Bills Digest No. 87 2001-02
Protection of the Sea (Prevention of Pollution from Ships)
Amendment Bill 2002
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
Endnotes
Contact Officer & Copyright Details
Passage History
Protection of the Sea (Prevention of
Pollution from Ships) Amendment Bill 2002
Date Introduced: 20 February 2002
House: House of Representatives
Portfolio: Transport and Regional Services
Commencement: The key operational aspects of
the Act commence the day after the Act receives Royal Assent.
Purpose
To correct drafting errors in Schedule 3 of the
International Maritime Conventions Legislation Amendment Act
2001. The effect of these errors was that, from 1 October
2001, a number of the offence provisions in the Protection of
the Sea (Prevention of Pollution from Ships) Act 1983 relating
to oil, noxious liquid substances and garbage no longer applied in
the area from the outer edge of Australia s 12 nautical mile
Territorial Sea to the limit of the 200 nautical mile Exclusive
Economic Zone.
Background
The Protection of the Sea (Prevention of
Pollution from Ships) Act 1983 (the 1983 Act) implements
Australia's obligations under the International Convention for the
Prevention of Pollution from Ships, known as MARPOL 73/78. Annexes
I-VI of MARPOL 73/78 place controls on operational discharges at
sea and prescribe construction and equipment standards. Australia
has ratified Annexes I, II, III and V. More information on MARPOL
73/78 can be obtained at http://www.amsa.gov.au/me/pn324.htm#marpol.
Domestic implementation of MARPOL 73/78 is a
cooperative matter between the Commonwealth and the States and
Territories. This is reflected in the 1983 Act which generally
provides that many of the Act's offence provisions only apply in
the 'sea near a State [or Territory]' if the relevant State or
Territory has not passed complementary MARPOL 73/78 implementation
legislation. For the purpose of the 1983 Act, 'sea near a State'
means the waters out to the limits of Australia's Territorial Sea,
which is 12 nautical miles from coastal baselines. Until the
commencement of Schedule 3 of the International Maritime
Conventions Legislation Amendment Act 2001 on 1 October
2001, the 1983 Act's offence provisions applied out from
the 12 nautical miles Territorial Sea to the edge of Australia's
200 nautical mile Exclusive Economic Zone (EEZ).(1)
Amongst other matters, Schedule 3 of the
International Maritime Conventions Legislation Amendment Act
2001 amended existing offence provisions relating to oil,
noxious substances, garbage etc by creating a new offence of strict
liability applying to both the master of the ship and the ship
owner. Unfortunately, the amendments were incorrectly drafted so
that neither the strict liability nor the fault
offence(2) applied to the EEZ.(3) The
effective result was that, any time after 1 October, a ship
discharging a pollutant in the EEZ contrary to MARPOL 73/78 could
not be prosecuted under Australian law.
In December 2001, waste oil was washed up on
Phillip Island in Victoria. It is probable that this oil was
discharged contrary to Annex I of MARPOL 73/78. Cooperative
investigations by Victorian and Commonwealth agencies have yet to
establish both the ship responsible for the discharge and whether
it took place inside or outside of the 12 nautical mile Territorial
Sea. If it was outside, no offence would have taken place because
of the drafting error in Schedule 3 of the International
Maritime Conventions Legislation Amendment Act 2001.
Main
Provisions
Schedule 1 - Amendment of the Protection
of the Sea (Prevention of Pollution from Ships) Act 1983
Items 1-10 correct the drafting
errors contained in Schedule 3 of the International Maritime
Conventions Legislation Amendment Act 2001 by providing that
both the strict liability and fault pollution offences contained in
that Act apply to the EEZ. Items 1 and
2 relate to MARPOL Annexe I, items
3 and 4 to Annexe II etc.
Concluding Comments
The Bill seeks to restore the clear policy
intent of Schedule 3 of the International Maritime Conventions
Legislation Amendment Act 2001. It is suggested there is no
reason why at least items 1, 3, 5, 7 and 9 of the Bill (which deal
with fault offences) should not be amended to make their entry into
force retrospective(4) to 1 October 2001. This would
prevent any person responsible for reckless or negligent
discharges(5) within the EEZ post- 1 October 2001 from
escaping prosecution.
Endnotes
-
- Beyond the EEZ, the offence provisions only apply to Australian
ships.
- In general a fault offence occurs where the discharge was
caused by reckless or negligent behaviour.
- The penalties attaching to the offences are up to $55,000 (or
$275,000 for a company) for a strict liability offence and $220,000
(or $1.1 million for a company) for the fault offence. There are no
gaol terms.
- The Senate Scrutiny of Bills Committee has stated it will not
'comment adversely' in relation to the retrospectivity of
legislation if 'it does no more than correct a drafting error'. For
more on the issue, see Work of the Committee during the
38th Parliament, paragraph 2.5
http://www.aph.gov.au/senate/committee/scrutiny/work38/CHAPTER2.HTM
- That is, discharges within the meaning of the 1983 Act.
Angus Martyn
11 March 2002
Bills Digest Service
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ISSN 1328-8091
© Commonwealth of Australia 2002
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Published by the Department of the Parliamentary Library,
2002.
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