Australia: Bill proposes to re-write NSW Marine Pollution Act

Introduction

Background

The Marine Pollution Bill 2011 (NSW) (Bill) was introduced into the Legislative Council and received its first reading speech on 23 November 2011. The Bill is due to receive its second reading on the first sitting day of Parliament, being 14 February 2012. The Bill is designed to protect NSW marine and coastal environment from pollution by oil and other marine pollutants discharged from ships.

The Bill proposes to repeal and re-enact the Marine Pollution Act 1987 (NSW) (current Act), which currently prohibits discharges of oil and noxious liquid substances. The Bill is also designed to implement additional provisions of the International Convention for the Prevention of Pollution from Ships 1973 (MARPOL), so as to also prohibit discharges of harmful substances in packaged form and discharges of sewage and garbage.

Prior to coming into force the Bill must pass both houses of Parliament, receive Royal Assent and be proclaimed.

What are the key changes?

New Offences

The Bill proposes a new Part five regarding the prevention of pollution by harmful substances in packaged form. In particular the new Part five provides that:

• the master and the owner of the ship are each guilty of an offence if a harmful substance is carried on the ship otherwise than in accordance with the regulations (which are yet to be drafted) or jettisoned from the ship in State waters;
• a crew member of a ship or a person involved in the operation or maintenance of a ship is guilty of an offence if their act causes a harmful substance in packaged form to be jettisoned from the ship into State waters; and
• a person responsible for any harmful substance in packaged form to be carried on the ship otherwise than in accordance with the regulations or jettisoned from the ship in State waters is guilty of an offence.

A new Part six and Part seven have also been introduced by the Bill, which set out offences for pollution emanating from a "large ship"¹ by sewage and garbage respectively. These new Parts provide that:

• the master and the owner of a "large ship" are each guilty of an offence if any sewage or garbage is discharged from the ship into State waters;
• a crew member or a person involved in the maintenance or operation of a "large ship" is guilty of an offence if their act causes any sewage or garbage to be discharged from the ship into State waters; and
• a person responsible for the discharge of any sewage or garbage from a "large ship" into State waters is guilty of an offence.

The maximum penalty for breaching these new Parts is $1.1 million in the case of a corporation and $220,000 in the case of an individual.

The new Bill also proposes to create an additional offence for the transport of an uncategorised noxious liquid substance when carried as cargo or part cargo in bulk. This complements the offence regarding the discharge of noxious liquid substances under the current Act. Liability for the additional offence extends to masters of ships, owners of ships and any person who causes uncategorised noxious liquid substance to be carried as cargo. The maximum penalty for an offence under these sections is $110,000 for a corporation and $22,000 for an individual.

Extending liability for offences

It is important to note that the new offences mentioned above also seek to extend liability for offences beyond that of the current Act. Generally, liability for offences under the current Act extends to masters of ships, owners of ships and crew members. However, the new offences also seek to make any person liable when they are "responsible" for the discharge of a noxious substance, garbage or sewage. A person is "responsible" for a discharge if that person, or another person acting under the direction of that person, committed an act that caused the discharge and the person committed the act:

• with intent to cause the discharge;
• recklessly and with the knowledge that the discharge would probably result; or
• negligently.

Further, it appears that liability for offences involving the carriage of noxious substances may also extend to charterers, as the offence extends to any person who is responsible for the carriage of the noxious substance. This is consistent with recent amendments to the Commonwealth Marine Pollution legislation through the Maritime Legislation Amendment Act 2011 (Cth), which has extended liability to charterers for certain pollution offences. More information regarding the Commonwealth amendments can be found here.

Emergency and other plans to be implemented

The Bill requires the master and owner of the ship to prepare and carry emergency plans to be implemented in response to oil pollution incidents and noxious liquid substance spills. These emergency plans are to contain:

• the procedure to be followed in reporting an incident;
• a list of the authorities or persons that are to be notified;
• a detailed description of the action to be taken immediately after a reportable incident by persons on board the ship to control any discharge from the ship;
• the procedures to be followed for co-ordinating with the authorities or persons that have been contacted any action taken in combating the pollution caused by the incident and, in particular, the person on board the ship through whom all communications are to be made;
• any action to be taken in combating the pollution caused by the incident and, in particular, the person on board the ship through whom all communications are to be made; and
• any other requirements set out in the regulations.

In addition to the above emergency plans, the Bill also requires that the master and owner of a large ship prepare and implement a shipboard garbage management plan. This garbage management plan will set out the procedures for collecting, storing, processing and disposing of garbage with further requirements being set out in the regulations.

The proposed emergency plans in some way replicate the incident response management plans recently implemented in the Protection of the Environment Legislation Amendment Act 2011 (NSW). Incident response management plans similarly require people carrying out activities that may cause pollution to have systems in place that are to be implemented in response to pollution incidents. More information regarding these incident response management plans and the recent changes to the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) can be found here.

New defences for existing offences

Additional defences have also been included for existing offences relating to the discharge of oil and the discharge of noxious liquid substances. These new defences include circumstances in which the content of the oil effluent discharged does not exceed 15 parts in one million and specific noxious substances where the discharge occurs at a slower speed (no more than seven knots) and the ship is at least 12 nautical miles from the nearest land and the water is at least 25 metres deep. These defences are also subject to other requirements as set out in the Bill.

Environment protection notices

Similar to provisions in the POEO Act,the Minister is now able to issue environment protection notices, which can direct:

• a person, who either caused or is reasonably suspected to have caused a pollution incident, or a public authority to take such action as is specified in the clean-up notice within a specified time period (marine pollution clean-up notices);
• the master or owner of a ship and/or the person carrying on the activity to take action in a specified time period to ensure that the activity is carried out in future in a lawful and environmentally satisfactory manner (marine pollution prevention notice); or
• the master of the ship or the responsible person and/or the person carrying out the activity to cease carrying on the activity for the period of time set out in the notice (marine pollution prohibition notice).

If a person does not comply with a marine environment protection notice without reasonable excuse, they may be liable for a penalty of up to $1 million in the case of a corporation and a further $120,000 for each day the offence continues. Individuals may be liable for penalties of up to $250,000 and a further penalty of $60,000 for each day the offence continues.

What are the implications?

The new Bill will create additional offences prohibiting discharges and carriage of harmful substances in packaged form and discharges of sewage and garbage. These new offences are significant additions to the current Act, which currently only prohibits discharges of oil and noxious liquid substances, bringing NSW further in line with the MARPOL convention.

It is also important to note that with these new offences comes a broader scope of liability. Under the current Act liability mainly attaches to masters of ships, owners of ships and crew members. However, the proposed Bill extends liability in the new offences to a person who has caused the pollution incident. This may extend liability for some offences to charterers, who have recently been made liable through amendments to the Commonwealth Marine Pollution legislation.

The Bill also proposes greater regulatory action and new requirements, which makes the legislation more consistent with other state environment legislation (i.e. POEO Act).

Primarily, shipping companies should be aware of the increased power and role of the Minister to issue environment protection notices to clean-up a pollution incident, prevent pollution from occurring or prohibit an activity from occurring. Further, the requirement for emergency plans to be implemented by ship owners and masters in response to pollution incidents and the need for garbage management plans under the Bill illustrate the need for a proactive stance in responding to and mitigating potential pollution incidents.

We recommend that shipping companies carefully review their present waste management and environment training procedures and incident response plans to ensure that they are legally compliant.

Footnotes

¹Marine Pollution Bill 2011 (NSW) Section 3

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.