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The committee has sought further information in relation to the following legislative instruments

Marine Order 95 (Marine pollution prevention – garbage) 2013

FRLI ID: F2013L00059
Portfolio: Infrastructure and Transport

Summary of committee view

2.2        The committee seeks clarification as to whether requiring a ship to be detained on the written order of a surveyor is compatible with the right to privacy, and whether the strict liability offence of failing to comply with an order is compatible with the presumption of innocence.

Overview

2.3        This instrument prescribes matters necessary to give effect to revised Annex V of MARPOL (the International Convention for the Prevention of Pollution from Ships 1973). MARPOL is the main international convention covering prevention of pollution of the marine environment by ships from operational or accidental causes.

2.4        The instrument:

(a) prescribes matters in relation to the discharge of cargo residues, cleaning agents and additives and animal carcasses at sea and sets out garbage management plans for ships; and

(b) sets out arrangements for Port State control on operational requirements in relation to the prevention of pollution by garbage from ships.

Compatibility with human rights

2.5        The statement of compatibility included with the explanatory statement states '[t]his instrument does not engage any of the applicable rights or freedoms' and is therefore compatible with human rights.

2.6        The instrument, in setting out Port State control on ships, allows a surveyor to inspect a ship in an Australian port[1] and may detain a ship in order to carry out that inspection.[2] The inspection can take place where the surveyor 'has reasonable grounds to think that the master or crew of the ship is not familiar with essential shipboard procedures for the prevention of pollution by garbage'.[3] The master of a ship given an order in writing that the surveyor intends to inspect the ship, must comply with the order.[4] This obligation on the master is a 'penal provision' which means it is an offence to fail to comply subject to 50 penalty units (or $8,500).[5] This is defined in the Protection of the Sea (Prevention of Pollution from Ships) (Orders) Regulations 1994 as a strict liability offence.

2.7        Article 17 of the International Covenant on Civil and Political Rights (ICCPR) provides that no one shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence. Interference with the workplace has been held to engage the right to privacy, so any limitation on this right – for example, by requiring a ship to be detained and inspected – needs to be for a legitimate purpose and be reasonable and proportionate to achieving that purpose.

2.8        Article 14(2) of the ICCPR provides that everyone charged with a criminal offence has the 'right to be presumed innocent until proved guilty according to law.' As strict liability offences allow for the imposition of criminal liability without the need to prove fault, strict liability offences directly engage and limit the presumption of innocence in article 14(2) of the ICCPR.  The committee notes that strict liability offences will not necessarily violate the presumption of innocence so long as they pursue a legitimate aim and are reasonable, necessary and proportionate to that aim.

2.9        The committee is of the view that it is a legitimate objective to seek to regulate ships for the prevention of pollution of the sea. However, the committee intends to write to the Minister for Infrastructure and Transport to seek clarification as to whether requiring a ship to be detained on the written order of a surveyor is compatible with the right to privacy, and whether the strict liability offence of failing to comply with an order is compatible with the presumption of innocence.

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