Australia toughens pollution laws

Australia creates new offences for oil pollution from ships and widens the scope of liability.

As reported previously in Gard News,¹ there has been a number of significant and highly publicised pollution incidents in Australian waters in recent years, such as the one in March 2009 involving the Hong Kong registered general cargo ship PACIFIC ADVENTURER and the one in April 2010 involving the Chinese bulk carrier SHEN NENG. As a result the Australian Maritime Safety Authority (AMSA) undertook a review of the legislation and the Maritime Legislation Amendment Act 2011 came into force on 4th-6th December 2011.

The Act represents the first steps taken by the Federal Government to implement the shipping industry reform package announced by Minister Albanese in September 2011. The Act amends the Navigation Act and Protection of the Sea Act and creates new offences for oil pollution from ships and widens the scope of liability to include a wider range of liable parties. It also significantly increases the penalties from pollution offences.

Amendments to the Protection of the Sea Act
The purpose of the amendments to the Protection of the Sea Act is to make the regulation more consistent with other Commonwealth and state legislation such as the regulatory regime that applies in the Great Barrier Reef Marine Park. The main changes to the Act are:

- The liability is extended to include charterers, probably time, voyage and demise charterers, as well as master and owners of ships for offences involving discharge of oil, an oily mixture or an oily residue from a ship into Australia's Exclusive Economic Zone (EEZ). The master is personally liable and may face criminal proceedings. The defences available under the Act, such as discharge for the purpose of securing the safety of the ship or saving life at sea, have been extended to cover charterers.

- Penalties have been significantly increased. A maximum fine for a corporation has increased from AUD 1.1 million to AUD 11 million and from AUD 220,000 to AUD 2.2 million for an individual.2 Furthermore, the amendments will bring the offence provisions in line with the Great Barrier Reef Marine Park Act, which provides for penalties of up to 20,000 penalty units per year in comparison with the earlier 2,000 penalty units per year.

Amendments to the Navigation Act
The Navigation Act is an important piece of legislation regulating a wide range of marine matters which primarily include ship safety and marine environment protection. However, the Act is old and has now been recast in plain language and simplified to reflect current drafting standards. The main changes of the Act are:

- The master of a ship must ensure that the ship is not operated in a negligent or reckless manner that causes pollution or damage to the marine environment in Australian waters or in waters of the high seas outside Australia. The penalties are significant particularly where the contraventions have caused or had the potential to cause serious harm to the marine environment. If a corporation is found guilty of an offence it may be liable for fines up to AUD 3.3 million. The maximum penalty for a master who is found in breach of such provisions is AUD 666,000.

- Amendments also require mandatory reporting by the master of a ship in relation to the movement of the ship in prescribed areas, such as the Great Barrier Reef. If the master fails to report in a mandatory way he will be strictly and personally liable for the damage, meaning that the master's state of mind or degree of fault is not needed to be proved and  criminal liability can be imposed on the master. The prosecution is not required to prove intention, knowledge, recklessness or negligence. In addition to criminal prosecution, the court may now make a "civil penalty order", which imposes large fines.

Conclusion 
The amendments under the Maritime Legislation Amendment Act 2011 are of high importance and increase the risk exposure for individuals and companies, especially charterers, who operate within Australian waters. Penalties have significantly increased (both civil and criminal) and the liability is extended to also include charterers. Furthermore, strict liability is imposed on masters to report movement of ships in prescribed areas and, according to the amendments, the master of a ship has an obligation to ensure that a ship is not operating in a reckless or negligent manner.

At last, there are further bills that have been released/will be released shortly. The Federal government is aiming to have all shipping reform legislation in force by 1st July 2012.

Footnotes
¹ See article "Australia - Tougher penalties for Queensland environmental offences" in Gard News issue No. 202.
² AUD 1 = USD 1.06 in February 2012.

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