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29 Mar 2012

Marine pollution law in NSW is brought into line with MARPOL

by Claire Smith, Dean Gerakiteys

Ship masters and owners will have to implement more comprehensive waste management and emergency planning and reporting procedures, or risk being liable for heavy penalties under the new Marine Pollution Act.

There are now new offences prohibiting the discharge of harmful substances in packaged form and discharges of sewage and garbage into State waters, with penalties of up to a maximum of $1.1 million for corporations.

The Marine Pollution Bill 2011 (NSW) was passed by the Legislative Assembly without amendment on 7 March 2012 and will commence on a date to be proclaimed.

The Bill implements the International Convention for the Prevention of Pollution from Ships 1973 (more commonly referred to as the MARPOL convention) in NSW.

The MARPOL convention has more than 130 signatory countries worldwide (including Australia) and is the main international convention addressing marine pollution. It covers several types of pollution from ships, including oil, noxious liquid substances, harmful substances in packaged form, sewage and garbage.

Existing legislation in NSW only regulates pollution in respect of the discharge of oil and noxious liquid substances. However, the new Marine Pollution Act 2012 will also regulate marine pollution from the jettisoning of harmful substances in packaged form, sewage and garbage, providing more comprehensive coverage of marine pollution within State waters by ensuring that State laws more closely align with the MARPOL convention.

What's new?

While the new Act re-enacts existing pollution offences for the discharge of oil and noxious liquid substances, a new array of offences for pollution by harmful substances in packaged form, garbage and sewage have also been introduced.

The new Act also introduces a more extensive emergency planning and marine pollution reporting regime – similar to the those now required for EPL holders under the Protection of the Environment Operations Act 1997 – and brings incident responses for marine pollution incidents more into line with onshore pollution incidents.

Offences

The following acts will be offences under the new Act, attracting significant penalties for corporations:

  • carriage of harmful substances in packaged form otherwise than in accordance with the regulations (to be enacted), including carriage of an uncategorised noxious liquid substance as cargo or part cargo in bulk (a maximum penalty of $1.1 million);
  • jettisoning of harmful substances into State waters (a maximum penalty of $1.1 million);
  • discharge of sewage from large ships (ie. ships with a gross tonnage of 400 or more tons, and/or certified to carry more than 15 persons) into State waters (a maximum penalty of $1.1 million);
  • discharge of garbage from any ship into State waters (a maximum penalty of $1.1 million); and
  • reckless or negligent discharge of a prescribed marine pollutant in connection with transfer operations , whether from a ship to a refinery or for transfers between ships (a maximum penalty of $10 million).

The new Act extends liability for many of the offences listed above to persons responsible, or reasonably responsible for causing such incidents. A person will be "responsible" if they, or a person acting under their direction intentionally, recklessly or negligently commit an act that causes the discharge.

Reporting obligations for pollution incidents

The old Act only required reporting of pollution incidents involving oil and noxious substances.

Consistent with the new offences, the new Act also requires reporting of incidents involving the jettisoning of harmful substances in packaged form, or the failure or breakdown of a large ship’s sewage treatment system that could result in the discharge of untreated or inadequately treated sewage.

Emergency plans for oil and noxious liquid substances

Both the master and owner of a ship must prepare and carry shipboard emergency plans for pollution incidents involving oil and noxious liquid substances. Plans must detail:

  • procedures to be followed for reporting reportable incidents;
  • the authorities or persons to be notified if a reportable incident occurs; 
  • actions to be taken immediately after reportable incidents, by persons on board the ship to reduce or control any discharge; 
  • procedures for co-ordinating with the authorities, in particular, the person on board the ship through whom all communications are to be made; and 
  • actions to combat the pollution caused by the incident.

Failure to carry complying shipboard emergency plans on board a ship in State waters may attract a penalty of up to $55,000.

Obligation to carry a shipboard garbage management plan

Large ships are also required to carry a shipboard garbage management plan detailing, at the very least: 

  • procedures for collecting, storing, processing and disposing of garbage, including the use of the equipment on board the ship for carrying out those procedures; and 
  • the person who is in charge of carrying out the plan.

Failure to carry a complying shipboard garbage management plan on board a large ship in State waters may attract a penalty of up to $5,500.

Marine environment protection notices

The new Act also enables the Minister to issue a range of marine environment protection notices similar to the notices that can be issued under the Protection of the Environment Operations Act 1997, including: 

  • a marine pollution clean-up notice directing the responsible person to take such clean-up action as is specified in the notice, within a specified period;
  • a marine pollution prevention notice directing the master or owner or a ship, or the person carrying on the activity, to take action as specified in the notice; or
  • a marine pollution prohibition notice directing the master of the ship or responsible person to cease carrying on an activity.

Implications

Measures introduced by the new Act will bring marine pollution offences and incident response requirements more into line with existing onshore pollution regimes.

While historically offences arising from marine pollution have only ever concerned the master, owners or crew members of a ship, the new Act extends the liability for many of the offences listed above to persons responsible, or reasonably responsible for causing such incidents.

Ship masters and owners will have to implement more comprehensive waste management and emergency planning and reporting procedures, including to account for the new offences, or risk being liable for heavy penalties under the new Act.

 

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.