Bills Digest no. 83 2006–07
Maritime Legislation Amendment (Prevention of Air
Pollution from Ships) 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
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Maritime Legislation Amendment
(Prevention of Air Pollution from Ships) Bill
2006
Date introduced: 6 December 2006
House: House of Representatives
Portfolio: Transport and Regional Services
Commencement: Sections 1 to 3 commence on Royal
Assent. Schedule 1, dealing with Annexe VI of MARPOL, commences on
proclamation, with the proviso that this must not be before Annexe
VI enters into force in Australia. Schedule 2 mostly commences
the day after Royal Assent.
The main
purpose of the Bill is to amend Commonwealth maritime pollution
legislation to enable ratification of Annex VI of the International
Convention for the Prevention of Pollution from Ships (MARPOL).
Australia is a Party to the International
Convention for the Prevention of Pollution from Ships 1973/78,
commonly known as the MARPOL Convention. The origins of MARPOL
largely lie in the international reaction to the grounding of the
Torrey Canyon oil tanker in the English Channel the late 1960s.
That accident resulted in the spillage of 120,000 tons of crude oil
into the sea, causing massive environmental damage. MARPOL was
developed by the International Maritime Organisation (IMO), of
which Australia is a founding member.
MARPOL includes 6 technical annexes, each
dealing with a different form of marine pollution. The Maritime
Legislation Amendment (Prevention of Pollution from Ships) Bill
2006 (the Bill) relates to Annex VI, which deals with air
pollution. Annexe VI, which was introduced through a 1997 Protocol
to MARPOL, covers issues such as sulphur and nitrous oxide
emissions from diesel engines, the release of volatile organic
compounds (VOCs) from oil tanker cargoes, the use of ozone
depleting substances (ODS) and standards for, and the operation of,
onboard incinerators.
In early 2004, Annex VI was reviewed by the
Joint Standing Committee on Treaties (JSCOT). In its
report, it recommended that Australia ratify Annex VI. The
report also stated:
The Committee understands that the shipping industry will be the
main body affected by the proposed legislation and that there has
been extensive consultation at all stages in the development of the
regulations contained in Annex VI. An example of this communication
is AMSA Marine Notices advising ship owners on the current position
regarding Annex VI, the technical requirements and retrospective
application.
4.33 The Committee understands that [the Commonwealth department
of Environment and Heritage] was also consulted in relation to the
Annex to ensure the provisions for [ozone depleting substances]
were consistent with existing Australian regulations, and that
extensive consultations with [the Department of Industry, Tourism
and Resources] resulted in agreement on how to implement provisions
for offshore fixed and floating drilling rigs and other
platforms.
4.34 The Committee notes that industry firmly
supports early international entry into force of the 1997 Protocol
. The Committee understands that no objections or concerns were
raised by the Australian Transport Council (ATC), comprising
Government and State and Territory Transport Ministers, when
consultations took place in November 2002. The ATC agreed that the
implementing legislation should be expressed to apply to all
Australian jurisdictions, with a savings clause to preserve the
operation of any existing or future complementary State/Territory
legislation.
According to the
National Interest Analysis issued by the Commonwealth for the
purposes of the JSCOT review of Annexe VI, key obligations of the
1997 Protocol include:
-
Regular surveys and inspections of ships to
verify compliance with the requirements of the 1997 Protocol. For
ships of 400 gross tonnage or more, the surveys are specified in
the 1997 Protocol; for ships below this size, the survey and
inspection regime is left to the flag State to determine
(Regulation 4).
-
The issue of an International Air Pollution
Prevention Certificate, after inspection, to any ship of 400 gross
tonnage or more engaged in voyages to ports or offshore terminals
under the jurisdiction of other Parties (Regulation 6).
-
Marine diesel engines (other than emergency
engines) with a power output of more than 130kW installed on ships
built on or after 1 January 2000 and existing engines undergoing
major conversion (which includes installing new engines in existing
ships) must comply with specified emission standards for NOx using
the test procedure and test methods set out in the NOx Technical
Code. These NOx requirements will apply retrospectively from 1
January 2000 once the Annex enters into force (Regulation
13).
-
Fuel oil supplied to ships must have not more
than 4.5% sulphur content except that in the case of ships
operating in designated sulphur emission control areas a limit of
1.5% is specified (Regulation 14).
-
Shipboard incinerators installed on or after 1
January 2000 must meet specified performance standards and must be
operated by trained personnel. The incineration of certain
substances, such as oil cargo residues and garbage containing more
than traces of heavy metals, is prohibited (Regulation 16).
-
Fuel oil supplied to ships must meet minimum
quality standards and the sulphur content documented by the
supplier by means of a bunker delivery note. This document is to be
kept on board a ship and retained for three years after delivery of
the oil (Regulation 18).
According to the evidence given to the JSCOT
review of Annexe VI, it was expected that legislation to implement
Annex VI would be introduced sometime in 2004. No reason is
provided in the Second Reading Speech or Explanatory Memorandum for
the Bill as to the failure to introduce legislation in order to
enable ratification by the time Annex VI came into force
internationally in May 2005. In view of this, it is worth noting
the comment of the National Interest Analysis:
If Australia does not become a Party to the 1997
Protocol, there is a risk that the level of environmental
protection in Australia will fall short of internationally adopted
standards, and that may encourage more polluting ships to operate
in Australian waters as other countries tighten their regulation of
emissions.(if any)
The Explanatory Memorandum states that there
will be some extra administrative impacts both on the Australian
Maritime Safety Authority (AMSA) and fuel oil suppliers, but these
are likely modest and have minimal financial impact.
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Schedule 1
Prevention of air pollution from ships
Item 3 inserts a new
Division 12D into Part IV of the Navigation Act
1912. This deals with the air pollution prevention
certification and related survey requirements that apply to
ships.
New Division 12D will not
apply to ships that are subject to State or Territory laws that
give effect to the relevant parts of Annexe VI.
Australian ships of 400 gross tonnes or more
must have an air pollution prevention certificate issued by AMSA or
a survey authority failure to do so is an offence.(1)
The maximum penalty is 100 penalty units ($11 000) for an
individual and 500 penalty units ($55 000) for a corporation. As is
quite usual with Commonwealth maritime pollution legislation, the
offences are ones of strict liability and both the ships master and
owner may be liable to be prosecuted. The Explanatory Memorandum
comments that the offences:
impose collective responsibility on both the shipowner and the
master of the ship because of the shared responsibility of the
shipowner and the master of the ship, and the difficulty in
ascertaining who is most directly responsible for the offence.
While the master of the ship has immediate responsibility for the
ship, he or she is subject to the direction of the shipowner.
The high penalties have been developed to discourage shipping
operators from attempting to avoid compliance with the proposed Act
as a cost saving measure. The maximum penalty is proportionate to
discourage non-compliance and takes into consideration the levels
of cost savings that such shipping operators may achieve and the
perceived likelihood of non-compliant ships being identified and
prosecuted. These provisions are consistent with other penalty
provisions in similar maritime legislation.
It is appropriate to use strict liability for
the relevant offences because the defendant is the best placed
person to provide evidence on whether any culpability should be
attached to the physical offence. The elements of the offence that
deal with the intention of the master of the ship or shipowner and
whether or not the act was committed as a result of intention or
negligence or was the result of an honest and reasonable mistake
will be specifically and exclusively within the defendant s
knowledge, making it easier and less costly for the defendant to
disprove an unjust charge than for the prosecutor to make out the
fault elements of a just charge. In these circumstances it would be
difficult and costly for the prosecutor to attempt to prove the
fault elements for many of the maritime offences in this Bill, and
so the effectiveness of the regulatory regime established by the
Bill may be undermined if the offences were not offences of strict
liability.(2)
If AMSA considers a foreign ship is not
constructed in accordance with Annex VI(3), it may give
written directions to the master or owner that it not to enter any
port, or use any off-shore terminal, or to enter or use such
facilities subject to specified conditions: new section
267ZZF. AMSA may only give a direction to the extent that
it appears to it necessary or expedient to protect the environment
. Failure to obey a properly served direction is an offence, for
which both the master and owner are liable. The maximum penalty is
100 penalty units for an individual and 500 for a corporation for
the strict liability offence. However, if the owner or master is
reckless as to whether there is failure to comply with the offence,
the maximum penalty climbs to 500 penalty units ($55 000) for an
individual and 2500 ($275 000) penalty units for a corporation.
Item 7 inserts a new
Part IIID into the Protection of the Sea (Prevention
of Pollution from Ships) Act 1983. The new division deals with
fuel oil quality requirements.
New section 26FEG prohibits
the use of fuel oil on a ship that has a sulphur content of no more
than 4.5 per cent. Contravention of this requirement within
Australian waters or on an Australian ship beyond the Exclusive
Economic Zone (EEZ) is an offence. Again there is a strict
liability offence and an ordinary (ie fault-based) offence the
latter requires a person to be reckless or negligent in their
conduct which results in high-sulphur fuel being used on board the
ship. In such cases, the maximum penalty is 2,000 penalty units
($220 000) for an individual and 10,000 units ($1 100 000) for a
corporation.
Annexe VI provides that special rules apply in
sulphur oxide [SOx] emission control areas. In these areas, the
sulphur content of fuel oil used onboard ships must not exceed 1.5
per cent. Alternatively, ships must fit an exhaust gas cleaning
system or use any other technological method to limit SOx
emissions. To date, only the Baltic sea and North sea areas have
been designated as SOx Emission Control Areas. New section
26FEH creates offences for Australian ships breaching SOx
emission control area rules. There are ordinary and strict
liability offences as is the case for new section
26FEG, and the penalties are the same also. There are the
usual defences for emergencies or unavoidable damage to the ship or
its equipment: new subsections 26FEH(6)-(8). In
cases where new SOx Emission Control Areas are declared under
Annexe VI procedures, the relevant offence provisions created by
the Bill do not apply until 12 months after the declaration of the
new area comes into force: new section 26FEK.
New sections 26FEL-26 FER
(Division 3 of new Part IIID) deal with fuel oil quality
requirements.
Persons supplying fuel oil to ships within
Australian waters (including ports and the like) must be registered
on a register to be created by AMSA: contravention of this carries
a penalty of 200 ($22 000) penalty units for a person or 1000 ($110
000) units for a corporation: new section
26FEL.
New section 26FEN prohibits
the use of fuel oil on a ship that does not meet Annexe VI
standards. Contravention of this requirement within Australian
waters, or on an Australian ship beyond the EEZ renders both the
ship master and owner to a strict liability offence with a maximum
penalty of 500 penalty units ($55 000) for an individual and 2500
($275 000) penalty units for a corporation.
Persons delivering fuel oil to ships of at
least 400 gross tonnes within Australian waters, must also provide
the ships master with a bunker delivery note and oil sample in
accordance with the regulations. Failure to do either is a strict
liability offence with a maximum penalty of 200 penalty units ($22
000) for an individual and 1000 ($110 000) penalty units for a
corporation: new section 26FEO. It appears that
bunker delivery notes will contain a declaration that the fuel
meets Annexe VI standards. In such cases, if the fuel does not meet
the standard, the supplier commits a strict liability offence with
a maximum penalty of 500 penalty units ($55 000) for an individual
and 2500 ($275 000) penalty units for a corporation: new
section 26FEP.
New sections 26FEQ and
26FER contain provisions requiring the retention
of bunker delivery notes and fuel oil samples for certain periods.
Contravention of these are strict liability offences.
Items 1-4 substitute
references to pilot with licensed pilot in the provisions of the
Act that deal with compulsory pilotage. Existing Division 1 of Part
IIIA already deal with the licensing of pilots. Items 1-4 appear to
be aimed at removing any ambiguities that compulsory pilotage must
done by licensed pilots.
Items 5-8 makes changes such
that the provisions of the Act(4) dealing with MARPOL
Annexe I (oil pollution) will not apply to ships covered by State
or Territory law giving effect to Annex I.
These amendments seem to be mostly minor or
technical in nature.
The provisions of the Bill include the
creation of strict liability offences with shipowners and ships
masters liable for significant financial penalties for these
offences. However, these are in line with recent Acts that have
implemented international maritime anti-pollution agreements see
for example the Protection of the Sea (Harmful Anti-fouling
Systems) Act 2006.
As noted in the background section of this
Digest, the evidence before the JSCOT inquiry into the proposed
ratification of Annex VI suggested that stakeholders supported
ratification. This said, neither the Explanatory Memorandum nor
second reading speech for the Bill contains any details about
whether relevant stakeholders have been consulted on the specifics
of the Bill, particularly the offence provisions.
- Although new subsection
267ZZC(3) notes that in some cases, an offence will only
occur if the ship puts to sea after certain events or dates.
- Explanatory Memorandum, p. 3.
- The direction is still valid even if AMSA is
wrong in its opinion: new subsection
267ZZF(4).
- Division 12 of Part VI
Angus Martyn
9 February 2007
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