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2016-2017
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
PROTECTION OF THE SEA (PREVENTION OF POLLUTION FROM SHIPS)
AMENDMENT (POLAR CODE) BILL 2017
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Infrastructure and Transport,
the Hon Darren Chester MP)
PROTECTION OF THE SEA (PREVENTION OF POLLUTION FROM SHIPS)
AMENDMENT (POLAR CODE) BILL 2017
OUTLINE
The purpose of this Bill is to amend the Protection of the Sea (Prevention of Pollution from
Ships) Act 1983 (the POTS Act) to implement amendments to Annexes I, II, IV and V of the
International Convention for the Prevention of Pollution from Ships, 1973, as modified by the
Protocol of 1978 relating thereto (MARPOL).
The amendments to MARPOL - and to the International Convention for the Safety of Life at
Sea, 1974, as amended (SOLAS) which are implemented through amendments to marine
orders made under the Navigation Act 2012 - establish the International Code for Ships
Operating in Polar Waters (known as the Polar Code). The International Maritime
Organization developed and adopted the mandatory Polar Code, which covers both
operational measures and measures relating to ship structure. The intention of the
amendments is to improve ship safety and protection of the polar environments.
The Polar Code addresses the specific risks of operating in polar regions, such as: poor
weather conditions; the relative lack of good navigational charts and aids, communication
systems and aids; the potential for ice to impose additional loads on the hull and propellers;
reduced effectiveness of machinery components of the ship while in low air temperatures,
high latitudes or ice covered waters and environment protection challenges. Australia has a
strong national interest in Antarctica, including in the safety of shipping and the
environmental protection of Antarctic waters. Australia has consistently supported and
contributed to the development of the technical details of the Polar Code. Australia's support
for these new international standards will enhance the safety and protection of the polar
environments.
This Bill will amend the POTS Act to ensure that there are strict discharge restrictions for oil,
noxious liquid substances, sewage and garbage for certain ships operating in polar waters.
These amendments will assist in protecting the polar environments from pollution from
unwarranted discharges.
Financial impact statement
There is no financial impact arising from this Bill.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Protection of the Sea (Prevention of Pollution from Ships) Amendment (Polar Code) Bill
2017
This 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.
Overview of the Bill
The purpose of this Bill is to amend the Protection of the Sea (Prevention of Pollution from
Ships) Act 1983 (the POTS Act) to implement amendments to Annexes I, II, IV and V of the
International Convention for the Prevention of Pollution from Ships, 1973, as modified by the
Protocol of 1978 relating thereto (MARPOL).
The amendments to MARPOL - and to the International Convention for the Safety of Life at
Sea, 1974, as amended (SOLAS) which have been implemented through the Navigation Act
2012 and amendments to Marine Orders - establish the International Code for Ships
Operating in Polar Waters (known as the Polar Code). The International Maritime
Organization developed and adopted the mandatory Polar Code, which covers both
operational measures and measures relating to ship structure. The intention of the
amendments is to improve ship safety and the protection of the polar environments.
The Polar Code addresses the specific risks of operating in polar regions, such as: poor
weather conditions; the relative lack of good navigational charts and aids, communication
systems and aids; the potential for ice to impose additional loads on the hull and propellers;
reduced effectiveness of machinery components of the ship while in low air temperatures,
high latitudes or ice covered waters and the environment protection challenges. Australia has
a strong national interest in Antarctica, including in the safety of shipping and the
environmental protection of Antarctic waters. Australia has consistently supported and
contributed to the development of the technical details of the Polar Code. Australia's support
for these new international standards will enhance the safety and protection of the polar
environments.
This Bill will amend the POTS Act to ensure that there are strict discharge restrictions for oil,
noxious liquid substances, sewage, and garbage for certain ships operating in polar waters.
These environmental amendments will assist in protecting the polar environments from
pollution from unwarranted discharges.
Human rights implications
The Bill does not engage human rights as the provisions of the Bill are confined to providing
amendments to existing legislation to enhance the environmental protections of polar waters
by providing pollution discharge restrictions.
Conclusion
This Bill is compatible with human rights because it does not raise any human rights issues.
Minister for Infrastructure and Transport, the Hon Darren Chester MP
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NOTES ON CLAUSES
Clause 1: Short Title
1. This is a formal provision that specifies that the Act may be cited as the Protection of the
Sea (Prevention of Pollution from Ships) Amendment (Polar Code) Act 2017 (the Act).
Clause 2: Commencement
2. This clause sets out that the Act is to commence on the day this Act receives the Royal
Assent, and Schedule 1 commences the 28th day after this Act receives the Royal Assent.
Clause 3: Schedules
3. This clause provides that the Act will be amended as specified and set out in a Schedule to
the Act.
SCHEDULE 1 - AMENDMENTS
Protection of the Sea (Prevention of Pollution from Ships) Act 1983
Item 1- Subsection 3(1)
4. This item will insert definitions for 'areas of ice concentration exceeding 1/10', 'category
A ship', 'category B ship', 'fast ice' and 'ice-shelf' through reference to the Polar Code.
This item also inserts the definition and full title for the Polar Code. The note also
provides guidance to access the full text of the Polar Code.
Item 2 - Paragraph 9(4)(a)
5. This item amends the POTS Act so that the exception to the prohibition of discharge of oil
or oily mixtures into the sea no longer applies for ships in Arctic waters.
Item 3 - Paragraph 9(4)(b)
6. This item introduces a minor technical correction to ensure the defined term of 'Antarctic
Area' is used to improve consistency within the POTS Act.
Item 4 - Paragraph 9(4)(c)
7. This item amends the POTS Act so that the exception to the prohibition of discharge of oil
or oily mixtures into the sea does not apply if within Arctic waters and improves
readability of the paragraph.
Item 5 - Paragraph 9(4)(d)
8. This item inserts 'and not in Arctic waters' so that the exception to the prohibition of
certain discharge by oil tankers does not apply if within Arctic waters.
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Item 6 - Paragraph 9(4)(e)
9. This item inserts 'and not in Arctic waters' so that the exception of discharge of washings
contaminated with oil from an oil tanker does not apply if the discharge is within Arctic
waters.
Item 7 - Subsection 21(13)(heading)
10. This item inserts 'or Arctic waters' to amend the heading to provide clarity and accuracy.
Item 8 - At the end of Subsection 21(13)
11. This item inserts 'or Arctic waters' so that the exceptions provided by subsections (4) to
(9) to the strict liability offence in subsection (1B) do not apply to discharge in Arctic
waters.
Item 9 - Division 1 of Part IIIB (heading)
12. This item amends the heading to insert 'untreated' before 'sewage', providing clarity and
accuracy.
Item 10 -Section 26BB
13. This item inserts 'untreated' before 'sewage' so that the object of this Division is to
ensure clarity and consistency with Annex IV of The Protocol on Environmental
Protection to the Antarctic Treaty.
Item 11 - Section 26BC (heading)
14. This item amends the heading to insert 'untreated' before 'sewage', providing clarity and
accuracy.
Item 12 - Subsection 26BC(3)
15. This item inserts 'untreated' before 'sewage' so that if untreated sewage was discharged
for the purpose of securing the safety of the ship and the persons on board, or saving life
at sea it would not be an offence of strict liability as outlined in 26BC(2A).
Item 13 - Subsection 26BC(4)
16. This item inserts 'untreated' before 'sewage' throughout this subsection so this exception
to the offence in (2A) is consistent with the offence, providing clarity and consistency.
Item 14 - After Division 1 of Part IIIB
17. This item inserts a new Division 1A, dealing with the discharge of sewage in the Antarctic
Area or Arctic waters. This new Division gives effect to Australia's obligations that are
relevant in Annex IV to the International Convention for the Prevention of Pollution from
Ships, 1973, as modified by the Protocol of 1978 relating thereto (MARPOL).
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18. This item inserts a heading for the new Division 1A.
19. This item inserts a new section 26BCA providing that expressions used in this new
Division 1A have the same meaning as in Annex IV to the Convention.
20. This item inserts a new section 26BCC that provides offences in relation to the discharge
of sewage. Subsection 26BCC(1) provides for a fault based offence for discharge of
sewage from ships in the Antarctic Area. Paragraphs (a) - (d) provide for the elements of
the offence. Paragraph (e) provides that when discharge occurs in particular waters it must
also be shown that the ships was an Australian ship.
21. Subsection 26BCC(2) provides for a fault based offence for discharge of sewage by
Australian ships in Arctic waters subject to further conditions.
22. Subsection 26BCC(3) provides for a strict liability offence for discharge for ships in the
Antarctic Area. Similar to subsection 26BCC(1), paragraphs (a) and (b) provide the
elements of the offence while paragraph (c) provides an additional element of the offence
if discharge is made in particular waters then the element that the ship be an Australian
ships must be satisfied.
23. Subsection 26BCC(4) provides for a strict liability offence for discharge by Australian
ships in Arctic waters.
24. Subsections 26BCC(5), (6), (7), (8) and (9) provide for exceptions to the strict liability
offence provisions in subsection (3) and (4).
25. Under subsection 26BCC(5) the strict liability offences in (3) and (4) do not apply if the
discharge is for the purpose of securing the safety of the ship and persons on board the
ship; or saving life at sea; or where the discharge results from damage to a ship and all
reasonable precautions were taken to prevent or minimise the discharge.
26. The justification for the need for the strict liability offences is to ensure the integrity of the
regulatory regime as it relates to the pristine natural environments of the Antarctic Area
and Arctic waters. Further, the offences do not include imprisonment as a penalty and this
approach ensures drafting consistency with the POTS Act.
27. Subsection 26BCC(6) provides three exceptions to certain applicable ship types. Firstly,
paragraph 26BCC(6)(b) provides that where sewage has been comminuted and disinfected
and the discharge is made at the specified distance, an offence under subsection 26BCC(3)
or 26BCC(4) is not committed.
28. Secondly, paragraph 26BCC(6)(c) provides that where sewage as not been comminuted or
disinfected and the discharge is made at the more stringent specified distance, an offence
under subsection 26BCC(3) or 26BCC(4) is not committed.
29. Thirdly, paragraph 26BCC(6)(d) provides that where if the sewage has been stored in a
holding tank or originates from living animals and is discharged at the prescribed rate and
speed, an offence under subsection 26BCC(3) or 26BCC(4) is not committed.
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30. Under subsection 26BCC(7) the strict liability offences in (3) or (4) does not apply if the
discharge has been treated in a certified sewage treatment plant and is discharged at the
specified distance and does not visibly alter the waters of the Antarctic Area or Arctic
waters.
31. Under subsection 26BCC(8) the strict liability offences in (3) or (4) does not apply if the
discharge is produced by certain categories of ships that operate in areas of ice
concentration exceeding 1/10 for extended periods of time and the discharge is in line
with relevant regulations and has been treated in a certified sewage treatment plant.
32. Under subsection 26BCC(9) the strict liability offences in (3) or (4) does not apply if the
discharge occurs in waters of a foreign country and is in accordance with its laws.
Item 15 - Subsection 26C(2)
33. This item amends the POTS Act so that references to sea in Part IIIB, Division 2 also do
not include Arctic waters.
Item 16 - At the end of section 26EA
34. This item amends the POTS Act so that the object of Part IIIC includes giving effect to
Australia's obligations under the Polar Code regarding the prevention of pollution by
garbage.
Item 17 - Subsection 26F(6)(heading)
35. This item amends the heading to include Arctic waters.
Item 18 - At the end of paragraph 26F(6)(a)
36. This item amends the POTS Act so that this exception outlining the applicable treatment
and distance requirements to the strict liability offence provision in subsection (3) of
discharge of garbage into the sea does not apply where the discharge occurs in Arctic
waters.
Item 19 - Subsection 26F(7)(heading)
37. This item amends the heading to include Arctic waters.
Item 20 - At the end of paragraph 26F(7)(a)
38. This item amends the POTS Act so that this exception relating to cargo residues to the
strict liability offence provision in subsection (3) of discharge of garbage into the sea does
not apply where the discharge occurs in Arctic waters.
Item 21 - Subsection 26F(8)(heading)
39. This item amends the heading to include Arctic waters.
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Item 22 - At the end of paragraph 26F(8)(a)
40. This item amends the POTS Act so that this exception relating to animal carcasses to the
strict liability offence provision in subsection (3) of discharge of garbage into the sea,
does not apply if the discharge occurs in Arctic waters.
Item 23 - Subsection 26F(8A)(heading)
41. This item amends the heading to include Arctic waters.
Item 24 - At the end of paragraph 26F(8A)(a)
42. This item amends the POTS Act so that this exception relating to cleaning agents and
additives to the strict liability offence provision in subsection (3) of discharge of garbage
into the sea does not apply if the discharge occurs in Arctic waters.
Item 25 - Subsection 26F(8B)(heading)
43. This item amends the heading to include Arctic waters.
Item 26 - At the end of paragraph 26F(8B)(a)
44. This item extends this exception relating to food wastes to the strict liability offence in
subsection (3) of discharge of garbage into the sea when discharge occurs in Arctic
waters.
Item 27 - Paragraph 26F(8B)(f)
45. This item amends paragraph (f) and inserts a two new paragraphs.
46. Amendments to paragraph (f) improve readability and ensure that this exception relates to
discharge that occurs within a special area other than the Antarctic Area.
47. Paragraph (fa) ensures that this exception relates to discharge that occurs within the
Antarctic Area or Arctic waters where additional requirements relating to distance are
met.
48. Paragraph (fb) ensures that when in the Antarctic Area or Arctic waters, subsection (3)
prohibiting discharge of garbage will not apply in those arear if the discharge consists of
food wastes and are not discharged onto ice.
Item 28 - Paragraph 26F(8B)(g)
49. This item as in item 3 is a minor technical correction to ensure the defined term of
'Antarctic Area' is used to improve consistency within the POTS Act.
Item 29 -Subsection 26F(8C)(heading)
50. This item amends the heading to include Arctic waters.
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Item 30 - At the end of paragraph 26F(8C)(a)
51. This item extends this exception to discharge of cargo residues, cleaning agents or
additives when the discharge occurs in Arctic waters.
Item 31 - Paragraph 26F(8C)(d)
52. This item repeals the original paragraph and inserts a substitution to improve readability
and extends this exception to include instances where both the port of departure and the
next port of destination are within a special area or Arctic waters.
Item 32 - Paragraph 26F(8C)(e)
53. This item amends the POTS Act so that the requirements of this exception relating to a
ship's voyage plan stipulate that the ship did not transit outside Arctic waters.
Item 33 - Paragraphs 26F(8C)(f) and (g)
54. This item amends paragraphs (f) and (g) and inserts two new paragraphs (ga) and (gb).
Paragraph (f) amends the POTS Act to improve readability of the paragraph and clarify
that it applies when both the port of departure and the next port of destination are within
the special area.
55. Paragraph (g) inserts a new paragraph to extend the exception where ports of departure
and the next port of destination are in Arctic waters where adequate reception facilities are
not present.
56. Paragraphs (f) and (g) refer to guidelines relating to port reception facilities. These
guidelines are intended to be a practical users' guide for ships' crew who seek to deliver
International Convention for the Prevention of Pollution from Ships, 1973, as modified by
the Protocol of 1978 relating thereto residues/wastes ashore and for port reception facility
providers who seek to provide timely, efficient port reception services to ships. It provides
a basis for establishing best practice procedures. At the time of drafting, the guidance was
titled Consolidated Guidance for Port Reception Facility Providers and Users and was
freely available on the International Maritime Organization's website - www.imo.org.
57. Paragraph (ga) clarifies the POTS Act so that the distance requirements for discharge
specifically apply to when a ship is within a special area that is not the Antarctic Area.
58. The new paragraph (gb) amends the POTS Act to insert additional requirements for
permissible discharge for ships in the Antarctic Area or Arctic waters.
Item 34 - Subsection 26F(8C) (note)
59. This item inserts a number for the note in subsection 26F(8C).
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Item 35 - At the end of subsection 26F(8C)
60. This item inserts a new note for subsection 26F(8C) providing a reference to the relevant
International Maritime Organization guidelines.
Item 36 - At the end of paragraphs 26F(8D)(a)
61. This item amends the POTS Act so that this exception provision applicable to ships within
a special area extends to also include discharge of garbage from ships in Arctic waters.
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