Maritime Legislation Amendment Bill 2022 - Commentary on Ministerial Responses [2022] AUSStaCSBSD 111 (23 November 2022)

• Maritime Legislation Amendment Bill 2022
• Reversal of the evidential burden of proof
• Strict liability offence35
• Reversal of the evidential burden of proof
• Strict liability offence

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Maritime Legislation Amendment Bill 2022

Purpose	This bill seeks to amend the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 and the Protection of the Sea (Harmful Anti-fouling Systems) Act 2006 to: • introduce controls for discharges of residues of noxious liquid substances in northern European waters; • ban the use of heavy fuel oil by ships in Arctic waters (a similar ban is already in place in the Antarctic); and • extend controls on ship harmful anti-fouling systems to include the chemical biocide, cybutryne.
Portfolio	Infrastructure, Transport, Regional Development, Communications and the Arts
Introduced	Senate on 28 September 2022
Bill status	Before the Senate

Reversal of the evidential burden of proof
Strict liability offence^[35]

2.77 The bill seeks to establish several defences which reverse the evidential burden of proof. These defences are set out under item 10 of Schedule 1 and item 2 of Schedule 2 to the bill. Proposed subsection 10(5A) of the bill seeks to insert a new offence-specific defence to the effect that the offence of discharging certain liquids from a ship under subsection 21(1B) does not apply if the discharge of the liquid is in accordance with procedures in the Procedures and Arrangements Manual and the tank is washed in accordance with a specified procedure.

2.78 In addition, proposed section 10A of the bill prohibits the carriage of heavy grade oil (HGO) by Australian ships in the Antarctic Area. Section 10AA of the bill would extend the prohibition to the carriage of heavy grade oil by Australian ships in Arctic waters. Proposed subsections 10AA(4) and 10AA(5) set out exceptions to the offence, including in certain emergency and safety circumstances.

2.79 In Scrutiny Digest 6 of 2022 the committee requested the minister's detailed justification as to the appropriateness of including the specified matters set out in proposed subsections 10(5A), 10AA(4) and 10AA(5) as an offence-specific defence.^[36]

Minister's response^[37]

Reversal of the evidential burden of proof

2.80 The committee notes the minister's advice that Australian regulators face a significant challenge in monitoring and surveilling the actions of Australian flagged ships at sea, particularly beyond Australian waters and in distant seas such as the Arctic Ocean. The minister advised that the entire regulatory regime relies in large part on the information and evidence logged by ship operators to demonstrate their compliance with international regulations. The minister advised that for example, for a ship operator to demonstrate that their discharge of a persistent floater category Y residue was not an offence, they would show their waste records in their MARPOL record book, which would have an entry certified by an authorised officer that the emptying and washing of the tank was conducted in accordance with MARPOL regulations. The minister advised that receipts for waste disposal which ship operators obtain from port operators when they use waste disposal reception facilities are also kept by ship operators to verify the information in their logbook.

2.81 The minister advised that if a ship experiences an emergency situation such as that excepted under proposed 10AA(4), the information that proves this claim includes the data and entries recorded in the ship's logbook at that time.

2.82 The minister advised that it would be significantly more costly for regulators to pursue this information and bear the burden of proof that a discharge was not in accordance with international law, than for a ship operator to demonstrate their compliance with international law.

Strict liability offence

2.83 The minister advised that the strict liability offence at proposed subsection 10AA(2) is commensurate and consistent with the existing offences and their penalties in the Protection of the Sea (Prevention of Pollution by Seas) Act 1983.

2.84 The minister further advised that the proposed penalty of 500 penalty units for the strict liability offence of carriage of heavy grade oil by Australian ships in the Arctic is proportionate to the seriousness of the degree of harm that the offence may cause to the sensitive marine environment and is considered necessary to provide a sufficient deterrence to avoid future harm.

Committee comment

2.85 The committee thanks the minister for this response.

2.86 While noting the minister's advice, it appears that some of the information included in proposed subsection 10(5A) and 10AA(4) does not appear to be peculiarly within the knowledge of the defendant. For example, it appears that whether an authorised officer has certified that the emptying and washing of the tank was conducted in accordance with MARPOL regulations would be matters that are ascertainable by the prosecution.

2.87 However, the committee acknowledges the minister's advice that it may be costly for the prosecution to ascertain these matters, particularly beyond Australian waters and in distant seas such as the Arctic Ocean.

2.88 In relation to the inclusion of strict liability within the offence, the committee acknowledges the minister's advice that the intention of the offence is to provide a sufficient deterrence to avoid serious future harm to sensitive marine environments. However, the committee remains concerned given the significance of the penalty. In addition, the committee notes that consistency with existing legislation is not a valid justification for imposing penalties that significantly exceed the recommended threshold of 60 penalty units for an individual or 300 penalty units for a body corporate.

2.89 The committee requests that an addendum to the explanatory memorandum containing the key information provided by the minister be tabled in the Parliament as soon as practicable, noting the importance of these explanatory materials as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.90 In light of the detailed information provided in relation to the new offence-specific defence the committee makes no further comment on this matter.

2.91 In relation to the inclusion of a strict liability offence which imposes penalties that significantly exceed the recommended threshold, the committee draws its scrutiny concerns to the attention of senators and leaves this matter to the Senate as a whole.

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[35] Schedule 1, item 10, proposed subsection 21(5); Schedule 2, item 2, proposed subsection 10AA(1). The committee draws senators' attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).

[36] Senate Scrutiny of Bills Committee, Scrutiny Digest 6 of 2022, pp. 12–15.

[37] The minister responded to the committee's comments in a letter dated 28 November 2022. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 7 of 2022 available at: www.aph.gov.au/senate_scrutiny_digest.