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2022 - 2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
ENVIRONMENT PROTECTION (SEA DUMPING) AMENDMENT (USING NEW
TECHNOLOGIES TO FIGHT CLIMATE CHANGE) BILL 2023
EXPLANATORY MEMORANDUM
(Circulated by the authority of the Minister for the Environment and Water,
the Hon. Tanya Plibersek MP)
ENVIRONMENT PROTECTION (SEA DUMPING) AMENDMENT (USING NEW
TECHNOLOGIES TO FIGHT CLIMATE CHANGE) BILL 2023
GENERAL OUTLINE
The Environment Protection (Sea Dumping) Amendment (Using New Technologies to Fight
Climate Change) Bill 2023 (the Bill) would amend the Environment Protection (Sea
Dumping) Act 1981 (the Act).
The Act implements Australia's international obligations under the 1996 Protocol to the
Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter
1972 (the London Protocol). The Act regulates the loading, dumping and incineration of
waste at sea and the placement of artificial reefs within Australian waters. It also prohibits the
ocean disposal of material considered too harmful to be released into the marine environment
and regulates permitted ocean waste disposal to minimise its potential harmful environmental
impacts.
In 2009, an amendment was adopted by the Contracting Parties to the London Protocol to
enable the export of carbon dioxide streams from a Contracting Party to another country for
the purpose of carbon sequestration in sub-seabed geological formations. This amendment to
the London Protocol supports countries without storage capacity to reduce their atmospheric
emissions by allowing the export of carbon dioxide streams to countries with available sub-
seabed geological storage formations.
In 2013, an amendment was adopted by the Contracting Parties to the London Protocol to
allow for the placement of wastes or other matter for a marine geoengineering activity, such
as ocean fertilisation, for the purpose of scientific research. This amendment to the London
Protocol enables legitimate scientific research to determine the feasibility of marine
geoengineering activities as an option to reduce atmospheric carbon dioxide and understand
the associated risks.
The purpose of this Bill is to give effect to Australia's international obligations arising out of
the 2009 and 2013 amendments to the London Protocol.
The amendments to the Act proposed by the Bill would:
• enable a permit to be granted for the export of carbon dioxide streams from carbon
dioxide capture processes for the purpose of sequestration into a sub-seabed
geological formation in accordance with the 2009 amendments to the London
Protocol; and
• enable a permit to be granted for the placement of wastes or other matter for a marine
geoengineering activity for the purpose of scientific research in accordance with the
2013 amendments to the London Protocol; and
• make minor consequential amendments to enable effective implementation of the two
types of new permits; and
• make minor technical amendments to clarify existing provisions and adopt modern
drafting practices.
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FINANCIAL IMPACT STATEMENT
The Bill would have no financial impact on the Australian Government Budget.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
The full Statement of Compatibility with Human Rights is attached to this Explanatory
Memorandum at the Attachment.
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ENVIRONMENT PROTECTION (SEA DUMPING) AMENDMENT (USING NEW
TECHNOLOGIES TO FIGHT CLIMATE CHANGE) BILL 2023
NOTES ON CLAUSES
Clause 1 - Short title
1. Clause 1 would provide that the Environment Protection (Sea Dumping) Amendment
(Using New Technologies to Fight Climate Change) Bill 2023 (the Bill), when
enacted, is to be cited as the Environment Protection (Sea Dumping) Amendment
(Using New Technologies to Fight Climate Change) Act 2023.
Clause 2 - Commencement
2. Clause 2 would provide for the commencement of the Bill. The table under clause 2
would provide for the commencement for each provision of the Bill as specified.
3. Table item 1 would provide that sections 1 to 3 of the Bill commence the day after the
Bill receives the Royal Assent.
4. Table item 2 would have the effect that Part 1 of Schedule 1 to the Bill would
commence on the later of:
• the day after the Bill receives the Royal Assent (paragraph (a)); and
• the day on which Australia deposits a declaration on provisional application of
the 2009 amendment to Article 6 of the 1996 Protocol to the Convention on
the Prevention of Marine Pollution by Dumping of Wastes and Other Matter,
1972 (the London Protocol), in accordance with Resolution LP.5(14) adopted
on 11 October 2019 by the Contracting Parties to the London Protocol
(paragraph (b)).
5. However, the provisions in Part 1 of Schedule 1 to the Bill do not commence at all if
the event mentioned in paragraph (b) of table item 2 does not occur.
6. The Minister must announce, by notifiable instrument, the day on which Australia
deposits a declaration on provisional application in accordance with Resolution
LP.5(14).
7. Table item 3 would have the effect that Part 2 of Schedule 1 to the Bill would
commence on the later of:
• the day after the Bill receives the Royal Assent (paragraph (a)); and
• the day on which amendments to the London Protocol, being the amendments
set out in the Annex to Resolution LP.4(8) adopted on 18 October 2013 by the
Contracting Parties to the London Protocol, enter into force for Australia
(paragraph (b)).
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8. However, the provisions in Part 2 of Schedule 1 to the Bill do not commence at all if
the event mentioned in paragraph (b) of table item 3 does not occur.
9. The Minister must announce, by notifiable instrument, the day on which those
amendments to the London Protocol enter into force for Australia.
Clause 3 - Schedules
10. Clause 3 would provide that the legislation that is specified to be amended or repealed
as set out in a Schedule to the Bill has effect according to the terms of the relevant
Schedule.
11. Schedule 1 to the Bill would amend the Environment Protection (Sea Dumping) Act
1981 (the Act) in the manner specified in that Schedule.
SCHEDULE 1--AMENDMENTS
Part 1--Export of carbon dioxide streams
12. Amendments to Article 6 of the London Protocol (the 2009 amendments) were
adopted on 30 October 2009 through Resolution LP.3(4). The 2009 amendments
enable the export of carbon dioxide streams from a State Party to the London Protocol
to another country for the purpose of carbon sequestration in sub-seabed geological
formations.
13. The 2009 amendments to the London Protocol are aimed at supporting countries
without storage capacity to reduce their atmospheric emissions by allowing them to
export carbon dioxide streams to countries with available sub-seabed geological
storage formations.
14. Part 1 of Schedule 1 to the Bill would amend the Act to implement the 2009
amendments to the London Protocol.
Item 1
15. Existing subsection 10D(1) of the Act is an offence provision that prohibits the export
of controlled material from Australia to another country for the purpose of dumping
or incineration at sea. The term controlled material is defined by subsection 4(1) of
the Act to mean wastes or other matter within the meaning of the London Protocol
and a vessel, aircraft or platform. Wastes and other matter within the meaning of the
London Protocol includes carbon dioxide streams.
16. Item 1 of Part 1 of Schedule 1 to the Bill would repeal existing subsection 10D(1) and
substitute it with a new subsection 10D(1) to additionally deal with the export of
carbon dioxide streams from carbon dioxide capture processes for sequestration.
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17. New subsection 10D(1) would provide that a person commits an offence if:
• the person exports controlled material from Australia to another country:
o knowing that it will be dumped into the sea or incinerated at sea (new
subparagraph 10D(1)(a)(i)); or
o reckless as to whether it will be dumped into the sea or incinerated at
sea (new subparagraph 10D(1)(a)(ii)); and
• if the controlled material is carbon dioxide streams from carbon dioxide
capture processes for sequestration into a sub-seabed geological formation -
the export of the material is not in accordance with a permit (new paragraph
10D(1)(b)).
18. The purpose of this amendment would be to recognise that the new export permit
introduced by item 3 of Part 1 of Schedule to the Bill would allow the export of
controlled material in limited circumstances. Where the relevant controlled material is
carbon dioxide streams from carbon dioxide capture processes for sequestration into a
sub-seabed geological formation and the export is in accordance with a permit granted
under new subsection 19(7B) (as inserted by item 3), no offence would have been
committed.
19. The penalty for the offence at new subsection 10D(1) would be provided by the
existing and unchanged subsection 10D(2) of the Act.
Item 2
20. Item 2 of Part 1 of Schedule 1 to the Bill would insert a new subsection 15(2A) into
the Act. New subsection 15(2A) would provide a new exception to the offence
provision at existing section 10C of the Act, which prohibits the loading of controlled
material on a vessel, aircraft or platform in Australia or Australian waters, or on any
Australian vessel or Australian aircraft, unless it is in accordance with a permit.
21. New subsection 15(2A) would provide that section 10C does not apply in relation to
the loading of controlled material on a vessel, aircraft or platform in Australia or
Australian waters if:
• the controlled material is carbon dioxide streams from carbon dioxide capture
processes for sequestration into a sub-seabed geological formation; and
• the loading is for the purpose of the export of the carbon dioxide streams from
Australia to another country; and
• there is a permit in force for that export.
22. The effect of this amendment would be that a person who was granted an export
permit under new subsection 19(7B) (as inserted by item 3) would not be committing
an offence when loading the relevant controlled material for export if they were not
granted a separate loading permit in connection with that export. It is intended that
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exporters would not be required to apply for a separate loading permit if the
applicable export permit is in force at the time of loading.
23. Existing subsection 15(4) has the effect that a person who seeks to rely on the
exception at new subsection 15(2A) bears an evidential burden in relation to the
matters in that subsection. The reversal is justified in these instances, as the matter to
be proved (that is, whether the person holds a permit) is a matter that would be
peculiarly in the knowledge of the defendant. In the event of a prosecution, it would
be significantly more difficult and costly for the prosecution to disprove all possible
circumstances than it would be for a defendant to establish the existence of one
potential circumstance. The reversal in these circumstances is consistent with the
principles set out in the Guide to Framing Commonwealth Offences, Infringement
Notices and Enforcement Powers (the Commonwealth Guide to Framing Offences).
Item 3
24. Section 19 of the Act allows the Minister to grant, or refuse to grant, a permit to a
person who has made an application in accordance with section 18 (which sets out the
application process for permits). Section 19 also sets out the different types of permits
that may be granted under the Act, and the relevant criteria for granting those permits.
25. Item 3 of Part 1 of Schedule 1 to the Bill would insert a new subsection 19(7B) into
the Act. New subsection 19(7B) would allow the Minister to grant a permit for the
export of controlled material from Australia to another country for dumping. This
would be a new type of permit that may be granted under the Act.
26. Under new subsection 19(7B), the Minister may only grant the export permit if the
Minister is satisfied of the following:
• that the controlled material is carbon dioxide streams from carbon dioxide
capture processes for sequestration into a sub-seabed geological formation
(new paragraph 19(7B)(a)); and
• of the matters referred to in paragraphs 4.1, 4.2 and 4.3 of Annex 1 to the
London Protocol (new paragraph 19(7B)(b)); and
• that there is an agreement or arrangement in force between Australia and the
other country that includes the matters covered by paragraphs 2.1 and 2.2 (as
appropriate) in the Annex to Resolution LP.3(4) adopted on October 2009 by
the Contracting Parties to the Protocol (new paragraph 19(7B)(c)); and
• that the grant of the permit would be in accordance with Annex 2 of the
London Protocol (new paragraph 19(7B)(d)); and
• of any other matters the Minister considers relevant (new paragraph
19(7B)(e)).
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27. The criteria set out in new subsection 19(7B) would reflect the requirements for the
export of carbon dioxide streams for sequestration outlined in the 2009 amendments
to the London Protocol. These requirements are intended to ensure that the export
may only be allowed with the agreement of the country that the carbon dioxide
streams are being exported to and after undertaking a rigorous assessment process
considering the environmental impact of an export.
28. In order to apply for export permits under new subsection 19(7B), a person would
have to make an application in accordance with section 18 of the Act. The existing
provisions relating to the variation, suspension, and revocation of permits (section
20), and the ability to impose and revoke, suspend, or vary conditions on the permit
(section 21) would also apply to permits granted under new subsection 19(7B).
29. A decision made by the Minister to grant, or refuse to grant, an export permit under
subsection 19(7B) would be merits reviewable by the Administrative Appeal
Tribunal, in accordance with existing section 24 of the Act.
Item 4
30. Item 4 of Part 1 of Schedule 1 to the Bill is an application provision that would clarify
how the amendments proposed by Part 1 of Schedule 1 to the Bill apply.
31. Subitem 4(1) would provide that the repeal and substitution of subsection 10D(1) by
item 1, which prohibits the export of controlled material, applies in relation to the
export of controlled material from Australia on or after the commencement of Part 1
to Schedule 1 to the Bill.
32. Subitem 4(2) would provide that new subsection 15(2A) inserted by item 2, which
provides an exception to the loading offence at section 10C, applies in relation to the
loading of controlled material on or after the commencement of Part 1 of Schedule 1
to the Bill.
33. Subitem 4(3) would ensure that new subsection 19(7B) inserted by item 3, which
enables the Minister to grant an export permit in specified circumstances, applies in
relation to the export of controlled material from Australia on or after the
commencement of Part 1 of Schedule 1 to the Bill.
Part 2--Placement of wastes or other matter into the sea for marine geoengineering
activities
34. Amendments to the London Protocol were adopted on 18 October 2013, through
Resolution LP.4(8), to allow for the placement of wastes or other matter for a marine
geoengineering activity for scientific research (the 2013 amendments).
35. The 2013 amendments to the London Protocol allow for scientific research to
determine the feasibility of a marine geoengineering activity, such as ocean
fertilisation, as an option to reduce atmospheric carbon dioxide and understand the
associated risks.
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36. Part 2 of Schedule 1 to the Bill would amend the Act to implement the 2013
amendments to the London Protocol.
Item 5
37. Item 5 of Part 2 of Schedule 1 to the Bill would insert ", placement of wastes or other
matter into the sea for marine geoengineering activities," into the title of the Act after
"incineration at sea". This is a consequential amendment to the amendments proposed
by Part 2 of Schedule 1 to the Bill. The purpose of this amendment would be to
describe the operation of the Act, as amended by this Bill, more accurately.
Item 6
38. Item 6 of Part 2 of Schedule 1 to the Bill would insert the heading "Part 1--
Preliminary" before section 1 of the Act. The purpose of this amendment would be to
assist readers with navigating the Act.
Item 7
39. Item 7 of Part 2 of Schedule 1 to the Bill would omit "(within the meaning of the
Protocol)" from paragraph (a) of the definition of controlled material in subsection
4(1). This is a consequential amendment to the amendments proposed by item 13
which seeks to clarify the meaning of paragraph (a) of this definition.
Item 8
40. Item 8 of Part 2 of Schedule 1 to the Bill would insert a new definition for marine
geoengineering activity in subsection 4(1) of the Act to mean an activity that:
• is marine geoengineering (within the meaning of Article 1 of the London
Protocol); and
• is listed in Annex 4 to the London Protocol.
41. This definition would apply by reference to the definitions contained in the London
Protocol. Article 1 of the London Protocol contains a substantive definition for marine
geoengineering. However, the London Protocol only seeks to cover certain kinds of
marine geoengineering activities which are listed in Annex 4. This amendment seeks
to reflect this by ensuring that only those certain activities listed in Annex 4 are
covered by the Act.
Item 9
42. Subsection 10F(1) of the Act provides that if an offence is committed against
specified sections of the Act (referred to as the primary offence), then each
responsible person in relation to the offending craft or offending material may also be
liable for an offence if the specified circumstances apply.
43. Item 9 of Part 2 of Schedule 1 to the Bill would insert new paragraph (aa) into the
definition of offending craft in subsection 4(1) to clarify that, if the primary offence
referred to in section 10F is an offence against new section 10AA, an offending craft
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means any vessel, aircraft or platform from which the placement of the wastes or
other matter occurred. New section 10AA (which would be inserted by item 16)
prohibits the placement of wastes or other matter into the sea for marine
geoengineering activities not in accordance with a permit.
44. This is a consequential amendment to the amendments proposed by item 19 of the
Bill that amends section 10F to include the new section 10AA as a primary offence
for the purposes of that section.
Item 10
45. Item 10 of Part 2 of Schedule 1 to the Bill would insert new paragraph (ca) into the
definition of offending craft in subsection 4(1) to clarify that, if the primary offence
referred to in section 10F is an offence against new section 10CA, an offending craft
means any vessel, aircraft or platform on which the wastes or other matter was loaded.
New section 10CA (which would be inserted by item 17) prohibits loading for the
purpose the placement of wastes or other matter into the sea for marine
geoengineering activities not in accordance with a permit.
46. This is a consequential amendment to the amendments proposed by item 19 of Part 2
of Schedule 1 to the Bill which amends section 10F to include the new section 10CA
as a primary offence for the purpose of that section.
Item 11
47. Item 11 of Part 2 of Schedule 1 to the Bill would insert new paragraph (da) into the
definition of offending craft in subsection 4(1) to clarify that if the primary offence
referred to in section 10F is an offence against new section 10DA, an offending craft
means any vessel, aircraft or platform used to export the wastes or other matter. New
section 10DA (which would be inserted by item 18) prohibits export for the purpose
the placement of wastes or other matter into the sea for marine geoengineering
activities not in accordance with a permit.
48. This is a consequential amendment to the amendments proposed by item 19 of Part 2
of Schedule 1 to the Bill which amends section 10F to include the new section 10DA
as a primary offence for the purpose of that section.
Item 12
49. Subsection 10F(1) of the Act provides that if an offence is committed against
specified sections of the Act (referred to as the primary offence), then each
responsible person in relation to the offending craft or offending material may also be
liable for an offence if the specified circumstances apply.
50. Item 12 of Part 2 of Schedule 1 to the Bill would repeal existing paragraph (f) of the
definition of offending material in subsection 4(1) and substitute it with new
paragraphs (f) and (g).
51. New paragraph (f) would provide that in relation to an offence against section 10F,
where the primary offence referred to in that section is an offence against section
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10A, 10B, 10C, 10D or 10E, the offending material is the offending material in
relation to the relevant primary offence.
52. New paragraph (g) would provide that in relation to an offence against section 10F,
where the primary offence referred to in that section is an offence against section
10AA, 10CA or 10DA, the offending material is the wastes or other matter covered
by section 10AA, 10CA or 10DA.
53. This is a consequential amendment to the amendments proposed by items 16, 17 and
18 of Part 2 of Schedule 1 to the Bill
Item 13
54. Item 13 of Part 2 of Schedule 1 to the Bill would insert a new definition into
subsection 4(1) of the Act for wastes or other matter to have the same meaning as
given by Article 1 of the London Protocol.
55. The purpose of this amendment would be to clarify the meaning of wastes or other
matter. It would not change the meaning of the term in the Act, nor would it change
how the term operates in relation to the Act.
Item 14
56. Subsection 9(1) of the Act allows the Minister to make, by legislative instrument, a
declaration that limits the operation of the Act in relation to a State and the coastal
waters of that State in certain circumstances. However, subsection 9(2) provides that,
despite such a declaration, the Act continues to apply to the State and its coastal
waters in relation to specified activities where they involve seriously harmful
material. Such materials are defined by subsection 4(1) of the Act.
57. Item 14 of Part 2 of Schedule 1 to the Bill would insert new paragraphs (ca), (cb) and
(cc) into subsection 9(2) to specify such activities to be placement of wastes or other
matter into the sea for a marine geoengineering activity, and the loading and export of
such wastes or other matter for placement into the sea for a marine geoengineering
activity.
58. This is a consequential amendment to the amendments proposed by Part 2 of
Schedule 1 to the Bill. This amendment would ensure that existing section 9 may
operate in relation to the placement and the loading and export of wastes or other
matter for the purpose of marine geoengineering activities, consistent with how it
operates in relation to other activities regulated by the Act.
Item 15
59. Item 15 of Part 2 of Schedule 1 to the Bill would insert the heading "Part 2--
Regulation of dumping into the sea, incineration at sea, placement of wastes or other
matter into the sea for marine geoengineering activities, and artificial reef
placements" and the subheading "Division 1--Offences" before section 10A of the
Act. The purpose of this amendment would be to assist readers with navigating the
Act.
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Item 16
60. Item 16 of Part 2 of Schedule 1 to the Bill would insert a new section 10AA into the
Act: "10AA - Placement of wastes or other matter into the sea for marine
geoengineering activities".
61. New section 10AA would provide that a person commits an offence if:
• the person:
o places wastes or other matter into Australian waters from any vessel,
aircraft or platform; or
o places wastes or other matter into any part of the sea from any
Australian vessel or Australian aircraft; and
• the placement of the wastes or other matter is for a marine geoengineering
activity; and
• the placement of the wastes or other matter for that activity is not in
accordance with a permit.
62. The relevant penalty provision for this offence would also be set out in new section
10AA. If it is proved that any of the wastes or other matter is seriously harmful
material, the maximum penalty for an individual would be imprisonment for up to 10
years or a fine up to 2,000 penalty units, or both. The term seriously harmful material
is defined in subsection 4(1) of the Act. In any other case, the maximum penalty for
an individual would be imprisonment for 12 months or a fine or 250 penalty units, or
both.
63. The size of the maximum penalty in both circumstances is appropriate as a deterrent
and is also consistent with similar penalties in the Act. It reflects the seriousness of
the placement of wastes or other matter into the sea for marine geoengineering
activities without a permit, which in turn could result in harm to human and
environmental health. Such conduct may undermine the integrity of the regulatory
framework provided for by the Act. This conduct may also result in a breach of
Australia's obligations under the London Protocol and other relevant international
agreements which could damage Australia's international relations.
Item 17
64. Item 17 of Part 2 of Schedule 1 to the Bill would insert a new section 10CA into the
Act: "10CA - Loading for the purpose of placement of wastes or other matter into the
sea for marine geoengineering activities".
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65. New section 10CA would provide that a person commits an offence if:
• the person loads wastes or other matter:
o on a vessel, aircraft or platform in Australia or Australian waters; or
o on any Australian vessel or Australian aircraft; and
• the person knows that, or is reckless as to whether, the wastes or other matter
will be placed into Australian waters, or any other part of the sea, for a marine
geoengineering activity; and
• the person knows that, or is reckless as to whether, the placement will not be
in accordance with a permit.
66. The relevant penalty provision for this offence would also be set out in new section
10CA. If it is proved that any of the wastes or other matter is seriously harmful
material, the maximum penalty for an individual would be imprisonment for up to 10
years or a fine up to 2,000 penalty units, or both. The term seriously harmful material
is defined in subsection 4(1) of the Act. In any other case, the maximum penalty for
an individual would be imprisonment for 12 months or a fine or 250 penalty units, or
both.
67. The size of the maximum penalty in both circumstances is appropriate as a deterrent
and is also consistent with similar penalties in the Act.. It reflects the seriousness of
the placement of wastes or other matter into the sea for marine geoengineering
activities without a permit, which in turn could result in harm to human and
environmental health. Such conduct may undermine the integrity of the regulatory
framework provided for by the Act. This conduct may also result in a breach of
Australia's obligations under the London Protocol and other relevant international
agreements which could damage Australia's international relations.
Item 18
68. Item 18 would insert a new section 10DA into the Act: "10DA - Export for the
purpose of placement of wastes or other matter into the sea for marine geoengineering
activities".
69. New section 10DA would provide that a person commits an offence if:
• the person exports wastes or other matter from Australia to another country;
and
• the person knows that, or is reckless as to whether, the wastes or other matter
will be placed into Australian waters, or any other part of the sea for a marine
geoengineering activity; and
• the person knows that, or is reckless as to whether, the placement will not be
in accordance with a permit.
70. The relevant penalty provision for this offence would also be set out in new section
10DA. If it is proved that any of the wastes or other matter is seriously harmful
material, the maximum penalty for an individual would be imprisonment for up to 10
13
years or a fine up to 2,000 penalty units, or both. The term seriously harmful material
is defined in subsection 4(1) of the Act. In any other case, the maximum penalty for
an individual would be imprisonment for 12 months or a fine or 250 penalty units, or
both.
71. The size of the maximum penalty in both circumstances is appropriate as a deterrent
and is also consistent with similar penalties in the Act. It reflects the seriousness of
the placement of wastes or other matter into the sea for marine geoengineering
activities without a permit, which in turn could result in harm to human and
environmental health. Such conduct may undermine the integrity of the regulatory
framework provided for by the Act. This conduct may also result in a breach of
Australia's obligations under the London Protocol and other relevant international
agreements which could damage Australia's international relations.
Item 19
72. As mentioned above, subsection 10F(1) of the Act has effect that, if an offence is
committed against specified sections of the Act (referred to as the primary offence),
then each responsible person in relation to the offending craft or offending material
may also be liable for an offence if the specified circumstances apply.
73. Item 19 of Part 2 of Schedule 1 to the Bill would omit "section 10A, 10B, 10C, 10D"
in subsection 10F(1) of the Act and substitute it with "section 10A, 10AA, 10B, 10C,
10CA, 10D, 10DA". This amendment would have the effect of including new sections
10AA, 10CA and 10DA, which would be inserted by Part 2 of this Schedule, as a
primary offence for the purposes of section 10F.
Item 20
74. Item 20 of Part 2 of Schedule 1 to the Bill would insert ", where the primary offence
is an offence against 10A, 10B, 10B, 10C, 10D or 10E," after "against this section" in
subsection 10F(3). This amendment would not change the substantive operation of
subsection 10F(3) but rather clarify its operation in light of the amendments being
made to other parts of this section by item 21.
Item 21
75. Item 21 of Part 2 of Schedule 1 to the Bill would insert a new subsection 10F(3A)
after subsection 10F(3) of the Act. New subsection 10F(3A) would provide the
penalty provision for an offence against section 10F, where the relevant primary
offence is an offence against section 10AA, 10CA or 10DA. These offences relate to
placement of wastes or other matter into the sea for marine geoengineering activities
without a permit, loading for the purposes of placement of wastes or other matter into
the sea for marine geoengineering activities without a permit, and export for the
purpose of placement of wastes or other matter into the sea for marine geoengineering
activities without a permit, respectively. If it is proved that any of the wastes or other
matter is seriously harmful material, the maximum penalty for an individual would be
imprisonment for up to 10 years or a fine up to 2,000 penalty units, or both. The term
seriously harmful material is defined in subsection 4(1) of the Act. In any other case,
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the maximum penalty for an individual would be imprisonment for 12 months or a
fine or 250 penalty units, or both.
76. The size of the maximum penalty in both circumstances is appropriate as a deterrent
and is also consistent with similar penalties in the Act. It reflects the seriousness of
the placement of wastes or other matter into the sea for marine geoengineering
activities without a permit, which in turn could result in harm to human and
environmental health. Such conduct may undermine the integrity of the regulatory
framework provided for by the Act. This conduct may also result in a breach of
Australia's obligations under the London Protocol and other relevant international
agreements which could damage Australia's international relations.
Item 22
77. Item 22 of Part 2 of Schedule 1 to the Bill would insert "(within its ordinary
meaning)" after "permit" in subsection 15(1) of the Act. The purpose of this
amendment would be to clarify that the term permit used in this context is broader
than the definition given by subsection 4(1) of the Act. This amendment would not
change the substantive operation of subsection 15(1).
Item 23
78. Item 23 of Part 2 of Schedule 1 to the Bill would insert new subsection 15(1A) into
the Act. New subsection 15(1A) would provide an exception to the offence provision
at section 10AA (as inserted by item 16), which would prohibit placement of wastes
or other matter into the sea for marine geoengineering activities that are not in
accordance with a permit.
79. New subsection 15(1A) would provide that section 10AA does not apply in relation to
the placement of wastes or other matter into waters that are not Australian waters for a
marine geoengineering activity if the placement is in accordance with a permit (within
its ordinary meaning) granted in accordance with the London Protocol by a party to
the London Protocol (other than Australia).
80. The effect of this amendment would be that a person who was granted a permit by a
country party to the London Protocol other than Australia would not be committing an
offence when undertaking placement activities not in Australian waters and in
accordance with that permit.
81. Existing subsection 15(4) has the effect that a person who seeks to rely on the
exception at new subsection 15(1A) bears an evidential burden in relation to the
matters in that subsection. The reversal is justified in these instances, as the matter to
be proved (that is, whether the person holds a permit issued by a country other than
Australia for the activity) is a matter that would be peculiarly in the knowledge of the
defendant. In the event of a prosecution, it would be significantly more difficult and
costly for the prosecution to disprove all possible circumstances than it would be for a
defendant to establish the existence of one potential circumstance. The reversal in
these circumstances is consistent with the principles set out in the Commonwealth
Guide to Framing Offences.
15
82. If the relevant placement were into Australian waters, then the person would need to
apply for a permit under the Act and this exception would not apply.
Item 24
83. Item 24 of Part 2 of Schedule 1 to the Bill would insert "(within its ordinary
meaning)" after "permit" in subsection 15(2) of the Act. The purpose of this
amendment would be to clarify that the term permit used in this context is broader
than the definition given by subsection 4(1) of the Act. This amendment would not
change the substantive operation of subsection 15(2).
Item 25
84. Item 25 of Part 2 of Schedule 1 to the Bill would insert new subsections 15(2B) and
15(2C) into the Act.
85. New subsection 15(2B) would be an exception to the offence provision at new section
10CA (as inserted by item 17), which would prohibit loading for the purpose of
placement of wastes or other matter into the sea for marine geoengineering activities
that are not in accordance with a permit.
86. New subsection 15(2B) would provide that new section 10CA does not apply in
relation to loading for the placement of wastes or other matter into waters that are not
Australian waters for a marine geoengineering activity if the subsequent placement,
which the loading is in relation to, is in accordance with a permit (within its ordinary
meaning) granted in accordance with the London Protocol by a party to the London
Protocol (other than Australia).
87. Similarly, new subsection 15(2C) would be an exception to the offence provision at
new section 10DA (as inserted by item 18), which would prohibit export for the
purpose of placement of wastes or other matter into the sea for marine geoengineering
activities that are not in accordance with a permit.
88. New subsection 15(2C) would provide that new section 10DA does not apply in
relation to exporting for the purpose of the placement of wastes or other matter into
waters that are not Australian waters for a marine geoengineering activity if the
subsequent placement, which the export is in relation to, is in accordance with a
permit (within its ordinary meaning) granted in accordance with the London Protocol
by a party to the London Protocol (other than Australia).
89. The effect of these amendments would be that a person who was granted a permit by
a country party to the London Protocol other than Australia would not be committing
an offence when undertaking loading or exporting for the purpose of placement
activities in accordance with that permit and the subsequent placement would not be
in Australian waters.
90. Existing subsection 15(4) has the effect that a person who seeks to rely on the
exception at new subsection 15(2B) or 15(2C) bears an evidential burden in relation
to the matters in those subsections. The reversal is justified in these instances, as the
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matter to be proved (that is, whether the person holds a permit issued by a country
other than Australia for the activity) is a matter that would be peculiarly in the
knowledge of the defendant. In the event of a prosecution, it would be significantly
more difficult and costly for the prosecution to disprove all possible circumstances
than it would be for a defendant to establish the existence of one potential
circumstance. The reversal in these circumstances is consistent with the principles set
out in the Commonwealth Guide to Framing Offences.
91. If the relevant placement were into Australian waters, then the person would need to
apply for a permit under the Act and these exceptions would not apply.
Item 26
92. Item 26 of Part 2 of Schedule 1 to the Bill would insert the subheading "Division 2--
Restoration of environment" before section 16 of the Act. The purpose of this
amendment would be to assist readers with navigating the Act.
Item 27
93. Subsection 16(1) allows the Minister to cause to be taken such steps as the Minister
considers proper to repair or remedy any conditions, or to mitigate any damage,
arising from a regulated occurrence. The Minister may only exercise this power if the
Minister considers that a regulated occurrence is likely to cause an obstruction, or
constitute a danger, to vessels; result in harm to human or marine life; or result in an
interference with the exercise of Australia's sovereign rights over the seabed or
subsoil beneath Australian waters.
94. Subsection 16(2) sets out a number of activities regulated by the Act as a regulated
occurrence for the purpose of subsection 16(1).
95. Item 27 of Part 2 of Schedule 1 to the Bill would insert new paragraph (ba) into
subsection 16(2) of the Act to specify that the placement of wastes or other matter
into Australian waters for a marine geoengineering activity is a regulated occurrence
for the purposes of subsection 16(1). The effect of this amendment would be to ensure
that the Minister may cause to be taken such steps as the Minister considers proper to
repair or remedy any conditions, or to mitigate any damage, arising from the
placement of wastes or other matter into Australian waters for a marine
geoengineering activity. This amendment would not introduce any new powers but
would rather allow the existing power to be exercised in relation to the new provisions
relating to the placement of wastes and other matter for marine geoengineering
activities. This amendment would also be consistent with the existing drafting and
operation of the Act.
96. A decision by the Minister made under subsection 16(1) would not be merits
reviewable as it would not be appropriate in the circumstances in which such a
decision may be made. A decision under subsection 16(1) may only be made if the
regulated occurrence is likely to cause an obstruction, or constitute a danger, to
vessels; result in harm to human or marine life; or result in an interference with the
exercise of Australia's sovereign rights over the seabed or subsoil beneath Australian
17
waters. These circumstances all involve an emergency situation with a degree of harm
or danger to human or marine life, or interference in the exercise of Australia's
sovereign rights, which may materialise if not dealt with quickly and conclusively.
Therefore, a decision under subsection 16(1) would only operate in the short period of
that emergency situation and it would be likely that the decision's effect would be
spent by the time of review. The Administrative Review Council has recognised that
it is justifiable to exclude merits review in relation to decisions of this nature (see
paragraph 4.50 of What decisions should be subject to merits review?).
Item 28
97. Section 17 of the Act provides for circumstances where a person may be liable for
expenses incurred by the Commonwealth.
98. Where a person has been convicted of a specified offence and the Commonwealth has
incurred expenses or liabilities because the Minister had exercised their powers under
section 16 of the Act in relation to conduct relating to that offence, subsection 17(1)
provides that the person is liable to pay the Commonwealth an amount equal to the
total amount of incurred expenses or liabilities. That amount may be recoverable as a
debt due to the Commonwealth by that person.
99. Item 28 of Part 2 of Schedule 1 to the Bill would insert a reference to new section
10AA into paragraph 17(1)(a) of the Act.
Item 29
100. Item 29 of Part 2 of Schedule 1 to the Bill would insert a reference to new section
10AA into subparagraph 17(1)(b)(i) of the Act.
101. The combined effect of items 28 and 29 would be that new section 10AA (which
prohibits placement of wastes or other matter into the sea for marine geoengineering
activities not in accordance with a permit) would be specified for the purposes of
subsection 17(1) of the Act. If a person has been convicted of an offence under new
section 10AA, and the Minister had exercised their powers under section 16 in
relation to that conduct, then the person would be liable to pay the Commonwealth the
amount of any expenses or liabilities incurred by the Commonwealth.
Item 30
102. Where the owner of a vessel, aircraft or platform has been convicted of a specified
offence and is liable to pay an amount to the Commonwealth in accordance with
subsection 17(1) of the Act, subsection 17(3) provides that that amount is a charge
upon the vessel, aircraft or platform (as the case may be). In the case of a vessel or
aircraft, the vessel or aircraft may be detained by an inspector until the amount is paid
or security for the payment of the amount is provided to the satisfaction of the
Minister.
103. Item 30 of Part 2 of Schedule 1 to the Bill would insert new subparagraph
17(3)(a)(ia) into the Act. New subparagraph 17(3)(a)(ia) would provide that an
offence against section 10AA or 36 with respect to the placement of wastes or other
18
matter into Australian waters from a vessel, aircraft or platform would be specified for
the purposes of subsection 17(3). The effect of this amendment would be, if:
• the owner of a vessel, aircraft or platform is convicted of an offence against
section 10AA or 36 with respect to the placement of wastes or other matter
into Australian waters from a vessel, aircraft or platform; and
• the owner is liable to pay an amount to the Commonwealth in accordance with
subsection 17(1);
then that amount is a charge upon the vessel, aircraft or platform (as the case may be)
and in the case of a vessel or aircraft, the vessel or aircraft may be detained by an
inspector in accordance with subsection 17(3).
Item 31
104. Item 31 of Part 2 of Schedule 1 to the Bill would insert the subheading "Division
3--Permits" before section 18 of the Act. The purpose of this amendment would be to
assist readers with navigating the Act.
Item 32
105. Section 18 of the Act sets out the application process for permits that may be granted
under the Act.
106. Subsection 18(4) of the Act allows the Minister to require that the applicant for a
permit for dumping or artificial reef placement must enter into an agreement with the
Commonwealth concerning the undertaking of research or analysis to determine the
effect that the proposed dumping or artificial reef placement activities may have on
the marine environment. The Minister may only require this agreement if, in their
preliminary consideration of an application, the Minister forms the view that in order
to enable a decision on whether to grant the permit or impose conditions on a permit,
the research or analysis is necessary. This agreement would be made prior to the
Minister giving further consideration to the application.
107. Item 32 of Part 2 of Schedule 1 to the Bill would insert ", placement of wastes or
other matter into Australian waters or any other part of the sea for a marine
geoengineering activity," after "an application for a permit for dumping" in
subsection 18(4).
Item 33
108. Item 33 of Part 2 of Schedule 1 to the Bill would insert ", placement of wastes or
other matter" after "determine the effect that the proposed dumping" in subsection
18(4).
109. The combined effect of items 32 and 33 would be to allow the Minister to require
that the application for a permit for placement of wastes or other matter into the sea
for a marine geoengineering activity must enter into an agreement with the
Commonwealth concerning the undertaking of research or analysis to determine the
19
effect that the proposed placement of wastes or other matter for a marine
geoengineering activity may have on the marine environment, in accordance with
subsection 18(4).
110. A decision by the Minister made under subsection 18(4) would not be merits
reviewable as it would not be appropriate in the circumstances in which such a
decision may be made. This is because such a decision is of a preliminary and
procedural nature which facilitates the making of a substantive decision. The Minister
may only make a decision under subsection 18(4) if the Minister forms the view that
this decision would enable them to decide whether a permit should be granted or not,
or to formulate conditions that should be imposed in respect of a permit if a permit is
granted. Decisions to grant a permit under section 19 of the Act and impose
conditions in respect of a permit under section 21 of the Act are both merits
reviewable under existing section 24 of the Act. The Administrative Review Council
has recognised that it is justifiable to exclude merits review in relation to decisions of
this nature (see paragraphs 4.3 and 4.4 of What decisions should be subject to merits
review?).
Item 34
111. Item 34 of Part 2 of Schedule 1 to the Bill would insert ", placement of wastes or
other matter" after "proposed dumping" in paragraph 18(4)(a) of the Act. The effect
of this amendment would allow an agreement made under subsection 18(4) to require
the applicant, at their own expense, to undertake such research or analysis as specified
in the agreement, being research or analysis relating to the effect that the proposed
placement of wastes or other matter into the sea for a marine geoengineering activity
might have on the marine environment.
Item 35
112. Section 19 of the Act allows the Minister to grant, or refuse to grant, a permit to a
person who has made an application in accordance with section 18 (which sets out the
application process for permits). Section 19 also sets out the different types of permits
that may be granted under the Act, and the relevant criteria for granting those permits.
113. Item 35 of Part 2 of Schedule 1 to the Bill would insert a new subsection 19(7C) into
the Act. New subsection 19(7C) would allow the Minister to grant a permit for the
placement of wastes or other matter into Australian waters from any vessel, aircraft or
platform, or into any part of the sea from any Australian vessel or Australian aircraft,
for a marine geoengineering activity. This would be a new type of permit that could
be granted under the Act.
114. The Minister may only grant the permit if the Minister is satisfied of the following:
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• that the placement of wastes or other matter for that activity is for scientific
research covered by Annex 4 to the London Protocol (new paragraph
19(7C)(a)); and
• that pollution of the marine environment from the placement of wastes or
other matter for that activity would, as far as practicable, be prevented or
reduced to a minimum (new paragraph 19(7C)(b)); and
• that the placement of wastes or other matter for that activity is not contrary to
the aims of the London Protocol (new paragraph 19(7C)(c)); and
• that the grant of the permit would be in accordance with Annex 5 to the
London Protocol, taking into account any Specific Assessment Framework
that is referred to in paragraph 3 of that Annex, that has been adopted by the
Parties to the London Protocol, and that is in force from time to time (new
paragraph 19(7C)(d)); and
• any other matters the Minister considers relevant (new paragraph 19(7C)(e)).
115. The criteria set out in new subsection 19(7C) would reflect the requirements for the
placement of wastes and other matter into the sea for marine geoengineering activities
as outlined in the 2013 amendments to the London Protocol. These requirements are
intended to ensure that the placement may only be allowed for legitimate scientific
research, and after undertaking a rigorous assessment process considering the
environmental impact of a proposed placement activity.
116. One of these requirements under the London Protocol is to take into account any
Specific Assessment Framework for placement activities when assessing whether to
grant a placement permit. This requirement is reflected in new paragraph 19(7C)(d)
which incorporates any Specific Assessment Framework that is adopted by the Parties
to the London Protocol and is in force from time to time. This incorporation would
ensure that permits granted under subsection 19(7C) are granted in compliance with
Australia's international obligations, including where new obligations come into force
for Australia. Any Specific Assessment Framework adopted by the Parties would be
part of a resolution under the London Protocol. All resolutions adopted under the
London Protocol are published on the International Maritime Organization's website
at www.imo.org/en/KnowledgeCentre/IndexofIMOResolutions.
117. In order to apply for a permit under new subsection 19(7C), a person would have to
make an application in accordance with section 18 of the Act. The existing provisions
relating to the variation, suspension and revocation of permits (section 20), and the
ability to impose and revoke, suspend or vary conditions on the permit (section 21)
would also apply to permits granted under new subsection 19(7C).
118. A decision made by the Minister to grant, or refuse to grant, a permit under
subsection 19(7C) would be merits reviewable by the Administrative Appeals
Tribunal, in accordance with existing section 24 of the Act.
21
Item 36
119. Subsection 19(9) of the Act provides that before granting a permit for dumping or
artificial reef placement, the Minister may require the applicant to enter into an
agreement with the Commonwealth. Such an agreement may cover a range of matters
including (but not limited to) obligations on the applicant to undertake research and
monitoring of the marine environment where the proposed activities will take place
and to investigate the possibility of avoiding or reducing the need for further
dumping.
120. Item 36 of Part 2 of Schedule 1 to the Bill would insert ", placement of wastes or
other matter into Australian waters or any other part of the sea for a marine
geoengineering activity," after "Before granting a permit for dumping" in subsection
19(9). The effect of this item would allow the Minister to require that the applicant to
enter into an agreement with the Commonwealth, as described in subsection 19(9)
(and as amended by items 36, 37 and 38), before the granting of a permit for the
placement of wastes or other matter into Australian waters or any other part of the sea
for a marine geoengineering activity.
Item 37
121. Item 37 of Part 2 of Schedule 1 to the Bill would insert ", placement of wastes or
other matter into Australian waters or any other part of the sea for a marine
geoengineering activity," after "permit for dumping" in paragraph 19(9)(a).
Item 38
122. Item 38 of Part 2 of Schedule 1 to the Bill would omit "proposed dumping
operation" from paragraph 19(9)(a) and substitute it with "proposed dumping,
placement of wastes or other matter".
123. The combined effect of the amendments proposed by items 37 and 38 would allow
an agreement entered into in accordance with subsection 19(9) (as amended by items
36, 37 and 38), to include a provision that the applicant for a permit for placement
activities for marine geoengineering activities will undertake specified research and
monitoring relating to the consequences of the release into the marine environment of
any contaminants through the proposed placement of wastes or other matter, at their
own expense.
Item 39
124. Item 39 of Part 2 of Schedule 1 to the Bill would insert the subheading "Division
4--Enforcement" before section 36 of the Act. The purpose of this amendment would
be to assist readers with navigating the Act.
Item 40
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125. Item 40 of Part 2 of Schedule 1 to the Bill would insert new paragraph (aaa) into
subsection 29(2) of the Act. The effect of this new paragraph would be to allow an
inspector (as described by section 27 of the Act) to board any vessel, aircraft or
platform for the purpose of exercising the inspector's functions under section 31 of
the Act if the inspector believes on reasonable grounds that there is any wastes or
other matter that is to be placed into the sea for a marine geoengineering activity in, or
on, that vessel, aircraft or platform. The inspector may also stop and detain a vessel or
aircraft for the purposes of boarding.
126. This amendment would ensure that inspectors can take necessary and practical
measures to ensure compliance with the Act in relation to the placement of wastes or
other matter into the sea for marine geoengineering activities. This amendment would
also take into account that placement of wastes or other matter into the sea would tend
to be from a vessel, aircraft and platform, and that there is a practical need for
inspectors to exercise their functions from such places.
127. The power for inspectors to board any vessel, aircraft or platform to exercise their
powers is an already existing power under the Act. This amendment would not
introduce any new powers, but would rather allow the existing power to be exercised
in relation to the new provisions relating to the placement of wastes and other matter
into the sea for marine geoengineering activities. This amendment would also be
consistent with the existing drafting and operation of the Act.
Item 41
128. Item 41 of Part 2 of Schedule 1 to the Bill would insert new paragraph (aaa) into
subsection 30(2). The effect of this new paragraph would be to allow an inspector to
make an application for a warrant to enter the premises for the purposes of exercising
the inspector's functions under section 31 of the Act if the inspector has reason to
believe that there is any wastes or other matter that is to be placed into the sea for a
marine geoengineering activity on the premises.
129. This amendment would ensure that inspectors can take necessary and practical
measures to ensure compliance with the Act in relation to the placement of wastes or
other matter into the sea for marine geoengineering activities.
130. The power for inspectors to apply for a warrant to enter premises to exercise their
powers is an already existing power under the Act. This amendment would not
introduce any new powers but would rather allow the existing power to be exercised
in relation to the new provisions relating to the placement of wastes and other matter
into the sea for marine geoengineering activities. This amendment would also be
consistent with the existing drafting and operation of the Act.
Item 42
131. Item 42 would insert new subparagraph (iaa) into paragraph 30(3)(a). This new
paragraph would be to allow a magistrate to grant an application for a warrant, made
under proposed paragraph 30(2)(aaa), for an inspector to enter the premises for the
purposes of exercising the inspector's functions under section 31 of the Act. The
23
magistrate may only grant the warrant if satisfied that there are reasonable grounds for
believing that there is on the premises to which the application relates any wastes or
other matter that is to be placed into Australian waters, or any other part of the sea, for
a marine geoengineering activity.
132. The ability for a magistrate to grant an application for a warrant is an already
existing power under the Act. This amendment would not introduce any new powers,
but would rather allow the existing power to be exercised in relation to the new
provisions relating to the placement of wastes and other matter into the sea for marine
geoengineering activities. This amendment would also be consistent with the existing
drafting and operation of the Act.
Item 43
133. Subsection 31(1) of the Act outlines the functions of an inspector who boards a
vessel, aircraft or platform under section 29, or enters premises under section 30 of
the Act.
134. Item 43 of Part 2 of Schedule 1 to the Act would insert new subparagraphs
31(1)(b)(iia), (iib) and (iic) after subparagraph 31(1)(b)(ii). These new subparagraphs
would have the effect to allow an inspector to search for, inspect, take extracts from
and make copies of any document that relates to:
• the loading on a vessel, aircraft or platform of any wastes or other matter that
is to be placed into Australian waters, or any part of the sea, for a marine
geoengineering activity (new subparagraph 31(1)(b)(iia)); or
• the placement of any wastes or other matter into Australian waters, or any
other part of the sea, for a marine geoengineering activity (new subparagraph
31(1)(b)(iib)); or
• the export of any wastes or other matter that is to be placed into Australian
waters, or any part of the sea, for a marine geoengineering activity (new
subparagraph 31(1)(b)(iic)).
135. This amendment would ensure that inspectors can take necessary and practical
measures to ensure compliance with the Act in relation to the placement of wastes or
other matter into the sea for marine geoengineering activities.
136. The function of inspectors to search for, inspect, take extracts from and make copies
of any document is an already existing function under the Act. This amendment
would not introduce any new functions but would rather allow the existing function to
be exercised in relation to the new provisions relating to the placement of wastes and
other matter into the sea for marine geoengineering activities. This amendment would
also be consistent with the existing drafting and operation of the Act.
Item 44
24
137. Item 44 would insert new subparagraph 31(1)(c)(ia) after subparagraph 31(1)(c)(i).
This would allow an inspector to inspect, and take samples of, any wastes or other
matter that is to be placed into Australian waters, or any other part of the sea, for a
marine geoengineering activity.
138. This amendment would ensure that inspectors can take necessary and practical
measures to ensure compliance with the Act in relation to the placement of wastes or
other matter into the sea for marine geoengineering activities.
139. The function of inspectors to inspect, and take samples of, any controlled material
(defined in subsection 4(1) of the Act and to be amended by Items 7 and 13 of the
Bill) is an already existing function under the Act. This amendment would not
introduce any new functions but would rather allow the existing function to be
exercised in relation to the new provisions relating to the placement of wastes and
other matter into the sea for marine geoengineering activities. This amendment would
also be consistent with the existing drafting and operation of the Act.
Item 45
140. Item 45 of Part 2 of Schedule 1 to the Bill would insert new subparagraphs 31(d)(iia)
and (iib) after subparagraph 31(1)(d)(ii). These new subparagraphs would have effect
to allow an inspector to observe:
• the loading on a vessel, aircraft or platform of any wastes or other matter that
is to be placed into Australian waters, or any other part of the sea, for a marine
geoengineering activity (new subparagraph 31(1)(d)(iia)); or
• the placement of any wastes or other matter into Australian waters, or any
other part of the sea, for a marine geoengineering activity (new subparagraph
31(1)(d)(iib)).
141. This amendment would ensure that inspectors can take necessary and practical
measures to ensure compliance with the Act in relation to the placement of wastes or
other matter into the sea for marine geoengineering activities.
142. The function of inspectors to observe certain activities is an already existing function
under the Act. This amendment would not introduce any new functions but would
rather allow the existing function to be exercised in relation to the new provisions
relating to the placement of wastes and other matter into the sea for marine
geoengineering activities. This amendment would also be consistent with the existing
drafting and operation of the Act.
Item 46
143. Subsection 33(1) of the Act allows for a prescribed court (as prescribed by
regulations made under the Act) to grant an injunction, upon application by certain
persons, restraining a person from engaging in conduct that constitutes, or would
constitute, a specified offence against the Act.
25
144. Item 46 of Part 2 of Schedule 1 to the Bill would omit "section 10A, 10B, 10C, 10D
or 10E" from paragraph 33(1)(a) and substitute it with "section 10A, 10AA, 10B,
10C, 10CA, 10D, 10DA or 10E". The effect of this amendment would be to specify
the offences at new sections 10AA, 10CA and 10DA, which would be inserted by this
Part of this Schedule to the Bill, for the purposes of subsection 33(1). Therefore, an
injunction may be granted to restrain a person from engaging in conduct that
constitutes, or would constitute, one of the new offences at proposed sections 10AA,
10CA and 10DA.
145. The ability of a prescribed court to grant an injunction is an already existing power
under the Act. This amendment would not introduce any new powers but would rather
allow the existing power to be exercised in relation to the new provisions relating to
the placement of wastes and other matter into the sea for marine geoengineering
activities. This amendment would also be consistent with the existing drafting and
operation of the Act.
Item 47
146. Item 47 of Part 2 of Schedule 1 to the Bill would insert the heading "Part 3--Other
matters" before section 34 of the Act. The purpose of this amendment would be to
assist readers with navigating the Act.
Item 48
147. Subsection 37(1) of the Act specifies certain offences against the Act to be an
indictable offence.
148. Item 48 would omit "section 10A, 10B, 10C, 10D, 10E or 10F" from subsection
37(1) and substitute it with "section 10A, 10AA, 10B, 10C, 10CA, 10D, 10DA, 10E
or 10F". The effect of this amendment would be to specify the offences at new
sections 10AA, 10CA and 10DA, which would be inserted by this Part of this
Schedule to the Bill, to be indictable offences. This amendment would be consistent
with the existing drafting and operation of the Act.
Item 49
149. Subsection 37(2) of the Act allows a court of summary jurisdiction to hear and
determine proceedings for offences specified as indicatable offences in subsection
37(1) if the court is satisfied that it is proper to do so, and the defendant and the
prosecutor consent. The penalties that the court may impose are then set out in
subsection 37(3).
150. Item 49 of Part 2 of Schedule 1 to the Bill omits ", 10E or 10F" from subsection
37(3) and substitutes it with "or 10E, or an offence against section 10F where the
primary offence referred to in section 10F is an offence against section 10A, 10B,
10C, 10D or 10E,". This amendment would seek to clarify the operation of subsection
37(3). The substantive operation of this provision would remain unchanged.
Item 50
26
151. Item 50 of Part 2 of Schedule 1 to the Bill would insert new subsection 37(3A) into
the Act. New subsection 37(3A) would have the effect that, if a court of summary
jurisdiction hears and determines proceedings for an offence against section 10AA,
10CA or 10DA, or an offence against section 10F where the primary offence referred
to in section 10F is an offence against section 10AA, 10CA or 10DA, the penalty that
court may impose is as follows:
• if it is proved that any of the wastes or other matter covered by section 10AA,
10CA or 10DA is seriously harmful material, imprisonment for up to 2 years
or a fine up to 240 penalty units, or both (new paragraph 37(3A)(a));
• in any other case, imprisonment for up to 6 months or a fine up to 60 penalty
units, or both (new paragraph 37(3A)(b)).
152. The size of the maximum penalty in these circumstances is appropriate as a deterrent
and is also consistent with similar penalties in the Act. It reflects the seriousness of
the potential misconduct associated with the placement of wastes or other matter into
the sea for marine geoengineering activities, which in turn could result in harm to
human and environmental health. Such conduct may undermine the integrity of the
regulatory framework provided for by the Act. This conduct may also result in the
breach of Australia's obligations under the London Protocol and other relevant
international agreements which could damage Australia's international relations.
Item 51
153. Item 51 of Part 2 of Schedule 1 to the Bill is an application provision that would
clarify how the amendments proposed by Part 2 of Schedule 1 to the Bill apply.
154. Subitem 51(1) would provide that the amendment of section 9 of the Act (by item
14) would apply in relation to the following:
• the placement of wastes or other matter into the sea on or after the
commencement of this item;
• the loading of wastes or other matter on or after that commencement;
• the export of wastes or other matter on or after that commencement.
155. Subitem 51(2) would provide that the insertion of section 10AA (by item 16) and
subsection 15(1A) (by item 23) into the Act apply in relation to the placement of
wastes or other matter into Australian waters, or any other part of the sea, on or after
the commencement of this item.
156. Subitem 51(3) would provide that new section 10CA and subsection 15(2B), as
inserted by items 17 and 25, apply in relation to the loading of wastes or other matter
on or after the commencement of this item
157. Subitem 51(4) would provide that new section 10DA and subsection 15(2C), as
inserted by items 18 and 25, apply in relation to the export of wastes or other matter
27
on or after the commencement of this item.
158. Subitem 51(5) would provide that the amendment of section 16 of the Act, as
proposed by item 27, applies in relation to the placement of wastes or other matter
into Australian waters on or after the commencement of this item.
159. Subitem 51(6) would provide that the amendments of sections 18, 19, 29 and 30 of
the Act, as inserted by items 32 to 38 and items 40 to 42, apply in relation to the
placement of wastes or other matter into Australian waters, or any other part of the
sea, on or after the commencement of this item.
160. Subitem 51(7) would provide that the amendments of sections 31 and 33 of the Act,
as proposed by items 43 to 46, apply in relation to the following:
• the placement of wastes or other matter into Australian waters, or any other
part of the sea, on or after the commencement of this item;
• the loading of wastes or other matter on or after that commencement;
• the export of wastes or other matter on or after that commencement.
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ATTACHMENT
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Environment Protection (Sea Dumping) Amendment (Using New Technologies to Fight
Climate Change) Bill 2023
This Bill is compatible with human rights and freedom recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
The Environment Protection (Sea Dumping) Amendment (Using New Technologies to Fight
Climate Change) Bill 2023 (the Bill) would amend the Environment Protection (Sea
Dumping) Act 1981 (the Act).
The Act implements Australia's international obligations under the 1996 Protocol to the
Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter
1972 (the London Protocol). The Act regulates the loading, dumping and incineration of
waste at sea and the placement of artificial reefs within Australian waters. It also prohibits the
ocean disposal of material considered too harmful to be released into the marine environment
and regulates permitted ocean waste disposal to minimise its potential harmful environmental
impacts.
In 2009, an amendment to the London Protocol was adopted by the Contracting Parties to
enable the export of carbon dioxide streams from a State Party to the London Protocol to
another country for the purpose of carbon sequestration in sub-seabed geological formations.
This amendment to the London Protocol supports countries without storage capacity to
reduce their atmospheric emissions by allowing the export of carbon dioxide streams to
countries with available sub-seabed geological storage formations.
In 2013, an amendment to the London Protocol was adopted by the Contracting Parties to
allow for the placement of wastes or other matter for a marine geoengineering activity, such
as ocean fertilisation, for the purpose of scientific research. This amendment to the London
Protocol enables legitimate scientific research to determine the feasibility of marine
geoengineering activities as an option to reduce atmospheric carbon dioxide and understand
the associated risks.
The purpose of this Bill is to give effect to Australia's international obligations arising out of
the 2009 and 2013 amendments to the London Protocol.
The amendments to the Act proposed by the Bill would:
• enable a permit to be granted for the export of carbon dioxide streams from carbon
dioxide capture processes for the purpose of sequestration into a sub-seabed
geological formation in accordance with the London Protocol; and
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• enable a permit to be granted for the placement of wastes or other matter for a marine
geoengineering activity for the purpose of scientific research in accordance with the
London Protocol; and
• make minor consequential amendments to enable effective implementation of the two
types of new permits; and
• make minor technical amendments to clarify existing provisions and adopt modern
drafting practices.
Human Rights implications
This Bill engages the following human rights:
• the right to health in Article 12(2) of the International Covenant on Economic, Social
and Cultural Rights (the ICESCR);
• the right to the presumption of innocence in Article 14(2) of the International
Covenant on Civil and Political Rights (the ICCPR);
• the right to privacy in Article 17 of the ICCPR.
Right to health
Article 12(1) of the ICESCR makes provision in relation to the right to health, specifically the
right to the enjoyment of the highest attainable standard of physical and mental health.
Article 12(2)(b) includes the improvement of all aspects of environmental and industrial
hygiene as a step to be taken to achieve the full realisation of the right to health. In its
General Comment No 14 (August 2000), the United Nations Committee on Economic, Social
and Cultural Rights stated that this encompasses the prevention and reduction of human
exposure to harmful substances (at [15]).
The Bill would seek to promote the right to health by reducing the impact on human and
environmental health of wastes and other matter, especially in regard to the export of carbon
dioxide streams and the placement of such matter into the sea for marine geoengineering
activities. The Bill would achieve this by:
• enabling a permit to be granted for the export of carbon dioxide streams from carbon
dioxide capture processes for the purpose of sequestration into a sub-seabed
geological formation; and
• enabling a permit to be granted for the placement of wastes or other matter for a
marine geoengineering activity for the purpose of scientific research.
The criteria for granting each respective permit ensures that the requirements outlined in the
London Protocol must be met in order for the permit to be granted. These requirements are
intended to ensure that activities may only be allowed after undertaking a rigorous
assessment process considering the environmental impact of a proposed activity to be
covered by the respective permit.
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Therefore, the Bill promotes the right to health under Article 12 of the ICESCR. It positively
engages this right by ensuring that activities allowed by the permits are regulated to minimise
their impacts on human and environmental health, especially to the marine environment.
Right to the presumption of innocence
Laws that shift the burden of proof to a defendant can be considered a limitation of the
presumption of innocence in Article 14(2) of the ICCPR. Where a defendant bears an
evidential burden in relation to an exception to an offence, it means the defendant bears the
burden of adducing or pointing to evidence that suggests a reasonable possibility that the
exception has been met. Reversing the burden of proof is not necessarily inconsistent with the
presumption of innocence, provided that the reversal pursues a legitimate objective and is
reasonable, necessary and proportionate to achieving that object. Whether the right to the
presumption of innocence is limited will depend on the circumstances and justification for the
reverse burden.
Item 2 of the Bill would provide that the loading offence at section 10C of the Act would not
apply in relation to the loading of carbon dioxide streams from carbon dioxide capture
processes for sequestration into a sub-seabed geological formation if the loading is for the
purpose of export, and that export is covered by a permit in force.
Similarly, items 23 and 25 of the Bill would provide exceptions to offences relating to the
placement of wastes and other matter into the sea for marine geoengineering activities. These
are:
• the placement offence at new section 10AA would not apply if the placement
activities into waters that are not Australian waters, and the placement is in
accordance with a permit granted in accordance with the London Protocol by another
country (new subsection 15(1A));
• the loading offence at new section 10CA would not apply if the loading is for
placement activities into waters that are not Australian waters, and the placement
itself is in accordance with a permit granted in accordance with the London Protocol
by another country (new subsection 15(2B)); and
• the export offence at new section 10DA would not apply if the export is for placement
activities into waters that are not Australian waters, and the placement itself is in
accordance with a permit granted in accordance with the London Protocol by another
country (new subsection 15(2C)).
Existing subsection 15(4) has the effect that a person who seeks to rely on the exception at
new subsection 15(1A), 15(2B) or 15(2C) bears an evidential burden in relation to the matters
in those subsections. The reversal is justified in these instances, as the matter to be proved
(that is, whether the person holds a permit issued either by Australia or by a country other
than Australia for the activity, as the case may be) is a matter that would be peculiarly in the
knowledge of the defendant. In the event of a prosecution, it would be significantly more
difficult and costly for the prosecution to disprove all possible circumstances than it would be
for a defendant to establish the existence of one potential circumstance. The reversal in these
circumstances is consistent with the principles set out in the Guide to Framing
Commonwealth Offences, Infringement Notices and Enforcement Powers.
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Consequently, in order to effectively protect the marine environment from potential harm
caused by the export of carbon dioxide streams or the placement of wastes or other matter
into the sea for marine geoengineering activities, it is reasonable, necessary and proportionate
to reverse the burden of proof in these circumstances and limit the right to the presumption of
innocence.
Right to privacy
Article 17 of the ICCPR prohibits arbitrary or unlawful interferences with an individual's
privacy, family, home or correspondence. The right to privacy can be limited to achieve a
legitimate objective where the limitations are lawful and not arbitrary. In order for an
interference with the right to privacy to be permissible, the interference must be authorised by
law, be for a reason consistent with the ICCPR and be reasonable in the circumstances.
The amendments proposed by items 40 to 45 of Part 2 of Schedule 1 to the Bill would enable
the following:
• inspectors to board any vessel, aircraft or platform for the purpose of exercising the
inspector's functions under section 31 of the Act if the inspector believes on
reasonable grounds that there is any waste or other matter that is to be placed into the
sea for a marine geoengineering activity in, or on, that vessel, aircraft or platform
(item 40);
• magistrates to grant an application for a warrant for an inspector to enter the premises
for the purposes of exercising the inspector's functions under section 31 of the Act,
only if satisfied that there is reasonable ground for believing that there is any wastes
or other matter that is to be placed into Australian waters or any part of the sea for a
marine geoengineering activity (items 41 and 42);
• inspectors to search for, inspect, take extract from and make copies of any document
that relates to the placement of wastes or other matter into Australian waters or any
other part of the sea for a marine geoengineering activity (item 43);
• inspectors to inspect, and take samples of, any wastes or other matter that is to be
placed into Australia waters or any other part of the sea for a marine geoengineering
activities (item 44);
• inspectors to observe (item 45):
o the loading on a vessel, aircraft or platform of any wastes or other matter that
is to be placed into Australian waters or any other part of the sea for a marine
geoengineering activity; or
o the placement of wastes or other matter into Australian waters or any other
part of the sea for a marine geoengineering activity.
These amendments would not introduce any new powers or functions for inspectors or other
persons, but would rather allow the existing powers and functions under the Act to be
exercised in relation to the new provisions relating to the placement of wastes and other
matter into the sea for marine geoengineering activities. These amendments would also be
consistent with the existing drafting and operation of the Act.
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In any case, the availability of these powers for placement activities are necessary for the
legitimate purpose of ensuring compliance with the Act and the collection of evidential
material relating to contraventions of the Act. The use of these powers is constrained,
ensuring their use is not arbitrary, as follows:
• warrants for an inspector to enter premises to exercise their powers can only be
issued where the magistrate is satisfied of certain matters, by information on oath or
affirmation;
• where there is no warrant in place, an inspector may only enter premises to exercise
their powers with consent;
• if an inspector boards a vessel, aircraft or platform, the inspector must produce, for
inspection, their identity card or written evidence identifying the inspector as a police
officer or Customs officer if that is the case.
In summary, the enforcement powers are necessary, proportionate and reasonable in the
pursuance of the legitimate objectives of the Bill.
Conclusion
The Bill is compatible with human rights. It promotes the right to health under Article 12(2)
of the ICESCR. To the extent that it engages and limits other human rights, including those
under Articles 14(2) and 17 of the ICCPR, those limitations are reasonable, necessary and
proportionate to achieve the legitimate aims of the Bill.
Circulated by authority of the Minister for the Environment and Water,
the Hon. Tanya Plibersek MP
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