Biosecurity (Ballast Water and Sediment) Amendment (Ballast Water Management Methods) Determination 2019

Explanatory Statement

Biosecurity Act 2015

Biosecurity (Ballast Water and Sediment) Amendment (Ballast Water Management Methods) Determination 2019

Legislative Authority

The Biosecurity Act 2015 (Act) is about managing disease and pests that may cause harm to animal, plant and human health or the environment. Chapter 5 of the Act deals with the ballast water and sediment of vessels.

Section 308A of the Act provides that the Director of Biosecurity may, by legislative instrument, make a determination prescribing matters that are required or permitted by Chapter 5 of the Act, or for matters that are necessary or convenient for carrying out or giving effect to Chapter 5 of the Act.

Subsection 33(3) of the Acts Interpretation Act 1901 provides that where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws) the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.

Purpose

The Biosecurity (Ballast Water and Sediment) Amendment (Ballast Water Management Methods) Determination 2019 (Amendment Determination) amends the Biosecurity (Ballast Water and Sediment) Determination 2017 (Ballast Water Determination) to give effect to amendments to the International Convention for the Control and Management of Ships’ Ballast Water and Sediments (Convention) which comes into effect on 13 October 2019, and to require vessels which are equipped with a  ballast water management system (that complies with the Act) to manage ballast water using that system before discharging ballast water in specified areas where the vessel is no longer permitted to manage ballast water through ballast water exchange.

Background 

The detailed and specific requirements for certain activities under the Act are provided for in the Biosecurity Regulation 2016 and other delegated legislation, including the Ballast Water Determination.

Impact and Effect

The Amendment Determination ensures that Australia meets its commitments under the Convention, and helps to control the transfer of harmful aquatic organisms and pathogens associated with ballast water discharges by requiring vessels operating in specific areas to manage ballast water using a ballast water management system from the time that vessel is required to meet the higher discharge standard under Regulation D-2 of the Convention.

Consultation

Prior to the commencement of the Act, and throughout the development of the Biosecurity Amendment (Ballast Water and Other Measures) Act 2017, the Department of Agriculture undertook extensive and targeted consultation with internal and external stakeholders, State and Territory governments, industry, and other government agencies. The consultation undertaken during this period included consultation on the amendments contained in the Amendment Determination. Consultation has been ongoing with relevant parties, including State and Territory governments, prior to making the Amendment Determination.

Consultation included direct communications with maritime industry representatives including Shipping Australia Limited, Maritime Industries Australia Limited, and Ports Australia, as well as individual industry stakeholders.

The Office of Best Practice Regulation was consulted in the preparation of the Amendment Determination, and advised that a Regulatory Impact Statement is not required (ID 24404).

Details/Operation

Details of the Amendment Determination are set out in Attachment A.

The Amendment Determination is a legislative instrument for the purposes of the Legislation Act 2003.

Statement of Compatibility with Human Rights

The Amendment Determination is compatible with human rights and freedoms recognised or declared under section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

A full statement of compatibility is set out in Attachment B.

Attachment A

Details of the Biosecurity (Ballast Water and Sediment) Amendment (Ballast Water Management Methods) Determination 2019 (Amendment Determination)

Section 1 — Name

This section provides that the name of the Amendment Determination is the Biosecurity (Ballast Water and Sediment) Amendment (Ballast Water Management Methods) Determination 2019.

Section 2 — Commencement

This section provides for the commencement of each provision of the Amendment Determination, as set out in the table. Subsection 2(1) provides that each provision of the Amendment Determination specified in column 1 of the table under the subsection commences, or is taken to have commenced, in accordance with column 2 of the table.

Item 1 of the table in section 2 provides that sections 1 to 4, and anything not covered elsewhere in the table, commences the day after the Amendment Determination is registered.

Item 2 of the table in section 2 provides that Schedule 1, Part 1 commences the day after the Amendment Determination is registered.

Item 3 of the table in section 2 provides that Schedule 1, Part 2 commences on 13 October 2019.

Subsection 2(2) provides that any information in column 3 of the table in subsection 2(1) is not part of the Amendment Determination. The subsection further provides that information may be inserted into that column, or information in it may be edited, in any published version of the Amendment Determination.

Section 3 — Authority

This section provides that the Amendment Determination is made under section 308A of the Biosecurity Act 2015.

Section 4 — Schedules

This section provides that the instruments specified in the Schedules to the Amendment Determination are amended as set out in the applicable items in the Schedule concerned.

Schedule 1—Amendments

Part 1—Amendments commencing day after registration

Biosecurity (Ballast Water and Sediment) Determination 2017

Item 1                At the end of subsection 21(1)

Item 1 adds new paragraph (c) at the end of subsection 21(1). Paragraph (c) prescribes an additional condition which must be complied with in order for the condition in section 278A of the Act, in relation to a discharge of ballast water, to be met.  

Section 270 of the Act provides that it is an offence for the person in charge or the operator of an Australian vessel to discharge ballast water (whether in or outside Australian seas), and for the person in charge or the operator of a foreign vessel to discharge ballast water in Australian seas. Subsection 270(4) provides that the offences in subsections 270(1) and 270(1A) do not apply if certain conditions including those in section 278A, are met. Section 278A states that the condition in that section is met if conditions prescribed by the Ballast Water Determination are met in relation to the discharge of ballast water.

Section 21 of the Biosecurity (Ballast Water and Sediment) Determination 2017 provides that the condition in section 278A of the Act is met in relation to a discharge or ballast water from a vessel if:

The prescribed condition in new paragraph (c) is that at the time of discharge, the vessel is not excluded from the operation of section 275 of the Act by section 12 of the Ballast Water Determination.

Section 12 of the Ballast Water Determination provides that, for the purposes of paragraph 275(1)(c) of the Act, a vessel is excluded from section 275 of the Act (which relates to management of ballast water by ballast water exchange) if, under Regulation B-3 of the Annex to the Ballast Water Convention, the vessel would not be permitted to manage ballast water for discharge using ballast water exchange, and a determination under subsection 12(3) is not in force in relation to the vessel.

The amendment made by item 1 ensures that a vessel which is excluded from the operation of section 275 of the Act in relation to ballast water exchange is also excluded from the exception provided for in section 21 of the Ballast Water Determination and section 278A of the Act.

The practical effect of the amendment made by item 1 is that vessels taking up and discharging ballast water in a same risk area cannot rely on the same risk area prescribed condition under the Ballast Water Determination (section 21) in order to avoid committing a discharge offence under section 270 of the Act, if that vessel is required to meet the higher discharge standard under Regulation D-2 of the Annex to the Ballast Water Convention. If a vessel has a ballast water management system installed that complies with the Act, the vessel would be able to utilise the management system to avoid committing the discharge offence if the vessel is no longer able to rely on the ballast water exchange exception.

This applies a precautionary approach to prevent the transfer of harmful aquatic organisms and pathogens within same risk areas over the medium to long term. The implementation of such preventative management measures is supported by Article 2(3) of the Convention, which does not prevent a Party to the Convention from taking more stringent measures to prevent or reduce risk regarding the transfer of harmful aquatic organisms and pathogens.

Item 2                In the appropriate position

Part 7—Transitional and application provisions

Item 2  inserts new section 33 under Part 7, which provides for transitional and application provisions in the Amendment Determination. Section 33 provides that the amendment made by item 1 of Schedule 1 to the Amendment Determination applies in relation to discharges of ballast water from a vessel that occur after the commencement of the item. Section 2 of the Amendment Determination provides that Schedule 1, Part 1 (which item 1 of Schedule 1 is contained in) commences the day after the Amendment Determination is registered.

Part 2—Amendments commencing 13 October 2019

Biosecurity (Ballast Water and Sediment) Determination 2017

Item 3                Paragraph 9(1)(c)

Item 3 omits the words “the IMO guidelines for approval of the ballast water management system”, and substitutes the words “the Code for Approval of Ballast Water Management Systems adopted by the Marine Environment Protection Committee of the International Maritime Organization at London on 13 April 2018 by resolution MEPC.300(72), as in force from time to time” in paragraph 9(1)(c) (which provides for what an application for approval of a method of ballast water management must be consistent with, if the application is for approval of a ballast water management system).

The Code for Approval of Ballast Water Management Systems (Code) is permitted to be incorporated by reference, because section 308 of the Act provides that despite subsection 14(2) of the Legislation Act 2003, a determination under section 308A may make provision in relation to a matter by applying, adopting, or incorporating any matter contained in an instrument or other writing, as in force or existing from time to time.

The amendment made by this item aligns paragraph 9(1)(c) with amendments to the Convention which comes into force on 13 October 2019.

Item 4                At the end of subsection 9(1)

Item 4 adds a note at the end of subsection 9(1), which provides that resolution MEPC.300(72) could in 2019 be viewed on the International Maritime Organization’s website (http://www.imo.org).

The Code for Approval of Ballast Water Management Systems is set out in the annex to the resolution, and is publicly available.

Item 5                Section 33

Item 5 inserts the number “(1)” before the words “The amendment” in section 33, which was inserted by item 2. Item 5 is consequential to the amendment made by Item 6.

Item 6                At the end of section 33

Item 6 inserts new subsection 33(2), which provides that the amendments made by items 3 and 4 of Schedule 1 to the Amendment Determination apply in relation to an application made under subsection 273(1) of the Act to approve a method of ballast water management that is made on or after 13 October 2019.

The effect of this item is that an application under subsection 273(1) of the Act that is made on or after 13 October 2019 must be consistent with the information required by the Code for Approval of Ballast Water Management Systems (referred to in item 3). Prior to 13 October 2019, such applications only need to be consistent with the information required by the IMO guidelines (as provided by paragraph 9(1)(c) prior to the commencement of the amendments made by item 3). This is the case even if the Director of Biosecurity does not make a decision in relation to such an application made prior to 13 October 2019 until after 13 October 2019.

This item is included to provide clarity to persons who make an application under subsection 273(1) of the Act as to what is required in applications made either before 13 October 2019 or on or after 13 October 2019.

Attachment B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Biosecurity (Ballast Water and Sediment) Amendment (Ballast Water Management Methods) Determination 2019

This Legislative Instrument 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 Legislative Instrument

The Biosecurity Act 2015 (Act) is about managing diseases and pests that may cause harm to animal, plant and human health or the environment.

The Biosecurity (Ballast Water and Sediment) Determination 2017 (Ballast Water Determination) is a determination for the purpose of section 308A of the Act, and forms part of the modern regulatory framework for the Australian Government to control the transfer of harmful aquatic organisms and pathogens. In particular, the Ballast Water Determination facilitates the essential flexibility necessary to administer the complex ballast water regulatory framework under the International Convention for the Control and Management of Ships’ Ballast Water and Sediments (Convention).

The Biosecurity (Ballast Water and Sediment) Amendment (Ballast Water Management Methods) Determination 2019 (Amendment Determination) amends the Ballast Water Determination to give effect to amendments to the Convention which come into effect on 13 October 2019, and to require vessels which are equipped with a ballast water management system (that complies with the Act) to manage ballast water using that system before discharging ballast water in specified areas where the vessel is no longer permitted to manage ballast water through ballast water exchange.

Human Rights Implications

The Amendment Determination does not engage any of the applicable rights or freedoms.

Conclusion

The Amendment Determination is compatible with human rights as it does not raise any human rights issues.