In brief – Penalties increased in bid to preserve marine ecosystems
In response to a review conducted by the Australian Maritime Safety Authority (AMSA) following the grounding of the Shen Neng 1 in April 2010, the Federal Government has moved to strengthen maritime legislation, including an update to the penalty provisions of the Navigation Act 1912 and Protection of the Sea (Prevention of Pollution from Ships) Act 1983.
Ship’s master criminally responsible for negligent acts
In October 2011 the Hon Anthony Albanese, Minister for Infrastructure and Transport, delivered his summing up speech for the Maritime Legislation Amendment Bill. Citing the Shen Neng 1 and Pacific Adventurer incidents off Australian shores, Mr Albanese described the Bill as:
"...legislation to ensure that our regulatory regime is strong enough to provide sufficient deterrent to shipping companies and their crews from engaging in unsafe and irresponsible actions at sea, particularly near environmentally sensitive marine ecosystems".1
These objectives have been met through a series of reforms to the Navigation Act 1912 which attribute criminal responsibility to a ship's master for any negligent acts which result in pollution or damage to the marine environment in Australian waters.
The amendments which took effect on 4 December 2011 create strict liability (guilt on commission of an offence). The category of ships subject to these changes has been broadened and now also includes charterers of vessels.
Key amendments to the Navigation Act 1912
There have been several amendments to the Navigation Act, including the introduction of over 20 sections aimed at creating new criminal and civil offences aligned with the revised objectives of the Act.
Most noteworthy of these are the new penalty provisions found in sections 267ZZI to 267ZZM.
Pollution or damage to marine environment in Australian waters
Section 267ZZI provides an offence in circumstances where the master of a ship operates the ship in a negligent or reckless manner which causes pollution or damage to the marine environment in Australian waters.
Such a provision would come into effect in circumstances such as those where a vessel knowingly (or obviously) ventures too close to the shore and runs aground.
Section 267ZZJ provides a new offence in circumstances where the master of a ship fails to ensure that the ship is not operated in a negligent or reckless manner that causes pollution or damage to the marine environment in Australian waters.
Pollution or damage to marine environment outside Australian waters
A master of an Australian ship must not operate the ship in a manner that causes pollution or damage to the marine environment in seas that are beyond Australian waters. Contravention will result in an offence.
A master of an Australian ship must ensure that the ship is operated in a manner that does not cause pollution or damage to the marine environment in seas that are beyond Australian waters. Contravention will result in an offence.
Increased penalties for aggravated contraventions
The penalty applicable for a contravention of s267ZZI - M is between 600 and 6000 penalty units. In monetary terms, that is $66,000 to $660,000. The penalty units are said to increase if the contraventions have the potential to cause serious harm, or have resulted in serious harm to the marine environment, being what is defined under the Act as "aggravated contraventions".
In assessing the civil penalties for a contravention of the Navigation Act, the Court is to have consideration to:
- the characteristics of the ship
- the ship's cargo and the risks of pollution or damage to the marine environment if that cargo is released
- the amount of bunker oil on board the ship and the risk of pollution or damage to the marine environment if that amount of oil is released
- the state of visibility
- the state of the wind, sea and current
- the presence of other ships in the vicinity
- the presence of navigation hazards in the vicinity
- the rules under the Convention on the International Regulations for Preventing Collisions at Sea, 1972
- operational requirements imposed by law
Protection of the Sea (Prevention of Pollution from Ships) Act 1983
Dealing with the prohibition of discharge of oil or oily mixtures into the sea, section 9(1B), section 9(1C) and 10(3) of the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 have been amended to create a strict liability offence against the charterer of the ship, alongside the master and owner.
The inclusion of the charterer raises several questions of accountability on the part of the charterer and the extent to which they now have to act to ensure that circumstances, invariably out of their control, are in some way avoided or contained.
The Act has also targeted the civil penalty payable by both individuals and corporations responsible for a contravention of subsections 9(1B) and 10(3) by substantially increasing the potential penalty payable.
The "high penalties are intended to be appropriate to discourage non-compliance and to take into consideration the levels of cost saving that shipping operators may achieve through non-compliance".2
Ship owners, masters and charterers need to avoid contraventions
It is clear from the amendments that the government is taking a strong position on pollution emanating from vessels both in and outside Australian waters.
Owners, masters and charterers of ships will need to ensure they have proper processes and reporting procedures to ensure there is limited possibility of contravention, especially following the creation of the strict liability offences.
1 Maritime Legislation Amended Bill 2011, 12 October 2011, "Summing Up Speech" by Minister Albanese http://www.minister.infrastructure.gov.au/aa/speeches/2011/AS34_2011.aspx
2 Minister Albanese, Maritime Legislation Amendment Bill 2011, Summing Up Speech, http://www.minister.infrastructure.gov.au/aa/speeches/2011/AS34_2011.aspx
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.