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Australia – Maritime Legislation Amendment Bill.

20 July, 2012

 

In brief

 

The Maritime Legislation Amendment Bill 2012 was introduced to the House of Representatives on 27 June 2012. The Bill amends the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth) to reflect amendments to MARPOL, which will enter into force on 1 January 2013 and will give effect to the following:

 

  • impose new restrictions on the discharge of sewage from ships;
  • strengthen the regulations relating to the disposal of garbage from ships; and
  • make mandatory the current voluntary Energy Efficiency Design Index for ships greater than 400 gross tonnes. 

 

The Bill also clarifies the "roll-back" provisions under the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth) so that States and Territories have no power to legislate beyond three nautical miles from the coast.

 

On 27 June 2012, the Maritime Legislation Amendment Bill 2012 (the "Bill") was introduced to the House of Representatives. The explanatory memorandum states that the primary purpose of the Bill is to amend the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth) (the "Pollution from Ships Act") to reflect recent amendments made by the International Maritime Organisation ("IMO") to the Annexes to the International Convention for the Prevention of Pollution from Ships ("MARPOL"). There are two significant consequences arising from the Bill which shipowners and operators should be aware of in particular. First, one of the amendments to MARPOL which is given effect in the Bill is the introduction of mandatory carbon dioxide emissions standards for ships engaged in international trade. Second, the Bill purports to clarify the legislative powers of States and Territories over the territorial sea.

 

Restrictions to discharges from ships

 

MARPOL is the key international convention addressing the issue of marine pollution from ships. It has six technical annexes dealing respectively with oil, noxious liquid substances in bulk, harmful substances in packaged form, sewage, garbage and air pollution.

 

The amendments to MARPOL, which will enter into force on 1 January 2013, include:

a) the imposition of new restrictions on the discharge of sewage from passenger ships in special areas of the sea which are particularly sensitive or vulnerable to pollution; and

b) strengthening the regulations relating to the disposal by ships of garbage at sea.

 

Mandatory carbon dioxide emissions standards

 

Additionally, and importantly, the Bill introduces a new section 26FEW into the Pollution from Ships Act which provides that an Australian ship of 400 tonnes gross tonnage or more, and engaged on an overseas voyage must have a "ship energy efficiency management plan" containing the information prescribed in the regulations. Non-compliance with this provision is an offence of strict liability, carrying a penalty of $22,000 for both the master and owner of the ship. The Explanatory Memorandum anticipates further amendments will also be forthcoming to the Navigation Act 1912 (Cth) which will include the requirement for applicable ships to meet the required Energy Efficiency Design Index ("EEDI") introduced by the MARPOL changes and which the Explanatory Memorandum states will apply to bulk carriers, gas carriers, tankers, container ships, general cargo vessels, refrigerated ships and combination carriers.

 

These are new requirements which will apply in addition to the measures already contained in each of:

 

a) Part IIID of the Pollution from Ships Act which contains provisions related to non-compliance with requirements under MARPOL in relation to air pollution from ships; and

b) Part IV, Division 12D of the Navigation Act 1912 (Cth) which contains provisions setting out the requirements for ships (including off-shore industry mobile units) to hold an International Air Pollution Prevention (IAPP) Certificate.

 

Clarification of roll-back provisions In addition to the amendments to reflect the changes to MARPOL, the Bill also amends the "roll-back" provisions in the Pollution from Ships Act to clarify the following: a) States and Territories have no power to legislate within the area of the territorial sea from three to twelve nautical miles from the coast; b) rather, States and Territories may only legislate within the limit of three nautical miles from the coast. This is significant as it now crystallises the common understanding that the States/Territories have no power to legislate beyond three nautical miles.

 

When will this apply?

 

The IMO amendments to MARPOL were deemed to have been accepted on 1 July 2012, in accordance with the amendment procedure under Article 16 of MARPOL. Therefore, the amendments will enter into force on 1 January 2013. The Bill specifies that the MARPOL changes, including the requirement for a ship energy efficiency management plan, will commence on 1 January 2013, whilst the roll-back provisions will come into effect the day after the Bill receives Royal Assent.

 

If and when this Bill proceeds through the respective Houses, shipowners and operators should be aware of the new obligations that will apply under the MARPOL changes, especially the new energy efficiency obligations that will apply as from 1 January 2013, and recognise the clarification that the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth) will apply instead of any equivalent State or Territory Act beyond the limit of 3 nautical miles from the coast.

 

 

For further information, please contact:

 

Shane Bosma, Ashurst

shane.bosma@ashurst.com

 

Ashurst Shipping, Maritime & Aviation Practice Profile in Australia

 

Homegrown Shipping, Maritime & Aviation Law Firms in Australia

 

 

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