Protection of the Sea (Harmful Anti-fouling Systems) Act 2006 - Proclamation

Overview

The Protection of the Sea (Harmful Anti-fouling Systems) Act 2006 was enacted to align Australia’s domestic legislation with its international obligations under the International Convention on the Control of Harmful Anti-fouling Systems on Ships. This Act was introduced to address the problem of harmful anti-fouling systems on ships that can have detrimental effects on marine ecosystems. The enacting body of this legislation is the Australian Parliament, which sought to mitigate environmental risks by enforcing stringent regulations on the use and application of harmful anti-fouling systems on vessels. The policy objective of the Act is clearly stated as the implementation of Australia's commitments under the aforementioned international Convention, aiming to protect marine environments from the adverse impacts of toxic substances used in anti-fouling paints. All relevant stakeholders, including governmental departments, state authorities, the shipping industry, paint manufacturers, and environmental groups, have been consulted and have supported the Act during its development and passage.

Scope and Application

The Protection of the Sea (Harmful Anti-fouling Systems) Act 2006 applies to all persons and entities involved in the shipping industry, particularly focusing on the application or use of harmful anti-fouling systems on ships. The Act encompasses a range of operational requirements as stipulated in the International Convention on the Control of Harmful Anti-fouling Systems on Ships, including certification, declaration, and inspection protocols. This legislation is designed to ensure compliance with Australia’s international obligations and aims to protect marine ecosystems from the adverse effects of harmful anti-fouling systems. The Act’s jurisdictional reach is national, with the Commonwealth government responsible for its enforcement, though it affects state and territory jurisdictions due to its maritime focus. While the Act broadly applies to all vessels subject to Australian jurisdiction, specific exclusions or exemptions are detailed within the Act itself, with certain provisions contingent on the implementation of subordinate instruments. The commencement of the operational sections of the Act was aligned with Australia's ratification of the Convention, effective from 17 September 2008, ensuring that the legislative framework is in place to support international maritime standards and environmental protection efforts.

Key Provisions

The main operative sections of the Protection of the Sea (Harmful Anti-fouling Systems) Act 2006 (sections 3 to 25) establish rules and operational requirements for the application and use of harmful anti-fouling systems on ships, in line with the International Convention on the Control of Harmful Anti-fouling Systems on Ships (sections 3 and 4). These sections mandate the certification of anti-fouling systems (section 5), the declaration of system usage (section 6), and the inspection of ships to ensure compliance with the Act (section 7). Section 8 outlines the conditions under which a ship may be denied entry to Australian waters if it uses harmful anti-fouling systems not in compliance with the Act. Furthermore, section 9 details the procedures for the approval of anti-fouling systems, and section 10 specifies the substances that are prohibited from being used in anti-fouling systems due to their harmful effects. Section 11 outlines the requirements for the safe disposal of waste from anti-fouling systems, and section 12 addresses the maintenance and record-keeping obligations for ships using these systems. The Act imposes several obligations on the parties and entities it governs. Firstly, it requires ship owners and operators to ensure that their vessels use only approved anti-fouling systems (section 5). This involves obtaining necessary certifications and declarations for the systems used (section 6). Secondly, ship owners and operators must comply with inspection requirements, allowing authorised officers to board ships and verify compliance (section 7). Additionally, the Act mandates the proper disposal of anti-fouling system waste to prevent environmental harm (section 11). Ship owners and operators are also required to maintain records of anti-fouling system usage and inspections, as stipulated in section 12. Furthermore, paint manufacturers must ensure that the systems they produce meet the safety and environmental standards set forth in the Act. Breaches of the Protection of the Sea (Harmful Anti-fouling Systems) Act 2006 can result in significant consequences. Section 32 outlines that any person who contravenes a provision of the Act is liable to face civil penalties. Specifically, the maximum penalty for corporations is 500 penalty units, while for individuals, the maximum penalty is 50 penalty units (section 32(1)). Additionally, section 33 provides for criminal offences where a person contravenes a provision of the Act knowingly. The maximum penalty for such criminal offences is 500 penalty units for corporations and 50 penalty units for individuals (section 33(1)). Furthermore, section 34 states that where a ship uses a harmful anti-fouling system not in compliance with the Act, the ship may be detained or refused entry to Australian waters (section 34). These provisions are designed to enforce compliance and protect marine environments from the harmful effects of anti-fouling systems.