Dennis Jensen (Tangney, Liberal Party) Share this | Hansard source

I rise to speak on the Protection of the Sea (Powers of Intervention) Amendment Bill 2006. Before I get into the details of some of the necessary amendments to the original Protection of the Sea (Powers of Intervention) Act 1981, I think it is very instructive to go into its history.

The current act came about as a result of the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties 1969. This convention came about as a result of the Torrey Canyon disaster of 1967. The Torrey Canyon was the first of the supertankers. It carried about 120,000 tonnes, or 860,000 barrels, of oil. The captain of the vessel had scheduling problems. There were problems with the ship being able to arrive at or depart ports due to draught problems. We know that these draught problems still exist. The House of Representatives Committee on Transport and Regional Services has been around Australian ports, and issues relating to draught of channels and ports still have a part to play. The problem here was that, as this was the world’s first supertanker, the draught was such that the influence of tides on when the ship could dock at port were extremely important and, as such, there were possibilities of delays of 24 hours or up to a week with this vessel if it did not arrive in port on schedule. Given this, the captain of the ship was pressed for time to arrive at his destination.

On the day in question, the captain had had limited sleep, and the vessel was heading towards one of the ports in England and it was going around the end of Land’s End. An error in navigation had led to the ship being about 20 nautical miles east of the planned position, which was near Land’s End. The original plan involved sailing to the west of the Isles of Scilly; however, due to this error in navigation the captain made the decision to sail a relatively narrow channel between the Isles of Scilly and Land’s End. Once in the channel the ship had to manoeuvre to one side of the channel to avoid fishing boats and their nets.

There was a further navigation error at this time. There had been a change in watch at 8 am and the captain had given a fairly junior navigation officer the post of navigating at the time. An error by this junior navigation officer compounded the original error. The method of navigation that he was using is what is called ‘bearing and distance’. Essentially, that involves taking a bearing of a known landmark and then taking a range off radar and that allows you to plot your position. However, any slight error in either of those obviously leads to a significant navigation error. In situations such as this—and remember these are the days before GPS—the better method of determining position is to take three bearings and if they all intersect at the same point you know that you have got an accurate position—an accurate fix. This had not occurred at the time.

The additional problem with the Torrey Canyon was that it had what may kindly be called ‘limited mobility’. In fact, it was only able to turn 20 degrees in a period of one minute, and it covered 500 yards in that time. It also took about five nautical miles for the ship to stop. Further compounding things for this vessel was the bad ergonomic design of the autopilot. There were problems with whether the ship was on autopilot or not and with sensing whether the ship was turning as it should. Of course, with 20 degrees in one minute it is very difficult to sense a change in direction. The end result of all of these errors was that the ship ended up hitting the reef, and over a period of days it broke up. Three oil slicks formed, and obviously all 120,000 tonnes or 860,000 barrels of oil ended up in these oil slicks, and 10,000 tonnes of detergent were sprayed onto the slicks to try to emulsify the oil. Other methods were also attempted, but the result was ecological disaster.

The incident resulted in the British government organising an early meeting of the Intergovernmental Maritime Consultative Organisation to consider needed changes in international maritime law and practice. Relevant laws at the time were considered overly complex and were also out of date in many respects.

I will insert a side bar here: clearly, the act as it stands and as we plan to amend it will help to mitigate these disasters. The problem is, of course, that every time we have had a major oil leak from one of these supertankers there have been major ecological problems. In my view this is why we should as a society be moving towards a hydrogen economy. Needless to say, hydrogen can be very safely transported across the oceans. If you had a hydrogen leak it would evaporate almost immediately because it is stored at cryogenic temperatures. The best way to produce hydrogen is to use nuclear energy, particularly fourth generation nuclear reactors where you can use a thermal or heat process to crack water to make hydrogen. Having said that, I will get back to the original reason for the act coming into being. As I stated, an early meeting of the Intergovernmental Maritime Consultative Organisation was called.

At this meeting concerns were raised as to the extent to which a coastal state could take measures to protect its territory from pollution where a casualty threatened that state with oil pollution, especially if the measures necessary were likely to affect foreign shipowners, cargo owners or even flag states. Clearly you have a conflict of interests. The ships want to define exactly how they want to move, where they want to sail, their timetabling and so on, and the nation concerned has its national interest in mind when it thinks about the route and the speed at which the ship plans to go. That is clearly contrary to maritime safety and there could end up being an ecological disaster.

There was general consensus that there was a need for a new regime which, while recognising the need for some state intervention on the high seas in cases of grave emergency, clearly restricted the right to protect other legitimate interests. A conference to consider an appropriate regime was held in 1969 in Brussels. The resulting convention affirms the right of a coastal state to take such measures on the high seas as may be necessary to prevent, mitigate or eliminate danger to its coastline or related interests from pollution by oil or the threat thereof, following upon a maritime casualty.

We heard the member for Oxley talking about the Great Barrier Reef. Clearly, we do not want an ecological disaster on the scale of the Torrey Canyon or indeed the Exxon Valdez disaster in Alaska to take place in Australian waters, particularly with some of our pristine marine environments, which are internationally recognised.

The coastal state is, however, empowered to take only such action as is necessary after due consultations with appropriate interests including, in particular, the flag state or states of the ship or ships involved, the owners of the ships or cargos in question and, where circumstances permit, independent experts appointed for this purpose.

A coastal state which takes measures beyond those permitted under the convention is liable to pay compensation for any damage caused by such measures. Provision is made for the settlement of disputes arising in connection with the application of the convention. The convention applies to all seagoing vessels except warships or other vessels owned or operated by a state and used in government non-commercial service.

I will go on to the protocol of 1973. The 1969 Intervention Convention applied to casualties involving pollution by oil. In view of the increasing quantity of other substances, mainly chemical, carried by ships, some of which would, if released, cause serious hazard to the marine environment, the 1969 Brussels conference recognised the need to extend the convention to cover substances other than oil.

Draft articles for an instrument to extend the application of the 1969 convention to substances other than oil were prepared and submitted to the 1973 London Conference on Marine Pollution. The conference adopted the Protocol Relating to Intervention on the High Seas in Cases of Marine Pollution by Substances other than Oil. This extended the regime of the 1969 intervention convention to substances which are listed in the annex to the protocol or which have characteristics substantially similar to those substances. In fact, amendments were made in 1991, 1996 and 2002—all revising the list of substances attached to the 1973 protocol.

The original 1981 Australian act gives effect to the intervention convention. It allows AMSA to intervene on high seas. To date, Australia has avoided major pollution on the sea since the introduction of the current act. Today there is far more traffic on our seas than there was at the time of the introduction of the act.

The problem with the 1981 act is that the definition only refers to coastal waters or high seas; there is no mention, for instance, of the exclusive economic zone. The exclusive economic zone relates to Australian economic waters, but in the definition of the original act it would in most cases be considered to relate to high seas. This bill updates the act by redefining the powers in Australia’s internal waters, coastal areas, exclusive economic zones and high seas. It clarifies the exclusive economic zone status. The bill will amend the act to clarify the status and scope of the Australian government’s power of intervention in Australia’s EEZ, align the scope of powers available to the Australian government in the EEZ with that in the coastal sea and extend the application of the act to all ships in the coastal sea which present a threat of significant pollution. It clarifies the extent and scope of intervening powers in relation to prevention of pollution by extending powers of direction for release of tugs or other assets, determination of a place of refuge and directions to persons other than shipowners, masters and salvors in possession of the ship.

The bill provides that intervention directions issued by AMSA will prevail over directions of any other person where these conflict with AMSA’s directions. It provides for responder immunity from liability for decisions made with due care and provides for reimbursement on just terms for the use of requisitioned property, including compensation for damage or loss which occurs while the property is under requisition. The bill extends the scope to which all ships present a threat. AMSA prevails over other authorities.

The bill revises penalties. It is important that penalty settings are set at a level which ensures compliance. These settings are proposed in line with current rules concerning setting of penalties in federal legislation, and these have due regard to the potential negative impacts that noncompliance could cause, the need for penalties to appropriately punish serious breaches and the need for penalties to provide a real disincentive for any person who might otherwise consider that the penalties applied might be commercially justified in light of other business options that the person may have. The responder has immunity from liability, provided they have acted with due diligence. As I stated, there is reimbursement on just terms.

The current act does not mention the exclusive economic zone ‘high seas’ and is incompatible with the current understanding. As I have stated, the exclusive economic zone, by and large, is what was in the high seas. The bill defines ‘high seas’ consistent with UNCLOS , the United Nations Convention on the Law of the Sea.

There is no direct financial impact from this bill. The costs incurred by AMSA in taking measures under the act are recoverable from the owner of the shipping casualty under parts IV and IVA of the Protection of the Sea (Civil Liability) Act 1981. The bill reinforces this power to recover the authority’s costs from the shipowner and clarifies that other parties incurring costs as a result of complying with directions issued under the act may also recover their costs from the shipowner consistent with the rights of shipowners to limit their liabilities under international law.

This is a very important bill. It amends the legislation, allowing the current understanding of the United Nations Convention on the Law of the Sea to be enshrined within Australian law as far as powers of intervention are concerned. I commend this bill to the House.

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