Parties to MARPOL are required to provide adequate reception facilities at their ports and terminals which can accept sewage discharged from ships.  (Regulation 12.)

·       Ships’ sewage discharge pipelines and reception facilities’ sewage reception pipelines must be fitted with specified standard connections.  (Regulation 10.)

·       Ships are required to be subject to initial and periodic surveys to verify compliance with the requirements of Annex IV, and if the survey outcome is satisfactory they are to be issued with an International Sewage Pollution Prevention Certificate by the Administration or a person or organisation duly authorised by the Administration.  (Regulations 4 to 8.)

·       A form of International Sewage Pollution Prevention Certificate is specified for the purposes of Regulations 4 to 8.  (Appendix to Annex IV.)

·       Ships are prohibited from discharging sewage into the sea except in the following circumstances:

-       Sewage (other than sewage treated by the ship’s sewage treatment plant in the manner described below) may only be discharged in the part of the sea between 3 nautical miles and 12 nautical miles from the nearest land if the sewage is comminuted and disinfected using a system approved by the Administration in accordance with Regulation 9.  Further, if the sewage is discharged from holding tanks, it must be discharged, at a moderate rate approved by the Administration based on standards developed by the IMO, when the ship is proceeding at not less than 4 knots.

-       Sewage (other than sewage treated by the ship’s sewage treatment plant in the manner described below) may be discharged more than 12 nautical miles from the nearest land without being comminuted and disinfected in the manner just indicated.  However, if the sewage is discharged from holding tanks, it must be discharged, at a moderate rate approved by the Administration based on standards developed by the IMO, when the ship is proceeding at not less than 4 knots.

-       Sewage may be discharged anywhere in the sea if the ship has in operation a sewage treatment plant that has been approved by the Administration as meeting the relevant effluent standards in Regulation 9, the test results of the plant are set out in the ship’s International Sewage Pollution Prevention Certificate, and the effluent does not produce visible floating solids or cause discolouration of the water.

(Paragraph 1 of Regulation 11.)

·       The prohibition in paragraph 1 of Regulation 11 does not apply to ships that discharge sewage in waters under the jurisdiction of a State in accordance with less stringent requirements imposed by that State.  (Paragraph 2 of Regulation 11.)

·       The prohibition in paragraph 1 of Regulation 11 does not apply where the discharge of sewage:

-       is necessary for safety reasons; or

-       results from damage to the ship or its equipment, if all reasonable precautions were taken both before and after the damage to prevent or minimise the discharge.

(Regulation 3.)

·       In accordance with the port State control procedures in Article 5 of MARPOL, ships in a port or terminal of a State Party to MARPOL are subject to:

-       inspection by authorised officers of the State Party if there are clear grounds for believing that the master and crew are not familiar with essential procedures relating to prevention of pollution by sewage; and

-       detention by the State Party until the requirements of Annex IV are complied with.

(Regulation 13.)

Description of the Annex IV amendments

The Annex IV amendments introduce stricter rules in relation to the discharge of sewage by passenger ships in special areas.  The Annex IV amendments make the following substantive changes to Annex IV:

·       “Passenger ship” is defined as a ship that carries more than 12 passengers.  (New paragraph 7 ter of Regulation 1.)

·       “Special area” is defined as a sea area where special mandatory methods for the prevention of pollution by sewage are required for recognised technical reasons in relation to the sea area’s oceanographical and ecological condition and the character of its traffic.  The Annex IV amendments designate the Baltic Sea as a special area.  Any other sea area can only be a special area if it is so designated by the IMO in accordance with its criteria and procedures.  (New paragraph 5 bis of Regulation 1.)

·       The criteria and procedures for designation of a sea area as a special area are set out in Resolution A.927(22) of the IMO’s Assembly, adopted on 29 November 2001.  (The Assembly comprises representatives of all the members of the IMO and is IMO’s supreme governing body.)  Designation of a sea area will require an amendment of MARPOL pursuant to Article 16 of MARPOL.  By virtue of Resolution A.927(22), proposals to designate a sea area as a special area will first have to be considered and adopted by the MEPC.

·       Regulation 9 is amended by adding a new paragraph 2, which imposes a stricter equipment requirement for passenger ships.  The new paragraph 2 requires passenger ships to be equipped with either:

-       a sewage treatment plant of a type approved by the Administration taking into account standards and test methods developed by the IMO; or

-       a holding tank with a capacity for the retention of all sewage, which includes a means to visually indicate the amount of its contents, which is to the satisfaction of the Administration.

·       The former Regulation 11 is replaced with a new Regulation 11:

-       Paragraph 1 of the new Regulation 11 replicates the prohibition on the discharge of sewage which is contained in paragraph 1 of the former Regulation 11, subject to two changes:

§    where the sewage has been treated by a sewage treatment plant certified by the Administration as meeting the relevant operational requirements in Regulation 9, the requirement for the test results of the plant to be set out in the ship’s International Sewage Pollution Prevention Certificate has been omitted; and

§    paragraph 1 of the new Regulation 11 does not apply in the circumstances covered by paragraph 3 of the new Regulation 11 (that is, it does not apply to the discharge of sewage into the sea by passenger ships in special areas).

-       Paragraph 2 of the new Regulation 11 provides that the prohibition in paragraph 1 does not apply to ships that discharge sewage in waters under the jurisdiction of a State in accordance with less stringent requirements imposed by that State.  (No such exception applies in relation to the prohibition in paragraph 3 of the new Regulation 11.)

-       Paragraph 3 of the new Regulation 11 prohibits passenger ships from discharging sewage in a special area unless the ship has in operation a sewage treatment plant that has been certified by the Administration as meeting the relevant operational requirements in Regulation 9, and the effluent does not produce visible floating solids or cause discolouration of the water.

-       Paragraph 3 of the new Regulation 11 comes into force at the following times:

§    for new passenger ships, on 1 January 2016; and

§    for existing passenger ships, on 1 January 2018;

subject to the operation of the new Regulation 12bis  (described below) which may have the effect of delaying the application of that paragraph to particular special areas.

·       A new Regulation 12 bis is added after Regulation 12.  The new Regulation 12 bis requires each State Party to MARPOL whose coastline borders a special area:

-       to ensure that facilities for reception of sewage are provided in ports and terminals in the special area that are used by passenger ships, that the facilities are adequate to meet the needs of those ships, and that the facilities are operated so as not to cause undue delay to those ships; and

-       to notify the IMO of the measures taken to ensure that such facilities are provided, so as to enable the IMO to establish a date from which the prohibition in paragraph 3 of the new Regulation 11 will take effect in that particular special area.

·       The new Regulation 12 bis provides that the IMO will establish the date on which the prohibition in paragraph 3 of the new Regulation 11 will commence to apply in particular special areas, and will give the State Parties to MARPOL at least 12 months advance notice of that date.

·       A “new passenger ship” is defined (in new paragraph 7 ter   of Article 1) as a passenger ship:

-       for which the building contract is placed or, in the absence of a building contract, the keel of which is laid, on or after 1 January 2016; or

-       which is delivered on or after 1 January 2018.

An “existing passenger ship” is defined (also in new paragraph 7 ter of Article 1) as a passenger ship which is not a new passenger ship.

·       The form of International Sewage Pollution Prevention Certificate in the Appendix to Annex IV is amended to reflect the substantive amendments made to Annex IV.

 

Description of the amendments made by items 1 to 10 in Part 1 of Schedule 1 of the Bill

Items 1 to 10 in Part 1 of Schedule 1 of the Bill amend Part IIIB of the PPS Act to implement the Annex IV amendments.  The amendments made by those items are described in the Notes on Clauses which commence at page 16 of this explanatory memorandum.

 

 



The amendments relating to the disposal of garbage

(Part 2 of Schedule 1 of the Bill)

 

Overview of the amendments relating to the discharge of garbage

Annex V of MARPOL contains regulations for the prevention of pollution of the sea by garbage from ships.

Resolution A/RES/60/30 of the United Nations General Assembly (March 2006) invited IMO to review MARPOL Annex V to assess its effectiveness in addressing sea-based sources of marine debris.  As a consequence, the 54th session of MEPC (March 2006) added this item to its work program and the work continued at a number of sessions.

The 62nd session of MEPC (July 2011) completed the work by adopting amendments to MARPOL Annex V under cover of resolution MEPC.201(62).  (The amendments made by that resolution will be referred to in this explanatory memorandum as “the Annex V amendments”.)  Annex V has been revised to upgrade current international regulations for the prevention of pollution by garbage from ships.

Part IIIC of the PPS Act (which contains sections 26F to 26FE) imposes restrictions on the discharge of garbage by ships.  Part IIIC implements Australia’s commitments under Annex V by imposing restrictions in relation to the discharge of garbage by ships of any nationality in the parts of the sea that are within Australia’s territorial jurisdiction and in relation to the discharge of garbage by Australian ships in all parts of the sea which reflect the restrictions contained in Annex V.

Part 2 of Schedule 1 of the Bill amends Part IIIC of the PPS Act to give effect to the Annex V amendments, thereby bringing Part IIIC into line with Annex V as amended by the Annex V amendments.

 

Description of Annex V (as in force before the Annex V amendments)

Annex V contains nine regulations and an appendix.

·       Under Annex V of the Convention, garbage includes all kinds of food, domestic and operational waste, excluding fresh fish, generated during the normal operation of the vessel and liable to be disposed of continuously or periodically. (Regulation 1.)

·       Annex V applies to all ships, unless provided otherwise in a provision of this annex. (Regulation 2.)

·       Annex V totally prohibits the disposal of plastics anywhere into the sea.  Other garbage is to be discharged as far as possible from the nearest land but in any event dunnage and other lining and packing material are to be discharged at least 25 nautical miles away from the nearest land.  Food wastes and other garbage are to be disposed of at least 12 miles away from the nearest land except garbage that has been passed through a comminuter or grinder such that it can pass through a screen with openings no greater than 25 mm.  The garbage of this later type can be disposed of when the ship is more than 3 nautical away from the nearest land. (Regulation 3.)

·       Disposal of all garbage, except food wastes, from all offshore fixed and floating platforms engaged in exploration and exploitation of resources, and ships alongside or within 500 meters of these platforms is prohibited.  Comminuted or ground food wastes that can pass through a screen with 25 mm openings can be disposed of from a platform located more than twelve nautical miles from the nearest land.  Comminuted or ground food wastes that can pass through a screen with 25 mm openings may also be discharged from a ship alongside or within 500 meter of a platform located more than twelve nautical miles from the nearest land.

·       Regulation 5 sets up eight special areas which have particular problems because of heavy maritime traffic or low water exchange caused by the land-locked nature of the sea concerned and prescribes the rules regarding disposal of garbage in these special areas:

-       the special areas established under Annex V are (Regulation 5.1):

§    the Mediterranean Sea;

§    the Baltic Sea Area;

§    the Black Sea area;

§    the Red Sea Area;

§    the Gulfs area;

§    the North Sea;

§    the Wider Caribbean Region; and

§    the Antarctic Area.

-       disposal of all garbage except food wastes is prohibited in any of the special areas.  Food wastes to be disposed of as far away from the nearest land as possible but in any event at least twelve nautical miles from the nearest land;

-       in the Wider Caribbean Region ground or comminuted food wastes that can pass through a screen with 25mm openings can be disposed of when more than three nautical miles away from the nearest land; (Regulation 5.2.)

-       if this garbage is mixed with other type, the higher requirements apply; (Regulation 5.3.) 

-       Regulation 5.4 sets the obligation on each Party to the Convention that has a coastline bordering a special area, to provide reception facilities in all ports in the area; and

-       Regulation 5.5 sets the requirements of reception facilities in relation to ports from which ships depart to or arrive from the Antarctic Area.  Ships entering the Antarctic Area are also required to have adequate capacity for retention of garbage.

·       The regulations will not apply when disposal of garbage is necessitated by measures for safety and security of the ship and the crew, when disposal results from damage to ship and equipment, or for accidental loss of synthetic fishing nets.  (Regulation 6).

·       Each Party to the Convention is to provide adequate reception facilities for garbage at ports and terminals. (Regulation 7.)

·       A ship may be inspected when in a port of another Party where there are grounds to believe that the crew are not familiar with essential shipboard procedures related to the prevention of pollution by garbage and a ship so found may be detained until the situation is brought under control. (Regulation 8.) 

·       Every ship of 400 GT and above and every ship certified to carry more than 15 persons, are to carry on board a garbage management plan made up in accordance with IMO guidelines.  The plan will designate the person in charge and are to be written in the working language of the crew.  Ships that are 12 metres or more in length are required to display placards that notify the crew of the disposal requirements.  The placards are to be written in the working language of the crew and also in English or French or Spanish.  The regulation prescribes the way the garbage record book is to be maintained. (Regulation 9.)

·       The appendix to Annex V provides the form of a garbage record book.

 

Description of the Annex V amendments

The revised Annex V consists of ten regulations, one more than the current version.  Throughout the revised annex, the term “discharge” is used instead of “disposal” in relation to garbage.

·       Regulation 1 is much larger covering definitions of many new terms such as cargo residue, en route, operational waste etc. 

·       Annex V applies to all ships as in the current Annex V. (Regulation 2.)

·       There is a general prohibition to discharge any garbage at sea subject to regulations 4, 5, 6 and 7 of the annex.  (Regulation 3.)

·       Discharge of plastic is prohibited including, but not limited to, synthetic ropes, synthetic fishing nets, plastic garbage bags and incinerator ash from plastic products (Regulation 3).

·       Regulation 4 sets the restrictions for discharge of garbage outside a special area.  The discharges permitted in certain circumstances include  water used for washing deck and external surfaces containing cleaning agents or additives which are not harmful to the marine environment, cargo residues and animal carcasses.  These are new additions in the regulations.  Food wastes may also be discharged outside special areas in certain circumstances.

·       There is a new requirement that a ship must be en route when discharging garbage at sea.

·       The requirements in relation to offshore platforms and ships alongside or near a platform remain unchanged but these are now prescribed in Regulation 5.

·       There are substantial changes in the regulation relating to discharge of garbage in special areas.  The provisions now contain reference to cargo residues, cleaning agents and additives contained in the hold washing water, and permits discharge of these in a special area so long they are not harmful to the marine environment, and only when both the port of loading and the port of discharging are within a special area, and the ship will not transit outside the special area. (Regulation 6.)

·       The exception provision now has an additional exception related to application of the regulations 3, 4, 5 and 6.  The discharge of fishing gear from a ship for the protection of the marine environment or for the safety of that ship or crew is now excepted. (Regulation 7.)

·       Regulations 8, 9 and 10 cover provisions for reception facilities, port state control operations and garbage management and placards.  The changes are mainly in Regulation 10 in relation to garbage management plan and placards: 

-       all ships of 100 GT and over, and those carrying 15 persons or more, and fixed and floating platforms are required to carry on board a garbage management plan written in the working language of the crew.  The garbage management plan shall designate the person or persons in charge of carrying out the plan; 

-       ships of 400 GT and above, and ships that are certified to carry more than 15 persons engaged in voyages to a port of another Party, and all fixed and floating platforms are required to maintain a garbage record book as prescribed in the appendix to the Annex;

-       the requirements for placards and garbage management plans are extended to fixed and floating platforms engaged in exploration and exploitation of the sea-bed; and  

-       the accidental loss or discharge of fishing gear which poses a significant threat to the marine environment or navigation is required to be reported to the ship’s flag State, and, where the loss or discharge occurs within waters subject to the jurisdiction of a coastal State, also to that Coastal State. (Regulation 10.6.)

 

Description of the amendments made by items 11 to 61 in Part 2 of Schedule 1 of the Bill

This Part of the Bill amends the PPS Act to implement amendments to Annex V of MARPOL which contains Regulations for the prevention of pollution by garbage from ships. 

 

Items 11 to 61 in Part 2 of Schedule 1 of the Bill amend Part IIIC of the PPS Act to implement the Annex V amendments.  There are additional editorial amendments to align the text of the PPS Act with that of Annex V.  The amendments made by those items are described in the Notes on Clauses which commence at page  22 of this explanatory memorandum.

 

 

The amendments relating to energy efficiency to prevent air pollution

(Part 3 of Schedule 1 of the Bill)

Annex VI of MARPOL contains regulations for the prevention of air pollution by ships.

The IMO Marine Environment Protection Committee (MEPC) under cover of resolution MEPC.203(62) on 15 July 2011 adopted amendments to Annex VI of MARPOL to introduce mandatory carbon dioxide (CO2) emissions standards for ships engaged in international trade.

 

Part IIID of the PPS Act contains various offence provisions related to non compliance with requirements prescribed by MARPOL Annex VI in relation to emissions from ships.  The PPS Act is amended to include a new provision requiring ships to maintain on board a ship an energy efficiency management plan of an approved form.

 

Description of Annex VI (as in force before the Annex VI amendments)

MARPOL Annex VI contains eighteen regulations in three chapters, and seven appendices.  

Chapter One contains the general provisions in Regulation 1 to 4. 

·       The annex applies in general to all ships, subject to provisions in specific regulations. (Regulation 1.)

·       There are specific exceptions when suffering damage to ship and equipment, saving life at sea and when securing safety of ship. (Regulation 3.)

·       Administrations may allow alternative equivalent equipment, material, fitting, apparatus on a ship that is at least as effective in terms of emissions reductions as that required by Annex VI (Regulation 4.)

Chapter Two, containing Regulations 5 to 11, set out the survey, certification and control provisions.

·       All ships over 400 GT and over and all fixed and floating platforms are to be subject to survey in accordance with the regulations. (Regulation 5.) 

·       All ships of 400 GT and over, and all fixed and floating platforms engaged in international voyages are to be provided with an International Air Pollution Prevention (IAPP) Certificate after the initial or renewal survey. (Regulation 6.)

·       The IAPP certificate is to be in prescribed form. (Regulation 8.)

·       The IAPP certificate shall not be valid for a period exceeding 5 years. (Regulation 9.) 

·       As in other annexes, there is a port State control provision to inspect and detain the ship of another Party when there are grounds to believe that the master and crew are not familiar with the procedures relating to the prevention of air pollution from ships. (Regulation 10.) 

·       Port State officials can inspect vessels to verify any violation of the provisions of Annex VI.  Parties are to co-operate to detect violation and to enforce the provisions. (Regulation 11.)

Chapter 3 of Annex VI, containing Regulations 12 to 18, sets out the requirements for control of emissions from ships.

·       It is prohibited to deliberately emit ozone depleting substances, which include halons and chlorofluorocarbons (CFCs).  New installations containing ozone-depleting substances are prohibited on all ships but new installations containing hydro-chlorofluorocarbons (HCFCs) are permitted until 1 January 2020. (Regulation 12.)

·       There are limits on emissions of nitrogen oxides (NOx) from diesel engines with a power output of more than 130 kW.  The standards are more stringent for ships that are built after 1 January 2011.  The requirements for ships in an emission control area (ECA), designated by IMO, are more stringent for ships that will be constructed after 1 January 2016. (Regulation 13.) 

·       The maximum allowable global sulphur limit for marine fuels is 4.5% m/m (mass percent) Alternatively, ships must fit an exhaust gas cleaning system or use any other technological method to limit SOx emissions.  The maximum allowable sulphur limit in marine fuels burned in an ECA is 1.5% m/m.  (Regulation 14.)

·       There are rules regarding regulating emissions of volatile organic compounds (VOC) from a tanker in a port.  Tankers in such a regulated port are to be provided with a vapour emission collection system.   These tankers are also required to have on board and implement a VOC management plan approved by the administration.  (Regulation 15.)

·       It is also prohibited to incinerate onboard a ship certain products, such as contaminated packaging materials and polychlorinated biphenyls (PCBs). (Regulation 16.)

·       The Parties are to ensure that its repair ports have reception facilities for ozone depleting substances and related equipment, and residues from exhaust gas systems. (Regulation 17.)

·       A Party is required to take reasonable steps to make compliant fuel oil available in its ports.  The fuel oil for combustion is required to meet specified quality standards set out in the regulations.  There are requirements related to form and content of bunker delivery notes which are to be retained for a period of three years.  The bunker delivery notes are to be accompanied by a representative sample which also needs to be retained for a period of one year. (Regulation 18.)

 

Description of the Annex VI amendments

The proposed amendments include a new Chapter 4 in Annex VI with Regulations 19, 20, 21, 22 and 23 and a new appendix VIII to introduce mandatory CO 2 emissions standards, termed a “required Energy Efficiency Design Index (EEDI)”, for ships of 400 GT and above that are new, as well for certain ships that have undergone a major conversion.  All existing international ships would also require a Ship Energy Efficiency Management Plan (SEEMP).  The proposed amendments also include consequential changes in Chapters 1 and 2 of Annex VI to clarify aspects of application of the new regulations, and survey and certification requirements of ships engaged in international trade.

·       The regulations on energy efficiency for ships would apply to all ships of 400 GT and above excluding the ships solely engaged in voyages within waters subject to the jurisdiction of the flag state.  (Regulation 19.)

·       Regulations 20 and 21 provide that the EEDI requirements would apply only to new ships and ships that have undergone a major conversion (Applicable Ships).  

·       An “attained EEDI” shall be calculated for each Applicable Ship in accordance with IMO guidelines.  The attained EEDI is specific to each ship and indicates the estimated energy efficiency performance of that ship.  (Regulation 20.)

·       The attained EEDI shall be no greater than the “required EEDI”, calculated in accordance with that Regulation.  The required EEDI represents the energy efficiency target each class of Applicable Ship is required to meet.  The EEDI requirement would apply to new bulk carriers, gas carriers, tankers, container ships, general cargo vessels, refrigerated ships and combination carriers.  Other ship types, such as passenger vessels and vehicle carriers, are not included as further analysis of data on these vessels is currently underway.  The required EEDI would be reduced over three phases - 2015, 2020 and 2025 - with the amount of reduction varying according to ship type. (Regulation 21.)

·       Each international ship, new and existing, of 400 GT and above, would be required to keep on board a Ship Energy Efficiency Management Plan (SEEMP), developed in accordance with IMO guidelines.  The SEEMP establishes a mechanism that requires operators to improve the energy efficiency of ships during operations. (Regulation 22.)

 

In addition to the new regulations, Annex VI amendments amend several regulations in Chapter 1 and 2 of this Annex:

·       Regulation 1 is amended to include the new regulations in the application provision.

·       Regulation 2 is also amended to add definitions of new terms used in the new regulations.

·       Regulation 5 is amended to include survey, certification and control provisions related to the new regulations. Particularly Regulation 5(4) provides that each Applicable Ship of any of the prescribed type built for international trade will need to be surveyed by the Administration of the flag State or a recognised organisation delegated by the Administration to determine that the attained EEDI is in accordance with Regulation 21. 

·       Regulation 6 is amended to include the requirement to issue a ship of 400 GT and above after a survey and before engaging in an international voyage with an International Energy Efficiency Certificate (IEEC).  Regulation 7 is also amended to include reference to survey and certification when issued by another Party.

·       The form of the IEEC has been prescribed by amending Regulation 8 with reference to the new appendix VIII to the annex. 

·       Regulation 9 is amended to provide that that an IEEC shall be valid throughout the life of the ship except when it has gone a major conversion or when the ship changes its flag when a new certificate has to be issued by the Administration.

·       Regulation 10 is amended to provide that any port State control inspection shall be limited to verifying that there is an IEEC on board.

 



Description of the amendments made by items 62 and 63 in Part 3 of Schedule 1 of the Bill

Item 62 in Part 3 of Schedule 1 of the Bill amends Part IIID of the PPS Act to implement regulation 22 of Annex VI amendment.  Item 63 of the Bill is the application provision.

As the Navigation Act 1912 gives effect to ship survey and construction requirements of MARPOL, new EEDI regulations will be implemented through the Navigation Act 1912 by amending that Act which is being progressed separately.  Marine Orders Part 97 will be amended to prescribe matters and technical requirements for the purposes of the new regulations. 

 

 

When the amendments to Annexes IV, V and VI of MARPOL will come into force

In accordance with the amendment procedure in Article 16 of MARPOL, the amendments to Annexes IV, V and VI will be deemed to have been accepted on 1 July 2012 unless, prior to that date, not less than one-third of the State Parties to MARPOL, or State Parties to MARPOL whose combined fleets constitute not less than 50 per cent of the GT of the world’s merchant fleet, have communicated to the IMO their objection to the amendments.  If accepted (in the manner just indicated), the amendments will enter into force on 1 January 2013.

 

The amendments clarifying Federal jurisdiction in the territorial sea and providing for rollback of federal jurisdiction

(Part 4 of Schedule 1 of the Bill)

The PPS Act contains roll back provisions throughout the Act.  The roll back provisions apply in relation to offences under the Act within the sea area under State/Territory jurisdiction.  The purpose is to prevent Commonwealth legislation prevailing over State/Territory legislation where such legislation applies to that particular sea area.  An example of a roll back provision is subparagraph 9(1B)(b)(i) of the PPS Act.

 

The Bill contains several amendments to clarify the application of the roll back provision in Australia’s territorial sea.

 

Description of the amendments made by items 64 to 101 in Part 4 of Schedule 1 of the Bill

Items 64 to 101 in Part 4 of Schedule 1 of the Bill amend various provisions of the PPS Act to clarify the application of the roll back provision.  

The current text of the PPS provides that the roll back provisions apply if an incident (such as discharge of oil) occurs in “the sea near” a State, the Jervis Bay Territory or an external Territory.  Subsections 3(1A), (1AA) and (1B) set out the meaning of “the sea near” and provide that the “sea near a State or Territory” includes the territorial sea. 

As currently drafted, the PPS can be interpreted to mean that State/Territory law could cause roll back of the provisions of the Act for the entire territorial sea of Australia adjacent to the State or Territory.  This is contrary to the current division of jurisdiction between the Commonwealth and States/Territories whereby State/Territory jurisdiction is limited to the first three nautical miles of the territorial sea starting from the baseline, with Commonwealth jurisdiction applying to the outer sea area from three to twelve miles. 

To clarify the operation of the roll back provisions, the legislation will now distinguish between two areas of the territorial sea by amending the PPS Act by items 64, 65 and 66 of this Bill: 

·       the area from three to twelve nautical miles of the territorial sea is termed the “outer territorial sea”.  This is the area for which States/Territories will have no power to legislate in relation to an occurrence; and

·       the landward side of the outer territorial sea that covers the sea area from the territorial sea baselines to first three nautical miles out to sea is called the “the sea near a State, the sea near the Jervis Bay Territory, and the sea near an external Territory”.  This is area over which States and Territory will be able to exercise jurisdiction if there are equivalent laws for the area.  This area will come under Commonwealth jurisdiction in other cases.

The items in Part 4 of the Bill amends the roll back provisions in the PPS Act to create this division in the territorial sea in relation to various offence provisions for clarity with regard to the application of the roll-back provisions.

 

 

Other amendments

(Part 5 of Schedule 1 of the Bill)

Part 5 of Schedule 1 of the Bill amends various provisions of the PPS Act to further clarify the application of the roll back provisions.

 

In addition, Part 5 of Schedule 1 contains several amendments which replace the notes on “evidential burden” in various sections of the PPS Act with the new standard note which is now used in legislation.

 

An evidential burden requires a person to provide evidence of an asserted fact which is capable of being accepted by the court.  (An evidential burden is less than the burden of proof, which requires a fact to be proved .)  A number of provisions in the PPS Act provide defences to strict liability offences (for example, circumstances that constitute a reasonable excuse).  A defendant who seeks to rely on one of these defences has an evidential burden to provide evidence of the facts which constitute the defence.  This is because the defendant is the person most likely to have relevant knowledge of those facts.  Once the defendant adduces evidence of those facts, it is up to the court to decide whether it is satisfied, to the relevant standard of proof, about the existence of those facts, and hence about the existence of the defence.  Notwithstanding that the defendant has an evidential burden, the ultimate legal burden of proof of the contravention remains with the prosecution.

 

 

The repeal of the stevedoring levy legislation

(Schedule 2 of the Bill)

Schedule 2 items repeal the Stevedoring Levy (Imposition) Act 1998 and the Stevedoring Levy (Collection) Act 1998 which are redundant since the stevedoring levy ceased in May 2006.

 



 

FINANCIAL IMPACT STATEMENT

 

The amendments to Annex IV (sewage) will not result in any increased costs or savings to the Australian Government or to the States and Territories.

The revised Annex V (Garbage) is expected to have a minimal cost impact on Australia.   Many Australian shipowners and operators already follow a policy of not discharging waste at sea, other than food waste in some circumstances, which is fully consistent with the revised Annex V.    While the expansion of the requirements for placards and garbage management plans to fixed and floating platforms will have an administrative impact, this impact is expected to be negligible.  Australia already has mandatory requirements for livestock management and shipment, including requirements for the disposal of animal carcasses.  It is expected the revised Annex V will result in an increased demand for waste reception facilities in ports.  As waste removal services for ships in Australian ports are almost exclusively provided by private waste removal contractors, it is anticipated that any increase in demand will be met through commercial arrangements.

The Annex VI amendments would incur little or no cost on Australia as the EEDI regulations would only apply to prescribed ships that will be built after 1 January 2013 for international trade.  These regulations would not apply to Australian ships that are currently in operation.  Existing Australian international ships that are over 400 GT would be required to carry on board a SEEMP, an operational document, which can be achieved at a negligible cost. 

 



 

Statement of Compatibility with Human Rights

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Human rights implications

The Bill engages the following human right:

Presumption of innocence

Section 26FEW of the Bill requires Australian ships to carry a SEEMP.  The master and the owner of the ship each commit an offence of strict liability if the ship does not have on board a ship energy efficiency management plan. 

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 a ship energy efficiency management plan.  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 an offence for a breach of proposed subsection 26FEW(2) be a strict liability offence. The persons who are strictly liable (ie the shipowner and the master) have a responsibility to be aware of the requirement for the ship to carry a SEEMP and to ensure that the ship in fact carries the SEEMP, and therefore if the SEEMP is not carried by the ship they should be liable without any need to prove intention or recklessness on their part with respect to the contravention of that requirement.  Further, sometimes it may be difficult to prove that they had the requisite mental element (ie intention or recklessness), hence a requirement to prove a mental element would make s 26FEW harder to enforce.

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 “ A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers” (September 2011) developed by the Criminal Justice Division of the Attorney-General’s Department.

There are also numerous provisions throughout the Bill which provide defences for existing strict liability provisions and which have a reverse burden of proof (placing the burden of proof on a defendant).  These provisions provide defences for existing strict liability provisions.  For example item 8 of this bill inserts a new subsection 26D(9) to provide a defence for the discharge of sewage from a ship if a number of conditions are met; item 30 inserts new subsections 26F(5A) and 26F(5B).  Subsection 26F(5A) provides an exception for the discharge of fishing gear from a ship if the discharge is for the safety of the marine environment or for the safety of the ship or its crew; and subsection 26F(5B) provides an exception of food wastes from a ship if the retention of those wastes on board the ship presents an imminent health risk to the persons on board the ship.  A defendant who wishes to rely on any of these exceptions in the Bill bears an evidential burden in relation to that matter.



 

Conclusion

The Bill is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate to the objectives of reducing pollution to the marine environment from ships.

 

Minister for Infrastructure and Transport, the Hon Anthony Albanese MP



 

NOTES ON CLAUSES

 

Clause 1 - Short title

 

Clause 1 specifies the short title of the Bill (when enacted).

 

Clause 2 - Commencement

 

Clause 2 provides that the Bill will commence on the day after it receives Royal Assent, except Parts 1 to 3 of Schedule 1, which will commence on 1 January 2013.

 

The reason why Parts 1 to 3 of Schedule 1 will commence on 1 January 2013 is that the amendments to MARPOL which those Parts implement will take effect on 1 January 2013 (provided that they are accepted pursuant to the tacit acceptance procedure in MARPOL).

 

Clause 3 - Schedules

 

Clause 3 provides that each Act that is specified in a Schedule to the Bill is amended or repealed as set out in that Schedule and that any other item in a Schedule has effect according to its terms.

 

The Bill has two Schedules.  Schedule 1 contains amendments to the PPS Act.  Schedule 2 repeals the Stevedoring Levy (Collection) Act 1998 and the Stevedoring Levy (Imposition) Act 1998 .



Schedule 1 - Protection of the sea amendments

 

Amendments to the PPS Act

 

Part 1 - Prevention of pollution by sewage

 

Item 1                         Subparagraph 26D(1)(c)(i)

Section 26D of the PPS Act applies the conditional prohibition on the discharge of sewage into the sea from ships which is contained in Regulation 11 of Annex IV of MARPOL, which is qualified by Regulation 3, to all ships in the parts of the sea that are within Australia’s territorial jurisdiction and to Australian ships, only, in the parts of the sea that are outside Australia’s territorial jurisdiction.  It does this by creating two offences:  a fault-based offence in subsection 26D(1) and a strict liability offence in subsection 26D(3).

Subsection 26D(1) currently provides that a person who recklessly or negligently engages in conduct that causes a discharge of sewage from a ship into the sea in any of the circumstances enumerated in subparagraphs 26D(1)(c)(i), (ii) and (iii) commits an offence punishable by a fine not exceeding 2,000 penalty units.

The three sets of circumstances enumerated in subparagraphs 26D(1)(c)(i), (ii) and (iii) are:

(i)      the discharge occurs near a State, Jervis Bay Territory or an external Territory, and the State or Territory has no law giving effect to Regulation 3 and paragraph 1 of Regulation 11;

(ii)     the discharge occurs in the exclusive economic zone;

(iii)    the discharge occurs beyond the exclusive economic zone and the ship is an Australian ship.

 

Item 1 modifies subparagraph 26D(1)(c)(i) so that it only applies where the discharge occurs when the ship is not in a special area.

 

(It should be noted that item 89 of the Bill adds a new subparagraph 26D(1)(c)(ib), which is a roll-back provision.)

 

Item 2                         After subparagraph 26D(1)(c)

Item 2 adds proposed new subparagraph 26D(1)(c)(ia), which specifies a fourth set of circumstances in which conduct of recklessly or negligently causing a discharge of sewage from a ship constitutes an offence under subsection 26D(1), namely where:

(ia)    the discharge occurs when the ship is not in a special area, the discharge occurs near a State, Jervis Bay Territory or an external Territory, and the State or Territory has no law giving effect to Regulation 3 and paragraph 3 of Regulation 11.

Under proposed new subsections 3(1A), (1B) and (1C) (which are added by item 66) :

-    a reference to the sea near a State means the parts of the territorial sea that are within 3 nautical miles of the baseline of the territorial sea adjacent to the State, and the waters of the sea on the landward side of that baseline but not within the limits of the State;

-    a reference to the sea near Jervis Bay Territory means the sea in that Territory;

-    a reference to the sea near an external Territory means the parts of the territorial sea that are within 3 nautical miles of the baseline of the territorial sea adjacent to the Territory, and the waters of the sea on the landward side of that baseline.

The effect of the amendments made by items 1 and 2 is to align subsection 26D(1) with Annex IV of MARPOL as amended by Resolution MEPC.200(62), specifically so as to implement paragraph 3 of the new Regulation 11 which imposes stricter restrictions in relation to the discharge of sewage by passenger ships in special areas.

 

Item 3                          Subparagraph 26D(3)(b)(i)

Subsection 26D(3) currently provides that, subject to subsections 26D(5) to (9), if sewage is discharged from a ship into the sea in any of the circumstances enumerated in subparagraphs 26D(3)(b)(i), (ii) and (iii), the master and the owner of the ship each commit an offence punishable by a fine not exceeding 500 penalty units.

Subsection 26D(4) provides that the offence under subsection 26D(3) is an offence of strict liability.

The three sets of circumstances enumerated in subparagraphs 26D(3)(b)(i), (ii) and (iii) are identical to those in current subparagraphs 26D(1)(c)(i), (ii) and (iii).

Item 3 modifies subparagraph 26D(3)(b)(i) so that it only applies where the discharge occurs when the ship is not in a special area.

 

Item 4                          After subparagraph 26D(3)(b)(i)

Item 4 adds proposed new subparagraph 26D(3)(b)(ia), which specifies a fourth set of circumstances in which a discharge of sewage from a ship constitutes a strict liability offence under subsection 26D(3).  That set of circumstances is identical to the set of circumstances specified in proposed new subparagraph 26D(1)(c)(ia).

The effect of the amendments made by items 3 and 4 is to align subsection 26D(3) with Annex IV of MARPOL as amended by Resolution MEPC.200(62), specifically so as to implement paragraph 3 of the new Regulation 11.

 

(It should be noted that item 90 of the Bill adds a new subparagraph 26D(3)(b)(ib), which is a roll-back provision.)

 

Item 5                           At the end of subsection 26D(6) (before the note)

Subsection 26D(6) currently provides that subsection 26D(3) does not apply to a discharge of sewage from a ship if the conditions in paragraphs 26D(6)(a), (b) and (c) are satisfied.  Those conditions are materially similar to the conditions in paragraph 1 of the former Regulation 11 which permit the discharge of comminuted and disinfected sewage outside the 3 nautical mile limit, and the discharge of sewage that has not been comminuted and disinfected outside the 12 nautical mile limit, provided in each case that if the sewage is discharged from a holding tank then it must be discharged at a moderate rate while the ship is proceeding at not less than 4 knots.  (Those conditions in paragraph 1 of the former Regulation 1 are in turn materially similar to the corresponding conditions in paragraph 1 of the new Regulation 11.)

Item 5 adds proposed new paragraph 26D(6)(d), which contains an additional condition relating to the circumstances in which the sewage is discharged.  That proposed new paragraph provides that if the ship is a prescribed passenger ship and the discharge occurs in a special area, then the discharge has to have occurred before a prescribed day.

A “prescribed passenger ship” is a kind of passenger ship that is prescribed in the regulations (“PPS Regulations”) which are made under section 33 of the PPS Act.  It is intended that a prescribed passenger ship will be a passenger ship as defined in new paragraph 7 ter of Regulation 1.

A “prescribed day” is a day that is prescribed in the PPS Regulations.  It is intended that there will be two prescribed days, respectively applicable to new passenger ships and existing passenger ships:

-    The prescribed day for new passenger ships will be the day on which paragraph 3 of the new Regulation 11 commences to apply to new passenger ships (namely, 1 January 2016, subject to any delayed application to special areas by virtue of the new Regulation 12 bis ).

-    The prescribed day for existing passenger ships will be the day on which paragraph 3 of the new Regulation 11 commences to apply to existing passenger ships (namely, 1 January 2018, subject to any delayed application to special areas by virtue of the new Regulation 12 bis ).

The effect of the proposed new paragraph 26D(6)(d) is that a passenger ship can only discharge sewage in a special area in the circumstances specified in paragraphs 26D(6)(a), (b) and (c) until such time as the stricter requirements in paragraph 3 of the new Regulation 11 commence to apply in relation to that passenger ship.  (Those stricter restrictions are imposed by proposed new subsection 26D(9), which is added by item 8.)

 

Item 6                          Paragraph 26D(7)(a)

Subsection 26D(7) currently provides that subsection 26D(3) does not apply to a discharge of sewage from a ship if the conditions in the current paragraphs 26D(7)(a) and (b) are satisfied.  Those conditions are materially similar to the conditions in paragraph 1 of the former Regulation 11 which permit the discharge of sewage that has been treated in a sewage treatment plant.

Item 6 replaces the current paragraph 26D(7)(a) with a proposed new paragraph 26D(7)(a).

 

The effect of the proposed new paragraph 26D(7)(a) is to make the conditions in paragraphs 27D(7)(a) and (b), taken together, materially similar to the conditions in paragraph 1 of the new Regulation 11 (which contain somewhat different technical stipulations in relation to the requisite sewage treatment plant than paragraph 1 of the former Regulation 11).

 

Item 7                          At the end of subsection 26D(7) (before the note)

Item 7 adds a new paragraph 26D(7)(c), which contains an additional condition relating to the circumstances in which sewage is permitted to be discharged under subsection 26D(7).  The new paragraph 26D(7)(c) provides that if the ship is a prescribed passenger ship and the discharge occurs in a special area, then the discharge has to have occurred before a prescribed day.

The meanings of “prescribed passenger ship” and “prescribed date” are explained in the notes relating to item 5.

The effect of the proposed new paragraph 26D(7)(c) is that a passenger ship can only discharge sewage in a special area in the circumstances specified in paragraphs 26D(7)(a) and (b) until such time as the stricter requirements in paragraph 3 of the new Regulation 11 commence to apply in relation to that passenger ship.

 



Item 8                          Subsection 26D(8)

The current subsection 26D(8) provides that subsection 26D(3) does not apply to the discharge of sewage from a ship if the sewage is discharged into the territorial waters of a foreign country in accordance with the law of that country.

The current subsection 26D(8) is materially similar to the exception in paragraph 2 of the former Regulation 11.

Item 8 repeals subsection 26D(8) and substitutes proposed new subsections 26D(8) and (9).

The proposed new subsection 26D(8) provides that subsection 26D(3) does not apply to the discharge of sewage from a ship if the following conditions are satisfied:

(a)   the discharge is made into the territorial waters of a foreign country in accordance with the law of that country; and

(b)   if the ship is a prescribed passenger ship and the discharge occurs in a special area - the discharge occurs before a prescribed day.

The effect of the proposed new subsection 26D(8) is that a passenger ship can only discharge sewage in a special area in the territorial waters of a foreign country whose laws permit such discharge until such time as the stricter requirements in paragraph 3 of the new Regulation 11 commence to apply in relation to that passenger ship.

The proposed new subsection 26D(9) provides that subsection 26D(3) does not apply to the discharge of sewage from a ship if the conditions in paragraphs 26D(9)(a), (b) and (c) are satisfied.  The condition in paragraph 26D(9)(a) is that the ship is a prescribed passenger ship, the discharge occurs in a special area and occurs on or after a prescribed day.  The conditions in paragraphs 26D(9)(b) and (c) are materially similar to the conditions in paragraph 3 of the new Regulation 11 (which apply to passenger ships that discharge sewage in special areas, and which require that the sewage be treated by a sewage treatment plant on the ship that meets specified requirements and that the effluent not produce visible floating solids or discolouration of the water).

In summary, the effect of the proposed new subsection 26D(9) is to apply the stricter requirements in paragraph 3 of the new Regulation 11 to passenger ships in special areas after that Regulation commences to apply in relation to the passenger ships concerned.

The meanings of “prescribed passenger ship” and “prescribed date” are explained in the notes relating to item 5.

 

Item 9                          Section 26DA

Item 9 repeals section 26DA.  Section 26D provides that Division 2 of Part IIIB (which contains sections 26C to 26DA) does not commence until a day fixed by Proclamation.  Since the relevant Proclamation was made and Division 2 of Part IIIB commenced and has been in force for many years, section 26DA is now redundant.

 

Item 10                        Application, saving and transitional provisions

Paragraph (1) of item 10 provides that the amendments made by items 1 to 8 apply in relation to discharges of sewage that occur on or after the commencement of those items (which will occur on 1 January 2013 - see clause 2 of the Bill).  Paragraph (1) clarifies that the amendments made by items 1 to 8 do not apply retrospectively to discharges of sewage that occurred before the commencement of those items.

Paragraph (2) of item 10 clarifies that a certification referred to in the current subparagraph 26D(7)(a)(i) has effect after the commencement of the amendments made by items 1 to 10 as if it were a certification referred to in proposed new paragraph 26D(7)(a) (which is substituted by item 6).  The certification concerned is a certification by an inspector of a sewage treatment plant.  This clarification is necessitated by the fact that the proposed new paragraph 26D(7)(a) does not contain a subparagraph (i).

Paragraph (3) of item 10 clarifies that the repeal of section 26DA made by item 9 does not affect the validity of the Proclamation that was made under that section before the repeal.



 

Part 2              Prevention of pollution by garbage

This Part of the Bill amends the PPS Act to implement amendments to Annex V of MARPOL which contains Regulations for the prevention of pollution by garbage from ships.  As provided in the outline section, Annex V has been revised to upgrade current international regulations for the prevention of pollution by garbage from ships following a review undertaken by the IMO to place additional restrictions on the disposal of garbage from ships at sea.

The amendments to the PPS Act do not include the additional requirements for fixed and floating platforms which will be undertaken by the relevant regulatory agency, the Department of Resources, Energy and Tourism.

 

Items 11                      Subsections 26E(1)

Section 26E is the interpretation section that currently consists of two subsections.  The number (1) is deleted as subsection 26E(2) is deleted by item 12 below.  This is an editorial amendment.

Item 12                       Subsection 26E(2)

Subsection 26E(2) is deleted to remove references to Annex IV of the Protocol on Environmental Protection to the Antarctic Treaty (“Antarctic Protocol”). 

Annex IV of the Antarctic Protocol is intended to give effect to the same requirements regarding the disposal of garbage from ships as in the current version of Annex V of MARPOL.   All the States that are party to the Antarctic Protocol are also Party to Annex V of MARPOL.  When revised Annex V of MARPOL comes into force, the States party to the Antarctic Protocol will be required to give effect to the more stringent provisions of revised Annex V of MARPOL, as they are also States party to Annex V of MARPOL.   There are no requirements in Annex IV of the Antarctic Protocol that are additional to the current version of  Annex V of MARPOL.   Consequently, there is no need to retain subsections 26E(2) in Part IIIC of the PPS Act. 

 

Item 13                         Section 26EA

Current section 26EA is replaced by the new section 26EA which provides that the object of this part is to give effect to Australia’s obligations regarding the prevention of pollution by garbage from ships under Annex V of MARPOL.  By doing this the reference to Annex IV of the Antarctic Protocol has been deleted.  As explained in item 12, the revised Annex V of MARPOL contains more stringent requirements regarding the disposal of garbage from ships than the current version of  Annex V and there are no requirements in Annex IV of the Antarctic Protocol that are additional to the current version of  Annex V of MARPOL.   Consequently, there is no need to retain subsections 26EA(b) in Part IIIC of the PPS Act. 

 

Item 14                         Section 26 F (heading)

Item 14 changes the title of section 26F of the PPS Act from “Prohibition of disposal of garbage into the sea” to “Prohibition of discharge of garbage into the sea” to reflect the current wording in the revised Annex V.

 

Item 15                         Paragraphs 26F(1)(a) and (b)

Item 15 changes the reference to “disposal” in Paragraphs 26F(1)(a) and (b) to refer to “discharge” to reflect the current wording in the revised Annex V. 

Item 16                         Subparagraphs 26F(1)(c)(i)

Item 16 changes the references to “disposal” at the beginning of subparagraph 26F(1)(c)(i) to refer to “discharge” to reflect the current wording in the revised Annex V.  The revised subparagraph also provides the offence provisions for the discharge of garbage outside special areas.   Item 19 below provides the offence provision related to discharge inside a special area.

 

Item 17                         Subparagraphs 26F(1)(c)(i)

Item 17 updates the references to the regulations to reflect the new Regulation 3 and the consequential renumbering of subsequent Regulations in the revised Annex V.

 

Item 18                        Subparagraphs 26F(1)(c)(i)

As in item 16 the reference to “disposal” at the end of subparagraph 26F(1)(c)(i) is substituted by “discharge” to reflect the current wording in the revised Annex V.

 

Item 19                        Subparagraphs 26F(1)(c)(ia)

A new subparagraph is inserted to provide the offence provision for discharge of garbage inside a special area within a State/Territory jurisdiction where there is no State or Territory law giving effect to the relevant MARPOL provisions in relation to the area where the discharge occurs.

 

Item 20                        Subparagraphs 26F(1)(c)(ib), 26F(1)(c)(ii) and 26F(1)(c) (iii)

This item changes the reference to “disposal” in these paragraphs to “discharge” to reflect the current terminology in the revised Annex V.

 

Item 21                         Before subsection 26F(3)

This item inserts a note that specifies that an offence against subsection (3) is an offence of strict liability.

 

Item 22                         Paragraph 26F(3)(a)

This item changes the reference to “disposal” in this paragraph to “discharge” to reflect the current terminology in the revised Annex V.

 

Item 23                         Subparagraph 26F(3)(b)(i)

Item 23 changes the reference to “disposal” at the beginning of subparagraphs 26F(3)(b)(i) to refer to “discharge” to reflect the current terminology in the revised Annex V.  The revised subparagraph also specifically provides that the discharge occurs when the ship is not within a special area. 

 

Item 24                         Subparagraph 26F(3)(b)(i)

The references to the regulations have been updated to reflect the new Regulation 3 and the consequential renumbering of subsequent Regulations in the revised Annex V.

Item 25                         Subparagraph 26F(3)(b)(i)

Item 25 changes the reference to “disposal” at the last sentence in subparagraphs 26F(3)(b)(i) to refer to “discharge” consistent with the current terminology used in the revised Annex V. 

Item 26                         After subparagraph 26F(3)(b)(i)

Item 26 inserts a new subparagraph 26F(1)(c)(ia) to provide for the offence provision in relation to discharge of garbage within a special area which is within the area under a State  or Territory jurisdiction. 

 

Item 27                        Subparagraphs 26F(3)(b)(ib), 26F(3)(b)(ii) and 26F(3)(b)(iii)

This item changes the reference to “disposal” in this subparagraph to “discharge” to reflect the current terminology in the revised Annex V.

 

Item 28                         Before subsection 26F(5)

This item inserts a subheading above the existing subsection 26F(5) indicating that the discharge of garbage for the ship’s safety or for saving life is an exception under 26F(5).

 

Item 29                         Subsection 26F(5)

This item changes the reference to “disposal” in this subsection to “discharge” to reflect the current terminology in the revised Annex V.

 

Item 30                         After subsection 26F(5)

Item 30 inserts two new exceptions.  New subparagraph (5A) provides an exception for the discharge of fishing gear for the protection of the marine environment or for the safety of that ship or its crew.  New subparagraph (5B) provides an exception from the “en route” requirement for the discharge of food waste where the retention of such waste on board presents an imminent health risk to the people on board.

 

Item 31                         Subsections 26F(6) to 26F(8A)

This item repeals subsections 26F(6), 26F(7), 26F(8) and 26F(8A) which give effect to the current operational requirements for disposal of garbage from ships and inserts new provisions along similar lines to give effect to the requirements in the revised Annex V.

Specifically, new subsection 26F(6) provides an exception for the discharge of food wastes outside a special area if a number of conditions are met. Food wastes that have been passed through a grinder or comminuter may be discharged from a ship outside a special area if the ship is en route and is as far as practicable from the nearest land.  If the discharge occurs when the ship is not alongside or within 500 metres of, a fixed or floating platform, the ship must be at a distance of not less than 3 nautical miles from the nearest land.   If the discharge occurs when the ship is alongside, or within 500 metres of, a fixed or floating platform, the ship must be at a distance of not less than 12 nautical miles from the nearest land.

For food wastes that have not been comminuted, or passed through a grinder, discharge is only permitted when the ship is at least 12 nautical miles from the nearest land, and the discharge occurs when the ship is not alongside, or within 500 metres of a fixed or floating platform.

New subsection 26F(7) provides an exception for the discharge of cargo residues outside a special area subject to a number of conditions being satisfied.  Discharge of cargo residues that cannot be recovered using commonly available methods for unloading and that do not contain any substances classified as harmful to the marine environment shall be permitted if the ship is en route and as far as practical from the nearest land, but in any case not less than 12 nautical miles from the nearest land.  Guidelines have been developed by the IMO.

New subsection 26F(8) provides an exception for the discharge of animal carcasses outside a special area.  Discharge shall only be permitted if the ship is en route and discharge occurs as far from the nearest land as possible.  Guidelines have been developed by the IMO.

New subsection 26F(8A) provides an exception for the discharge of cleaning agents or additives contained in deck water or other external surfaces wash water outside a special.  These substances can be discharged into the sea if they are not prescribed cleaning agents or additives and are not harmful to the marine environment, taking into account guidelines developed by the IMO.

New subsection 26F(8B) provides an exception for the discharge of food wastes in a special area.  Discharge of food wastes is permitted within a special area if the ship is en route , the food wastes have passed through a comminuter or grinder and have not been contaminated by any other kind of garbage, and the discharge occurs when the ship is as far as practicable from the nearest land, but not less than 12 nautical miles from the nearest land or ice shelf.  Discharge of avian products, including poultry and poultry parts, is not permitted within the Antarctic area unless it has been incinerated, autoclaved or otherwise treated to be made sterile.

New subsection 26F(8C) provides an exception for the discharge of cargo residues, cleaning agents or additives, contained in cargo hold water (that do not contain any substances harmful to the marine environment) in a special area.  The discharge of these matters is permitted if the ship is en route, both the port of departure and the next port of destination are within the special area and the ship will not transit outside the special area between those ports, and there are no adequate reception facilities available at those ports, taking into account the guidelines developed by the IMO.  The discharge of cargo hold wash water containing residues must be made as far as possible from the nearest land or the nearest ice shelf and not less than 12 nautical miles from the nearest land or ice shelf.  Discharge is prohibited if the ship is alongside or within 500 metres of, a fixed or floating platform.

Under the International Convention for the Safety of Life at Sea, 1974 (SOLAS) every ship is required to have a voyage plan.  SOLAS requires that prior to proceeding to sea, a voyage plan will be made which identifies a route which, among other things, takes into account the marine environmental protection measures that apply, and avoids, as far as possible, actions and activities which could cause damage to the environment.  The Navigation Act 1912 provides for regulations on the form and content of sailing plans which is given effect in Marine Orders Part 21 Reg 32.1.

For ships on international voyages, SOLAS requires that a record be kept of navigational activities and incidents which are of importance to safety of navigation and which must contain sufficient detail to restore a complete record of the voyage.  This is given effect in Marine Orders Part 21 Reg 27.

At the time that a discharge of cargo residues occurs, there will be a voyage plan that shows the intended route, and the ship will also have a record of the actual route taken for the relevant voyage (and the garbage record book will show the cargo residue discharge).

New subsection 26F(8D) provides an exception for the discharge of cleaning agents or additives contained in deck wash water or other external surfaces wash water when the ship is within a special area.  The substances must not be harmful to the marine environment and the discharge must occur when the ship is proceeding en route.  Discharge of these substances is not permitted when the ship alongside, or within 500 metres of, a fixed or floating platform.  

 

 

Item 32                         Subsection 26F(9)

New subsection 26F(9) provides an exception for the accidental loss of garbage because of damage to a ship or its equipment if all reasonable precautions were taken before and after the damage occurred to minimise or prevent the loss.  Damage to a ship or its equipment does not include deterioration resulting from failure to maintain the ship or equipment, or defects that develop during the normal operation of the ship or its equipment.

 

Item 33                         Subsection 26F(9A)

This item inserts a subheading “Meaning of damage to a ship or its equipment” above the definition in subsection 26F(9A).

 

Item 34                         Subsection 26F(10)

New subsection 26F(10) provides an exception for the accidental loss of fishing gear if all reasonable precautions were taken to prevent the loss.

 

Items 35                      Subsection 26F(11)

Revised subsection 26F(11) provides that when garbage is mixed with or contaminated by other substances prohibited from discharge or having different discharge requirements, the more stringent conditions will apply.  The following heading is inserted before the new subsection “Other more stringent requirements”.

 

Items 36                       Subsection 26F(11)

Item 36 is an editorial amendment to subsection 26F(11).  The statement “without limiting the generality of subsection (5)” is replaced by the word “if”.  The changes effected by the deletion have been addressed by item 41. 

 

Item 37                         Paragraph 26F(11)(a)

Item 37 is an editorial amendment to paragraph 26F(11)(a) reflecting changes in the wording of the revised Annex V to MARPOL to adds the words “or contaminated by” after the word “garbage is mixed with”. 

 

Item 38                         Paragraph 26F(11)(c)

Item 38 is another editorial amendment to paragraph 26F(11)(c) to reflect the revised text of the Annex V.  The words “apply to the disposal” is replaced by “applies to the discharge”. 

 

Item 39                         Paragraph 26F(11)(c)

This is a consequential amendment arising from item 31.  References in paragraph 26F(11)(c) to various subsections of section 26F have been amended to reflect the numbering of the new subsections.

 

Item 40                         Paragraph 26F(11)(d)

As in several previous amendments, item 40 is an editorial amendment to paragraph 26F(11)(c) to reflect the terminology of the revised Annex V.  The item replaces the words “do not apply to the disposal” with “does not apply to the discharge” in relation to more stringent requirements when garbage is mixed with or contaminated by other matters.

 

Item 41                         After Subsection 26F(11)

New subsections 26F(12) and (12A) are provisions to assist interpretation.  Subsection 26F(12) provides that the exceptions in subsection 26F(6) to subsection 26F(8D) above do not limit the generality of the overarching exceptions in subsection 26F(5) for the discharge of garbage to secure the safety of a ship and the persons on board or to save life at sea and subsection 26F(5B) for the discharge of food wastes from a ship if the retention of those wastes on board the ship presents an imminent health risk to the persons on board the ship. 

Subsection 26F(12A) provides that the more stringent requirements in subsection 26F(11) which apply when garbage is mixed with or contaminated by other matter does not limit the generality of subsection 26F(5) for the discharge of garbage to secure the safety of a ship and the persons on board or to save life at sea, subsection 26F(5A) for the discharge of fishing gear for the protection of the marine environment or for the safety of the ship or its crew, and subsection 26F(5B) for the discharge of food wastes from a ship if the retention of those wastes on board the ship presents an imminent health risk to the persons on board the ship.

 

Item 42                         Subsection 26F(13)

This item amends the definition of plastics to reflect the updated definition in regulation 3.2 of the revised Annex V of MARPOL. The words "that may contain toxic or heavy metal residues" have been removed from subsection 26F(13) of the PPS Act.

 

Item 43                         Subsection 26FB(4)

This item corrects an error in the existing Act.  Subsections 26FB(1) and 26FB(4) together impose a requirement for the Garbage Record Book to be retained for a total of three years, whereas the existing Annex V and the revised Annex V (Regulation 10.3.3) require a total period of two years. Subsection 26FB(4) has therefore been amended to refer to "1 year" instead of "2 years" to refer to the period for which the book must be retained after the initial one period on board the ship.

 

Item 44                        Section 26FC

Item 44 replaces the heading of section 26FC of the PPS Act to read “Garbage management plan” instead of “Shipboard waste management plan”.  This amendment makes the terminology of the PPS Act consistent with Annex V terminology.

 

Item 45                         Paragraph 26FC(1)(a)

This item amend paragraphs 26FC(1)(a) to require ships with 100 GT or more to carry a garbage management plan as required by Regulation 10 of the revised Annex V.  Currently this requirement only applies to ships 400 GT and above.

 

Item 46                         Subsection 26FC(2)

This is another amendment to update the terminology of the PPS Act with that of Annex V of the MARPOL.  As is item 44, the term “shipboard waste management plan” is replaced by “garbage management plan” in subsection 26FC(2).

 



Item 47                         Subsection 26FC(2)

Item 47 is another consequential amendment arising from changes in the language in Annex V.  The PPS Act currently provides that the garbage management plan, as amended above, will be written in the language of the master and officers on board the ship.  The revised Annex V uses the all inclusive term “crew”.  Item 47 amends section 26FC of the PPS Act to require that the garbage management plan is to be written in the language of the crew.

 

Item 48                         Subsection 26FC(3)

This is an amendment similar to items 44 and 46.  The term “shipboard waste management plan” is replaced by “garbage management plan”.

 

Item 49                         Subsection 26FC(3)(b)

Item 26 FC(3) prescribes the requirements with regard to a garbage management plan.  Regulation 10.2 of revised Annex V now provides that a garbage management plan shall “provide written procedures for minimizing, collecting, storing, processing and disposing of garbage, including the use of the equipment on board”.  Item 49 amends subsection 26FC(3)(b) to include “minimising,” after procedures as provided in Regulation 10.2 of revised Annex V.

 

Item 50                         Subsection 26FC(3)(b)

As in several previous items, item 50 amends subsection 26FC(3)(b) to replace “disposal” with “discharging” to align the text of the PPS Act with revised Annex terminology.

 

Item 51                         Paragraph 26FC(3)(c)

Item 51 is another consequential amendment arising from the revision of Annex V to MARPOL.  Paragraph 26FC(3)(c) is amended to reflect the revised text of Regulation 10.2 of Annex V which provides that a garbage management plan shall designate the “person or persons” in charge of carrying out the plan.  Paragraph 26FC(3)(c) currently only refers to a “person”.

 

Item 52                         Subsections 26FC(4) and (5 )

This is an amendment similar to items 44, 46 and 48.  The term “shipboard waste management plan” is replaced by “garbage management plan” in subsections 26FC(4) and (5).

 

Item 53                         Section 26FD

Item 53 replaces the heading of section 26FD regarding placards with a new heading.  The substantive change is in the replacement of “disposal” by “discharge” in the heading.  This is to reflect the current terminology of the revised Annex V.

 

Item 54                         Subsection 26FD(1)

Subsection 26FD(1) prescribes the requirements regarding display of placards related to garbage.  Item 54 amends subsection 26FD(1) by replacing the term “disposal” at the beginning of subsection 26FD(1) with “discharge” to align the text of the PPS Act with that of the revised Annex V.



 

Item 55                         Subsection 26FD(1)

This is a similar amendment.  Item 55 amends subsection 26FD(1) by replacing the term “disposal” at the end of subsection 26FD(1) with “discharge”. 

 

Item 56                         Subsection 26FD(2)

This item amends subsection 26FD(2) to reflect the changes in the revised Annex V.  Regulation 10.1.2 of the revised Annex V now requires that placards are written in the working language of the ship’s crew, rather than the official language of the State whose flag the ship is entitled to fly. 

 

Item 57                         Subsection 26FD(3)

Item 57 is another amendment that incorporates the changes related to language of the placards in the revised Annex V.  Subsection 26FD(3) is replaced with a new subsection bearing the same number to provide, as in Regulation 10.1.2 of revised Annex V, that placards on a ship that is engaged on a voyage to an Australian port or to an Australian offshore terminal to be written in the working language of the crew, and if the working language is not English, French or Spanish, the placard to be also written in any of these languages.  The amendment incorporates the change from the “official language of the State whose flag the ship is entitled to fly” to “working language of the crew” and the new additional requirement of displaying placards written in English, French or Spanish.

 

Items 58                       Subsection 26FE(1) and 32 (1B)

These items make some editorial changes to reflect the changed terminology in the revised Annex V.  Items 71 and 72 replace references to “disposal” with “discharge”.  Item 60 replaces “shipboard waste management plan” with “garbage management plan”.

 

Item 59                         Subsection 26FE(1)

As in item 58, this is again an editorial change replacing the reference to “disposal” with “discharge” in the same subsection. 

 

Item 60                         Subsection 32(1B)

This is another editorial change that replaces “shipboard waste management plan” with “garbage management plan”.

 

Item 61                         Application and saving provisions

Item 61 has the following application and saving provisions:

-           there will be no retrospective application of the provisions implementing the revised Annex V.  The amendments made by items 15 to 42 will only apply in relation to the discharge of garbage on or after the commencement of those items;

-           section 26F of the PPS Act, as in force immediately before the commencement of items 15 to 42, will continue to apply on or after the commencement of those items in relation to the disposal of garbage from a ship that occurred before that date;

-           the amendment made by item 43 applies in relation to a garbage record book, where the last entry is made in the book on or after the commencement of that item;

-           the amendment made by items 44 to 57 relating to garbage plans and placards apply in relation to voyages of ships that begin on or after the commencement of those items;

-           the amendments made by items 58 and 59 (power to require discharge at a reception facility) apply in relation to notices given on or after the commencement of those items.



 

Part 3              Prevention of air pollution

This Part of the Bill amends the PPS Act to include the requirements related to the SEEMP as prescribed by Regulation 22 of the revised Annex VI along with related application provisions and amendments to definitions. 

 

Item 62                         At the end of Part IIID

New section 26 FEW is added at the end of Part IIID to include the requirements in relation to a ship energy efficiency management plan (SEEMP) for a ship as provided in Regulation 22 of the amended Annex VI of MARPOL. 

New subsection 26FEW (1)  provides, consistent with the provisions of Regulation 19 of amended Annex VI to MARPOL, that the section applies to all ships of 400 GT or more that are engaged on an overseas voyage.

New subsection 26FEW (2) makes it mandatory for the ships to which this section applies, consistent with Regulation 22, subparagraph 1 of the revised Annex VI, to keep on board a SEEMP.  

New subsection 26FEW (3) provides, consistent with subparagraph 2 of Regulation 22 of the amended Annex VI, that the ship energy efficiency management plan shall be developed in accordance with the appropriate prescribed form, as provided in the Guidance for the Development of a Ship Energy Efficiency Management Plan (SEEMP) (IMO circular MEPC 1/Circ.683).

New subsection 26FEW(4) makes it a strict liability offence for the master and the owner of the vessel to not carry a SEEMP on board as required under this section.  The penalty is set at 200 penalty units. 

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 a ship energy efficiency management plan.  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 an offence for a breach of proposed subsection 26FEW(2) be a strict liability offence because there are difficulties in proving that the ship energy efficiency management plan 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 penalty of 200 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 maintain an oil record book;

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

·            section 26 FET for not keeping on board an ozone depleting substance record book. 

New subsection 26FEW(5) provides the meaning of “overseas voyage” as used in this section with reference to Navigation Act 1912.  The definition is consistent with similar provisions in other legislation such as Section 10 of the Protection of the Sea (Civil Liability for Bunker Oil Pollution Damage) Act 2008.  The definition excludes from the ambit of this section the fishing vessels that operate out of Queensland that routinely visit Papua New Guinea in the course of their fishing activities. 

 

Item 63                        Application provision

Item 12 is an application provision providing that the requirements in relation to a ship energy efficiency management plan will apply to voyages of Australian ships that begin on or after commencement of item 110.



 

Part 4                          Roll-back provisions

The amendments in Part 4 of the Bill relate to the roll back provisions of the PPS Act. 

 

Items 64                       Subsection 3(1)

A new term “ outer territorial sea” is added, with reference to the new subsection (1D) where the term has been defined (item 66).

Items 65                       Subsection 3(1)

A new term “ sea near” in subsection 3(1) with reference to subsections 1A, 1B and 1C which define the meanings of “sea near a State, sea near the Jervis Bay Territory, and sea near an external Territory” respectively (item 66).

 

Item 66                         Subsection 3(1)

Item 66 repeals Sections 3(1A) to (1BA) of the Act and substitutes these with new subsection 3(1A) to 3(1D) which define “the sea near” a State, the sea near the Jervis Bay Territory, and  the sea near an external Territory,  the outer territorial sea. 

Subsections 3(1A), 3(1AA) and 3(1B) of the PPS Act currently defines respectively the “sea near”:

-             a State;

-             Jervis bay Territory; and

-             an external Territory.

In relation to a State or an external Territory, the “sea near” is to be read as a reference:

(a)            to the territorial sea of Australia; and

(b)           the sea on the landward side of the territorial sea of Australia.

In relation to the Jarvis Bay Territory, the sea “near Jarvis Bay Territory” is to be read as a reference to the “the sea in that Territory”.

As currently drafted, there is no division within the “territorial sea” of Australia to relate to State/Territory jurisdiction for legislation of MARPOL requirements.  This particularly creates confusion regarding the application of the roll back provisions which are intended to only apply to waters under State/Territory jurisdiction.  Under current arrangements the area over which a State or Territory has law making power is three nautical miles from the territorial sea baselines, not the entire twelve nautical mile territorial sea of Australia.. 

To address the anomaly in the PPS Act, subsections 3(1A), 3(1AA) and 3(1B) are repealed and new subsections 3(1A) to (1E) are inserted.

New subsection 3(1A) now defines the “sea near” a State as the first three miles of the territorial sea and the waters that are to the landward side of the territorial sea baseline.

New subsection 3(1B) inserts the meaning of “sea near the Jervis Bay Territory” as the sea in that Territory.  This is same as the repealed subsection 3(1AA).

New subsection 3(1C) is similar to subsection 3(1A) and defines the “sea near an external Territory” as the first three nautical miles of the territorial sea from the baseline, and the waters in the sea to the landward side of the territorial sea baseline. 

The new subsection 3(1D) introduces a new term “outer territorial sea” which is defined as “the territorial sea other than the part or parts of the territorial sea that are within three nautical miles of the territorial sea baseline and adjacent to a State or an external Territory”.  In other words, the outer territorial sea is the sea area from three to twelve nautical miles of Australia’s territorial sea.

The new subsection 3(1E) is a clarification regarding the laws in the Jervis Bay Territory.

 

Part II of PPS Act

Part II of the Act sets out the law related to prevention of pollution by oil. 

Item 67                        Subparagraph 9(1B)(b)(i)

Subsection 9(1B) sets out the areas where it is an offence to discharge oil or oily water by a ship.  Item 67 amends subparagraph 9(1B)(b)(i) of the Act to include the  reference to the “outer territorial sea” to the list of locations where an offence could occur.  This is a consequential amendment arising from items 64 to 66 which introduced new terms to clarify Commonwealth and State/Territory jurisdictions.

 

Item 68                        Subsections 11(1A) and (1B)

Section 11 of the Act sets the requirements related to reporting of incidents involving oily or oily mixtures, including setting of offences.  This amendment is another consequential amendment flowing from redefining the various sea areas.  Item 68 repeals subsections 11(1A) and (1B) which set the circumstances, in relation to location of an incident, where the section 11 provisions do not apply, including circumstances involving a foreign ship. 

 

Item 69                         After Subsection 11(8)

This amendment is a consequential amendment that follows from the amendment made by item 68.  The provisions deleted by item 68 are reinserted as new subsections 11(9) and 11(9A) using the new terminology introduced by items 64, 65 and 66 in respect of the different sea areas.  At the end of each of the new subsections the new standard text for evidential burden is inserted.

 

Item 70                         Subsection 11B

Subsection 11B sets out the areas where it is an offence t to transfer oil cargo between oil tankers not in accordance with ship-to-ship operations plans.  Item 70 amends subsection 11B(1)(d)(i) of the Act to include the  reference to the “outer territorial sea” to the list of locations where an offence could occur.  This is a consequential amendment similar to item 67 arising from the amendments made by items 64 and 66.

 

Item 71                         Paragraph 11C (1)(c)

The word “either” is replaced by “one” in paragraph 11C(c).  This is a further consequential amendment arising from item 72 which adds the “outer territorial sea” to the list of locations where the offence of transferring oil could occur.

 

Item 72                         After subparagraph 11(C)(1)(i)

Item 72 amends paragraph 11C(1)(c) by inserting a new subparagraph (ia) that adds the “outer territorial sea” to the list of locations where the offence of transferring oil by a  tanker could occur.  This is a consequential amendment similar to item 67 arising from the amendments made by items 64 and 66.

 

 

Item 73                         Paragraph 11F(1)(d)

This is similar to item 71.  This is a consequential amendment arising from item 74.

 

Item 74                         Paragraph 11F(1)(d)

Item 74 amends paragraph 11F(1)(d) by inserting a new subparagraph (ia) that adds the “outer territorial sea” to the list of locations where the offence of transferring oil by a tanker could occur.  This is a consequential amendment similar to item 67 and 72 arising from the amendments made by items 64 and 66.

 

Item 75                         Paragraph 11F(2)(d)

This is similar to item 71 and 73, a consequential amendment arising from item 76.

 

Item 76                         Paragraph 11F(2)(d)

Item 76 amends paragraph 11F(2)(d) by inserting a new subparagraph (ia) that adds the “outer territorial sea” to the list of locations where the offence of transferring oil by a tanker could occur.  This is a consequential amendment similar to items 67, 72 and 74, arising from the amendments made by items 64 and 66.

 

Item 77                         Paragraph 17(1)(f)

Item 77 amends paragraph 17(1)(f) by inserting a new subparagraph (ia) that adds the “outer territorial sea” to the list of locations where it is an offence for a person to cause an Australian ship to carry liquid substance or mixture in bulk that has not been categorised according to regulation 6 of Annex II of MARPOL.  This is a consequential amendment similar to items 67, 72, 74 and 76, arising from the amendments made by items 64 and 66.

 

Item 78                         Paragraph 17(2)(d)

Item 78 amends paragraph 17(2)(d) by inserting a new subparagraph (ia) that adds the “outer territorial sea” to the list of locations where it is an offence for the master and the owner of an Australian ship to carry liquid substance or mixture in bulk that has not been categorised according to regulation 6 of Annex II of MARPOL.  This is a consequential amendment similar to item 77.

 

Item 79                         Paragraph 21(1)(c)

Item 79 amends paragraph 21(1)(c) by inserting a new subparagraph (ia) that adds the “outer territorial sea” to the list of locations where it is an offence for a person to cause discharge of a liquid substance or mixture in bulk from a ship.  This is a consequential amendment similar to items 77 and 78, arising from the amendments made by items 64 and 66.

 

Item 80                         Paragraph 21(1B)(b)

Item 80 amends paragraph 21(1B)(b) by inserting a new subparagraph (ia) that adds the “outer territorial sea” to the list of locations where discharge of a liquid substance or a mixture of liquid substance carried as cargo or part of cargo on a ship is a strict liability offence.  This is a consequential amendment similar to items 77, 78 and 79, arising from the amendments made by items 64 and 66.

 



Item 81                         Section 22

This amendment repeals the subsections 22(1A) and (1B), which refer to the non-application of the duty to report prescribed incidents involving the discharge of certain substances into the sea.  This is a consequential amendment arising from item 82.

 

Item 82                         Section 22

Subsections deleted by item 81 are replaced by new subsections 22(9A) and 22(9B) after subsection 22(9).  These add the “outer territorial sea” to the list of locations outside which the duty to report a prescribed incident involving discharge of certain substances does not apply for foreign vessels.   At the end of each of the new subsections the new standard text for evidential burden is inserted.

 

Part III of PPS Act

Part III is concerned with pollution of the sea by noxious substances.

Part IIIA is concerned with the prevention of pollution by packaged harmful substances. Subsection 26 sets out the areas where it is an offence to discharge by jettisoning harmful substances into the sea , same as items 67, 70 and 72, 73, 74, 75 and 76.

 

Item 83                         Paragraph 26AB(3)(b)

A new subparagraph 26AB(3)(b)(ia) is added to include the “outer territorial sea” in the list of locations where an offence could occur.  This is another consequential amendment arising from items 64 and 66.

 

Item 84                         Subparagraph 26AB(3)(b)(i)

This is an amendment similar to item 83.  Subparagraph 26AB(3)(b)(i) of the Act is amended to include the reference to the “outer territorial sea” to the list of locations where it is an offence to jettison harmful substances to sea.

 

Item 85                         Sections 26B

Subsections 26B(1) and 26B(2) provide the situations when section 26 does not apply.  These subsections are deleted to be replaced by new text by item 86.

 

Item 86                         Section 26B

New subsection 26(10B) is inserted to provide that section 26 do not apply in waters under State/Territory jurisdictions ie within the three mile sea area from the territorial sea baseline to the extent that there are equivalent State/Territory legislation.  Subsection 26 (10C) is inserted to include the reference to “outer territorial sea” in setting out when section 26 will not apply to a foreign vessel if an incident occurs.  At the end of each of the new subsections the new standard text for evidential burden is inserted.

 

Item 87                         Paragraph 26BC(1)(c)

Section 26BC makes it an offence for a person to engage in reckless and negligent conduct that causes discharge of untreated sewage in the Antarctic Area from a ship carrying more than 10 persons. The amendment does not make any substantive change to the provision but clarifies the application of this section for Australian ships carrying more than 10 persons. 

Existing paragraph 26BC(1)(c) is replaced by a new paragraph 26BC(1)(c) to clarify that for Australian ships carrying more than 10 persons, it is also an offence under this section to discharge raw sewage outside the Australian Territorial sea adjacent to Australia’s Antarctic Territory ie anywhere in the Antarctic Area.  The text is an improvement over the current text that referred to the Territorial sea as “sea near the Australian Antarctic Territory”. 

 

Item 88                         Paragraph 26BC(2A)(b)

Paragraph 26BC(2A) makes it an offence for a ship carrying more than 10 persons to discharge raw sewage into the sea in the Antarctic Area.  Item 88 replaces the existing paragraph 26BC(2A)(b) with a new paragraph bearing the same number to clarify the application of this provision with reference to Australian ships and Australia’s Territorial sea adjacent to the Antarctic Area.  This is an amendment exactly similar to item 87.

 

Item 89                        Subparagraph 26D(1)(c)(ii)

Subsection 26D sets out the areas where it is an offence to discharge sewage into the sea.  Item 89 subparagraphs 26D(1)(c)(ii) of the Act to include the reference to the “outer territorial sea” to the list of locations where an offence could occur.  This is another consequential amendment arising from items 64 and 66, as in the preceding provisions.

 

Item 90                         Subparagraph 26D( 3)(b)(ii)

This is another consequential amendment.  Item 90 amend subparagraphs 226D(3)(b)(ii) of the Act to include the reference to the “outer territorial sea” to the list of locations where an offence could occur. 

 

Items 91                       Subparagraphs 26F(1)(c)(ii)

Subsection 26F sets out the areas where it is an offence to dispose garbage into the sea.  Item 91 amends subparagraphs 26F(1)(c)(ii) of the Act to include the reference to the “outer territorial sea” to the list of locations where an offence could occur.  This is another consequential amendment arising from items 64 and 66.

 

Items 92                       Subparagraphs 26F(3)(b)(ii)

Item 92 amends subparagraphs 26F(3)(b)(ii) of the Act to include the reference to the “outer territorial sea” to the list of locations where an offence could occur.  As in the preceding amendment, this is another consequential amendment arising from items 64 and 66.

 

Part IIID of PPS Act

Part IIID is concerned with the prevention of air pollution at sea. 

Item 93                        Subparagraphs 26FEG(1)(d)(i)

Division 2 is concerned with the sulphur content of fuel oil.  Section 26FEG sets out the areas where it is an offence to use fuel oil with a sulphur content of more than the prescribed limit.  Items 93 amends subparagraphs 26FEG(1)(d)(i) of the Act to include the reference to the “outer territorial sea” to the list of locations where an offence could occur.  This is a consequential amendment as in the preceding items.

 



Item 94                        Subparagraph 26FEG (2)(b)(i)

As in item 93, item 94 amends subparagraphs 26FEG(2)(b)(i) e Act to include the reference to the “outer territorial sea” to the list of locations where an offence could occur. 

 

Item 95                         Paragraph 26FEL(c)(i)

Division 3 is concerned with fuel oil availability and quality requirements.  Subsection 26FEL sets out the areas where it is an offence for local suppliers of fuel to be not registered.  Item 95 amends paragraph 26FEL(c)(i) of the Act to include the reference to the “outer territorial sea” to the list of locations where an offence could occur.  This is another consequential amendment arising from the amendment made by items 64 and 66.

 

Item 96                        Subparagraph 26FEN(1)(c)(i)

Section 26FEN sets out the areas where it is an offence to use fuel oil that does not meet certain quality requirements.  Item 96 amends subparagraph 26FEN(1)(c)(i) of the PPS Act to include the reference to the “outer territorial sea” to the list of locations where an offence could occur.  This is another consequential amendment.

 

Item 97                         Subparagraphs 26FEO(1)(c)(i)

Section 26FEO sets out the areas where it is an offence for a bunker delivery note and sample not to be provided.  Items 97 amends subparagraphs 26FEO(1)(c)(i) of the Act to include the reference to the “outer territorial sea” to the list of locations where an offence could occur. 

 

Item 98                         Subparagraphs 26FEO (2)(c)(i)

Section 26FEO sets out the areas where it is an offence for a bunker delivery note and sample not to be provided.  Items 98 amend subparagraphs 26FEO(2)(c)(i) of the Act to include the reference to the “outer territorial sea” to the list of locations where an offence could occur. 

 

Item 99                         Subparagraph 26FEP(1)(d)(i)

Item 99 amends subparagraph 26FEP(1)(d)(i) of the Act to include the reference to the “outer territorial sea” to the list of locations where an offence could occur. 

 

Item 100                       Subparagraph 26FES(1)(c)(i)

Section 26FES sets out the areas where it is an offence not to notify the master of a ship of the sulphur content of gas fuel on delivery.  Item 100 amends subparagraph 26FES(1)(c)(i) of the Act to include the reference to the “outer territorial sea” to the list of locations where an offence could occur.  This is the last of the consequential amendment arising from item 64 and 66.

Application provisions

Item 101                      Application provisions

Item 101 provides the amendments made by items 67 to 100 apply in relation to the specific incident or occurrence mentioned in each item on or after the commencement of the item. These items commence in accordance with the commencement provision of this Bill.



Part 5              Other amendments - consequential

Items in Part 5 amend various provisions of the PPS Act.  These are mainly consequential amendments.  There two main amendments in this part that are repeated in various parts of the PPS.  These are:

·          Amendments to the roll back provisions to clarify that the roll back will apply only when a particular offence occurs in waters that are subject to a State or Territory jurisdictions (ie within three nautical miles from the territorial sea baseline), and if that State or Territory has legislation for the area where the offence occurred. 

·          Replacement of the “evidential burden” notes in many places in relation to various offences under the PPS Act.  Old notes are replaced by new standard notes that are currently used in legislation.

 

Item 102                       Subparagraph 9(1B)(b)(i)

This item is the first of several items that has the same meaning and purpose.  Item 102 is a further consequential amendment related to amendments in Part 4. 

Subsection 9(1B) makes it an offence to discharge oil or oily mixture from a ship into the sea.  Paragraph 9(1B)(b) lists the sea areas in which to discharge is an offence. 

Subparagraph 9(1B)(b)(i) is the roll back provision related to the offence of discharging oil or oily mixture into the sea.  As currently drafted, it is an offence to discharge oil or oily mixtures into the “sea near a State or Territory” only if there is no equivalent State/Territory law giving effect to the relevant MARPOL provisions for “that sea”.  

The term “that sea” was considered by legal experts to be unclear and giving rise to conflicting interpretations.  Item 102 replaces this term with “the area of the sea where the discharge occurs”.  By this amendment it has been made clear that the roll back provision would only apply if:

·          the discharge occurred in the waters under State/Territory jurisdictions ie within three miles of Australia’s territorial sea baseline; and

·          there is equivalent State or Territory law for that part of the sea where the discharge occurred.

This amendment will clarify that roll back provision will not apply in circumstances where the discharge actually occurs outside the “sea near a State or Territory” ie outside the three mile area under State/Territory jurisdiction but subsequently the discharged oil or oily mixture moves inside the three nautical mile area. 

 

Item 103                       Subsection 9(2)(note)

Some sections in the PPS place the onus of proof on the defendant for certain elements of the offence.  This is the first of the amendments to repeal the outdated text on evidential burden in the Act and to insert the new standard text used in all current legislation 

An evidential burden requires a person to provide evidence of an asserted fact in order to prove that fact to a court. In some instances, the Bill places an evidential burden on an individual to demonstrate a reasonable excuse as to why they have failed to meet a duty or obligation.

This is because it would be significantly more difficult for the prosecution to prove these elements, than it would be for the defendant to disprove them, since the relevant information is known particularly to the defendant.

In clauses where the onus of proof is reversed, the exception is dependent on particular knowledge or intent of the defendant.  The reversal of the onus of proof in these circumstances is considered to be consistent with the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers .

This item replace the note in subsection 9(2) with a new note using current standard text on evidential burden indicating that a defendant bears an evidential burden in relation to the matter in the subsection with reference to subsection 13.3(3) of the Criminal Code.  

 

Item 104                       Subsection 11(2)(note)

This amendment is same as item 103 and replaces the outdated note on evidential burden at the end of subsection 11(2). 

 

Item 105                       Subsection 11(4)(note)

This is another amendment replacing the note on evidential burden at the end of subsection 11(4).

 

Item 106                       Subparagraph 11B((1)(d)(i)

This is similar to item 102.  Subparagraph 111B(1)(d)(i) is the roll back provision related to the offence of transferring oil between tankers that is not in accordance with the ship-to-ship operations plan.  This item substitutes the words “that sea” with “the area of the sea where the transfer occurs” in subparagraph 11B(1)(d)(i) to clarify that the roll back provision only applies if a State/Territory has relevant law in relation to waters under its jurisdiction and only when the transfer of oil between tankers occurs in the same waters.  

 

Item 107                       Subparagraph 11C(1)(c)(i)

As in 102 and 106, subparagraph 11C(1)(c)(i) is the roll back provision related to the strict liability offence for transferring oil between tankers by a person when not qualified to do so.  This item substitutes the words “that sea” with “the area of the sea where the transfer occurs” in subparagraph 11C(1)(c)(i) to clarify that the roll back provision only applies if a State/Territory has relevant law in relation to waters under its jurisdiction and only when the transfer of oil between tankers occurs in the same waters.  

 

Items 108                     Subparagraphs 11F(1)(d)(i) and 11F(2)(d)(i)

As in items 102, 106 and 107, item 108 amends subparagraph 11F(1)(1)d)(i) and 11F(2)(d)(i).  These are roll back provisions related to the offence of transferring oil between tankers without required notification as prescribed by the regulations. This item substitutes the words “that sea” with “the area of the sea where the transfer occurs” in subparagraph 11F(1)(d)(i) and 11F(2)(d)(i) to clarify that the roll back provision only applies if a State/Territory has relevant laws in relation to waters under its jurisdiction and only when the transfer of oil between tankers occurs in the same waters.

 

Item 109                      Subparagraphs 11F(1)(f)(i) and 11F(2)(d)(i)

As in item 103, this item replaces the notes on evidential burden in subparagraphs 11F(1)(d)(i) and 11F(2)(d)(i) with new notes using current standard text on evidential burden.

 

Item 110                       Subparagraphs 21(1)(c)(i) and 21(1B)(b)(i)

This is similar to items 102, 106, 107 and 108.  Subparagraph 21(1)(c)(i) and 21(1B)(b)(i) are the roll back provisions related to the offence of discharging noxious substances into the sea. Item 110 substitutes the words “that sea” with “the area of the sea where the discharge occurs” in subparagraphs 21(1)(c)(i) and 21(1B)(b)(i) to clarify that the roll back provision only applies if a State/Territory has relevant laws in relation to waters under its jurisdiction and only when the discharge occurs in the same waters.  

 

Item 111                       Subsection 21(2) (note)

As in items 103, 104, 105 and 109, this item replaces the note at the end of subsection 21 (2) with a new note using the current standard text on evidential burden.

 

Item 112                       Subsection 22(2) (note)

As in item 111 and other items referred to above, this item replaces the note at the end of subsection 22 (2) with a new note using the current standard text on evidential burden.

 

Item 113                       Subsection 22(4)

As in item 112 and other items referred to above, this is another amendment to update the text on evidential burden.  This item replaces the note at the end of subsection 22 (4) with a new note using the current standard text on evidential burden.

 

Item 114                       Subparagraphs 26AB(1)(c)(i) and (3)(b)(i)

As in item 102 and other items referred to above, this is another amendment to clarify the operation of the roll back provision in Australia’s territorial sea.  Subparagraph 26AB(1)(c)(i) and 26AB(3)(b)(i) are the roll back provision related to the offence of jettisoning of harmful substances into the sea.  Item 114 substitutes the words “that sea” with “the area of the sea where the jettisoning occurs” on subparagraphs 26AB(1)(c)(i) and 26AB(3)(b)(i) to clarify that the roll back provision will only apply if a State/Territory has relevant laws in relation to waters under its jurisdiction and only when the jettisoning has occurred in the same waters.

 

Item 115                       Subsection 26AB(5) (note)

As in item 103 and other items referred to above, this is another amendment updating the text on the evidential burden.  This item replaces the note at the end of subsection 26AB (6) with a new note using the current standard text on evidential burden.

Item 116                       Subsection 26AB(6) (note)

This is another amendment updating the text on the evidential burden.  This item replaces the note at the end of subsection 26AB (6) with a new note using the current standard text on evidential burden.

 



Item 117                       Subsection 26B(4) (note)

This is the final amendment updating the text on the evidential burden.  This item replaces the note at the end of subsection 26B (4) with a new note using the current standard text on evidential burden.



Schedule 2 - Repeal of Acts

 

Items 1 and 2

The Stevedoring Levy (Imposition) Act 1998 and the Stevedoring Levy (Collection) Act 1998 provided, respectively, for the imposition and collection of a levy on certain stevedoring operations, namely the loading and unloading of containers and vehicles. The purpose of the levy was to meet the cost of redundancy payments to waterside workers made redundant as part of the waterfront reform at Australia’s major container terminals.

All costs of the redundancy program have been recovered and the payment of levies ceased in May 2006.  The two Acts are therefore redundant and are repealed by items 1 and 2.