Review Into NSW Marine Pollution Act Currently Underway

Tuesday 24 September 2019 @ 10.53 a.m. | Legal Research

The Marine Pollution Act 2012 (NSW) (“the Act”) is the key piece of legislation that regulates the marine pollution from vessel discharges in NSW State waters, in order to protect the marine environment. 

Transport for NSW is currently conducting a review of the Act. The review will consider whether the Act’s policy objectives remain valid and if the terms of the Act continue to be appropriate. Transport for NSW has released a discussion paper, containing proposed changes to the Act, and is currently seeking stakeholder input in the review.

The Act

The Act is the main piece of state legislation that gives effect to Australia’s obligations under the International Convention for the Prevention of Pollution from Ships (“MARPOL”). MARPOL is the main international convention which addresses ship sourced pollution and contains regulations for the prevention of pollution from accidental incidents and routine ship operations.

The Act applies to the coastal waters of the State, which is the area that extends from the low water mark on the coast to three nautical miles (i.e. 5.6 kilometres) out to sea. Additionally, the Act applies to other water specified in Schedule 1 of the Marine Pollution Regulation 2014 (NSW), including Botany Bay, Coffs Harboue, Jervis Bay and Sydney Harbour. Coastal waters that extend beyond the three nautical mile limit fall under the jurisdiction of the Commonwealth, rather than the State.

The objective of the Act is to protect the marine and coastal environment of NSW from pollution discharged by ships. The Act categorises offences according to five key marine pollutants, as specified under MARPOL. These pollutant categories are:

  • Oil
  • Noxious liquid substances
  • Harmful substances in packaged form
  • Sewage
  • Garbage

The Act also contains provisions that cover compliance and record keeping requirements, implementation powers, and enforcement and penalties in relation to offences outlined in the Act. Additionally, the Act contains provisions regarding other issues not covered in MARPOL, including:

  • Prevention of pollution from transfer operations
  • Insurance requirements
  • Ministerial powers to respond to pollution incidents
  • Recovery of clean-up costs following an incident

The Act currently works in conjunction with the Protection of the Environment Operations Act 1997 (NSW) (“the POEO Act”), in protecting the marine environment from pollutants. The POEO Act is the main piece of environmental legislation in NSW and has a broader application.

The Review

The discussion paper puts forward two key changes to the Act. Firstly, it proposes that the definition of ‘State waters’ be broadened in order to include all waters in the State where a marine vessel could be used. This amendment would mean that the Act would also cover rivers and smaller inland bodies of water such as the Murray River, Darling River, and other inland ports. This change is aimed to provide for more clarity for vessel users of their legal requirements in regards to marine pollutants.

The discussion paper summarises in part 5.2.1:

“The existing definition does not extend the Act to all waters in NSW, meaning that different legislation applies across the NSW marine environment. In effect, this means the same type of pollution event is covered by different legislation with differing standards, depending on its location. … This could be confusing for vessel users to determine whether they are on waters in which the Act does or does not apply.”

The discussion paper also suggests that the current exclusion for recreational vessels in the definition of ‘ship’ be removed. It proposes that the definition of ‘ship’ within the Act be amended to include all vessels in NSW waters. This amendment would mean that recreational vessels would be subject to the requirements under the Act. Currently, pollution offences from such vehicles are regulated by the POEO Act.

The discussion paper states in part 5.2.2:

“Excluding recreational vessels from the Act raises issues of equity. Recreational vessels of the same size as commercial vessels may have the same potential to cause harm to the marine environment, but are not equally covered by the Act.”

The discussion paper also proposes additional amendments in regards to:

  • Proper maintenance of sewage pollution prevention equipment
  • Power to proceed directly against an insurer in order to recover costs
  • Power to issue a notice to require the removal of marine pollutants from a vessel, in specific circumstances
  • Power to detain a vessel and obtain payment for reimbursement of clean-up costs

Consultation on the discussion paper is currently open. Further details on the consultation and progress can be found on the Transport for NSW website.

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