Bills Digest no. 147 2005-06
Protection of the Sea (Powers of Intervention) Amendment
Bill 2006
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
Financial implications
Main Provisions
Endnotes
Contact Officer & Copyright Details
Passage History
Protection of the Sea (Powers of
Intervention) Amendment Bill 2006
Date introduced: 29 March 2006
House: Representatives
Portfolio: Transport and Regional Services
Commencement: Royal Assent
To widen the powers of the Australian Maritime Safety Authority
(AMSA) to intervene when a maritime casualty has occurred not only
on the high seas but in the exclusive economic zone and in the
territorial sea. AMSA s powers to issue directions to the owner,
master or salvor(1) in possession of a ship or to any
other person as necessary have also been widened to allow it to
more effectively mount emergency response arrangements when
required.
In November 2005, the Australian
Transport Council (ATC) comprising Ministers representing the
Australian, State and Northern Territory Governments agreed that a
national approach was needed for maritime emergency responses and
that the Protection of the Seas (Powers of Intervention) Act
1981 required strengthening.(2) The intention of
the Bill is to implement the ATC agreement on emergency response
arrangements for AMSA to be the single national decision-maker with
responsibility for intervention in incidents involving threats of
significant pollution, covering all ship types in all waters. It
also clarifies AMSA s powers of direction to persons whose
cooperation would be vital to preventing and mitigating
pollution.(3)
The Protection of the Sea (Powers of Intervention) Act
1981 implements the International Convention relating to
Intervention on the High Seas in Cases of Oil Pollution
Casualties and the Protocol relating to Intervention on
the High Seas in Cases of Pollution by Substances other than Oil,
1973. These international instruments relate to maritime
casualties and the measures taken on the high seas.
The maritime zones are governed by the international instruments
agreed upon to manage navigational rights and freedoms and degrees
of sovereignty over various zones. The Bill makes reference to
internal waters, territorial sea and coastal waters, the exclusive
economic zone and the high seas. The United Nations Convention
on the Law of the Sea (UNCLOS) establishes a comprehensive
framework for the determination of the territorial sea baseline and
the various maritime zone boundaries. The Convention entered into
force on 16 November 1994, and embodies the notion that all
problems of ocean space are closely interrelated and need to be
addressed as a whole. Today, it is the globally recognised regime
dealing with all matters relating to the law of the sea.
Domestically, the
Seas and Submerged Lands Act 1973 declares
Commonwealth sovereignty over the territorial sea and certain
Commonwealth rights in respect of the contiguous zone, exclusive
economic zone (EEZ) and continental shelf.(4)
Territorial Sea
Article 2(1) of the UNCLOS refers to the sovereignty of a
coastal state. It extends beyond its land territory and internal
waters to an adjacent belt of sea, described as the territorial
sea. Sovereignty extends to the air space over the territorial sea
as well as its bed and subsoil. Article 3 states that every State
has the right to establish the breadth of its territorial sea up to
a limit not exceeding 12 nautical miles. Sovereignty is exercised
subject to the UNCLOS Convention and to other rules of
international law.
The Exclusive Economic Zone is an area beyond and adjacent to
the territorial sea. The outer limit of the EEZ cannot exceed 200
nautical miles from the baseline from which the breadth of the
territorial sea is measured. The Australian EEZ is less than 200
nautical miles in certain areas where neighbouring countries
coastlines are less than 400 nautical miles from Australia.
Article 56(1)(b) states that a coastal State has jurisdiction
over a number of matters one of which is the protection and
preservation of the marine environment, subject to provisions
elsewhere in UNCLOS, for example in Article 56(2) where a coastal
State is required to have due regard to the rights and duties of
other states and act in a manner compatible with the
Convention.
Bateman, Rothwell and Vanderzwaag comment that
there have been many imperatives for change
associated with increased concern for the threats to the marine
environment posed by ships and shipping operations This has led to
a tightening of controls over shipping, as well as providing an
incentive for regional cooperation to achieve the objective of
safer ships and cleaner seas. In many instances, tighter controls
involved some new regulations that amounted to restrictions on the
rights and freedoms of navigation.(5)
The Explanatory Memorandum states the
Attorney-General s Office of International Law has
advised that the proposed amendments to powers of intervention
within the EEZ are consistent with Australia s rights and
obligations under international law. The UNCLOS provides for
coastal States to implement measures to protect the marine
environment of their EEZ and to avoid pollution from maritime
casualties. Article 221 of UNCLOS gives the coastal State broader
rights than the Intervention Convention of 1969 to improve and
strengthen protective measures in the EEZ.
Article 221 of UNCLOS states the following:
Measures to avoid pollution arising from maritime
casualties
1. Nothing in this Part shall prejudice the right
of States, pursuant to international law, both customary and
conventional, to take and enforce measures beyond the territorial
sea proportionate to the actual or threatened damage to protect
their coastline or related interests, including fishing, from
pollution or threat of pollution following upon a maritime casualty
or acts relating to such a casualty, which may reasonably be
expected to result in major harmful consequences.
2. For the purposes of this article, "maritime
casualty" means a collision of vessels, stranding or other incident
of navigation, or other occurrence on board a vessel or external to
it resulting in material damage or imminent threat of material
damage to a vessel or cargo.
The Explanatory Memorandum states that there is no direct
financial impact.
Items 2 to 21 insert new definitions into
subsection 3(1). They included definitions for the purposes of the
Principal Act:
- aircraft
- Australian coastal area
- Australian ship
- civil proceeding
- constitutional corporation
- controller of a tangible asset
- amendment to the definition of Convention
- electronic communication
- engage in conduct
- exclusive economic zone
- goods
- high seas
- internal waters
- amendment of the definition of protocol
- services
- ship
- supply
- tangible asset
- territorial sea
- UN Convention on the Law of the Sea
Item 22 repeals section 3A of the Act which
refers to the applicability of Chapter 2 of Criminal Code
1995. Chapter 2 codifies the general principles of criminal
responsibility under the laws of the Commonwealth. It applies to
any offence irrespective of how it is created (See section 2.1
Criminal Code). Section 3A of the current Act is therefore
redundant.
Item 24 repeals subsection 5(1) and substitutes
the following:
- New subsection 5(1) provides
that this Act does not exclude or limit the operation of any law of
a state/territory that is able to operate concurrently with this
Act, that is, where no conflict exists;
- New subsection 5(1A) provides
that a direction issued under this Act will prevail over any
direction (however described) in a state/territory law to the
extent of any inconsistency;
- New subsection 5(1B) clarifies
that new subsection 5(1A) does not limit the operation of s.109 of
the Constitution. Section 109 states that when a law of a
State is inconsistent with a law of the Commonwealth, the latter
shall prevail, and the former shall, to the extent of the
inconsistency, be invalid ;
- New subsection 5(1C) provides
that a direction issued under this Act will prevail over any other
direction issued under any other Commonwealth Act unless there is a
provision enacted after the commencement of this subsection and
that expressly refers to a direction made under this Act.
The effect of points 2 and 4 is that AMSA will have the legal
power to override any Commonwealth, State or local government
agency when mounting an emergency response to a maritime
casualty.
Items 25 to 27 amend
subsection 7(1) of the Act and streamlines the section on
delegations by the Minister. Item 28 inserts a
note referring to the general provisions in the Acts
Interpretation Act 1901 relating to delegations, the
effects of a delegation and the exercise of certain powers and
functions by a delegate. Item 29 repeals
subsections 7(2) and (3).
Items 30 to 32 amend section 8
which deals with the taking of measures in relation to oil
pollution under the International Convention relating to
Intervention on the High Seas in cases of Oil Pollution Casualties
1969. The Convention refers to measures on the high seas . The
purpose of these amendments to section 8(1) and (2) is to indicate
that AMSA may take measures not only on the high seas but also
elsewhere, such as in internal waters, the Australian coastal
waters (that is the territorial sea) and the exclusive economic
zone to minimise the impact of pollution from a marine casualty
occurring on the high seas.
Paragraph 8(2)(b) currently specifies that AMSA may issue
directions to the owner of a ship, the master or any salvor in
possession of a ship. Item 33 inserts a fourth
option that AMSA may also issue directions to any other
person as well. Item 34 inserts a list of
likely persons to whom AMSA can issue directions. It is not
intended as an exhaustive list but merely a form of
clarification.
New subsection 8(2C) provides that AMSA must
not issue directions to a ship which is not the polluting ship
unless the ship is in Australian waters or it is an Australian
ship.
Item 35 provides that the Minister and AMSA
when exercising powers under section 8 must act in accordance with
Articles III and V of the Convention. The Convention s articles
deal with marine casualties occurring on the high seas. Item 35
inserts clarification as to the application of the measures taken
under the Act and interprets Articles III and IV of the Convention
as applying to measures taken elsewhere than on the high seas, that
is in the territorial sea or the exclusive economic zone.
Items 36 and 37 amend section
8 and provide that all expressions used in section 8 have the same
meaning as in the Convention with the exception of terms used such
as high seas , and those terms used in section 8(2B)(c), (d), (e),
(f), (g) or (h) or in section 8 (2C)(a), (b), (c) or (d) such
as:
- tangible asset
- goods
- services
- internal waters
- Australian coastal sea
- Exclusive economic zone
- Australian ship.
New definitions for these terms have been included in section 3
of the Act.
Item 38 provides that a direction issued to any
other person under subparagraph 8(2)(b)(iv) will be taken to be
related to the ship involved in the marine casualty. The
Explanatory Memorandum states that this will establish a legal
relationship between a ship involved in a maritime casualty and any
other person to whom a direction has been given by AMSA. The person
is ordinarily unconnected with the casualty. The purpose is to
allow any person directed by AMSA to benefit from the immunity and
compensation provisions under this Bill.
Items 39 to 47 inserts
provisions into section 9 similar to those inserted into section 8.
Section 9 deals with maritime casualties caused by substances other
than oil. Reference is made to the Protocol relating to
Intervention on the High Seas in cases of Pollution by Substances
other than Oil, 1973. See items 30-38.
Item 49 substitutes paragraph 10(1)(a) with
new paragraph 10(1)(a) which inserts a detailed
list of ships in internal waters to which the section now applies.
Previously subsection 10(6) exempted ships engaged intra-state
trade, fishing vessels and pleasure craft. However under
item 53 subsections 10(6) and (7) are repealed as
the Explanatory Memorandum comments that the Australian, State and
Northern Territory Governments have agreed that the Government s
powers of intervention should be extended to all ships in all
waters, including the internal waters of a State.
Item 50 provides that AMSA may now take
measures in response to a maritime casualty within the EEZ at an
earlier stage than is possible at present under the Act.
New paragraph 10(1)(ba) is
inserted after section 10(1)(b) to include any ship in the
exclusive economic zone. This now enables AMSA to respond to
maritime casualties in the EEZ, in internal waters (new paragraph
10(1)(a)) as well as in the Australian coastal sea (10(1)(b)) and
on the high seas (10(1)(c)). The Explanatory Memorandum notes that
the Authority will be able to act at an earlier stage than
presently under the Act.
Item 51 and 52 introduce
similar changes in relation to whom directions may be issued to be
consistent with items 34 and 43.
Item 53 provides a new subsection
10(6) which provides that a direction will relate to a
ship even if a direction has been issued to any other person. . The
Explanatory Memorandum states that this will allow that person to
benefit from the immunity and compensation provisions as provided
under the Act.
Item 54 and 56 repeal the
definitions of Australian coastal sea and internal
waters from section 10(8) as they have been inserted into
section 3(1). Item 55 inserts a definition of
continental shelf into subsection 10(8). Item
57 repeals a definition of noxious substance and
item 59 replaces it with a definition of
substance other than oil. Item 58 repeals
the definition of ship in section 10(8) as an expanded definition
has been included in subsection 3(1).
Section 11 relates to the directions made under the Act and the
measures that can be taken under this section. Item
60 substitutes existing wording in subsection 11(1) to
refer to first ship as other ships may be involved when a
casualty involving the first ship occurs. Items 61
to 77 amend each of the actions taken under
subsection 11(1) to include wording that emphasises that the
actions are independent of one another. This is done by the
inclusion of the phrase require or prohibit and the
addition of or . Item 78 provides for new
actions (g) to (u) in section 11(1). It enables AMSA to make
directions in relation to any of these actions, not only to the
first ship but to other entities or persons as necessary. The
Explanatory Memorandum mentions that AMSA has always had these
powers but this section clarifies the types of directions that may
be given so as to avoid dispute when an emergency situation
arises.
Item 80 provides in section 12 how the owner of
a tangible asset or the controller of a tangible asset are to be
addressed when a direction is issued. Item 83
provides that a direction can be served on the owner of a ship, the
master or the salvor in possession of a ship. Item
84 provides for the service of directions on persons other
than the owner, master, or the salvor of a ship. New
subsection 17(8) provides for the service of directions on
a person in accordance with the provisions of new subsections 17(8)
and (9). New subsection 17(9)
provides for service of directions on a person, either an
individual or a body corporate in accordance with section 28A of
the Acts Interpretation Act 1901 which clarifies what is
meant by service and modes of delivery when serving documents.
New subparagraph 17(9)(e)
includes sending a direction by electronic means. New
subsection 17(10) provides for service of
a direction on a body politic. A body politic
according to the Explanatory Memorandum could include a State or
one of its civil authorities such as local government or a port
authority.
Item 85 provides in new section
17A that immunities from criminal and civil proceedings
apply to the following for acts done or omitted when exercising
powers under the Act:
- Minister
- Delegate of the Minister
- The Authority
- Member of the Authority
- Member of staff of the Authority
- Delegate of the Authority
- A person specified in a direction in relation to paragraphs
11(2)(a)and (b)
- A person who is the subject of a direction unless it is a
proceeding under the Protection of the Sea (Civil Liability)
Act 1981, or is inconsistent with international agreements to
which Australia is a party.
New Section 17A does not apply to new
section 22 that relates to compensation for the
acquisition of property.
New section 17B provides that if a person, who
is or was the subject of a direction and who is not the owner of a
ship incurs expenses as the result of being directed to supply a
service to the owner of a ship that person may recover that debt in
the Federal Court or other court of competent jurisdiction. Section
17B(1) does not apply if it is inconsistent with international
agreements to which Australia is a party.
Item 89 repeals subsections 19(1), (2) and (3)
and substitutes new subsection 19(1) with a new
penalty for breaching a direction under the Act. The penalty
proposed is 2000 penalty units or five years imprisonment or both.
In the existing provision the penalty is $20,000 for an individual
and $50,000 for a body corporate. Now the fine is increased
substantially to $220,000 dollars or imprisonment for five years or
both.
Item 97 repeals section 22 and substitutes
provisions relating to the compensation for acquisition of
property. Compensation must be on just terms in accordance with the
provisions under section 51(xxxi) of the Constitution and if a
dispute arises proceedings may be commenced in the Federal Court or
other court of competent jurisdiction.
Item 98 repeals section 24 of the
Protection of the Sea (Powers of Intervention) Act 1981.
The extension of the powers of the Authority to make directions
under the Act makes this section
redundant.
- A person or company involved in a salvage operation for the
protection of maritime property.
- Minister for Transport and Regional Services, Hon. Warren Truss
MP, second reading speech, 29 March 2006.
- ibid.
- Geoscience Australia http://www.ga.gov.au/image_cache/GA3746.pdf
- Sam Bateman, Donald R. Rothwell and David Vanderzwaag,
Navigational rights and freedoms in the New Millenium: dealing with
20th Century Controversies and 21st Century
Challenges in Navigational Rights and Freedoms and the New Law
of the Sea edited by Donald R. Rothwell and Sam Bateman, The
Hague, Martinus Nijhoff Publishers, 2000, p. 317 18.
Moira Coombs
27 June 2006
Bills Digest Service
Parliamentary Library
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ISSN 1328-8091
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