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Protection of the Sea (Prevention of Pollution from Ships) Amendment Bill 2002

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2002

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

PROTECTION OF THE SEA (PREVENTION OF POLLUTION FROM SHIPS) AMENDMENT BILL 2002

 

 

 

 

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Transport and Regional Services,

the Honourable John Anderson , MP)



PROTECTION OF THE SEA (PREVENTION OF POLLUTION FROM SHIPS) AMENDMENT BILL 2002

 

 

OUTLINE

 

The purpose of the Bill is to amend the Protection of the Sea (Prevention of Pollution from Ships) Act 1983  (“the Pollution Prevention Act”).  This Bill corrects unintended effects of the International Maritime Convention Legislation Amendment Act 2001 (“the IMCLA Act”) which amended the Pollution Prevention Act.  This Bill provides offence provisions if there is an escape or discharge of pollutants (eg. oil, noxious substances, garbage) from a ship in the Exclusive Economic Zone.

 

 

Financial impact statement

 

There is no financial impact.

 

 

List of Abbreviations used in this Explanatory Memorandum

 

IMCLA Act                            the International Maritime Convention Legislation Amendment Act 2001

 

MARPOL 73/78                     International Convention for the Prevention of Pollution from Ships, 1973 as amended by the Protocol of 1978

 

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



PROTECTION OF THE SEA (PREVENTION OF POLLUTION FROM SHIPS) AMENDMENT BILL 2002

 

 

 

NOTES ON CLAUSES

 

Clause 1: Short Title

 

1.       Clause 1 is a formal provision specifying the title of the proposed Act.

 

Clause 2: Commencement

 

2.       Sections 1 to 3 of the proposed Act will commence on the day on which it receives Royal Assent.

 

3.       Schedule 1 Items 1 to 6 and 9 to 10 of the proposed Act will commence on the day after it receives Royal Assent.

 

4.       Items 7 and 8 amend section 26D of the Pollution Prevention Act, as amended by the IMCLA Act.  Section 26D is contained in Division 2 of Part IIIB of the Pollution Prevention Act.  That Division has not yet commenced.  The amendments to section 26D contained in Item 92 of Schedule 3 of the IMCLA Act will commence immediately after Division 2 of Part IIIB commences.  The amendments to section 26D contained in this Bill will commence immediately after the IMCLA Act amendments commence.

 

Clause 3: Schedule(s)

 

5.       Clause 3 is a formal clause indicating that each Act specified in a Schedule to the Bill is amended as set out in the relevant Schedule.

 

 

SCHEDULE 1 - Amendments

 

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

 

Item 1 - Paragraph 9(1)(c)

 

Item 1 repeals existing paragraph 9(1)(c) in the Pollution Prevention Act and replaces it with a new paragraph 9(1)(c).

 

Subsection 9(1) of the Pollution Prevention Act provides that it is an offence for a person to recklessly or negligently engage in conduct which causes the discharge of oil or oily mixtures from a ship into the sea.  The new paragraph 9(1)(c) sets out the geographic limits of that offence.  The new paragraph provides that the offence can occur in one of three regions:

·          where the discharge is into the sea near a State or Territory, and the relevant State or Territory does not have a law that gives effect to those parts of MARPOL 73/78 relating to the discharge from ships of oil or an oily mixture;

·          where the discharge is into the exclusive economic zone; or

·          in the case of Australian ships, where the discharge is into the sea beyond the exclusive economic zone.

 

The new paragraph 9(1)(c) differs in effect from the existing paragraph 9(1)(c) only in that it extends the geographic coverage of the offence to discharges from either Australian or foreign ships in the exclusive economic zone.

 

Item 2 - Paragraph 9(1B)(b)

 

Item 2 repeals existing paragraph 9(1B)(b) in the Pollution Prevention Act and replaces it with a new paragraph 9(1B)(b).

 

Subsection 9(1B) of the Pollution Prevention Act provides that the master and owner of a ship are guilty of an offence of strict liability if there is a discharge of oil or an oily mixture from their ship into the sea.  The new paragraph 9(1B)(b) sets out the geographic limits of that offence.  The new paragraph provides that the offence can occur in one of three regions:

·          where the discharge is into the sea near a State or Territory, and the relevant State or Territory does not have a law that gives effect to those parts of MARPOL 73/78 relating to the discharge from ships of oil or an oily mixture;

·          where the discharge is into the exclusive economic zone; or

·          in the case of Australian ships, where the discharge is into the sea beyond the exclusive economic zone.

 

The new paragraph 9(1B)(b) differs in effect from the existing paragraph 9(1B)(b) only in that it extends the geographic coverage of the offence to discharges from either Australian or foreign ships in the exclusive economic zone.

 

Item 3 - Paragraph 21(1)(c)

 

Item 3 repeals existing paragraph 21(1)(c) in the Pollution Prevention Act and replaces it with a new paragraph 21(1)(c).

 

Subsection 21(1) of the Pollution Prevention Act provides that it is an offence for a person to recklessly or negligently engage in conduct which causes the discharge into the sea from a ship of a liquid substance or a mixture containing a liquid substance, carried as cargo.  The new paragraph 21(1)(c) sets out the geographic limits of that offence.  The new paragraph provides that the offence can occur in one of three regions:

·          where the discharge is into the sea near a State or Territory, and the relevant State or Territory does not have a law that gives effect to those parts of MARPOL 73/78 relating to the discharge from ships of liquid substances carried as cargo;

·          where the discharge is into the exclusive economic zone; or

·          in the case of Australian ships, where the discharge is into the sea beyond the exclusive economic zone.

 

The new paragraph 21(1)(c) differs in effect from the existing paragraph 21(1)(c) only in that it extends the geographic coverage of the offence to discharges from either Australian or foreign ships in the exclusive economic zone.

 



Item 4 - Paragraph 21(1B)(b)

 

Item 4 repeals existing paragraph 21(1B)(b) in the Pollution Prevention Act and replaces it with a new paragraph 21(1B)(b).

 

Subsection 21(1B) of the Pollution Prevention Act provides that the master and owner of a ship are guilty of an offence of strict liability if there is a discharge into the sea from their ship of a liquid substance or a mixture containing a liquid substance, carried as cargo.  The new paragraph 21(1B)(b) sets out the geographic limits of that offence.  The new paragraph provides that the offence can occur in one of three regions:

·          where the discharge is into the sea near a State or Territory, and the relevant State or Territory does not have a law that gives effect to those parts of MARPOL 73/78 relating to the discharge from ships of liquid substances carried as cargo;

·          where the discharge is into the exclusive economic zone; or

·          in the case of Australian ships, where the discharge is into the sea beyond the exclusive economic zone.

 

The new paragraph 21(1B)(b) differs in effect from the existing paragraph 21(1B)(b) only in that it extends the geographic coverage of the offence to discharges from either Australian or foreign ships in the exclusive economic zone.

 

Item 5 - Paragraph 26AB(1)(c)

 

Item 5 repeals existing paragraph 26AB(1)(c) in the Pollution Prevention Act and replaces it with a new paragraph 26AB(1)(c).

 

Subsection 26AB(1) of the Pollution Prevention Act provides that it is an offence for a person to recklessly or negligently engage in conduct which results in the jettisoning from a ship of a harmful substance carried as cargo in packaged form.  The new paragraph 26AB(1)(c) sets out the geographic limits of that offence.  The new paragraph provides that the offence can occur in one of three regions:

·          where the jettisoning is into the sea near a State or Territory, and the relevant State or Territory does not have a law that gives effect to those parts of MARPOL 73/78 relating to the jettisoning from ships of harmful substances carried as cargo in packaged form;

·          where the jettisoning is into the exclusive economic zone; or

·          in the case of Australian ships, where the jettisoning is into the sea beyond the exclusive economic zone.

 

The new paragraph 26AB(1)(c) differs in effect from the existing paragraph 26AB(1)(c) only in that it extends the geographic coverage of the offence to jettisoning from either Australian or foreign ships in the exclusive economic zone.

 

Item 6 - Paragraph 26AB(3)(b)

 

Item 6 repeals existing paragraph 26AB(3)(b) in the Pollution Prevention Act and replaces it with a new paragraph 26AB(3)(b).

 

Subsection 26AB(3) of the Pollution Prevention Act provides that the master and owner of a ship are guilty of an offence of strict liability if a harmful substance (carried as cargo in packaged form) is jettisoned from their ship.  The new paragraph 26AB(3)(b) sets out the geographic limits of that offence.  The new paragraph provides that the offence can occur in one of three regions:

·          where the jettisoning is into the sea near a State or Territory, and the relevant State or Territory does not have a law that gives effect to those parts of MARPOL 73/78 relating to the jettisoning from ships of harmful substances carried as cargo in packaged form;

·          where the jettisoning is into the exclusive economic zone; or

·          in the case of Australian ships, where the jettisoning is into the sea beyond the exclusive economic zone.

 

The new paragraph 26AB(3)(b) differs in effect from the existing paragraph 26AB(3)(b) only in that it extends the geographic coverage of the offence to jettisoning from either Australian or foreign ships in the exclusive economic zone.

 

Item 7 - Paragraph 26D(1)(c)

 

Item 7 repeals paragraph 26D(1)(c) in the Pollution Prevention Act, as it will be amended by Item 92 of Schedule 3 of the International Maritime Conventions Legislation Amendment Act 2001 (“the IMCLA Act”) and replaces it with a new paragraph 26D(1)(c).  Section 26D of the Pollution Prevention Act and Item 92 of Schedule 3 of the IMCLA Act have not yet commenced.

 

Upon the commencement of section 26D of the Pollution Prevention Act (as amended by Item 92 of Schedule 3 of the IMCLA Act), subsection 26D(1) will provide that is an offence for any person to engage in reckless or negligent conduct that results in the discharge of sewage from a ship into the sea.

 

The new paragraph 26D(1)(c) sets out the geographic limits of that offence.  The new paragraph provides that the offence can occur in one of three regions:

·          where the discharge is into the sea near a State or Territory, and the relevant State or Territory does not have a law that gives effect to those parts of MARPOL 73/78 relating to the discharge of sewage from ships;

·          where the discharge is into the exclusive economic zone; or

·          in the case of Australian ships, where the discharge is into the sea beyond the exclusive economic zone.

 

The new paragraph 26D(1)(c) differs in effect from paragraph 26D(1)(c) (as amended by the IMCLA Act) only in that it extends the geographic coverage of the offence to discharges from either Australian or foreign ships in the exclusive economic zone.

 

Item 8 - Paragraph 26D(3)(b)

 

Item 8 repeals paragraph 26D(3)(b) in the Pollution Prevention Act, as it will be amended by Item 92 of Schedule 3 of the IMCLA Act and replaces it with a new paragraph 26D(3)(b).  Section 26D of the Pollution Prevention Act and Item 92 of Schedule 3 of the IMCLA Act have not yet commenced.

 

Upon the commencement of section 26D of the Pollution Prevention Act (as amended by Item 92 of Schedule 3 of the IMCLA Act), subsection 26D(3) will provide that the master and owner of a ship are guilty of an offence of strict liability if there is discharge of sewage from their ship into the sea.

 

The new paragraph 26D(3)(b) sets out the geographic limits of that offence.  The new paragraph provides that the offence can occur in one of three regions:

·          where the discharge is into the sea near a State or Territory, and the relevant State or Territory does not have a law that gives effect to those parts of MARPOL 73/78 relating to the discharge of sewage from ships;

·          where the discharge is into the exclusive economic zone; or

·          in the case of Australian ships, where the discharge is into the sea beyond the exclusive economic zone.

 

The new paragraph 26D(3)(b) differs in effect from paragraph 26D(3)(b) (as amended by the IMCLA Act) only in that it extends the geographic coverage of the offence to discharges from either Australian or foreign ships in the exclusive economic zone.

 

Item 9 - Paragraph 26F(1)(c)

 

Item 9 repeals existing paragraph 26F(1)(c) in the Pollution Prevention Act and replaces it with a new paragraph 26F(1)(c).

 

Subsection 26F(1) of the Pollution Prevention Act provides that it is an offence for a person to engage in reckless or negligent conduct that results in the disposal of garbage from a ship into the sea.  The new paragraph 26F(1)(c) sets out the geographic limits of that offence.  The new paragraph provides that the offence can occur in one of three regions:

·          where the disposal is into the sea near a State or Territory, and the relevant State or Territory does not have a law that gives effect to those parts of MARPOL 73/78 relating to the disposal of garbage;

·          where the disposal is into the exclusive economic zone; or

·          in the case of Australian ships, where the disposal is into the sea beyond the exclusive economic zone.

 

The new paragraph 26F(1)(c) differs in effect from the existing paragraph 26F(1)(c) only in that it extends the geographic coverage of the offence to disposal of garbage from either Australian or foreign ships in the exclusive economic zone.

 

Item 10 - Paragraph 26F(3)(b)

 

Item 10 repeals existing paragraph 26F(3)(b) in the Pollution Prevention Act and replaces it with a new paragraph 26F(3)(b).

 

Subsection 26F(3) of the Pollution Prevention Act provides that the master and owner of a ship are guilty of an offence of strict liability if there is disposal of garbage from their ship into the sea.  The new paragraph 26F(3)(b) sets out the geographic limits of that offence.  The new paragraph provides that the offence can occur in one of three regions:

·          where the disposal is into the sea near a State or Territory, and the relevant State or Territory does not have a law that gives effect to those parts of MARPOL 73/78 relating to the disposal of garbage;

·          where the disposal is into the exclusive economic zone; or

·          in the case of Australian ships, where the disposal is into the sea beyond the exclusive economic zone.

 

The new paragraph 26F(3)(b) differs in effect from the existing paragraph 26F(3)(b) only in that it extends the geographic coverage of the offence to disposal of garbage from either Australian or foreign ships in the exclusive economic zone.