Bernie Ripoll (Oxley, Australian Labor Party, Shadow Parliamentary Secretary for Industry, Infrastructure and Industrial Relations) Share this | Link to this | Hansard source

Today I rise to speak on the Protection of the Sea (Powers of Intervention) Amendment Bill 2006 on behalf of the opposition. This bill amends the Protection of the Sea (Powers of Intervention) Act 1981 to ensure the Commonwealth can effectively respond to threats of serious marine pollution arising from maritime incidents. This bill also provides a great deal of clarity to the current terms of the legislation to ensure that those in the maritime industry know their obligations and responsibilities. It also ensures that officers of state governments and the Commonwealth are able to make confident and quick decisions in environmental emergencies.

One of the key features of this bill is the specific clarification that the act is to complement the state and territory law where there is not a conflict. Firstly, this removes any confusion as to the Commonwealth government’s powers under the act and, secondly, it provides for a cooperative approach to managing Australia’s waters. The bill also provides a determination that the powers of the Commonwealth over the exclusive economic zone correspond with the powers over the coastal sea as determined in the Seas and Submerged Lands Act and that the definition of ‘high seas’ corresponds with the United Nations Convention on the Law of the Sea. It also provides a determination that directions issued by the Australian Maritime Safety Authority, AMSA, will prevail over the directions of any other person.

The bill also provides a broadening of the areas at sea at which action can be taken against a ship that poses a threat of significant pollution. This allows for more extensive measures to be taken to prevent harm to our waters. Clarification of the persons to which directions can be made by authorities and an explanation as to how that direction can be given to any person who can ‘prevent, mitigate or eliminate’ the risk of a spill and the circumstances under which they may be directed. What this does is give greater alignment with international standards. It also allows for a strong provision for recovery of costs from offending vessels and gives further clarification and simplification of provisions by removing unnecessary clauses and streamlining the text of the bill.

As the explanatory memorandum further sets out, the bill provides a clarification to the extent and scope of intervention powers in relation to prevention of pollution by extending powers for direction in relation to tugs, places of refuge and persons other than shipowners, masters and salvers. It outlines a revision of penalties for noncompliance with a direction given under the act and also has a provision for responder immunity from liability for decisions made with due care. It provides for reimbursement on just terms for the use of requisitioned property, including compensation for damage or loss occurring while property is under requisition.

These are sensible measures and they have the support of the Australian Labor Party. What Labor does not support, though, is the Howard government’s continuing failure to embrace a shipping policy that supports the viability of the Australian maritime sector more broadly. This policy neglect and lack of leadership have a number of consequences, not least of which is the threat that flag of convenience vessels present to our marine environment. Anyone who has read the report Ships of shame would know exactly what we mean when we talk about flags of convenience and the ships of shame. Australia has a unique and sensitive marine environment. Pollution can greatly upset the health of our waters and marine life. Strong regulation is necessary to ensure the preservation of healthy waters. We have been extremely fortunate that a disaster involving a flag of convenience vessel has not caused an environmental catastrophe in Australian waters. With increasing numbers of poorly maintained flag of convenience vessels plying the Australian coastline, Labor fears it is a matter of when, not if, a major maritime environmental catastrophe occurs.

AMSA is tasked with managing ecological disasters arising from maritime incidents and cannot do so without the power to employ any necessary action to prevent an environmental disturbance. We hope that, with the passage of this bill, AMSA will be better equipped to undertake this task. But we are most concerned that disasters are prevented in the first place. The prevention, mitigation and elimination of risks to our marine environment are core responsibilities of the national government. But rather than support a domestic shipping industry, which would minimise the risk to our coastline, the Howard government has encouraged foreign rust buckets to ply our coastal trade, the vessels that pose the greatest threat to our marine environment—the ships of shame.

As a Queenslander, and like most other Queenslanders, I am intensely proud of my home state. It is one of the world’s great natural wonders and has immense resources and beauty, not the least of which is, of course, the Great Barrier Reef. Should a serious maritime incident occur on the waters surrounding the Great Barrier Reef, a place where flag of convenience vessels actually ply the coast, it would result in a disaster of unimaginable proportions. It would forever destroy sections of this wonderful natural feature that belongs to all Australians. This is not something outside the realm of possibility; in fact, it could happen, and it nearly did. In January this year 25,000 litres of heavy fuel oil leaked from the Global Peace, a Korean owned, Panama registered bulk coal carrier. Rather than leak on the reef proper, though, the leak occurred in Gladstone Harbour in the Great Barrier Reef Marine Park. It was a close call, but I think it demonstrated to people just how sensitive our waters are and the responsibility that we all, and particularly the national government, have to ensuring that we have the right protections in place to protect one of the natural wonders of the world.

It is absolutely critical for Australia to take every possible action to protect our marine environment, firstly, to protect the livelihood of Australia’s hardworking fishers, as well as other industries that rely on a healthy marine environment, such as aquaculture and marine biotechnology; secondly, to protect Australia’s great tourism industry, which sees thousands of people each year visit Australia to appreciate our crystal clear waters and our beautiful marine life; and, lastly, to preserve our oceans for future generations to appreciate and enjoy. I believe the Great Barrier Reef is entrusted to us and that an Australian government should do everything possible to protect it.

The risk posed to the Great Barrier Reef and the Torres Strait region from shipping has been recognised by the government, and new arrangements for emergency towage have recently been instituted. An emergency vessel will be able to tow disabled ships to a safe mooring. But this post-incident response will do little to repair lasting damage to the Great Barrier Reef, should it happen, or any other marine environment damage as a consequence of a marine incident.

In Labor’s view, this bill fails to address the most significant threat to Australia’s unique marine environment—the threat posed by flag of convenience vessels. These vessels have been encouraged into Australian waters by a government that has adopted an anti-Australian shipping policy framework, a policy framework that encourages flag of convenience vessels, not Australian shipping employing Australian workers. Australian vessels are well maintained, they are of good quality and they have good crews who are trained and know what they doing. They are operated by well-skilled people.

Australian crews have a vested interest in ensuring that the Australian coastline is protected. That interest is not necessarily shared by the masters and crew of flag of convenience vessels that ply our coast. This fact has not dissuaded the Howard government from issuing single and continuing voyage permits in the style of a drunken sailor. The Howard government’s anti-Australian shipping posture has cost Australian jobs. It continues to threaten the Australian environment and continues to threaten Australian jobs. This bill, while containing some very worthy measures, does not signal a change of policy on the part of the government. A more universal and comprehensive approach is needed if we are going to provide real protection to Australia’s beautiful coastline. For that reason, I move:

That all words after “That” be omitted with a view to substituting the following words:“whilst not declining to give the bill a second reading, the House condemns the Government for administering anti-Australian shipping policies that favour foreign Flag of Convenience vessels and put the marine environment at unnecessary risk.”

Ian Causley (Page, Deputy-Speaker) Share this | Link to this | Hansard source

Is the amendment seconded?

Roger Price (Chifley, Australian Labor Party) Share this | Link to this | Hansard source

I second the amendment.

Dennis Jensen (Tangney, Liberal Party) Share this | Link to 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.

Warren Truss (Wide Bay, National Party, Minister for Transport and Regional Services) Share this | Link to this | Hansard source

Can I begin by thanking the honourable member for Tangney and the honourable member for Oxley for their contributions to the Protection of the Sea (Powers of Intervention) Amendment Bill 2006. The member for Tangney has gone, in great detail, through the particular elements of the bill and demonstrated a solid understanding of what is proposed in this legislation. I thank him very much for his contribution. The member for Oxley introduced some somewhat extraneous matter in discussing his amendment in relation to so-called foreign flag of convenience vessels, which he suggested especially put the marine environment at unnecessary risk. I trust he would acknowledge that this legislation covers ships, whatever their registry may be, and in that regard helps to ensure the protection of the Australian environment from whatever threat there might be from the shipping industry.

The legislation demonstrates the government’s commitment to promoting environmentally sensitive, safe shipping practices. It is important legislation because it will contribute significantly to ensuring that our capacity to protect our pristine environment from the consequences of unforeseen maritime disaster remains adequate and relevant. The effectiveness of our national response capability relies not only on our infrastructure and resources but also on the robustness of the regulatory regime that underpins the framework of intervention.

The international experience of major pollution incidents has shown that it is desirable to have a robust regime which facilitates effective decision making and encourages cooperation with coordinated actions to counter a major pollution threat. This belief is shared by my state and territory counterparts, who agreed in November 2005 that these measures are needed to ensure that Australia’s emergency towage and response capability is adequate and that the regulatory regime that underpins the capability is effective in delivering the desired pollution prevention outcomes.

Honourable members will be aware that the Australian government is putting in place a new range of emergency towage measures and, as an important part of that step, contracts are being let now around Australia to ensure that there is emergency towage capability available on as little as two hours notice right around the continent. This is a very important practical step in ensuring that we can respond effectively if there is some kind of a maritime disaster. This legislation is important to ensure that the investment in improved towage capability is underpinned effectively by law.

The bill implements the regulatory elements of the national system for emergency response, updating existing legislation to align it with international maritime law and, consistent with the desired pollution prevention outcomes of the legislation, clarifying the provisions of the legislation to strengthen the regulatory framework for the national system, while ensuring compliance with the provisions of the International Convention relating to Intervention on the High Seas in Cases of Oil Pollution 1969.

The bill does not actually introduce new legislation; it proposes a number of amendments to the Protection of the Sea (Powers of Intervention) Act 1981, the Australian legislation implementing the international convention, so as to clarify and update its provisions. The bill introduces the definition of an exclusive economic zone, or EEZ, and clarifies the Australian government’s powers to intervene in the EEZ when there is a threat of serious pollution from a casualty. As a consequence of the redefining of the various maritime zones in accordance with contemporary law, the bill also clarifies the powers of the Australian Maritime Safety Authority to intervene in Australia’s internal waters, coastal seas and the EEZ, and on the high seas.

Another important clarification that this bill provides relates to AMSA’s general powers to direct persons other than those directly related with a casualty, such as its owner, master or a salvor. The clarity is essential to deliver the outcomes we are seeking. The bill also provides AMSA with the role of national decision maker and reinforces the primacy of Commonwealth law in the event of a conflict. The bill also introduces the concept of responder immunity to encourage compliance and cooperation to effectively counter a threat of pollution. I have every confidence that these measures will be of benefit to the Australian community and will help ensure that we have an effective capability to respond to any maritime disaster that occurs near to our shores. I commend the legislation to the committee.

Bob McMullan (Fraser, Australian Labor Party) Share this | Link to this | Hansard source

The original question was that the bill be now read a second time. To this the honourable member for Oxley has moved as an amendment that all words after ‘That’ be omitted with a view to substituting other words. The question now is that the words proposed to be omitted stand part of the question.

Question agreed to.

Original question agreed to.

Bill read a second time.

Ordered that the bill be reported to the House without amendment.