Federal Register of Legislation - Australian Government

Primary content

A Bill for an Act to amend the Protection of the Sea (Prevention of Pollution from Ships) Act 1983, and for related purposes
Administered by: Infrastructure, Transport, Cities and Regional Development
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 18 Sep 2019
Introduced HR 18 Sep 2019

2019

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

Protection of the Sea (Prevention of Pollution from Ships) Amendment (Air Pollution) Bill 2019

 

 

 

 

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Deputy Prime Minister and Minister for Infrastructure, Transport and Regional Development, the Hon Michael McCormack MP)

 


 

PROTECTION OF THE SEA (PREVENTION OF POLLUTION FROM SHIPS) AMENDMENT (AIR POLLUTION) BILL 2019

OUTLINE

The primary purpose of the Bill is to amend the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (POTS Act) to implement Australia’s international obligations in relation to sulphur emissions from ships under Annex VI of the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto (MARPOL).

From 1 January 2020, a global cap of 0.50 per cent mass/mass on the sulphur content of fuel oil used on board ships will come into effect under Annex VI of MARPOL.  The sulphur cap aims to further reduce the negative impacts of sulphur oxide emissions from ships on human health and the environment.  The POTS Act was amended in 2010 to prescribe the new sulphur limit in marine orders.  However, further amendments are required effective from 1 January 2020 to allow for equivalent compliance methods permitted by Annex VI, such as exhaust gas cleaning systems, which can achieve at least the same amount of sulphur emissions reduction.  Part 1 of Schedule 1 of the Bill provides for alternative compliance arrangements on the use of high sulphur fuel oil on ships. 

On 26 October 2018, the Marine Environment Protection Committee of the International Maritime Organization (IMO) adopted a resolution to amend Annex VI of MARPOL to further prohibit the carriage of high sulphur fuel oil (above 0.50 per cent mass/mass sulphur content) for combustion on board a ship, excluding cargo, effective from 1 March 2020 (carriage ban).  The carriage ban aims to prevent incidences of ships switching to non‑compliant fuel oil on the high seas beyond a country’s jurisdictional boundaries, while allowing for carriage as cargo, for example, in oil tankers.  Part 2 of Schedule 1 of the Bill implements the carriage ban.  The amendments also support reporting obligations should a ship not be able to obtain compliant fuel oil.

The Bill also includes minor amendments to exempt naval and foreign government vessels in order to better align the application of the POTS Act with MARPOL.  The Bill also clarifies the obligations of “fuel oil supplier” and “local supplier of fuel oil” in the POTS Act to provide greater certainty to the shipping and fuel supply industries.

Financial impact statement

There is no financial impact to the Commonwealth arising from this Bill.


 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

PROTECTION OF THE SEA (PREVENTION OF POLLUTION FROM SHIPS) AMENDMENT (AIR POLLUTION) BILL 2019

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 Bill

The primary purpose of the Bill is to amend the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (POTS Act) to implement Australia’s international obligations in relation to sulphur emissions from ships under Annex VI of the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto (MARPOL).

From 1 January 2020, a global cap of 0.50 per cent mass/mass on the sulphur content of fuel oil used on board ships will come into effect under Annex VI of MARPOL.  The sulphur cap aims to further reduce the long term negative impacts of sulphur oxide emissions from ships on human health and the environment.  The POTS Act was amended in 2010 to prescribe the new sulphur limit in marine orders.  However, further amendments are required effective from 1 January 2020 to allow for equivalent compliance methods permitted by MARPOL, such as exhaust gas cleaning systems, which can achieve at least the same amount of sulphur emissions reduction.  Part 1 of Schedule 1 of the Bill provides for alternative compliance arrangements on the use of high sulphur fuel oil on ships.

On 26 October 2018, the Marine Environment Protection Committee of the International Maritime Organization (IMO) adopted a resolution to amend Annex VI of MARPOL to further prohibit the carriage of high sulphur fuel oil (above 0.50 per cent mass/mass sulphur content) for combustion on board a ship, excluding cargo, effective from 1 March 2020 (carriage ban).  The carriage ban aims to prevent incidences of ships switching to non‑compliant fuel oil on the high seas beyond a country’s jurisdictional boundaries, while allowing for carriage as cargo, for example, in oil tankers.  Part 2 of Schedule 1 of the Bill implements the carriage ban.  The amendments also support reporting obligations should a ship not be able to obtain compliant fuel oil.

The Bill also includes minor amendments to exempt naval and foreign government vessels in order to better align the application of the POTS Act with MARPOL.  The Bill also clarifies the obligations of “fuel oil supplier” and “local supplier of fuel oil” in the POTS Act to provide greater certainty to the shipping and fuel supply industries.

Human rights implications

The Bill does not unacceptably limit any human rights.

The key provisions of the Bill are confined to providing amendments to existing legislation to ensure that Australia implements its international obligations on maritime environmental matters under the MARPOL Convention, and making administrative amendments to effectively implement those obligations domestically.

The Bill amends provisions that provide defences to an existing strict liability offence that carries a reverse burden of proof with regards to the use of fuel oil above the prescribed sulphur limit on a ship.  Specifically, the Bill extends the strict liability offence and corresponding defences to the carriage of high sulphur fuel oil on a ship for use as fuel, excluding cargo.  A defendant who wishes to rely on the exception provisions bears the burden to prove that the high sulphur fuel oil carried on board a ship is not for use as fuel for combustion.

The new elements to the existing strict liability offence provide greater assurance that shipping activities do not result in negative long term impacts to the marine environment and human health, in line with Australia’s international obligations under MARPOL.

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 pollution to the atmosphere from ships.

Deputy Prime Minister and Minister for Infrastructure, Transport and Regional Development, the Hon Michael McCormack MP

 


 

NOTES ON CLAUSES

Clause 1: Short title

1.    This is a formal provision that specifies that the Act may be cited as the Protection of the Sea (Prevention of Pollution from Ships) Amendment (Air Pollution) Act 2019.

Clause 2: Commencement

2.    This clause provides when each provision of the Act will commence. Clauses 1 to 3 of the Act are to commence on the day this Act receives Royal Assent.  Schedule 1 Part 1, which relates to Annex VI approved equivalents commences the later of 1 January 2020 and the day this Act receives Royal Assent.  Schedule 1 Part 2, which relates to the carriage ban on high sulphur fuel oil, commences the later of 1 March 2020 or the day this Act receives Royal Assent. Any other sections, commence on Royal Assent.

Clause 3: Schedules

3.    This clause provides that the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 will be amended as specified and set out in the Schedules of Protection of the Sea (Prevention of Pollution from Ships) Amendment (Air Pollution) Act 2019.

Schedule 1 –Sulphur content of fuel oil

Part 1—Annex VI approved equivalents

Protection of the Sea (Prevention of Pollution from Ships) Act 1983

Item 1: Subsection 3(1)

4.    This item assists readers to find the meaning of Annex VI approved equivalent.

5.    This item assists readers to find the meaning of prescribed officer.

Item 2: Subsection 5(2)

6.    This item is a consequential amendment after splitting section 26FEG into two sections.

Item 3: Section 26FEG (heading)

7.    This item shortens the heading, to ensure consistency with other headings.

Item 4: Paragraph 26FEG(1)(b)

8.    This item clarifies in the provision that the fuel oil is intended to be used as fuel on board a ship.

Item 5: Paragraph 26FEG(2)(a)

9.    This item provides for the same prescribed limit of sulphur content in fuel oil for both the ordinary and strict liability offences.


 

Item 6: Subsections 26FEG(5) and (6)

10.    This item removes the subsections, in the Protection of the Sea (Prevention of Pollution from Ships) Act 1983, which have been included in a new amendment subsection 26FEKA(5) to allow a streamlined and more manageable numbering system.

Item 7: After section 26FEG

11.    This item introduces a new section, 26FEGA Using fuel oil – exceptions, listing defences to the offence of using fuel oil with a sulphur content more than the prescribed limit.

12.    Subsection (1) Exception for ships with Annex VI approved equivalents inserts a new defence to the ordinary and strict liability offences for using fuel oil with a sulphur content greater than the prescribed limit.

13.    Annex VI approved equivalents, including exhaust gas cleaning systems (EGCSs) and other technologies, are defined in section 26FEKA.

14.    There is a similar provision in section 26FEH relating to Australian flagged ships operating in an Emission Control Area designated by the International Maritime Organization (IMO).  However, in section 26FEH(4)(b) operating Annex VI approved equivalents forms an element of the sulphur oxide (SOx) emission control conditions in Emission Control Areas.  In this item, the defence is applied to the offence with general application to all maritime areas outside the Emission Control Areas.

15.    Limits on the sulphur content of fuel oil, as specified in Regulation 14, Annex VI, MARPOL, are prescribed through Marine Order 97.  The exemption permits the use of high sulphur fuel when operating Annex VI approved equivalents, including approved EGCS or other technologies.  Annex VI approved equivalents are required to be at least as effective in terms of sulphur emissions reduction as the prescribed level, and the resultant waste is required to be disposed according to regulations.  These regulations are provided through guidelines produced by the IMO, which are given effect through Marine Order 97.

16.    As an exemption, the evidential burden is on the defendant, who must point to evidence that the EGCS is in use on the ship.  It is reasonable that the defendant would easily be able to demonstrate an approved EGCS is operating according to the regulations on the ship.

17.    Subsection (2) is included in Part 2 of Schedule 1, which will further amend Part 1 of Schedule 1 when the carriage ban provisions come in force.

18.    Subsections (3) and (4) allow for defences against the strict liability offence 26FEG(2) when using high sulphur fuel oil in the event of an emergency relating to safety at sea (3) or where unintended damage, relevant to the use of compliant fuel, has occurred (4).

19.    The strict liability offence, already in place, imposes collective responsibility on both the master and ship owner because of their shared responsibility and the difficulty of ascertaining who is most directly responsible.  

20.    Regulation 3, Annex VI, MARPOL provides for these general exceptions and exemptions.  Regulation 3.1.1 of Annex VI, MARPOL, replicated in subsection (3), removes the application of Annex VI to any non-compliant emission necessary for the purpose of securing the safety of the ship or a life at sea.  These defences apply to all ships in all maritime areas and replicate those in subsection 26FEH(6)(b), regulating Australian ships within SOx Emission Control Areas.

21.    Subsection (4) reflects Regulation 3.1.2 which removes the application of Annex VI when a non-compliant emission results from damage to a ship or its equipment ‒ provided that all reasonable precautions have been taken after the occurrence of the damage, or the discovery of the emission, for the purpose of preventing or minimising the emission.

22.    Subsection (5) outlines explicitly what does not constitute unintentional damage, as provided for in regulation 3.1.2.2, Annex VI, MARPOL.  Unintentional damage occurs, except when it is damage resulting from the owner or master acting either with intent to cause damage or recklessly and with knowledge that damage would probably result.

23.    Subsection (6) outlines explicitly that damage does not include wear or defects that result from normal operations or from improper maintenance.

24.    Subsection (7) – Exception for the unavailability of fuel oil with a sulphur content of not more than the prescribed limit has been moved from 26FEG(5) and (6).  The exception to the ordinary and strict liability offences applies where low sulphur fuel was not available when taking on fuel.  Notification and reporting of fuel oil non‑availability is undertaken according to regulation 18 of Annex VI, MARPOL, implemented through IMO 2019 Guidelines for consistent implementation of the 0.50% sulphur limit under MARPOL Annex VI, which includes the standard format for a fuel oil non-availability report (FONAR).

25.    The Note indicates a defendant bears an evidential burden in relation to the matters set out in that subsection.  It is reasonable that the defendant should have to present, or point to, evidence that suggests a reasonable possibility that any of the matters set out in section 26FEGA occurred.

26.    A defendant would have the unique ability to demonstrate the Annex VI approved equivalents, such as an EGCS or other technological method, were operated according to requirements prescribed in the regulations for subsection (1).  Similarly, a defendant would be able to validate use during an emergency as a result of ensuring safety or unintentional damage (3) ‒ (6), or in the absence of compliant fuel at their last point of refuelling.  

Item 8 Section 26FEH (at the end of the heading)

27.    This item clarifies in the heading that the section refers to offences.


 

Item 9: Paragraph 26FEH(1)(c) and (2)(c)

28.    This item directs the reader to where the “SOx emission control conditions” are described in subsection (4) as amended in the following item.

Item 10 Subsections 26FEH(4) to (9)

29.    This item removes the subsections relating to SOx emission control conditions – for Australian flagged ships in Emission Control Areas – and the exceptions for emergencies, unintentional damage and the unavailability of fuel oil with a sulphur content of not more than the prescribed limit.  A new subsection (4) outlines the SOx emission control conditions prescribed for fuel oil used as fuel, that is, the fuel oil used does not exceed the prescribed limits, or an Annex VI approved alternative equivalent (EGCS or other technologies as defined in section 26FEKA) is in operation according to the requirements specified in the regulations.  The exceptions currently in subsections 26FEH (6) to (9) have been moved from the SOx emission control conditions to the new subsection 26FEHA to provide a defence to the ordinary and strict liability offences for Australian ships operating within Emission Control Areas.

Item 11: After section 26FEH

30.    This section includes exceptions for emergencies (1) and unintended damage (2), a description of what unintentional damage does not include (3) and (4), and exceptions for the unavailability of fuel oil with a sulphur content of not more than the prescribed limit, replicating similar exceptions in 26FEGA.

Item 12: Subsection 26FEK(2)

31.    This item includes a new section 26FEHA after 26FEH.

Item 13: At the end of Division 2 of Part IIID

32.    Subsection (1) inserts section 26FEKA Annex VI approved equivalents, which provides their definition as provided for under Regulation 4 of Annex VI, MARPOL. These include an EGCS or other technological methods.

33.    A prescribed officer of the Authority approves Annex VI equivalents operating on Australian ships under the regulations provided for in subsection (2).  Annex VI equivalents operating on foreign ships are approved by the government of the country in which the ship is registered in accordance with Regulation 4 of Annex VI, MARPOL.  

34.    Subsection (2) provides for regulations to approve Annex VI equivalents.

35.    Subsection (3) of this item assists readers to understand that the approval is not a legislative instrument within the meaning of subsection 8(1) Legislative Act 2003.

Item 14: Transitional provision

36.    This item provides for transition of marine orders and approvals previously made under sections subsequently amended by this Act.


 

Part 2 – Fuel oil carried on board ships

Protection of the Sea (Prevention of Pollution from Ships) Act 1983

Item 15: Section 26FEG (heading)

37.    This item introduces the carriage of fuel oil on board a ship for use to the heading for the associated offences at the commencement date described in line 3 of the commencement information table in section 2.

Item 16: Paragraph 26FEG(1)(b)

38.    This item amends the paragraph to include an ordinary offence for the carriage or use of high sulphur fuel oil.

39.    On 26 October 2018, the IMO amended Regulation 14 of Annex VI, MARPOL through Resolution MEPC.305(73) which states: “the sulphur content of fuel oil used or carried for use on board a ship shall not exceed 0.50% m/m”.  The amendment prohibits the carriage of fuel oil above the prescribed limit for combustion purposes for propulsion or operation on board a ship, but excludes cargo.  The carriage ban aims to prevent ships switching to non-compliant fuel use on the high seas beyond Australia’s jurisdictional boundaries.

Item 17: Paragraph 26FEG(1)(c)

40.    This item links the recklessness or negligence to the ordinary offence of using or carrying fuel oil with a sulphur content that exceeds the prescribed limit.

Item 18: Paragraph 26FEG(1)(d)

41.    The item amends the leading statement to include the result of prohibited conduct and simplifies the numbering of subparagraphs.

Item 19: Paragraphs 26FEG(2)(a) and (b)

42.    This item includes the carriage of fuel that exceeds the prescribed sulphur content limits, for use as fuel, in the strict liability offence with wording similar to that for the ordinary offence and includes simplified numbering of subparagraphs.

43.    The strict liability offence, already in place, imposes collective responsibility on both the master and ship owner because of their shared responsibility and the difficulty of ascertaining who is most directly responsible.

Item 20: Subsection 26FEG(4)

44.    This item extends the presumptions.  For subparagraph (4), “fuel oil” is defined in Regulation 2, Annex VI, MARPOL and means “any fuel delivered to and intended for combustion purposes for propulsion or operation on board a ship, including gas, distillate and residual fuels”.  Fuel oil, is therefore presumed for use as fuel and not carried as cargo or ballast.  Note that ‘gas fuel’ is defined in 26FEF and is not considered fuel oil for certain provisions in the Protection of the Sea (Prevention of Pollution from Ships) Act 1983.


 

45.    Subparagraphs (4), (5) and (6) contain a Note indicating a defendant bears a legal burden in relation to the matters set out in that subsection.  It is presumed that the matter exists until the contrary is proved.  The defendant should have to demonstrate a reasonable possibility that the matters as set out in that subsection occurred.  For subparagraph (4) a defendant would be able to uniquely demonstrate that the fuel is used for combustion or operation on board the ship.

46.    Similarly, for subparagraph (5) a defendant for the ordinary offence would be able to validate the location of the offence was within an Australian maritime zone for all ships and for Australian ships beyond this jurisdiction.  Subparagraph (6) presumes that the location of the ship is within Australian maritime zones unless the defendant of the strict liability offence proves this is not the case.

47.    The sentence construction of the Notes has been slightly changed for consistency within the Protection of the Sea (Prevention of Pollution from Ships) Amendment (Air Pollution) Act 2019.

Item 21: Section 26FEGA (heading)

48.    This item allows the paragraph to include exceptions for the carriage of fuel oil.

Item 22: After subsection 26FEGA(1)

49.    This item amends paragraphs inserted in Schedule 1, to include an exemption for the carriage of non-compliant fuel for use when an approved Annex VI equivalent, such as an EGCS or other approved technology, is installed.

Item 23: Paragraph 26FEGA(3)(b)

50.    This item links the exception for carrying fuel oil with an Annex VI approved equivalent installed [26FEGA(2)] to the emergency exception [26FEG(3)].

Item 24: Subparagraph 26FEG(4)(a)(ii)

51.    This item adds to the usage requirements, further requirements for carrying fuel oil with an Annex VI approved equivalent installed.  These requirements would have been met if it were not for the unintentional damage.

Item 25: Subsection 26FEGA(7)

52.    This item inserts the carriage of fuel oil, in addition to the use, for the exception for the unavailability of compliant fuel oil.

Item 26: Paragraphs 26 FEH(1)(c) and (2)(c)

53.    This item adds the presumption that fuel oil carried is for use on board the ship to the ordinary and strict liability offences for Australian ships in an Emission Control Area.

Item 27: At the end of 26FEH

54.    This item adds the emission control condition that an Annex VI equivalent, such as an EGCS or other technology, is required to be installed on a ship when fuel oil exceeding the prescribed limits for Emission Control Areas is being carried when operating in these areas.

55.    This also allows for ships using compliant fuel within an Emission Control Area to carry non-compliant fuel for use in an EGCS.  As for section FEG (4) (item 20), it is presumed fuel oil is being carried on board for use, rather than as cargo, unless the defendant can prove to the contrary.  The Note contains a legal burden that indicates a defendant should have to demonstrate a reasonable possibility that the matters occurred.  For subparagraph (5), a defendant would be able to uniquely demonstrate that the fuel is used for combustion or operation on board the ship.

Item 28 Paragraph 26FEHA(1)(b)

56.    This item specifies that the exception for emergencies contained in this section as amended in Part 1 of this Act is only provided for the usage of fuel oil on board the ship as fuel and does not include the carriage.

Item 29: At the end of subsection 26FEHA(1)

57.    This item clarifies the emergencies exception for the strict liability offence for an Australian ship in an Emission Control Area applies when a ship could not obtain compliant fuel oil, but would have satisfied the requirements except for an emergency.  By way of example of such a situation, if a ship experiences an emergency whilst underway and needs to take refuge at the nearest port but is unable to obtain compliant fuel oil at this port, this could provide an emergency exception.

Item 30: Subsection 26FEHA(5) (heading)

58.    This item clarifies that there is more than one exception.

Item 31: After subsection 26FEHA(5) (before the note)

59.    This item allows for an exception to the ordinary and strict liability offences for an Australian ship not meeting the required conditions for an Emission Control Area when carrying high sulphur fuel oil.  This exception is provided for when compliant fuel oil, as prescribed by section 26FEG(1)(b) Protection of the Sea (Prevention of Pollution from Ships) Act 1983 was not available and notification was undertaken as prescribed.

Item 32: Subsection 27A(6) (paragraph (b) of the definition of pollution breach)

60.    This item qualifies the definition of pollution breach to only include oil used as fuel with a sulphur content of more than the prescribed amount on board a ship and that pollution breach does not include carriage for use.  

Item 33: Transitional provision

61.    This item provides for transition of marine orders previously made under sections subsequently amended by this Act.


 

Schedule 2 – Suppliers of fuel oil

Protection of the Sea (Prevention of Pollution from Ships) Act 1983

Item 1: Subsection 26FEF(1)

1.    This item removes the definition of fuel oil supplier and registered local supplier of fuel oil.  The terms fuel oil supplier and registered local supplier of fuel oil are only used once in the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (the Act), at paragraph 26FEP(1)(b) and 26FEL(a) respectively.  These terms will be clarified within the relevant sections of the Act rather than within the Definitions.

Item 2: Paragraphs 26FEL(a) and (b)

2.    This item clarifies that the local person suppling fuel oil is required to be registered on the Register of Local Suppliers of Fuel Oil.  The term “delivers” has been replaced with “supplies”, to ensure it is clear that it is the local supplier who is required to be registered.  The requirement for registration of local suppliers of fuel oil derives from regulation 18.3 of Annex VI, MARPOL.  Fuel oil is defined by regulation 2.9 of Annex VI and means any fuel delivered to and intended for combustion purposes for propulsion or operation on board a ship.

Items 3 and 4: Paragraphs 26FEL(c), 26FEL(c)(i)

3.    These items replace the term “delivery” with “supply” to clarify that the offences and obligations lie with the local supplier of fuel oil.

Item 5: Subsection 26FEM(1)

4.    This item replaces the term local suppliers of fuel oil.  The register is required for those persons supplying fuel oil to a ship.

Item 6: Subparagraphs 26 FEM(3)(b)(i) and (ii)

5.    This item prescribes the requirements made in regulations for the Register of Local Suppliers of Fuel Oil.

Item 7: 26FEN(1)(b)

6.    This item omits reference to the specific regulation within Annex VI to accommodate amendments to the Annex from time to time.

Item 8: Paragraph 26FEO(1)(a)

7.    This item replaces the term “delivers” with “supplies”, to clarify that responsibility for providing the bunker delivery note and sample lies with the local supplier of fuel oil.

Items 9 – 11: Paragraph 26FEO(1)(c), subparagraph 26FEO(1)(c)(i), paragraph 26FEO(1)(d)

8.    These items replace the terms “delivery” and “delivered” with “supply” and “supplied” respectively to clarify that responsibility for supplying the bunker delivery note and sample lies with the local supplier of fuel oil.


 

Item 12: After subsection 26(FEO)(1)

9.    This item specifies the elements a bunker delivery note must contain, including a declaration from the supplier, responsible for the final blend of the components of the fuel oil supplied, and any other elements prescribed by the regulations.

Item 13: Paragraph 26FEO(2)(a)

10.    This item clarifies that the bunker delivery note and fuel oil sample is supplied by the local supplier of fuel oil.

Items 14 – 16: Paragraph 26FEO(2)(c), subparagraph 26FEO(2)(c)(i) and section 26FEP (heading)

11.  These items replace the terms “delivery” and “delivered” with “supply” and “supplied” respectively to clarify that the offences and obligations lie with the local supplier of fuel oil [26FEO(2)(c) and 26FEO(2)(c)(i)] or supplier responsible for the final blend of the components of the fuel oil supplied [26FEP (heading)].

Item 17: Paragraph 26FEP(1)(a) and (b)

12.    This item clarifies that fuel oil supplied must be certified with a declaration from the supplier responsible for the final blend of the components of the fuel oil.

Items 18 – 20: Paragraph 26FEP(1)(d), subparagraph 26FEP(1)(d)(i) and paragraph 26FEP(1)(e)

13.    These items replace the terms “delivery” with “supply” to clarify that the offences and obligations lie with the supplier responsible for the final blend of the components of the fuel oil.

Item 21: Paragraph 26FEP(1)(f)

14.    This item simplifies the paragraph by removing the specific reference to paragraph 3 of Regulation 18 of Annex VI, MARPOL.  There is no other regulation in Annex VI of MARPOL that could apply.

Item 22: Paragraph 26FEP(1)(g)

15.    This item replaces the term “delivered” with “supplied” to clarify that the obligation to supply fuel oil that complies with the fuel quality requirements prescribed by Annex VI, MARPOL, and as certified by the declaration, lies with the supplier responsible for the final blend of the components of the fuel oil.

Item 23: Before subsection 26FEQ(1)

16.    This item adds the heading Local supplier for clarity.  The offence in subsection 26FEQ(1) applies to the local supplier of fuel oil as the person who provides the bunker delivery note.

Item 24: Paragraph 26FEQ(1)(a)

17.    This item replaces the term “delivers” with “supplies” to clarify that the obligation lies with the local supplier of fuel oil to ships, greater than 400 gross tonnage, to retain the bunker delivery note for inspection.

Items 25 – 26: Paragraph 26FEQ(1)(b) and subparagraph 26FEQ(1)(c)(i)

18.    These items replace the terms “delivery” and “delivered” with “supply” and “supplied” respectively to clarify the obligation of the local supplier of fuel oil to provide and retain the bunker delivery note.

Item 27: Before subsection 26FEQ(2)

19.    This item adds the heading Master and owner of Australian ship for clarity and ease of reading.

Items 28 - 30: Paragraph 26FEQ(2)(a), Subparagraphs 26FEQ(2)(c) and 26FEQ(2)(d)(i)

20.    These items replace the terms “delivered” and “delivery” with “supplied” and “supply” respectively to clarify that the obligation lies with the local supplier of fuel oil to provide the bunker delivery note.  The paragraph requires the master and owner of an Australian ship to retain the bunker delivery note for inspection.

Item 31: Before subsection 26FEQ(3)

21.    This item adds the heading Master and owner of foreign ship for clarity and ease of reading.

Items 32 – 34: Paragraph 26FEQ(3)(a), 26FEQ(3)(c), Subparagraph 26FEQ(3)(d)(i)

22.    These items replace the terms “delivered” and “delivery” with “supplied” and “supply” respectively to clarify that the obligation lies with the local supplier of fuel oil to provide the bunker delivery note.  The paragraph requires the master and owner of a foreign ship to retain the bunker delivery note for inspection.

Item 35: Before subsection 26FEQ(4)

23.    This item adds the heading Strict liability offences for clarity and ease of reading.

Items 36 – 38: Paragraph 26FER(1)(a), 26 FER(1)(c), Subparagraphs 26FER(1)(d)(i) and (ii)

24.    These items replace the terms “delivered” and “delivery” with “supplied” and “supply” respectively to clarify that the obligation lies with the local supplier of fuel oil to provide the representative sample.  Subsection (a) excludes gas fuel from these requirements as gas bunkering does not require a sample to be taken.  The paragraph requires the master and owner to retain the representative sample for inspection.

Item 39 – 43: Paragraphs 26FES(1)(a), 26FES(1)(c), Subparagraph 26FES(1)(c)(i) and Paragraph 26FES(1)(d)

25.    These items replace the terms “delivers”, “delivery” and “delivered” with “supplies”, “supply” and “supplied” respectively to clarify that the obligation lies with the person who supplies gas fuel to a ship to provide the documentation specifying the sulphur content of the gas.

Item 44 Transitional provision

26.    This item provides for transition of marine orders and approvals previously made under sections subsequently amended by this Act.

Schedule 3 – Naval and government ships exemption

Protection of the Sea (Prevention of Pollution from Ships) Act 1983

Item 1: After Section 6

1.    This item exempts application of the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (the Act) for certain naval and government owned or operated ships to align with the application of Article 3.3 of MARPOL.

2.    An accepted definition of warship is provided by Article 29 of the 1982 United Nations Convention on the Law of the Sea: “Warship means a ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government or State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline”.

3.    An accepted definition of government vessel is provided in section 14 of the Navigation Act 2012: “means a vessel: (a) that belongs to the Commonwealth or a State or Territory or an agency of the Commonwealth or a State or Territory; or (b) the beneficial interest in which is vested in the Commonwealth or a State or Territory; or (c) that is for the time being demised or sub-demised to the Commonwealth or a State or Territory or an agency of the Commonwealth or a State or Territory”.

4.    Subparagraph 6A(1)(a) exempts all warships or naval auxiliary ships, owned or operated by Australia or a foreign government while on non-commercial service.  This is uniformly applied to the Act.

5.    Subparagraph 6A(1)(b) provides an exemption for foreign government owned or operated ships on non-commercial service.

6.    Article 3.3 of MARPOL also states that: “each Party shall ensure by adoption of appropriate measures not impairing the operations or operational capabilities of such ships act in a manner consistent, so far as it is reasonable and practicable, with the present Convention”.

7.    Accordingly, the Act will still apply to Australian government owned or operated ships on non-commercial service.  The Australian Defence Force proactively complies with MARPOL requirements, which are regulated through the Office of the Defence Seaworthiness Regulator.