Explanatory Statement
Marine Orders Part 91 Amendment 2012 (No. 1) (Order 2012/2)
Marine pollution prevention — oil
Authority
- Subsection 33(1) of the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Pollution Prevention Act) provides for regulations to be made for matters:
(a) required or permitted to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to the Act.
2. In particular subsection 33 (1) of the Pollution Prevention Act provides for regulations to be made:
(a) for and in relation to giving effect to MARPOL (for the definition of MARPOL see section 10 below), other than provisions of MARPOL to which effect is given by a provision of the Act; and
(b) exempting, either absolutely or subject to conditions, a prescribed ship, or ships included in a prescribed class of ships, from some or all of the Act or regulations.
3. Subsection 34(1) of the Pollution Prevention Act allows the Australian Maritime Safety Authority (AMSA) to make orders with respect to any matter for or in relation to which provision may be made by regulations under that Act, other than matters referred to in paragraph 33(1)(f).
4. Subsection 425(1) of the Navigation Act 1912 (Navigation Act) authorises the Governor-General to make regulations necessary or convenient for carrying out or giving effect to the Navigation Act.
5. Subsection 425(1AA) of the Navigation Act allows AMSA to make orders for any matter in the Navigation Act for or in relation to which provision may be made by regulations.
6. This Order was made under subsection 425(1AA) of the Navigation Act and subsection 34(1) of the Pollution Prevention Act and is a legislative instrument for the Legislative Instruments Act 2003.
Purpose
7. This instrument deals with matters arising from the Protection of the Sea (Prevention of Pollution from Ships) Amendment (Oil Transfers) Act 2011 (Amendment Act). The Amendment Act was made to give effect to the new Chapter 8 of Annex I of MARPOL, adopted by International Maritime Organization (IMO) resolution MEPC.186(59).
8. MEPC.186(59) provides for a new chapter in Annex I of MARPOL relating to the prevention of pollution during transfer of oil cargo between tankers at sea (STS operations) and consequential amendments to the Supplement to the IOPP Certificate, Form B which entered into force internationally on 1 January 2011. It applies to STS operations from 1 April 2012.
Overview
9. This instrument amends Marine Order 91, issue 5. It gives effect to matters arising from the Amendment Act.
10. It also gives effect to amendments to Annex I of the Convention (MARPOL) as it is defined in subsection 3(1) of the Pollution Prevention Act. The amendments to MARPOL are by IMO resolutions MEPC.155(55) and MEPC.187(59).
11. MEPC.155(55) relates to regulation 13G of Annex 1 allowing amendment of the Condition Assessment Scheme adopted by MEPC.94(46).
12. MEPC187(59) relates to improved, or new, definitions for oil residue (sludge), oil residue (sludge) tank, oily bilge water and oily bilge water holding tank. Marine Notice 3/2011 was issued to industry to advise them of the implication of adoption of this resolution.
13. The effect of this instrument is minor in nature. For this reason, and based on the information available, no further analysis in the form of a Regulation Impact Statement is required (OBPR reference number 13302).
Consultation
14. A draft of the proposed Order was placed on the AMSA external website for public comment. A copy of the draft Order was also emailed to 27 stakeholder organisations with a request to comment. No stakeholders objected to the amendments being made.
Documents incorporated by reference
15. IMO resolution MEPC.155(55) (see item 7 of Schedule 1).
16. Regulations 40, 41 and 42 of Annex 1 of MARPOL (see item 19).
17. MARPOL, Consolidated Edition, 2011 can be purchased from the IMO. See the IMO website at http://www.imo.org/publications. There is a list of distributors who maintain permanent stock of all IMO publications on the IMO website. Information on obtaining copies of IMO documents mentioned in this Order is available from AMSA’s website at http://www.amsa.gov.au or by email at international.relations@amsa.gov.au.
Commencement
18. This instrument commences on the day after it is registered.
Contents of this instrument
19. Sections 1, 2 and 3 of the instrument respectively set out the name of the instrument, its commencement date and make the amendments set out in Schedule 1 to the instrument.
20. Items 1, 3, 4, 9, 14, 20, 21, 22, 23, 24, 25, 32, 33, 35, 37, 38, 40 and 41 of Schedule 1 to the instrument are amendments of a minor or technical nature.
21. Item 2 amends subsection 1.1.1 to include regulations 40, 41 and 42 of MARPOL as regulations being given effect to by the Order.
22. Items 5, 8 and 11 omit some definitions used in the Order due to their being explained or defined in Marine Order 1 (Administration) or the Navigation Act.
23. Item 6 inserts into section 2 a definition of certificate of competency.
24. Item 7 amends the definition of condition assessment scheme in section 2 to give effect to the amendments to IMO Resolution MEPC.94(46).
25. Item 10 inserts a new definition of management level and STCW Code and a related note.
26. Item 12 inserts two notes explaining which expressions used in the Order are defined or explained in Marine Order 1 (Administration) or the Navigation Act.
27. Items 13, 18, 26, 34, 36 and 39 amend sections of Marine Order 91 to be consistent with changes to titles of decision makers in AMSA.
28. Item 15 amends subsection 4.2 to be consistent with amendments to the Pollution Prevention Act by the Amendment Act.
29. Item 16 substitutes section 5 (equivalents and exemptions) with new sections 5 (exemptions) and 5A (equivalents) due to Marine Order 1 (Administration).
30. Item 17 amends subsection 6.1.1 to be consistent with the insertion of sections 5 and 5A.
31. Item 19 amends section 7.1 to include regulations 40, 41 and 42 of Annex I of MARPOL as having the force of law as part of the law of the Commonwealth.
32. Item 27 amends amend sections of Marine Order 91 to be consistent with changes to titles of decision makers in AMSA. It also introduces amendments and new provisions to the Order due to the Amendment Act.
33. The amendments made by item 27 to existing sections of the Order are amendments to the means of notifying prescribed incidents, the prescribed form for notifying a Harmful Substances Report and the time for giving a report for subsections 11(6) and (7) of the Pollution Prevention Act.
34. The new sections inserted by item 27 relate to the introduction of ship to ship operations plans, providing for the person in control of a STS operation to ensure that the transfer is carried out in safe operating conditions, for the need to make and retaining a record of an STS operation and for notification of a scheduled STS operation. New section 10.8C sets out the qualifications needed by the person in control of an STS operation.
35. Item 28 amends paragraph 10.10.1(c) to reflect a minor amendment in IMO resolution MEPC.187(59) by replacing the word ‘sludge’ with the words ‘oil residue (sludge)’.
36. Items 29 and 30 work together to insert an updated note after subsection 11.2 referring to the latest 2011 consolidated edition of MARPOL.
37. Item 31 inserts a note after subsection 11.6 explaining that guidance for the upgrade of the design of the kind of oil filtering equipment mentioned in paragraph 11.6 (c) can be found in some voluntary guidelines recently adopted by the IMO.
Compatibility with human rights
38. AMSA considers that this instrument is compatible with human rights. It does not affect any rights or freedoms to which the Human Rights (Parliamentary Scrutiny) Act 2011 applies.
Making the instrument
39. This instrument has been made by the Chief Executive Officer of the Australian Maritime Safety Authority, in accordance with subsection 49(4) of the Australian Maritime Authority Act 1990.