Bills Digest No. 48 1999-2000 Environment and Heritage Legislation Amendment Bill 1999

Numerical Index | Alphabetical Index

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details

Passage History

Environment and Heritage Legislation Amendment Bill 1999

Date Introduced: 31 March 1999

House: Senate

Portfolio: Environment and Heritage

Commencement: 28 days after Royal Assent, except for provisions relating to the Australia-Indonesia Delimitation Treaty which commence when the Treaty enters into force for Australia.

Purpose

The Environment and Heritage Legislation Amendment Bill 1999 (the Bill) amends the Environment Protection (Sea Dumping) Act 1981 in order to implement the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972. It also amends the Sea Installations Act 1987 to allow the Environment Minister to issue and vary a permit for a sea installation which is located partly in Commonwealth waters and partly in the State or Territory coastal waters within three nautical miles of the territorial sea baseline.

Background

The Government's ocean policy was released in 1998, to coincide with the International Year of the Oceans. Australia's Oceans Policy sets out the planning and management framework for oceans and includes commitments to:

The Bill's proposed amendments to the Environment Protection (Sea Dumping) Act 1981 aim to implement the Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 (known as the 'London Convention'), and will ensure that the commitments set out in the Oceans Policy are fulfilled. The Bill was referred to the Environment, Communications Information Technology and the Arts Legislation Committee for an inquiry, and the Committee reported on 10 August 1999. The Committee recommended that the Bill be passed without amendment.(2)

International concern about marine pollution

Australia's Oceans Policy was developed in the context of concerns about the fragility of the marine environment. The last few decades have seen changing international attitudes to sea dumping, and a turning away from the adage that 'the solution to pollution is dilution'. International concern about the detrimental effects of dumping of wastes at sea culminated in the London Convention, which came into force on 30 August 1975.(3) The Convention was the first international convention to cover the issue of ocean dumping.(4) Australia ratified it on 21 August 1985, over a year after the Environment Protection (Sea Dumping) Act 1981 (Sea Dumping Act), which incorporated the Convention into Australian law, was proclaimed.(5)

The London Convention, and in turn the Sea Dumping Act, address sea dumping and do not purport to address all forms of marine pollution. They focus on the deliberate dumping of waste at sea by ships or aircraft.(6) The definition of sea dumping contained in Article 3 of the London Convention does not include material dumped in the sea from a land source, or the operational discharges from ships.(7) Similarly, the disposal of wastes related to the exploitation and offshore processing of sea-bed mineral resources is not covered by the Convention or the Act.(8)

Certain substances listed in Annex 1 of the London Convention cannot be dumped under the terms of the Convention. These include organohalogen compounds, mercury, cadmium, persistent plastics, crude oil and its wastes, and radioactive wastes. Though high level radioactive waste dumping has never been permitted by the London Convention, it did permit low level waste dumpings until 1994, when the Contracting Parties decided to stop all radioactive waste dumpings internationally.(9) Wastes which require a special permit are listed in Annex II and include arsenic, copper, lead and zinc.

The London Convention appears to have strongly influenced the content of the Convention for the Protection of the Natural Resources and Environment of the South Pacific Region (the Noumea Convention) and the Protocol for the Prevention of Pollution of the South Pacific Region by Dumping (the SPREP Protocol).(10) The current provisions of the Sea Dumping Act give effect to Australia's regional obligations under the SPREP Protocol(11), which is contained in Schedule 4 to the Act. Sections 9A-9D of the Act, which ban the dumping, loading and incineration of radioactive waste, fulfil obligations under Article 10 of the Convention for the Protection of the Natural Resources and Environment of the South Pacific Region.

The London Convention has been considerably strengthened by the 1996 Protocol, known as the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972. The Protocol is discussed below.

Other relevant Conventions

The London Convention, and the Australian legislation implementing it, do not address all issues arising from the dumping of waste and marine pollution. The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal 1989, addresses the shipping of wastes from one country to another.(12)

In practice, the London Convention may overlap with the International Convention for the Prevention of Pollution from Ships 1973 (MARPOL) and the 1978 Protocol.(13) MARPOL however is not aimed at deliberate sea dumping. It addresses discharges occurring as a result of maritime transport, such as oil spills, as well as operational discharges from ships, such as garbage or sewerage.'(14) In Australia, the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 implements the key provisions of MARPOL and the 1978 Protocol. This legislation is administered by the Australian Maritime Safety Authority (AMSA).(15)

Administration of the Sea Dumping Act

The Sea Dumping Act is administered by Environment Australia, except where dumping is to take place within the Great Barrier Reef Marine Park, in which case it is administered by the Great Barrier Reef Marine Park Authority.(16)

The Sea Dumping Act currently applies from the low water mark to the outer edge of the Australian Fishing Zone (AFZ) and to parts of the continental shelf beyond the limit of the AFZ.(17) If the Bill is passed, the Act will apply to Australia's Exclusive Economic Zone (see Main Provisions). It does not apply to waters within the limits of a State, for example Sydney Harbour.(18) Section 9(1) of the Act, known as the 'roll back' provision, allows the Environment Minister to publish a notice in the Commonwealth Gazette that certain provisions of the Sea Dumping Act no longer apply to the coastal waters of a State or the Northern Territory, if satisfied that the State or Northern Territory laws give effect to the London Convention and the SPREP Protocol in relation to their coastal waters. South Australia, Tasmania and Western Australia have legislated to this effect.(19) The Bill proposes to rewrite section 9 so that the Act will continue to apply to States and their coastal waters in relation to activities involving radioactive materials and prescribed materials, but the Act's operation will be limited where the State has given effect to the 1996 Protocol.

London Convention 1996 Protocol

The London Convention's 1996 Protocol is intended to replace the Convention's list of banned substances with a very restricted list of substances which may be dumped at sea with a permit.(20) The aim of the Protocol, as stated in its Preamble, is to oblige Contracting Parties to take effective measures to prevent, reduce and where practical eliminate pollution caused by dumping.

Australia was one of the 42 Contracting Parties that adopted the 1996 Protocol at a Special Meeting of Contracting Parties in 1996, and signed the Protocol on 31 March 1998. If the Bill is passed, it seems that Australia will move to ratify (i.e. confirm that it intends to be bound by) the Protocol.(21)

Article 26 provides a transitional period of up to five years for states to comply with the Protocol.(22) However, the Protocol's prohibition of incineration at sea or the dumping of radioactive waste or matter take effect immediately.(23)

Substances permitted to be dumped under the 1996 Protocol

Annex 1 of the Protocol permits the following substances to be dumped:

• dredged material
• sewage sludge
• fish waste, or material resulting from industrial fish processing operations
• vessels and platforms or other man-made structures at sea
• inert, inorganic geological material
• organic material of natural origin, and
• bulky items primarily comprising iron, steel, concrete and similarly unharmful materials for which the concern is physical impact, and limited to those circumstances where such wastes are generated at locations, such as small islands with isolated communities, having no practicable access to disposal options other than dumping.

Annex 2 of the Protocol sets out the procedure for assessing wastes or other matter that may be considered for dumping at sea. The Annex requires contracting parties to make further attempts to reduce the necessity for dumping. These are:

• waste prevention audit
• consideration of waste management options
• chemical, physical and biological properties
• an Action List
• dump-site selection
• assessment of potential effects
• monitoring, and
• permit and permit conditions

A summary of each of these elements of Annex 2 is contained in the Australian and New Zealand Environment and Conservation Council's (ANZECC) Interim Ocean Disposal Guidelines published in December 1998.(24)

The 'Action List' which should be established under Annex 2 provides a mechanism for screening wastes which are candidates for dumping, and their constituents, on the basis of their potential effects of human health and the marine environment. Action Lists are intended to specify an upper level of concentrations of substances in order to avoid effects on human health or sensitive marine organisms. Action Lists aim to ensure that the level of contaminants dumped is reduced.(25)

Permits under the Sea Dumping Act

The process for assessing applications under the Sea Dumping Act is set out in the ANZECC Interim Ocean Disposal Guidelines. Sea dumping permits are issued by the Environment Protection Group of Environment Australia for Australian waters except the Great Barrier Reef Region, which are issued by the Great Barrier Reef Marine Park Authority. Approximately twenty permits are issued in Australia each year for sea dumping. Most of these are for the dumping of uncontaminated dredge spoil (sediments and materials removed from the seabed as a result of dredging).(26)

Impact assessment under the Environment Protection and Biodiversity Conservation Act

The decision to grant a permit under the Sea Dumping Act can trigger the application of the Environment Protection (Impact of Proposals) Act 1974 (EPIP Act). When assessing permit applications, Environment Australia considers whether the granting of a permit warrants triggering the assessment processes under that Act.(27)

The link between the Sea Dumping Act and recently reformed Commonwealth environmental legislation is still unclear. The Environmental Reform (Consequential Provisions) Act 1999 (ERCP Act), which will come into force on or before 17 July 2000(28), will repeal the EPIP Act and several other environmental statutes, and make savings and transitional arrangements. The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) will replace the environmental assessment and approval regime in the EPIP Act. Unlike the EPIP Act, which is triggered both indirectly by Commonwealth Government agencies' decisions and by specific Commonwealth proposals(29), the EPBC Act will be invoked only by direct triggers: actions which have, will have or are likely to have a significant impact on the six matters of 'national environmental significance' listed in the Act.(30)

Once the EPBC Act comes into force, the assessment process for sea dumping will not be triggered by the granting of permits under the Sea Dumping Act(31), but could be triggered by the actual act of sea dumping. The act of sea dumping would constitute an 'action' under section 523 of the EPBC Act. If sea dumping has, will have or is likely to have a significant impact on a matter of national environmental significance under the EPBC Act, for example the Commonwealth marine environment trigger in sections 23 and 24A,(32) then the Act would apply to the action of sea dumping, subject to certain exceptions. These include those set out in Part 4 of the Act, such as actions covered by bilateral agreements, actions covered by Ministerial declarations, and actions in the Great Barrier Reef Marine Park.

The Environment Minister has not yet announced whether sea dumping permitted under the Sea Dumping Act will be exempted from the operation of the EPBC Act through regulations, declarations or bilateral agreements under the EPBC Act. It is also unclear how the EPBC Act will apply to sea dumping which occurs pursuant to State or Territory legislation. Sea dumping in State or Territory waters would be a potential trigger for the operation of subsections 23(2) and 24A(3) of the EPBC Act, which prohibit actions taken outside Commonwealth marine areas having a significant impact on a Commonwealth marine area.

Certain provisions in the ERCP Act do however indicate the way in which the overlap of the EPBC Act and the Sea Dumping Act may be managed. The ERCP Act will amend the Sea Dumping Act when the former Act takes effect. Clauses 38 and 39 of Schedule 3 of the ERCP Act appear to contemplate that the EPBC Act can apply to sea dumping because of its own force (through the relevant triggers such as the marine trigger) or because of Subdivision A of Division 4 of Part 11 of the EPBC Act. That Subdivision requires Commonwealth agencies or employees which are considering giving an authorisation in respect of certain actions to inform the Minister of the proposed action and consider the Minister's advice before issuing the approval. Under subsection 160(2)(d) of the EPBC Act, regulations could be made requiring Environment Australia to consider the Minister's advice before issuing an approval for sea dumping. If this approach is used, subsections 23(4) and 24A(8) of the EPBC Act would have the effect of removing sea dumping as a trigger for the operation of the EPBC Act.

There have been no public statements by the Environment Minister or Environment Australia regarding the way in which the Sea Dumping Act and the EPBC Act will interact.

Sea Installations Act

In addition to the amendments to the Sea Dumping Act, the Bill proposes to amend the Sea Installations Act. If the amendments are passed, this will allow a permit to be issued under the Act for the proposed 'Basslink' interconnector which would enable Tasmania to participate in the National Electricity Market. Basslink will include a high voltage direct current undersea cable across Bass Strait, converter stations in Tasmania and Victoria, connecting lines from the converter stations, and transmission connections to the Tasmanian and Victorian transmission networks.(33) The Victorian, Commonwealth and Tasmanian governments have agreed to a combined environmental assessment and approval process in relation to the Basslink proposal.(34)

The interaction of the Sea Installations Act and the EPBC Act could be resolved in a manner similar to that which will be used for the Sea Dumping Act.

Main Provisions

Schedule 1--Amendments

Environment Protection (Sea Dumping) Act 1981

Item 2 inserts a definition of 'artificial reef' into subsection 4(1) of the Environment Protection (Sea Dumping) Act 1981 (Sea Dumping Act). An artificial reef is a structure or formation placed on the seabed for certain purposes. The regulations may prescribe what does and does not constitute an artificial reef.

Item 7 amends the definition of 'Australian waters' in subsection 4(1) of the Sea Dumping Act so that these waters include the 'exclusive economic zone' as defined in the Seas and Submerged Lands Act 1973 rather than the 'Australian fishing zone' as defined in the Fisheries Management Act 1991. Sea above the continental shelf will remain within the definition of Australian waters. The practical effect of the amendment is that the exclusive economic zone around Antarctica will be covered by the Sea Dumping Act. Item 20, which inserts new section 4A, provides that for the purposes of the Act, 'Australian waters' do not include the 'top hat area' described in Article 4.3 of the Torres Strait Treaty.(35) Item 75 allows the Minister to provide a certificate which is prima facie evidence that Australian waters included or did not include the top hat area at a particular time.

Item 8 defines 'controlled material' which is wastes or other matter within the meaning of the 1996 Protocol to the London Convention, as well as vessels, aircraft or platforms.

Item 14 defines 'seriously harmful material' as radioactive material, or any other material prescribed as such by the regulations. See Item 77.

Item 20 inserts new section 4A (discussed above) and new section 4B. New section 4B sets out the application of the Sea Dumping Act to the 'overlap area' which is defined in the Australia-Indonesia Delimitation Treaty. The section will commence when the treaty enters into force for Australia. It allows Australia to give effect to possible obligations under that treaty when it comes into effect. The 'overlap area' is where Australia or Indonesia's exclusive economic zone overlaps with other's exclusive economic zone. The Treaty, which will commence when ratified by both parties, will establish a delimitation boundary for each country. The section requires the Minister to consult with the Government of the Republic of Indonesia prior to issuing a permit in relation to the overlap area, unless the Minister has published a notice in the Gazette declaring that the Indonesian Government has agreed to the issue of permits under the Act in relation to the overlap area. New subsection 4B(4) prevents an inspector from exercising powers under the Act in the overlap area in respect of foreign vessels and aircraft, and platforms not subject to Australia's jurisdiction under the Treaty, without first consulting with the Government of Indonesia. There is no obligation to consult if the Minister has published a notice in the Gazette declaring that the Government of Indonesia has notified Australia of its agreement to the exercise by inspectors of powers under the Act in the overlap area.

Item 21 amends section 5 of the Act, which provides an exemption from the Act in relation to the exploration, exploitation and offshore processing of seabed mineral resources. The amendment means that the exemption in relation to the disposal or storage of wastes will continue, but will not apply to the disposal or storage of a vessel, aircraft or platform.

Item 22 narrows the scope of the current exemption for vessels and aircraft of the Defence forces. It limits the section 7 Defence forces exemption to the situation where the Defence vessel or aircraft is being used in armed conflict or an 'emergency situation' (not defined). The exemption will no longer apply to Defence Force platforms. The amendment continues the exemption for vessels or aircraft of foreign naval, military or air forces, but not for their platforms. This appears to be consistent with Article 10 of the Protocol.

Item 23 provides that Chapter 2 of the Criminal Code applies to all offences against the Sea Dumping Act. Chapter 2 of the Criminal Code codifies the general principles of criminal responsibility under laws of the Commonwealth, which apply to any offence created by those laws. These include criminal liability for bodies corporate.

Item 24 repeals section 9 of the Sea Dumping Act, which allows the Minister to declare that provisions of the Sea Dumping Act do not apply to the coastal waters of a State or the Northern Territory where the Minister is satisfied that State or Northern Territory law gives effect to the London Convention and the SPREP Protocol. Proposed section 9 allows the Minister to make a declaration limiting the operation of the Sea Dumping Act where the law of a State or the Northern Territory gives effect to the 1996 Protocol in relation to its coastal waters. Declarations are disallowable and the Sea Dumping Act will continue to apply to the dumping and incineration, loading or export for dumping or incineration, of 'seriously harmful material' as defined in Item 14 (radioactive material or any other prescribed material). The Act will also continue to apply to artificial reef placements involving seriously harmful material. The Sea Dumping Act will therefore continue to apply to dumping of radioactive material, regardless of any declaration under section 9.

Item 25 repeals sections 9A to 14 of the Sea Dumping Act and inserts new sections 10A to 10F. The new sections introduce a new penalty regime and more comprehensive prohibitions on certain activities if carried out without a permit. New sections 10A to 10F set out criminal penalties for certain offences. Where the offending material is seriously harmful material, the penalty is imprisonment for up to 10 years, or a fine of up to 2,000 penalty units ($220,000), or both. Where it the offending material is not within Annex 1 to the Protocol, the penalty is imprisonment for up to 2 years, or a fine up to 500 penalty units, or both. In any other case, the penalty is imprisonment for up to 1 year, or a fine up to 250 penalty units, or both. Section 4B of the Crimes Act 1914 will apply to these penalties, so that bodies corporate are liable for up to five times the maximum pecuniary penalty that could be imposed by a court on a natural person convicted of the same offence.

New section 10A makes it an offence to dump 'controlled material' (defined in Item 8) except in accordance with a permit. Controlled material must not be dumped into Australian waters from a vessel, aircraft or platform, nor dumped in any part of the sea from an Australian vessel or aircraft. It is also an offence to dump a vessel, aircraft or platform (which are included in the definition of controlled material) into Australian waters, or dump an Australian vessel or Australian aircraft into any part of the sea.

New section 10B makes it an offence to incinerate 'controlled material' except in accordance with a permit if the incineration takes place at sea on a vessel or platform in Australian waters or on an Australian vessel in any part of the sea. The offence does not include the combustion or partial combustion of controlled material at sea but not on a vessel or platform, for example the burning of a vessel at sea. The Explanatory Memorandum states that this type of combustion should be considered dumping for the purposes of the Act, if the intention was to dispose of the controlled material.(36)

New section 10C prohibits the loading of controlled material for the purposes of dumping or incineration except in accordance with a permit. The section prohibits the loading of controlled material on a vessel, aircraft or platform in Australia or Australian waters, or on any Australian vessel or Australian aircraft, where the person knows or is reckless about its dumping or incineration at sea.

New section 10D prohibits the export from Australia of controlled material where the person knows that it will be dumped or incinerated at sea, or is reckless as to whether this will occur.

New section 10E prohibits the placing of an artificial reef unless in accordance with a permit. This amendment will make it beyond doubt that the Commonwealth can regulate artificial reefs under the Sea Dumping Act.

New section 10F provides that where there is an offence against any of sections 10A to 10E, then the person responsible in relation to the offending craft (the owner or person in charge) or the offending material (the owner of the material) is guilty of an offence where the person knew that the offending craft or offending material would be used in committing the offence against any of sections 10A to 10E, or was reckless as to whether it would be so used, and did not take reasonable steps to prevent the use of the offending craft or offending material in committing the primary offence. 'Offending craft' and 'offending material' are defined in Items 11 and 12 respectively.

Item 26 repeals section 15, which provides defences to an offence against certain provisions of the Sea Dumping Act. Item 26 inserts a new provision setting out exceptions to proposed offences under the Sea Dumping Act. Proposed sections 10A and 10B will not apply to dumping into non-Australian waters, or incineration at sea in non-Australian waters if it is done in keeping with a permit granted in accordance with the Protocol by a party to the Protocol. Section 10C will not apply to loading for dumping into non-Australian waters, or incineration at sea in non-Australian waters in the same circumstances.

Proposed sections 10A, 10B, 10C, 10E and 36 will not apply if the conduct was necessary for the safety of human life or of a vessel, aircraft or platform in the case of force majeure caused by stress of weather. They will also not apply if the relevant conduct appeared to be the only way of averting a threat to human life or to the safety of the vessel, aircraft or platform, and it was probable that the damage caused by the conduct would be less than would otherwise occur. For these exceptions to apply, the conduct must be carried out in a way that minimises the likelihood of damage to human or marine life, and must be reported to the Minister as soon as practicable afterwards. Proposed subsection 15(4) will provide that the defendant bears the onus of proof of showing that they come within a section 15 exception.

Item 27 allows the Environment Minister to ensure the repair or remedying of, or mitigation of any damage from dumping or incineration of controlled material, or the placement of an artificial reef or contravention of a condition of a permit.

Item 33 provides that a person who takes a vessel out to sea before it is released from detention, or removes from Australia or an external Territory any aircraft before it is released from detention, and who knows or is reckless as to whether the vessel or aircraft is still under detention, is guilty of an offence. Item 33 also introduces an offence in relation to owners and persons in charge of such vessels or aircraft. They are deemed to be a 'responsible person' in relation to the aircraft or vessel. If the vessel is taken to sea, or the aircraft is removed from Australia, contrary to proposed subsection 17(5), the owner or person in charge is guilty of an offence if they know of the detention or were reckless as to the detention, and did not take reasonable steps to prevent the vessel being taken out to sea, or the aircraft being removed from Australia. Offences in relation to detention are punishable by up to two years imprisonment or a fine up to 120 penalty units ($13,200), or both. Section 4B of the Crimes Act 1914 will apply (see Item 25).

Item 35 amends section 19 of the Act. Proposed subsection 19(5) will provide that, subject to an exception for emergencies, a permit for dumping or loading can only be granted for controlled material listed within Annex 1 to the Protocol, and can only be granted in accordance with Annex 2 to the Protocol (see Background). Proposed subsection 19(6) provides that, subject to an exception for emergencies, a permit cannot be granted for incineration at sea or loading for incineration at sea. The exception for emergencies is set out in proposed subsection 19(7), which provides that a permit for dumping or incinerating controlled material, or loading for these purposes, cannot be granted unless there is an emergency that poses an unacceptable risk to human health, safety or the marine environment, and there is no other feasible solution. Item 44 provides that recourse cannot be had to the Administrative Appeals Tribunal for review of Ministerial decisions under subsection 19(7). A permit cannot be granted for an artificial reef placement of 'seriously harmful material' as defined by Item 14 (subsection 19(8)). When deciding whether to grant a permit, the Minister must have regard so far as relevant to the Protocol, Torres Strait Treaty and any other treaty or convention relating to sea dumping to which Australia is a party (proposed subsection 19(8A)).

Item 41 amends subsection 23(1) of the Act so that the holder of a permit may apply to the Minister for a variation of the permit, or the revocation, suspension or variation of a condition of the permit. Section 24 provides that Ministerial decisions under section 23 (and certain other sections) are reviewable by the Administrative Appeals Tribunal.

Item 44 amends section 24 of the Act so that a decision by the Minister under subsection 19(7) of the Act to grant or refuse to grant a permit will not be reviewable by the Administrative Appeals Tribunal. Proposed subsection 19(7), discussed above, provides for the granting of permits in emergencies. Item 47 will require the Minister to publish in the Gazette the reasons for a decision under subsection 19(7) granting or refusing to grant a permit in an emergency situation.

Item 48 revises section 27 of the Act, and provides that members of the Australian Federal Police or of the police force of a Territory, as well as officers of the Australian Customs Service, are inspectors under the Sea Dumping Act.

Item 63 inserts new section 30A, which allows applications for warrants to be made to a magistrate by telephone, facsimile or other electronic means. The magistrate may require voice communication to the extent that this is practicable. If the magistrate grants the warrant, they must notify the inspector by telephone, facsimile or other electronic means of the terms of the warrant.

Item 70 revises section 36 so that a permit holder is guilty of an offence if they do an act or omission that contravenes a condition imposed in respect of the permit, and at the time of the act or omission, the permit holder is aware of the existence of the condition, or is reckless as to the existence of the condition. Such an offence carries a maximum prison term of one year or a fine of up to 250 penalty units ($27,500) for a natural person, or both. Section 4B of the Crimes Act 1914 will apply (see Item 25).

Item 71 provides that certain offences under the Sea Dumping Act are indictable offences, but allows a court of summary jurisdiction to hear and determine proceedings for such offences if satisfied that it is proper to do so, and if both the defendant and the prosecutor consent. Item 71 sets out the maximum penalties that a court of summary jurisdiction may impose for offences against sections 10A to 10F. The highest penalty of two years imprisonment or a fine of up to 240 penalty units, or both, can be imposed if it is proved that the offending material is seriously harmful material. A lower penalty of up to 1 year's imprisonment, and a fine of up to 120 penalty units, or both, can be imposed if the offending material is not within Annex 1 to the Protocol. Where the offending material is not seriously harmful material, and is not within Annex 1 to the Protocol, up to 6 months imprisonment or a fine up to 60 penalty units, or both, will apply. The section also sets out maximum penalties that a court of summary jurisdiction can impose for offences against subsections 17(5), 35(1), 35(2) and 36(1).

Item 76 inserts new section 40A which protects acts or omissions in good faith by an official in relation to an artificial reef permit, whether negligent or not. No action or proceeding lies against the official or the Commonwealth for any loss or injury in relation to the permit, whether or not the placement of the matter or thing was done in accordance with the permit.

Item 77 inserts new subsection 41(3) into the Act, which ensures that before a regulation prescribes material as 'seriously harmful material' for the purposes of subsection 4(1), the Minister must be satisfied that the material is capable of causing serious harm to the marine environment. This limitation on the kinds of material that may be prescribed as 'seriously harmful material' does not appear to incorporate the precautionary principle (see Concluding Comments).

Item 78 inserts the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972.

Sea Installations Act

Item 79 repeals subsection 19(2) of the Sea Installations Act 1987, so that the Minister will be able to grant a person a permit to authorise a sea installation to be located partly in, and partly outside, the 'adjacent area' of a State or an affected Territory. The definition of 'adjacent areas' contained in section 5 of the Sea Installations Act is somewhat convoluted, but essentially consists of waters within the exclusive economic zone or outside of it, within the outer limits of the continental shelf, but does not include waters from the territorial sea baseline to three nautical miles out from the baseline. The Explanatory Memorandum states that this amendment is not intended to bring within the ambit of the Sea Installations Act any sea installations, or the installation and use of sea installations, to which the Act does not currently apply.(37)

Item 80 repeals subsection 29(3) of the Sea Installations Act, which currently prevents the Minister from varying a permit so that a sea installation located partly in, and partly outside, the 'adjacent area' of a State or an affected Territory. The Explanatory Memorandum states that this amendment is not intended to bring within the ambit of the Sea Installations Act any sea installations, or the installation and use of sea installations, to which it does not currently apply.(38)

Concluding Comments

Australia's implementation of the 1996 Protocol to the London Convention is a positive development, as are the proposed amendments increasing the penalties for contraventions of the Sea Dumping Act. Changes such as the curtailing of the Defence Forces exemption are not likely to unduly burden the Defence Department, as the Defence Forces have voluntarily complied with the Sea Dumping Act.(39) The inclusion of Australia's exclusive economic zone around Antarctica is also a positive development. However, the possibility of sea dumping permits being granted for that area, may, for some, be a matter of concern. Under proposed section 19(8A), permits could only be granted in relation to the Antarctic area if dumping was consistent with Australia's international obligations under various Antarctic treaties. For example, dumping may not be consistent with Australia's obligations under the Protocol on Environmental Protection to the Antarctic Treaty of 1 December 1959, which addresses, amongst other things, disposal of waste at sea.(40)

It might be argued that the amendments should explicitly incorporate the 'precautionary principle'. The Minister for Environment and Heritage, Senator the Hon. Robert Hill, has stated that:

Article 3.2 of the Protocol states:

On one view, it therefore may be preferable for the Act to explicitly require the Minister to apply the precautionary principle when making decisions under the Act. However, the practical effect of the absence of an explicit adoption of the precautionary principle may be reduced or offset by provisions such as section 18 of the Act, which allows the Minister to require the applicant for a permit to enter into an agreement that includes provisions such as that the applicant will undertake research or analysis relating to the effect that the proposed dumping might have on the marine environment.

In any case, the use of 'reverse listing' (listing only those substances which may be dumped, rather than those which may not) in Annex 1 of the 1996 Protocol is a strongly precautionary measure.

The Victorian Government has raised concerns about the amendments to the Sea Installations Act. In its Submission to the Environment, Communications, Information Technology and the Arts Legislation Committee Inquiry into the Environment and Heritage Legislation Amendment Bill, it stated:

Victoria's submission proposed that a further amendment should be made that ensured that a permit for a sea installation straddling an adjacent area and State waters only applies to that part of the sea installation within the 'adjacent area' and does not apply to that part of the sea installation in State waters.

Endnotes

2. Australia's Oceans Policy, Commonwealth of Australia, 1998, p. 16.
3. The Report can be found at http://www.aph.gov.au/senate/committee/erca_ctte/envherit/index1.htm

4. London, Mexico City, Moscow, Washington 29 December 1972 1046 UNTS 120 [1985] ATS 16 11 ILM 1294.

5. R. Baird, 'Ocean Dumping - an Overview of the International and Domestic Regulatory System', Environmental and Planning Law Journal, Vol. 15, no. 3, 1998 p. 178.

6. Ibid.

7. R. Baird, op. cit., p. 176.

8. G. Plunkett, 'A History of Sea Dumping off Australia and its Territories', http://www.environment.gov.au/epg/pubs/dumping_history.html, p. 2.

9. Ibid., p. 2. See section 5 of the Sea Dumping Act.

10. Ibid., p. 4. This decision was made by the Contracting Parties on 21 February 1994.

11. R. Baird, op. cit., p. 183.

12. Noumea 25 November 1986 26 ILM 38.

13. Australia ratified the Basel Convention in 1992. The Hazardous Waste (Regulation of Exports & Imports) Act 1989 implements the Convention in Australia.

14. R. Baird, op. cit., p. 189.

15. Ibid. pp 175-176.
16. Environment Australia, 'Dumping of Wastes at Sea', http://www.environment.gov.au/library/pubs/fs_dumping.html.

17. Ibid.

18. Australian and New Zealand Environment and Conservation Council, 'Interim - Ocean Disposal Guidelines', ANZECC Secretariat, Canberra, December 1998, p. 2.
19. Environment Australia, 'Artificial Reefs', http://www.environment.gov.au/library/pubs/fs_reefs.html.

20. See the Environment Protection (Sea Dumping) Act 1984 (SA), Western Australian Marine (Sea Dumping) Act 1981 (WA) and the Environment Protection (Sea Dumping) Act 1987 (Tas).

21. G. Plunkett, op. cit., p. 2.

22. ANZECC, op. cit., p. 2.

23. R. Baird, op. cit., p. 187.

24. Ibid.

25. ANZECC, op. cit., p. 67.

26. Explanatory Memorandum.

27. Environment Australia, 'Dumping Wastes at Sea', op. cit.

28. The process is discussed in more detail on p. 7 of the 'Interim - Ocean Disposal Guidelines'.

29. The Environment Protection and Biodiversity Conservation Act 1999 and the Environmental Reform (Consequential Provisions) Act 1999 both received Royal Assent on 16 July 1999, and are expected to commence within one year of Royal Assent.

30. Krysti Guest, Frances Michaelis and Bill McCormick, Environment Protection and Biodiversity Conservation Bill 1998, Bills Digest No. 135, Department of the Parliamentary Library, 1998-99, pp. 11-12.

31. The triggers are: World Heritage properties, wetlands of international importance, listed threatened species and communities, listed migratory species, nuclear actions and the marine environment.

32. This is because subsection 524(2) of the EPBC Act provides that a decision by a government body to grant a governmental authorisation for a person to take an action is not an 'action' for the purposes of triggering the Act's operation.

33. Other matters of environmental significance under the EPBC Act could also be affected by sea dumping.

34. Basslink Development Board, 'About Basslink', http://www.basslink.tas.gov.au/overview.htm

35. Ibid.

36. Article 4.3 sets out the top hat area, providing that neither Australia nor Papua New Guinea should exercise jurisdiction without the concurrence of the other in relation to the area bounded by the portion of the line referred to in paragraph 2 of this Article running from the point of Latitude 9^o45'24" South, Longitude 142^o03'30" East to the point of Latitude 9^o40'30" South, Longitude 142^o51'00" East and that portion of the line referred to in paragraph 1 of this Article which runs between those two points, exclusive of the territorial seas of the islands of Aubusi, Boigu, Dauan, Kaumag, Moimi, Saibai and Turnagain.

37. Environment and Heritage Legislation Amendment Bill 1999, Explanatory Memorandum, p. 27.

38. Ibid. p. 48.

39. Ibid. p. 49.

40. G. Plunkett, op. cit., p. 7.

41. See Article 5 of Annex III to the Protocol.

42. Senator the Hon. R. Hill, 'Australia signs up to reduce ocean pollution', Media Release No. 31/98, 5 April 1998.

43. Victorian Government Submission to the Environment, Communications, Information Technology and the Arts Legislative Committee Inquiry into the Environment and Heritage Legislation Amendment Bill.

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