Bills Digest no. 86,
2016–17
PDF version [656KB]
Paula Pyburne
Law and Bills Digest Section
29
March 2017
Contents
Purpose of the Bill
Structure of the Bill
Background
Why do ships carry ballast?
Figure 1: ballast water cycle
Why is ballast a biosecurity issue?
Ballast water
Convention
Current regulation of ballast water
Committee consideration
Senate Selection of the Bills
Committee
Senate Standing Committee for the
Scrutiny of Bills
Policy position of non-government parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Schedule 1—key issues and provisions
Implementing the Ballast Water
Convention
Where the Ballast Water Convention
applies
Making a determination
Notice of discharge of ballast water
Offences
Australian vessel
Foreign vessel
Scrutiny of Bills Committee
Methods of ballast water management
Australian methods
Foreign methods
Ballast water exchange
Exceptions
Reporting
Management plans and management
certificates
Survey authority
Ballast water records
Disposing of sediment
Scrutiny of Bills Committee
Compliance
Schedule 2—key issues and provisions
Date introduced: 15
February 2017
House: House of
Representatives
Portfolio: Agriculture
and Water Resources
Commencement: Sections
1–3 and Schedule 2 on the day after Royal Assent; Schedule 1 commences on
the later of the day after Royal Assent or the day that the International
Convention for the Control and Management of Ships’ Ballast Water and
Sediments comes into force for Australia. However, Schedule 1 does
not commence if the Convention does not come into force.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at March 2017.
Purpose of
the Bill
The purpose of the Biosecurity Amendment (Ballast Water
and Other Measures) Bill 2017 (the Bill) is to amend the Biosecurity Act
2015 to:
Structure
of the Bill
The Bill comprises two Schedules:
- Schedule
1 to the Bill amends Chapter 5 of the Biosecurity Act which deals with
ballast water and sediment
- Schedule
2 to the Bill makes minor amendments to Chapters 2 and 4 of the Biosecurity
Act.
Background
Why do ships carry ballast?
Ships are designed and built to move through
water carrying cargo, such as oil, grains, containers, machinery and people. If
the ship is travelling without cargo, or has discharged some cargo in one port
and is on route to its next port of call, ballast may be taken on board to
achieve the required safe operating conditions. This includes keeping the ship
deep enough in the water to ensure efficient propeller and rudder operation and
to avoid the bow emerging from the water, especially in heavy seas.
Water ... is carried in separate tanks used just
for ballast, or in empty cargo tanks. When a vessel is departing a port, water
and any sediment that may be stirred up, is pumped into the ballast tanks, and
released again when it takes on cargo at the next port ... Safety, weather
conditions, a ship’s load, and the route taken are the primary factors that
determine how much ballast water is taken on board a vessel. For example, more
ballast is necessary for ships to sit lower in the water during stormy weather.
Ballast water is also used to balance the ship as it uses up fuel during a long
voyage, or during loading and unloading operations.[2]
Figure 1: ballast water cycle
Source: Transport Canada, ‘Ballast
water defined’, Transport Canada website, 21 January 2010.
Why is ballast a biosecurity issue?
Around 10 billion tonnes of ballast water moved by
shipping globally each year contains enormous numbers of living organisms and
they are moved with ballast water from region to region and country to country;
it is anticipated that every day ballast water moves approximately 7,000
species around the world.[3]
When ballast water from foreign waters is released, live marine organisms that
it contains may establish exotic colonies. Ballast water exchange is a
biosecurity issue, therefore, as it is a recognised pathway for the spread of
marine pests.
The current main concern over IAS [invasive alien species] is
that the impacts of IAS are already large and are quickly growing larger
because the international movement of cargo and people is increasing due to
globalization. IAS is considered as one of the major threats to worldwide
biodiversity because it is almost impossible to eradicate the problem caused by
IAS once it is established in the marine environment. Therefore, it is
important to take prompt appropriate measures ... before IAS is established and
affect native marine environment around the world.[4]
Ballast water Convention
The Department of Agriculture and Water Resources (DAWR) is
the lead agency of the Australian Government for the regulation of ballast water
management by international vessels in Australian seas.[5]
DAWR is responsible for ensuring that international ballast water intended for
discharge inside Australia’s territorial sea (the area within 12 nautical miles
of the Australian coastal baseline) has been managed in accordance with
Australia’s requirements.[6]
Those requirements are consistent with the International Maritime Organisation
(IMO) Ballast Water Convention[7]
that aims to minimise the translocation of harmful aquatic species in ships’
ballast water and ballast tank sediments.[8]
When the Ballast Water Convention enters into
force:
... all ships in international trade [will be required] to
manage their ballast water and sediments to certain standards, according to a
ship-specific ballast water management plan. All ships will also have to carry
a ballast water record book and an International Ballast Water Management
Certificate. The ballast water performance standard will be phased in over a
period of time. Most ships will need to install an on-board system to treat
ballast water and eliminate unwanted organisms. More than 60 type-approved
systems are already available.[9]
Current
regulation of ballast water
At present DAWR regulates the management and
discharge of international ballast water inside Australian seas (the area
within 12 nautical miles of the Australian coastal baseline).
It does not regulate the management of ballast water taken
up within Australia’s territorial sea and domestic ports subsequently
discharged in Australian domestic ports.[10]
This is managed by the state or territory Government agencies responsible for
the port location.[11]
Committee consideration
Senate
Selection of the Bills Committee
At its meeting of 23 March 2017, the Selection of Bills
Committee determined that the Bill would not be referred to a committee for
inquiry and report.[12]
Senate
Standing Committee for the Scrutiny of Bills
The Standing Committee for the Scrutiny of Bills has
commented on a number of aspects of the Bill.[13]
These are canvassed under the heading ‘Key issues and provisions’ below.
Policy
position of non-government parties/independents
At the time of writing this Bills Digest, no comments
about the Bill and its effect on international shipping have been made by
non-government parties or independents.
Position of
major interest groups
Whilst the Bill was not referred to any committee for
inquiry and report, submitters to the Senate Standing Committee on Environment
and Communications, Inquiry into Environmental Biosecurity, commented on the
tougher ballast water control measures which arise from the Ballast Water
Convention coming into force.[14]
According to the Australian Maritime Safety Authority
(AMSA) the Ballast Water Convention ‘aims to minimise the biosecurity
risk associated with ballast water by providing uniform international control
and management arrangements for the shipping industry’.[15]
In addition:
... ratification and implementation of the Ballast Water
Convention will significantly strengthen Australia's arrangements to prevent
the entry and establishment of invasive marine species and pathogens. While
there have been mandatory arrangements in place in Australia since 2001, the
Ballast Water Convention will require ships to treat ballast water using
methods that are considerably more effective at reducing biosecurity risk than
the methods that are currently accepted by the Australian Government.[16]
Shipping Australia was of the view that ‘the increased
controls on ballast water and hull fouling being introduced by the
International Maritime Organisation (IMO) will further enhance the protection
of marine environments’.[17]
Financial implications
According to the Explanatory Memorandum ‘no significant
direct or indirect financial impact on the Commonwealth will arise from the
introduction of the Bill’.[18]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed
the Bill’s compatibility with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[19]
Parliamentary
Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights has
deferred consideration of the Bill.[20]
Schedule
1—key issues and provisions
Implementing
the Ballast Water Convention
The amendments in Schedule 1 to the Bill are intended to
implement the Ballast Water Convention,[21]
as in force from time to time.[22]
The Ballast Water Convention requires reporting of
intended or actual discharges of ballast water in Australian territorial seas.[23]
Currently, section 270 of the Biosecurity Act gives rise to the offence
of discharging ballast water, subject to certain exceptions. There is an
additional offence for disposing of sediment. The Bill amends existing offences
so that they apply:
- for
an Australian vessel: whether the vessel is in, or outside, Australian seas
- for
a foreign vessel: if the vessel is in Australian seas.[24]
However, the Ballast Water Convention does not
apply to any warship, naval auxiliary or other ship owned or operated by a
State and used, for the time being, only on government non-commercial service.[25]
That being the case, the provisions of Chapter 5 of the Biosecurity Act
do not apply to such a vessel whether it is owned and operated by the
Australian government or the government of a foreign country.[26]
Where the
Ballast Water Convention applies
Currently, for the purposes of the Biosecurity Act,
the term Australian seas means the waters (including the internal
waters of Australia) within the outer limits of the territorial sea of
Australia (including every external Territory).[27]
Australia’s territorial sea is the area within 12 nautical miles of the
Australian coastal baseline.
The Bill repeals and replaces the definition of Australian
seas so that the term means:
- for
Australian vessels and foreign vessels whose Administration[28]
is a party to the Ballast Water Convention—the waters (including the
internal waters of Australia) that are within the outer limits of the exclusive
economic zone of Australia or
- for
all other foreign vessels the Australian territorial seas.[29]
The effect of the amendment is that the term Australian
seas has two meanings—one for those Australian vessels and foreign
vessels whose Administrations are a party to the Ballast Water Convention
and one for all other foreign vessels.
The Bill inserts the definition of Australian
territorial seas into section 9 of the Biosecurity Act being the
waters (including the internal waters of Australia) within the outer limits of
the territorial sea of Australia (including every external Territory)—that is,
is the area within 12 nautical miles of the Australian coastal baseline.[30]
Currently section 261 of the Biosecurity Act
provides that a foreign vessel that is within the outer limits of the
territorial sea of the Australian Antarctic Territory is taken not to be in
Australian seas. Item 13 of Schedule 1 to the Bill amends section 261 to
make clear that a foreign vessel whose Administration is a party to the Ballast
Water Convention and which is within the outer limits of the exclusive
economic zone adjacent to the coast of the Australian Antarctic Territory is
also taken not to be in Australian seas.[31]
What is the Exclusive Economic Zone?
The Exclusive Economic Zone (EEZ) is an area beyond and
adjacent to the territorial sea. The outer limit of the exclusive economic
zone cannot exceed 200 [nautical miles] from the baseline from which the
breadth of the territorial sea is measured. In the EEZ, Australia has
sovereign rights for the purpose of exploring and exploiting, conserving and
managing all natural resources of the waters superjacent to the seabed and
of the seabed and its subsoil together with other activities such as the
production of energy from water, currents and wind. Jurisdiction also
extends to the establishment and use of artificial islands, installations
and structures, marine scientific research, the protection and preservation
of the marine environment, and other rights and duties.
The Australian EEZ is defined in the Seas and
Submerged Lands Act 1973 including the amendments to that Act made
by the Maritime
Legislation Amendment Act 1994.
The outer limit of the Australian EEZ is set out in the
Proclamation under the Sea and Submerged Lands Act which was made on
26 July 1994 and published in Gazette S290 on 29 July 1994. That proclamation
entered into force on 1 August 1994. The outer boundary is mostly 200NM from
the territorial sea baselines. However the Proclamation pulls the boundary
back to less than 200NM in areas of agreed or potential delimitation with
other countries. The metes and bounds definitions where the boundary has
been pulled back are taken from Australia's maritime delimitation agreements
with other countries and, where no such agreement exists, largely follow the
Fisheries
Management Act 1991 'excepted waters' Proclamation which was
published in Gazette No.S52 of 14 February 1992.
|
Geoscience Australia (GA), ‘Maritime
boundary definitions’, GA website.
Making a
determination
Central to the operation of the Bill is item 144 of
Schedule 1, which inserts proposed section 308A into the Biosecurity Act.
It gives the Director of Biosecurity a non-delegable power to make a
determination, by legislative instrument, prescribing matters that are required
or permitted by Chapter 5 or matters that are necessary or convenient to be
prescribed for carrying out or giving effect to the terms of Chapter 5. Among
other things, the determination may provide for the Director of Biosecurity to:
- enter
into agreements
- make
decisions and
- determine
matters by notifiable instrument.
This power is in addition to the
regulation making power which lies in section 645 of the Biosecurity
Act.
The Explanatory Memorandum to the Bill provides:
Although Schedule 1 will not commence until the Ballast
Water Convention comes into force for Australia, through the operation of
section 4 of the Acts Interpretation Act 1901, the Director of
Biosecurity will be able to make legislative instruments under Schedule 1 once
the Bill receives the Royal Assent. However those instruments cannot commence
until Schedule 1 has commenced.[32]
Notice of
discharge of ballast water
Part 2 of Chapter 5 currently requires the operator of a
vessel to give a report if it is intended that the vessel discharge, or the
vessel discharges, ballast water in Australian seas. If the
operator later finds the report was incomplete or incorrect, the operator must
give additional or corrected information.[33]
The Bill amends the Biosecurity Act to replace references
to the term Australian seas with references to Australian
territorial seas in Part 2.[34]
The Bill amends section 267 so that the operator of the vessel must give the
report if the vessel intends to discharge, or discharges ballast water in the Australian
territorial seas. The manner and form of that report will be set out in
a determination by the Director of Biosecurity under proposed section 308A.[35]
Offences
Currently Part 3 of Chapter 5 of
the Biosecurity Act provides that a person in charge, or the operator,
of a vessel which is in Australian seas commits an offence if the
person discharges ballast water. Both a fault based offence with a maximum
penalty of 2,000 penalty units[36]
and a strict liability office[37]
with a maximum penalty of 500 penalty units[38]
arise from a contravention of subsection 270(1)—with the following exceptions:
- where
the ballast water has been managed for discharge in accordance with the
Australian Ballast Water Management Requirements[39]
- where
the discharge of ballast water is part of an acceptable ballast water exchange[40]
- where
there has been an approved discharge to a ballast water reception facility[41]
- where
the discharge has been covered by an exemption granted by the Director of
Biosecurity[42]
- where
the ballast water that was discharged was taken from the same place[43]
- where
the discharge of ballast water has been necessary for safety of the vessel or
persons at sea, the discharge was accidental, or if the discharge was for the
purpose of avoiding or minimising pollution from the vessel.[44]
Item 27 of the Bill amends
section 270 of the Biosecurity Act to create separate offences for an Australian
vessel and for a foreign vessel.
Australian
vessel
Section 9 of the Biosecurity Act defines an Australian
vessel as one which has Australian nationality under section 29 of the Shipping
Registration Act 1981 or is a vessel whose Administration is the
Commonwealth.[45]
Proposed subsection 270(1), at item 27 of Schedule 1 to the Bill,
provides that a person contravenes the subsection if the person is in charge,
or the operator, of an Australian vessel and the vessel
discharges ballast water (whether in or outside Australian seas).
The exceptions from the offences that are listed above
continue to apply to an Australian vessel provided that, in addition, all of
the following are satisfied:
- either
the vessel has a ballast water management plan, and a ballast water management
certificate is in force for the vessel[46]
or the vessel is prescribed under proposed subsection 285A(3) or is
granted an exemption in accordance with proposed section 285B[47]
and
- if
the vessel has a ballast water management plan and a ballast water management
certificate—the management of the ballast water was carried out in accordance
with the ballast water management plan[48]
and
- if
the vessel has been granted an exemption in accordance with section 285B—any
condition of the exemption has been met.[49]
Foreign
vessel
Section 9 of the Biosecurity Act provides that a foreign
vessel is a vessel that is not an Australian vessel.
Proposed subsection 270(1A) provides that a person
contravenes the subsection if the person is in charge, or the operator, of a foreign
vessel which is in Australian seas and the vessel discharges ballast
water. Item 28 of the Bill amends subsections 270(2) and (3) of the Biosecurity
Act to extend the existing fault-based and strict liability offences to a
person who contravenes proposed subsection 270(1A).
The key difference is that, for Australian vessels, a
contravention can occur anywhere, whereas for foreign vessels, a
contravention within the jurisdiction of the Biosecurity Act can only
occur in Australian seas.
|
Explanatory
Memorandum, Biosecurity Amendment (Ballast Water and Other Measures) Bill
2017, p. 7.
Scrutiny of
Bills Committee
The Scrutiny of Bills Committee drew attention to the
reversal of the onus of proof for the offences stating that:
Subsection 13.3(3) of the Criminal Code Act 1995 provides
that a defendant who wishes to rely on any exception, exemption, excuse,
qualification or justification bears an evidential burden in relation to that
matter.
While the defendant bears an evidential burden (requiring the
defendant to raise evidence about the matter), rather than a legal burden
(requiring the defendant to positively prove the matter), the Committee expects
any such reversal of the evidential burden of proof to be justified. The
reversal of the evidential burden of proof proposed to be introduced by item 30
has not been addressed in the Explanatory Materials.[50]
That being the case, the Scrutiny of Bills Committee has requested
the Minister’s advice as to why it is proposed to use an offence-specific
defence (which reverses the evidential burden of proof) in this instance.
Methods of
ballast water management
Australian methods
Existing section 272 provides that ballast water discharge
from the vessel has been managed for discharge if certain
conditions are satisfied. Section 273 allows an application to be made in accordance
with regulations to the Director of Biosecurity to approve a method of ballast
water management.
Items 34–40 of the Bill amend those sections so
that ballast from a vessel has been managed for discharge if:
- the
ballast water has been managed using an approved method[51]
- at
the time the ballast water is discharged the vessel has appropriate ballast
water records[52]
and
- the
requirements of any determination by the Director of Biosecurity under proposed
section 308A have been met.[53]
Section 273 is amended so that an application to approve a
method of ballast water management is to be made to the Director of Biosecurity
in accordance with a determination under proposed section 308A.
Foreign methods
Item 41 of the Bill repeals and replaces section
274 of the Biosecurity Act to allow the Director of Biosecurity to make
a determination under proposed section 308A that a method of ballast water
management that has been approved by a foreign country in accordance with the Ballast
Water Convention is approved for the purposes of the Biosecurity Act.
Ballast
water exchange
Section 275 of the Biosecurity Act provides that
ballast water discharged from a tank on the vessel has been managed for discharge
in certain circumstances. Items 42–49 of Schedule 1 to the Bill amend
section 275 so that ballast water discharged from a tank on a vessel has been
managed for discharge if:
- at
least a proportion (by volume) prescribed by a determination under proposed section
308A of the ballast water in the tank immediately before discharge has been
taken up in an acceptable ballast water exchange
- at
the time the ballast water is discharged the vessel has appropriate ballast
water records
- the
vessel is not specified by a determination to be excluded from the operation of
section 275.[54]
For the purposes of the Biosecurity Act, a ballast
water exchange will be an acceptable ballast water exchange if it
is conducted in an area prescribed, or an area meeting requirements prescribed,
by a determination under proposed section 308A.[55]
Exceptions
Sections 277–282 of the Biosecurity Act create
exceptions to the offence provisions in section 270 relating to ballast water
discharges. The terms of the exceptions remain substantially the same as
currently, with references to regulations being replaced by references to a
determination under proposed section 308A.[56]
An additional exception is inserted by item 58 of
the Bill. Proposed section 278A empowers the Director of Biosecurity to
make a determination under proposed section 308A prescribing conditions in
relation to a discharge of ballast water from a vessel—provided that the
conditions are consistent with the objects of the Biosecurity Act. Those
objects, as set out in section 4, include providing for managing risks related
to ballast water.
Currently section 280 of the Biosecurity Act provides
that an application may be made to the Director of Biosecurity for an exemption
for one or more discharges of ballast water from a vessel that are connected
with voyages between specified ports or locations if the ballast water was
taken up in one or more of those ports and locations. Item 61 of
Schedule 1 to the Bill amends section 280 of the Biosecurity Act so that
references to ‘locations’ is expanded to also include offshore terminals.
Similarly, section 282 is amended by items 64 and 65
of the Bill so that it is not an offence to discharge ballast water from a
vessel if:
- all
the ballast water discharged was taken up at a port, offshore terminal or
another point
- that
ballast water was not mixed with other ballast water that had not been managed
for discharge and
- the
discharge occurs at the port, offshore terminal or within one nautical mile of
the other point where the ballast water was taken up.
Reporting
Section 283 of the Biosecurity Act allows for the
discharge of ballast water from the vessel if the discharge is necessary to
ensure the safety of the vessel in emergency or saving life at sea. Where this
occurs, section 284 requires the person in charge, or the operator, of the
vessel to make a report to the Director of Biosecurity. Item 73 of
the Bill amends subsection 284(1) so that such a report will be required if the
vessel discharges ballast water in Australian territorial seas—rather
than as presently in Australian seas. Currently, under subsection
284(4), a person commits an offence of strict liability if the person is in
charge, or the operator, of a vessel and the required report is not made. Item
75 of the Bill amends subsection 284(4) of the Biosecurity Act so
that the maximum penalty for the offence is reduced from 500 penalty units to
120 penalty units.[57]
Management
plans and management certificates
Part 4 of Chapter 5 of the Biosecurity Act provides
for ballast water management plans[58]
(that is, a document that deals with ballast water management for the vessel
and the disposal of sediments from the vessel) and ballast water management
certificates for vessels[59]
to be issued, endorsed and recognised.
Item 78 of the Bill inserts proposed Division
1A—General requirement to have ballast water management plan and certificate
into Part 4 of Chapter 5 of the Biosecurity Act.
Proposed Division 1A will operate as follows:
- an
Australian vessel (whether in or outside Australian seas) must have a ballast
water management plan and a ballast water management certificate that is in
force[60]
- a
foreign vessel in Australian seas must have a ballast water management plan and
a ballast water management certificate that is in force[61]
- the
Director of Biosecurity may make a determination under proposed section 308A to
prescribe a scheme or survey authority to grant an exemption to a
particular vessel from those requirements[62]
- a
person who is in charge of an Australian vessel or a person who is in charge of
a foreign vessel in Australian seas commits an offence if the vessel does not
have a ballast water management plan and a ballast water management certificate
that is in force, and the vessel has not been exempted from those requirements.
The maximum penalty for the offence is 200 penalty units.[63]
According to the Explanatory Memorandum to the Bill the new
offences created by proposed section 285C (above) are ‘required to meet
Australia’s obligation to establish sanctions wherever a violation of the Ballast
Water Convention occurs’.[64]
Survey
authority
Item 94 of Schedule 1 to the Bill inserts proposed
Division 4—Survey authorities into Part 4 of Chapter 5 of the Biosecurity
Act. Within the new Division, proposed section 290A empowers the
Director of Biosecurity to authorise a person, in writing, to be a survey
authority if the Director is satisfied the person has suitable qualifications
to perform the functions of a survey authority.[65]
Ballast
water records
Part 5 of Chapter 5 of the Biosecurity Act sets out
how vessels are to keep records of their ballast water operations. Currently
the Part has different requirements for Australian vessels (in Division 2) and
for foreign vessels (in Division 3). Item 121 of Schedule 1 to the Bill
repeals Division 3.
Items 95–120 amend Division 2 so that it deals with
all vessels. In particular item 98 of Schedule 1 to the Bill
amends section 292 of the Biosecurity Act to require an Australian vessel
(whether in or outside Australian seas) to have a ballast water record system
that complies with the requirements set out in a determination under proposed
section 308A. Item 100 inserts proposed subsection 292(1A) in
similar terms which applies to a foreign vessel in Australian seas that is
capable of carrying ballast water. A person commits an offence of strict
liability if they are in charge of the vessel which is capable of carrying
ballast water and the vessel does not have a ballast water record system. The maximum
penalty for the offence is 200 penalty units.[66]
The offence applies:
- to
Australian vessels, regardless of whether they are inside or outside Australian
territory
- to
foreign vessels whose nation is a party to the Ballast Water Convention,
in Australia's EEZ
- to
foreign vessels whose nation is not a party to the Ballast Water Convention,
in the Australian territorial sea.
This creates inconsistent requirements, depending on the
vessel’s flag nation. However this is the only option to ensure that
Australia meets its obligations under the Ballast Water Convention (to
apply the requirements to Australian vessels regardless of location), while
not overstepping its authority in the absence of the Ballast Water
Convention being a recognised international rule or standard.
|
Explanatory
Memorandum, Biosecurity Amendment (Ballast Water and Other Measures) Bill
2017, p. 17.
Currently section 293 requires a record to be made if an
Australian vessel (whether in or outside Australian seas) conducts a ballast
water operation or disposes of sediment. Item 104 of Schedule 1 to the
Bill inserts proposed subsection 293(1A) which requires a record to be
made by a foreign vessel that conducts a ballast water operation or disposes of
sediment in Australian seas. Items 108 and 109 amend existing subsections
293(3) and (4) to extend the strict liability offence of failure to make a
record in accordance with the section and the fault-based offence of making a false
or misleading record, to foreign vessels. Each of the records made under
subsections 293(1) and (1A) must be retained on board the vessel for two years
after the record is made.[67]
Disposing
of sediment
Part 6 of Chapter 5 of the Biosecurity Act gives
rise to an offence of disposing of sediment.
Currently section 298 provides that a person in charge, or
the operator, of a vessel which is in Australian seas commits an
offence if the vessel disposes of sediment and the sediment is not disposed of
to a sediment reception facility.[68]
Item 124 of Schedule 1 to the Bill repeals and
replaces subsection 298(1). Proposed subsection 298(1) retains the
offence for an Australian vessel which disposes of sediment (whether in or
outside Australian seas) if the disposal does not take place at a sediment
reception facility. Proposed subsection 298(1A) creates an offence in
similar terms where a foreign vessel in Australian seas disposes of sediment if
the disposal does not take place at a sediment reception facility. The existing
fault-based offence with a maximum penalty of 2,000 penalty units and the
strict liability offence with a maximum penalty of 500 penalty units apply to
both Australian and foreign vessels.[69]
It is an exception to the offence if:
- the
disposal is necessary for the purpose of ensuring the safety of the vessel in
an emergency or saving life at sea[70]
-
the disposal of sediment is accidental and results from damage to
the vessel or its equipment, subject to the following provisos:
– all
reasonable precautions to prevent or minimise the disposal are taken before and
after the occurrence of the damage, the discovery of the damage and the discovery
of the disposal and
– neither
the person in charge of the vessel nor the owner or operator of the vessel intentionally
caused the damage, or was reckless as to the occurrence of the damage[71]
or
-
the disposal of sediment was for the purpose of avoiding or
minimising pollution from the vessel.[72]
These exceptions remain unchanged
by the Bill. However, item 126 inserts proposed section 299A which
requires such a disposal to be reported to the Director of Biosecurity. A person
commits an offence of strict liability if the person is in charge, or the
operator, of the vessel and such a report is not made. The maximum penalty for
the offence is 120 penalty units.[73]
Scrutiny of
Bills Committee
The Scrutiny of Bills Committee commented on proposed section
299A which makes it an offence of strict liability if the person does not
make a report when required, stating:
In a criminal law offence the proof of fault is usually a
basic requirement. However, offences of strict liability remove the fault
(mental) element that would otherwise apply. The committee expects the Explanatory
Memorandum to provide a clear justification for any imposition of strict
liability, including outlining whether the approach is consistent with the Guide
to Framing Commonwealth Offences.[74]
The Scrutiny of Bills Committee noted that the Guide to
Framing Commonwealth Offences provides that the application of strict
liability is generally only considered appropriate where the offence is
punishable by a fine of up to 60 penalty units for an individual. In this case,
the proposed strict liability offence is subject to a maximum penalty of up to
120 penalty units. Therefore, the Scrutiny of Bills Committee has requested
advice from the Minister was to why the proposed penalty for the strict
liability offence is double that which is considered appropriate in the Guide
to Framing Commonwealth Offences.[75]
Compliance
Part 7 of Chapter 5 of the Biosecurity Act gives
the Director of Biosecurity and biosecurity officers’ powers to enforce the
provisions of the Chapter. Proposed section 300A which is inserted by item
128 of Schedule 1 to the Bill makes clear that the powers under Part 7 may
be exercised at a port or offshore terminal within the outer limits of the
exclusive economic zone of Australia.
Division 2 of Part 7 of the Biosecurity Act currently
sets out the power to require the owner of an Australian vessel to provide
ballast water records. Item 130 of Schedule 1 to the Bill inserts proposed
sections 300B–300D into Division 2 to extend the powers of biosecurity
officers to:
- direct
the person in charge, or the operator, of a vessel to secure the vessel[76]
- take
samples of ballast water from the vessel, direct a person in charge of the
vessel to deliver samples of ballast water from the vessel, or arrange for
another person, with appropriate qualifications or expertise, to take samples
of ballast water from the vessel[77]
and
- require
a person who the biosecurity officer suspects, on reasonable grounds, has
information in relation to a vessel to answer questions, or provide information
in writing, in relation to the vessel.[78]
In each case, a person who is given a direction must
comply with the direction.[79]
A failure to do so gives rise to a maximum civil penalty of 120 penalty units.
Currently section 302 of the Biosecurity Act empowers
the Director of Biosecurity or a biosecurity officer to give a direction not to
discharge ballast water to a person in charge of the vessel in Australian seas.
The person in charge of the vessel must comply with the direction. A person who
fails to comply with a direction given under this section may commit an offence
under existing section 305. Item 135 of Schedule 1 to the Bill repeals
and replaces subsection 302(1) of the Biosecurity Act so that it applies
to the person in charge of a vessel—not just an Australian vessel.
Consequently, the offence provision is extended to all vessels, including
foreign vessels, in all seas.
Item 139 of Schedule 1 to the Bill inserts proposed
section 304A which requires the person in charge, or the operator, of the
vessel to make a report to the Director of Biosecurity if the person is given a
direction under Division 2 or Division 3 of Part 7 of Chapter 5 and the person
fails to comply with the direction. The matters to be included in the report
are listed in proposed subsection 304A(2).
Schedule
2—key issues and provisions
The provisions of Schedule 2 to the Bill make minor
amendments to the Biosecurity Act being:
- ensuring
that Chapter 2 deals mainly, but not exclusively, with listed human diseases[80]
- inserting
the definition of the term vector as meaning an arthropod or
other living carrier that transports an infectious agent from an infected plant
or animal to an individual[81]
- moving
the requirements to destroy vectors on incoming or outgoing aircraft or vessels
out of Chapter 2 and into Chapter 4 of the Biosecurity Act[82]and
- inserting
a power for the Director of Human Biosecurity or a chief human biosecurity
officer for a state or territory to direct an operator of first point of entry
to carry out activities to control vectors.[83]
[1]. International
Convention for the Control and Management of Ships’ Ballast Water and Sediments
(BWM), done in London on 13 February 2004, adopted
13 February 2004 and entering into force on
8 September 2017, [2005]
ATNIF 18.
[2]. Transport
Canada, ‘Ballast
water defined’, Transport Canada website, 21 January 2010.
[3]. KM
Kim, ‘A
study of the implications of the ballast water management convention for flag
states’, World Maritime University dissertations, Paper 398, 2013,
p. 9.
[4]. Ibid.
[5]. Department
of Agriculture and Water Resources (DAWR), ‘Ballast
water’, DAWR website, 22 November 2016.
[6]. DAWR,
Australian
ballast water management requirements: version 6, DAWR, Canberra, 2016,
p. 1.
[7]. International
Convention for the Control and Management of Ships’ Ballast Water and Sediments
(BWM), op. cit., [2005]
ATNIF 18.
[8]. Australia
has already experienced incursions by pests such as the Asian green mussel. See
A Darby, ‘Beware
the Asian green mussel, pest among pests’, The Age,
15 July 2003, p. 7.
[9]. ‘Ballast
water convention to enter into force in 2017’, The Maritime Executive,
8 September 2016.
[10]. DAWR,
‘Australian
ballast water management requirements—version 6’, DAWR website,
22 November 2016.
[11]. For
example, Victoria has additional requirements for the management of Australian
sourced domestic ballast water which are enforced by the Victorian State
Government Environment Protection Authority (EPA) under the Environment
Protection Act 1970 (Vic). These are contained in the Environment
Protection (Ships’ Ballast Water) Regulations 2006.
[12]. Selection
of Bills Committee, Report,
3, 2017, Senate, Canberra, 23 March 2017.
[13]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 3, 2017, Senate, Canberra, 22 March 2017.
[14]. Details
of the terms of reference, submissions to the Senate Standing Committee on
Environment and Communications, and the Committee’s final report are on the inquiry homepage.
[15]. Australian
Maritime Safety Authority (AMSA), Submission
to the Senate Standing Committee on Environment and Communications, Inquiry
into Environmental Biosecurity, n.d., Submission no. 37, p. 1.
[16]. Ibid.,
pp. 1–2.
[17]. Shipping
Australia, Submission
to the Senate Standing Committee on Environment and Communications, Inquiry
into Environmental Biosecurity, 5 August 2014, submission no. 9,
p. 5.
[18]. Explanatory
Memorandum, Biosecurity Amendment (Ballast Water and Other Measures) Bill
2017, p. 2.
[19]. The
Statement of Compatibility with Human Rights can be found at page 27 of the Explanatory Memorandum
to the Bill.
[20]. Parliamentary
Joint Committee on Human Rights, Report, 2,
2017, 21 March 2017, p. 117.
[21]. B
Joyce (Deputy Prime Minister and Minister for Agriculture and Water Resources),
‘Second
reading speech: Biosecurity Amendment (Ballast Water and Other Measures) Bill
2017’, House of Representatives, Debates,
15 February 2017, p. 1074.
[22]. Item
6 of Schedule 1 to the Bill amends the definition of Ballast Water
Convention in section 9 of the Biosecurity Act so that if the Ballast
Water Convention is amended the Biosecurity Act refers to that
amended Convention.
[23]. Biosecurity
Act, proposed amendment to section 3, at item 1 of the Bill.
[24]. Ibid.
As explained below, the definition of Australian seas differs
according to whether the relevant foreign ship’s country is a party to the Ballast
Water Convention.
[25]. International
conference on ballast water management for ships, Article 3.2(e).
[26]. Biosecurity
Act, proposed section 263A inserted by item 14 of Schedule 1
to the Bill.
[27]. Biosecurity
Act, section 9.
[28]. Section
9 of the Biosecurity Act provides that ‘Administration’ has the same
meaning as in the Ballast Water Convention. It is defined in
Article 1.1 of that Convention as ‘the Government of the State under whose
authority the ship is operating’.
[29]. Item
4 of Schedule 1 to the Bill.
[30]. Item
5 of Schedule 1 to the Bill.
[31]. Biosecurity
Act, proposed subsection 261(2).
[32]. Explanatory
Memorandum, Biosecurity Amendment (Ballast Water and Other Measures) Bill
2017, p. 3. See also Acts Interpretation
Act 1901.
[33]. Biosecurity
Act, section 266.
[34]. Items
16–18 and 24 of Schedule 1 to the Bill.
[35]. Items
19–20 and 22–23 of Schedule 1 to the Bill.
[36]. This
is equivalent to $360,000.
[37]. The
imposition of strict liability means that a fault element does not need to be
satisfied, but the offence will not criminalise honest errors and a person
cannot be held liable if he, or she, had an honest and reasonable belief that
they were complying with relevant obligations.
[38]. This
is equivalent to $90,000.
[39]. Biosecurity
Act, section 271; DAWR, ‘Australian
ballast water management requirements—version 6’, op. cit.
[40]. Biosecurity
Act, section 276.
[41]. Biosecurity
Act, section 277.
[42]. Biosecurity
Act, sections 279 and 280.
[43]. Biosecurity
Act, section 282.
[44]. Biosecurity
Act, section 283.
[45]. See
footnote 28 for an explanation of ‘Administration’.
[46]. Biosecurity
Act, proposed subparagraph 270(4)(b)(i), at item 30 of
Schedule 1 to the Bill.
[47]. Biosecurity
Act, proposed subparagraph 270(4)(b)(ii).
[48]. Biosecurity
Act, proposed paragraph 270(4)(c).
[49]. Biosecurity
Act, proposed paragraph 270(4)(d).
[50]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 3, 2017, op. cit., p. 5.
[51]. Biosecurity
Act, paragraph 272(a).
[52]. Biosecurity
Act, proposed paragraph 272(b).
[53]. Biosecurity
Act, proposed paragraph 272(d).
[54]. Biosecurity
Act, proposed paragraph 275(1)(c) inserted by item 43 of
Schedule 1 to the Bill.
[55]. Biosecurity
Act, proposed paragraph 275(3)(a) amended by item 46 of Schedule
1 to the Bill.
[56]. Items
55, 57 and 62 of Schedule 1 to the Bill.
[57]. That
is, from $90,000 to $21,600.
[58]. Item
80 of Schedule 1 to the Bill repeals and replaces section 286 of the Biosecurity
Act to define the nature of a ballast water management plan
for a vessel.
[59]. Item
86 of Schedule 1 to the Bill repeals and replaces section 288 of the Biosecurity
Act to define the nature of a ballast water management certificate
for a vessel.
[60]. Biosecurity
Act, proposed subsection 285A(1).
[61]. Biosecurity
Act, proposed subsection 285A(2).
[62]. Biosecurity
Act, proposed section 285B.
[63]. Biosecurity
Act, proposed subsections 285C(1) and (2).
[64]. Explanatory
Memorandum, Biosecurity Amendment (Ballast
Water and Other Measures) Bill 2017, p. 13.
[65]. The
authorisation is not a legislative instrument. Biosecurity Act, proposed
subsection 290A(2).
[66]. Biosecurity
Act, subsection 292(2).
[67]. Biosecurity
Act, subsection 294(1).
[68]. Item
10 of Schedule 1 to the Bill repeals and replaces the term sediment
reception facility in section 9 of the Biosecurity Act to
mean: for an Australian vessel that is not in Australian seas—a facility for
receiving sediment from vessels for treatment or disposal in accordance with
IMO guidelines; or otherwise—a facility in Australian territory for receiving
sediment from vessels for treatment or disposal in a way authorised under a law
of the Commonwealth or, if the facility is in a state or territory—a law of the
state or territory.
[69]. Item
125 of Schedule 1 to the Bill amends subsections 298(2) and (3) of the Biosecurity
Act.
[70]. Biosecurity
Act, subsection 299(1).
[71]. Biosecurity
Act, subsection 299(2).
[72]. Biosecurity
Act, subsection 299(3).
[73]. Biosecurity
Act, proposed subsection 299A(3).
[74]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 3, 2017, op. cit., p. 6.
[75]. Ibid.,
p. 7.
[76]. Biosecurity
Act, proposed section 300B.
[77]. Biosecurity
Act, proposed subsection 300C(2).
[78]. Biosecurity
Act, proposed section 300D.
[79]. Biosecurity
Act, proposed subsections 300B(2), 300C(4) and 300D(2).
[80]. Items
1–3 and 5 of Schedule 2 to the Bill.
[81]. Item
4 of Schedule 2 to the Bill.
[82]. Items
6 and 7 of Schedule 2 to the Bill.
[83]. Item
10 of Schedule 2 to the Bill.
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