Australian Coastal and Marine Pollution Regulation & Response

Australia has broad and extensive laws implementing and exceeding IMO conventions combating marine and coastal pollution and concerning maritime environment protection, through measures such as ballast water discharge restrictions, restrictions on the use of toxic anti-fouling paint, prevention of sea dumping and discharge of oil, garbage and waste from ships. 

Australian regulatory jurisdiction over coastal and marine pollution is shared between the Commonwealth and State (and Territory) Governments, with the State (and Territories) responsible for Australian inland and coastal waters within three nautical miles.  Waters beyond this distance are the Commonwealth’s responsibility through its agency, the Australian Maritime Safety Authority.

Australian maritime authorities are typically vigilant in their enforcement of marine environmental protection laws and almost invariably prosecute for breaches of marine environment laws, many of which are strict liability in nature.

Vessel operators and masters (and in some cases crew members) can face criminal sanction and significant penalties for breach of marine pollution laws and can also be liable for clean up costs and civil liability to affected third parties. For instance, in New South Wales the penalty for oil discharged from a vessel is up to $500,000 for an individual and as much as $10 million for the ship operator. 

  • Australian maritime officers are given broad and wide powers to enforce marine environmental protection laws, and to obtain information, documents and evidence necessary to carry out their response and investigative role, including for instance:
  • power to go on board vessels and enter premises
  • power to request the production of documents and take copies of documents (eg deck logs, oil response plans, SOPEP)
  • interview crew members and other witnesses
  • take statements and require persons to answer questions
  • take samples of plant and equipment (eg an oil sample)
  • power to detain vessels.

When responding to a marine pollution incident, in our view:

  • ensure that immediate steps are taken to contain and avoid environmental harm
  • report the incident and co-operate with maritime response agencies
  • ensure that there is in place/on board appropriate maritime/oil pollution preparedness/contingency response plans (SOPEP, ISM Code manual) and equipment, which the crew are familiar with and are able to implement
  • carry out a full investigation into the incident - secure relevant documents, take statements from the master and other relevant crew members, keep a sample of pollution/oil discharged

Following a marine pollution incident, we believe it is important that:

  • an internal audit/investigation of the cause of marine pollution incident and response measures taken is conducted to identify any necessary changes that need to be made to ship based operational procedures and pollution response measures, so that steps can be put in place to prevent a repeat of the incident
  • industry best practice is adopted and put in place; and
  • any necessary crew training or re-training in marine pollution response management is carried out.

Following steps along these lines will enable evidence to be called during a prosecution hearing setting out the response and remedial steps taken in connection with a marine pollution incident, which in our experience can have a significant bearing on the severity of the incident leading potentially to a reduction in the size of any financial penalty that may otherwise have been imposed for a marine pollution incident.

 

Written by Anthony Highfield, Partner