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Maritime Legislation Amendment Bill 2015

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2013-2014-2015

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

MARITIME LEGISLATION AMENDMENT BILL 2015

 

 

 

 

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Infrastructure and Regional Development

the Hon Warren Truss MP)

 



 

MARITIME LEGISLATION AMENDMENT BILL 2015

OUTLINE

The Maritime Legislation Amendment Bill 2015 (the Bill) amends maritime legislation and enacts a number of minor provisions relating to maritime safety and environment.

The Bill will amend a number of provisions in the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (the POTS Act).  The Bill will amend an unintended consequence arising from the Maritime Legislation Amendment Act 2012 to amend the definition of ‘ sea near a State ’ in order to clarify jurisdictional boundaries of the territorial sea baseline. The Bill will amend the POTS Act to close a loophole whereby heavy grade oil could be carried as ballast in Antarctic waters.  This amendment will ensure consistency with Australia’s treaty obligations under the International Convention for the Prevention of Pollution from Ships, 1973, commonly known as MARPOL.

The Bill will amend the definition of ‘ dangerous goods ’ in the Navigation Act 2012 , to ensure the current definition includes dangerous goods which are characterised in the International Maritime Dangerous Goods Code, and corrects a range of drafting errors and omissions in the Navigation Act 2012 , which are more than purely technical in nature.

The Bill will amend a legislative drafting error in the Protection of the Sea (Civil Liability for Bunker Oil Pollution Damages) Act 2008 , which arose because of consequential amendments to the Navigation Act 2012 , which restricts the ability to enforce compliance around insurance certificates. The Bill also amends a legislative drafting error in the Protection of the Sea (Civil Liability) Act 1981 that arose because of consequential amendments to the Navigation Act 2012 , which restricts the ability to enforce compliance around oil pollution certificates.

Financial impact statement

The Bill provides a number of minor amendments to existing maritime legislation and is not expected to have any significant financial impact.

 



 

 

 

 

 

 

 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Maritime Legislation Amendment Bill 2015

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 .

Overview of the Bill

The primary purpose of the Bill is to amend four acts; Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (POTS Act); the Navigation Act 2012; the Protection of the Sea (Civil Liability for Bunker Oil Pollution Damage) Act 2008 (Bunkers Act); the Protection of the Sea (Civil Liability) Act 1981 (CLC Act).

The Bill will amend the definition of ‘ sea near a state’ under section 3(1A) of the POTS Act to correct an error in the legislation following a 2012 amendment; ensuring that offence provisions relating to illegal dumping by ships apply in internal State waters.  The Bill also seeks to amend the definition of ‘ sea near an external territory’ under section 3(1C)(b) of the POTS Act to ensure that offence provisions relating to illegal dumping by ships also apply in internal Territory waters.

The Bill will amend the POTS Act to close a loophole whereby heavy grade oil could be carried as ballast in Antarctic waters.  This amendment will ensure consistency with Australia’s treaty obligations under the International Convention for the Prevention of Pollution from Ships, 1973.

The Bill will also amend the Navigation Act 2012 to modify the definition of ‘ dangerous goods ’ in section 14 to remove reference to the goods listed in the International Maritime Dangerous Goods Code (IMDG Code).

The current definition of ‘ dangerous goods ’ listed in section 14 limits the scope of dangerous goods to those listed in the IMDG Code, whereas the IMDG Code itself contemplates that there will be goods that are properly characterised as dangerous, but which are not listed.

An amendment to the definition of ‘ dangerous goods ’ in section 14 would broaden the definition so it captures all items having the same meaning as those in Chapter VII of the International Convention for the Safety of Life at Sea 1974, ensuring consistency with Australia’s treaty obligations, State and Territory legislation, and industry practice. 

The Bill also seeks to amend a technical error within the Navigation Act 2012 ; section 96(4) of the Navigation Act 2012 refers to ‘Division 3’. The correct reference should be to ‘Division 4’, a drafting error made during the re-write of the Navigation Act in 2012 .

In addition, the Bill would amend a legislative drafting error in the Bunkers Act and the CLC Act restoring the legislation to the original state prior to the Navigation Consequential Amendments Act 2012 , allowing for regulatory action to be taken against non-compliant vessel operators.

Human rights implications

The Bill does not engage human rights as the provisions of the Bill are confined to providing minor and technical amendments to existing legislation to correct drafting errors and ensure that the legislation is logical and consistent.  The amendments do not substantially change the effect of the relevant legislation.

 

Conclusion

This Bill is compatible with human rights because it does not raise any human rights issues.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Minister for Infrastructure and Regional Development, the Hon Warren Truss MP



 

NOTES ON CLAUSES

Clause 1: Short title

1.       This is a formal provision that specifies that the Act may be cited as the Maritime Legislation Amendment Act 2015 (the Act).

Clause 2: Commencement

2.       This clause sets out when each schedule of the Act will commence. In the case of schedule 1, commencement will occur on the 28 th day after the Act receives the Royal Assent; with schedule 2 commencing on the 28 th day after the Act receives the Royal Assent and no later than 1 March 2016.

Clause 3: Schedule(s)

3.       This clause provides that the Act will be amended as specified and set out in a Schedule to the Act.

SCHEDULE 1 - AMENDMENTS

Part 1 - Amendment of the Navigation Act 2012

Navigation Act 2012

Clause 1 - Subsection 14(1) (definition of dangerous goods)

4.       The current definition of ‘ dangerous goods ’ in Section 14 limits the scope of dangerous goods to those listed in the IMDG Code, whereas the IMDG Code also covers goods that are properly characterised as dangerous, but which are not yet listed. This clause substitutes the current definition of dangerous goods for the broader definition in Chapter VII of the International Convention for the Safety of Life at Sea 1973 (MARPOL).

Clause 2 - Subsection 14(10) (definition of International Maritime Dangerous Goods Code)

5.       Clause 2 repeals the current definition of dangerous goods in Subsection 14(1), consistent with Clause 1.

Clause 3 - Paragraphs 96(4)(a) and (b)

6.       Clause 3 corrects some minor drafting errors in the Navigation Act 2012 .  Section 96(4)(a) refers to Division 3 (Regulation relating to overloading), rather than Division 4 (Offences and civil penalties relating to passenger and cargo operations) Subdivision A - Loading. 96(4)(b) requires reference to Division 4  (Offences and civil penalties relating to passenger and cargo operations) Subdivision B - Dangerous Goods. Clause 3 amends the text the text under 96(4)(a) and (b) to read Division 4.

 

Part 2—Amendment of the Protection of the Sea (Civil Liability) Act 1981 and the Protection of the Sea (Civil Liability for Bunker Oil Pollution Damage) Act 2008

Protection of the Sea (Civil Liability) Act 1981

Clause 4 - Subsection 15(6)

7.       Subsection 15(6) references subsection 7(4), however, the Navigation (Consequential Amendments) Act 2012 removed subsection 7(4). This amendment will allow subsection 15(6) to remain in effect, ensuring that laws that give effect to paragraphs 1, 2 and 3 of the Article VII of the Convention also remain in effect.  

Clause 5 - Paragraph 15(7)(a)

8.       Subsection 15(7)(a) references subsection 7(4), however, the Navigation (Consequential Amendments) Act 2012 removed subsection 7(4). This amendment will ensure a complete definition is provided. This will have the effect of clarifying which insurance certificate is relevant for a ship that is a regulated Australian vessel and which insurance certificate is relevant for a ship that is not a regulated Australian vessel.

Clause 6 - At the end of paragraphs 15(7)(b) and (c)

9.       This clause introduces a minor technical amendment to add the missing conjunction “or” at the end of these paragraphs. This is consistent with the drafting of the adjacent paragraphs.

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

Clause 7 - Section 3 (definition of domestic voyage ship)

10.   Currently the definition in section 3 of the Act for ‘ domestic voyage ship ’ is “has the meaning given by section 10(3)”, however there is no longer a section 10(3) as it was removed by the Navigation (Consequential Amendments) Act 2012. This clause will remove the definition of domestic voyage ship.

Clause 8 - Section 14

11.   This clause will insert the correct term in section 14 by replacing the reference to “a domestic voyage ship”, with “a ship that is not a regulated Australian vessel” to make it consistent with clause 9 in this Bill.

Clause 9 - Section 15 (table item 1)

12.   This clause will clarify which insurance certificate is appropriate in relation to a ship that is a regulated Australian vessel and in relation to a ship that is not a regulated Australian vessel.

 

Part 3—Amendment of the Protection of the Sea (Prevention of Pollution from Ships) Act 1983

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

Clause 10 - Paragraph 3(1A)(b)

13.   The Maritime Legislation Amendment Act 2012 amended the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 to, among other things, replace the definition of ‘ sea near’ a State. However, an unintended consequence of the amendment is a number of offence provisions of the POTS Act that operate by reference to a sea near a state no longer apply in some waters of the sea that are within the limits of the State.  This amendment will reinstate the law so that it applies to any waters of the sea that are within the limits of the State.

Clause 11 - Paragraph 3(1C)(b)

14.   Similarly to paragraph 3(1A)(b), this clause will ensure that the provisions of the Act apply within any waters of the sea that are within the limits of an external Territory.

Clause 12 - Application of amendments

15.   This clause makes clear that amendments in Schedule 1 will not apply retrospectively.

SCHEDULE 2 - OTHER AMENDMENTS

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

Clause 1 - After subparagraphs 10A(1)(c)(ii) and (2)(c)(ii)

16.   The Protection of the Sea (Prevention of Pollution from Ships) Act 1983 gives effect to Australia’s treaty obligations under the International Convention for the Prevention of Pollution from Ships, 1973, which prohibits the carriage of heavy grade oil (HGO) in Antarctic waters. Clause 1 amends the legislation to close a loophole whereby HGO could be carried as ballast in Antarctic waters, by making it an offence for an Australian ship to carry HGO as ballast in the Antarctic Area.

Clause 2 - Subsections 10A(4) and (5)

17.   Clause 2 provides an exemption to the provisions in Clause 1, in the event that an Australian ship is carrying HGO for the purpose of securing the safety of a ship or saving life at sea.

Clause 3 - After subparagraphs 10B(1)(c)(ii) and (2)(c)(ii)

18.   Clause 3 amends the legislation, so that it is an offence for a foreign ship to carry HGO as ballast in the Australian Antarctic Territory, consistent with Australia’s treaty obligations.

 

Clause 4 - Subsection 10B(4) and (5)

19.   Clause 4 provides an exemption to the provisions in Clause 3, in the event that a foreign ship is carrying HGO for the purpose of securing the safety of a ship or saving life at sea.

Clause 5 - Application of amendments

20.   Clause 5 clarifies that the amendments to the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 by Schedule 2 - Other Amendments, do not apply to acts or omissions which occurred before Schedule 2 commenced.