BILLS DIGEST NO. 100, 2017–18              3 May 2018

Protection of the Sea Legislation Amendment Bill 2018

Bill McCormick
Science, Technology, Environment and Resources Section 

Date introduced: 28 February 2018

House:  House of Representatives

Portfolio: Infrastructure and Transport

Commencement: Schedules 1 and 2 commence the 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 May 2018

Purpose of the Bill

The purpose of the Protection of the Sea Legislation Amendment Bill 2018 (the Bill) is to amend the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (the POTS Act) to implement amendments to Annex V of the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 (MARPOL).[1]

The Bill also makes minor amendments to the POTS Act to update provisions relating to regulations and Marine Orders to ensure consistency with the Navigation Act 2012. It also makes a minor amendment to the Protection of the Sea (Shipping Levy Collection) Act 1981 which will allow the Protection of the Sea (Shipping Levy Collection) Regulations to be repealed.

Background

MARPOL is the main convention adopted by the International Maritime Organization (IMO) to reduce pollution by ships. Its regulations aim to prevent both accidental pollution and pollution from routine vessel operations.[2] These regulations are contained in six annexes:

•       Annex I: Regulations for the prevention of pollution by oil[3]

•       Annex II: Regulations for the control of pollution by noxious liquid substances in bulk[4]

•       Annex III: Regulations for the prevention of pollution by harmful substances carried by sea in packaged form[5]

•       Annex IV: Regulations for the prevention of pollution by sewage from ships[6]

•       Annex V: Regulations for the prevention of pollution by garbage from ships[7] and

•       Annex VI: Regulations for the prevention of air pollution from ships.[8]

MARPOL entered into force internationally on 2 October 1983[9] and in Australia on 14 January 1988.[10] Australia has adopted all six annexes.

The Commonwealth legislation that gives effect to MARPOL is:

•       Protection of the Sea (Prevention of Pollution From Ships) Act 1983

•       Navigation Act 2012 (Chapter 4)

•       Protection of the Sea (Prevention of Pollution From Ships) (Orders) Regulations 1994

•       Marine Order 91 (Marine pollution prevention—oil) 2014[11]

•       Marine Order 93 (Marine pollution prevention—noxious liquid substances) 2014

•       Marine Order 94 (Marine pollution prevention—packaged harmful substances) 2014

•       Marine Order 95 (Marine pollution prevention—garbage) 2018

•       Marine Order 96 (Marine pollution prevention—sewage) 2018 and

•       Marine Order 97 (Marine pollution prevention—air pollution) 2013.

Source: IMO, Amendments to the Annex of the International Convention for the Prevention of Pollution from Ships, 1973, as amended by the Protocol thereof to, Amendments to MARPOL Annex V, (HME substances and Form of Garbage Record Book), IMO website.

The above table gives a simplified overview of the provisions for the discharge of garbage under the revised MARPOL Annex V that entered into force on 1 January 2013.[12] The special areas referred to are:

•       the Mediterranean Sea area

•       the Baltic Sea area

•       the Black Sea area

•       the Red Sea area

•       the Gulfs area

•       the North Sea area

•       the Wider Caribbean Region and

•       the Antarctic area.[13]

Under Annex V, ships of greater than 400 gross tonnes must provide a Garbage Record Book to record all disposal and incineration operations.[14]

The MARPOL annexes are amended regularly by resolutions of the IMO’s Maritime Environment Protection Committee (MEPC). Annex V (prevention of pollution by garbage from ships) has been amended eight times since it came into force on 31 December 1988.[15]

The most recent amendment to Annex V was adopted in 2016 and entered into force on 1 March 2018. It aims to ensure that solid bulk cargoes classified as harmful to the marine environment (HME) are declared by the shipper and such cargo residues are not discharged into the marine environment.[16] Cargo residues mean:

The remnants of any cargo which are not covered by other MARPOL Annexes and which remain on the deck or in holds following loading or unloading, including loading and unloading excess or spillage, whether in wet or dry condition or entrained in wash water but does not include cargo dust remaining on the deck after sweeping or dust on the external surfaces of the ship.[17]

The amendments also align the recording requirements terminology of Annex V with the form of the Garbage Record Book to ensure consistency.[18]

These amendments also insert a new Appendix 1 into Annex V that contains the ‘criteria for the classification of solid bulk cargoes as harmful to the marine environment’:

For the purpose of this Annex, cargo residues are considered to be harmful to the marine environment (HME) if they are residues of solid bulk cargoes which are classified according to the criteria of the United Nations Globally Harmonized System of Classification and Labelling of Chemicals (GHS) meeting the following parameters:

1.       Acute Aquatic Toxicity Category 1; and/or

2.       Chronic Aquatic Toxicity Category 1 or 2; and/or

3.       Carcinogenicity Category 1A or 1B combined with not being rapidly degradable and having high bioaccumulation; and/or

4.       Mutagenicity Category 1A or 1B combined with not being rapidly degradable and having high bioaccumulation; and/or

5.       Reproductive Toxicity Category 1A or 1B combined with not being rapidly degradable and having high bioaccumulation; and/or

6.       Specific Target Organ Repeated Exposure Category 1 combined with not being rapidly degradable and having high bioaccumulation, and/or

7.       Solid bulk cargoes containing or consisting of synthetic polymers, rubber, plastics, or plastic feedstock pellets (this includes materials that are shredded, milled, chopped or macerated or similar materials).[19]

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.[20]

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills had no comment on this Bill.[21]

Policy position of non-government parties/independents

At the time of writing, non-government parties and independents do not appear to have stated a specific policy position on the Bill.

Position of major interest groups

At the time of writing, major interest groups do not appear to have communicated a specific policy position on the Bill.

Financial implications

There is no financial impact arising from this Bill.[22]

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, ‘because, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate to the objectives of reducing pollution to the marine environment from ships’.[23]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee in Human Rights determined the Bill did not raise human rights concerns.[24]

Key issues and provisions

This Bill contains two Schedules.

MARPOL amendments

Part IIIC of the POTS Act implements Annex V of MARPOL, which relates to the prevention of pollution by garbage. Schedule 1 amends the POTS Act to implement the 2016 amendments to Annex V of MARPOL (as outlined in the background section of this Digest) to ensure that shippers declare to the ship’s master whether or not their solid bulk cargo is harmful to the marine environment. This will enable the ship’s master to determine if and where the residues of such cargo can be discharged into the marine environment.

Section 26F of the POTS Act currently prohibits the discharge of garbage into the sea by ships in certain areas controlled by Australia and also prohibits discharge by Australian ships beyond the Exclusive Economic Zone (EEZ).[25] 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. A range of exceptions to the strict liability offence are provided in section 26F for specific types of garbage (such as food wastes, cargo residues and animal carcasses), provided the discharge occurs in a specified manner into seas outside a special area.

Subsection 26F(7) of the POTS Act presently requires the following conditions to be met before the discharge of cargo residues into the sea is permitted:

•       the discharge occurs in seas outside a special area (see above) and outside Arctic waters

•       the discharge occurs while the ship is proceeding on route and is as far as practicable from the nearest land

•       the cargo residues cannot be recovered using commonly available methods for unloading

•       the cargo residues do not contain any prescribed substances[26]

•       the discharge occurs more than 12 nautical miles from the nearest land and

•       the discharge occurs when the ship is more than 500 metres away from a fixed or floating platform.

Item 1 of Schedule 1 of the Bill inserts proposed paragraph 26F(7)(da) into subsection 26F(7) to add another criterion to the above list if the cargo residues are residues of solid bulk cargoes (except grain). In such cases, in addition to the requirements set out above, the discharge will only be permitted if the master of the ship has a written declaration that the solid bulk cargoes have been classified in accordance with the criteria in Appendix I of Annex V of MARPOL (see above) and found to be not harmful to the marine environment.

Subsection 26F(8C) sets more stringent conditions for the discharge of cargo residues contained in cargo hold wash water, in a special area or Arctic waters. It presently requires the following conditions to be met:

•       the discharge occurs when the ship is proceeding on route

•       the cargo residues are contained in cargo hold wash water that cannot be recovered using commonly available methods for unloading and do not contain any prescribed substances

•       both the port of departure and the next port of destination are either within the special area or in Arctic waters

•       the route from port of departure to next port of destination does not transit an area outside the special area or Arctic waters

•       where both the port of departure and next port of destination are within the special area or Arctic water, they do not have suitable reception facilities for such garbage residues

•       if the discharge occurs in a special area (other than the Antarctic Area), it occurs as far as practicable from and at least 12 nautical miles from the nearest land

•       if the discharge occurs in the Antarctic Area or Arctic waters, it occurs 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 and

•       the discharge occurs when the ship is more than 500 metres away from a fixed or floating platform.

Item 2 of Schedule 1 of the Bill inserts proposed paragraph 26F(8C)(ca) to add another criterion to the above list if the residues contained in the hold wash water are residues of solid bulk cargoes (except grain). In such cases, in addition to the requirements set out above, the discharge will only be permitted if the master of the ship has a written declaration that the solid bulk cargoes have been classified in accordance with the criteria in Appendix I of Annex V of MARPOL and found to be not harmful to the marine environment.

Regulations and external documents

Schedule 1 of the Bill will also ‘update provisions in the Act relating to regulations and Marine Orders to ensure consistency with the Navigation Act 2012 and improve the application of those provisions.’[27]

Section 33 permits the making of regulations under the POTS Act. Under section 14 of the Legislation Act 2003, there are restrictions on the extent to which legislative instruments can incorporate matters by reference to external documents. Item 4 adds a subsection 33(4) to allow regulations made under the POTS Act to permit the incorporation of instruments or documents, as in force at a particular time or as in force at any time (the later will allow amendments to the instrument or document to automatically be incorporated). This may include instruments or documents that do not exist at the time the regulations come into effect. Although the instruments and documents that may be incorporated in this way are not limited by the terms of the Bill, the Explanatory Memorandum to the Bill indicates that the key documents expected to be incorporated are IMO Guidelines, to facilitate the domestic implementation of MARPOL:

It is common practice in the International Maritime Organization (IMO) to agree amendments to MARPOL, then subsequently release guidelines for the proper implementation of those amendments. The intention of this provision is to ‘future proof’ the POTS Act and any regulations, so that amendment is not required on a regular basis to simply refer to new or updated guidance material. The key documents expected to be incorporated are IMO Guidelines, which are frequently amended and available freely on the IMO website. Retrospective application is neither anticipated nor intended in this provision.[28]

This replicates an equivalent provision in subsection 341(2) of the Navigation Act 2012.[29]

Section 34 of the POTS Act permits the making of Marine Orders that are legislative instruments. Like item 4, item 6 allows such Orders to permit the incorporation of external instruments or documents, including IMO Guidelines to facilitate the domestic implementation of MARPOL. The Explanatory Memorandum states that it ‘replicates the equivalent provision in [subsection] 342(4) of the Navigation Act 2012’ and that both the POTS Act and Navigation Act facilitate the domestic implementation of MARPOL.[30]

Shipping Levy Regulations

Schedule 2 of the Bill amends the Protection of the Sea (Shipping Levy Collection) Act 1981 to remove the need for regulations relating to serving a levy notice on a master of a ship. The Act outlines the procedures under which a levy is collected from ships that have at least ten tonnes of oil on board.[31]

Item 1 of Schedule 2 of the Bill amends the Protection of the Sea (Shipping Levy Collection) Act and removes the requirement in subsection 8(3) of that Act for regulations to be made to determine the way in which a notice of the account of levy is given to the master of a foreign-going ship. Instead it permits a written notice to be given to the master of the ship.

The Protection of the Sea (Shipping Levy Collection) Regulations only contain one substantive regulation, which states that the notice of the levy has to be either handed personally to the master of the ship or sent by post.

The Explanatory Memorandum states:

The intention of this provision is to impliedly repeal the Protection of the Sea (Shipping Levy Collection) Regulations and allow rules about service under the Acts Interpretation Act 1901 and the Electronic Transactions Act 1999 to apply instead. It is not intended to have a substantive effect on the operation of the existing levy collection regime.[32]

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.

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[1].              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).

[2].              Australian Maritime Safety Authority (AMSA), ‘MARPOL and its implementation in Australia’, AMSA website.

[3].              This Annex entered into force 2 October 1983.

[4].              This Annex entered into force 2 October 1983.

[5].              This Annex entered into force 1 July 1992.

[6].              This Annex entered into force 27 September 2003.

[7].              This Annex entered into force 31 December 1988.

[8].              This Annex entered into force 19 May 2005; see also International Maritime Organisation (IMO), ‘International Convention for the Prevention of Pollution from Ships (MARPOL)’, IMO website.

[9].              IMO, ‘International Convention for the Prevention of Pollution from Ships (MARPOL)’, IMO website.

[10].              Protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships (MARPOL), op. cit; P Nelson, ‘Pollution from ship: Global Perspective’, Environmental Crime,Proceedings of a conference held 1-3 September 1993, Hobart, N. Gunningham, J. Norberry, and S. McKillop (eds.)

[11].              Marine orders are a type of regulation made under Commonwealth legislation, including the Navigation Act 2012 and the Protection of the Sea (Prevention of Pollution from Ships) Act 1983. See further: AMSA, ‘How marine orders are created’, AMSA website, 15 November 2017.

[12].              International Maritime Organisation (IMO), ‘Prevention of Pollution by Garbage from Ships’, IMO website.

[13].              International Maritime Organisation (IMO), ‘Special areas under MARPOL’, IMO website.

[14].              International Maritime Organisation (IMO), ‘Prevention of Pollution by Garbage from Ships’, op. cit.

[15].              AMSA, ‘Current MARPOL texts’, AMSA website.

[16].              IMO MEPC, Amendments to the Annex of the International Convention for the Prevention of Pollution from Ships, 1973, as amended by the Protocol thereof to, Amendments to MARPOL Annex V, (HME substances and Form of Garbage Record Book) Resolution MEPC.277(70), 28 October 2016.

[17].              IMO MEPC, Amendments to the Annex of the Protocol of 1978 relating to the International Conventions for the Prevention of Pollution from Ships, 1973 (revised MARPOL Annex V), Resolution MEPC.201((62), p. 2.

[18].              AMSA, ‘Table of MARPOL amendments’, AMSA website.

[19].              IMO MEPC, Resolution MEPC.277(70), op. cit., p. 4.

[20].              Senate Standing Committee for Selection of Bills, Report, 3, 2018, The Senate, Canberra, 22 March 2018, p. 3.

[21].              Senate Standing Committee for Scrutiny of Bills, Scrutiny digest, 3, 2018, The Senate, 21 March 2018, p. 32.

[22].              Explanatory Memorandum, Protection of the Sea Legislation Amendment Bill 2018, p. 2.

[23].              The Statement of Compatibility with Human Rights can be found at pp. 3–4 of the Explanatory Memorandum to the Bill.

[24].              Parliamentary Joint Committee on Human Rights, Human rights scrutiny report, 3, 27 March 2018, p. 137.

[25].              For further information on the EEZ and other maritime zones, see Geoscience Australia (GA), ‘Maritime Boundary Definitions’, GA website. 

[26].              Clause 6 of Marine Order 95 (Marine pollution prevention — garbage) 2018 provides that for paragraph 26F(7)(d) of the POTS Act ‘each substance that is considered harmful to the marine environment in accordance with Appendix I of Annex V [of MARPOL] is prescribed’. Substances that are classified in Appendix I of Annex V as harmful to the marine environment are discussed above. 

[27].              Explanatory Memorandum, Protection of the Sea Legislation Amendment Bill 2018, p. 2.

[28].              Ibid., p. 6.

[29].              Ibid.

[30].              Ibid.

[31].              Paragraph 10(2)(a) of the Protection of the Sea (Shipping Levy Collection) Act 1981.

[32].              Explanatory Memorandum, Protection of the Sea Legislation Amendment Bill 2018, p. 7.