1. Members
Senator A Eggleston, Chair (LP, WA)
Senator M Bishop, Deputy Chair (ALP, WA)
Senator L Allison (AD, VIC)
Senator the Hon N Bolkus (ALP, SA)
Senator M Payne (LP, NSW)
Senator J Tierney (LP, NSW)

2. Participating Members
Senator the Hon E Abetz (LP, TAS)
Senator A Bartlett (AD, QLD)
Senator R Boswell (NPA, QLD)
Senator V Bourne (AD, NSW)
Senator B Brown (AG, TAS)
Senator the Hon D Brownhill (NPA, NSW)
Senator G Campbell (ALP, NSW)
Senator K Carr (ALP, VIC)
Senator H Coonan (LP, NSW)
Senator the Hon J Faulkner (ALP, NSW)
Senator B Harradine (IND, TAS)
Senator M Lees (AD, SA)
Senator K Lundy (ALP, ACT)
Senator the Hon C Schacht (ALP, SA)

3. Committee Secretariat
Mr Richard Selth, Secretary
Ms Stephanie Holden, Senior Research Officer
Parliament House
Canberra ACT 2600
Ph 02 6277 3626
Fax 02 6277 5818

Email: erca.sen@aph.gov.au

Introduction

1.1 The Environment and Heritage Legislation Amendment Bill 1999 was introduced into the Senate on 31 March 1999. On 28 April 1999, the Senate, on the recommendation of the Selection of Bills Committee, referred the Bill to the Environment, Communications, Information Technology and the Arts Legislation Committee for inquiry and report by 10 August 1999.

1.2 The Committee advertised the inquiry in The Weekend Australian on 8 May 1999 with a nominated closing date for submissions of 4 June 1999. One submission was received, from the Victorian Government. The submission is included as Appendix 1 to this report. The Committee decided not to hold a public hearing but referred the issues raised in the Victorian Government's submission to the Department of the Environment and Heritage for comment.

The Bill

Purpose of the Bill

1.3 The purpose of the Bill is:

to amend the Environment Protection (Sea Dumping) Act 1981 in order to:
- implement the 1996 Protocol to the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (the London Convention);
- stipulate the Commonwealth's responsibility for regulating the construction of artificial reefs;
- apply the Act to the Exclusive Economic Zone;
- revise offence, penalty and exemption provisions;
- simplify the rollback provision;
- include Australian Customs Services officers as inspectors; and
- simplify provisions and make them consistent across the Act;
to amend the Sea Installations Act 1987 in order to remove the prohibitions on issuing and varying a permit that would authorise a sea installation to be located partly within and partly outside an adjacent area (i.e. an area of Commonwealth waters adjacent to State coastal waters).

Amendments to the Environment Protection (Sea Dumping) Act 1981

1.4 Australia fulfils its obligations as a Contracting Party to the London Convention through the Environment Protection (Sea Dumping) Act 1981 (the Sea Dumping Act). On 25 March 1998 Australia signed the 1996 Protocol to the London Convention. The Protocol supersedes the London Convention for states, such as Australia, that become Parties to it and that are also Parties to the Convention. The Sea Dumping Act must be amended before Australia can ratify the Protocol.

1.5 The Sea Dumping Act currently regulates activities involving:

dumping into the sea;
incineration at sea; and
loading for dumping into the sea or incineration at sea;

from, or on, a vessel, aircraft or platform in, or above, Australia waters, and the regulation of these same activities from, or on, an Australian vessel or an Australian aircraft, anywhere at sea, or above the sea. It does not regulate activities such as the discharge into the sea of effluent from land-based pipes, other land-based marine pollution or ship sourced pollution.

1.6 The Protocol alters the regime regulating the dumping of wastes and other matter by defining what is permitted to be dumped into the marine environment, whereas the London Convention states what may not be dumped. The new approach is simpler and more rigorous than the current system.

1.7 The Protocol takes account of developments in international environmental law and the Law of the Sea. These include the entry into force of the United Nations Convention on the Law of the Sea (UNCLOS) in 1994, the principles proclaimed in the 1992 Rio Declaration on Environment and Development and in the subsequent Agenda 21 Action Plan. The Protocol will come into force on the 30th day following the date on which at least 26 States have expressed consent to be bound by it and at least 15 Parties to the London Convention are included in these 26 States. In evidence given to the Joint Standing Committee on Treaties in December 1997, Environment Australia anticipated that it would be between two and five years before the Protocol would come into force. [1] As at 1 May 1999 there were six contracting States to the Protocol. [2]

1.8 The Protocol specifies seven categories of wastes or other matter that may be considered for dumping at sea. These are contained in Annex 1 to the Protocol. They are:

dredged material;
sewage sludge;
fish waste, or material resulting from industrial fish processing operations;
vessels and platforms or other man-made structures at sea;
inert, inorganic geological material;
organic material of natural origin; and
bulky items comprising iron, steel, concrete and similarly unharmful materials for which the concern is physical impact, and limited to those circumstances where such wastes are generated at locations, such as small islands with isolated communities, having no practicable access to disposal options other than dumping.

1.9 The Protocol prohibits incineration at sea and the export of substances for dumping into the sea or for incineration at sea. It does provide, however, an emergency situation exemption in respect of the dumping and incineration rules and the general exemptions contained in the London Convention are also incorporated.

1.10 Under the Protocol a permit applicant is required to prepare an alternative waste strategy and adopt an alternative to dumping if that is feasible or economic. The Protocol incorporates a polluter-pays principle. Australia could incorporate this principle by adopting a sliding scale of fees for permits based on contamination levels in sediments. Materials for dumping must be screened against an Action List that specifies maximum permitted levels of contaminants. The Protocol adopts the precautionary approach by advocating that preventive measures should be taken if there is reason to believe that wastes introduced into the marine environment are likely to cause harm, even where there is no conclusive evidence to prove a causal relation between inputs and their effects. In these ways it is anticipated that less waste, and less contaminated waste, will be dumped at sea.

1.11 The inquiry of the Joint Standing Committee on Treaties into the Protocol revealed that a high level of consultation had been undertaken by the Government prior to signing the Protocol, [3] although the Committee expressed concern that the consultation did not seem to extend to Australia's island communities. The inquiry also revealed unanimous support for ratification of the Protocol by all witnesses, as well as affected industry bodies and clients. Environment Australia received no representations opposing the signature and ratification of the Protocol. [4]

1.12 The Bill revises certain substantive offence provisions in the Sea Dumping Act and includes new offences in respect of export for dumping or incineration at sea. Corporations convicted of offences against the revised provisions will be liable for up to five times the penalties for individuals. Chapter 2 of the Criminal Code (the Criminal Code Act 1995) – General Principles of Criminal Responsibility – will apply to offences under the Sea Dumping Act.

1.13 The Bill puts it beyond doubt that the Commonwealth has responsibility for regulating the construction of Artificial Reefs, and limits the potential liability of the Commonwealth in relation to them. New offences in respect of the unauthorised creation of artificial reefs are included.

1.14 The Bill will apply the Sea Dumping Act to Australia's Exclusive Economic Zone (EEZ) rather than to the Australian Fishing Zone.

1.15 The Bill revises the defence force exemption, as agreed between the Department of the Environment and Heritage and the Department of Defence, and the exemption in relation to the naval, military or air forces of a foreign country. The Department of Defence was initially opposed to the removal of its statutory exemption. In consultation with Environment Australia, however, the Department agreed that a revised armed conflict and other emergency situation exemption would sufficiently allay its concerns. The Australian Defence Force, although exempted under the existing Sea Dumping Act, has nevertheless voluntarily complied with the Act.

1.16 The Bill simplifies the section 9 roll-back provision of the Sea Dumping Act, which allows the Minister to make a declaration to limit the Act in its application to a State or the Northern Territory provided the Minister is satisfied that a law of the State or Territory makes provision for giving effect to the Protocol.

1.17 The Bill provides for Officers of the Australian Customs Service to be included as ex officio inspectors under the Act. Amendments of a machinery nature to simplify the Act and to provide for consistency between provisions are also contained in the Bill.

1.18 It is anticipated that there will be increased costs in the more detailed assessment of permit applications required under the Bill. These will be offset by increased application fees payable by permit applicants.

Amendments to the Sea Installations Act 1987

1.19 The Bill removes the prohibitions in the Sea Installations Act which prevent the issuing and variation of a permit which would authorise a sea installation to be located partly within and partly outside an adjacent area in respect of a State or affected Territory. [5] (The Sea Installations Act does not apply in respect of sea installations located wholly within State coastal waters.)

1.20 A sea installation is defined as any man-made structure which, when in the seabed, or brought into physical contact with the seabed, or when floating, can be used for an environment related activity. Such an activity is defined to include any activity relating to tourism or recreation; the carrying on of a business; or the exploration and exploitation of the living resources of the sea, the seabed or the subsoil of the seabed.

1.21 The amendments in the Bill will allow the Minister to issue a permit under the Act for the Basslink Interconnector Cable proposal that will link Tasmania to the National Electricity Market by means of a submarine electricity cable across Bass Strait. When the Bill was referred to the Committee any Commonwealth actions in relation to the Basslink project would have fallen within the provisions of the Environment Protection (Impact of Proposals) Act 1974 (the EPIP Act). The project has therefore been designated under the EPIP Act in anticipation of future Commonwealth actions in relation to the Sea Installations Act. The EPIP Act has since been replaced by the Environment Protection and Biodiversity Conservation Act 1999 but until commencement of that Act assessment procedures under the EPIP Act will continue to apply.

1.22 Passage of the Bill will also enable permit conditions (in relation to safety and environment protection) to be imposed in respect of sea installations located both within and outside an adjacent area.

1.23 The Tasmanian government will announce the successful tender for the Basslink project in November 1999. It is therefore highly desirable that the Bill be passed prior to the conclusion of the tender process, in order to enable the issue of a permit.

1.24 It is anticipated that there will be an increase in costs associated with assessing an increase in the number of applications for permits. This will be offset by a corresponding increase in the number of application fees payable.

Scrutiny of Bills Committee Report

1.25 The Scrutiny of Bills Committee raised two concerns it had with the Environment and Heritage Legislation Amendment Bill 1999. [6] It sought the advice of the Minister for the Environment and Heritage on these matters and reported the response by the Minister to the Senate. [7]

Onus of Proof

1.26 The Scrutiny of Bills Committee was concerned that the new section 15 in the Sea Dumping Act reverses the onus of proof. Schedule 1, item 26 of the Bill replaces the existing section 15 in the Sea Dumping Act and provides exceptions to certain offences contained in new sections 10A to 10C, 10E and 36.

1.27 Subsection 15(4) specifies that in proceedings for an offence, the defendant bears the evidential burden of proving an exception to an offence as set out in the section. This reverses the onus of proof as it is usual for the prosecution to prove that the accused could not establish an exception to an offence.

1.28 The Minister's response points out that Schedule 1, item 23 of the Bill inserts a new section 8A in the Sea Dumping Act which will apply Chapter 2 of the Criminal Code to the offences and therefore to the revised section 15 exceptions under the Act. Chapter 2 of the Criminal Code provides that a defendant bears the evidential burden in respect of any exception to an offence on which he or she seeks to rely. It is only the evidential burden and not the legal burden as well, which is imposed by the Criminal Code. In effect, a defendant will bear a lesser burden of proof under the revised Act than under the existing law as regards reliance on the exceptions to an offence.

1.29 The Minister's response makes the point that the new subsection 15(4) is not strictly necessary and was included for the purpose of clarity. Its effect is already included by the new section 8A.

1.30 The Minister's response proceeds to illustrate the significant evidentiary problems and prohibitive costs of enforcement of the Sea Dumping Act if the evidential burden were not imposed upon the defendant to establish one of the exceptions in proceedings for a relevant offence.

Clarity of the Bill

1.31 The Scrutiny of Bills Committee was concerned that some aspects of the operation of the Bill are not immediately clear. The Minister's response clarified the operation of the revised section 15 offence provisions. Dumping or incineration at sea will not be an offence under the Act if it occurs from or on an Australian vessel or aircraft, in waters that are not Australian waters and is in accordance with a foreign permit.

Submission

1.32 The Committee received a submission from the Victorian Government. Concerns expressed in the submission are considered below.

Amendments to the Environment Protection (Sea Dumping Act) 1981

1.33 The submission supports the proposed amendments to the Sea Dumping Act. It states that the amendments in the Bill will ensure that artificial reefs are constructed from appropriate material and are appropriately located. It supports the inclusion of Customs officers as inspectors as they are frequently the most appropriately trained and conveniently located officials in remote areas. The submission also supports the reduction in exemptions for the Australian Defence Force, as this will assist States in enforcing their own anti-dumping legislation.

1.34 The submission argues, however, that some of the terminology in the Bill requires refinement. In particular, it states that the use of the term “seriously harmful material” is imprecise and unusual. The submission provides an example of the term “hazardous substances” which is used in Victorian legislation for the protection of the marine environment. This term is defined through reference to an illustrative list of such materials. The submission suggests a similar approach to the term “seriously harmful material” would be beneficial in clarifying likely inclusions within this classification.

1.35 The Committee wrote to the Department of the Environment and Heritage, seeking its response to the concerns of the Victorian Government. The Department replied that the term “radioactive material” is currently defined in the Sea Dumping Act to mean:

material that has an activity of more than 35 becquerels per gram. [8]

1.36 Schedule 1, item 14 of the Bill, inserts a definition of `seriously harmful material' into the Sea Dumping Act. It is defined as:

a) radioactive material; or

b) any other material that is prescribed by the regulations for the purposes of this paragraph.

1.37 Schedule 1, item 77 of the Bill, which adds subsection 41(3) to the Act, limits the making of any such regulation by declaring that the Minister must be satisfied that the material to be prescribed by regulation is capable of causing serious harm to the marine environment. The Department is currently reviewing substances which it would be appropriate to prescribe by regulation.

1.38 The Department's response clarifies the definition:

Therefore, upon commencement of the amendments, as currently provided in the Bill, and until such a time as any such regulations are made, seriously harmful material will mean any material that has an activity of more than 35 becquerels per gram.

1.39 The response continues:

[The Department] is confident, therefore, that the use of the term seriously harmful material is appropriate, and that generally there should not be confusion concerning the scope of this term. [9]

Amendments to the Sea Installations Act 1987

1.40 The most substantive of the concerns raised in the submission relates to the implications of amendments to the Sea Installations Act in relation to Victoria's legislative sovereignty.

1.41 The submission supports the Commonwealth Government's intention to trigger its participation at the beginning of the joint environmental assessment process with Tasmania and Victoria for the Basslink Interconnector Cable proposal. It is concerned, however, that the proposed amendments to the Sea Installations Act would give the Commonwealth Minister the power to issue a permit for an entire sea installation which straddles State waters and Commonwealth waters. The Commonwealth Act would therefore override State law to the extent that there is an inconsistency, in accordance with section 109 of the Constitution.

1.42 The submission also suggests there would be potential for the environmental approvals process under the Act to override Victorian processes.

1.43 In its submission the Victorian Government suggests a further amendment to the Act be included in conjunction with the repeal of subsections 19(2) and 29(3) in the Bill. This further amendment should be made so that:

a permit for a sea installation straddling an adjacent area and State waters only applies to that part of the sea installation within the adjacent area and does not apply to that part of the sea installation in State waters.

1.44 The Department of the Environment and Heritage did not support further amendment to the Sea Installations Act of this kind. It stated that it is the Commonwealth's intention that a permit may be issued in respect of the entirety of the sea installation installed in an adjacent area, including any part of the installation that may be located in the coastal waters of a State. This will ensure that one principal legislative regime applies in respect of the entirety of the sea installation but will not preclude the application of State law insofar as that law is not inconsistent with Commonwealth law. [10]

1.45 The Department further stated that an additional amendment, such as that advocated in the submission, could result in situations where inconsistent legislative regimes apply to different parts of single sea installations. The Department did not anticipate that there would ever be more than a small number of sea installations located in both an adjacent area and the coastal waters in respect of a particular State.

1.46 Under sections 46 and 47 of the Sea Installations Act, State laws apply to installations in the adjacent area of a State as if that area were a part of that State and of the Commonwealth. Where there are such installations the Commonwealth will consult with the relevant State to ensure, so far as is reasonable, that they are installed and operated in a manner consistent with the recommendations of that State.

Conclusion

1.47 In view of the fact that only one submission to this inquiry was received, the Committee concludes that the consultation process with interested parties was conducted satisfactorily and that the majority of those affected supports the amendments proposed in the Bill.

Recommendation

The Committee recommends to the Senate that the Bill be passed without amendment.

Senator Alan Eggleston
Chair

Footnotes

[1] Joint Standing Committee on Treaties, Thirteenth Report, March 1998,

[2] Summary of Status of Conventions as at 1 May 1999, International Maritime Organisation website:

[3] Joint Standing Committee on Treaties, Official Hansard Report, Canberra, 1 December 1997, and 13.

[4] Joint Standing Committee on Treaties, Official Hansard Report, Canberra, 1 December 1997,

[5] In general terms, these are the Commonwealth waters from three nautical miles out from the territorial sea baseline, out to the outermost limits of Australian waters.

[6] Scrutiny of Bills Committee, Alert Digest No. 6 of 1999, 21 April 1999.

[7] Scrutiny of Bills Committee, Report No. 10 of 1999, 23 June 1999.

[8] Letter from Environment Australia to the Committee, 2 August 1999,

[9] Letter from Environment Australia to the Committee, 2 August 1999,

[10] Letter from Environment Australia to the Committee, 2 August 1999;

Table of Contents

Environment and Heritage Legislation Amendment Bill 1999