ENVIRONMENT AND HERITAGE LEGISLATION AMENDMENT BILL 1999 Explanatory Memorandum

(Circulated by Authority of the Minister for the Environment and Heritage,
Senator the Hon Robert Hill)

ENVIRONMENT AND HERITAGE LEGISLATION AMENDMENT BILL 1999

GENERAL OUTLINE

Environment Protection (Sea Dumping) Act 1981

The purpose of the Environment and Heritage Legislation Amendment Bill 1999 (the Bill) is to amend the Environment Protection (Sea Dumping) Act 1981 (the Sea Dumping Act) to:

• implement the 1996 Protocol (the Protocol) to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 (the London Convention);

• put beyond doubt that the Commonwealth has the responsibility for regulating the construction of artificial reefs, and to limit the potential liability of the Commonwealth, and officers exercising a power under the Sea Dumping Act, in relation to artificial reefs;

• revise the offence and penalty provisions, and to apply Chapter 2 of the Criminal Code to the offences under the Sea Dumping Act;

• revise the defence force exemption and the exemption in relation to the naval, military or air forces of a foreign country;

• simplify the rollback provision authorising the Minister to make a declaration regarding the application of the Sea Dumping Act to a State or the Northern Territory;

• include officers of the Australian Customs Service as ex officio inspectors for the purposes of the Sea Dumping Act; and

• generally simplify, and provide for consistency between, provisions in the Sea Dumping Act.

Sea Installations Act 1987

The purpose of the Bill is also to amend the Sea Installations Act 1987 (the Sea Installations Act) to remove the prohibitions on issuing, or varying, a permit that would authorise a sea installation to be located partly within and partly outside an adjacent area in respect of a State or an affected Territory

FINANCIAL IMPACT STATEMENT

Environment Protection (Sea Dumping) Act 1981

It is anticipated that the costs to the Commonwealth of administering the Sea Dumping Act will increase as a consequence of the amendments, because of the requirement for more detailed assessment of permit applications.

This will, however, be offset by an increase in application fees payable in respect of permits, to be prescribed by regulations after passage of the Bill.

The amendments will therefore have no significant financial impact on the Commonwealth.

Sea Installations Act 1987

Minor additional costs to the Commonwealth are expected as a consequence of the amendments to the Sea Installations Act.

Any increase in costs associated with assessing applications for permits under the Sea Installations Act, as a result of a very small increase in the number of permit applications, will, however, be offset by the corresponding increase in the number of application fees payable.

REGULATION IMPACT STATEMENT

Environment Protection (Sea Dumping) Act 1981

The original Regulation Impact Statement (RIS) was prepared for Cabinet on 27 October 1997. The following RIS has been adapted from that original RIS, and was cleared by the Office of Regulation Review as suitable for inclusion in this memorandum on 11 March 1999.

REGULATION IMPACT STATEMENT: 1996 PROTOCOL TO THE LONDON CONVENTION AND AMENDMENTS TO THE SEA DUMPING ACT

Materials dumped at sea may harm human health and the marine environment. Australia controls the dumping of waste at sea under its Environment Protection (Sea Dumping) Act 1981 (the Sea Dumping Act), which gives effect to its obligations under the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 (the London Convention). The Convention was agreed in 1972 and has been updated on a number of occasions since then. At present there are 77 Contracting Parties to the Convention.

The Sea Dumping Act has been in operation since 1984, and in the first 10 years of its operation (from 1984-85 to 1993-94), 81 permits were issued for the dumping of some 104 million tonnes of dredge spoil, and 23 permits for dumping of nearly 3 million tonnes of industrial waste. Twenty vessels were sunk under permit, and there have been two dumpings of munitions totalling about 1500 tonnes in 1990-91 and 1991-92. A number of materials have been licensed for sea dumping in the past which are now generally not acceptable for that type of disposal. Examples of such materials are munitions, car tyres, concrete, asbestos and industrial waste.

By far the greatest amount of material disposed at sea is dredge spoil from the dredging of harbours to keep shipping channels open. Approximately 6 million tonnes of dredge spoil are dumped in Australian waters each year, the major part of which is relatively uncontaminated. The sites in Australia where dumping has occurred are in three main areas - off the Pilbara coast of WA, the Sydney coastal region, and the mid to north coast of Queensland.

The impacts of such dumping could include stress on marine mammals by loss of seagrasses from smothering, death or diseases in fish arising from the dumping of contaminated materials, and loss of reproduction in molluscs from tributyl tin in contaminated sediments. Protected areas such as the Great Barrier Reef and Ningaloo Marine Park may be affected by sea dumping activities.

Those who dump material at sea do not bear the costs of such dumping. These costs are borne by the fishing industry and by the community at large (health and recreation). Because the costs of sea dumping activities are externalised, the ‘free’ market would fail to adequately protect the marine environment. Regulation of sea dumping under the Sea Dumping Act addresses this market failure by seeking to limit the quantity and toxicity of dumped material.

Pollution laws are generally administered by States, which have jurisdiction only to 3 nm from shore. Apart from the Sea Dumping Act, the Commonwealth does not have any pollution laws to cover deliberate acts of dumping in Australian waters. If the Sea Dumping Act were dismantled, there would be no applicable law beyond 3 nm. Even within the 3 nm, there would not be an applicable State law to replace the Sea Dumping Act.

The problems with the London Convention and the Sea Dumping Act are not large and intractable, but rather indicate an outmoded approach to pollution matters. They do not take account of recent international developments relating to protection of the sea, including the coming into force of the United Nations Convention on the Law of the Sea (UNCLOS) in 1994, and Agenda 21, the blueprint for ecologically sustainable development adopted by the United Nations Conference on Environment and Development at Rio in 1992. Recent thinking on the protection of the marine environment includes matters such as waste reduction, waste management and sustainability issues (Agenda 21).

Existing Government policies on waste management and waste minimisation deal with a range of strategies for minimising solid waste on land, but do not deal with material for disposal at sea, such as dredge spoil.

The main regulatory objective is to update sea dumping practices to take account of current thinking, as incorporated in the 1996 Protocol to the London Convention (the Protocol), and other relevant international agreements and actions on environmental matters such as: the UNCLOS; the Rio Declaration on Environment and Development; and Agenda 21.

The Protocol limits the types of materials that may be considered for dumping into the sea, and seeks to reduce the amount of material dumped at sea and the level of contamination in that material.

The Protocol incorporates a more simplified administrative framework, than that of the London Convention, and will reduce uncertainty about what may be considered for dumping into the sea. It specifies seven permissible materials as compared to the Convention, which specifies an exclusions list and therefore, by default, creates a long list of possibles.

Adoption of the Protocol would reduce the amount of material dumped into the sea (principally uncontaminated dredge spoil), by requiring a permit applicant to prepare an alternative waste strategy and adopt an alternative to dumping if feasible/economic. Adopting an effects-based Action List will reduce the levels of contaminants in dumped material.

Adoption of a regulatory framework that implemented the Protocol would facilitate the sustainable use of the marine resources of Australia’s Exclusive Economic Zone. Marine resources can be better managed if polluting activities are controlled. The objectives align with Australia’s Oceans Policy.

The Protocol was adopted by a Special Meeting of Contracting Parties to the London Convention, 28 October - 8 November 1996. It embodies a new approach to the dumping of wastes into the sea. Incineration of wastes at sea, and the export of wastes to other countries for dumping into the sea or incineration at sea, are banned. Only seven materials may be considered for dumping into the sea. If a material is not listed in Annex 1 to the Protocol, it may not be dumped into the sea. Note, however, that the Protocol provides a limited emergency situation exemption to these general rules regarding the dumping into the sea, or the incineration at sea, of wastes or other matter.

The list at Annex 1 includes all items currently dumped at sea under permit in Australian waters. However some items dumped in the past, such as concrete, tyres and munitions, would not be permitted to be dumped, or would only be permitted to be dumped in particular circumstances, under the Protocol.

The 7 materials on the list are: dredged material; sewage sludge; fish waste, or material resulting from industrial fish processing operations; vessels and platforms or other man-made structures at sea; inert, inorganic geological material; organic material of natural origin; and bulky items primarily comprising iron, steel, concrete and similarly unharmful materials, if generated at locations such as small islands with isolated communities having no practicable access to disposal options other than dumping. Under the Protocol, these items are permitted to be dumped at sea after issue of a permit.

Before wastes can be dumped at sea, they must be subject to a thorough waste assessment, the requirements for which are set out in Annex 2 to the Protocol.

The Protocol incorporates a polluter pays principle, which is not included in the London Convention. Australia could incorporate this principle by using a sliding scale of fees for sea dumping permits, based, inter alia, on contamination levels in sediments.

Individual ports could apply the principle by charging berth users in situations where careless materials handling in the ports results in spillages and/or contaminated sediments. One port authority has introduced its own polluter pays principle, by subjecting berth faces to regular sediment sampling designed to detect the extent of localised contamination. The berth user must then meet the costs of that pollution. Such a system would appear to be inherently fair, in that those responsible for pollution would bear the costs of it, and better practice would be encouraged by all port users.

The Protocol includes a precautionary approach. In implementing the Protocol, Contracting Parties must take appropriate preventative measures where there is reason to believe that wastes introduced into the marine environment are likely to cause harm even when there is no conclusive evidence to prove a causal relation between inputs and their effects.

There is also a prohibition on the dumping into the sea of any radioactive material.

The Protocol obliges Contracting Parties to make further attempts to reduce the necessity for dumping and to reduce contamination levels in material to be dumped. Under the London Convention, proponents are asked to formulate alternative waste strategies to dumping at sea. Under the Protocol, they would be obliged to carry out a waste prevention audit, consider waste management options, formulate an impact hypothesis in which the potential effects are assessed, and (if required) carry out a monitoring program to determine whether changes in the receiving environment are within those predicted by the Impact Hypothesis.

For dredged material, the goal of waste management under the Protocol is to identify and control the sources of contamination. Ports and marine facilities which load and unload hazardous substances, mineral concentrates, and the like, will be encouraged to employ zero best practice and zero discharge/spillage methods wherever possible.

The options for waste management imply an order of increasing environmental impact, and include re-use, off-site recycling, destruction or treatment of hazardous constituents, and finally disposal on land, into air and in water. Several ports authorities have already reduced waste at source, in an effort to reduce the amount of material that needs to be dumped at sea. Use of channel alignment and training walls, and methods such as sand bypassing, use of silt pockets, and stormwater traps, have the potential to reduce the need for dredging and dumping of waste at sea. By using such methods, ports authorities could save on dredging costs while benefiting the marine environment.

The Action List, specifying screening and maximum permitted levels of contaminants in any materials for dumping at sea, is an integral part of assessment. Australia’s draft Action List uses the best available toxicological data from overseas, with the option of using local background levels of contaminants where these are known.

In practice, Australia has already administratively adopted many of the provisions of the Protocol at its own discretion. For instance, Australia has placed a moratorium on incineration of wastes at sea, and has developed a draft Action List to screen candidate wastes. Monitoring of disposal sites is required in many instances. In addition, some ports are moving towards best practice in managing their dredging requirements. The obligation on proponents to pay greater attention to waste management strategies will result in a less polluted marine environment. Port authorities may save by having less waste for disposal.

By adopting the Protocol, Australia would reduce the use of the sea as a dumping ground. The obligation to utilise waste management options in the Protocol means that port authorities and others have considerable freedom to decide the best options for managing and disposing of their dredged material.

The Protocol only deals with the dumping of material and does not deal with the creation of that material. For example, port authorities are concerned that licensed discharges into harbour catchments (under State pollution laws) may result in the need to dredge and dispose of contaminated material. Port authorities would have to bear the costs of disposing of such contaminated material. Improved catchment management, perhaps involving port Technical Advisory and Consultative Committees (TACCs), will result in less contaminated material reaching harbours and lower costs for sea dumping.

One alternative is to retain the legislation as it now stands. Currently under the Sea Dumping Act, hazardous materials (eg organohalogen compounds, mercury, cadmium, persistent plastics, crude oil and its wastes, radioactive material and industrial wastes) are prohibited from dumping.

Less hazardous materials require special care in disposing at sea, and a special permit. Such materials are arsenic, beryllium, chromium, copper, lead, nickel, vanadium, zinc, organosilicon compounds, cyanides, fluorides, and pesticides not covered in the prohibited list. If the London Convention standards are strictly applied, the permitted levels of arsenic, zinc, copper, organosilicon compounds, cyanides and fluorides, in materials permitted to be dumped, are 0.1%. The permitted levels of lead are 0.05%. These levels are some ten to fifty times higher than those that are now known to affect marine organisms adversely. The result of continuing to strictly apply the outmoded London Convention standards, would be gross pollution of the marine environment and harmful effects to marine organisms.

A general permit is required for other materials, and may be issued after consideration of a range of factors including possible environmental effects. In assessing an application for a general permit, assessors must consider the practical availability of alternative land-based methods of treatment of wastes, and treatment to make the material less harmful.

At present, proponents are asked to formulate alternative waste strategies to dumping into the sea. Unless the Sea Dumping Act was strengthened to require thorough consideration of alternative land-based methods of disposal, the environmental benefits of the more thorough approach as presented in the Protocol would not be realised.

There has not been any reduction in the amount of dredge spoil disposed at sea over the years that the Sea Dumping Act has been in operation, as one-off capital works at irregular intervals have contributed significant quantities of material. The London Convention provides no impetus to change or reduce sea dumping activities. The ‘historical inertia’ inherent in many existing processes, and lack of information on alternatives, means that port authorities and assessors are not fully aware of the dollar savings from minimising waste.

The option of retaining the Sea Dumping Act as it stands would mean that significant international progress on environmental matters (such as is incorporated in the Protocol, UNCLOS, the Rio Declaration and Agenda 21) would not be given full effect in Australia, and the wider community would lose the benefit of a cleaner environment.

An alternative to amending the Sea Dumping Act to implement the Protocol would be to have voluntary compliance with the Protocol’s standards, either through individual compliance or under an industry self-regulation arrangement.

Several port authorities have established Technical Advisory and Consultative Committees (TACCs) to oversee their dredging and dumping activities, and provide technical advice on such activities. These TACCs are groups with relevant local expertise which carry out long-term planning for dredging and dumping, provide oversight on research and monitoring, and act as a forum where various points of view (including community views) can be discussed and resolved. TACCs currently exist in the ports of Newcastle, Townsville, Devonport, Weipa and Karumba, and it is expected that one will be established in Gladstone in the future.

The establishment and role of TACCs could be extended to enable a voluntary compliance scheme to operate. Small ports with infrequent dredging and dumping requirements (and other, more diverse, dumpers), which may not have sufficient resources or technical knowledge to appropriately support a voluntary scheme, may be able to contract services and advice from the TACCs. Alternatively, a representative body may evolve.

Applicants for sea dumping permits are likely to face increased fees under a regulatory framework that implemented the Protocol. Application fees are $2500 for a general permit and $5000 for a special permit at present. The new scale of fees has not been determined, but is likely to be higher than the present scale, bearing in mind the fact that fees have not been adjusted since the Sea Dumping Act came into operation in 1984.

The new fee structure may involve a sliding scale of fees, which could be based on a number of factors, eg the degree of potential toxicity of the material, the quantity to be dumped, the sensitivity of the receiving environment, and the complexity of the application and associated assessment.

Applicants will also face increased costs to carry out a waste audit and formulate alternative waste management strategies. On the assumption that a specialist consultant would need to be engaged for 1-2 weeks to examine alternatives to dumping at sea, the cost to applicants would be of the order of $5000 - $10,000. This cost might be incurred every 2-3 years rather than annually.

The Protocol provides a framework that is easier to understand and to administer, as it involves a list of seven items that may be considered for dumping into the sea. These increased costs could, however, be offset by monetary savings if alternative waste strategies were adopted. Such strategies would continue to be promulgated more widely and become better known, giving rise to a culture of improvement among port authorities. This is already evident in the case of some port authorities.

Depending on the cost of quarry-derived landfill, ports may find it economically viable to treat and sell some of their dredged sediments as fill.

For example, one port authority has developed techniques for treating dredge spoil (solar drying and lime additives), converting it to a beneficial use in the form of bulk fill. About half the spoil destined for disposal is treated in this way, subject to having sufficient solar drying beds. Higher prices may be obtained as the quality of the dredged/treated fill improves.

It has been estimated that shore disposal of dredge spoil, by using it beneficially as land fill, becomes economic as the distance to the spoil ground increases. However, it should be borne in mind that the cost benefits of this method of disposal depends on many variables, including the availability of sufficient dry, flat land, and the demand for fill.

Unfortunately, it is apparent that port authorities are often not aware of the savings that can flow from minimising waste. A close examination of alternative disposal methods can lead to a reduction in the volume of material requiring dumping and give rise to cost savings to the port in terms of substituted fill.

The option of sea disposal, as provided under the Protocol, is particularly important in situations such as small island states with little access to recycling facilities, for example Christmas and Cocos Islands, where alternative waste management strategies may be limited or non-existent.

Marine Group, within Environment Australia, administers the Sea Dumping Act. Present administrative costs are likely to rise by around 10% to assess Annex 2 matters including waste strategies, waste audit, and impact hypothesis.

A broad package of measures is to be implemented under Australia’s Oceans Policy, announced in December 1998, to ensure the integrity of Australia’s ocean ecosystems, the protection of marine biological diversity, and to provide a resource base for internationally competitive and ecological sustainable ocean uses. Ratification of the Protocol is one of the measures that the Commonwealth Government intends to utilise to prevent the adverse impacts of pollution on the marine environment.

UNCLOS gave Australia sovereign rights over its Exclusive Economic Zone (EEZ) and continental shelf resources. These rights are balanced by an obligation to protect, and implement sustainable management of, the ocean on the basis of the best available scientific information.

Adoption of the Protocol will help Australia achieve the aims of its Oceans Policy and comply with its international obligations under UNLOS.

Although the Department of Defence is currently exempt from the provisions of the Sea Dumping Act, it complies with the requirements of the Act and submits proposals for assessment under the Act without the payment of an application fee. If the statutory exemption were lifted, Defence may be liable for application fees.

However any such liability would not be reflected as an overall additional cost to the Commonwealth, as the additional cost to the Department of Defence would be offset by the corresponding increase in receipt of application fees by Environment Australia.

Other users of the marine environment, eg ship owners, fishermen and scuba divers, do not pay under the existing regime, and will not incur costs from introduction of the Protocol.

The marine environment will be better protected, less material will be dumped into the sea, and that which is dumped will be less contaminated than at present. Fisheries will be better protected, possibly resulting in less risk of closure due to pollution. Overall, the costs of pollution, which are largely externalised, will be reduced.

Australia’s marine-based industries were valued at $30 billion in 1994, and are increasing in value in real terms. Emerging marine industries such as aquaculture, pharmaceuticals and biotechnology provide opportunities for the future. Continued, sustainable use of our marine resources for the benefit of humanity requires healthy marine ecosystems and protection of biodiversity. Implementation of the Protocol will help protect this biodiversity.

Costs and Benefits of Adopting the Protocol compared with the London Convention

Affected Group	Costs	Benefits
Port authorities	Rise in fees. Increased costs for waste audit of approximately $5000 - 10,000 every 2-3 years.	Likely savings from waste minimisation - sale of fill materials; reduced dumping costs
Commonwealth Government	Modest increase of around 10% on cost of assessing a permit to approx. $33,500.	Promotion of Australia’s Oceans Policy in line with our expanded obligations under UNCLOS.
Wider community (mainly fishing and recreational interests)	No cost increases	Better protection of biodiversity; sustainable use of marine resources.

Reliance on voluntary compliance with the Protocol standards is considered an inferior option, at this time, compared with the proposed ratification of the Protocol. It is unlikely that smaller ports (and other, more diverse, dumpers) would be able to emulate the best practice of large ports with TACCs as compared to the greater certainty under mandatory permits. There would be an increased risk of contamination from a single episode that has an irreversible, significantly detrimental impact on the marine environment.

Under a voluntary scheme individual port authorities may also be less likely to develop and use an Action List for screening contaminants, due to the cost of obtaining the necessary data.

A key issue in the assessment of alternatives to the option of retaining the Sea Dumping Act as it currently stands, is the incentive for potential sea dumpers to prepare a waste strategy plan, and the thoroughness of such a plan. Under a voluntary scheme there would be no incentive to prepare such plans if the expected (private) benefits were less than the expected (private) costs. Consequently, environmentally beneficial non-sea disposal options may be overlooked because of a perceived net cost to port authorities.

Further, under a voluntary scheme, there is a concern that long-term infrastructure strategies (such as reclamation ponds and beneficial use of fill, silt pockets and sediment traps) which may be profitable and environmentally beneficial will still be overlooked. This concern is based on an example where such investment has occurred, but appears not to have been considered by many port authorities. A mandatory scheme has a greater chance of identifying these investments, and the preparation and investment cost of the waste strategy for port authorities may be more than covered by (long-term) disposal costs.

This benefit of a mandatory scheme may be largely achievable by supplementing a voluntary scheme with an information/education program about the potential savings from certain disposal strategies for port authorities. The Government would incur the costs of the information program, but at a saving in the administrative costs of vetting mandatory waste strategies.

The impact analysis indicates that while the adoption of the Protocol has the highest administrative costs for government and compliance costs for business, there is an expected higher level of environmental benefits. In addition, the mandatory preparation of waste strategies may identify strategies which are profitable for port authorities, which otherwise would remain unknown.

In time, if the role of TACCs continues to evolve under the Protocol or the London Convention, a co-regulatory model may represent the most efficient and effective arrangement. The existing public administration of permits and technical support could be transferred to industry, underpinned by a government role such as certification of the industry (a Code of Practice) or membership of the representative body or seed funding of the industry group. The threat of a return to legislated mandatory requirements would always remain. The maintenance of commercial reputation may also act as a discipline on acceptable behaviour under voluntary arrangements.

A co-regulatory model is not considered as an immediate alternative to the London Convention, but rather could be considered in the future depending on the accumulated experience with TACCs and sea dumping impacts (under the Protocol). Importantly, a period of experience with preparation of waste strategies under legislation implementing the Protocol may develop a self-sustaining culture of looking for further long-term disposal strategies with benefits both to the industry and the marine environment.

Stakeholders and clients such as port authorities and permit holders have been informed through direct correspondence of the proposal to sign and ratify the Protocol.

Letters in support of Australia signing and ratifying the Protocol have been received from the Association of Australian Ports and Marine Authorities Incorporated (AAPMA), individual port authorities (Port Headland, Newcastle, Brisbane, Gladstone, Fremantle) and BHP Transport. There have been no letters against the proposed signature and ratification.

The Minister for the Environment has written directly to all relevant Commonwealth Ministers informing them of the development and adoption of the Protocol and the preparation to sign and ratify the same.

The Department of Defence initially responded that the removal of the current statutory exemption for the Australian Defence Force (ADF) was opposed. It is worth noting, however, that the ADF complies with the Sea Dumping Act as formalised through an exchange of letters between the Ministers for Defence and Environment.

An initial concern expressed by Defence was that the removal of the exemption may unnecessarily restrict operational and strategic latitude, especially when operating with allied forces, without any net environmental benefit.

Defence has, however, in consultation with Environment Australia, agreed that a revised armed conflict and other emergency situation exemption, which is within the ambit of the Protocol, would sufficiently allay their concerns.

The Minister has also written directly to State and Territory Environment Ministers, and the Protocol has been notified to the States and Territories through the Commonwealth–State Standing Committee on Treaties’ Schedule of Treaty Action.

Western Australia, Victoria, New South Wales, South Australia, Tasmania, the Northern Territory and the Australian Capital Territory have no objection to the Commonwealth proceeding to sign and ratify the Protocol.

Queensland’s Minister for the Environment has queried whether the Protocol would prohibit the construction of artificial reefs utilising bulky items as identified in Article 1.7 of Annex 1 of the Protocol. The Minister for the Environment has responded on current practice on the construction of artificial reefs, and has indicated that the Government’s future position needs clarification prior to the Protocol coming into force in Australia.

The administrative burden on business can be reduced by the use of TACCs, which can carry out the initial assessment of applications.

It would not be appropriate for the Sea Dumping Act to include general provisions enabling the Minister to waive or modify the application of the Act.

It is anticipated, however, that the existing provisions regarding: emergency situation exemptions and permits; rollback declarations concerning the application of the Sea Dumping Act to a State or the Northern Territory; and waiver or remittance of application fees under the Act; will be incorporated under an amended Act.

As the London Convention allows Contracting Parties to be more stringent than the Convention itself, the Protocol may be applied immediately after appropriate legislation is passed. There is no impediment to the Sea Dumping Act being amended to make it align with the Protocol.

There is no merit in delaying implementation until the entry into force of the Protocol internationally. It could take 3-5 years for the required number of Parties to signal their decision to be bound by the Protocol.

Since the Sea Dumping Act was proclaimed in 1984, there have been six amendments (1986, 1989, 1992, 1994, 1996 and 1997) reflecting changes in Government policy and/or the London Convention. It is expected that amendments to the Protocol, or changes in Government policy, will be incorporated into the Sea Dumping Act in the same way as amendments have been made from time to time in the past. Any problems with the new regulations will be resolved through the formal and informal consultation processes already in place.

Sea Installations Act 1987

On 20 May 1998, the Office of Regulation Review advised that the amendments proposed to the Sea Installations Act did not require the preparation of a Regulation Impact Statement.

This clause provides that the name of this Act will be the Environment Protection and Heritage Legislation Amendment Act 1999 (the Act).

This clause provides that the Act will commence on the 28th day after which it receives the Royal Assent.

This clause provides for the amendment of the Environment Protection (Sea Dumping) Act 1981 (the Sea Dumping Act) and the Sea Installations Act 1987 (the Sea Installations Act) as set out in Schedule 1.

This clause provides that a permit in force prior to the commencement of the Act under section 19 of the Sea Dumping Act continues to have effect as if issued under the Sea Dumping Act, as amended by the Act.

This clause provides that the Governor-General may make regulations for the purposes of the Act, including regulations of a transitional or saving nature arising from the amendments made by the Act.

Schedule 1 – Amendments

Environment Protection (Sea Dumping) Act 1981

Item 1 Title

This item will amend the long title to take account of the amendments provided in this Bill (the Bill).

Item 2 Subsection 4(1)

The definition will include anything prescribed by regulation to be an artificial reef, but will not include anything prescribed by regulation not to be an artificial reef.

Item 3 Subsection 4(1)

This item will insert a definition of artificial reef permit into subsection 4(1).

Item 4 Subsection 4(1)

This item will insert a definition of artificial reef placement into subsection 4(1).

Item 5 Subsection 4(1) (definition of Australian fishing zone)

This item will repeal the definition of Australian fishing zone in subsection 4(1).

This definition will no longer be required as the Bill will instead apply the Sea Dumping Act to the exclusive economic zone as defined in the Seas and Submerged Lands Act 1973.

Item 6 Subsection 4(1) (definition of Australian platform)

This item will repeal the definition of Australian platform in subsection 4(1).

This definition will no longer be required, as the Bill will instead apply the Sea Dumping Act to platforms generally, in Australian waters.

A platform, as currently defined in subsection 4(1) of the Sea Dumping Act, includes man-made structures at sea, whether floating or fixed to the seabed, but does not include a vessel.

It is intended that, under the Sea Dumping Act as amended by the Bill, the definition of a platform may also include man-made structures at sea that are capable of self-propulsion.

Whether or not such a structure is to be defined as a platform or a vessel at a particular time, is to be determined having regard to the circumstances of each particular case.

The fact that any such structure may be defined at a particular time to be a platform, should not preclude that same structure being defined as a vessel on other occasions.

For example, the petroleum industry now uses Mobile Offshore Drilling Units. These structures should generally be considered as vessels that can be transformed into drilling platforms.

In general, if such a structure is to be defined as a platform, then this should only be while the structure is engaged in drilling operations in, or is fixed to the seabed beneath, Australian waters. Whilst the structure is otherwise engaged, for example when travelling between drilling sites, it should be defined as a vessel.

It should also be noted that section 5 limits the application of the Sea Dumping Act in relation to the exploration, exploitation and associated offshore processing of seabed mineral resources.

Item 7 Subsection 4(1) (paragraphs (c) and (d) of the definition of Australian waters)

This item will revise paragraphs (c) and (d) of the definition of Australian waters in subsection 4(1).

Consequential to the amendment provided by item 5, paragraph (c) of the revised definition will provide the basis for the application of the Sea Dumping Act to Australia’s exclusive economic zone, rather than, as is currently provided under paragraph (c) of the definition, to the Australian fishing zone.

There are, however, other amendments in the Bill that will affect the application of the Sea Dumping Act in certain areas within Australia’s exclusive economic zone. These amendments are provided by item 20, and relate to Australia’s obligations under the Torres Strait Treaty, and potential future obligations under the Australia-Indonesia Delimitation Treaty.

Paragraph (d) of the revised definition will simplify the definition in relation to the application of the Sea Dumping Act to areas above the continental shelf of Australia, or an external Territory of Australia.

Item 8 Subsection 4(1)

This item will insert a definition of controlled material into subsection 4(1).

The term controlled material will be used for the simplification of the offence, and other, provisions in the Sea Dumping Act, as amended by the Bill.

Whether a particular provision in the Sea Dumping Act, as amended by the Bill, will refer to the term controlled material or to the term any matter or thing, will depend upon the subject matter of that provision.

The term controlled material will be used in the Sea Dumping Act to describe something that is or is to be:

These are all activities that are within the subject matter, or directly related to the subject matter, of the Protocol.

The term any matter or thing will be used in the Sea Dumping Act to describe something that:

• may afford evidence as to the commission of an offence against the Sea Dumping Act.

These are activities that are not within the subject matter, or not directly related to the subject matter, of the Protocol.

To provide certainty in the Sea Dumping Act, existing references to the term wastes and other matter and, in some instances, the term any matter or thing, will be replaced by the term controlled material on the basis described above.

Item 9 Subsection 4(1) (definition of Convention)

Reference in the Sea Dumping Act to the Convention will no longer be required as the Bill will instead implement the Protocol, which entirely supersedes the Convention.

Item 10 Subsection 4(1) (paragraph (b) of the definition of inspector)

This item will revise the definition of inspector, in subsection 4(1), to include an officer of the Australian Customs Service.

Item 11 Subsection 4(1)

The term offending craft is a new term that will be used for the simplification of the section 10F, a new section inserted by item 25.

Paragraphs (a), (d) and (e) of the definition refer to the use of any vessel, aircraft or platform in the commission of the primary offence referred to.

This is because the commission of the each of the primary offences referred to in these paragraphs will not necessarily (ie in relation to paragraph (a)), or will not (ie in relation to paragraph (d) or (e)), involve the use of a vessel, aircraft or platform as a requisite element of the primary offence.

For example, the unlawful dumping of a vessel, aircraft or platform into Australian waters, or the unlawful dumping of an Australian vessel or an Australian aircraft at sea (ie an offence under proposed paragraphs 10A(1)(c) and (d), respectively, as inserted by item 25), will not involve the use of other vessels, aircraft or platforms as a requisite element of the offence.

Further, the unlawful export of controlled material or an unlawful artificial reef placement (ie an offence under proposed section 10D or 10E, respectively, as inserted by item 25) will not involve the use of a vessel, aircraft or platform as a requisite element of the offence.

It should be noted, however, that although it is envisaged that in most cases these offences will involve the use of a vessel, aircraft or platform, an unlawful export or artificial reef placement may occur by other means including, for example, by use of a pipeline.

Paragraphs (b) and (c) of the definition of offending craft, on the other hand, refer to the use of the vessel or platform, or the vessel, aircraft or platform, respectively, in the commission of the primary offence.

This is because the commission of the each of the primary offences referred to in these paragraphs will involve the use of a vessel or platform, or a vessel, aircraft or platform, respectively, as a requisite element of the primary offence.

Item 12 Subsection 4(1)

This item will insert a definition of offending material into subsection 4(1).

The term offending material is a new term that will be used for the simplification of the offence provisions in the Sea Dumping Act, as amended by the Bill.

In relation to an offence against sections 10A, 10B, 10C or 10D, the offending material will be the controlled material that was dumped into the sea, incinerated at sea, loaded for dumping into the sea or incineration at sea, or exported for dumping into the sea or incineration at sea, respectively, or, in relation to an offence against 10E, the matter or thing that was placed for the purpose of creating an artificial reef.

Item 13 Subsection 4(1)

The Protocol will mean the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972.

Item 14 Subsection 4(1)

This item will insert a definition of seriously harmful material into subsection 4(1).

Note subsection 41(3), a new subsection inserted by item 77, will impose a limitation on the making of these regulations.

Item 15 Subsection 4(1) (definition of SPREP Protocol)

References in the Sea Dumping Act to the SPREP Protocol will no longer be required as the Bill will implement the Protocol, which is a more stringent agreement with respect to the protection of the marine environment.

Item 16 Subsection 4(1)

This item will insert a of the definition of Torres Strait Treaty into subsection 4(1).

Section 4A, a new section inserted by item 20, will provide the basis to give effect to Australia’s obligations under the Torres Strait Treaty, insofar as those obligations relate to the activities regulated under the Sea Dumping Act, as amended by the Bill.

Item 17 Subsection 4(4)

This item will remove the references to Convention in subsection 4(4), wherever occurring, and substitute references to Protocol.

Subsection 4(4) will therefore provide that, except so far as the contrary intention appears, an expression used in both the Sea Dumping Act and the Protocol has, in the Sea Dumping Act, the same meaning as it does in the Protocol.

There are some terms, however, that are used in the Sea Dumping Act, and that will be used in the Sea Dumping Act as amended by the Bill, in which this contrary intention may not be immediately apparent. These include:

It is currently used in the Sea Dumping Act to mean either a nation state (eg the Commonwealth of Australia), or a State of the Commonwealth of Australia.

In the revised section 9, as inserted by item 24, this term will also mean a State of the Commonwealth of Australia or the Northern Territory.

sea - this term is defined by Article 1.7 of the Protocol to mean marine waters other than the internal waters of States.

The use of this term in the Sea Dumping Act, however, includes and will continue to include, waters often referred to as Commonwealth (of Australia) internal waters.

Commonwealth internal waters are the marine waters between the mean low water mark and the territorial sea baseline of the Commonwealth of Australia. These are the same waters described by paragraph (a) of the definition of Australian waters under subsection 4(1) of the Sea Dumping Act, excluding the territorial sea of Australia.

The term sea, as used in the Sea Dumping Act, does not, and will not, however, include the internal waters of a State of the Commonwealth of Australia or of the Northern Territory.

Item 18 Subsection 4(4A)

Consequential to the amendment provided by item 15, this item will repeal subsection 4(4A).

Item 19 Subsection 4(5)

Consequential to the amendment provided by item 8, this item will replace the references to matter or thing with controlled material in subsection 4(5).

It is intended that the use of controlled material instead of matter or thing will in no way narrow the scope of subsection 4(5).

Note the explanation provided in respect of item 8 details the context in which the terms controlled material and matter or thing will be used in the Sea Dumping Act.

Item 20 After section 4

This item will insert two new sections, sections 4A and 4B, into the Sea Dumping Act. These sections will detail the application of the Sea Dumping Act in respect of waters that are subject to the Torres Strait Treaty, and that will potentially be subject to the Australia-Indonesia Delimitation Treaty.

Section 4A will provide the basis to give effect to Australia’s obligations under the Torres Strait Treaty, insofar as that treaty relates to the activities regulated under the Sea Dumping Act, by defining the basis upon which Australian waters will include the top hat area.

The top hat area is an area which is the subject of, and defined by, the Torres Strait Treaty.

Section 4B will provide the basis to give effect to Australia’s potential future obligations under the Australia-Indonesia Delimitation Treaty, insofar as that treaty may relate to the activities regulated under the Sea Dumping Act.

Subsections 4B(2) and (3) will detail obligations regarding the issuing of a permit under the Sea Dumping Act in relation to the overlap area. The overlap area is an area that will be the subject of, and defined by, the Australia-Indonesia Delimitation Treaty.

It is intended that the degree of consultation that will be required under subsection 4B(2) will be at the discretion of the Minister.

It is also intended that a notice referred to under subsection 4B(3) may relate to the issue of permits under the Sea Dumping Act in relation to the overlap area, either generally or in particular circumstances.

For example, the notice referred to in subsection 4B(3) may include a notice that relates to the issuing of a permit, either generally or regarding:

• permits relating to the dumping into the sea, and/or the artificial reef placement, of particular substances; or

• permits relating to the dumping into the sea in particular areas within the overlap area.

Subsections 4B(4) and (5) will provide obligations regarding the exercise of powers by an inspector, under the Sea Dumping Act, in relation to the overlap area.

It is intended that the degree of consultation that will be required under subsection 4B(4) will be at the discretion of the Minister.

It is also intended that a notice referred to under subsection 4B(5) may relate to the exercise, in the overlap area, of powers by inspectors under the Sea Dumping Act, either generally or in particular circumstances.

For example, the notice referred to in subsection 4B(5) may include a notice that relates to the exercise by inspectors of powers either generally or regarding:

• all or specific third party vessels, aircraft and platforms (ie that are neither Indonesian or Australian);

• vessels, aircraft and platforms engaged, or suspected to be engaged, in particular kinds of activities; or

Subsection 4B(6) is a saving provision that will provide that the validity of the exercise of a power by an inspector is not affected by failure to comply with subsection 4B(4).

It is intended that subsection 4B(6) will operate so that the prosecution for an offence under the Sea Dumping Act will not be defeated by a failure by an inspector to comply with subsection 4B(4).

Subsection 4B(7) will define the Australia-Indonesia Delimitation Treaty and the overlap area.

Item 21 Section 5

This item will amend section 5 of the Sea Dumping Act by removing the reference to of wastes or other matter, and substituting a reference to or storage of controlled material (other than a vessel, platform or aircraft).

Section 5 currently provides that the Sea Dumping Act does not apply in relation to the disposal of wastes or other matter directly arising from, or related to, the exploration, exploitation and associated offshore processing, of seabed mineral resources.

As the term controlled material will mean wastes or other matter within the meaning of the Protocol, and a vessel, platform or aircraft, this exemption will continue to apply in relation to wastes or other matter as defined by the Protocol.

This amendment will, however, make it clear that the exemption does not apply in relation to the disposal or storage of a vessel, aircraft or platform, related to the exploration, exploitation and associated offshore processing, of seabed mineral resources.

It should also be noted that for simplification purposes the term wastes or other matter will not occur in the Sea Dumping Act, as amended by the Bill, other than in respect of the definition of the term controlled material, as will be inserted by item 8.

The explanation provided in respect of item 8 details the context in which the terms controlled material and any matter or thing will be used in the Sea Dumping Act.

In line with Article 1.4.3 of the Protocol, this amendment will also extend the section 5 exemption to the storage, as well as the disposal, of controlled material (other than a vessel, aircraft or platform), in the context described.

Item 22 Section 7

This item will repeal section 7, which provides an exemption under the Sea Dumping Act in relation to a vessel, aircraft or platform of the Australian Defence Force or of the naval, military or air forces of a foreign country, and insert a revised section 7 exemption.

In accordance with Article 10.4 of the Protocol, the exemption under the revised section 7 will only apply in relation to a vessel or aircraft of the Australian Defence Force, or of the naval, military or air forces of a foreign country.

The revised section 7 will further limit the scope of the Australian Defence Force exemption, by limiting it to a vessel or aircraft being used:

It is intended that a situation of armed conflict includes war or other armed conflict between States in which at least one party has resorted to the use of armed force to achieve its aims. It may also include conflict between a State and organised armed groups within the State, such as organised resistance groups.

It is also intended that an emergency situation other than a situation of armed conflict be exclusively limited to situations in which a Warning Order has been issued by the Chief of the Defence Force or higher authority. Warning Orders are generally issued by the Chief of the Defence Force, on the authority of the Minister for Defence, and authorise the use of Australian Defence Force personnel, vessels, aircraft and the use of weapons, in operations that have escalated beyond normal peacetime operations.

Item 23 Criminal Code Applies

This item will insert a new section, section 8A, into the Sea Dumping Act, which will apply Chapter 2 of the Criminal Code in respect of offences against the Sea Dumping Act.

Item 24 Section 9

This item will repeal section 9 and insert a revised section 9, which will provide the Minister with greater flexibility for recognising the laws of a State or of the Northern Territory.

Under the revised section 9, the Minister will be able to provide for the application of the Sea Dumping Act in a manner having regard to the preferences, and the legislative regime, of a particular State or of the Northern Territory.

The revised subsection 9(1) will provide that where the Minister is satisfied that the law of a State makes provision for giving effect to the Protocol in relation to the coastal waters of that State, the Minister may, by notice published in the Gazette, make a declaration limiting the operation of the Sea Dumping Act in relation to that State or the coastal waters of that State.

The revised subsection 9(2) will provide that the Sea Dumping Act continues to apply in relation to a State, and the coastal waters of a State, with respect to activities involving seriously harmful material.

The revised subsection 9(3) will provide that a notice under subsection 9(1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

The revised subsection 9(4) will provide that a State, for the purposes of section 9, includes the Northern Territory.

The continued operation of the Sea Dumping Act in relation to seriously harmful material (which includes radioactive material), notwithstanding that a declaration may be in force under the revised section 9, is in line with the Federal Government’s policy regarding the regulation of nationally significant matters.

Item 25 Sections 9A to 14

This item will repeal the existing offence and penalty provisions contained under sections 9A, 9B, 9C, 9D, 10, 11, 12, 13 and 14, and insert revised offence and penalty provisions to be contained in new sections 10A, 10B, 10C, 10D, 10E and 10F.

• simplify some of the existing offence provisions and create additional offences;

• be consistent with Commonwealth criminal law policy and Chapter 2 of the Criminal Code; and

It will create an offence where, otherwise than in accordance with a permit, a person:

• dumps controlled material in Australian waters from any vessel, aircraft or platform;

• dumps controlled material into any part of the sea from any Australian vessel or Australian aircraft; or

It will create an offence where, otherwise than in accordance with a permit, a person incinerates controlled material at sea:

Note the combustion, or partial combustion of controlled material that occurs at sea, but nonetheless not on a vessel or platform, would not be considered incineration at sea for the purposes of this section. Rather, it is intended that this type of combustion should be considered dumping for the purpose of the Sea Dumping Act, as amended by the Bill, if the ultimate intention was the deliberate disposal of the controlled material being incinerated.

For example, it is intended that the burning of a vessel at sea as a means of scuttling the vessel would come within the scope of dumping.

Section 10C will create an offence where, otherwise than in accordance with a permit, a person:

• loads controlled material onto a vessel, aircraft or platform in Australia, or in Australian waters; or

• loads controlled material onto any Australian vessel or Australian aircraft;

• reckless as to whether it will be dumped into the sea or incinerated at sea.

This section will create an ancillary offence to the offences that will be provided by sections 10A and 10B. This section will enable, where sufficient evidence exists, the early intervention to prevent unlawful dumping into the sea and incineration at sea.

It will create an offence where a person exports controlled material from Australia to another country:

• reckless as to whether it will be dumped into the sea or incinerated at sea.

Section 10E will create an offence where a person, otherwise than in accordance with a permit, carries out an artificial reef placement.

This section will make it clear that the Commonwealth has responsibility for regulating the construction of artificial reefs.

Section 10F will create an additional offence in instances where there is a responsible person in relation to an offending craft or offending material, and an offence has been committed against section 10A, 10B, 10C, 10D or 10E.

Subsection 10F(1) will provide that if an offence is committed against section 10A, 10B, 10C, 10D or 10E (the primary offence), then each person who is a responsible person in relation to an offending craft or offending material is guilty of an offence if that person:

• knew, or was reckless as to whether, the offending craft or the offending material would be used in committing the primary offence; and

• did not take reasonable steps to prevent the use of the offending craft or the offending material in committing the primary offence.

Subsection 10F(2) will provide that an offence may be committed by each person who is a responsible person, whether or not any person has been charged with, or convicted of, the primary offence referred to in subsection 10F(1).

Subsection 10F(3) will provide the penalty that may be imposed upon conviction for an offence against section 10F.

• in relation to the offending craft - the owner, and the person in charge, of an offending craft; and

• in relation to the offending material - the owner of the offending material.

Note items 11 and 12 will insert definitions of offending craft and offending material, respectively.

Sections 10A, 10B, 10C, 10D, 10E and 10F will all include a uniform penalty structure based on the nature of the offending material used in the commission of the offence.

• imprisonment for up to 10 years and/or a fine of up to 2000 penalty units - if it is proved that any of the offending material is seriously harmful material;

• imprisonment for up to 2 years and/or a fine of up to 500 penalty units - if it is proved that any of the offending material is not within Annex 1 to the Protocol; or

• imprisonment for up to 1 year and/or a fine of up to 250 penalty units - in any other case.

Item 26 Section 15

This item will repeal section 15, which contains defences to a charge of a specified offence under the Sea Dumping Act, and substitute of a revised section 15, which will provide exceptions to certain offences under the Sea Dumping Act, as amended by the Bill.

The revised subsection 15(1) will provide that sections 10A and 10B do not apply in respect of dumping into the sea, and incineration at sea, respectively, if that dumping or incineration:

• is accordance with a permit granted by a party to the Protocol (other than Australia), in accordance with the Protocol.

• dumping into the sea of controlled material from an Australian vessel or Australian aircraft;

will not constitute an offence against paragraphs 10A(1)(b), 10A(1)(d) or 10B(1)(B), respectively, if the above conditions are satisfied.

The revised subsection 15(2) will provide that section 10C does not apply in respect of loading for the purpose of dumping into the sea or incineration at sea, if that loading:

• is for the purpose of dumping into the sea, or incineration at sea, in waters that are not Australian waters; and

• is accordance with a permit granted by a party to the Protocol (other than Australia), in accordance with the Protocol.

• the loading of controlled material onto a vessel, aircraft or platform in Australia, or Australian waters knowing that, or reckless as to whether, it will be dumped into the sea or incinerated at sea; and

• the loading of controlled material onto an Australian vessel or Australian aircraft knowing that, or reckless as to whether it, will be dumped into the sea or incinerated at sea;

will not constitute an offence against paragraphs 10C(1)(a) or 10C(1)(b), respectively, if the above conditions are satisfied.

The revised subsection 15(3) will, inter alia, implement Article 8.1 of the Protocol.

• the relevant conduct was necessary to secure the safety of human life, or of a vessel, aircraft or platform at sea, in a case of force majeure caused by stress of weather; or

• the relevant conduct appeared to be the only way of averting a threat to human life, or the safety of a vessel, aircraft or platform at sea, and there was every probability that the damage caused by the conduct would be less than would otherwise occur;

• the relevant conduct was so carried out as to minimise the likelihood of damage to human or marine life; and

• a report of the conduct, setting out details as specified by the regulation, was given to the Minister as soon as practicable after the conduct occurred.

• in relation to section 36 – contravention of a condition imposed in respect of a permit.

With respect to paragraph 15(3)(a), it is intended that in determining if the relevant conduct was necessary to secure the safety of human life or of a vessel, aircraft or platform, consideration be given to whether the:

• disposal of the controlled material in the particular circumstances was necessary and, if so, whether the method of disposal was reasonable in the particular circumstances having regard to the intention of the Sea Dumping Act and the Protocol; or

• placement of the matter or thing in the particular circumstances was necessary and, if so, whether the method of placement was reasonable in the particular circumstances having regard to the intention of the Sea Dumping Act and the Protocol.

If either is found to be the case, then paragraph (a) of the exception under subsection 15(3) will be established, provided that a situation of force majeure caused by stress of weather existed at the relevant time.

With respect to paragraph 15(3)(b), it is intended that in determining if the relevant conduct appeared to be the only way of averting a threat to human life, or the safety of a vessel, aircraft or platform, consideration be given to whether:

• disposal of the controlled material, or placement of the matter or thing, in the particular circumstances appeared to be the only way of averting the threat; and

• the method of disposal or placement was reasonable in the particular circumstances having regard to the intention of the Sea Dumping Act and the Protocol;

If each is found to be the case, then paragraph (b) of the exception under subsection 15(3) will be established, provided that there was every probability that the damage caused by the method of disposal or placement would be less than otherwise would occur.

Subsection 15(4) will provide, in accordance with Commonwealth criminal law policy, that in proceedings for an offence under the Sea Dumping Act the defendant bears the evidential burden of proving an exception as will be set out under section 15.

Note new sections 10A, 10B, 10C and 10E, and revised section 36, will be inserted into the Sea Dumping Act by items 25 and 70, respectively.

Item 27 Section 16

This item will repeal section 16 of the Sea Dumping Act, which deals with the Minister’s powers to make restoration to the environment, and substitute a revised section 16.

Currently the Minister’s power to cause steps to be taken to restore the environment is limited to circumstances involving dumping into Australian waters, where the Minister considers that the dumping is likely to:

• result in an interference with the exercise of the sovereign rights of Australia as a coastal state to explore, and exploit the natural resources of, the seabed and subsoil beneath Australian waters.

The revised section 16 will broaden these circumstances, to also include incineration at sea in Australian waters, an artificial reef placement in Australian waters, or the contravention of a condition of a permit, that is also likely to satisfy the criteria identified immediately above.

The revised subsection 16(1) will specify the grounds for ministerial action and the conduct that is authorised.

It will provide that where a regulated occurrence is in the Minister’s opinion likely to satisfy the criteria identified above, the Minister may cause steps to be taken to repair or remedy any condition, or to mitigate any damage, arising from the regulated occurrence.

The revised subsection 16(2) will define the term regulated occurrence to mean:

Items 28 Paragraphs 17(1)(a) and (b), 29 Subsection 17(2), 30 Subsection 17(2), 31 Subsection 17(3), and 32 Paragraph 17(3)(a)

These items will revise section 17 of the Sea Dumping Act, which provides the basis for the recovery of expenses and other liabilities incurred by the Commonwealth, in respect of an exercise of a power by the Minister under section 16.

Consequential to the revision of section 16, as provided by item 27, items 28, 29, 30 and 32 will extend the basis for recovery of expenses incurred by the Commonwealth, from, as is currently provided, acts and offences related to dumping, to acts and offences related to dumping, incineration, artificial reef placement or the contravention of a condition of a permit.

Consequential to the repeal of the definition of Australian platform, as provided by item 6, item 31 will remove the reference to Australian platform in subsection 17(3), and substitute a reference to platform.

Item 33 Subsection 17(5)

This item will also amend section 17 by repealing subsection 17(5), and inserting a revised subsection 17(5) and new subsections 17(6), (7), (8) and (9).

The revised subsection 17(5) will create an offence, and impose a penalty of up to two years imprisonment or a fine of up to 120 penalty units, or both, where a person:

• takes a vessel to sea that has been detained under subsection (3), before it is released from that detention; or

• removes an aircraft from Australia, or an external Territory, that has been detained under subsection (3), before it is released from that detention;

knowing that it is still under detention, or being reckless as to whether it is still under detention.

Section 17(6) will create an additional offence in instances where there is a responsible person in relation to the vessel or aircraft, and an offence has been committed against subsection 17(5).

Subsection 17(6) will provide that if an offence is committed against subsection 17(5) (the primary offence), then each person who is a responsible person in relation to the vessel or aircraft is guilty of an offence if that person:

• knew, or was reckless as to whether, the vessel or aircraft would be used in committing the primary offence; and

• did not take reasonable steps to prevent the use of the vessel or aircraft in committing the primary offence.

Subsection 17(7) will provide that an offence may be committed by each person who is a responsible person, whether or not any person has been charged with, or convicted of, the primary offence referred to in subsection 10F(1).

Subsection 17(8) will provide that a penalty of up to two years imprisonment or a fine of up to 120 penalty units, or both, may be imposed upon conviction for an offence against section (6)

Subsection 17(9) will define a responsible person, for the purposes of subsection (6), as:

Item 34 Subsection 18(4)

This item will amend section 18, by inserting a reference to or artificial reef placement after the references to dumping, in subsection 18(4).

This amendment will have the effect of extending the scope of the Minister’s powers that are currently provided under subsection 18(4).

Subsection 18(4) provides that the Minister may, in identified circumstances, compel an applicant for a permit to dump to enter into an agreement with the Commonwealth that includes a provision of any, or all, of the kinds referred to in paragraphs 18(4)(a) to (f).

• the undertaking of research or analysis into the effect that the proposed dumping may have on the marine environment; and

• arrangements regarding the recovery from the applicant of expenses incurred by the Commonwealth that are associated with that research or analysis.

This amendment will enable the Minister to also compel an applicant for an artificial reef permit to enter into these types of agreements, with respect to the artificial reef placement.

Item 35 Subsections 19(5), (5A), (6), (6A), (7) and (8)

This item will repeal existing subsections 19(5), (5A), (6), (6A), (7) and (8), and substitute new subsections 19(5), (6), (7), (8) and (8A).

Subsections 19(5), (5A), (6), (6A), (7) and (8) will be repealed because they include references to the Convention and the SPREP Protocol, which will no longer be required as the Bill will instead implement the Protocol.

The revised subsection 19(5) will provide, in accordance with the Article 4.1 of the Protocol, that a permit for dumping into the sea, or loading for dumping into the sea, may only be granted:

The revised subsection 19(6) will provide, in accordance with Article 5 of the Protocol, that a permit for incineration at sea or loading for incineration at sea may not be issued.

The revised subsection 19(7) will provide, as an exception to the revised subsections 19(5) and (6), and in accordance with Article 8.2 of the Protocol, that a permit for dumping into the sea, incineration at sea, or loading for dumping or incineration, may be issued for any controlled material if there is an emergency that:

• poses an unacceptable risk to human health, safety or the marine environment; and

The revised subsection 19(8) will provide that a permit cannot be issued that would authorise an artificial reef placement of seriously harmful material.

The revised subsection 19(8A) will provide that, when considering whether to grant a permit under the Sea Dumping Act, the Minister must have regard to:

• any other treaty or convention to which Australia is a party that relates to dumping at sea;

Items 36 Subsection 19(9), 37 Paragraph 19(9)(a), 38 Paragraph 19(9)(a), and 39 Paragraph 19(9)(b)

These items will revise subsection 19(9), by extending the scope of the Minister’s power to compel permit applicants to enter into agreements of the type specified in this subsection.

Subsection 19(9) currently provides that, before granting a permit for dumping, the Minister may compel an applicant to enter into an agreement with the Commonwealth that includes provisions of any, or all, of the kinds referred to in paragraphs 19(9)(a) to (g).

• the undertaking of research and monitoring relating to the effect that the proposed dumping may have on the marine environment; and

• arrangements regarding the recovery from the applicant of expenses incurred by the Commonwealth that are associated with that research and monitoring.

These items will extend this power to also enable the Minister to compel an applicant for an artificial reef permit to enter into these types of research, monitoring and cost recovery agreements, with respect to the artificial reef placement that would be authorised by that permit.

These amendments will not, however, extend the Minister’s power to compel an applicant for an artificial reef permit to enter into an agreement of the type specified under paragraph 19(9)(b). Such an agreement in respect of an artificial reef placement will not be necessary, having regard to the nature of artificial reefs.

Item 40 Subsections 19(10) and (11)

This item will further amend section 19 of the Sea Dumping Act by repealing subsections 19(10) and (11).

Subsection 19(10) will be repealed because it includes references to the Convention and the SPREP Protocol, which are no longer required as the Bill will instead implement the Protocol.

Consequential to the insertion of new subsections 19(5), (6) and (7), as provided by item 35, subsection 19(11) will no longer be required, and will therefore be repealed.

Items 41 Subsection 23(1), 42 Subparagraph 23(3)(a)(i), and 43 Subparagraph 23(3)(a)(ii)

Item 41 will repeal subsection 23(1) and insert a revised subsection 23(1), which will allow the holder of a permit to also apply for the variation of that permit or the suspension of a condition imposed in respect of that permit.

This will be in addition to being able to apply for the revocation or variation of a condition imposed in respect of the permit, which is currently provided by subsection 23(1), and the cancellation of a suspension of a permit, which is currently provided by subsection 23(2).

Consequential to this amendment to subsection 23(1), items 42 and 43 will amend subsection 23(3) to enable the Minister to also suspend the condition imposed in respect of the permit, or to vary the permit, respectively.

• revoke or vary the condition imposed in respect of the permit in accordance with an application under subsection 23(1);

• cancel the suspension of a permit in accordance with an application under subsection 23(2); or

The revised section 23 is generally intended to enable the holder of a permit to apply for, and have granted, the types of orders that may be made by the Minister, with respect to permits or conditions imposed in respect of permits, that may be both of benefit to the holder of a permit and not contrary to public interest.

The revised section 23 will not, however, provide for the holder of a permit to make application for the revocation or suspension of the permit. This is because generally the grant of such applications may enable an applicant to avoid having to satisfy conditions imposed in respect of a permit, and, nonetheless, section 20 provides the basis upon which the Minister may revoke or suspend a permit.

Item 44 Paragraph 24(2)(b)

Consequential to the proposed repeal of subsections 19(5) and 19(5A), as provided by item 35, this item will amend section 24 by repealing paragraph 24(2)(b), and substituting a revised paragraph 24(2)(b).

Section 24 currently provides, under subsection (1), a general right to seek review by the Administrative Appeals Tribunal (AAT) of decisions made by the Minister under sections 19, 20, 21 and 23, and, under subsection (2), some exceptions to that general right to seek review.

As the new subsection 19(7), inserted by item 35, will most closely reflect the provisions currently contained in subsections 19(5) and (5A), the revised paragraph 24(2)(b) will provide that a decision by the Minister to grant, or refusing to grant, a permit in accordance with subsection 19(7) will not be subject to review by the AAT.

This exception will be broader than that currently provided under paragraph 24(2)(b), because it will include a decision to grant, rather than just decisions refusing to grant, an emergency permit.

The reason for this broader exemption on review is because in determining whether or not to grant the emergency permit under subsection 19(7) time will, in most instances, be a crucial consideration.

The proposed broadening of this exception to review by the AAT will be balanced by additional requirements, as provided by item 47.

Items 45 Section 25, 46 Paragraph 25(d), and 47 At the end of Section 25

Item 45 will implement a drafting convention. It will not change the effect of section 25.

To provide consistency between the orders that can currently be made in respect of permits and conditions of permits, as provided by sections 20, 21 and 23, and the particulars of those orders that must currently be published in the Gazette under section 25, item 46 will revise paragraph 25(d) to also require the publication of particulars of any variation of a permit.

Item 47 will insert a new paragraph into section 25, which will provide that particulars of the reasons for a decision by the Minister under subsection 19(7) granting, or refusing to grant, a permit are to also be published in the Gazette.

Item 48 Section 27

Consequential to the proposed revision of the definition of inspector in subsection 4(1), as provided by item 10, item 48 will repeal section 27 and insert a revised section 27, which will deem officers of the Australian Customs Service as inspectors for the purposes of the Sea Dumping Act.

This will be in addition to, as is currently provided under subsection 4(1) and section 27, members of the Australian Federal Police or the police force of a Territory.

Item 49 Section 28

Consequential to the amendments provided by items 10 and 48, this item will amend section 28, by excluding officers of the Australian Customs Service (ACS) from being a class of inspectors that may be issued with inspector identity card.

This will be in addition to members of the Australian Federal Police, and the police force of a Territory, who are not currently issued with inspector identity cards.

The reason for this is that, for identity purposes, officers of the ACS are issued with an ACS identification card, which contains a photo of the officer, the officer’s name, an identification number and validity date. Therefore, as these identification cards will sufficiently identify these officers, it is unnecessary for these officers to also be issued with inspector identity cards under the Sea Dumping Act.

Subsections 29(6), (7), and 32(2) of the Sea Dumping Act, as will be amended by items 53 and 54, 55 and 56, and 65 and 66, respectively, will provide the circumstances in which an officer of the ACS will be required to produce for inspection his or her ACS identification card, or other written evidence of the fact that he or she is an officer of the ACS.

Item 50 Subsection 29(1)

Consequential to the repeal of the definition of Australian platform, as provided by item 6, this item will revise subsection 29(1) to extend the application of section 29 to all platforms in Australia, in an external Territory of Australia or in Australian waters, rather than, as is currently provided, to Australian platforms.

This revision of subsection 29(1) will not otherwise effect the application of section 29 in respect of any:

• vessel or aircraft that is in Australia, an external Territory of Australia or Australian waters.

Item 51 Paragraph 29(2)(a)

This item will amend subsection 29(2) by removing the reference to matter or thing, and substituting a reference to controlled material, in paragraph 29(2)(a).

It is intended that the use of the term controlled material instead of matter or thing will in no way narrow the application of subsection 29(2).

Note the explanation provided in respect of item 8 details the context in which the terms controlled material and matter or thing will be used in the Sea Dumping Act, as amended by the Bill.

Item 52 After paragraph 29(2)(a)

This item will insert a new paragraph, paragraph 29(2)(aa), which will extend the basis upon which an inspector may, under subsection 29(2), board a vessel, aircraft or platform, and stop and detain a vessel or aircraft, for the purpose of exercising the functions of an inspector in accordance with section 31.

Currently, under subsection 29(2), an inspector may board a vessel, aircraft or platform, and stop and detain a vessel or aircraft, for that purpose, where he or she believes on reasonable grounds there is in, or on, that vessel, aircraft or platform, any:

• matter or thing (to be replaced with controlled material – amendment provided by item 51) that is to be dumped into the sea or incinerated at sea; or

• matter or thing that may afford evidence as to the commission of an offence against the Sea Dumping Act.

This amendment will extend this power, to also include circumstances where an inspector believes upon reasonable grounds that there is, on a vessel, aircraft or platform, any matter or thing that is to be placed as a part of an artificial reef placement.

Items 53 Subsection 29(6) and 54 After paragraph 29(6)(a)

Consequential to the amendments provided by items 10, 48 and 49, these items will amend subsection 29(6) by requiring an inspector who:

to produce for inspection by the person in charge of that vessel, aircraft or platform, written evidence of the fact that he or she is an officer of the ACS.

This is a similar requirement to that currently provided under subsection 29(6) in relation to a member of a police force who is not in his or her uniform.

It is intended that the ACS identification card will constitute written evidence of the fact that he or she is an officer of the ACS, for the purpose of the revised subsection, but that such written evidence may also include other forms.

Items 55 Subsection 29(7) and 56 After paragraph 29(7)(a)

Consequential to the amendments provided by items 10, 48 and 49, these items will amend subsection 29(7), by requiring an inspector who:

to produce for inspection by that person, written evidence of the fact that he or she is an officer of the ACS.

This is a similar requirement to that currently provided under subsection 29(7) in relation to a member of a police force who is not in his or her uniform.

Items 57 Paragraph 30(2)(a), 58 After paragraph 30(2)(a), 59 Subsection 30(2), 60 Subsection 30(3), 61 Subparagraph 30(3)(a)(i), and 62 After subparagraph 30(3)(a)(i)

These items will amend to section 30 of the Sea Dumping Act, which deals with access to premises by inspectors.

Subsection 30(2) currently specifies the grounds upon which an inspector may make application to a Justice of the Peace for a warrant authorising the entry into premises for the purpose of exercising the functions of an inspector in accordance with section 31.

These grounds are specified as occasions where an inspector has reason to believe that that there is on premises any matter or thing that is to be dumped into the sea or incinerated at sea, or that may afford evidence as to the commission of an offence against the Sea Dumping Act.

Subsection 30(3) currently specifies the grounds upon which a Justice of the Peace may grant a warrant authorising the entry of an inspector into premises for the purpose of exercising his or her functions in accordance with section 31.

These grounds are specified as occasions where there is reasonable grounds for believing that there is on premises to which the application relates any matter or thing that is to be dumped into the sea or incinerated at sea, or that may afford evidence as to the commission of an offence against the Sea Dumping Act.

Consequential to the amendment provided by item 8, which will insert the definition of the term controlled material into subsection 4(1), items 57 and 61 will amend paragraph 30(2)(a) and subparagraph 30(3)(a)(i), respectively, by replacing the term matter or thing with controlled material.

It is intended that the use of controlled material instead of matter or thing will in no way narrow the scope of subsection 30(2) or (3).

Note the explanation provided in respect of item 8 details the context in which the terms controlled material and matter or thing will be used in the Sea Dumping Act.

Item 58 will extend the grounds upon which an inspector may make application for a warrant under subsection 30(2), to also include occasions where an inspector has reason to believe that that there is on premises any matter or thing that is to be placed as part of an artificial reef placement.

Items 59 and 60 will amend subsections 30(2) and 30(3), respectively, by removing the references to Justice of the Peace, and substituting a reference to magistrate, wherever occurring in those subsections.

These amendments will bring section 30 into line with Commonwealth criminal law policy regarding the applications for, and the granting of, these types of warrants.

Item 62 will extend the grounds upon which a warrant may be granted under subsection 30(3), to also include occasions where there is reasonable grounds for believing that there is on premises, to which the application relates, any matter or thing that is to be placed as a part of an artificial reef placement, and the issue of the warrant is reasonably required for the purposes of the Sea Dumping Act.

Item 63 After section 30

Item 63 will insert a new section, section 30A, to enable a section 30 warrant to be granted by telephone or other electronic means.

Subsection 30A(1) will provide the circumstances in which an application may be made to a magistrate, by telephone, facsimile or other electronic means, for a warrant under sections 30.

Subsection 30A(2) will provide that a magistrate may require voice communication to the extent that it is practicable in the circumstances.

Subsection 30A(3) will provide that an application for a warrant under section 30A, must include all information that would ordinarily be provided with an application for a warrant under section 30, but that the section 30A application may be made before that information is sworn or affirmed.

Subsection 30A(4) will provide the conditions upon which the magistrate may complete and sign the warrant, being a warrant in the same form as would be issued under section 30.

• the magistrate who signs the warrant under subsection 30A(4), regarding notification of the details of that warrant; and

• the inspector who receives notification from that magistrate, regarding completion of a form of a warrant.

Subsection 30A(6) will provide the obligations of the inspector who completes a form of warrant under subsection 30A(5), regarding the return of that form, and the provision of the information provided by the inspector under subsection 30A(3), to the magistrate that signed the warrant.

Subsection 30A(7) will provide that the magistrate must attach the warrant signed by that magistrate to the documents provided by the inspector in accordance with subsection 30A(6).

Subsection 30A(8) will provide that a warrant duly completed by an inspector under subsection 30A(5), and in accordance with the warrant signed by the magistrate, is authority for any exercise of power that the warrant so signed authorises.

Subsection 30A(9) will provide an evidentiary rule regarding the non-production into evidence of the warrant signed by the magistrate.

Items 64 Paragraphs 31(1)(b), (c) and (d)

This item will amend subsection 31(1), which provides the functions of an inspector, who boards a vessel, aircraft or platform under section 29, or enters premises under section 30, by repealing paragraphs 31(1)(b), (c) and (d), and inserting revised paragraphs 31(1)(b), (c) and (d).

• as provided by paragraph 31(1)(b) – search for, inspect, take extracts from and make copies of any document that relates to the dumping into the sea, incineration at sea or loading for dumping or incineration, of any matter or thing;

• as provided by paragraph 31(1)(c) – inspect, and take samples of, any wastes or other matter; and

• as provided by paragraph 31(1)(d) – observe the loading on a vessel or aircraft, in accordance with a permit, of any matter or thing that is to be dumped into the sea or incinerated at sea, or observe the dumping into the sea, or incineration at sea, in accordance with a permit, of any matter or thing.

The revised paragraph 31(1)(b) will provide that the functions of an inspector, in respect of the activities specified under sections 29 and 30, are to search for, inspect, take extracts from and make copies of any document that relates to:

• the dumping into the sea, incineration at sea or loading for dumping or incineration, of any controlled material;

• the export of any controlled material that is to be dumped into the sea or incinerated at sea; and

• any matter or thing that is to be placed as a part of an artificial reef placement.

The revised paragraph 31(1)(c) will provide that the functions of an inspector, in respect of these activities, are to inspect, and take samples of:

• any matter or thing that is to be placed as a part of an artificial reef placement.

The revised paragraph 31(1)(d) will provide that the functions of an inspector, in respect of these activities, are to observe:

• the loading on a vessel, aircraft or platform of any controlled material that is to be dumped into the sea or incinerated at sea;

• the dumping into the sea, or incineration at sea, of any controlled material; or

This extension of inspector powers, as provided by this amendment, is, inter alia, consequential to new sections 10D and 10E, as provided by item 25, which will prohibit the export of controlled material for dumping into the sea or incineration at sea, and provide the basis for the regulation of the creation of artificial reefs, respectively.

This amendment is also consequential to other amendments in the Bill that will establish, and provide for consistency regarding, the use of the terms controlled material and any matter or thing, and that will remove references to wastes or other matter, in the Sea Dumping Act.

It is intended that the use of the terms controlled material and any matter or thing, instead of, as currently provided, the terms wastes or other matter or any matter or thing, will in no way narrow the current scope of paragraphs 31(1)(b), (c) or (d).

Note the explanation provided in respect of item 8 of the Bill details the context in which the terms controlled material and any matter or thing will be used in the Sea Dumping Act.

Finally, the references in the current paragraph 31(1)(d) to in accordance with a permit will not be included in the revised paragraph (d), as their meaning in their current contexts is unclear, and is not required having regard to sections 29 and 30 of the Sea Dumping Act.

Items 65 Subsection 32(2) and 66 After paragraph 32(2)(a)

Consequential to the amendments provided by items 10, 48 and 49, these items will amend subsection 32(2) by requiring an inspector who:
• arrests a person under section 32;

• is an officer of the Australian Customs Service (ACS); and
• is not in his or her ACS uniform;

to produce for inspection by the person arrested, written evidence of the fact that he or she is an officer of the ACS.

This is a similar requirement to that currently provided under subsection 32(2) in relation to a member of a police force who is not in his or her uniform.

Item 67 Subsection 32(3)

Item 67 will revise subsection 32(3) by removing the reference to Justice of the Peace, and substituting a reference to magistrate, in that subsection.

This amendment will bring section 32 into line with Commonwealth criminal law policy, regarding dealings with persons who are arrested without a warrant.

Item 68 Paragraph 33(1)(a)

Consequential to the repeal of sections 9A – 14, as provided by item 25, this item will amend section 30, by removing the reference to section 9A, 9B, 9C, 10, 11, 12 or 14 in paragraph 33(1)(a), and substituting a reference to 10A, 10B, 10C, 10D or 10E.

Subsection 33(1) currently provides that a prescribed court may grant an injunction restraining a person from engaging in conduct that constitutes, or would constitute, an offence against any of the sections specified in paragraph 33(1)(a).

The revised paragraph 33(1)(a) will refer to the appropriate new offences under the Sea Dumping Act, as amended by item 25.

Item 69 Subsection 35(2)

This item will amend subsection 35(2) by increasing the maximum penalty that may be imposed upon conviction for an offence against that section, from a fine not exceeding 60 penalty units, to imprisonment for up to 1 year or a fine of up to 60 penalty units, or both.
Subsection 35(2) provides that a person is guilty of an offence where he or she knowingly:
• makes a false or misleading statement; or
• furnishes a document that contains false or misleading information;

Item 70 Section 36

Consequential to the application of Chapter 2 of the Criminal Code to all offences in respect of the Sea Dumping Act, as provided by item 23, this item will repeal section 36, and insert a revised section 36 which revises the offence in respect of the contravention of a condition imposed in respect of a permit.

The revised section 36 will provide that the holder of a permit is guilty of an offence, punishable upon conviction by imprisonment for up to one year, or a fine of up to 250 penalty units, or both, if he or she:

• does an act (including an omission) that constitutes a contravention of a condition imposed in respect of that permit; and

• at the time of that act, he or she knows of, or is reckless as to, the existence of that condition.

This revised offence will be broader than the current section 36 offence which, upon application Chapter 2 of the Criminal Code, would most likely be interpreted as only applying in respect of holders of permits who acted with a specific intention to contravene a specific permit condition.

Item 71 Section 37

Consequential to the amendments provided in the Bill that will revise most of the offence and penalty provisions in the Sea Dumping Act, this item will repeal section 37 and insert a revised section 37.

Section 37 currently details indictable offences under the Sea Dumping Act and the penalties that may be imposed against a person upon conviction by a court of summary jurisdiction.

The revised subsection 37(1) will provide a list of offences under the Sea Dumping Act, as amended by the Bill, that are indictable offences.

The revised subsection 37(2) will provide the grounds upon which a court of summary jurisdiction may hear and determine proceedings for an indictable offence.

The revised subsection 37(3) will provide the maximum penalty that a court of summary jurisdiction may impose upon conviction for an offence against section 10A, 10B, 10C, 10D, 10E or 10F.

The revised subsection 37(4) will provide the maximum penalty that a court of summary jurisdiction may impose upon conviction for an offence against section 17(5) or 35(1).

The revised subsection 37(5) will provide the maximum penalty that a court of summary jurisdiction may impose upon conviction for an offence against section 35(2).

The revised subsection 37(6) will provide the maximum penalty that a court of summary jurisdiction may impose upon conviction for an offence against section 36(1).

Items 72 Subsection 38(4), 73 After paragraph 38(4)(b), 74 Paragraph 38(4)(e), and 75 After paragraph 38(4)(f)

Section 38 deals with evidence in proceedings for an offence against the Sea Dumping Act.

Items 72 and 74 will implement a drafting convention. These items will not change the effect of section 38.
Item 73 will insert new paragraphs, paragraphs 38(4)(ba) and (bb), which will enable the Minister to give a certificate constituting prima facie evidence that:
• a particular permit was revoked, suspended or varied at a particular time; or

A particular permit will only be revoked or suspended at a particular time in accordance with an order made by the Minister under subsection 20(1). A particular permit will only be varied at a particular time in accordance with an order made by the Minister either under subsection 20(1) or under the revised subparagraph 23(3)(a)(ii), as provided by item 43.

The cancellation of the suspension of a particular permit will only occur at a particular time in accordance with an order made by the Minister under subparagraph 23(3)(a)(iii) of the Sea Dumping Act.

Item 75 will insert a new paragraph, paragraph 38(4)(g), which will enable the Minister to give a certificate constituting prima facie evidence that Australian waters either included or did not include the top hat area described in Article 4.3 of the Torres Strait Treaty at a particular time.

Australian waters will only include the top hat area described in Article 4.3 of the Torres Strait Treaty if the Minister has made a declaration under the section 4A, as provided by item 20 of the Bill.

Item 76 After section 40

This item will insert section 40A, a new section that provides an indemnity against legal action for loss or injury caused by any matter or thing whose placement was authorised by an artificial reef permit (whether or not the placement of the matter or thing was done in accordance with the permit) for:

This indemnity will be in relation an act or omission, in good faith, whether or not the act or omission was negligent.

It is intended that in determining whether or not an act or omission was in good faith, the consideration be given to:

Item 77 At the end of section 41

This item will insert subsection 41(3), a new subsection which will provide a limitation upon material that can be prescribed as seriously harmful material.

Item 78 Schedules 1 to 4

This item will repeal Schedules 1 to 4 to the Sea Dumping Act, and substitute of a revised Schedule 1.

The revised Schedule 1 will contain a copy of the English text of the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972.

Sea Installations Act 1981

Item 79 Subsection 19(2)

This item will amend section 19 of the Sea Installations Act by repealing subsection (2).

Subsection 19(2) of the Sea Installations Act provides that the Minister shall not grant a permit that would authorise a sea installation to be located partly in, and partly outside, the adjacent area in respect of a State or an affected Territory.

It is intended that this amendment does not bring within the application of the Sea Installations Act, sea installations, or the installation and the use of sea installations, to which it does not currently apply.

Item 80 Subsection 29(3)

This item will amend section 29 of the Sea Installations Act by repealing subsection (3).

Subsection 29(3) of the Sea Installations Act provides that the Minister shall not vary a permit so that a sea installation is located partly in, and partly outside, the adjacent area in respect of a State or an affected Territory.

Commonwealth of Australia Explanatory Memoranda

ENVIRONMENT AND HERITAGE LEGISLATION AMENDMENT BILL 1999

ENVIRONMENT AND HERITAGE LEGISLATION AMENDMENT BILL 1999

GENERAL OUTLINE

Environment Protection (Sea Dumping) Act 1981

Sea Installations Act 1987

FINANCIAL IMPACT STATEMENT

Environment Protection (Sea Dumping) Act 1981

Sea Installations Act 1987

REGULATION IMPACT STATEMENT

Environment Protection (Sea Dumping) Act 1981

Sea Installations Act 1987

Schedule 1 – Amendments

Environment Protection (Sea Dumping) Act 1981

Item 1 Title

Item 2 Subsection 4(1)

Item 3 Subsection 4(1)

Item 4 Subsection 4(1)

Item 5 Subsection 4(1) (definition of Australian fishing zone)

Item 6 Subsection 4(1) (definition of Australian platform)

Item 7 Subsection 4(1) (paragraphs (c) and (d) of the definition of Australian waters)

Item 8 Subsection 4(1)

Item 9 Subsection 4(1) (definition of Convention)

Item 10 Subsection 4(1) (paragraph (b) of the definition of inspector)

Item 11 Subsection 4(1)

Item 12 Subsection 4(1)

Item 13 Subsection 4(1)

Item 14 Subsection 4(1)

Item 15 Subsection 4(1) (definition of SPREP Protocol)

Item 16 Subsection 4(1)

Item 17 Subsection 4(4)

Item 18 Subsection 4(4A)

Item 19 Subsection 4(5)

Item 20 After section 4

Item 21 Section 5

Item 22 Section 7

Item 23 Criminal Code Applies

Item 24 Section 9

Item 25 Sections 9A to 14

Item 26 Section 15

Item 27 Section 16

Items 28 Paragraphs 17(1)(a) and (b), 29 Subsection 17(2), 30 Subsection 17(2), 31 Subsection 17(3), and 32 Paragraph 17(3)(a)

Item 33 Subsection 17(5)

Item 34 Subsection 18(4)

Item 35 Subsections 19(5), (5A), (6), (6A), (7) and (8)

Items 36 Subsection 19(9), 37 Paragraph 19(9)(a), 38 Paragraph 19(9)(a), and 39 Paragraph 19(9)(b)

Item 40 Subsections 19(10) and (11)

Items 41 Subsection 23(1), 42 Subparagraph 23(3)(a)(i), and 43 Subparagraph 23(3)(a)(ii)

Item 44 Paragraph 24(2)(b)

Items 45 Section 25, 46 Paragraph 25(d), and 47 At the end of Section 25

Item 48 Section 27

Item 49 Section 28

Item 50 Subsection 29(1)

Item 51 Paragraph 29(2)(a)

Item 52 After paragraph 29(2)(a)

Items 53 Subsection 29(6) and 54 After paragraph 29(6)(a)

Items 55 Subsection 29(7) and 56 After paragraph 29(7)(a)

Items 57 Paragraph 30(2)(a), 58 After paragraph 30(2)(a), 59 Subsection 30(2), 60 Subsection 30(3), 61 Subparagraph 30(3)(a)(i), and 62 After subparagraph 30(3)(a)(i)

Item 63 After section 30

Items 64 Paragraphs 31(1)(b), (c) and (d)

Items 65 Subsection 32(2) and 66 After paragraph 32(2)(a)

Item 67 Subsection 32(3)

Item 68 Paragraph 33(1)(a)

Item 69 Subsection 35(2)

Item 70 Section 36

Item 71 Section 37

Items 72 Subsection 38(4), 73 After paragraph 38(4)(b), 74 Paragraph 38(4)(e), and 75 After paragraph 38(4)(f)

Item 76 After section 40

Item 77 At the end of section 41

Item 78 Schedules 1 to 4

Sea Installations Act 1981

Item 79 Subsection 19(2)

Item 80 Subsection 29(3)