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Wednesday, 11 March 1981
Page: 656

Mr MORRIS(4.55) —The six Bills in the package of legislation that is before the House deal with the protection of the sea and maritime areas from ship-based oil pollution. The first three implement the provisions of international conventions and protocols to those conventions. These are the Protection of the Sea (Civil Liability) Bill 1981, the Protection of the Sea (Powers of Intervention) Bill 1981 and the Protection of the Sea (Discharge of Oil from Ships) Bill 1981.

The fourth is the Navigation (Protection of the Sea) Amendment Bill 1981, which contains provisions relating to parts of the three above-mentioned Bills. The final two Bills, the Protection of the Sea (Shipping Levy) Bill 1981 and the Protection of the Sea (Shipping Levy Collection) Bill 1981, relate to the collection of a levy on the shipping industry to maintain supplies of equipment to combat pollution of the sea by oil. These two Bills repeal and replace existing Acts. The Opposition does not oppose the Bills.

The first four Bills deal with prevention of pollution of the sea and maritime areas, and the last two with the funding of equipment to combat pollution, if it should occur. The Protection of the Sea (Civil Liability) Bill 1981 seeks to implement the provisions of the International Convention on Civil Liability for Oil Pollution Damage 1969 and the 1976 Protocol to that Convention. The Convention has been operative since 1975 as an international treaty and the Protocol will come into force internationally on 8 April 1981. The Convention and Protocol were drawn up under the auspices of the Inter-Governmental Maritime Consultative Organisation, which is commonly referred to as IMCO, a specialised agency of the United Nations. It acts as the international governmental forum which debates and drafts various conventions on maritime matters. IMCO conventions do not themselves constitute maritime law but the member states of IMCO, now numbering more than 100, base their own maritime laws on them. This results in consistent standards being adopted for the international shipping industry, to the advantage of all concerned.

The Bill requires ships carrying more than 2,000 tons of oil in bulk, as cargo, to maintain insurance certificates to cover their liability for pollution damage that they may cause. It enables shipowners to limit their liability to a rate of approximately $142 per ton of the ship's registered tonnage, up to a limit of about $14.9m. As the Minister for Transport (Mr Hunt) pointed out in his second reading speech, the maximum liability that could arise for an Australian fleet tanker would be $7.8m. The Bill preserves the legislation of a State or Territory and, consequently, its provisions do not cover intra-State trading vessels. Government non-commercial vessels, basically warships, and Australian fishing vessels on non-overseas voyages are also exempt.

The Bill also provides what appear to be appropriate penalties against vessels contravening, or failing to comply with, its provisions. Ships, including foreign ships still within Australian territorial waters, can be detained by the Minister until the penalties imposed are paid, and there is to be no time limit on prosecutions.

The Civil Liability Convention, as it is called, places liability for pollution damage on the owner of the ship from which the oil escaped or was discharged. It represents the legal inter-governmental version of a voluntary scheme set up by the major tanker-owning oil companies in 1969. This scheme is called the Tanker Owners' Voluntary Agreement Concerning Liability for Oil Pollution Damage and in its abbreviated form is known as TOVALOP. This scheme still exists and will do until all coastal states adopt the Civil Liability Convention. There are corresponding IMCO and industry agreements which place liability on the cargo owners, thus supplementing the liability of the tanker owners to cover the costs of pollution clean-ups and compensation for damages caused. These schemes also indemnify the tanker owners for part of their liability under their respective agreements. The industry agreement is called the Contract Regarding Interim Supplement to Tanker Liability for Oil Pollution, abbreviated to CRISTAL, and has been operative since 1971. The IMCO Convention is called the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage and has been operative since 1978.

As far as I am aware, Australia is not a contracting State to the IMCO Fund Convention that I have just mentioned. My latest advice is that the matter is still under consideration by the Government. Neither has the Government ratified the international Convention for the Prevention of Pollution from Ships of 1973. Overall, the Australian Government has a poor track record of ratification of IMCO conventions and protocols, and of adopting the recommendations of the House of Representatives Standing Committee on Environment and Conservation following its inquiry of 1978 into the prevention and control of oil pollution in the marine environment. The Committee's recommendation that the Australian Government ratify the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers 1978 I believe is still unimplemented. My colleague the honourable member for Cunningham (Mr West) will refer later in this debate to more matters relating to that subject.

The protection of the Sea (Powers of Intervention) Bill 1981 seeks to implement the provisions of the 1969 International Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, and the provision of the 1973 protocol to that Convention. The Convention has been in force since 1975. Although the protocol is not yet in force internationally the Bill provides that its provisions will operate in the case of Australia. The Bill also permits the Minister to take any measures on the high seas deemed necessary to prevent, mitigate or eliminate dangers to the coastline or related interests of Australia from pollution or the threat of pollution by oil and noxious substances. This covers both Australian and foreign ships. In cases outside the scope of the Convention or protocol, reliance is made on customary international law. In the circumstances, the penalties for breaching the provisions or directions appear to be appropriate.

The Protection of the Sea (Discharge of Oil from Ships) Bill 1981 will give effect to the provisions of the 1954 International Convention for the Prevention of Pollution of the Sea by Oil and its subsequent amendments. The Bill will repeal and replace the Pollution of the Sea by Oil Act 1960 and its subsequent amendments which gave effect to the provisions of the 1954 Convention. The two 1971 amendments are of great significance. One provides increased protection for the Great Barrier Reef by prohibiting oil discharges less than 50 miles from the outer edge of the reef. As I mentioned earlier, that too is a matter that my colleague and shadow Minister for Environment and Conservation, the honourable member for Cunningham, will give greater attention to at a later stage of the debate. The other amendment imposes limits on the size and location of cargo tanks in Australian tankers in order to minimise oil outflow if an accident or incident occurs. The Bill prohibits the deliberate discharge of oil or oily mixtures into seas under Federal jurisdiction. It preserves the operation of State and Territory legislation which covers territorial seas and inland waters.

The penalties for infringements against the Bill's provisions seem appropriate. Conformity of the penalties imposed by the Commonwealth with those imposed by the States and Territory is essential. I understand that movements towards conformity are in train and I urge those involved to continue their work to enable convictions to be secured where blame properly lies and to ensure that appropriate penalties are imposed. The Bill provides that every Australian ship must carry an oil book in which is recorded all oil transfers, ballast operations and accidental or intentional discharges. High penalties are provided for infringements. No time limit is imposed upon the launching of prosecution. Outside the 50-mile limit the Bill allows for a minimal discharge in accordance with IMCO provisions.

The Navigation (Protection of the Sea) Amendment Bill 1981 repeals Part VIIA of the principal Act, the Navigation Act, which contains provisions relating to civil liability and intervention in shipping casualties. As the Minister for Transport stated in his second reading speech, these provisions will be given extended application in the Protection of the Sea (Civil Liability) Bill 1981 and the Protection of the Sea (Powers of Intervention) Bill 1981. The Bill inserts a new Division 12 in Part IV of the Navigation Act. This addition implements the 1971 Tanker Amendment of the Convention for the Prevention of Pollution of the Sea by Oil, which I mentioned in relation to the Protection of the Sea (Discharge of Oil from Ships) Bill 1981. If a planned or modified tanker meets the requirements of the new provisions it is to be issued with a tanker construction certificate. The Bill provides that these certificates must be produced for inspectors on demand and that the tankers must be surveyed periodically. Large penalties may be imposed if these provisions are contravened. The power is also provided for the Minister to impose significant penalties on foreign tankers not complying with instructions given to them because they were considered a danger to the environment due to the characteristics of their construction not according with the provisions of the tanker annexe.

These four Bills relate to the implementation of IMCO conventions and protocols which are all aimed at preventing pollution of the marine and maritime environment from ship-based oil and discharges of other noxious substances. The Government should follow these Bills with the ratification of the other IMCO conventions and the full implementation of the recommendations of the Standing Committee on Environment and Conservation relating to the control of oil pollution. That is the report to which I referred earlier and which was presented to Parliament in 1978. There is no room for complacency in this problem. In early 1979, in response to a question I placed on notice to the Minister for Transport, I was advised by the Minister that of 230 tanker inspections carried out between 1 August 1977 and 31 December 1978, 122 cases of sub-standard conduct of procedures or breaches of tanker safety procedures were revealed; that is, there were breaches of the tanker safety code in over half of the inspections carried out. In those 122 cases, 480 instances of deficiencies in performance of the code were revealed. A great many of those deficiencies arose from flag of convenience vessels. That relates to an argument the Opposition has put in this chamber many times-the use of cheap rate, low labour cost, flag of convenience vessels which carry with them the serious impediment of heightened danger and risk of pollution of the environment. Many of these deficiencies were serious and could have led to very dangerous situations. They included instances of faulty fire appliances, gas indicators and navigation equipment as well as defective life-saving appliances, flame screens and cargo valves. Such practices, and such sub-standard compliance with the tanker safety code pose a serious threat to all Australians who happen to live near tanker terminals-but particularly to those population centres located around tanker terminals-as well as to the crews of those vessels.

There is also a grave threat to the environment from oil escaping from damaged vessels in our major harbours and terminal areas. In the period 1 June 1976 to 31 May 1977 almost 90 oil pollution incidents involving ships in Australian waters were reported. Between 1 January 1978 and 31 December 1980 there were about 85 oil spills in Botany Bay. According to the Maritime Services Board of New South Wales, some 309,400 litres of oil were spilt into Botany Bay in the decade 1970 to 1980. Many of these spills were small; however, the continual slow release of oil from repeated spills in a confined space such as a harbour or bay is still most detrimental to the marine environment. In areas such as Botany Bay, which is the home of oyster farms, sea-grass beds, many varieties of birdlife and fish, and mangrove swamps, continuous pollution over a long period will have drastic long term repercussions. If we add to this the occasional big spill, like the holing of the World Encouragement in September 1979 in Botany Bay, when 20 tonnes of crude oil escaped into the bay, then the costs of oil pollution in environmental damage, clean-up costs and civil damage suits are high indeed. Because of the population and environment of areas such as Botany Bay, these areas must be protected.

The Protection of the Sea (Shipping Levy) Bill 1981 and the Protection of the Sea (Shipping Levy Collection) Bill 1981 deal with the establishment and collection of funds to maintain equipment to combat oil pollution from ships. The former Bill repeals and replaces the Pollution of the Sea by Oil (Shipping Levy) Act 1979 and maintains the provisions of the Act with minor amendments. The latter Bill repeals and replaces the Pollution of the Sea by Oil (Shipping Levy Collection) Act 1979. It also maintains existing provisions with slight amendments. The shipping levy Bill provides for a levy on ships carrying at least 10 tonnes of oil in bulk, both in bunkers and tanks, and which exceed 100 gross registered tonnes. The rate is charged every quarter and is set at a maximum 4c per ton per quarter. A minimum collection of not more than $25 is prescribed to ensure that collections are economic. When the original legislation was enacted in 1972, the levy was set at 1c per ton. This was subsequently reduced to 0.8c per ton, which is the current rate.

The Protection of the Sea (Shipping Levy Collection) Bill 1981 relates to the collection of the levy. The Bill redefines 'oil' to include those oils regarded as constituting possible pollutants of the sea. These oils are included in the 10 tonnes calculation. The legislation is restricted to 'oil in bulk', as oil in containers, such as in drums and cans and so on, is not considered to be a significant potential pollution hazard. The Bill provides for the detention of a ship if the levy is not paid. There are also penalties for offences against any regulations. These are set at a maximum of $200. The fine against the master of a detained ship that goes to sea unlawfully is set at a maximum of $500. I suggest to the Minister that these fines appear incongruous compared with the amount that a vessel could be paying if it had not escaped to sea. I suggest that a sliding scale of penalties, equal to the income lost to the Government in the event of infringement, would seem a more appropriate method of determining the fine on conviction.

The Protection of the Sea (Shipping Levy Bill) and the Protection of the Sea (Shipping Levy Collection) Bill set the levy rate and establish the procedure for collection of the levy to fund the National Plan to Combat Pollution of the Sea by Oil, the Australian joint Federal-State machinery to combat oil pollution from ships. It is strange that not once in the two Bills nor in the Minister's second reading speech, is there mention of the National Plan, which is after all the object of the levy. The present status of the National Plan is of paramount importance to any discussion of the protection of the marine and maritime environments. It is our second and last line of defence against oil pollution from ships if the preventive mechanisms on board ships, covered by provisions implementing various Intergovernmental Maritime Consultative Organisation conventions, fail in practice. The fact is they do fail and fail rather frequently, so the National Plan must be as efficient in combating oil spills as we can make it. The grounding of the Oceanic Grandeur in the Torres Strait in 1970, when 1,400 tonnes of oil was spilt, highlighted Australia's inability to deal with such problems. It spurred the development of an Australian plan to combat such incidents.

Basic divisions of responsibility between the Commonwealth and States were agreed upon at a meeting in 1971. The two levy Acts which I have mentioned were passed into law in 1972 and became operational with the National Plan on 1 October 1973. The primary purpose of the National Plan, as I have indicated, was to protect the environment. A loan of $1m was obtained from the Commonwealth to buy equipment, to be amortised by levy collections. By June 1976 the loan had been repaid and a reserve of $500,000 created. The levy was then reduced from 1c per ton to 0.8c per ton from 1 October 1976.

The National Plan was designed to finance and maintain equipment only for major incidents, leaving the States to deal with provision of equipment for minor spills. To emphasise this, the National Plan will meet only the costs for spills in excess of $500 or the costs of spills requiring more than 500 litres of dispersant. If a spill costs less than this then the States must seek direct reimbursement from the polluter. If it is more than this then the National Plan reimburses the States, on condition that the States impose their laws on the polluter to reimburse the National Plan. Any inability to identify the polluter thus leaves the States to foot the clean-up bill in cases costing under $500 each and the National Plan in cases above that figure. As time has demonstrated with this situation, it is often very difficult to identify the culprit in cases of small slicks but not with major discharges, so there is a slow, gradual loss to the State authorities.

Notwithstanding the avowed intent of the National Plan to adopt a cost recovery principle of the polluter pays, it often has a debt owing to it from the States attempting to obtain clean-up costs from the oil industry. To the best of my knowledge the Maritime Services Board of New South Wales, for instance, owes about $500,000 to the National Plan. That is a matter to which the Minister may be able to refer in his response. I understand it is attempting to obtain this amount from the oil industry for the costs of cleaning up after the industry's mistakes and accidents. It includes an amount of approximately $210,000 for the clean-up after the World Encouragement spill which I have mentioned. To the extent that this amount is not obtained from the polluter then the National Plan meets the bill. It is certainly not a picture of immediate payment.

The National Plan equipment consists of stockpiles of dispersant at eight centres around the coast and one central stockpile, including specialised equipment. It also owns skimmers, booms and other containing and recovering equipment, which are available to the States. Its mainstay, however, is dispersant. Prime responsibility for action against oil spills differs according to the area involved. In ports or harbours, the administative authority of the port or harbour has prime responsibility. State or territorial authorities have responsibilities for beaches, foreshores and territorial seas of Victoria and Tasmania. The Commonwealth has responsibility for other territorial seas and the high seas.

There is also a close working relationship with the petroleum industry's pollution combating organisation, the Petroleum Institute Environmental Conservation Executive-PIECE. Through this body, the States and the Territories have publicised a long held belief that the provisions of the national plan are not adequate to do the job. They may have been eight years ago but they are not now. As the Minister for Transport stated in his second reading speech, the Bills before us have been the object of detailed discussion with the States and Territories in the Marine and Ports Council of Australia. I presume that some modifications to aspects of the National Plan are in the pipeline.

I want to outline briefly some of the States' misgivings about parts of the National Plan. I trust that the Minister will later advise us on any proposed or negotiated alterations to the plan of which he is aware. The levy is set at 0.8c per tonne, that is, 20 per cent of the maximum permitted. This allows the three functions of the levy to be performed-the amortising of the loan, meeting costs which cannot be collected as the polluter is unidentifiable or is incapable of paying the costs and supplying and maintaining equipment. Since 1972 the area of responsibility that has increased most in terms of pollution hazards and associated costs is in ports and harbours. This is where most oil terminals are situated, where most tankers converge and where high population densities which are sensitive to environmental hazards, exist. These areas are the responsibilities of the States.

The States have asked for a large increase of the 0.8c per tonne levy. They claim this so that the National Plan can purchase adequate, modern equipment to prevent oil from polluting the environment as far as possible. This would involve the purchase of containment and recovery equipment such as booms and skimmers but not dispersant. Dispersant is cheap but is toxic, and oil is itself toxic. To recover oil is thus far more expensive but is far more environmentally sound than leaving toxic oil and dispersant in the marine environment. It is a different story entirely to provide adequate protection equipment to stop oil hitting a sensitive environment than to attempt to clean up after the damage is done when oil has struck the environment. If the National Plan is to perform its task of protecting the environment it must provide this containment and recovery equipment. If this involves an increase in the levy then the States have just reason to seek an adequate increase. It would seem on this evidence to be a valid, practical insurance policy against environmental degradation to ask the shipping industry to pay a higher levy.

At present the States are being forced to pay for these rising costs of protection equipment. The principle of polluter pays is turning into a principle of polluter and States pay. The Maritime Services Board of New South Wales, for instance, has recently purchased four Vikoma booms to protect Botany Bay, Sydney, Newcastle and Port Kembla at a combined cost of $280,000. It would also be useful to provide more funds for the training of groups of full time personnel skilled in anti-pollution techniques. It is of little use having sophisticated equipment for pollution control and environment protection unless we have trained people to use that equipment effectively. If there is a deficiency in adequate equipment to prevent spilt oil from harming the environment as an alternative to mopping up after the event, as I am led to believe is the case, then there is a justifiable case for more funds to be provided. This may involve an increase in the levy or a more equitable scheme altogether for collecting sufficient funds. Perhaps it could be related to the amount of bulk oil carried or even extended to shore-based refineries if national plan equipment is used in the clean-up following accidents or incidents involving shore-based operations.

The passage of the Bills we are discussing today will be an important step in developing Australia's capability for preventing oil spills from occurring and for protecting the environment in the event that they do occur. The Bills are thus not opposed by the Opposition but I invite the Minister for Transport, in his response, to advise the House what stage has been reached in discussions in respect of the national plan and what stage has been reached in the determination of a more appropriate levy.