Bills Digest No. 100, 2017
PDF version [687KB]
Bill McCormick
Science, Technology, Environment and Resources Section
3 May 2018
Contents
Purpose of the Bill
Background
Committee
consideration
Policy
position of non-government parties/independents
Position of
major interest groups
Financial
implications
Statement of
Compatibility with Human Rights
Key issues
and provisions
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(Shipping Levy Collection) Regulations to be repealed.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:
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:
- Acute Aquatic Toxicity Category 1; and/or
- Chronic Aquatic Toxicity Category 1 or 2; and/or
- Carcinogenicity Category 1A or 1B combined with not
being rapidly degradable and having high bioaccumulation; and/or
- Mutagenicity Category 1A or 1B combined with not being
rapidly degradable and having high bioaccumulation; and/or
- Reproductive Toxicity Category 1A or 1B combined with not
being rapidly degradable and having high bioaccumulation; and/or
- Specific Target Organ Repeated Exposure Category 1
combined with not being rapidly degradable and having high bioaccumulation,
and/or
- 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.
[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.
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