Bills Digest no. 6 2006–07
Protection of the Sea (Harmful Anti-fouling Systems)
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
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Protection of
the Sea (Harmful Anti-fouling Systems) Bill
2006
Date introduced: 22 June 2006
House: House of
Representatives
Portfolio: Transport and Regional Services
Commencement: Sections 1 and 2 of the Bill commence on Royal
assent. The operative parts of the Bill (sections 3 to 25) commence
on Proclamation, providing that the proclaimed commencing date not
before the day the International Convention on the Control of
Harmful Anti-fouling Systems on Ships comes into force in
Australia.(1)
To provide for the legislative implementation of the
International Convention on the Control of Harmful Anti-fouling
Systems on Ships, 2001.
As summarised by the
National Interest Analysis for the
AFS Convention,(2) the purpose of the convention
is:
to ban the use of organotin compounds which act as
biocides in anti-fouling paints on ships, specifically tributyl tin
(TBT) based anti-fouling paints. TBT acts as a biocide preventing
the growth of algae, barnacles and other marine organisms on the
ships hull. This enables the ship to travel faster through the
water and consume less fuel. For the last 20 years scientific
investigations have shown that TBT-based paints pose a substantial
risk of toxicity and other chronic impacts at both the species,
habitat and ecosystem level. Effects of TBT-based paints have been
reported on such ecologically and economically important marine
organisms as oysters and molluscs as well as contaminating
sediments in many port areas around the world. TBT is also highly
toxic to a range of marine reef biota.(3)
The AFS Convention applies to all
ships and fixed or floating platforms:(4)
- registered in a Party to the Convention,
- operating under the authority of a Party,
- that are in a port, shipyard or offshore terminal to a
Party.
Thus the vessels of foreign non-Parties that are merely
transiting Australian waters are not subject to the Convention.
Like many international maritime
agreements, the AFS Convention does not apply to warships and other
ships used only on government non-commercial service.(5)
However, parties to the Convention are required to take reasonable
and practical steps to ensure such government ships act in a manner
consistent with the Convention.(6) The Royal Australian
Navy (RAN) ceased applying TBT anti-fouling paint in January 2005,
and currently more than two thirds of the fleet are free of TBT.
The RAN is working to ensure that all ships are encapsulated or
repainted to ensure no TBT exposure by January
2008.(7)
There are two main prohibitions in
the AFS Convention. Firstly, the application of harmful
anti-fouling systems or compounds (HAFCs in the language of the
Bill)(8) to relevant ships is prohibited as of 1 January
2003. Secondly, from 1 January 2008, no relevant ship may have a
HAFC on their hulls or external surfaces, except if it coated with
a barrier that prevents the HAFC from leaching. Floating or fixed
platforms completed before 2003, and which have not been dry-docked
since, are exempt from this last requirement. Article 4 of the AFS
Convention requires Parties to take effective measures to ensure
all relevant vessels comply with the Convention.
Australia signed the AFS Convention
in 2002, subject to ratification. According to the National
Interest Analysis, the Australian Shipowners Association and
Shipping Australia Limited, Association of Australian Ports and
Marine Authorities, Australian Paint Manufacturers Federation and
environmental non-government organisations were all consulted in
respect of the Convention.(9) Consultation with the
States and Territories was undertaken through Premiers/Chief
Ministers Departments and through the Australian Transport Council
(ATC). The ATC recommended ratification of the Convention at its
meeting on 8 November 2002.(10)
When the Joint Standing Committee on Treaties (JSCOT) considered
the AFS convention in mid 2003, Government officials anticipated
that the present Bill would be introduced later that
year.(11) This was presumably based on the expectation
at the time that the Convention would come into force in 2004 or
2005.(12) However, as of 30 June 2006, only 16 countries
have ratified, representing 17.3% of the world's merchant shipping
by tonnage.(13) As the AFS convention will commence only
12 months after ratification by 25 States representing 25% of the
world's merchant shipping tonnage, entry into force will be no
earlier than the later part of 2007.
The use of HFACs (TBT) anti-fouling paints on ships less than
25m in length has effectively been banned via State and Territory
legislation since the mid 1990s. In 2003, the Commonwealth
phased-out the use of TBT paints in Australia.(14)
The Explanatory Memorandum states there will be no financial
impacts from this Bill.
New section 7 provides that the Act binds the
Commonwealth, State and Territory governments, but they cannot be
prosecuted for any offence under the Act. However, this protection
does not extend to government employees or agents, and thus they
could be prosecuted. However, as the AFS Convention and the Bill do
not apply to warships and other ships being used by a government
for non-commercial purposes, there are probably very few situations
in where at least a government employee might be prosecuted for a
serious offence.
New sections 8 and 9 contain
the major offence provisions. There are both fault ( ordinary
offence in the language of the Bill) and strict liability versions
of offences in both sections.
New subsection 8(1)
provides that if a person engages in negligent(15)
conduct resulting in a HFAC being applied to the external part of a
ship, they are guilty of an offence carrying a maximum penalty of
2,000 penalty units ($220,000).(16) The ship must be an
Australian ship, or if a foreign ship, the offence must have
occurred in a port, shipyard or offshore terminal (collectively
termed shipping facilities in the Bill) within the outer limits of
Australia s Exclusive Economic Zone (EEZ).
The strict liability version of the
offence, which applies only to the master and/or owner of the ship
concerned, carries a maximum penalty of 500 penalty units
($55,000). The rationale for making both the master and owner
potentially liable without having to prove fault is set out on page
4 for the Explanatory Memorandum. Of particular interest is the
comment:
In the maritime industry, the master and owner all
have some involvement to varying degrees in various aspects of a
ships operation. The master alone will not always be responsible
for, or know specific details about, an aspect of a ship for
example what type of paint was used the last time the ship was dry
docked and repainted. Similarly, the owner may not be fully aware
of specific operational aspects on a ship, and, depending on the
nature of the contractual relationship between the owner and the
operator, responsibility for many operational aspects can, and do
change between contracts
The dichotomy of actions and responsibilities
between the master and the owner has often been used to avoid
prosecutions altogether. Where an offending ship is foreign owned,
there is unlikely to be any jurisdictional presence of the owner,
which will jeopardise any prosecution against an owner. The arrest
of the master may encourage an owner to submit to the jurisdiction
in exchange for dropping a prosecution against the master in order
to allow the ship to sail.
If the conduct in question under
new section 8 is an offence under State or
Territory law, there is no offence under the Act: new
subsection 8(4).
New section 9
creates offences for Australian and foreign ships bearing a HFAC
entering into or remaining in a shipping facility on or after 1
January 2008.(17) The offence provisions apply to both
ships masters and owners where they either take or permit the ship
to enter the relevant shipping facility or allow the ship to remain
at the facility.
The maximum penalties for the fault
versions of the offences (new subsections
9(1)-(4)) are 2,000 penalty units ($220,000) for entering
a facility, and 1,000 penalty units ($110,000) per day for
remaining in the facility. Note that under the principles of
section 5.6 of the Criminal Code Act 1995, the master or
owner must have intended the ship enter into, or remain at, the
shipping facility rather than merely being reckless or negligent
about this.
For the strict liability version of the offences (new
subsections 9(5)-(8)), the maximum penalties are 500
penalty units ($55,000) for entering a facility, and 400 penalty
units ($44,000) per day for remaining in the facility.
New subsection
9(10) provides that no offence occurs where a ship enters
or remains in a facility for the purpose of securing the safety of
the ship or for the purpose of seeking urgent medical attention for
a person on board the ship. If the ship is under the control of a
person exercising powers under Australian law, such as a Customs,
police or Australian Maritime Safety Authority (AMSA) officer,
likewise no offence is committed.
As is the case under new
section 8, if the conduct in question is an offence under
State or Territory law, there is no offence under the Bill.
Part 3 (new sections
10-15) deal with anti-fouling certificates and
declarations for Australian ships. Such certificates are issued if
the relevant survey authority determines that the ship in question
complies with anti-fouling requirements. Under new section
13 not having a current certificate for an Australian
vessel of 400 tonnes or more departing from an shipping facility on
an international voyage after 1 January 2008 may be an offence,
either under a fault version of an offence or a strict liability
version. Similar offences apply for failing to have a valid
anti-fouling declaration: new section 15.
Declarations are required for ships at least 24 metres in length
but under 400 tonnes engaged on international
voyages.(18)
Where something occurs that affects,
or might affect, the ship's compliance with the anti-fouling
requirements, new section 14 requires the master
and owner of an Australian ship which has a certificate to submit a
report to AMSA. The report must be given within seven days of the
relevant event, otherwise the master and owner are each guilty of a
(strict liability) offence carrying a maximum penalty of 100
penalty units per day until the report is given.
Where conduct under Part 3 is an
offence under State or Territory law, there is no offence under the
Act.
Part 4 (new sections 16-19) deal with inspection
powers.
Any appropriately qualified person
may be appointed as an inspector by AMSA. Surveyors under the
Navigation Act 1912 and Australian Federal Police officers
are automatically deemed to be inspectors.
New section 17
provides inspectors with various powers with respect to an
Australian or foreign ship in a shipping facility. Those powers may
be exercised to determine:
- whether the vessel complies with the Bill;
- whether the vessel complies with the AFS Convention; and
- whether a foreign law designed to implement the AFS Convention
is being complied with in respect to the vessel.
Essentially, the inspector may board and inspect any part the
machinery, hull, hold or compartment, as well any documents or
records relating to the ship or its cargo. The inspector may take
samples of substances on the ship and copies of records or
documents. The inspector may compel the ships master to facilitate
the inspection by allowing access to the vessel and its records and
documents etc. They may also require a person to answer
questions.
Any failure to comply with an inspector s requirement carries a
maximum penalty of 80 penalty units ($8 800): new
subsection 17(5). There are no grounds in the Bill for
refusing to comply with a requirement. Thus self-incrimination (in
the case a ships master) or acting under orders (say a crew member
being instructed by the master not to produce certain documents)
cannot excuse non-compliance.(19) Nor is there any
requirement on the part of the inspectors to warn that
non-compliance is an offence. Whilst in practice inspectors may
give such a warning, there seems no obvious reason why a
requirement to do so couldn t be inserted in the Bill.
In exercising his or her powers, an inspector must not act in a
manner that is inconsistent with the AFS Convention : new
subsection 17(4). Article 11 of the AFS deals with
inspections. The relevant part states:
(1) A ship to which this Convention applies may,
in any port, shipyard, or offshore terminal of a Party, be
inspected by officers authorized by that Party for the purpose of
determining whether the ship is in compliance with this Convention.
Unless there are clear grounds for believing that a ship is in
violation of this Convention, any such inspection shall be limited
to:
(a) verifying that, where required, there is
onboard a valid International Anti-fouling System Certificate or a
Declaration on Anti-fouling System; and/or
(b) a brief sampling of the ship s anti-fouling
system that does not affect the integrity, structure, or operation
of the anti-fouling system taking into account guidelines developed
by the Organization. However, the time required to process the
results of such sampling shall not be used as a basis for
preventing the movement and departure of the ship.
(2) If there are clear grounds to believe that the
ship is in violation of this Convention, a thorough inspection may
be carried out taking into account guidelines developed by the
Organization.
If evidence of a breach of the Bill
obtained in a way violated that new subsection
17(4), it would run the risk of being excluded by the
court any subsequent prosecution.(20)
Under new section
18, AMSA may detain a ship in a shipping facility if it
believes, on reasonable grounds, that an offence has been committed
in respect of the ship. However, the ship must be released if
certain events occur, notably if suitable security is provided
that, in AMSA s opinion, is equivalent to the maximum amount of all
penalties, other amounts of money, costs and expenses that could
have been payable if convictions had been recorded in respect of
relevant offences.
If a ship leaves a shipping facility
while it is still under detention, the master and owner are each
guilty of a strict liability offence - maximum penalty of 1,000
penalty units: new subsection
18(4).(21)
New section 19
provides for the payment of reasonable compensation to the owner of
a ship if the ship is unduly detained or delayed . This is a
standard provision for Commonwealth legislation dealing with
inspection of shipping.
New section 21
provides for the primacy of the flag State(22) in
prosecuting contraventions of the AFS Convention and is consistent
with Article 228 of the United Nations Convention on the Law of the
Sea (UNCLOS). In cases where Australia mounts a prosecution for an
offence against the Act involving a foreign ship, should the flag
state of that ship commence proceedings in respect of corresponding
charges with six months of the Australian proceedings, Australia
must suspend its prosecution. Once the foreign proceedings are
concluded, the Australian proceedings must be terminated. However,
this restriction on Australia proceedings does not apply if the
proceedings:
relate to a case of major damage to the coastal State or the
flag State in question has repeatedly disregarded its obligation to
enforce effectively the applicable international rules and
standards in respect of violations committed by its
vessels.(23)
Concluding comments
The use of environmentally-harmful tributyl tin (TBT) based
anti-fouling paint compounds on ships has largely been phased out
with respect to Australian ships. When it comes into force, the AFS
Convention and Protection of the Sea (Harmful Anti-fouling Systems)
Bill 2006 will reinforce this position by effectively prohibiting
almost all ships and floating platforms with such compounds from
Australian ports, shipyards and offshore terminals. However, the
AFS Convention, and thus the main provisions of the Bill, are
unlikely to come into force until at least late 2007.
- However, if these provisions are not proclaimed to commence
with six months of the Convention coming into force, they will come
into force on the first day after the six months expires. In this
case, the commencement date must be announced in the
Gazette.
- The National Interest Analysis is a document prepared by the
Government to assist the consideration of the relevant Convention
by the Parliamentary Joint Standing Committee on Treaties
(JSCOT).
- National Interest Analysis AFS Convention, paragraph 5.
- For convenience, these are collectively referred to as ships in
this Digest.
- The definition of ships in the Bill excludes such government
ships.
- Article 3(2).
- Personal communication, Department of Defence, 28 July
2006.
- In the language of the AFS convention, these HAFCs are
described as organotin compounds which act as biocides in
anti-fouling systems .
- op cit. paragraphs 25-28.
- ibid, paragraph 25. Also, personal communication, Department of
Transport and Regional Services, 26 July 2006.
- Transcript
of Evidence, public hearing 24 March 2004, p. 34.
- National Interest Analysis, paragraph 3.
- See http://www.imo.org/Conventions/mainframe.asp?topic_id=247
accessed on 25 July 2006.
- Senator Judith Troeth, Industry and government agree to phase
out TBT marine anti-fouling paints Media
Release 23 April 2003.
- A person is negligent with respect to a physical element of an
offence if his or her conduct involves such a great falling short
of the standard of care that a reasonable person would exercise in
the circumstances; and such a high risk that the physical
element exists or will exist that the conduct merits criminal
punishment for the offence. See Criminal Code Act 1995
Section 5.5.
- Under subsection 4B(3) of the Crimes Act 1914, if the
guilty part is a corporation, the maximum fine is five times that
applying to a natural person. Hence for a new subsection
8(1) offence, the maximum fine for a corporation is $1.1
million. The subsection 4B(3) principle applies to all pecuniary
penalties in the Bill.
- As previously mentioned, this does not apply to pre-2003 exempt
platforms .
- The details of declarations will be prescribed by regulations
or marine orders.
- The mistake of fact defence under section 9.2 is
available.
- For example, see section 138 of the Evidence Act 1995
(Cmth). The relevant prosecuting authority may also decline to
prosecute if key evidence was unlawfully obtained.
- Due to the operation of section 11.1 of the Criminal Code
1995, attempting to leave the shipping facility would also be
an offence.
- The flag State is the country in which the ship is
registered.
- Article 228(1) UNCLOS.
Angus Martyn
3 August 2006
Bills Digest Service
Information and Research Services
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Australian Parliament using information available at the time of
production. The views expressed do not reflect an official position
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ISSN 1328-8091
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