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Protection of the Sea Legislation Amendment Bill 2018

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2016-2017-2018

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

PROTECTION OF THE SEA LEGISLATION AMENDMENT BILL 2018

 

 

 

 

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Regional Development, Territories and Local Government, the Hon Dr John McVeigh MP)

 

 



 

 

PROTECTION OF THE SEA LEGISLATION AMENDMENT BILL 2018

 

OUTLINE

 

The purpose of the Bill is to amend the law relating to the protection of the sea, and for related purposes.

 

The Bill amends the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (the POTS Act) to implement amendments to Annex V of the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto (MARPOL).

 

The Bill will ensure that shippers classify and declare their solid bulk cargoes as harmful to the marine environment (HME), or non-HME, and inform the master of this classification. This will allow the master to determine the appropriate manner of discharge for the residues of these cargoes, according to whether the ship is located outside or within a special area or Arctic waters. The criteria for determining the classification of the cargoes has been inserted into Appendix I to Annex V of MARPOL. Previously these criteria were referenced in the 2012 Guidelines for the implementation of MARPOL Annex V.

 

The Bill also includes a minor amendment to the POTS Act to ensure it correctly references the relevant MARPOL subparagraph, following the amendments to Annex V. The Bill will update provisions in the Act relating to regulations and Marine Orders to ensure consistency with the Navigation Act 2012 and improve the application of those provisions.

 

The Bill will also make a machinery change to the Protection of the Sea (Shipping Levy Collection) Act 1981 , removing the need for regulations to prescribe the manner in which a Protection of the Sea levy notice may be served in particular circumstances. This will allow the Protection of the Sea (Shipping Levy Collection) Regulations to be repealed.

 

Financial impact statement

 

There is no financial impact arising from this Bill.

 

 



 

Statement of Compatibility with Human Rights

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

 

Protection of the Sea Legislation Amendment Bill 2018

 

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 purpose of the Bill is to amend the law relating to the protection of the sea, and for related purposes.

 

The Bill amends the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (the POTS Act) to implement amendments to Annex V of the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto (MARPOL).

 

The Bill will ensure that shippers classify and declare their solid bulk cargoes as harmful to the marine environment (HME), or non-HME, and inform the master of this classification. This will allow the master to determine the appropriate manner of discharge for the residues of these cargoes, according to whether the ship is located outside or within a special area or Arctic waters. The criteria for determining the classification of the cargoes has been inserted into Appendix I to Annex V of MARPOL. Previously these criteria were referenced in the 2012 Guidelines for the implementation of MARPOL Annex V.

 

The Bill also includes a minor amendment to the POTS Act to ensure it correctly references the relevant MARPOL subparagraph, following the amendments to Annex V. The Bill will update provisions in the Act relating to regulations and Marine Orders to ensure consistency with the Navigation Act 2012 and improve the application of those provisions.

 

The Bill will also make a machinery change to the Protection of the Sea (Shipping Levy Collection) Act 1981 , removing the need for regulations to prescribe the manner in which a Protection of the Sea levy notice may be served in particular circumstances. This will allow the Protection of the Sea (Shipping Levy Collection) Regulations to be repealed.

Human rights implications

The Bill does not unacceptably limit any human rights.

 

The key provisions of the Bill are confined to providing amendments to existing legislation to ensure that Australia is meeting its international obligations on maritime environment matters, and making administrative amendments to ensure the most effective manner of implementing those obligations domestically.

 

The Bill amends provisions that provide defences to an existing strict liability offence that carries a reverse burden of proof.  Specifically, a new requirement relating to the classification and declaration of certain cargoes has been included as part of the exceptions. A defendant who wishes to rely on these exceptions bears an evidential burden in relation to the matter.

 

The new limbs in the exceptions to the existing strict liability offence serve to ensure that shipping activities do not result in negative impacts on the marine environment, in line with our international obligations under MARPOL.

Conclusion

This 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 Regional Development, Territories and Local Government, the Hon Dr John McVeigh MP

NOTES ON CLAUSES

 

Clause 1: Short Title

 

1.       This is a formal provision that specifies that the Act may be cited as the Protection of the Sea Legislation Amendment Act 2018.

 

Clause 2: Commencement

 

2.       This clause sets out that Clauses 1 to 3 of the Act are to commence on the day this Act receives the Royal Assent. Schedule 1 commences the later of 1 March 2018 and the day after this Act receives the Royal Assent, and Schedule 2 commences the day after this Act receives the Royal Assent.

 

Clause 3: Schedules

 

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

 

SCHEDULE 1 - MAIN AMENDMENTS

 

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

 

Item 1 - After paragraph 26F(7)(d)

 

4.       This item will insert a new requirement to be met in order to benefit from the exception relating to the discharge of cargo residues outside a special area or Arctic waters contained in s 26F(7). In order to satisfy the exception to the strict liability prohibition of discharge of garbage into the sea, the master of the ship must have a written declaration made by the shipper relating to the nature of the cargoes on board. Specifically, this declaration must satisfy two requirements. First, that solid bulk cargoes (other than grain) be classified in accordance with the criteria in Appendix I to Annex V of MARPOL. Secondly, resulting from this classification, the cargoes must have been declared not to be harmful to the marine environment.

 

Item 2 - After paragraph 26F(8C)(c)

 

5.       This item will insert a new requirement to be met in order to benefit from the exception relating to the discharge of cargo residues contained in hold wash water in a special area or Arctic waters contained in s 26F(8C). In order to satisfy the exception to the strict liability prohibition of discharge of garbage into the sea, the master of the ship must have a written declaration made by the shipper relating to the nature of the cargoes on board. Specifically, this declaration must satisfy two requirements. First, that solid bulk cargoes (other than grain) be classified in accordance with the criteria in Appendix I to Annex V of MARPOL. Secondly, resulting from this classification, the cargoes must have been declared not to be harmful to the marine environment.

 

 

 

Item 3 - Paragraph 26F(8C)(f)

 

6.       This item will update the reference in the POTS Act to the new MARPOL subparagraph as a result of the amendments to Annex V.

 

Item 4 - At the end of section 33

 

7.       This item will insert a new subsection that allows regulations to make provisions relating to matters by applying, adopting or incorporating an instrument or other document. It replicates the equivalent provision in s 341(2) of the Navigation Act 2012. The POTS Act, together with the Navigation Act 2012, facilitates the domestic implementation of MARPOL. It is intended that regulations made under each of these Acts have effect in the same manner, in order to ensure Australia’s MARPOL requirements are being implemented consistently under both Acts.

 

8.       It is common practice in the International Maritime Organization (IMO) to agree amendments to MARPOL, then subsequently release guidelines for the proper implementation of those amendments. The intention of this provision is to ‘future proof’ the POTS Act and any regulations, so that amendment is not required on a regular basis to simply refer to new or updated guidance material. The key documents expected to be incorporated are IMO Guidelines, which are frequently amended and available freely on the IMO website. Retrospective application is neither anticipated nor intended in this provision.

 

Item 5 - Subsections 34(4), (5) and (6)

 

9.       This item will remove references to ‘made pursuant to the regulations’ from section 34 of the POTS Act to improve clarity and readability of the section. It is not intended to have substantive effect on the operation of the provision.

 

Item 6 - Subsection 34(8)

 

10.   This item will replace the existing subsection, to allow orders to make provisions relating to matters by applying, adopting or incorporating an instrument or other document. It replicates the equivalent provision in s 344(4) of the Navigation Act 2012. The POTS Act, together with the Navigation Act 2012, facilitates the domestic implementation of MARPOL. It is intended that orders made under each of these Acts have effect in the same manner, in order to ensure Australia’s MARPOL requirements are being implemented consistently under both Acts.

 

11.   It is common practice in the International Maritime Organization (IMO) to agree amendments to MARPOL, then subsequently release guidelines for the proper implementation of those amendments. The intention of this provision is to ‘future proof’ the POTS Act and any orders, so that amendment is not required on a regular basis to simply refer to new or updated guidance material. The key documents expected to be incorporated are IMO Guidelines, which are frequently amended and available freely on the IMO website. Retrospective application is neither anticipated nor intended in this provision.

 

 

 

Item 7 - Application provision

 

12.   This item stipulates that the amendments of section 26F of the POTS Act will apply in relation to the discharge of garbage from a ship on or after the commencement of this item.

 

SCHEDULE 2 - Other amendments

 

Protection of the Sea (Shipping Levy Collection) Act 1981

 

Item 1 - Subsection 8(3)

 

13.   This item will remove the requirement for regulations to prescribe the manner in which a Protection of the Sea levy notice may be served in certain circumstances. The intention of this provision is to impliedly repeal the Protection of the Sea (Shipping Levy Collection) Regulations and allow rules about service under the Acts Interpretation Act 1901 and the Electronic Transactions Act 1999 to apply instead. It is not intended to have a substantive effect on the operation of the existing levy collection regime.