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2010-2011
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
PROTECTION OF THE SEA (PREVENTION OF POLLUTION FROM SHIPS)
AMENDMENT (OILS IN THE ANTARCTIC AREA) BILL 2011
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Infrastructure and Transport
the Honourable Anthony Albanese, MP)
PROTECTION OF THE SEA (PREVENTION OF POLLUTION FROM SHIPS)
AMENDMENT (OILS IN THE ANTARCTIC AREA) BILL 2011
OUTLINE
The purpose of the Protection of the Sea (Prevention of Pollution from Ships) Amendment
(Oils in the Antarctic Area) Bill 2011 is to amend the Protection of the Sea (Prevention of
Pollution from Ships) Act 1983 (PPS Act) to implement amendments to Annex I of the
International Convention for the Prevention of Pollution from Ships (MARPOL) to enforce
special requirements for the use or carriage of heavy grade oils (HGOs) in the Antarctic Area.
The Antarctic Area is the sea area south of 60° south latitude.
The Marine Environment Protection Committee of the International Maritime Organization
adopted the amendments to Annex I of MARPOL on 26 March 2010. The intention of the
amendments is to ban the carriage in bulk as cargo, or use and carriage as fuel, of HGOs on
ships travelling in the Antarctic Area. The ban will not apply to vessels engaged in securing
the safety of ships or saving life at sea.
FINANCIAL IMPACT STATEMENT
There is no financial impact arising from this Bill.
Abbreviations
AAT Australian Antarctic Territory
HGO Heavy grade oil
MARPOL: International Convention for the Prevention of Pollution from Ships
PPS Act: Protection of the Sea (Prevention of Pollution from Ships) Act 1983
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PROTECTION OF THE SEA (PREVENTION OF POLLUTION FROM SHIPS)
AMENDMENT (OILS IN THE ANTARCTIC AREA) BILL 2011
NOTES ON CLAUSES
Clause 1: Short Title
Clause 1 is a formal provision specifying the title of the proposed Act.
Clause 2: Commencement
Clause 2 provides that the Bill will commence on the day after the proposed Act receives
Royal Assent.
Clause 3: Schedule(s)
Clause 3 provides that the Schedule to the Bill will amend the PPS Act in accordance with the
provisions set out in the Schedule.
Schedule 1 - Amendments
Item 1 inserts a new definition of engage in conduct into subsection 3(1) of the PPS Act. That
term will have the same meaning as in the Criminal Code. Subsection 4.1(2) of the Criminal
Code defines engage in conduct to mean:
(a) do an act; or
(b) omit to perform an act.
Item 2 inserts a new definition of heavy grade oil into subsection 3(1) of the PPS Act. This is
in the same terms as the definition in Annex I of MARPOL.
Items 3 and 4 repeal subsections 9(1A) and 10(2) (which define the term engage in conduct
for purposes of sections 9 and 10, respectively) consequential upon the insertion by item 1 of a
definition of engage in conduct into section 3, the general interpretation section of the
PPS Act.
Item 5 inserts new sections 10A and 10B after section 10 of the PPS Act.
New section 10A prohibits the carriage in bulk as cargo and the use or carriage as fuel of
HGOs on Australian ships in the Antarctic Area.
If HGOs are carried or used on an Australia ship in the Antarctic Area contrary to the
prohibition, subsection 10A(1) provides that the master and owner will each be guilty of an
ordinary offence with a maximum penalty of 2,000 penalty units and subsection 10A(2)
provides that the master and owner will each be guilty of a strict liability offence with a
maximum penalty of 500 penalty units.
In accordance with subsection 10A(4), there will be no offence if HGOs are being carried or
used as fuel on an Australian ship for the purpose of securing the safety of a ship or saving life
at sea.
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The offences are directed at both the owner and the master of a ship. It is well established in
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 Antarctic Area. While the master has immediate responsibility
for the ship, he or she is subject to the direction of the shipowner. Shared liability is consistent
with offence provisions in other parts of the PPS Act and in other maritime legislation such as
the Navigation Act 1912.
The penalty of 2,000 penalty units for a breach of subsection 10A(1) is set at a sufficiently
high level to discourage ships carrying heavy grade oils from entering the Antarctic Area and
to therefore avoid the risk of a spill of HGOs with potential major environmental damage.
The maximum penalty of 2,000 penalty units for the ordinary offence is consistent with
penalties for similar offences in the PPS Act including subsection 9(1) which applies to the
reckless or negligent discharge of oil from a ship and subsection 10(1) which applies to the
reckless or negligent discharge of oil residues from a ship.
An offence against subsection 10A(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 10A(2) as the master and owner of a ship would be fully aware if the ship is
carrying HGOs in bulk as cargo or as fuel and strict liability will discourage careless
non-compliance with the ban on the carriage of HGOs. 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 other offences of this nature. A defence of honest
and reasonable mistake of fact will be available in relation to this offence.
The maximum penalty of 500 penalty units for the strict liability offence is consistent with
penalties for similar strict liability offences in the PPS Act including subsection 9(1B) which
applies to the discharge of oil from a ship and subsection 10(3) which applies to the discharge
of oil residues from a ship.
As indicated in the Note following subsection 10A(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. A defendant would easily be able to demonstrate that HGOs
were carried or used as fuel on a ship for the purpose of securing the safety of a ship or saving
life at sea.
In accordance with subsection 10A(5), there is no requirement to clean or flush residues of
HGOs from a tank or pipeline of a ship. This reflects the fact that small amounts of HGOs on
board a ship would not pose a significant environmental risk.
Subsection 10A(5) applies in relation to HGOs that were carried on board a ship at any time,
both before and after the commencement of new section 10A. While this provision will have a
retrospective effect, no person will be disadvantaged. It clarifies the situation in relation to
any residues of HGOs that may be in the tanks or pipelines of a ship and will be beneficial for
the owner or master of the ship as they will not be required to remove residues, irrespective of
when HGOs responsible for the residues may have been carried on board the ship or been used
as fuel.
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As indicated in the Note following subsection 10A(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 would easily be able to demonstrate that HGOs
were not being carried in bulk or used as fuel and that the only HGOs on board the ship were
residues.
New section 10B prohibits the carriage in bulk as cargo and the use or carriage as fuel of
HGOs on foreign ships in the Australian Antarctic Territory (AAT).
If HGOs are carried or used on a foreign ship in the AAT contrary to the prohibition,
subsection 10B(1) provides that the master and owner will each be guilty of an ordinary
offence with a maximum penalty of 2,000 penalty units and subsection 10B(2) provides that
the master and owner will each be guilty of a strict liability offence with a maximum penalty
of 500 penalty units.
In accordance with subsection 10B(4), there will be no offence if the HGOs are being carried
or used as fuel for the purpose of securing the safety of a ship or saving life at sea.
The offences are directed at both the owner and the master of a ship. It is well established in
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 Antarctic Area (which includes the AAT). While the master
has immediate responsibility for the ship, he or she is subject to the direction of the shipowner.
Shared liability is consistent with offence provisions in other parts of the PPS Act and in other
maritime legislation such as the Navigation Act 1912.
The penalty of 2,000 penalty units for a breach of subsection 10B(1) is set at a sufficiently
high level to discourage ships carrying HGOs from entering the AAT and to therefore avoid
the risk of a spill of HGOs with potential major environmental damage.
The maximum penalty of 2,000 penalty units for the ordinary offence is consistent with
penalties for similar offences in the PPS Act including subsection 9(1) which applies to the
reckless or negligent discharge of oil from a ship and subsection 10(1) which applies to the
reckless or negligent discharge of oil residues from a ship.
An offence against subsection 10B(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 10B(2) as the master and owner of a ship would be fully aware if the ship is
carrying HGOs in bulk as cargo or as fuel and strict liability will discourage careless
non-compliance with the ban on the carriage of HGOs. 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 other offences of this nature. A defence of honest
and reasonable mistake of fact will be available in relation to this offence.
The maximum penalty of 500 penalty units for the strict liability offence is consistent with
penalties for similar strict liability offences in the PPS Act including subsection 9(1B) which
applies to the discharge of oil from a ship and subsection 10(3) which applies to the discharge
of oil residues from a ship.
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As indicated in the Note following subsection 10B(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. A defendant would easily be able to demonstrate that HGOs
were carried or used as fuel on a ship for the purpose of securing the safety of a ship or saving
life at sea.
In accordance with subsection 10B(5), there is no requirement to clean or flush residues of
HGOs from a tank or pipeline of a ship. This reflects the fact that small amounts of HGOs on
board a ship would not pose a significant environmental risk.
Subsection 10B(5) applies in relation to HGOs that were carried on board a ship at any time,
both before and after the commencement of new section 10B. While this provision will have a
retrospective effect, no person will be disadvantaged. It clarifies the situation in relation to
any residues of HGOs that may be in the tanks or pipelines of a ship and will be beneficial as
the owner or master of a ship will not be required to remove residues, irrespective of when
HGOs responsible for the residues may have been carried on board the ship or been used as
fuel.
As indicated in the Note following subsection 10B(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 would easily be able to demonstrate that HGOs
were not being carried in bulk or used as fuel and that the only HGOs on board the ship were
residues.
Item 6 repeals subsections 17(4), 21(1A), 26AB(2), 26BC(2), 26D(2) and 26F(2). Those
subsections define the term engage in conduct for purposes of the sections of which they are
a part. The repeals are consequential upon the insertion by item 1 of a definition of engage in
conduct into section 3, the general interpretation section of the PPS Act.
Item 7 repeals the definition of engage in conduct in subsection 26FEF(1) consequential upon
the insertion by item 1 of a definition of that term into section 3, the general interpretation
section of the PPS Act.
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