Bills Digest no. 100 2009–10
Protection of the Sea Legislation Amendment Bill
2010
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
Contact officer & copyright details
Passage history
Protection of the Sea Legislation Amendment
Bill 2010
Date introduced: 3 February 2010
House: House
of Representatives
Portfolio: Infrastructure, Transport, Regional Development and
Local Government
Commencement: The formal provisions commence on Royal
Assent. Schedule 1 commences on the day
after Royal Assent or 1 July 2010 (whichever occurs last), and
Schedule 2 commences the day after Royal
Assent.
Links: The
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
The Bill amends the
Protection of the Sea (Prevention of Pollution from Ships) Act
1983 (the Prevention of Pollution from Ships Act) to give
domestic effect to recent amendments to Annex VI of the
International Convention for the Prevention of Pollution from
Ships, 1973, as modified by the Protocol of 1978 relating thereto
(MARPOL).[1]
The Bill also amends the Protection of the Sea (Civil
Liability for Bunker Oil Pollution Damage) Act 2008 (the
Bunker Oil Act) to provide protection for persons or organisations
who act reasonably and in good faith when assisting in a clean-up
following a spill of oil from a ship.
MARPOL is one of a number of conventions adopted by the
International Maritime Organization (IMO) to reduce pollution by
ships. It entered into force internationally on
2 October 1983[2] and in Australia on 14 January 1988.[3] Australia’s
obligations under the Convention were given domestic effect (on
behalf of the Commonwealth of Australia) by amendments to the
Prevention of Pollution from Ships Act and the Navigation Act
1912 (the Navigation Act).
MARPOL has six technical annexes which deal with the following
aspects of maritime pollution:
- Annex I: Prevention of pollution by oil
- Annex II: Control of pollution by noxious liquid
substances
- Annex III: Prevention of pollution by harmful substances in
packaged form
- Annex IV: Prevention of pollution by sewage from ships
- Annex V: Prevention of pollution by garbage from ships
- Annex VI: Prevention of air pollution from ships
While about 150 countries have adopted some of the annexes,
Australia has adopted all six.[4]
As previously mentioned, Annex VI deals with air pollution from
ships. It was originally adopted by the IMO in September
1997.[5] While
it entered into force internationally on 19 May 2005,[6] Annex VI did not enter
into force in Australia until 10 November 2007.[7]
The IMO explains that the purposes of Annex VI are to:
- set limits on sulphur oxide (SOx) and nitrogen oxide (NOx)
emissions from ship exhausts and prohibit deliberate emissions of
ozone depleting substances
- impose a global cap of 4.5 per cent m/m (mass) on the sulphur
content of fuel oil
- call on IMO to monitor the worldwide average sulphur content of
fuel once the Protocol comes into force
- allow special ‘SOx Emission Control Areas’ to be
established with more stringent control on sulphur emissions in
those parts of the seas which are close to heavily populated
areas[8]
- prohibit deliberate emissions of ozone depleting substances,
which include halons and chlorofluorocarbons (CFCs)[9]
- set limits on emissions of nitrogen oxides (NOx) from diesel
engines, and[10]
- prohibit the incineration on board ship of certain products,
such as contaminated packaging materials and polychlorinated
biphenyls (PCBs).[11]
In October 2008, Annex VI was revised to reduce harmful
emissions from ships even further. The main changes can be
summarised as follows:
- the cap of sulphur oxide (SOx) emissions from ships will
initially be reduced from 4.5 per cent to 3.5 per cent (from
1 January 2012) and subject to a feasibility review to be
completed no later than 2018, the cap will be further reduced to
0.5 per cent (from 1 January 2020)
- the limits applicable in Sulphur Emission Control Areas (SECAs)
will be initially reduced from 1.5 per cent to 1 per cent (from 1
July 2010) and then further reduced to 0.1 per cent (from 1 January
2015)
- there will be progressive reductions in nitrogen oxide (NOx)
emissions from marine engines, particularly those ‘Tier
III’ engines operating in Emission Control Areas[12]
- emission control areas can be designated for SOx and
particulate matter,[13] or NOx (or all three types of emissions from ships),
subject to a proposal from a state party to Annex VI, which would
be considered for adoption by the IMO ‘if supported by a
demonstrated need to prevent, reduce and control one or all three
of those emissions from ships’, particularly for health
reasons.[14]
These changes enter into force internationally on 1 July
2010.[15]
Schedule 1 to the Bill gives domestic force to the
amendments, with effect from either Royal Assent or 1 July 2010
(whichever occurs last).[16]
The Bunker Oil Act gives domestic effect to Australia’s
obligations as a party to the International Convention on Civil
Liability for Bunker Oil Pollution Damage, 2001 (the Bunker Oil
Convention). That Convention was adopted by the IMO on 23
March 2001 and entered into force internationally on 21 November
2008.[17] The
Bunker Oil Convention entered into force in Australia on 16 June
2009, ‘being three months after the date on which
Australia’s instrument of ratification for the Bunker Oil
Convention was deposited with the Secretary-General of the
International Maritime Organization’.[18]
The purpose of the Bunker Oil Convention is ‘to ensure
that adequate, prompt, and effective compensation is available to
persons who suffer damage caused by spills of oil, when carried as
fuel in ships’ bunkers’.[19] It applies ‘to damage
caused on the territory, including the territorial sea, and in
exclusive economic zones’ of states parties to the
Convention.[20]
In summary, the Bunker Oil Act establishes a liability and
compensation scheme where shipowners are strictly liable for
pollution damage resulting from a spill of bunker oil from their
ships.[21]
(Prior to the making of the Bunker Oil Act, shipowners were only
liable if they were at fault.) Liability is based on the size
of the ship, with ships more than 1000 gross tonnage being required
to take out insurance to cover liability up to the limits set out
in the Convention on Limitation for Maritime Claims.
Insurance certificates will be issued by the Australian Maritime
Safety Authority (AMSA) and will need to be carried by ships as
proof of insurance.
Schedule 2 to the Bill amends the liability and
compensation scheme currently set out in the Bunker Oil Act.
That scheme applies to cases of pollution damage resulting from a
spill of fuel oil from ships. The rationale for the
amendments in Schedule 2 is set out in the Minister’s second
reading speech:
Another important aspect of this bill is to
provide protection for persons or organisations who assist in the
clean-up following a spill of fuel oil from a ship.
Recent experience demonstrates that even small
oil spills can be very costly. For example, the clean-up and
compensation costs following the spill of about 270 tonnes of fuel
oil from the Pacific Adventurer off the south-east coast
of Queensland in March 2009 exceeded A$30 million.
It is therefore essential that persons or
organisations not be deterred from providing assistance because
they think they may become liable if their actions inadvertently
lead to increased pollution.[22]
There has been only very limited commentary on the Bill or its
contents. In 2009, Shipping Australia Limited stated that
implementing the amendments to Annex VI ‘will present a
challenge to the oil refining industry to increase its refining
capacities to deliver the substantial increase in demand for
distillate fuel’.[23] However, it acknowledged that this would not
become a major issue until 2015 ‘when the sulphur content of
bunkers used in Emission Control Areas will reduce to 0.1 per
cent’.[24] This acknowledgment gives support to a statement
made by the Minister for Infrastructure, Transport, Regional
Development and Local Government, Anthony Albanese MP, in his
second reading speech for the Bill. The Minister said that
the proposed initial reduction in sulphur fuel content to 3.5 per
cent from 1 January 2012 (until 1 January 2015) will have
‘little practical impact’ on vessel operations in
Australia because ‘the average sulphur level in world-wide
fuel oil deliveries and the sulphur levels in fuel refined in
Australia currently fall below the 3.5% cap’.[25]
Shipping Australia Limited also noted concern that ‘the
competitiveness of short sea shipping may be affected due to
increase in costs, which may result in a modal shift from shipping
to road and rail, which will cause an increase in CO2
emissions’.[26] In this regard, it should be noted that elsewhere
in the article, Shipping Australia quoted a finding of the Stern
Report to the effect that while shipping currently carries 90 per
cent of the world’s trade, ‘it contributes only 1.4 per
cent of mankind’s CO2 emissions’.[27]
On 4 February 2010, the Selection of Bills Committee resolved to
recommend that the Bill not be referred to a committee.[28]
The Bill has no financial impact.[29]
All of the items in Schedule 1 amend the
Prevention of Pollution from Ships Act, particularly Part IIID,
which deals with prevention of air pollution. Therefore all
references to section numbers appearing immediately below are to
existing or proposed sections of that Act.
Items 1 and 2 of
Schedule 1 amend subsection 26FEF(1) to repeal the
definition of ‘fuel oil’ and insert the
definition of ‘gas fuel’. The term
‘gas fuel’ is defined to include liquefied
natural gas, compressed natural gas and liquefied petroleum
gas.
Items 3–9 amend section 26FEG to give
effect to the amendments to Annex VI to MARPOL mentioned
above. Section 26FEG currently sets out two offences that are
committed if a person uses fuel oil with a sulphur content of more
than 4.5 per cent m/m.
The first offence (existing section 26FEG(1))
carries a maximum penalty of 2000 penalty units (that is,
$220 000 for a natural person).[30] It is committed by a person
if:
- the person engages in conduct
- the conduct results in fuel oil with a sulphur content of more
than 4.5 per cent being used on board a ship
- the person is reckless or negligent as to causing that result,
and
- the fuel oil is used while the ship is in a particular
area.[31]
The second offence (existing subsection
26FEG(2)) carries a maximum penalty of 500 penalty units
(that is, $55 000 for a natural person).[32] It is committed by the
master and the owner of a ship if:
- fuel oil with a sulphur content of more than 4.5 per cent m/m
is used on board the ship, and
- the fuel oil is used while the ship is in a particular
area.[33]
Items 3 and 6 replace the
current references in section 26FEG to fuel oil having a sulphur
content of more than ‘4.5 per cent m/m’ with a more
generic ‘prescribed limit’.[34] Items 5
and 8 also amend existing section
26FEG by removing the specific reference to
‘SOx’ emission control areas, thus leaving only a
general reference to ‘emission control areas’ (which
may or may not involve SOx or some other type of emission).
The cumulative effect of the amendments made by items 3, 5,
6 and 8 is that the offences in section 26FEG will be
committed by a master and shipowner if fuel oil with a sulphur
content of more than the prescribed amount is used on board an
Australian ship that is beyond Australia’s exclusive economic
zone but not within a general (that is, a non-SOx-specific)
emission control area.
Item 9 inserts proposed subsections
26FEG(5) and (6) setting out the
exceptions to each of these offences. The offence in question
does not apply if the person (or master and shipowner):
- took all reasonable steps to obtain fuel oil with a sulphur
content of not more than the prescribed limit, and
- has (in accordance with the regulations) notified a prescribed
officer (and, in the case where the ship’s next port of call
is in a foreign country, the government of that foreign country),
that the person ‘has been unable to obtain fuel oil with a
sulphur content of not more than that limit’.
The defendant bears the onus of proving the matters set out in
proposed subsections 26FEG(5) and
(6).[35]
Item 22 amends existing subsections
26FEK(1) and (2). Currently, the section
provides that where an amendment is made (in accordance with Annex
VI) designating an area as an ‘SOx emission control
area’, then certain provisions in Part IIID do not apply for
12 months immediately after the amendment concerned enters
into force. Item 22 removes the specific
reference to ‘SOx’, with the result that certain
provisions in Part IIID will not apply for 12 months after an area
is designated as an ‘emission control area’.
Items 23–34 update some of the
terminology used in existing Division 3 of Part IIID to reflect the
2008 amendments to Annex VI. Division 3 of Part IIID is
currently titled ‘Fuel oil quality requirements’, but
following the amendment in item 23, it will be
titled ‘Fuel oil availability and quality
requirements’. Items 25, 26, 28, 30
and 32 replace current references in sections
26FEN–26FEP to ‘Regulation 18(1)’ of Annex VI
with a reference to ‘paragraph 3 of Regulation
18’.[36]
Item 27 amends existing
subsection 26FEO(1) to restrict the application of
the provision to a person who delivers fuel oil other than gas fuel
(see item 2 above). Currently,
section 26FEO contains two offences that are committed if:
(a) a person delivers
fuel oil to a ship
(b) the ship has a
gross tonnage of 400 or more
(c) the delivery
happens while the ship is in a particular geographic location,
and
(d) the person does not
provide to the master of the ship, in accordance with the
regulations:
(i) a completed
bunker delivery note in the approved form for the fuel oil
delivered, and/or
(ii) a representative
sample of the fuel oil that is sealed and signed in accordance with
the regulations.
Each offence carries a maximum penalty of 200 penalty units
(that is, $22 000 for a natural person).[37]
Item 35 inserts proposed section
26FES to create an offence that is committed if:
- a person delivers gas fuel to a ship
- the ship has a gross tonnage of 400 or more
- the delivery happens while the ship is in a particular
geographic location, and
- the person does not provide to the master of the ship,
‘in connection with that delivery, documentation specifying
the sulphur content for the gas fuel delivered’.
The documentation will ‘enable the master to be informed
about whether the gas fuel meets the requirements to use fuel with
a sulphur content no more than the prescribed limit’.[38] The offence is a
strict liability offence and carries a maximum penalty of
200 penalty units (that is, $22 000 for a natural
person).[39]
Item 36 inserts proposed Division
4 into Part IIID to set out provisions relating to the
carrying of an ‘ozone depleting substances record book’
by Australian ships. Proposed section 26FET
applies to an Australian ship that:
- has a gross tonnage of 400 or more
- has at least one rechargeable system containing ozone depleting
substances, and
- is engaged on an ‘overseas voyage’.[40]
The ship must carry an ozone depleting substances record book
‘as required by the regulations’.[41] The record book must be in
accordance with the appropriate prescribed form and make provision
for the necessary signatures.[42]
It is an offence for the master and the owner of ship to fail to
carry the record book.[43]
It is also an offence for the master of the ship:
- to fail to enter details of a prescribed operation or a
prescribed occurrence into the record book, if either of those
events is carried out or occurs,[44] or
- to fail to sign the page of a completed record book entry
‘as soon as practicable in the circumstances’.[45]
The entry in the record book must be made in English. If
the entry relates to a prescribed operation, the entry must be
signed by the person in charge of the operation.[46]
A person who makes a false or misleading entry in an ozone
depleting substances record book commits an offence which carries a
maximum penalty of 200 penalty units.[47]
The ozone depleting substances record book must be retained by
the master and the owner of a ship for a period of one year after
the day on which the last entry in the book is made.[48] The ozone
depleting substances record book must also be readily available for
inspection by an inspection at all reasonable times during that
period.[49]
Schedule 2 amends the Bunker Oil Act. The
amendments are designed to protect persons (or corporations) from
civil liability (that is, being sued for damages) if the persons
provide assistance as a result of fuel oil spills and inadvertently
create an increase in pollution damage.[50]
Items 1 and 2 of
Schedule 2 amend section 3 of the Bunker Oil Act,
which is the definitions section in that Act. Item
1 inserts a definition for the term
‘constitutional corporation’ (being a
corporation to which paragraph 51(xx) of the Australian
Constitution applies). Item 2 inserts a
definition for the term ‘shipowner’ (which is defined
to have the same meaning as in the Bunker Oil Convention).
There it is defined in paragraph 3 of Article 1 to mean ‘the
owner, including the registered owner, bareboat charterer, manager
and operator of the ship’.[51]
Item 3 inserts proposed section
24A, dealing with responder immunity.
Proposed subsection 24A(1) provides that ‘no
civil action, suit or proceedings lies against a person in relation
to anything done, or omitted to be done, reasonably and in good
faith by the person in relation to preventing or minimising
pollution damage’ occurring in Australia, its external
territories and coastal seas or Australia’s exclusive
economic zone.
However, there are two main exceptions to this rule. The
rule does not apply:
- in relation to the ship owner or shipowners concerned
(proposed subsection 24A(2)), and
- in relation to anything done, or omitted to be done:
- with intent to
cause damage, or
- recklessly and
with knowledge that damage would probably result (proposed
subsection 24A(3)).
In relation to the first exception, the wording of
proposed subsection 24A(2) might benefit from
clarification (that is, some rewriting). It is not entirely
clear, for example, whether the shipowner mentioned in this
exception is the owner of the ship which initially caused the
pollution damage, or if it also applies to shipowners who
themselves (or their crews) did anything (or omitted to do
anything) reasonably and in good faith to prevent or minimise
pollution damage occurring in Australian waters. Obviously,
the proposed section is aimed at excluding the shipowner(s) whose
ships created the initial pollution damage from the immunity
contained in proposed subsection 24A(1), but this
could be made clearer in proposed subsection
24A(2).
Proposed subsection 24A(4) states that
responder immunity in proposed subsection 24A(1) applies in
relation to anything done (or omitted to be done) in any of the
following situations:
- by a constitutional corporation (or directors, officers,
employees or agents of the corporation acting in such a
capacity)
- outside Australia[52]
- in the course of, or in relation to trade and commerce:
- between Australia
and places outside Australia
- among the states,
or
- within a
territory, between a state and a territory, or between two
territories, or
- by the Commonwealth or an authority of the Commonwealth.
Item 4 of Schedule 2 provides
that proposed section 24A applies in relation to
anything done (or omitted to be done) on or after Royal Assent.
[1]. IMO,
‘International Convention for the Prevention of Pollution
from Ships, 1973, as modified by the Protocol of 1978 relating
thereto (MARPOL)’ (hereafter ‘Summary of
MARPOL’), IMO website, viewed 5 February 2010,
http://www.imo.org/Conventions/contents.asp?doc_id=678&topic_id=258
Note that there are also various Australian state laws that give
effect to the Convention.
[2].
Ibid.
[3].
Australian Maritime Safety
Authority, ‘Protection of the Sea—Conventions and
legislation’, viewed 6 February 2010,
http://www.amsa.gov.au/marine_environment_protection/protection_of_pollution_from_ships/conventions_and_legislation.asp
[4].
Annexes III–VI are
optional.
[5].
Ibid., and IMO, op. cit.
[6].
Ibid.
[7].
Schedule 1 to the Maritime
Legislation Amendment (Prevention of Air Pollution from Ships) Act
2007 (Act No. 24, 2007) amended the Prevention of Pollution
from Ships Act and the Navigation Act to give domestic effect to
Annex VI. While that Act received Royal Assent on 15 March
2007, Schedule 1 did not commence until 10 November 2007, which was
the commencement date provided in the Proclamation made on 26
September 2007 under the Maritime Legislation Amendment
(Prevention of Air Pollution from Ships) Act 2007. See
Australian Government, ‘Legislative Instrument
F2007L03764’, ComLaw website, viewed
6 February 2010,
http://www.comlaw.gov.au/ComLaw/Legislation/LegislativeInstrument1.nsf/asmade/byid/8F1F780E8E705110CA25735B0008A641?OpenDocument
[8].
Department of Infrastructure,
Transport, Regional Development and Local Government,
‘Prevention of Pollution from Ships’, departmental
website, 27 January 2010, viewed 5 February 2010,
http://www.infrastructure.gov.au/maritime/environment/pollution.aspx
The IMO explains that in SOx Emission Control Areas, ‘the
sulphur content of fuel oil used on board ships must not exceed
1.5% m/m. Alternatively, ships must fit an exhaust gas
cleaning system or use any other technological method to limit SOx
emissions’. Currently only the Baltic Sea and the North
Sea have been designated as Emission Control Areas. See IMO,
‘New rules to reduce emissions from ships enter into
force’, IMO website, 18 May
2005, viewed 5 February 2010,
http://www.imo.org/newsroom/mainframe.asp?topic_id=1018&doc_id=4884
[9].
IMO, ‘New rules to reduce
emissions from ships enter into force’, op. cit. Under
Annex VI, new installations containing ozone-depleting substances
are prohibited on all ships, but new installations containing
hydro-chlorofluorocarbons (HCFCs) are permitted until
1 January 2020.
[10].
A mandatory NOx Technical Code, developed by
IMO, defines how this is to be done.
[11].
IMO, ‘‘Summary of MARPOL’, op.
cit., under the heading ‘The Protocol of 1997 (Annex VI
- Regulations for the Prevention of Air Pollution from
Ships)’.
[12].
A ‘Tier III’ engine is an engine
installed on ships constructed on or after 1 January 2016.
See Regulation 13—Nitrogen Oxides (NOx) of Annex VI,
particularly paragraphs 5.1 and 5.2.
[13].
The term ‘particulate matter’ refers
to a collection of particles that ‘can be suspended or will
float in the air’. The particles are usually made up of
a number of different substances, including: dust from soil or
smoke; pollen grains, bacteria, fungal spores; dust from wheat,
barley and other cereals; tiny pieces of skin from animals; and
dust and fumes from chemical processes, welding, painting,
gritblast cleaning and other industrial processes. See
Department of Primary Industries, Parks, Water and Environment
(Tasmania), ‘What is particulate matter?’, departmental
website, viewed 9 February 2010, http://www.environment.tas.gov.au/index.aspx?base=292
[14].
IMO, ‘Summary of MARPOL’, op. cit.,
under the heading ‘The 2008 amendments’. The
revised text of Annex VI (Resolution MEPC.176(58)) is available
electronically at IMO, ‘Amendments to the Annex of the
Protocol of 1997 to amend the International Convention For The
Prevention Of Pollution From Ships, 1973, as modified by the
Protocol of 1978 relating thereto’ (‘Revised MARPOL
Annex VI’), IMO website, 10 October 2008, viewed
5 February 2010,
http://www.imo.org/includes/blastDataOnly.asp/data_id%3D23760/176%2858%29.pdf
[15].
IMO, ‘Revised MARPOL Annex VI’,
preamble, paragraph 3.
[16].
Clause 2 to the Bill.
[17]. IMO,
‘International Convention on Civil Liability for Bunker Oil
Pollution Damage, 2001’, IMO website, 2008, viewed 6 February
2010,
http://www.imo.org/Conventions/contents.asp?topic_id=256&doc_id=666
The actual text of the Convention is available at Australian
Treaty Series, [2009] ATS 14, Austlii website, viewed 6
February 2010,
http://www.austlii.edu.au/cgi-bin/sinodisp/au/other/dfat/treaties/2009/14.html
[18]. Explanatory
Statement, Protection of the Sea (Civil Liability for Bunker Oil
Pollution Damage) Regulations 2009 (being Select Legislative
Instrument no. 101 of 2009), viewed 6 February 2010,
http://www.austlii.edu.au/au/legis/cth/num_reg_es/potslfbopdr2009n101o2009833.html
A copy of the regulations is available at Australian Government,
‘Legislative Instrument F2009L02140’, Comlaw website,
viewed 6 February 2010,
http://www.comlaw.gov.au/comlaw/management.nsf/lookupindexpagesbyid/IP200942550?OpenDocument
[19].
IMO, ‘International Convention on Civil
Liability for Bunker Oil Pollution Damage, 2001’, op.
cit.
[20].
Ibid.
[21]. As explained in
the Bills Digest for the Protection of the Sea (Civil Liability for
Bunker Oil Pollution Damage) Bill 2008, ‘bunker oils’
are oils ‘used in the operation of the relevant ship,
including fuel oil for its engines’ as opposed to oil carried
as cargo. See A Martyn, Protection of the Sea (Civil
Liability for Bunker Oil Pollution Damage) Bill 2008, Bills
Digest, no. 100, 2007–08, Parliamentary Library, Canberra,
2008, p. 2, viewed 6 February 2010, http://www.aph.gov.au/library/pubs/bd/2007-08/08bd100.pdf
Note that the Bunker Oil Act does not apply to spills from oil
tankers—they are covered by a separate (but similar)
liability and compensation scheme set out in the International
Convention on Civil Liability for Oil Pollution Damage, 1969 (as
amended in 1992 and 2000). See IMO, ‘International
Convention on Civil Liability for Oil Pollution Damage (CLC),
1969’, IMO
website, viewed 6 February 2010,
http://www.imo.org/Conventions/contents.asp?doc_id=660&topic_id=256
That Convention was given domestic effect in Australia by the
Protection of the Sea (Civil Liability) Act 1981, the
Protection of the Sea (Oil Pollution Compensation Funds) Act
1993 and related legislation. See
http://www.austlii.edu.au/au/legis/cth/consol_act/potspcfa1993566/
and http://www.austlii.edu.au/au/legis/cth/consol_act/potsla1981357/
viewed 6 February 2010.
[22].
A Albanese MP (Minister for Infrastructure,
Transport, Regional Development and Local Government),
‘Second reading speech: Protection of the Sea Legislation
Amendment Bill 2010’, House of Representatives,
Debates, 3 February 2010, p. 6, viewed 5 February 2010,
http://parlinfo.aph.gov.au/parlInfo/genpdf/chamber/hansardr/2010-02-03/0025/hansard_frag.pdf;fileType=application%2Fpdf
[23]. Shipping
Australia Limited, ‘Major policy issues: Raising coastal
costs will drive cargo to roads’, Shipping
Australia, March 2009, p. 52, viewed 3 February 2010,
http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22library%2Fjrnart%2FMTLT6%22
[24].
Ibid.
[25].
A Albanese MP, ‘Second reading
speech’, op. cit., p. 5.
[26].
Shipping Australia Limited, ‘Major policy
issues: Raising coastal costs will drive cargo to roads’, op.
cit.
[27].
Ibid. The Stern review was conducted by
Sir Nicholas Stern, Head of the Government Economic Service and
Adviser to the Government on the economics of climate change and
development. Lord Stern was formerly World Bank Chief Economist
too. A copy of the report is available at HM Treasury (UK
Government), ‘Stern Review on the Economics of Climate
Change’, HM Treasury website, 30 October 2006, viewed 6
February 2010, http://www.hm-treasury.gov.uk/sternreview_index.htm
Note that the methodology used by the Stern review was the subject
of an assessment by the Productivity Commission (Australian
Government) in 2008. See Productivity Commission, ‘The
Stern Review: an assessment of its methodology’, Staff
Working Paper, 24 January 2008, viewed 6 February 2010, http://www.pc.gov.au/research/staffworkingpaper/sternreview
[28].
Selection of Bills Committee, Report No. 1
of 2010, 4 February 2010. See Senate, Debates,
4 February 2010, pp. 67–68.
[29].
Explanatory Memorandum, Protection of the Sea
Legislation Amendment Bill 2010, p. 1.
[30].
The term ‘penalty unit’ is defined
in relation to a natural person in subsection 4AA(1) of the
Crimes Act 1914 as $110 (unless a contrary intention is
expressed in an Act). Section 4B of that Act provides that if
a body corporate is convicted of an offence, the penalty that may
be imposed on the body corporate cannot exceed five times the
maximum penalty that would apply to a natural person.
[31].
The particular areas are currently: (a) in the
sea near a state, the Jervis Bay Territory or an external territory
and no law of that state or territory gives effect to Paragraph 1
of Regulation 14 of Annex VI; (b) Australia’s exclusive
economic zone; or (c) (if the ship is an Australian ship), beyond
Australia’s exclusive economic zone, but not within a sulphur
oxide (SOx) emission control area. Paragraph 1 of Regulation 14
(which is entitled ‘Sulphur Oxides (SOx) and Particulate
Matter’) states:
The sulphur content of any fuel oil used on board
ships shall not exceed the following limits:
.1 4.50% m/m prior
to 1 January 2012;
.2 3.50% m/m on
and after 1 January 2012; and
.3 0.50% m/m on
and after 1 January 2020.
[32].
See footnote 30.
[33].
Ibid.
[34].
Section 33 of the Prevention of Pollution Act
(which is not affected by the current Bill) gives the
Governor-General a discretionary power to make regulations, not
inconsistent with that Act, prescribing matters required or
permitted by that Act to be prescribed or necessary or convenient
to be prescribed for carrying out or giving effect to that
Act. Any regulation prescribing the limit on the sulphur
content of fuel oil would be subject to parliamentary disallowance
under Part 5 of the Legislative Instruments Act
2003—noting, of course, that the limit set out in the
regulation would presumably match the rate set out in Annex VI and
there would thus be little role for parliamentary
scrutiny.
[35].
See subsection 13.3(3) of the Criminal
Code.
[36].
Paragraph 3 of Regulation 18 (which deals with
Fuel Oil Availability and Quality) sets out the technical
requirements that must be met by fuel oil for combustion purposes
delivered to and used on board ships to which Annex VI
applies.
[37].
See footnote 30.
[38].
Explanatory Memorandum, op. cit., p.
7.
[39].
See footnote 30.
[40].
The term ‘overseas voyage’
is defined in proposed subsection 26FET(9) to have
the same meaning as in the Navigation Act. There it is
defined in section 6 to mean a voyage in the course of which the
ship travels between:
(a) a port in Australia and a port
outside Australia
(b) a port in Australia and a
place in the waters of the sea above the continental shelf of a
country other than Australia
(c) a port outside Australia and a
place in the waters of the sea above the continental shelf of
Australia
(d) a place in the waters of the
sea above the continental shelf of Australia and a place in the
waters of the sea above the continental shelf of a country other
than Australia
(e) ports outside Australia,
or
(f) places beyond the
continental shelf of Australia
whether or not the ship travels between 2 or more ports in
Australia in the course of the voyage.
However, in the case of an Australian fishing vessel that
begins and ends a voyage at a port in Queensland (which need not be
the same port), the voyage is not taken to be an ‘overseas
voyage’ merely because the vessel calls at a port or ports in
Papua New Guinea as an incidental part of the fishing operations
done in that voyage (proposed
subsection 26FET(9)).
[41].
Proposed subsection
26FET(2).
[42].
Proposed subsection
26FET(3).
[43].
Proposed subsection
26FET(4). The maximum penalty (for a natural person)
is 200 penalty units.
[44].
Proposed subsection
26FET(6). The maximum penalty is 200 penalty
units.
[45].
Proposed subsection
26FET(7). The maximum penalty is 200 penalty
units.
[46].
Proposed subsection
26FET(8). This is not an offence
provision.
[47].
Proposed section
26FEU.
[48].
Proposed paragraph
26FEV(1)(a). This is an offence carrying a maximum
penalty of 200 penalty units.
[49].
Proposed paragraph
26FEV(1)(b). This is an offence carrying a maximum
penalty of 200 penalty units
[50].
Explanatory Memorandum, op. cit., p.
1.
[51].
Australian Treaty Series, [2009] ATS
14, op. cit.
[52].
Proposed paragraph 24A(4)(b)
states that the term ‘outside Australia’
includes Australia’s territorial sea and exclusive economic
zone.
Morag Donaldson
12 February 2010
Bills Digest Service
Parliamentary Library
Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library on (02) 6277 2795.
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