Bills Digest No. 27  2000-01 Protection of the Sea (Civil Liability) Amendment Bill 2000


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

Protection of the Sea (Civil Liability) Amendment Bill 2000

Date Introduced: 28 June 2000

House: House of Representatives

Portfolio: Transport and Regional Services

Commencement: Royal Assent. However, the measures contained in the Bill have differing application dates which are dealt with in the Main Provisions section of this Digest.

Purpose

Amend the Protection of the Sea (Civil Liability) Act 1981 to:

  • broaden existing arrangements which require ships to maintain insurance cover in respect of marine oil pollution damage
  • clarify the liability limit of shipowners in relation to clean up costs, and
  • clarify the ability of the Australian Maritime Safety Authority to recover costs associated with combating oil pollution threats.

Background

Legal Bases

As a matter of constitutional law, the Commonwealth clearly has the power to regulate oil pollution in the context of navigation and shipping. It has the power to regulate trade and commerce(1) and associated navigation and shipping.(2) It seems clear that control over marine oil pollution would be incidental to the regulation of marine trade and commerce.

However, the ultimate source of power for controlling marine oil pollution is international law, via the external affairs power.(3) Australia is party to a number of international instruments developed by the International Maritime Organisation (IMO) which govern liability for pollution damage caused by oil tankers. Recently, the IMO has been working toward a draft convention which would provide the foundation for this Bill. In the absence of a final convention, the following discussion is provided for background and context.

International Law

Since 1926 the international community has been concerned about the impact of ship sourced marine pollution, particularly the discharge of oil at sea. This concern, but particularly that of the United Kingdom, culminated in the International Convention for the Prevention of Pollution of the Sea by Oil (OILPOL) which came into force in 1954 and operated in relation to Australia between 1962 and 1988. The Convention on the High Seas, which came into force in 1962, also sought to restrict or regulate marine pollution.(4) In 1973 OILPOL was replaced by a more general convention. The International Convention for the Prevention of Pollution from Ships (MARPOL) extended the terms of OILPOL to cover all forms of marine pollution and to strengthen the regulatory regime. MARPOL contains six annexes dealing with pollution by oil, noxious liquid substances, harmful substances carried by sea in packaged form, sewage and garbage and air pollution.

In 1969, the prohibition on marine pollution was coupled with intervention rights and partial indemnification. Following a publicised incident in which the United Kingdom intervened to limit the threat of a major oil spill on the high seas, the Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (Intervention Convention) was adopted permitting parties to take measures to control marine oil pollution in circumstances that might otherwise have been contrary to international law.(5) The International Convention on Civil Liability for Oil Pollution Damage (1969 Liability Convention) imposed partial but strict liability in respect of damage caused by certain oils and required owners of large oil tankers registered in State parties to maintain appropriate insurance cover.(6)

In 1992, the indemnification regime was expanded. An Amending Protocol extended the operation and liability limit of the 1969 Liability Convention.(7) Also, a supplementary instrument, the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (Fund Convention), imposed a levy on oil companies to partially compensate both countries affected by marine pollution and shipowners in respect of their liability under the 1969 Liability Convention.

Since 1992, the IMO Legal Committee has been developing a draft bunker convention to address liability and compensation for pollution damage caused by bunker oil (Draft Bunker Oil Convention). The proposed convention will complete the project commenced in 1969, namely 'the adoption of a comprehensive set of unified international rules governing the award of prompt and effective compensation to all victims of pollution from ships' (emphasis added).(8) It will apply to pollution damage in the territory, territorial sea, exclusive economic zone of a State party and would require insurance to be maintained to cover this liability. The convention is currently in draft form, the intention being that it be considered by a diplomatic conference of the IMO in March 2001.

In addition to these conventions, there are other international instruments which deal with marine pollution. The United Nations Convention on the Law of the Sea ('UNCLOS') came into force in 1994.(9) It gives Australia certain rights over foreign ships that pass through various maritime zones. Within its 'internal waters'(10) Australia may enforce laws with respect to virtually any issue. Within the 'territorial sea'(11) foreign ships generally have a right of 'innocent passage'.(12) However, Australia may enforce laws regulating free passage in its 'territorial sea' for various purposes including the 'preservation of the environment of the coastal State and the prevention, reduction and control of pollution thereof'.(13)

Domestic Law

Australia has been relatively slow to give domestic legal effect to the relevant international instruments. Of the various 'Protection of the Sea' Acts passed in the 1980's,(14) the Protection of the Sea (Powers of Intervention) Act 1981 gave effect to the Intervention Convention and the Protection of the Sea (Civil Liability) Act 1981 gave effect to the 1969 Liability Convention. Later, the Fund Convention and the Amending Protocol to the 1969 Liability Convention and were given domestic effect in various legislation.(15)

External Affairs Power

It is worth noting two aspects of the external affairs power. As a general proposition the external affairs power will support a law regulating persons, places and matters which are external to (the low watermark of) Australia. It will also support a law whose purpose is to implement an international treaty or convention.(16) But the power is not confined to the implementation of treaties or treaty obligations. It will support measures which address matters of international concern at least where that concern is reasonably concrete.(17) Thus, it has been said to extend to measures which implement recommendations of international agencies and to measures which pursue agreed international objectives.(18) It has even been suggested that there is scope to legislate in respect of draft conventions.(19)

The Regime in Operation

Civil Liability Convention

As indicated, the 1969 Liability Convention required partial indemnification. It applied to 'pollution damage',(20) and to 'preventative measures' taken to avoid such damage,(21) caused by 'persistent oils'(22) within the territory or 'territorial sea' of State parties. It required shipowners to maintain insurance cover for oil tankers carrying more than 2000 tonnes of oil as cargo(23) (as opposed to bunker)(24) and to carry certificates to this effect.(25) Owners could limit their liability to $A266 per tonne of the ship's tonnage(26) up to $A28m, except where the incident occurred 'as a result of the actual fault or privity(27) of the owner'.(28)

The Amending Protocol, also discussed above, expanded the indemnification regime. It increased the liability limits to $A897 per tonne of the ship's tonnage up to $A119m and provided for adjustment to these figures over time.(29) It also extended the application of the regime to the limits of the 'exclusive economic zone'.(30)

These two instruments read together form the Civil Liability Convention.

Draft Bunker Oil Convention

One significant flaw in the Civil Liability Convention is the treatment of bunker fuel oil. It requires owners of oil tankers to insure against pollution damage caused by oil carried as cargo. However it does not require any shipowner to insure against damage caused by oil carried as bunker. A 'bunker' is a compartment for carrying fuel aboard a ship and 'bunker oil' is a heavy fuel oil used on oil burning ships. As the Second Reading Speech indicates, bunker fuel is 'particularly persistent and viscous, and difficult to clean up'.(31) Thus, severe pollution damage may arise in respect of any ship but may not be covered by insurance.

Clearly, this issue is the focus of the Draft Bunker Oil Convention. Broadly, the convention mirrors the Civil Liability Convention. However, in terms of the insurance requirement, the focus will be on gross tonnage as opposed to tonnage of oil carried. In addition, State parties will be required to issue insurance certificates to all ships if they are satisfied that they have appropriate insurance cover or other financial security. Thus, ships that are not registered in a State party will still be covered by the convention because they will be subject to the jurisdiction of State parties in processing certificates. Moreover, the Draft Bunker Oil Convention expressly provides that:

Subject to the provisions of this Article, each State party shall ensure, under its national law, that insurance or other security to the extent specified in paragraph 1 is in force in respect of any ship having a gross tonnage greater than [ ], wherever registered, entering or leaving a port in its territory...(32)

As yet, the gross tonnage limit has not been agreed upon either in terms of the general insurance requirement or the requirement above. A limit of 300 tonnes was proposed, at least for the general requirement. However, this limit has been criticised as being too low on the basis that that damage could only be caused by ships carrying a 'substantial amount' of bunker oil.(33)

Civil Liability Act

The Protection of the Sea (Civil Liability) Act 1981 (Civil Liability Act) gives domestic force to the relevant provisions of the Civil Liability Convention, creates a domestic regime for insurance certificates and provides for the recovery of expenses under the Protection of the Sea (Powers of Intervention) Act 1981 (Intervention Act). In order to understand the Civil Liability Act it is necessary to understand the intervention regime.

AMSA and the National Plan

The Australian Maritime Safety Authority (AMSA) is a statutory body established under the Australian Maritime Safety Authority Act 1990 (AMSA Act). It provides and coordinates services in relation to maritime safety, search and rescue and protection of the marine environment from ship sourced pollution. AMSA is responsible on behalf of the Commonwealth 'for the management of Australia's international maritime obligations'.

Specifically, it manages the National Plan, a national strategy for coordinated response to marine spills.(34) AMSA is funded 'largely through levies on the shipping industry'.(35) The National Plan aims to coordinate government and non-government organisations at the national, state and local level. Each stakeholder has defined responsibilities in relation to equipment, funding and joint resource use within limits on and offshore.

Statutory Functions and Powers

One of AMSA's statutory functions is to combat pollution in the marine environment.(36)

The Intervention Act permits AMSA to take action to prevent or mitigate pollution damage caused by discharge or disposal of oil, noxious substances, packaged harmful substances, sewage or garbage.

Where it is satisfied that there is grave and imminent danger from pollution or a threat of pollution by oil or other harmful substances, AMSA is also empowered by the Intervention Act to take measures as it considers necessary to prevent, mitigate or eliminate that danger. It may take action on the 'high seas'(37) to protect Australia from pollution or the threat of pollution arising from a 'maritime casualty'(38) (Sections 8 and 9). In the absence of a 'maritime casualty', it may also take action against an Australian ship on the 'high seas' or any other ship in the 'Australian coastal sea'(39) where it is satisfied that oil or a noxious substance is likely to escape (Section 10).

Where the Minister incurs expenses or liabilities associated with the exercise of powers under sections 8, 9 or 10 of the Intervention Act, these costs are debts owed by the owner(s) to the Commonwealth.(40) However, if the incident was not attributable to the owner, either because the owner was not actually at fault or was not contractually related to the operator, the owner's liability is limited. It may be calculated on the basis of the 'tonnage factor', a figure derived from the ships 'adjusted register tonnage' which, ordinarily, will be the registered tonnage of the ship including its engine-room space.

Where AMSA suffers loss or damage or incurs costs or expenses because of action taken under the Intervention or AMSA Acts, these are debts which AMSA may recover from the ship owner, the master of the ship or the person whose conduct gave rise to the action.(41)

Limitations

The foregoing discussion indicates a number of limitations in the Civil Liability Act. The Act, like the Civil Liability Convention, applies only to oil tankers carrying more than 2000 tonnes of oil as cargo. Moreover, it only requires a shipowner to be insured and to carry an insurance certificate for pollution damage by that cargo oil.

Iron Baron Incident

The Second Reading Speech identifies the Iron Baron incident as an example of the threat posed by bunker oil and the potentially high intervention and clean up costs ($3.5m).

AMSA provides this summary of the incident:

The Iron Baron, a 37,557 dwt BHP chartered bulk carrier (built in 1985) grounded on Hebe Reef at the approach to the Tamar River, northern Tasmania at 1930 hours (7.30pm) Eastern Standard Time (EST) on Monday 10 July 1995. The vessel had departed from the NSW port of Port Kembla on Saturday 8 July 1995, with a 24,000 tonne cargo of manganese ore that had been loaded at Groote Island, bound for the BHP owned TEMCO facility at Bell Bay which is located some 12 km inside the Tamar River estuary and within the port of Launceston. Weather conditions prevailing at the time were north westerly winds of 20-25 knots with two metre seas.

Shortly after the grounding, it was confirmed bunker fuel oil had escaped, which was later estimated at around 300 tonnes. The ship's crew were safely evacuated, whilst National Plan response arrangements were initiated. Weather conditions deteriorated and with the prevailing tidal conditions, oil impacted shorelines in the vicinity of Low Head. There was significant impact on wildlife, particularly little penguins.

Whilst work continued to refloat the casualty, clean-up of affected shorelines was underway. A large wildlife collection, treatment and rehabilitation program was established at the pilot station complex at Low Head, north of George Town.

The ship was refloated on Sunday 16 July 1995, and the vessel moved to an anchorage, some two miles offshore. The Port of Launceston Authority imposed a number of conditions to be met in relation to port safety and environmental protection, before the vessel could enter port.

There was further oil released from under the ship following the refloating, some of which was successfully collected at sea whilst some impacted Bakers Beach and the Rubicon River estuary in the vicinity of Port Sorell. Several Bass Strait near shore islands were impacted at some locations. These islands were also the scene for a concentrated wildlife collection effort.

Underwater inspections and onboard assessments confirmed major structural damage had occurred and with the ship's condition reported to be deteriorating, and adverse weather predicted, BHP as the ship owner, decided to dump the vessel. The Commonwealth Environment Protection Agency approved a disposal site some 53 miles east of Flinders Island. After towing to the dumping area, the Iron Baron sank around 1930 hours (7.30pm), Sunday 30 July 1995.(42)

Statistics

Worldwide, between 1974 and 1989, there were 774 accidents involving oil spills greater than 7 tonnes. Since 1970 there have only been two major spills (more than 1000 tonnes) in Australia. The following table indicates the number of reported spills and responses pursuant to the National Plan between 1994/95 and 1998/99.

Oil Pollution Statistics 1994/95 - 1998/99(43)

Oil Pollution Statistics 994/95 -1998/99

The size of a spill may be determined by the type of the incident. The vast majority of minor spills occur during loading and discharging whereas the majority of major spills occur for other reasons. Overall, most oil spill incidents occur during loading, discharging or bunkering (fuelling) and responsibility for these spills 'is generally attributable to equipment failure, the human factor or the conditions prevailing at the time'.(44)

Clearly, not all marine oil pollution is sourced from oil spills. In 1981 the United States National Academy of Sciences estimated that 3.2 million tonnes of oil entered the world's oceans annually. Of that amount around 45 per cent came from shipping and within that category, 12.5 per cent was attributable to tanker accidents.(45) In 1993 the estimates relating to shipping were revised, reducing the figure from 45 per cent to 24 per cent.(46) The following table illustrates the estimates, with the revised figures on shipping. It is understood that a sub-group of the IMO, the Joint Group of Experts on the Scientific Aspects of Marine Pollution, is currently attempting to update these estimates.

Sources of Oil in the Marine Environment (1993)(47)

Sources of Oil in the Marine Environment

Main Provisions

Schedule 1 amends the Protection of the Sea (Civil Liability) Act 1981.

Part 1 seeks to insert a new Part IIIA requiring certain ships to be insured against pollution damage in Australia before entering or leaving an Australian port. Part IIIA will apply to all ships of 400 or more gross tonnes which carry oil as cargo or bunker and which are not covered by existing Part III.(48) It will apply to ships whether or not they are registered in a State party to the (forthcoming) Bunker Oil Convention.

If the ship enters or leaves an Australian port without a relevant insurance certificate, or attempts to do so, the master and the owner are both guilty of an offence subject to a fine of more than 500 penalty units.(49) (One penalty unit is currently $110.)(50)

Generally, monitoring and enforcement will be undertaken by Customs Officers, members of the Australian Federal Police or surveyors appointed under the Navigation Act 1912. However the Bill allows regulations to empower other persons to perform these role.(51)

Officers will have the power to require the production of relevant insurance certificates(52) and to detain vessels for the purpose of obtaining these certificates where they believe on reasonable grounds that an attempt is being made to take the ship out of the port without a relevant insurance certificate.(53) (Currently, ships are rarely detained, but are required to lodge security through their insurance company to address the relevant concerns.(54) In this context, however, actual detention may be contemplated.) Failure to produce an insurance certificate is an offence subject to 20 penalty points.(55) If a ship is detained and it leaves the port before being released, the master and the owner are both guilty of an offence subject to 500 penalty points.(56) Both of these offences are subject to strict liability.(57)

Part 2 seeks to make two sets of amendments relating to limitation of liability. As indicated, the Minister may recover costs of intervention action from ship owners, but the statutory liability is limited if the ship owner is not directly liable in private law.(58)

Items 3, 4, 8 and 9 substitute 'Authority' for 'Minister' enabling AMSA to recover intervention costs directly rather than through the Minister.

Items 5, 6 and 7 shift the emphasis in the calculation of liability from the weight of ships to the principles that determine liability in international law. Accordingly, item 5 refers to the limit that applies under the provisions of relevant international conventions and references to 'tonnage factor' and 'adjusted register tonnage' are removed.(59)

Miscellaneous

Part 3 seeks to extend AMSA's right of recovery for measures taken under the AMSA Act so that it applies not only in respect of action taken to combat pollution damage but also to action taken to combat a threat of pollution damage.

Part 4 seeks to convert current penalty provisions into standard penalty units. As indicated, one penalty unit is currently $110.(60)

Parts 3 and 4 commence on the day after the Act receives Royal Assent.

Concluding Comments

On its face, the Bill is a timely response to concerns regarding marine pollution. The various conventions developed by the International Maritime Organisation provide a clear framework for prevention and indemnification in relation to major pollution threats. However, the indemnification regime is limited in its application. It only extends to vessels carrying 2000 tonnes of oil as cargo registered in a Contracting State. It does not extend to empty oil tankers or other vessels carrying less than 2000 tonnes of cargo oil. Nor does it apply in relation to bunker oil or to vessels registered in countries that are not State parties to the Civil Liability Convention.

The Bill addresses these issues by focusing on the presence of ships within the 'internal waters'. It captures all vessels over 400 tonnes gross, wherever they are registered.

The Bill is intended to implement the terms of the Draft Bunker Oil Convention. However, that convention is not expected to be finalised before March 2001 and may not come into operation until 2002. As indicated above, there may be scope to legislate in respect of draft conventions. But, if there is doubt, some novel arguments may be required for the Bill.

First, the Bill may be viewed as an exercise of the trade and commerce power, in anticipation of being supported by international law. Second, it may be seen as an exercise of the external affairs power, either in terms of its offshore application or by virtue of its connection with international conventions. One argument is that the existence of the Draft Bunker Oil Convention demonstrates that insurance cover in respect of bunker oil damage is an 'issue of international concern'. A better argument is that the mandate in UNCLOS relating to 'internal waters' encompasses all of the measures contained in the Bill.

If the Bill does rely upon UNCLOS, arguably, it could have extended to regulate shipping beyond Australian ports. As indicated, UNCLOS would seem to allow the Commonwealth to regulate 'free passage' of all ships within the 'territorial sea' for the purpose of reducing and controlling pollution. This would seem to extend logically to a requirement for insurance coverage. Ultimately, however, this approach may not be advisable given the considerable cost that may be associated with such a regime and the apparent inconsistency that may arise with the terms of the proposed bunker oil convention.

In any event, it is the 'official' policy that where a treaty requires legislation, Australia will not ratify the treaty until it has the appropriate legislation in place. In part this policy is based on the probability that Australia could be embarrassed by entering into a treaty which imposed (unfulfilled) obligations but did not contain provisions for withdrawal.(61) It is also part of Australia's treaty making process to ensure that Australian law will comply with proposed conventions at the time of ratification.

Observation

Arguably, the power to detain vessels for the purpose of obtaining an insurance certificate may be too narrowly drawn. As indicated, an officer will be able to detain a vessel where he or she reasonably believes that vessel is or is attempting to leave a port without an certificate. But he or she will not be able to detain a vessel where he or she reasonably suspects that this will occur. There is a clear difference between a reasonable suspicion and a reasonable belief:

suspicion...in its ordinary meaning is a state of conjecture or surmise where proof is lacking. 'I suspect but I cannot prove' the facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown.(62)

Thus, an officer may be hamstrung where he or she is aware of a set of facts which suggest that a vessel is about to leave but may be unable to prove some or all of them at the particular time.

Endnotes

  1. Constitution, section 51(i).
  2. Constitution, section 98.
  3. Constitution, section 51(xxix).
  4. For example, this convention required parties to 'draw up regulations to prevent pollution of the seas by the discharge of oil from ships or pipelines or resulting from the exploitation and exploration of the seabed and its subsoil, taking account of existing treaty provisions on the subject' (Article 24).
  5. International Convention Relating to Intervention on The High Seas in Cases of Oil Pollution Casualties, Brussels, 29 November 1969, See http://sedac.ciesin.org/pidb/texts/intervention.high.seas.casualties.1969.html [3/8/00]. In 1973 the Convention was extended by an Optional Protocol to cover substances other than oil. Protocol Relating to Intervention on the High Seas in Cases of Pollution by Substances other than Oil, London, 2 November 1973. The Optional Protocol came into effect in 1983. See http://sedac.ciesin.org/pidb/texts/intervention.high.seas.casualties.protocol.1973.html [3/8/00].
  6. See http://sedac.ciesin.org/pidb/texts/civil.liability.oil.pollution.damage.1969.html [3/8/00]. The requirement for insurance is contained in Article VII.
  7. Protocol of 1992 to Amend the International Convention on Civil Liability for Oil Pollution Damage, 1969 at http://www.uio.no/~erikro/WWW/CLC-92.html [3/8/00].
  8. International Maritime Organisation, Legal Committee, 'Committee agrees draft convention on bunker oil liability', 81st session - 27-31 March 2000 at http://www.imo.org/imo/meetings/leg/81/leg81.htm [16/8/00].
  9. 10 December 1982, UN Doc A/Conf 62/122; 21 ILM 1261 (1982).
  10. The 'internal waters' comprise the sea on the landward side of the 'territorial baseline': UNCLOS, Article 2(1). In general, the 'territorial baseline' is the low-water line along the coast.
  11. The 'territorial sea' is the sea within 12 nautical miles of the 'territorial baseline': UNCLOS, Article 3. A nautical mile is equal to 1,852 metres: Schedule 1(1) of the Seas and Submerged Lands Act 1973 and see Australian Surveying and Land Information Group, 'Maritime Boundaries', at http://www.auslig.gov.au/marbound/mile.htm [25/1/00].
  12. That is, passage that is 'not prejudicial to the peace, good order or security of the coastal state': UNCLOS, Article 19(1).
  13. UNCLOS, Article 21(1)(f).
  14. These Acts were:
  • Protection of the Sea (Civil Liability) Act 1981
  • Protection of the Sea (Powers of Intervention) Act 1981
  • Protection of the Sea (Shipping Levy Collection) Act 1981
  • Protection of the Sea (Shipping Levy) Act 1981, and
  • Protection of the Sea (Prevention of Pollution From Ships) Act 1983.
  1. The Fund Convention was given effect in Protection of the Sea (Oil Pollution Compensation Fund) Act 1993, Protection of the Sea (Oil Pollution Compensation Fund - Customs) Act 1993, Protection of the Sea (Oil Pollution Compensation Fund - Excise) Act 1993 and Protection of the Sea (Oil Pollution Compensation Fund - General) Act 1993. The Optional Protocol was given effect in Transport and Communications Legislation Amendment Act (No.3) 1993 and Transport Legislation Amendment Act 1995
  2. That is, provided the law selects means which are 'reasonably capable of being considered appropriate and adapted to implementing the treaty': Victoria v Commonwealth (1996) 187 CLR 416 at 487 per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ. See also at 488.
  3. Koowarta v Bjelke-Petersen (1982) 153 CLR 168 per Murphy J at p. 242; Polyukovich v Commonwealth (1991) 172 CLR 501, per Brennan J at pp. 560-562 and Toohey J at
    pp. 657-658.
  4. See generally, R v Burgess, Ex Parte Henry (1936) 55 CLR 608, per McTiernan J at p. 687; Commonwealth v Tasmania (1983) 158 CLR 1, per Deane J at pp. 258-259 and Murphy J at pp. 171-172.
  5. R v Burgess; Ex parte Henry (1936) 55 CLR 608, per Evatt and McTiernan JJ at p 687.
  6. 'Pollution damage' is defined in the Civil Liability Convention as the 'loss or damage caused outside the ship carrying oil by contamination resulting from the escape or discharge of oil from the ship, wherever such escape or discharge may occur, and includes the costs of preventive measures and further loss or damage caused by preventive measures' (Article 1(6)).
  7. 'Preventative measures' is defined to mean 'any reasonable measures taken by any person after an incident has occurred to prevent or minimize pollution damage' (Article 1(7)).
  8. That is, 'oil such as crude oil, fuel oil, heavy diesel oil, lubricating oil and whale oil, whether carried on board a ship as cargo or in the bunkers of such a ship': Civil Liability Convention, op cit, Article I(5). The Amending Protocol reduced this concept to 'oil' defined as 'any persistent hydrocarbon mineral oil such as crude oil, fuel oil, heavy diesel oil and lubricating oil, whether carried on board a ship as cargo or in the bunkers of such a ship': Amending Protocol, Article 2(5).
  9. That is, oil carried by an oil tanker.
  10. That is, oil carried by any vessel as fuel.
  11. Civil Liability Convention, op cit, Article VII.
  12. A ship's tonnage was defined as the 'net tonnage of the ship with the addition of the amount deducted from the gross tonnage on account of engine room space for the purpose of ascertaining the net tonnage': Civil Liability Convention, op cit, Article V(10).
  13. 'Privity' refers to the relationship between the ship owner and the individual or company that caused the pollution damage. For example, if the act causing the damage was done in performance of an obligation under a contract with the ship owner, the ship owner would not be entitled to limit his or her liability.
  14. Civil Liability Convention, op cit, Article V.
  15. Amending Protocol, op cit, Article 15.
  16. The 'exclusive economic zone' includes waters beyond 12 nm and within 200 nm of the 'territorial baseline', UNCLOS, op cit, Articles 55 and 57.
  17. Second Reading Speech, p. 2.
  18. IMO Legal Committee, International Convention on Civil Liability for Bunker Oil Pollution Damage, Article 7, paragraph 13.
  19. Attorney-General's Department, Personal Communication, [16/8/00].
  20. Since 1973 Australia has had a national strategy to deal with oil spills: National Plan to Combat Pollution of the Sea by Oil. In 1998 this strategy was extended to deal with pollution by other substances: The National Plan to Combat Pollution of the Sea by Oil and other Noxious and Hazardous Substances at http://www.amsa.gov.au/me/natplan/natplan1.HTM [2/8/00].
  21. AMSA, Service Charter 1998, at http://www.amsa.gov.au/sd/scharter.htm [2/8/00].
  22. Section 6(1)(a).
  23. In sections 8 and 9 the expression 'high seas' has the same meaning as in the Intervention Convention. The 'high seas' are not defined in the Convention, but are defined in UNCLOS as the 'parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State': UNCLOS, op cit, Article 86.
  24. A 'maritime casualty' is defined in the International Convention Relating to Intervention on The High Seas in cases of Oil Pollution Casualties as 'a collision of ships, stranding or other incident of navigation, or other occurrence on board a ship or external to it resulting in material damage or imminent threat of material damage to a ship or cargo' (Article II).
  25. The 'Australian coastal sea' is defined in the Intervention Act to include the territorial sea and the sea on the landward side of the territorial baseline, but not including the sea within the limits of the States and Territories.
  26. Civil Liability Act, sections 20 and 21.
  27. Civil Liability Act, section 22A.
  28. AMSA, 'Major Oil Spills in Australia: Iron Baron oil spill incident, 10 July 1995, Hebe Reef, Tasmania' at http://www.amsa.gov.au/me/edu/ironbaron.htm [3/8/00]. See also BHP, Transport and Logistics, 'The Iron Baron Story', at http://www.bhp.com.au/transport/ironbaron/baron-02.htm [3/8/00]; Department of Primary Industries, Water and Environment, Tasmania, Report on the Environmental Impacts of the Iron Barron Oil Spill, Executive Summary at http://www.dpiwe.tas.gov.au/env/ibarren.html [3/8/00].
  29. AMSA, Annual Report 1998/99, at http://www.amsa.gov.au/me/Annual_Report_9899/Oil_spill_stats.htm [2/8/00].
  30. AMSA, Protection of the Sea: Conventions and Legislation in Australia, 1998 at http://www.amsa.gov.au/me/pn324.HTM#Introduction [3/8/00].
  31. CSIRO, 'Illegal Oil Dumping Kills, Injures Penguins', Media Release, 8/01/99.
  32. IMO, Joint Group of Experts on the Scientific Aspects of Marine Pollution (GESAMP), 'Impact of oil and related chemicals and wastes on the marine environment', GESAMP Report No.50, London 1993
  33. IMO, Joint Group of Experts on the Scientific Aspects of Marine Pollution (GESAMP), 'Impact of oil and related chemicals and wastes on the marine environment', GESAMP Report No.50, London 1993
  34. Proposed section 19B.
  35. Proposed section 19C.
  36. Crimes Act 1914, s 4AA.
  37. Proposed sub-section 19A(d).
  38. Proposed sub-section 19C(2).
  39. Proposed sub-section 19C(3).
  40. For a background on detention of ships see the AMSA website at http://www.amsa.gov.au/me/natplan/sec/sec%5F10.htm [2/8/00].
  41. Proposed sub-section 19C(2).
  42. Proposed sub-section 19C(4).
  43. Proposed sub-section 19C(5). That is, they are offences in which mens rea, or the mental element of the offence, is presumed to be present unless the defence can suggest the existence of an honest and reasonable mistake of fact or an honest and reasonable belief that the conduct is not criminal.
  44. Refer endnote 27 above.
  45. Items 5, 6 and 7
  46. Crimes Act 1914, s 4AA.
  47. Australia, Senate Standing Committee on Legal and Constitutional Affairs, Trick or Treaty? Commonwealth Power to Make and Implement Treaties, 1995, para 7.25 at http://www.aph.gov.au/senate/committee/legcon_ctte/treaty/index.htm [29/8/00].
  48. George v Rockett (1990) 64 ALJR 384 at 388.

Contact Officer and Copyright Details

Nathan Hancock
28 August 2000
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This paper has been prepared for general distribution to Senators and Members of the Australian Parliament. While great care is taken to ensure that the paper is accurate and balanced, the paper is written using information publicly available at the time of production. The views expressed are those of the author and should not be attributed to the Information and Research Services (IRS). Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. Readers are reminded that the paper is not an official parliamentary or Australian government document.

IRS staff are available to discuss the paper's contents with Senators and Members
and their staff but not with members of the public.

ISSN 1328-8091
© Commonwealth of Australia 2000

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 2000.

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