EXPLANATORY STATEMENT
STATUTORY RULES NO. 65 OF 1987
ISSUED BY AUTHORITY OF THE MINISTER OF STATE FOR TRANSPORT
PROTECTION OF THE SEA (PREVENTION OF POLLUTION FROM SHIPS) ACT 1983
PROTECTION OF THE SEA (PREVENTION OF POLLUTION FROM SHIPS) REGULATIONS (AMENDMENT)
Sub-section 33(1) of the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (the Act) provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act. The Protection of the Sea (Prevention of Pollution from Ships) Regulations (Amendment) were made pursuant to that sub-section.
The object of the Regulations is to specify matters of detail relating to the Act, as amended by the Statute Law (Miscellaneous Provisions) Act (No. 1) 1984, Statute Law (Miscellaneous Provisions) Act (No. 1) 1985, Protection of the Sea (Prevention of Pollution from Ships) Amendment Act 1986 and the Protection of the Sea Legislation Amendment Act 1986. The Regulations amend the Protection of the Sea (Prevention of Pollution from Ships) Regulations (the Principal Regulations) which contain provisions concerning Annex I of the International Convention for the Prevention of Pollution from Ships 1973 and its 1978 Protocol (MARPOL 73/78). Annex I deals with the prevention of pollution of the sea by oil. The Regulations insert in the Principal
Regulations provisions which will implement the detailed requirements of Annex II to MARPOL 73/78.
Annex II, which will enter into force internationally on 6 April 1987, deals with the prevention of pollution from ships carrying noxious liquid substances in bulk. Matters to be specified in the proposed Regulations include details relating to the notification of a discharge of a noxious liquid substance, the recording of cargo operations and the notification of a proposal to carry a substance in respect of which a hazard assessment has not been made.
It is Australian Government policy that the Act and Regulations necessary to implement an international convention should be in place before the convention can be accepted. In this case MARPOL 73/78 could not be ratified until the Regulations were made. Accordingly, the Regulations were made under section 4 of the Acts Interpretation Act 1901. This section provides that regulations may be made as if the Act had come into operation. The Regulations will not come into effect until the parent Act comes into operation. This will occur 3 calendar months following the lodgement of Australia’s instrument of ratification, which is expected during 1987.
Details of the Regulations are set out in the Attachment.
ATTACHMENT
EXPLANATORY STATEMENT
PROTECTION OF THE SEA (PREVENTION OF POLLUTION FROM SHIPS) REGULATIONS (AMENDMENT)
DETAILS OF REGULATIONS
Regulation 1 formally identifies the Principal Regulations which are amended by the Regulations.
Regulation 2 facilitates interpretation of the regulations by amending sub-regulation 2(2) of the Principal Regulations to provide that an expression used in the Regulations, the Convention and Annexes I, II or III to the Convention has the same meaning as in the Convention.
Regulation 3 extends the application of regulation 3 of the Principal Regulations for the purposes of paragraph 21(2)(e) of the Act, which relates to obtaining approval from the holders of specified offices in the Department of Transport for a discharge to combat a specific pollution incident.
Regulation 4 extends regulation 4 of the Principal Regulations to refer to sections 22 and 26B of the Act. These sections relate to the duty to report to the holder of a specified office in the Federal Department of Transport incidents involving the discharge or the probability of a discharge of a hazardous substance into the sea.
Regulation 5 amends regulation 5 of the Principal Regulations to prescribe the means by which the master, owner, charterer or operator of the ship is to urgently notify a prescribed officer identified by regulation 4 of a prescribed incident involving a noxious liquid or packaged substance (sub-sections 22(1), 22(3), 26B(3) and 26B(5) of the Act refer). In practice, this would be effected through the Federal Sea Safety and Surveillance Centre of the Federal Department of Transport.
Regulation 6 amends sub-regulation 6(1) of the Principal Regulations to prescribe the form of pollution report dealing with noxious liquid or packaged substances for the purposes of sub-sections 22(6), 22(7), 26B(8) and 26B(9) of the Act. The form of report, which can be found in the Schedule to the Principal Regulations, is derived from the format recommended by the International Maritime Organization.
Regulation 7 amends regulation 7 of the Principal Regulations to provide that the period within which a report of a prescribed incident involving a noxious liquid or packaged substance is to be furnished to a prescribed officer is 24 hours following receipt of a request to provide such a report.
Regulation 8 omits sub-regulation 9(1) of the Principal Regulations and substitutes a new sub-regulation drafted in a form similar to that of regulation 10D (see below). The revised sub-regulation contains amendments of an editorial nature and has been incorporated to follow more closely the language of the relevant provision of Annex I to the Convention.
Regulation 9 amends regulation 10 of the Principal Regulations to prescribe the holders of specified offices in the Federal Department of Transport for the purposes of subsections
25(5) and (6) of the Act. Sub-section 25(5) relates to the notification to a prescribed officer of the address in Australia of the registered office of the owner of an Australian ship for the purposes of retention of cargo record books. Sub-section 25(6) provides that a cargo record book of an Australian ship whose owner does not reside in or is not represented in Australia can be deposited with a prescribed officer.
Regulation 10 inserts new regulations 10A, 10B, 10C, 10D and 10E in the Principal Regulations. Details of each of these new regulations are as follows:
Regulation 10A gives effect to the requirements of section 20 of the Act which deals with the notification of a proposal to carry a certain substance, being a substance not listed in Annex II to the Convention. Such notification is to be made at least 30 days prior to the proposed date of import/export. The regulation also specifies offices in the Federal Department of Transport which are to be notified, while the manner of notification is by way of hand delivered or certified letter, telegram or telex.
Regulation 10B prescribes the Chief Marine Surveyor in the Federal Department of Transport for the purposes of paragraphs 21(6)(e), (7)(a), (8)(e) and (9)(d) of the Act. These paragraphs relate to the approval of procedures and arrangements for the discharge of noxious liquid substances. Such approval is individual to each ship and will be based on compliance with standards developed by the International Maritime Organization.
Regulation 10C prescribes the form of cargo record book for the purposes of sub-section 23(3) of the Act. The regulation specifies the form set out in Appendix IV to Annex II to the Convention. Where an entry in a cargo record book requires a time to be specified, Universal Coordinated
Time is to be used. This time is fixed by the International Telecommunications Union and, for practical purposes, is the same as Greenwich Mean Time.
Regulation 10D prescribes, for the purposes of sub-section 23(5) of the Act, the operations and occurrences for which details must be entered in the cargo record book. These include the loading/unloading and cleaning of tanks, discharges in accordance with the Convention, exceptional and accidental spillages.
Regulation 10E gives the requirements of Regulation 8 of Annex II to the Convention, dealing primarily with the cleaning of tanks, the force of law (section 26 of the Act refers). A surveyor is authorised by Regulation 8 of Annex II to ensure that ship operations comply with control procedures developed by the International Maritime Organization. If a tank of a ship carrying a noxious liquid substance in bulk is not washed in accordance with relevant requirements, the master of the ship is guilty of an offence punishable, upon conviction, by a fine of up to $2,000.
Regulation 11 amends regulation 11 of the Principal Regulations made under the authority of section 32 of the Act to enable the application of cargo record book requirements to all ships including ships flying the flag of States party to the Convention. The regulation also extends the operation of existing regulation 11 in respect of oil record book requirements and prescribed operations in relation to foreign ships either flying the flag of or under the authority of a Party to the Convention while such ships are within Australian jurisdiction. This provision has been included on the advice of the Attorney-General’s Department. Regulation 12 repeals and replaces regulations 12 and 13 of the Principal Regulations. The new regulation 12 authorises the Minister to make orders for and in relation
to giving effect to the Regulations of Annexes I and II, Article 8 and Protocol I to the Convention, and to fix fees to be paid in respect of any matters under the orders. The form of the regulation reflects the new wording contained in section 31 of the Protection of the Sea Legislation Amendment Act 1986.
The new regulation 13 imposes a fee of $40 when an oil or cargo record book is lodged with a prescribed officer in accordance with sections 14 and 25 respectively of the Act.
Regulation 13 amends regulation 14 of the Principal Regulations to enable application of the Act to Australian government owned or operated ships on government non-commercial service, other than warships or naval auxiliaries. This is in line with current Government policy that vessels under Government control should, where appropriate, be subject to requirements imposed on commercial vessels.
Regulation 14 amends the Schedule to the Principal Regulations which specifies the form of a report of an incident, as outlined in regulation 6 above. These amendments will extend the existing reporting requirements to cover noxious liquid and packaged substances.