Bills Digest No. 92,
2016–17
PDF version [615KB]
Bill McCormick
Science, Technology, Environment and Resources Section
27
April 2017
Contents
Purpose of the Bill
Background
Committee consideration
Selection of 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
Key issues and provisions
New definitions relating to the Polar
Code
Discharge of oil
Discharge of noxious substances
Discharge of sewage
Prevention of pollution by garbage
Date introduced: 16
February 2017
House: House of
Representatives
Portfolio: Infrastructure
and Regional Development
Commencement: Sections 1 to 3 on Royal Assent. Schedule 1 on the 28th day after Royal Assent
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 April 2017.
Purpose of
the Bill
The purpose of the Protection of the Sea (Prevention of
Pollution from Ships) Amendment (Polar Code) Bill 2017 (the Bill) is to amend
the Protection
of the Sea (Prevention of Pollution from Ships) Act 1983 (POTS Act)
to fulfil Australia’s international obligations under the International Code
for Ships Operating in Polar Waters (Polar Code), and in particular to implement
stricter requirements for discharging oil, noxious substances, sewage and
garbage from ships in Antarctic and Arctic waters.[1]
Background
The Polar
Code, which entered into force on 1 January 2017, was developed to require
increased safety measures for ships and their crew when operating in the harsh
polar seas. It also includes measures to protect the pristine marine and
coastal environments of the Arctic and Antarctic.[2]
The vessels that are required to comply with the Polar
Code are those that intend to operate within Arctic waters or the Antarctic Area,
as defined in the Code.[3]
Arctic waters are generally those north of 60° North latitude but extend south
of Greenland to 58°N and then north of Iceland to the Norwegian islands of Jan
Mayen Island (71°N) then to Bear Island (71.5°N) and then to Cape Kanin Nos in
Russia (68.65°N).[4]
The Antarctic Area is south of 60° South latitude.
The Polar Code was adopted by the International Maritime
Organisation (IMO) along with associated amendments to the International
Convention for the Safety of Life at Sea (SOLAS)[5]
in November 2014. Related amendments to the International
Convention for the Prevention of Pollution from Ships (MARPOL)[6]
were adopted in May 2015.[7]
Part I-A of the Polar Code contains provisions relating to
safety, while Part II-A relates to pollution prevention. Some provisions of the
Code are ‘requirements’, while others are only ‘recommendations’. Under the
Polar Code, ships intending to operate in polar waters will have to apply for a
Polar Ship Certificate designating the ship as Category A,B or C.[8]
Category A ships are those capable of operating in first-year ice of 70–120 cm
thickness, and Category B ships are designed for operating in 30–70-cm-thick
ice, while Category C ships are designed to
operate in open water or in ice conditions less severe than those included in
categories A and B. Ships will also have to carry a Polar Water
Operational Manual.[9]
The safety provisions in the Code relate to ship
structure; stability and subdivision; watertight and weathertight integrity;
machinery installations; operational safety; fire safety and protection;
life-saving appliances and arrangements; safety of navigation; communications;
voyage planning and manning and training.[10]
The pollution provisions relate to prevention of pollution from oil, noxious
liquid substances, sewage and garbage from ships.
MARPOL aims to prevent and minimise
pollution from ships—both from accidental pollution and routine operations.
MARPOL currently includes six technical Annexes as follows:
- Annex I: Regulations for
the Prevention of Pollution by Oil
- Annex II: Regulations for
the Control of Pollution by Noxious Liquid Substances in Bulk
- Annex III: Regulations for
the Prevention of Pollution by Harmful Substances Carried by Sea in Packaged
Form
- Annex IV: Regulations for
the Prevention of Pollution by Sewage from Ships
- Annex V: Regulations for
the Control of Pollution by Garbage from Ships and
- Annex VI: Regulations for
the Prevention of Air Pollution from Ships.[11]
Australia’s obligations under MARPOL are implemented
through the POTS Act.[12]
Several previous amendments have been made to MARPOL and the POTS Act to
specifically protect the Antarctic environment.
In 1990, the Antarctic was designated as a ‘special area’ under
Annexes I (prevention of oil pollution) and V (prevention of pollution from
garbage) because of the fragile ecosystems in the area which required stricter
controls to be placed on discharges from ships.[13]
Under this amendment, any discharge of oil or oily mixture into the sea in the
Antarctic Area from any ship was prohibited. In addition, all ships flagged
from countries who are MARPOL parties were required to retain all garbage while
operating in the Antarctic.[14]
In 1992, an amendment to Annex II of MARPOL prohibited the
discharge of any noxious substance into the sea in the Antarctic area.[15]
In 2011, the POTS Act was
amended to implement Regulation 43 in Annex I of MARPOL, which prohibits
the carriage of heavy grade oil (HGO) in ships for use as fuel or as cargo in bulk in the Antarctic.[16]
While no similar amendments have placed such additional
restrictions on ships operating in Arctic waters under MARPOL, in 2009, the IMO
adopted Guidelines
for Ships Operating in Polar Waters which provided:
Procedures for the protection of the environment under normal
operations should take into account any applicable national and international
rules and regulations and industry best practices related to operational
discharges and emissions from ships, use of heavy grade oils, strategies for
ballast water management, use of anti‑fouling systems, and related
measures.[17]
Under the Polar Code, ships are now encouraged not to use
or carry heavy grade fuel oil in the Arctic, and discharges of oil, noxious
substances, sewage and garbage into the sea in Arctic waters are now prohibited
or regulated.[18]
The Polar Code and accompanying amendments to SOLAS and
MARPOL do not apply precisely the same restrictions in the Arctic and the
Antarctic. There are differences in conditions as a result of geography: for
example, the ‘Arctic is an ocean surrounded by continents while the Antarctic
is a continent surrounded by an ocean’ and as a result there is little
multiyear sea ice in the Antarctic compared to the Arctic.[19]
The Polar Code preamble states that ‘although the Code is intended to apply as
a whole to both Arctic and Antarctic, the legal and geographical differences
between the two areas have been taken into account’.[20]
However, there are also similarities and so, for example, the
Polar Code applies the same restrictions on the discharge of sewage in both the
Antarctic Area and Arctic waters.[21]
Committee
consideration
Selection of Bills Committee
On 23 March 2017, the Senate Selection of Bills Committee recommended
that the Bill not be referred to a committee for inquiry and report.[22]
Senate
Standing Committee for the Scrutiny of Bills
The Senate Scrutiny of Bills Committee had comments in
relation to proposed section 26BCC of the POTS Act, at item 14 of
the Bill, which contains offences for the discharge of sewage in the Antarctic
Area and Arctic waters (see further ‘Key issues and provisions’ later in this
Digest). In relation to the imposition of strict liability under proposed
subsections 26BCC(3) and (4), the Committee noted:
Proposed subsection 26BCC(3) and (4) make it an offence of
strict liability if the master and the owner of a ship discharge sewage from
the ship in the Antarctic Area and Arctic waters in certain circumstances. The
offence carries a significant penalty of 500 penalty units. The Guide to
Framing Commonwealth Offences, Infringement Notices and Enforcement Powers states
that strict liability offences are generally only considered appropriate where
the offence is punishable by a fine of up to 60 penalty units for an individual
(300 for a body corporate) ...[23]
The Committee requested a detailed justification from the
Minister for each proposed strict liability offence with reference to the
principles set out in the Guide to Framing Commonwealth Offences,
Infringement Notices and Enforcement Powers, in particular the
justification for the proposed penalty.[24]
The Committee also made the following comments in relation
to reversal of the evidential burden of proof:
Proposed subsections 26BCC(5), (6), (7), (8) and (9) provide
exceptions (offence specific defences) to the strict liability offences
relating to the discharge of sewage from a ship in the Antarctic Area and Arctic
waters.
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 in proposed section 26BCC has not
been addressed in the explanatory materials.[25]
As neither the statement of compatibility with human
rights nor the Explanatory Memorandum addresses this issue, the Committee
requested the Minister’s advice as to why it is proposed to use offence-specific
defences (which reverse the evidential burden of proof) in this instance. The Committee
noted that its consideration of the appropriateness of a provision which
reverses the burden of proof is assisted if it explicitly addresses relevant
principles as set out in the Guide to Framing Commonwealth Offences,
Infringement Notices and Enforcement Powers.[26]
Policy
position of non-government parties/independents
Anthony Albanese, Shadow Minister for
Infrastructure, Transport, Cities and Regional Development, said that the
Opposition supported the Bill.[27]
He noted that the Polar Code is not perfect and there are moves to strengthen
it further, with New Zealand producing ‘a proposal for phase 2 of the code’.[28] He suggested:
Some of the issues that the next wave of reform should
examine include further toughening of the minimum structural requirement for
ships and the fact that the code applies only to ships with a gross tonnage of
more than 500 tonnes, meaning it excludes fishing boats. As well, while the
code covers management of ballast water and antifouling paint, complying with
these provisions is voluntary. It also allows for food to be thrown overboard
as little as 12 nautical miles from the ice, which, for example, is not allowed
to happen—not surprisingly—in the Mediterranean Sea.[29]
Position of
major interest groups
While not commenting specifically on this Bill, the Friends
of the Earth (FOE) has said that the Polar Code has some noteworthy elements, including
a ban on the operational discharge of oil and chemicals and enhanced standards
associated with disposal of sewage and garbage into polar seas.[30]
However, FOE observed that many important issues were not included in the Polar
Code: notably eliminating heavy fuel oil use in the Arctic and the inclusion of
‘mandatory invasive species protections, graywater [sic] restrictions,
underwater noise abatement and sufficient oil spill response requirements’.[31]
Similarly, Sian Prior of the Antarctic and Southern Ocean
Coalition (ASOC) welcomed the Polar Code’s strengthening of
controls on the discharge of sewage and garbage, but ‘was very disappointed
that an opportunity which could have provided the further protection needed for
Antarctic waters has been lost’.[32]
ASOC would like to see other improvements, such as:
- A ban on the discharge
of any untreated sewage into Antarctic waters;
- The introduction of
controls for the discharge of grey water (i.e. galley water, laundry room
water, shower/bathwater, sink water), which can contain high levels of
detergents, chemicals and faecal coliforms. The discharge of grey water is
completely unregulated in Antarctic waters;
- Regulation of discharges
of ballast water, which can contain invasive species that could settle in
Antarctic waters, and controls on hull fouling to prevent the introduction of
invasive species via ships’ hulls; and
- Tailored regulation of
oil spill response addressing equipment required to be carried onboard,
training for crews, and the possible response from a ship, bearing in mind that
any oil spill response will initially have to be delivered by the vessel
responsible for a spill or other vessels in the vicinity rather than from
further afield.[33]
Financial
implications
The Explanatory Memorandum states that the Bill will have
no financial impact for the Commonwealth.[34]
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.[35]
Parliamentary
Joint Committee on Human Rights
As was the case with the Senate Scrutiny of Bills
Committee, the Parliamentary Joint Committee on Human Rights noted that the ‘statement
of compatibility does not provide an assessment of reverse burden offences or
strict liability offences and does not identify that any rights are engaged and
limited’.[36]
The Committee commented that the statement of compatibility for the Bill ‘has either
not addressed, or has not sufficiently addressed, whether the strict liability
offence is a permissible limit on human rights’.[37]
Therefore the Committee requested the Minister to provide further information
as to:
- whether
the strict liability and reverse burden offences are aimed at achieving a
legitimate objective for the purposes of international human rights law
- how
the strict liability and reverse burden offences are effective to achieve (that
is, rationally connected to) that objective and
- whether
the limitation is a reasonable and proportionate measure to achieve the stated
objective.[38]
Key issues
and provisions
The Bill has one Schedule, which amends the POTS Act
to implement the 2015 amendments to MARPOL which adopted the
environment-related provisions of the Polar Code. Since there are already
stricter provisions in MARPOL and the POTS Act relating to prevention of
pollution from oil, garbage and noxious substances in the Antarctic, many of
the amendments in the Bill extend coverage of these provisions to the Arctic
waters. The most comprehensive amendments relate to increased restrictions and
prohibitions on the discharge of sewage from ships in both the Antarctic and
the Arctic.
New definitions
relating to the Polar Code
Item 1 of
Schedule 1 of the Bill proposes to add several new definitions to subsection
3(1) of the POTS Act. Most of these new terms are referred to as having ‘the
same meaning as in the Polar Code’. While five have precise definitions in the
Polar Code, the term ‘areas of ice concentration exceeding 1/10’ is not further
defined. It is not clear why a reference was made to a definition in the Polar
Code when in fact there is no such definition.
The other new definitions and their corresponding meaning
in the Polar Code are as follows:
- Category
A ships are those designed to operate in polar waters in at least medium
first-year ice, that is, sea ice of one winter’s growth of 70–120 cm thickness[39]
- Category
B ships are those designed to operate in polar waters in at least thin
first-year ice, that is, sea ice of one winter’s growth of 30–70 cm thickness[40]
- Fast
ice is defined as ‘sea ice which forms and remains fast along the
coast, where it is attached to the shore, to an ice wall, to an ice front,
between shoals or grounded icebergs’[41]
and
- An ice-shelf is thick floating ice that is 2–50 metres or more above
the water and attached to the coast.[42]
Discharge
of oil
Subsection 9(1B) of the POTS Act prohibits
discharge of oil or oily mixtures from a ship into the sea.[43]
Subsection 9(4) provides a number of exceptions to this prohibition,
subject to certain conditions being met. However, the exceptions generally do
not apply to discharges from ships in ‘special
areas’,[44]
such as the Antarctic Area.[45]
Items 2, 5, 6 of the Bill amend the exceptions in
paragraphs 9(4)(a), (d) and (e) to add ‘and not in Arctic waters’ after ‘not
within a special area’. This means that the exceptions to the prohibition on
ships and tankers discharging oil or oily mixture into the sea will no longer
apply to ships within Arctic waters.
Similarly, item 4 amends the exception in paragraph
9(4)(c) by replacing ‘within an area other than the Antarctic area from a ship’
with ‘from a ship that is within an area (other than the Antarctic Area or
Arctic waters)’. This means the exception to the oil discharge prohibition for
ships of less than 400 tonnes does not apply in the Antarctic Area or Arctic
waters.
Discharge
of noxious substances
Subsection 21(1) of the POTS Act contains an
offence for recklessly or negligently discharging noxious substances or mixtures
from a ship into the sea.[46]
Subsection 21(1B) contains a strict liability version of this offence.[47]
Subsections 21(4) to 21(9) contain exceptions to this
strict liability offence, as long as certain conditions are met. However,
subsection 21(13) provides that these exceptions do not apply to discharges of
noxious substances in the Antarctic Area. Items 7 and 8 of the Bill amend
subsection 21(13) to extend this so that the exceptions also do not apply to discharges
in Arctic waters.
Discharge
of sewage
Operational requirements of the Polar Code in relation to
Prevention of Pollution by Sewage from Ships state that:
4.2.1 Discharges
of sewage within polar waters are prohibited except when performed in
accordance with MARPOL Annex IV and the following requirements:
.1 the
ship is discharging comminuted and disinfected sewage in accordance with
regulation 11.1.1 of MARPOL Annex IV at a distance of more than 3 nautical
miles from any ice-shelf or fast ice and shall be as far as practicable from
areas of ice concentration exceeding 1/10; or
.2 the
ship is discharging sewage that is not comminuted or disinfected in accordance
with regulation 11.1.1 of MARPOL Annex IV and at a distance of more than 12
nautical miles from any ice-shelf or fast ice and shall be as far as
practicable from areas of ice concentration exceeding 1/10; or
.3 the
ship has in operation an approved sewage treatment plant certified by the
Administration to meet the operational requirements in either regulation 9.1.1
or 9.2.1 of MARPOL Annex IV, and discharges sewage in accordance with
regulation 11.1.2 of Annex IV and shall be as far as practicable from the
nearest land, any ice-shelf, fast ice or areas of ice concentration exceeding
1/10.
4.2.2 Discharge
of sewage into the sea is prohibited from category A and B ships constructed on
or after 1 January 2017 and all passenger ships constructed on or after 1
January 2017, except when such discharges are in compliance with paragraph
4.2.1.3 of this chapter.
4.2.3 Notwithstanding
the requirements of paragraph 4.2.1, category A and B ships that operate in
areas of ice concentrations exceeding 1/10 for extended periods of time, may
only discharge sewage using an approved sewage treatment plant certified by the
Administration to meet the operational requirements in either regulation 9.1.1
or 9.2.1 of MARPOL Annex IV. Such discharges shall be subject to the approval
by the Administration.[48]
Division 1 of Part IIIB of the POTS Act gives
effect to Australia’s obligations under Annex IV of the Protocol on Environmental Protection to
the Antarctic Treaty (Antarctic Protocol).[49]
In particular, section 26BC currently prohibits the discharge of untreated sewage
into waters of the Antarctic Area. Where the discharge occurs beyond the 12
nautical mile territorial
sea adjacent to the Australian Antarctic Territory, the offence only
applies to Australian ships.
This offence does not apply if such discharge was done to
secure safety of the ship or saving life at sea.[50]
It also does not apply if the sewage was discharged from a holding tank at a
prescribed rate while the ship was moving at least four knots and at least 12
nautical miles from the nearest land or ice shelf.[51]
Items 9–13 simply insert the word ‘untreated’ in
front of the word ‘sewage’ wherever it appears in the Division, clarifying that
the offence only applies to the discharge of untreated sewage. The Explanatory
Memorandum states this ‘ensures clarity and consistency’ with Annex IV of the
Antarctic Protocol.[52]
Article 6(1)(a) of Annex IV of the Antarctic Protocol states that each party to
the Protocol shall eliminate all discharge into the sea of untreated sewage
within 12 nautical miles of land or ice shelves.
Item 14 then inserts proposed Division 1A into
Part IIIB of the POTS Act to regulate the discharge of sewage from ships
in the Antarctic Area and Arctic waters. This gives effect to Australia’s
obligations under Annex IV of MARPOL and the new Polar Code.
In particular, proposed section 26BCC contains offences
for discharging sewage in these areas. The offences in proposed subsections
26BCC(1) and (3) apply in the Antarctic Area, but only to Australian ships
if the discharge occurs outside the outer limits of the exclusive economic zone
(EEZ) adjacent to the Australian Antarctic Territory. Proposed subsection
26BCC(1) is a fault-based offence, where the person must be reckless or
negligent in causing the discharge. Proposed subsection 26BCC(3) is a
strict liability version of this offence, with a lower maximum penalty.
Proposed subsections 26BCC(2) and (4) apply to
Australian ships in Arctic waters. Proposed subsection 26BCC(2) is a
fault based offence where the person must be reckless or negligent and proposed
subsection 26BCC(4) is a strict liability offence.
Proposed subsections 26BCC(5)–(9) contain a
number of exceptions to the strict liability offences. For example, under proposed
paragraph 26BCC(5)(a), the strict liability offences do not apply if the
discharge is for the purpose of securing the safety of the ship and persons on
board, or saving life at sea. The notes to proposed subsections
26BCC(5)–(9) provide that the defendant bears an evidential burden to prove
the relevant matters in these exceptions.
As noted earlier in this Digest, the Senate Scrutiny of
Bills Committee raised concerns in relation to strict liability in proposed
subsections 26BCC(3) and (4). The Committee requested a detailed justification
from the Minister for each proposed strict liability offence. The Committee
also made comments in relation to reversal of the evidential burden of proof in
the case of proposed subsections 26BCC(5)–(9). It has requested ‘the Minister’s
advice as to why it is proposed to use offence-specific defences (which reverse
the evidential burden of proof) in this instance’.[53]
In light of the Committee’s concerns, it may be best to
wait for the Minister’s response to clarify these two issues. However, the
Explanatory Memorandum does state:
The justification for the need for the strict liability
offences is to ensure the integrity of the regulatory regime as it relates to
the pristine natural environments of the Antarctic Area and Arctic waters.
Further, the offences do not include imprisonment as a penalty ...[54]
Discharge of sewage in other sea areas is covered by the
existing Division 2 of Part IIIB of the Act. Subsection 26C(2)
specifically excludes the sea in the Antarctica Area from this Division. Item
15 amends subsection 26C(2) to provide that Arctic waters are also
not covered by Division 2 of Part IIIB.
Prevention
of pollution by garbage
Part IIIC of the POTS Act implements Annex V of
MARPOL, which relates to the prevention of pollution by garbage. Section 26EA
specifically provides that the object of the Part is to give effect to
Australia’s obligations under Annex V of MARPOL. Item 16 of the Bill
adds a reference to the Polar Code to section 26EA, meaning that the object of
the Part is also to give effect to Australia’s obligations under the Polar
Code.
In particular, the Polar Code provides:
5.2.1 In
Arctic waters, discharge of garbage into the sea permitted in accordance with
regulation 4 of MARPOL Annex V, shall meet the following additional
requirements:
.1 discharge
into the sea of food wastes is only permitted when the ship is as far as
practicable from areas of ice concentration exceeding 1/10, but in any case not
less than 12 nautical miles from the nearest land, nearest ice-shelf, or
nearest fast ice;
.2 food
wastes shall be comminuted or ground and shall be capable of passing through a
screen with openings no greater than 25 mm. Food wastes shall not be
contaminated by any other garbage type;
.3 food
wastes shall not be discharged onto the ice;
.4 discharge
of animal carcasses is prohibited; and
.5 discharge
of cargo residues that cannot be recovered using commonly available methods for
unloading shall only be permitted while the ship is en route and where all the
following conditions are satisfied:
.1 cargo
residues, cleaning agents or additives, contained in hold washing water do not
include any substances classified as harmful to the marine environment, taking
into account guidelines developed by the [International Maritime] Organization;
.2 both
the port of departure and the next port of destination are within Arctic waters
and the ship will not transit outside Arctic waters between those ports;
.3 no
adequate reception facilities are available at those ports taking into account
guidelines developed by the Organization; and
.4 where
the conditions of subparagraphs 5.2.1.5.1, 5.2.1.5.2 and 5.2.1.5.3 of this
paragraph have been fulfilled, discharge of cargo hold washing water containing
residues shall be made as far as practicable from areas of ice concentration
exceeding 1/10, but in any case not less than 12 nautical miles from the
nearest land, nearest ice shelf, or nearest fast ice.
5.2.2 In
the Antarctic area, discharge of garbage into the sea permitted in accordance
with regulation 6 of MARPOL Annex V, shall meet the following additional
requirements:
.1 discharges
under regulation 6.1 of MARPOL Annex V shall be as far as practicable from areas
of ice concentration exceeding 1/10, but in any case not less than 12 nautical
miles from the nearest fast ice; and
.2 food waste shall not
be discharged onto ice.[55]
Items 17–36 of the Bill amend the Act to reflect
this provision of the Polar Code.
Section 26F of the POTS Act currently prohibits the
discharge of garbage into the sea by ships in certain areas, including by
Australian ships beyond the EEZ adjacent to the Australian Antarctic Territory.
Subsection 26F(1) is a fault based offence where the person must be reckless or
negligent as to causing the discharge of garbage, while subsection 26F(3) is a
strict liability offence. Subsections 26F(5), (5A) and (5B) provide exceptions
whereby subsection 26F(3) does not apply if discharge of garbage is for the
ship’s safety or to save lives; to discharge fishing gear for the protection of
the marine environment or for the safety of the ship or crew; or to the
discharge of food wastes if their retention presents a health hazard to those
on board.
Subsections 26F(6), (7), (8) and (8A) provide exceptions to
the strict liability offence for specific types of garbage (such as food
wastes, cargo residues and animal carcasses), provided the discharge occurs in
the specified manner into seas outside a special area. Items 17–24 amend
these subsections so that the exceptions do not apply to discharges in Arctic
waters, consistent with the Polar Code.
Subsections 26F(8B) and (8C) provide further exceptions to
the strict liability offence where the discharge of certain types of garbage
occurs inside a special area, provided certain conditions are met (these conditions
are more stringent than those in the above subsections). Items 25, 26, 29
and 30 extend the application of these exceptions to discharges in Arctic
waters.
Subsection 26F(8B) provides that the strict liability
offence in subsection 26F(3) does not apply to the discharge of food wastes in
certain circumstances. This includes where the discharge occurs when the ship
is proceeding en route, the food wastes have been ground to less than 25 mm, and
the food waste is discharged more than 12 nautical miles from the nearest land
or ice shelf.[56]
In particular, paragraph 26F(8B)(f) currently permits the
discharge of food waste as far as practicable, and at least 12 nautical miles,
from the nearest land. Item 27 repeals this paragraph and replaces it
with proposed paragraphs (f), (fa) and (fb). Proposed paragraph
26F(8B)(f) permits the discharge of food waste when the ship is as far as
practicable from, and at least 12 nautical miles from, the nearest land or
nearest ice shelf in all special areas, other than the Antarctic Area. Proposed
paragraph 26F(8B)(fa) applies to discharges in the Antarctic Area and
Arctic waters, permitting discharge of food waste as far as practicable from
the nearest land or areas of ice concentration exceeding 1/10; and at least 12
nautical miles from the nearest land, ice-shelf or fast ice. Proposed
paragraph 26F(8B)(fb) prohibits discharge of food wastes onto ice in the
Antarctic Area or Arctic waters.
Subsection 26F(8C) outlines the conditions under which the
strict liability offence in subsection 26F(3) does not apply to the discharge
of two specific categories of garbage in a special area.[57]
Those conditions include:
- the
discharge occurs when the ship is proceeding en route (paragraph 26F(8C)(b))
- the
port of departure and the next port of destination are within the special area
(paragraph 26F(8C)(d))
- the
ship’s voyage plan shows that the ship will not transit outside the special
area between port of departure and next port of destination (paragraph
26F(8C)(e))
- the
port of departure or destination do not contain appropriate reception
facilities for these categories of garbage (paragraph 26F(8C)(f))
- the
discharge occurs more than 12 nautical miles from the nearest land or ice shelf
(paragraph 26F(8C)(g)) and
- the
discharge does not occur when the ship is within 500 metres of a fixed or
floating platform (paragraph 26F(8C)(h)).
As noted earlier, items 29 and 30 extend the coverage
of subsection 26F(8C) to Arctic waters. Item 31 then replaces paragraph
25F(8C)(d) to extend the exception to include instances where both the port of
departure and the next port of destination are within a special area or Arctic
waters.
Item 32 also extends the coverage of paragraph
26F(8C)(e) to Arctic waters when the voyage plan shows the ship staying within
the special area or Arctic waters when transiting between the port of departure
and the next port of destination.
As noted above, paragraph 26F(8C)(f) provides an
exception to discharge of two categories of garbage where the port of
departure and the next port of destination do not contain appropriate reception
facilities. Paragraph 26F(8C)(g) provides the exception to discharge if it
occurs more than 12 nautical miles from the nearest land or ice shelf.
Item 33 repeals paragraphs 26F(8C)(f) and (g) and
substitutes proposed paragraphs 26F(8C)(f), (g), (ga) and (gb).
- proposed
paragraph 26F(8C)(f) simply rewords the existing paragraph and clarifies
that it applies when both the port of departure and the next port of
destination are within a special area
- proposed
paragraph 26F(8C)(g) mirrors proposed paragraph 26F(8C)(f) for Arctic
waters rather than a special area
- proposed
paragraph 26F(8C)(ga) applies to discharges in special areas other than the
Antarctic Area, permitting discharges that occur when the ship is as far as
practicable from the nearest land and at least 12 nautical miles from the
nearest land or nearest ice-shelf and
- proposed
paragraph 26F(8C)(gb) applies to discharges in the Antarctic Area and
Arctic waters, permitting discharge of cargo residues or cleaning agents where
the ship is as far as practicable from the nearest land or areas of ice
concentration exceeding 1/10 and at least 12 nautical miles from the nearest
land, nearest ice-shelf or nearest fast ice.
Subsection 26F(8D) outlines the conditions under which the
strict liability offence in subsection 26F(3) does not apply to the discharge
of cleaning agents or additives in a special area. Item 36 extends the
coverage of this subsection by adding ‘or in Arctic waters’ after the words
‘the ship is within a special area’.
[1]. D
Chester, ‘Second
reading speech: Protection of the Sea (Prevention of Pollution from Ships)
Amendment (Polar Code) Bill 2017’, Senate, Debates, 16 February 2017,
p. 1281.
[2]. International
Maritime Organisation (IMO), ‘Shipping
in polar waters’, IMO website, 2017.
[3]. DNV.GL,
‘The
IMO Polar Code in force, beginning 1 January 2017: how to comply’, DNV.GL website, 21 December 2016.
[4]. IMO,
International
Code for Ships Operating in Polar Waters (Polar Code), MEPC
68/21/Add.1, annex 10, p. 9.
[5]. International
Convention for the Safety of Life at Sea (SOLAS), done in London
1 November 1974, [1983] ATS 22 (entered into force for Australia
17 November 1983).
[6]. Protocol
of 1978 relating to the International Convention for the Prevention of
Pollution from Ships (MARPOL), done in London 17 February 1978,
[1988] ATS 29 (entered into force for Australia 14 January 1988).
[7]. IMO,
‘Shipping
in polar waters’, op. cit.
[8]. Polar
Code, paragraph 1.3.1. There are also Category C ships which are designed
to operate in open water or ice conditions less severe than Category A and B
ships.
[9]. IMO,
‘Shipping
in polar waters’, op. cit.; Polar Code, pp. 5–6.
[10]. Ibid.
[11]. P
Pyburne, Maritime
Legislation Amendment Bill 2012, Bills digest, 3, 2012–13, Parliamentary
Library, Canberra, 14 August 2012, pp. 3–4.
[12]. They
are also implemented through the Navigation Act 2012:
Department of Infrastructure and Regional Development (DIRD), ‘The
International Convention for the Prevention of Pollution from Ships (MARPOL)’,
DIRD website, 14 July 2014.
[13]. IMO
Marine Environment Protection Committee (MEPC), Designation
of Antarctic area as a special area under Annexes I and V of MARPOL 73/78,
MEPC Resolution 42(30), 16 November 1990.
[14]. Ibid.,
pp. 3, 5.
[15]. IMO
MEPC, Designation
of the Antarctic area as a special area and lists of liquid substances in Annex
II, MEPC Resolution 57(33), 30 October 1992,
pp. 3, 5.
[16]. S
Power and B McCormick, Maritime
Legislation Amendment Bill 2015, Bills digest, 35, 2015–16,
Parliamentary Library, Canberra, 2015, p. 3; see also Protection of the
Sea (Prevention of Pollution from Ships) Amendment (Oils in the Antarctic Area)
Act 2011.
[17]. IMO
Assembly, Guidelines
for ships operating in polar waters, 18 January 2010,
p. 33.
[18]. IMO,
‘Shipping
in polar waters’, op. cit.
[19]. Ibid.
[20]. Polar
Code, p. 5.
[21]. DNV.GL,
‘The
IMO Polar Code in force, beginning 1 January 2017: how to comply’, op. cit.
[22]. Senate
Standing Committee for Selection of Bills, Report, 3, 2017, The Senate,
23 March 2017, p. 4.
[23]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 3, 2017, The Senate, 22 March 2017, p. 32.
[24]. Ibid.,
p. 33. See also: Attorney-General’s Department, A
guide to framing Commonwealth offences, infringement notices and enforcement
powers, Canberra, September 2011.
[25]. Ibid.
[26]. Ibid.
[27]. A
Albanese, ‘Second
reading speech: Protection of the Sea (Prevention of Pollution from Ships)
Amendment (Polar Code) Bill 2017’, House of Representatives, Debates,
28 March 2017, p. 3453.
[28]. Ibid.,
pp. 3453–3454.
[29]. Ibid.,
p. 53; IMO MEPC, Establishment
of the date on which Regulation 5(1)(a) of MARPOL Annex V in respect of the
Mediterranean sea area special area shall take effect, MEPC Resolution
172(57), 4 April 2008.
[30]. Friends
of the Earth (FOE), U.N.
finalises Polar Shipping Code after six years, media release,
15 May 2015.
[31]. Ibid.
[32]. Pan
European Networks (PEN), ‘Polar priorities’,
PEN website, 27 May 2015.
[33]. Ibid.
[34]. Explanatory Memorandum, Protection of the Sea
(Prevention of Pollution from Ships) Amendment (Polar Code) Bill 2017, p. 2.
[35]. The
Statement of Compatibility with Human Rights can be found at page 3 of the
Explanatory Memorandum to the Bill.
[36]. Parliamentary
Joint Committee on Human Rights, Report,
3, 2017, The Senate, 28 March 2017, p. 5.
[37]. Ibid.,
p. 6.
[38]. Ibid.,
pp. 6–8.
[39]. Polar
Code, introduction, paragraph 2.1.
[40]. Ibid.,
paragraph 2.2.
[41]. Ibid.,
Part II-A, paragraph 4.1.3.
[42]. Ibid.,
paragraph 4.1.2.
[43]. Note
that the prohibition only applies to discharges into certain sea areas (such as
in Australia’s Exclusive
Economic Zone (EEZ)), or in the case of a discharge that occurs beyond
Australia’s EEZ, the prohibition applies to Australian ships. For further
information on the EEZ and other maritime zones, see Geoscience Australia (GA),
‘Maritime
boundary definitions’, GA website.
[44]. MARPOL
defines certain sea areas as ‘special areas’ which are provided a higher level
of protection than other areas: see further IMO, ‘Special
areas under MARPOL’, IMO website, 2017.
[45]. The
‘Antarctic Area’ is defined in subsection 3(1) of the POTS Act as the sea
area south of 60° south latitude.
[46]. Note
the prohibition only applies to discharges into certain sea areas (such as in
Australia’s Exclusive Economic Zone (EEZ)), or in the case of a discharge that
occurs Australia’s EEZ, the prohibition applies to Australian ships. For
further information on the EEZ and other maritime zones, see GA, ‘Maritime
boundary definitions’, op. cit.
[47]. The
imposition of strict liability means that a fault element (such as
recklessness) 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.
[48]. Polar
Code, op. cit., pp. 39–40
[49]. Protocol
on Environmental Protection to the Antarctic Treaty, done in
Madrid 4 October 1991, [1998] ATS 6 (entered into force for
Australia and generally 14 January 1998).
[50]. POTS
Act, subsection 26BC(3).
[51]. Ibid.,
subsection 26BC(4).
[52]. Explanatory Memorandum, Protection of the Sea
(Prevention of Pollution from Ships) Amendment (Polar Code) Bill 2017,
p. 5.
[53]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 3, 2017, The Senate, 22 March 2017, pp. 33–34.
[54]. Explanatory Memorandum, Protection of the Sea
(Prevention of Pollution from Ships) Amendment (Polar Code) Bill 2017,
p. 6.
[55]. Polar
Code, op. cit., pp. 40–41.
[56]. Note
that, in addition, if the discharge is of avian products in the Antarctic Area,
the products must have been sterilised: POTS Act, paragraph 26F(8B)(g).
[57]. The
first category is cargo residues that are contained in cargo hold wash water,
that cannot be recovered using commonly available methods for unloading and
that do not contain any prescribed substances. The second category is cleaning
agents or additives contained in cargo hold wash water and the cleaning agents
or additives are not prescribed cleaning agents or additives.
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