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MARITIME LEGISLATION AMENDMENT (PREVENTION OF AIR POLLUTION FROM SHIPS) BILL 2006
Bills Digest no. 83 2006–07
Maritime Legislation Amendment (Prevention of Air Pollution from
Ships) Bill 2006
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Maritime
Legislation Amendment (Prevention of Air Pollution from Ships) Bill
2006
Date introduced: 6 December 2006
House: House of Representatives
Portfolio: Transport and
Regional Services
Commencement: Sections
1 to 3 commence on Royal Assent. Schedule 1, dealing with Annexe VI
of MARPOL, commences on proclamation, with the proviso that this must
not be before Annexe VI enters into force in Australia.
Schedule 2 mostly commences the day after Royal Assent.
The main purpose of the Bill is to
amend Commonwealth maritime pollution legislation to enable ratification
of Annex VI of the International Convention for the Prevention of Pollution
from Ships (MARPOL).
Australia
is a Party to the International Convention for the Prevention of Pollution
from Ships 1973/78, commonly known as the MARPOL Convention. The origins
of MARPOL largely lie in the international reaction to the grounding
of the Torrey Canyon
oil tanker in the English Channel the late 1960s.
That accident resulted in the spillage of 120,000 tons of crude oil
into the sea, causing massive environmental damage. MARPOL was developed
by the International Maritime Organisation (IMO), of which Australia
is a founding member.
MARPOL includes 6 technical annexes, each dealing with
a different form of marine pollution. The Maritime Legislation Amendment
(Prevention of Pollution from Ships) Bill 2006 (the Bill) relates to
Annex VI, which deals with air pollution. Annexe VI, which was introduced
through a 1997 Protocol to MARPOL, covers issues such as sulphur and
nitrous oxide emissions from diesel engines, the release of volatile
organic compounds (VOCs) from oil tanker cargoes, the use of ozone depleting
substances (ODS) and standards for, and the operation of, onboard incinerators.
In early 2004, Annex VI was reviewed by the Joint Standing
Committee on Treaties (JSCOT). In its report,
it recommended that Australia
ratify Annex VI. The report also stated:
The Committee understands that the shipping industry will be the
main body affected by the proposed legislation and that there has
been extensive consultation at all stages in the development of the
regulations contained in Annex VI. An example of this communication
is AMSA Marine Notices advising ship owners on the current position
regarding Annex VI, the technical requirements and retrospective application.
4.33 The Committee understands that [the Commonwealth department
of Environment and Heritage] was also consulted in relation to the
Annex to ensure the provisions for [ozone depleting substances] were
consistent with existing Australian regulations, and that extensive
consultations with [the Department of Industry, Tourism and Resources]
resulted in agreement on how to implement provisions for offshore
fixed and floating drilling rigs and other platforms.
4.34 The Committee notes that ‘industry firmly supports
early international entry into force of the 1997 Protocol’. The Committee
understands that no objections or concerns were raised by the Australian
Transport Council (ATC), comprising Government and State and Territory
Transport Ministers, when consultations took place in November 2002.
The ATC agreed that the implementing legislation should be expressed
to apply to all Australian jurisdictions, with a savings clause to preserve
the operation of any existing or future complementary State/Territory
legislation.
According to the National
Interest Analysis issued by the Commonwealth for the purposes of
the JSCOT review of Annexe VI, key obligations of the 1997 Protocol
include:
-
Regular surveys and inspections of ships to verify
compliance with the requirements of the 1997 Protocol. For ships of
400 gross tonnage or more, the surveys are specified in the 1997 Protocol;
for ships below this size, the survey and inspection regime is left
to the flag State to determine (Regulation 4).
-
The issue of an International Air Pollution Prevention
Certificate, after inspection, to any ship of 400 gross tonnage or
more engaged in voyages to ports or offshore terminals under the jurisdiction
of other Parties (Regulation 6).
-
Marine diesel engines (other than emergency engines)
with a power output of more than 130kW installed on ships built on
or after 1 January 2000 and existing engines undergoing major conversion
(which includes installing new engines in existing ships) must comply
with specified emission standards for NOx using the test procedure
and test methods set out in the NOx Technical Code. These NOx requirements
will apply retrospectively from 1 January 2000 once the Annex enters
into force (Regulation 13).
-
Fuel oil supplied to ships must have not more than
4.5% sulphur content except that in the case of ships operating in
designated sulphur emission control areas a limit of 1.5% is specified
(Regulation 14).
-
Shipboard incinerators installed on or after 1 January 2000 must meet specified performance
standards and must be operated by trained personnel. The incineration
of certain substances, such as oil cargo residues and garbage containing
more than traces of heavy metals, is prohibited (Regulation 16).
-
Fuel oil supplied to ships must meet minimum quality
standards and the sulphur content documented by the supplier by means
of a bunker delivery note. This document is to be kept on board a
ship and retained for three years after delivery of the oil (Regulation
18).
According to the evidence given to the JSCOT review
of Annexe VI, it was expected that legislation to implement Annex VI
would be introduced sometime in 2004. No reason is provided in the Second
Reading Speech or Explanatory Memorandum for the Bill as to the failure
to introduce legislation in order to enable ratification by the time
Annex VI came into force internationally in May 2005.
In view of this, it is worth noting the comment of the National Interest
Analysis:
If Australia
does not become a Party to the 1997 Protocol, there is a risk that the
level of environmental protection in Australia
will fall short of internationally adopted standards, and that may encourage
more polluting ships to operate in Australian waters as other countries
tighten their regulation of emissions.(if any)
The Explanatory Memorandum states that there will be
some extra administrative impacts both on the Australian Maritime Safety
Authority (AMSA) and fuel oil suppliers, but these are likely modest
and have minimal financial impact.
Schedule 1 – Prevention of air pollution from ships
Item 3 inserts a new Division 12D into
Part IV of the Navigation Act 1912. This deals with the air pollution
prevention certification and related survey requirements that apply
to ships.
New Division 12D will not apply to ships that
are subject to State or Territory laws that give effect to the relevant
parts of Annexe VI.
Australian ships of 400 gross tonnes or more must have
an air pollution prevention certificate issued by AMSA or a survey authority
– failure to do so is an offence.(1) The maximum penalty
is 100 penalty units ($11 000) for an individual and 500 penalty units
($55 000) for a corporation. As is quite usual with Commonwealth maritime
pollution legislation, the offences are ones of strict liability and
both the ships’ master and owner may be liable to be prosecuted. The
Explanatory Memorandum comments that the offences:
impose collective responsibility on both the shipowner and the master
of the ship because of the shared responsibility of the shipowner
and the master of the ship, and the difficulty in ascertaining who
is most directly responsible for the offence. While the master of
the ship has immediate responsibility for the ship, he or she is subject
to the direction of the shipowner.
The high penalties have been developed to discourage shipping operators
from attempting to avoid compliance with the proposed Act as a cost
saving measure. The maximum penalty is proportionate to discourage
non-compliance and takes into consideration the levels of cost savings
that such shipping operators may achieve and the perceived likelihood
of non-compliant ships being identified and prosecuted. These provisions
are consistent with other penalty provisions in similar maritime legislation.
It is appropriate to use strict liability for the relevant
offences because the defendant is the best placed person to provide
evidence on whether any culpability should be attached to the physical
offence. The elements of the offence that deal with the intention of
the master of the ship or shipowner and whether or not the act was committed
as a result of intention or negligence or was the result of an honest
and reasonable mistake will be specifically and exclusively within the
defendant’s knowledge, making it easier and less costly for the defendant
to disprove an unjust charge than for the prosecutor to make out the
fault elements of a just charge. In these circumstances it would be
difficult and costly for the prosecutor to attempt to prove the fault
elements for many of the maritime offences in this Bill, and so the
effectiveness of the regulatory regime established by the Bill may be
undermined if the offences were not offences of strict liability.(2)
If AMSA considers a foreign ship is not constructed
in accordance with Annex VI(3), it may give written directions
to the master or owner that it not to enter any port, or use any off-shore
terminal, or to enter or use such facilities subject to specified conditions:
new section 267ZZF. AMSA may only give a direction to the extent
‘that it appears to it necessary or expedient to protect the environment’.
Failure to obey a properly served direction is an offence, for which
both the master and owner are liable. The maximum penalty is 100 penalty
units for an individual and 500 for a corporation for the strict liability
offence. However, if the owner or master is reckless as to whether there
is failure to comply with the offence, the maximum penalty climbs to
500 penalty units ($55 000) for an individual and 2500 ($275 000) penalty
units for a corporation.
Item 7 inserts a new Part IIID into the
Protection of the Sea (Prevention of Pollution from Ships) Act 1983.
The new division deals with fuel oil quality requirements.
New section 26FEG prohibits the use of fuel
oil on a ship that has a sulphur content of no more than 4.5 per cent.
Contravention of this requirement within Australian waters or on an
Australian ship beyond the Exclusive Economic Zone (EEZ) is an offence.
Again there is a strict liability offence and an ordinary (ie fault-based)
offence – the latter requires a person to be reckless or negligent in
their conduct which results in high-sulphur fuel being used on board
the ship. In such cases, the maximum penalty is 2,000 penalty units
($220 000) for an individual and 10,000 units ($1 100 000) for a corporation.
Annexe VI provides that special rules apply in sulphur
oxide [SOx] emission control areas. In these areas, the sulphur content
of fuel oil used onboard ships must not exceed 1.5 per cent. Alternatively,
ships must fit an exhaust gas cleaning system or use any other technological
method to limit SOx emissions. To date, only the Baltic sea
and North sea areas have been designated as SOx
Emission Control Areas. New section 26FEH creates offences for
Australian ships breaching SOx emission control area rules. There are
ordinary and strict liability offences as is the case for new section
26FEG, and the penalties are the same also. There are the usual
defences for emergencies or unavoidable damage to the ship or its equipment:
new subsections 26FEH(6)-(8). In cases where new SOx Emission
Control Areas are declared under Annexe VI procedures, the relevant
offence provisions created by the Bill do not apply until 12 months
after the declaration of the new area comes into force: new section
26FEK.
New sections 26FEL-26 FER (Division 3 of new
Part IIID) deal with fuel oil quality requirements.
Persons supplying fuel oil to ships within Australian
waters (including ports and the like) must be registered on a register
to be created by AMSA: contravention of this carries a penalty of 200
($22 000) penalty units for a person or 1000 ($110 000) units for a
corporation: new section 26FEL.
New section 26FEN prohibits the use of fuel
oil on a ship that does not meet Annexe VI standards. Contravention
of this requirement within Australian waters, or on an Australian ship
beyond the EEZ renders both the ship master and owner to a strict liability
offence with a maximum penalty of 500 penalty units ($55 000) for an
individual and 2500 ($275 000) penalty units for a corporation.
Persons delivering fuel oil to ships of at least 400
gross tonnes within Australian waters, must also provide the ships’
master with a ‘bunker delivery note’ and oil sample in accordance with
the regulations. Failure to do either is a strict liability offence
with a maximum penalty of 200 penalty units ($22 000) for an individual
and 1000 ($110 000) penalty units for a corporation: new section
26FEO. It appears that bunker delivery notes will contain a declaration
that the fuel meets Annexe VI standards. In such cases, if the fuel
does not meet the standard, the supplier commits a strict liability
offence with a maximum penalty of 500 penalty units ($55 000) for an
individual and 2500 ($275 000) penalty units for a corporation: new
section 26FEP.
New sections 26FEQ and 26FER contain
provisions requiring the retention of bunker delivery notes and fuel
oil samples for certain periods. Contravention of these are strict liability
offences.
Items 1-4 substitute references to ‘pilot’ with
‘licensed pilot’ in the provisions of the Act that deal with compulsory
pilotage. Existing Division 1 of Part IIIA already deal with the licensing
of pilots. Items 1-4 appear to be aimed at removing any ambiguities
that compulsory pilotage must done by licensed pilots.
Items 5-8 makes changes such that the provisions
of the Act(4) dealing with MARPOL Annexe I (oil pollution)
will not apply to ships covered by State or Territory law giving effect
to Annex I.
These amendments seem to be mostly minor or technical
in nature.
The provisions of the Bill include the creation of
strict liability offences with shipowners and ships’ masters liable
for significant financial penalties for these offences. However, these
are in line with recent Acts that have implemented international maritime
anti-pollution agreements – see for example the Protection of the
Sea (Harmful Anti-fouling Systems) Act 2006.
As noted in the background section of this Digest,
the evidence before the JSCOT inquiry into the proposed ratification
of Annex VI suggested that stakeholders supported ratification. This
said, neither the Explanatory Memorandum nor second reading speech for
the Bill contains any details about whether relevant stakeholders have
been consulted on the specifics of the Bill, particularly the offence
provisions.
- Although new subsection 267ZZC(3) notes that
in some cases, an offence will only occur if the ship puts to sea
after certain events or dates.
- Explanatory Memorandum, p. 3.
- The direction is still valid even if AMSA is wrong
in its opinion: new subsection 267ZZF(4).
- Division 12 of Part VI
Angus Martyn
9 February 2007
Law and Bills Digest Section
Parliamentary Library
This paper has been prepared to support the work of the Australian Parliament
using information available at the time of production. The views expressed
do not reflect an official position of the Parliamentary Library, nor
do they constitute professional legal opinion.
Staff are available to discuss the paper's contents with
Senators and Members and their staff but not with members of the public.
ISSN 1328-8091
© Commonwealth of Australia 2007
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Published by the Parliamentary Library, 2007.
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