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