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2022
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
Maritime Legislation Amendment Bill 2022
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Infrastructure, Transport, Regional Development
and Local Government, the Hon Catherine King MP)
MARITIME LEGISLATION AMENDMENT BILL 2022
OUTLINE
The primary purpose of the Bill is to implement amendments by the International Maritime
Organization to the International Convention for the Prevention of Pollution from Ships,
1973, as modified by the Protocol of 1978 relating thereto (MARPOL) and the International
Convention on the Control of Harmful Anti-Fouling Systems on Ships, 2001 (HAFS
Convention). Australia needs to implement these amendments in domestic legislation to meet
our international obligations as signatory to both the MARPOL and HAFS Convention. The
Bill will amend the Protection of the Sea (Prevention of Pollution from Ships) Act 1983
(POTS Act) and the Protection of the Sea (Harmful Anti-fouling Systems) Act 2006 (the
HAFS Act) respectively to implement these amendments to the conventions.
The Bill mainly aims to
i. introduce controls for discharges of residues of noxious liquid substances known as
'persistent floaters' (substances that can form surface slicks on water) in northern
European waters that came into effect on 1 January 2021,
ii. ban the use of heavy fuel oil by ships in Arctic waters from 1 July 2024 (a similar ban is
already in place in the Antarctic), and
iii. extend controls on ship harmful anti-fouling systems to include the chemical biocide,
cybutryne, from 1 January 2023.
From 1 January 2021, under Annex II of MARPOL, controls were introduced for ship
discharges of residues of noxious liquid substances that are 'persistent floaters' in northern
European waters, specifically in North West European Waters, Baltic Sea, Western European
Waters and Norwegian Sea. Persistent floaters are substances that can form surface slicks on
water, such as selected grades of vegetable oil or paraffin-like substances, with the physical
characteristics defined in MARPOL Annex II.
The Bill will introduce controls in the POTS Act for the discharge of residues and wash water
of noxious liquid substances that are persistent floaters. Ships will be required to meet new
cargo tank cleaning, prewash and discharge procedures for persistent floaters as specified in
Appendix IV (Standard format for the Procedures and Arrangements Manual) and Appendix
VI (Prewash procedures) to MARPOL Annex II.
On 1 November 2022, amendments to MARPOL Annex I will enter into force that will
prohibit ships from using heavy fuel oil (HFO) or carrying HFO for use (excluding HFO
carried as cargo) in Arctic waters from 1 July 2024, or from 1 July 2029 for ships with oil fuel
tank protection. HFO under MARPOL is defined in the POTS Act and the Bill as heavy grade
oil (HGO), however both HFO and HGO have the same definition and meaning. The ban
aims to reduce the environmental impacts on sensitive Arctic environments caused by higher
emissions of harmful air pollutants from ships burning HFO. The ban also reduces the risk of
oil spills involving HFO, which would have a devastating impact on Arctic ecosystems.
The Arctic HFO ban is consistent with the existing ban under MARPOL Annex I, and already
legislated in the POTS Act, on the carriage and use of HFO in the Antarctic, with the
exception of temporary waivers being able to be issued by coastal state Parties bordering
Arctic waters, for ships flying their flag, until 2029.
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From 1 January 2023, Annexes 1 and 4 of the HAFS Convention will extend current controls
on anti-fouling systems to include the chemical biocide, cybutryne. Cybutryne is acutely and
chronically toxic for marine organisms. The substance accumulates in sediments and causes
long-term effects on the marine environment.
From 1 January 2023, all ships cannot apply or re-apply anti-fouling systems containing
cybutryne. Ships with existing cybutryne coatings on 1 January 2023 are required to remove
the system, or apply a coating to prevent leaching of the chemical to the environment, by the
next scheduled renewal of their anti-fouling system, and no later than 60 months from the last
anti-fouling system application. These transitional arrangements do not apply to anti-fouling
systems containing cybutryne on fixed and floating platforms, floating storage units or
floating production, storage and off-loading vessels constructed prior to 1 January 2023 and
have not been in dry-dock on or after that date. The transitional arrangements also do not
apply to ships engaged in international voyages.
Ships in operation will need to comply with the new requirements by the first anti-fouling
renewal survey after 1 January 2023 and will be issued a new International Anti-fouling
System Certificate which records cybutryne-free compliance.
Ships under construction, for delivery after 1 January 2023, will need to be delivered as
cybutryne-free, and will be issued with an International Anti-fouling System Certificate at the
initial survey.
Australia's legislated implementation of the above measures will support effective and
consistent global application of international regulations to strengthen protection of the
marine environment by further reducing and preventing pollution from ships.
The Bill also includes minor editorial changes to replace 'orders' with 'Marine Orders' in the
POTS and HAFS Acts to be consistent with the Navigation Act 2012.
Financial impact statement
There is no financial impact to the Commonwealth arising from this Bill.
Consultation
The shipping industry has actively engaged in the negotiations at the International Maritime
Organization to develop these amendments to the MARPOL and HAFS Convention.
Australia's maritime industry is supportive of Australia consistently enforcing international-
agreed shipping standards to ensure a global-level playing field. The Australian Pesticides and
Veterinary Medicines Authority was consulted and advised that it has never registered or
approved the use of cybutryne as an antifouling agent for ships in Australia. No comments
were received during the public consultation period on the Exposure Draft Bill.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
MARITIME LEGISLATION AMENDMENT BILL 2022
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Maritime Legislation Amendment Bill 2022
The primary purpose of the Bill is to bring Australia's maritime legislation in line with
international conventions to prevent pollution from ships and strengthen environment
protection.
The Bill implements amendments by the International Maritime Organization to the
International Convention for the Prevention of Pollution from Ships, 1973, as modified by the
Protocol of 1978 relating thereto (MARPOL) and the International Convention on the
Control of Harmful Anti-Fouling Systems on Ships, 2001 (HAFS Convention). To meet
Australia's international obligations as signatory to both the MARPOL and HAFS
Convention, the Bill will amend the Protection of the Sea (Prevention of Pollution from
Ships) Act 1983 (POTS Act) and the Protection of the Sea (Harmful Anti-fouling Systems) Act
2006 (the HAFS Act) respectively to implement these amendments to the conventions.
The Bill will:
i. introduce controls for ship discharges of residues of noxious liquid substances that are
'persistent floaters' (substances such as various vegetable oils that can form surface
slicks on water) in northern European waters that came into effect on 1 January 2021,
ii. ban the use, and carriage for use, of heavy fuel oil (HFO) by ships in Arctic waters from
1 July 2024 (an Antarctic ship HFO ban is already in place), and
iii. extend controls on ship harmful anti-fouling systems to include the toxic chemical
biocide, cybutryne, from 1 January 2023.
By legislating the above amendments to international maritime conventions, Australia will
support effective and consistent global implementation of international regulations to further
reduce and prevent pollution from ships and strengthen protection of the environment.
The Bill also includes minor editorial changes to replace 'orders' with 'Marine Orders' in the
POTS and HAFS Acts to be consistent with the Navigation Act 2012.
Human rights implications
Schedule 2 to the Bill engages the following right:
• the right to presumption of innocence in Article 14 of the International Covenant on Civil
and Political Rights (ICCPR).
Right to presumption of innocence
Article 14(2) of the ICCPR states that:
Everyone charged with a criminal offence shall have the right to be presumed innocent until
proved guilty according to law.
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The presumption of innocence imposes on the prosecution the burden of proving the charge and
guarantees that no guilt can be presumed until the charge has been proved beyond reasonable
doubt. Consistency with the presumption of innocence requires that the prosecution prove each
element of a criminal offence beyond reasonable doubt.
The application of absolute or strict liability to an element of an offence may engage and limit
the right to be presumed innocent as it allows for the imposition of criminal liability without
the need for the prosecution to prove fault.
The Bill extends a strict liability offence for the carriage or use of heavy fuel oil (referred to
as heavy grade oil in the POTS Act) on Australian ships in Arctic waters. A similar strict
liability offence provision is already in place for the carriage or use of heavy grade oil in the
Antarctic. Applying strict liability is appropriate in these circumstances, as the master or
owner of an Australian ship would be expected to be aware of, and comply with, the
requirements of the Protection of the Sea (Prevention of Pollution from Ships) Act 1983. It
would not be appropriate for the prosecution to have to demonstrate that a person knew that
they had failed to meet those requirements. However, the general defence of mistake of fact
would be available to the defendant. In addition, the defendant could seek to rely on the
exception provisions contained in the Bill.
Under international human rights law, a reverse onus provision will not violate the
presumption of innocence if the law is reasonable in the circumstances and maintains the
rights of the accused. Such a provision may be justified if the nature of the offence makes it
very difficult for the prosecution to prove each element, or if it is clearly more practical for
the accused to prove a fact than for the prosecution to disprove it. The offences connected to
Schedule 2 of the Bill relate to conduct at sea. This creates a significant challenge for public
authorities to identify and gather evidence necessary to prove each element of an offence. It is
appropriate, therefore, for the onus to be on the accused to demonstrate their knowledge of a
fact. For example, where a person is suspected to be carrying a heavy grade oil on Australian
ships in Arctic waters, it is more practical for the person to demonstrate that they are carrying
the heavy grade oil for one or more of the exceptions outlined in the Bill.
Making the offence a strict liability penalty operates to deter shipping activities that could
impact the sensitive Arctic environments in a harmful way. In addition, the provision seeks to
ensure that Australia meets its international obligations on maritime environmental matters
under the MARPOL and HAFS Conventions.
To the extent that the measures engage the right to presumption of innocence, the measures
are reasonable, necessary and proportionate in achieving a legitimate objective of reducing
harmful marine pollution from ships in the Arctic.
Schedules 1, 3 and 4 to the Bill are technical in nature and do not engage any of the applicable
human rights or freedoms.
Conclusion
This Bill is compatible with human rights because, to the extent that it may limit human
rights, those limitations are reasonable, necessary and proportionate to the objectives of
reducing harmful marine pollution from ships.
Minister for Infrastructure, Transport, Regional Development and Local Government,
the Hon Catherine King MP
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NOTES ON CLAUSES
Clause 1: Short Title
1. Clause 1 provides for the Bill, when enacted, to be cited as the Maritime Legislation
Amendment Act 2022.
Clause 2: Commencement
2. The table in this clause sets out when the Bill's provisions commence. Sections 1 to 3 of
the Bill commences on the day this Act receives Royal Assent. Schedule 1 relating to the
discharge of persistent floaters and Schedule 4 which replaces 'orders' with 'Marine
Orders' commence the day after this Act receives Royal Assent. Schedule 2 on the
carriage of heavy grade oil in Arctic waters commences the later of 1 November 2022 and
the day after this Act receives the Royal Assent. Schedule 3 that extends controls on ship
anti-fouling systems commences the later of 1 January 2023 and the day after this Act
receives the Royal Assent.
Clause 3: Schedule(s)
3. Clause 3 provides that the Schedules to the Bill will amend the Protection of the Sea
(Prevention of Pollution from Ships) Act 1983 (POTS Act) and the Protection of the Sea
(Harmful Anti-fouling Systems) Act 2006 (HAFS Act), in accordance with the provisions
set out in the Schedules.
SCHEDULE 1 - Discharge of Persistent floaters
Protection of the Sea (Prevention of Pollution from Ships) Act 1983
4. This whole Schedule is intended to implement the International Maritime Organization's
Resolution MEPC.315(74) (Cargo residues and tank washings of persistent floating
products) that amends Annex II to the International Convention for the Prevention of
Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto
MARPOL.
Item 1 - Subsection 15(1)
5. This item inserts a new definition of regulated persistent floater into subsection 15(1) of
the POTS Act, as identified by 16.2.7 in column 'o' of Chapter 17 of the International
Code for the Construction and Equipment of Ships Carrying Dangerous Chemicals in
Bulk (IBC Code).
Item 2 - Subsection 21(4)
6. This item ensures all relevant exceptions in subsections (12) and (13) are referenced for
the strict liability offence in subsection (1B) relating to the discharge of wash water
containing residue from a ship tank that held a Category X substance or a mixture
containing a Category X substance.
Item 3 - Subparagraph 21(4)(a)(ii)
7. This item asserts that the prewash procedure for a tank that held a Category X substance is
specified in Appendix VI of Annex II of the International Convention for the Prevention
of Pollution from Ships, 1973 as amended by the Protocol of 1978 (MARPOL).
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Item 4 - Subsection 21(4)
8. This item moves conditions specified in Paragraphs 21(4)(d), (e) and (f) into a new
subsection (9A).
Item 5 - Paragraphs 21(4)(d), (e) and (f)
9. This item repeals Paragraphs 21(4)(d), (e) and (f), as they have been included in a new
subsection (9A) as specified in Item 4 above.
Item 6 - Subsection 21(5)
10. This item provides exceptions in subsections (12) and (13), as well as a new subsection
(13A), for the strict liability offence in subsection (1B) relating to the discharge of wash
water containing residue from a ship tank that held a high-viscosity or solidifying
substance in Category Y.
Item 7 - Subparagraph 21(5)(a)(iv)
11. This item asserts that the prewash procedure for a tank that held a high-viscosity or
solidifying substance in Category Y is specified in Appendix VI of Annex II of the
International Convention for the Prevention of Pollution from Ships, 1973 as amended by
the Protocol of 1978 (MARPOL).
Item 8 - Subsection 21(5)
12. This item moves conditions specified in Paragraphs 21(5)(d), (e) and (f) into a new
subsection (9A).
Item 9 - Paragraphs 21(5)(d), (e) and (f)
13. This item repeals Paragraphs 21(5)(d), (e) and (f), as they have been included in a new
subsection (9A) as specified in Item 8 above.
Item 10 - After subsection 21(5)
14. This item inserts a new subsection (5A) Regulated persistent floaters in Category Y with
the requirement for a ship's tank that held a regulated persistent floater (RPF) in Category
Y, or a mixture containing a RPF in Category Y, to be emptied and washed in accordance
with the prewash procedure specified in Appendix VI of Annex II of the International
Convention for the Prevention of Pollution from Ships, 1973 as amended by the Protocol
of 1978 (MARPOL). Any resulting residues in the tank must be discharged to a port
reception facility at the port of unloading. The remaining residue must be subsequently
diluted with water. The strict liability offence in subsection (1B) relating to the discharge
of wash water containing that residue into the North West European waters, the Baltic Sea
area, the Western European waters or the Norwegian Sea does not apply if the tank
cleaning controls outlined in subsection (5A) are implemented and conditions in
subsection (9A) are satisfied.
15. The longitudinal and latitudinal coordinates of the North West European waters, the Baltic
Sea area, the Western European waters and the Norwegian Sea areas are defined in
Annex II, Chapter 5 of MARPOL.
Item 11 - Subsection 21(6)
16. This item provides exceptions in subsections (12) and (13), as well as a new subsection
(13A), for the strict liability offence in subsection (1B) relating to the discharge into the
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sea of any residue containing other substances in Category Y, or a mixture containing
these substances, from a ship tank that held such substances.
Item 12 - Subsection 21(6)
17. This item moves conditions specified in Paragraphs 21(6)(c), (d) and (e) into a new
subsection (9A).
Item 13 - Paragraphs 21(6)(c), (d) and (e)
18. This item repeals Paragraphs 21(6)(c), (d) and (e), as they have been included in a new
subsection (9A) as specified in Item 12 above.
Item 14 - Subsection 21(7)
19. This item ensures all relevant exceptions in subsections (12) and (13) are referenced for
the strict liability offence in subsection (1B) relating to the discharge into the sea of any
residue containing Category Z substances from a ship constructed before 1 January 2007
that held such substances in its tank.
Item 15 - Subsection 21(8)
20. This item ensures all relevant exceptions in subsections (12) and (13) are referenced for
the strict liability offence in subsection (1B) relating to the discharge into the sea of any
residue containing Category Z substances from a ship constructed on or after 1 January
2007 that held such substances in its tank.
Item 16 - Subsection 21(8)
21. This item moves conditions specified in Paragraphs 21(8)(d), (e), (f) and (g) into a new
subsection (9A).
Item 17 - Paragraphs 21(8)(d) to (g)
22. This item repeals Paragraphs 21(8)(d), (e), (f) and (g), as they have been included in a new
subsection (9A) as specified in Item 16 above.
Item 18 - Subsection 21(9)
23. This is a consequential amendment of replacing Paragraph 21(8)(f) with Paragraph
(9A)(c).
Item 19 - After subsection 21(9)
24. A new subsection (9A) is inserted which lists all the same conditions that must be satisfied
in relation to the discharge of residue into the sea under subsections 21(4), 21(5), 21(5A),
21(6) and 21(8).
Item 20 - After subsection 21(13)
25. A new subsection 21(13A) is inserted which specifies that exceptions provided by
subsection 21(5) High-viscosity or solidifying substances in Category Y and subsection
21(6) Other substances in Category Y do not apply to the discharge of water containing
residues from tanks that held regulated persistent floaters in the prohibited areas of the
North West European waters, the Baltic Sea area, the Western European Waters or the
Norwegian Sea.
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Item 21 - Subsection 22(10) (paragraphs (a) and (b) of the definition of prescribed
incident)
26. This item specifies that the reporting of a prescribed incident does not apply to the
discharge of water containing residue from a ship tank that held a regulated persistent
floater in Category Y if conditions in section 21(5A) have been met.
SCHEDULE 2 - Carriage of heavy grade oil in Arctic waters
Protection of the Sea (Prevention of Pollution from Ships) Act 1983
27. This whole Schedule is intended to implement the International Maritime Organization's
Resolution MEPC.329(76) (Prohibition on the use and carriage for use as fuel of heavy
fuel oil by ships in Arctic waters) that amends Annex I to MARPOL.
28. Schedule 2 prohibits ships from using HGO or carrying HGO for use (excluding HGO
carried as cargo) from 1 July 2024 for a ship without fuel tank protection, and from 1 July
2029 for ships with oil fuel tank protection.
29. The ban aims to reduce the environmental impact in the event of an oil spill from a ship in
Arctic waters and the impact of harmful air pollutants from ship exhausts on sensitive
Arctic environments.
30. The Arctic HGO ban is consistent with the existing ban under MARPOL Annex I on the
carriage and use of HGO in the Antarctic, with the exception of temporary waivers able to
be issued by coastal state Parties bordering Arctic waters, for ships flying their flag, until
2029.
Item 1 - Subsection 3(1)
31. This item inserts two new definitions for ship with fuel tank protection and ship without
fuel tank protection that are mutually exclusive.
Item 2 - After section 10A
32. This item inserts a new section 10AA that prohibits the carriage or use of heavy grade oil
(HGO) on Australian-flagged ships in Arctic waters.
33. If HGO is used, or carried for use as fuel, on an Australian ship in Arctic waters contrary
to the prohibition, subsection 10AA(1) provides that the master or owner engaged in such
conduct commits an ordinary offence with a maximum penalty of 2,000 penalty units
from 1 July 2024 for a ship without fuel tank protection, and from 1 July 2029 for a ship
with fuel tank protection. Subsection 10AA(2) further provides that the master or owner
engaged in such conduct commits a strict liability offence with a maximum penalty of 500
penalty units.
34. Subsection 10AA(4) provides exceptions to the offence if the HGO is being carried or
used as fuel on an Australian ship engaged in securing the safety of a ship, engaged in a
search and rescue operation or dedicated to oil spill preparedness and response.
35. Subsection 10AA(5) provides a further exception for any HGO residue that is not cleaned
or flushed from a tank or pipeline of an Australian ship carrying or using HGO as fuel
before it enters Arctic waters.
36. The offences are directed at the master or the owner of an Australian ship that contravenes
the ban on the use and carriage for use of HGO in Arctic waters. It is well established in
8
shipping law that offence provisions should apply collectively to the master and the
owner. There is precedent in both State and Commonwealth legislation as well as in
international law. Such persons have shared responsibility and each can be expected to be
fully aware of the requirements of the legislation (and of Annex I of MARPOL) and, in
particular, the ban on the carriage or use of HGOs in the Arctic. While the master has
immediate responsibility for the ship, the master is subject to the direction of the
shipowner. Shared liability encompassing the master and owner who have committed an
offence is consistent with offence provisions in other parts of the POTS Act and in other
maritime legislation such as the Navigation Act 2012.
37. The penalty of 2,000 penalty units for a breach of subsection 10AA(1) is set at a
sufficiently high level to discourage ships carrying heavy grade oils from entering the
sensitive Arctic waters and avoid the risk of a spill of HGO with potential major
environmental damage.
38. The maximum penalty of 2,000 penalty units for the ordinary offence is the same as the
existing penalty in subsection 10A(1) on the carriage or use of HGO on Australian ships
in the Antarctic Area.
39. An offence against subsection 10AA(2) is an offence of strict liability carrying a
maximum penalty of 500 penalty units. It is appropriate that strict liability applies to an
offence against subsection 10AA(2) as the master and owner of a ship would be fully
aware if the ship is using or carrying HGO for use as fuel, and strict liability will
discourage intentional or careless non-compliance with the ban on use or carriage for use
of HGO in Arctic waters.
40. Strict liability makes a person legally responsible for the damage caused by his or her acts
and omissions regardless of culpability. Applying strict liability is consistent with similar
offences of this nature that apply for the Antarctic Area. A defence of honest and
reasonable mistake of fact will be available in relation to this offence.
41. The maximum penalty of 500 penalty units for the strict liability offence is the same as the
existing strict liability penalty in subsection 10A(2) on the carriage or use of HGO on
Australian ships in the Antarctic Area.
42. As indicated in the Note following subsection 10AA(4), a defendant bears an evidential
burden in relation to the matter set out in that subsection. It is reasonable that the
defendant should have to adduce or point to evidence that suggests a reasonable
possibility that the matters set out in that subsection applied. If a defendant were to rely on
the defences in subsection 10AA(4), it is reasonable to expect that the defendant should be
able to demonstrate that HGO was used or carried for use as fuel on a ship for the purpose
of securing the safety of a ship, conducting search and rescue, or involved in oil spill
preparedness and response.
43. In accordance with subsection 10AA(5), there is no requirement to clean or flush residues
of HGO from a tank or pipeline of a ship. This reflects the fact that small amounts of
HGO on board a ship would not pose a significant environmental risk.
44. Subsection 10AA(5) applies in relation to HGO carried on board a ship at any time, both
before and after the commencement of the new section 10AA on the Arctic HFO ban.
While this provision will have a retrospective effect, no person will be disadvantaged. The
master or owner of a ship will not be required to remove any HGO residues, irrespective
of when the HGO may have been carried or used on board the ship as fuel.
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45. As indicated in the Note following subsection 10AA(5), a defendant bears an evidential
burden in relation to the matter set out in that subsection. It is reasonable that the
defendant should have to adduce or point to evidence that suggests a reasonable
possibility that the matters set out in that subsection applied. A defendant should be able
to demonstrate that HGO was not used or carried for use as fuel, and that the only HGO
on board the ship was remaining residue in the ship's tank or pipeline.
46. In summary, this schedule extends the existing strict liability offence and defences on the
use and carriage for use as fuel of heavy fuel oil in the Antarctic by an Australian ship to
also encompass Arctic waters. A defendant who wishes to rely on the exception
provisions bears an evidential burden to proof that the ship was either engaged in securing
the safety of the ship, engaged in a search and rescue operation, or dedicated to oil spill
preparedness and response, or that the HGO is residual. Application of the strict liability
offence to Arctic waters ensures consistency with similar existing provisions for the
Antarctic, and provides greater assurance that shipping activities do not result in harmful
impacts to sensitive Arctic environments.
SCHEDULE 3 - Extension of controls on anti-fouling systems
Protection of the Sea (Harmful Anti-fouling Systems) Act 2006
47. This whole Schedule is intended to implement the International Maritime Organization's
Resolution MEPC.331(76) (Controls on cybutryne and form of the International Anti
fouling System Certificate) that amends Annexes 1 and 4 to the International Convention
on the Control of Harmful Anti Fouling Systems on Ships, 2001.
48. The Schedule extends controls on ship harmful anti-fouling systems to include the
chemical biocide, cybutryne, from 1 January 2023
Item 1 - Section 3 (definition of HAFC)
49. This item extends the definition of a harmful anti-fouling compound (HAFC) to include
cybutryne.
Item 2 - Section 3
50. This item includes a new definition for a pre-2023 exempt platform which is a fixed or
floating platform, a floating storage unit or a floating production, storage and off-loading
unit that was constructed before 1 January 2023, and has not been in dry dock on or after
that date.
Item 3 - At the end of section 4
51. This item broadens the definition of compliance with anti-fouling requirements to
include a transitional period for a ship already bearing a cybutryne anti-fouling system on
1 January 2023 can ensure compliance. The ship has until the first scheduled renewal of
the ship's anti fouling system after 1 January 2023, and no later than 60 months after the
last application of cybutryne to the ship before 1 January 2023, to become compliant.
Item 4 - Paragraph 9(1)(a)
52. This item removes the 'on or after 1 January 2008' time restriction for the ordinary
offence of a non-complying Australian ship entering a shipping facility (i.e. a port,
shipyard or offshore terminal). This time limit was included as a transitional measure
when the Act was first introduced to allow industry time to comply with HAFC
requirements for organotin compounds. Given the time that has passed since this Act
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commenced, all Australian ships would now comply with the HAFC requirements for
organotin compounds.
53. A similar time restriction is not needed in Section 9 for cybutryne anti-fouling systems, as
the transitional measure is now reflected in Section 4.
Item 5 - Paragraph 9(1)(d)
54. This item includes a ship with a cybutryne external coating that is not a pre-2023 exempt
platform to the ordinary offence of a non-complying Australian ship entering a shipping
facility.
Item 6 - Paragraph 9(2)(a)
55. This item removes the 'on or after 1 January 2008' time restriction for the ordinary
offence of a non-complying Australian ship remaining in a shipping facility. This time
limit was included as a transitional measure when the Act was first introduced to allow
industry time to comply with HAFC requirements for organotin compounds. Given the
time that has passed since this Act commenced, all Australian ships would now comply
with the HAFC requirements for organotin compounds.
Item 7 - Paragraph 9(2)(d)
56. This item includes a ship with a cybutryne external coating that is not a pre-2023 exempt
platform to the ordinary offence of a non-complying Australian ship remaining in a
shipping facility.
Item 8 - Paragraph 9(3)(a)
57. This item removes the 'on or after 1 January 2008' time restriction for the ordinary
offence of a non-complying foreign ship entering an Australian shipping facility. This
time limit was included as a transitional measure when the Act was first introduced to
allow industry time to comply with HAFC requirements for organotin compounds. Given
the time that has passed since this Act commenced, all foreign ships should now comply
with the HAFC requirements for organotin compounds.
Item 9 - Paragraph 9(3)(d)
58. This item includes a ship with a cybutryne external coating that is not a pre-2023 exempt
platform to the ordinary offence of a non-complying foreign ship entering an Australian
shipping facility.
Item 10 - Paragraph 9(4)(a)
59. This item removes the 'on or after 1 January 2008' time restriction for the ordinary
offence of a non-complying foreign ship remaining in an Australian shipping facility. This
time limit was included as a transitional measure when the Act was first introduced to
allow industry time to comply with HAFC requirements for organotin compounds. Given
the time that has passed since this Act commenced, all foreign ships should now comply
with the HAFC requirements for organotin compounds.
Item 11 - Paragraph 9(4)(d)
60. This item includes a ship with a cybutryne external coating that is not a pre-2023 exempt
platform to the ordinary offence of a non-complying foreign ship remaining in an
Australian shipping facility.
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Item 12 - Paragraph 9(5)(a)
61. This item removes the 'on or after 1 January 2008' time restriction for the strict liability
offence of a non-complying Australian ship entering a shipping facility. This time limit
was included as a transitional measure when the Act was first introduced to allow industry
time to comply with HAFC requirements for organotin compounds. Given the time that
has passed since this Act commenced, all Australian ships would now comply with the
HAFC requirements for organotin compounds.
Item 13 - Paragraph 9(5)(d)
62. This item includes a ship with a cybutryne external coating that is not a pre-2023 exempt
platform to the strict liability offence of a non-complying Australian ship entering a
shipping facility. It extends the existing strict liability offence for banned ship harmful
anti-fouling systems to include cybutryne.
Item 14 - Paragraph 9(6)(a)
63. This item removes the 'on or after 1 January 2008' time restriction for the strict liability
offence of a non-complying Australian ship remaining in a shipping facility. This time
limit was included as a transitional measure when the Act was first introduced to allow
industry time to comply with HAFC requirements for organotin compounds. Given the
time that has passed since this Act commenced, all Australian ships would now comply
with the HAFC requirements for organotin compounds.
Item 15 -Paragraph 9(6)(c)
64. This item includes a ship with a cybutryne external coating that is not a pre-2023 exempt
platform to the strict liability offence of a non-complying Australian ship remaining in a
shipping facility.
Item 16 - Paragraph 9(7)(a)
65. This item removes the 'on or after 1 January 2008' time restriction for the strict liability
offence of a non-complying foreign ship entering an Australian shipping facility. This
time limit was included as a transitional measure when the Act was first introduced to
allow industry time to comply with HAFC requirements for organotin compounds. Given
the time that has passed since this Act commenced, all foreign ships should now comply
with the HAFC requirements for organotin compounds.
Item 17 - Paragraph 9(7)(d)
66. This item includes a ship with a cybutryne external coating that is not a pre-2023 exempt
platform to the strict liability offence of a non-complying foreign ship entering an
Australian shipping facility.
Item 18 - Paragraph 9(8)(a)
67. This item removes the 'on or after 1 January 2008' time restriction for the strict liability
offence of a non-complying foreign ship remaining in an Australian shipping facility. This
time limit was included as a transitional measure when the Act was first introduced to
allow industry time to comply with HAFC requirements for organotin compounds. Given
the time that has passed since this Act commenced, all foreign ships should now comply
with the HAFC requirements for organotin compounds.
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Item 19 - Paragraph 9(8)(c)
68. This item includes a ship with a cybutryne external coating that is not a pre-2023 exempt
platform to the strict liability offence of a non-complying foreign ship remaining in an
Australian shipping facility.
Item 20 - Application of amendments
69. This item clarifies that the amendments to subsections 9(2), (4), (6) and (8) of the
Protection of the Sea (Harmful Anti-fouling Systems) Act 2006 apply to an Australian ship
remaining in a shipping facility or a foreign ship remaining in an Australian shipping
facility whether or not the ship entered the shipping facility before the commencement of
this Schedule.
SCHEDULE 4 - Marine Orders
Protection of the Sea (Harmful Anti-fouling Systems) Act 2006
Protection of the Sea (Prevention of Pollution from Ships) Act 1983
70. The Australian Maritime Safety Authority may make Marine Orders under both Acts.
This whole Schedule has the effect of replacing occurrences of 'orders' with 'Marine
Orders' in both Acts to be consistent with the mention of 'Marine Orders' in the
Navigation Act 2012 and Marine Safety (Domestic Commercial Vessel) National Law. A
new definition is added for 'Marine Order' in both Acts with consequential minor text
changes to accommodate the new reference to 'Marine Orders'.
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