Federal Register of Legislation - Australian Government

Primary content

A Bill for an Act to amend the law relating to the protection of the sea, and for related purposes
Administered by: Infrastructure, Transport, Regional Development, Communications and the Arts
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 30 Sep 2022
Introduced Senate 28 Sep 2022

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.

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.

 


 

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.

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

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).

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 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.

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 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.

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 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.

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.

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’.