5.2 AUDIT OF LEGISLATION APPLICABLE TO BALLAST WATER MANAGEMENT IN VICTORIA

The Committee undertook an audit of legislation that focused on the main advantages and disadvantages of each management framework offered by legislation relevant or potentially applicable to ballast water management. This was done with the intention of informing future discussion of what shortcomings need to be avoided, and which measures may be worth pursuing further²⁹⁵ The main observations in this respect centre on definitions, detection, establishing causation and evaluating damage, enforcement and the imposition of appropriate sanctions.

5.2.1 International regulation of ballast water

The International Convention for the Prevention of Pollution by Ships (MARPOL 73/78) was originally designed to create a uniform international scheme to prevent the discharge of oil into the sea²⁹⁶ The first version of MARPOL proposed in 1973 failed to attract enough signatures to bring it into force internationally. The amended version came into force in 1978. There are currently five Annexes to MARPOL which deal with issues such as prevention of pollution by noxious substances, sewerage and garbage, and a new Annex concerning air pollution which is being prepared²⁹⁷

Although the MARPOL 73/78 Convention appears in both Commonwealth and State legislation, it has not been given the force of law in its entirety in any Australian jurisdiction and there are still many parts of the Convention that have no effect in Australian law²⁹⁸

Ballast water management has been recognised by the Marine Environment Protection Committee (MEPC) of the International Maritime Organisation (IMO) as an issue of worldwide environmental significance.

The MEPC proposed a resolution²⁹⁹which was later adopted by the IMO assembly in 1993³⁰⁰ stating:

The discharge of ballast water and sediment has led to unplanned and unwanted introductions of non-native plants, animals and pathogens that are known to have caused injury to public health, property and to the environment.

The unwanted introduction of plants, animals and pathogens through the uncontrolled discharge of ballast water and sediment has important global implications that can be effectively, equitably and responsibly addressed through coordinated and cooperative action.

A set of voluntary guidelines was created at the same time as this resolution. Those guidelines were modelled substantially on the Australian guidelines for ballast water, which were, at that time, the most developed in the world³⁰¹ In 1995, the MEPC began drafting a new Annex to the MARPOL Convention specifically relating to ballast water.

Australia has actively pursued the introduction of an Annex to MARPOL to provide an international regulatory framework for making the current guidelines mandatory. Both the Australian Quarantine and Inspection Service (AQIS) and the Australian Maritime Safety Authority (AMSA) are actively involved in the formulation of the proposed Annex.

At its meeting held in London in March 1997, the IMO Marine Environment Protection Committee (MEPC) agreed on Draft Regulations for the Control and Management of Ships' Ballast Water to Minimise the Transfer of Harmful Aquatic Organisms and Pathogens and draft Guidelines for the Implementation of Regulations for the Control and Management of Ships' Ballast Water to Minimise the Transfer of Harmful Aquatic Organisms and Pathogens³⁰²

Although the Annex is not expected to be implemented for several years, it is hoped that it will provide a more substantial basis for the enforcement of ballast management strategies in all countries that are signatories of MARPOL. The proposed Annex to MARPOL is discussed further by the Committee in Chapter 9.

5.2.2 Existing Commonwealth legislation

5.2.2.1 Coastal Waters (State Powers Act) 1980 (Cth) (No 75 of 1980)

In this Act, the Commonwealth ceded to the states legislative powers over ports, harbours, shipping facilities, the sea-bed and fisheries in state waters. These powers provide, both individually and collectively, a basis for the states to legislate on ballast water management issues.

The Commonwealth did not, however, cede quarantine powers over state waters and, as a result, the state and federal jurisdictions overlap in this respect. Accordingly, under s 7C of this Act and s 109 of the Constitution, state laws will be invalid to the extent that they are inconsistent with federal provisions relating to quarantine matters.

The Committee notes, however, that by s 7(b), this Act does not detract from the states' extra-territorial legislative powers, which is important should Victoria wish to regulate the ballast practices of vessels bound for Victoria while those vessels are still outside Victorian waters. This is discussed further in Chapter 9.

5.2.2.2 Environment Protection (Sea Dumping) Act 1991 (Cth) (No 101 of 1981)

Neither the Environment Protection (Sea Dumping) Act 1991 nor the international convention on which it is based was designed to apply to ballast water. The Committee concludes that it is unlikely that the Act applies to ballast water because a Schedule to the Convention on which it is based (Convention on the Prevention of Marine Pollution by Dumping of Wastes Article III) excludes discharge at sea as a matter incidental to ship's operations. While there may be a residual argument that "at sea" should be interpreted as excluding times while a vessel is in port (and thus discharging ballast), the Committee believes that the general intent of the statute appears to avoid addressing the ballast water issue. It is thus unlikely that this Act could be used in the regulation of ballasting operations.

5.2.2.3 Australian Maritime Safety Authority Act 1990 (Cth) (No 78 of 1990)

The Australian Maritime Safety Authority Act 1990 establishes the Australian Maritime Safety Authority (AMSA). In combination, ss6(1)(a) and 10 of the Act confer on AMSA a general power to do anything necessary to combat pollution in the marine environment. Plainly, AMSA is authorised to do whatever is necessary to combat ballast water pollution if it amounts to "pollution" for the purposes of the Act. Because the term "pollution" is not defined, and because AMSA's general power is so widely drawn, this Act does nothing to identify a specific regulatory response to the ballast water problem. It would be relevant, however, in supporting a nomination of AMSA as lead agency on a broad objectives/policy basis. The Committee concludes that the Act's main significance is in identifying AMSA as the lead Commonwealth agency in relation to operational shipping matters.

5.2.2.4 The Protection Of The Sea (Prevention Of Pollution From Ships) Act 1983 (Cth) (No 41 of 1983)

The Protection Of The Sea (Prevention Of Pollution From Ships) 1983 is the Commonwealth Act giving effect to provisions of the MARPOL Convention. For this reason, it is very much focused on the prevention of pollution by oil and noxious liquid substances. Accordingly, the Committee believes that this statute will not be of great importance to ballast water regulation unless and until a new Annex regarding ballast water is adopted by the IMO. If a new ballast water Annex is adopted, the Act may be of significance to the future of national ballast water regulation.

5.2.2.5 Quarantine Act 1908 (Cth) (No 3 of 1908)

The Committee considers that the Quarantine Act 1908 is the most broad-ranging piece of Commonwealth legislation currently available for the regulation of exotic marine organism introductions into Australian waters. Many of the offences and powers it creates, however, apply only to the introduction of pests into Australia. They do not, therefore, extend to controlling the spread of organisms to other Australian waters once they have been introduced. The Committee notes that for this reason alone the Act could not be considered a complete framework for ballast water regulation.

The powers that the Act creates which allow AQIS to deal with ballast water are not specifically applicable to ballast water. The Committee believes that in some cases it would be stretching a definition to see them applicable at all; for instance, it is unlikely that "goods" could be interpreted as including ballast water, or ballast water discharge regarded as a "knowing offence" under s 67.
Most of the offences in the Act require knowledge on the part of the offender, yet knowledge is not an element of most ballast water/hull fouling introductions. Thus, in many cases no offence would be committed even if a prohibited species were brought into Australia. Because the Act only creates offences in relation to actual quarantinable material, rather than potentially quarantinable material that may be present in an otherwise innocuous substance, it is not an ideal means of addressing the ballast water problem.

The Request for Pratique Form (health clearance) s 33 is the one currently used by AQIS to monitor ballast water operations on vessels entering Australia. Although Pratique is effectively a human quarantine issue, the Committee considers that it may be useful to amend this section to address ballast water issues as well. This would provide AQIS with a pro-active power to prevent international ships entering port (by refusal to grant Pratique) when it is suspected their ballast water may be contaminated. This would create a substantial deterrent against undesirable ballast water operations.

If ballast were classified as "goods", s 70C of the Act could be a useful deterrent mechanism for ensuring the veracity of a ballast log; the issue being that under the current voluntary guidelines, there is no penalty for misleading quarantine authorities about the nature and source of ballast. If ballast was classified as a "good", then a ballast log would have to be truthfully kept lest this section be invoked. The accuracy of the ballast log could then be verified through procedures such as random salinity testing of vessels' ballast water.

The Committee notes that AQIS views the Quarantine Act as providing it with the authority to implement and administer the current voluntary guidelines (Chapter 8), and to regulate ballast water generally³⁰³ AQIS's powers in relation to ballast water derive ultimately from its general powers in relation to actual quarantinable material. Because of the difficulties in establishing that contaminants are present in ballast water, the Committee believes it is questionable whether the Quarantine Act in its present state would confer sufficient power on AQIS to implement a ballast water regulation scheme if the current voluntary guidelines were made compulsory.

5.2.3 Existing Victorian legislation

5.2.3.1 Catchment and Land Protection Act 1994 (No 52 of 1994) (Vic)

The Catchment and Land Protection Act 1994 is concerned with the protection of land and inland fresh waters, particularly catchment areas. Its definitions of the various categories of noxious weeds and pest animals largely exclude marine pest species on the basis that the Act is concerned with eradication and containment measures that might not be possible in a marine environment. Its definitions of waters almost certainly exclude coastal waters and its penalty regime is aimed at low level individual offenders, with fines of between $500 and $1,000. For these reasons, the Committee considers it unlikely that the Act is applicable to ballast water, and were it applicable to the problem, it would offer little in the way of relevance or usefulness to ballast water management.

5.2.3.2 Plant Health and Plant Products Act 1995 (Vic)(No 51 of 1995)

The Plant Health and Plant Products Act 1995 is of wider application. It provides for the control of plant pests and diseases generally across Victoria, not just on land and in catchments. The Act also has more significant penalties, with fines of between $10,000 and $20,000. Although these are probably inadequate to deter shipowners, they indicate a legislative intent to apply to more serious offenders. As the offence of bringing prohibited species into Victoria is one of strict liability under the Act, along with a further offence based on recklessness, the control of ballast water is possible under this Act. Ships' masters will rarely (if ever) have knowledge that they are carrying a prohibited species in their ballast water, and so they cannot be found liable for any offence that requires knowledge on the part of the offender. Any system of ballast water regulation must take this into account and create offences of strict liability like those in this Act.

The major shortcoming of this Act in terms of its relevance to ballast water is its reliance on detection of an actual offence in order to attribute liability. Detection is a major problem in ballast water regulation given that not only is it impossible to test every ship's ballast, but current AQIS testing methods detect only cholera and dinoflagellates and results can take from a few days to 2 weeks to come back from laboratories.

5.2.3.3 Coastal Management Act 1995 (Vic) (No 8 of 1995)

The Coastal Management Act 1995 establishes a system for generating coastal management strategies and planning. The bodies which it creates are able to develop strategies which might address the ballast water issue, but no actual powers are provided to allow these bodies to enforce their management plans. Accordingly, this Act allows for planning but not action on the regulation of ballast water operations. The Committee concludes that a jurisdiction independent of this Act would be required to implement any regulatory framework.

5.2.3.4 Fisheries Act 1995 (Vic) (No 92 of 1995)

The Fisheries Act 1995 is a very wide ranging statute that could provide a framework for addressing the problem of ballast-introduced marine organisms. Its objectives include the protection and conservation of fisheries resources, habitats and ecosystems, as well as the maintenance of aquatic ecological processes and genetic diversity. The prevention of infestations of the indigenous aquatic environment by introduced marine organisms is thus well within the ambit of the Act.

The Act creates a mechanism for dealing with noxious aquatic species. It creates strict liability offences of bringing prohibited, controlled or regulated noxious aquatic species into Victoria and/or releasing them into protected waters. The penalties range from $2,000 to $20,000 which, on their own, are unlikely to be large enough to deter shipowners.

In addition, because this Act relies on detection of an actual offence in order to attribute liability, and because detection is a major problem in ballast water regulation, the Committee concludes that this Act has major shortcomings as an instrument for ballast water regulation in Victoria.

5.2.3.5 Health Act 1958 (Vic) (No 6270/1958)

The Health Act 1958 is potentially applicable to ballast water issues, but is effectively limited to controlling the spread of cholera and toxic dinoflagellates because the Act's definitions focus on danger to human health or offences to personal comfort.

Furthermore, the implementing authorities under the Act are local councils, which could not be expected to provide a uniform state-wide approach to ballast regulation, and do not have the necessary experience in shipping. The Committee therefore believes that the Act does not provide a complete response to the ballast water problem.

5.2.3.6. Marine Act 1988 (Vic) (No 52 of 1988)

The Marine Act 1988 vests harbour masters with powers in relation to vessels in State waters, including the power to direct vessels in the time and manner of discharging ballast. That power has generally been applied in relation to dirty or oily ballast. There is nothing in the legislation, however, to prevent it from being applied in the context of exotic species contamination. The penalty for failure to comply with such directions is $12,000.

The Governor in Council is given powers under Section 105 of the Marine Act to make regulations to give effect to the Act in a wide range of matters including the control of ballast water. Draft Marine (Safety of Navigation) Regulations prepared under this section provide that the master of a vessel must not cause or allow the vessel to take in or discharge ballast water without first obtaining the permission of the harbour master³⁰⁴

Another provision of the Act allows harbour masters to give directions to vessels to leave State waters when they reasonably believe there is imminent danger of serious damage to the marine environment. It is doubtful whether a potential infestation due to the release of organic material in a ballast discharge would satisfy the requirement for `imminent danger'. If this section were to apply, however, it would allow a harbour master to turn a ship away from port if he or she believed that the vessel was going to discharge contaminated water.

The Marine Act also creates a regime for regulating `prohibited discharges', with fines of up to $50,000. The Committee, doubts, however, whether ballast water satisfies the definition of `prohibited discharges' because the prohibition derives from the MARPOL Convention which does not at present extend to ballast water.

5.2.3.7 National Parks Act 1975 (Vic) (No 8702/1975)

Regulations under the National Parks Act 1975 are restricted in application to national and state parks and `remote and natural areas'. This means that the Act is of limited relevance to ballast water regulation, which is principally concerned with ports and harbours which are not in the parks system. The Committee believes it is unlikely that the Act confers wider powers to regulate activities outside parks that might have an impact on the environment within the parks themselves.

5.2.3.8 National Environment Protection Council (Victoria) Act 1995 (Vic) (No 10 of 1995)

The National Environment Protection Council (Victoria) Act enacts the Intergovernmental Agreement on the Environment (IGAE), an agreement between the Commonwealth and the states addressing environmental issues. Clause 9 of Schedule 9 of the Agreement specifies that the parties acknowledge a cooperative national approach to the control of introduced pest species and has the potential to produce savings from a reduction of duplication of existing effort.

Thus the IGAE provides that the Commonwealth's role should be one of facilitating coordinated state efforts within its national approach. This is relevant to the debate about whether Victoria's action should take place in the context of the national framework, whether it should be entirely independent, or whether it is justified in taking the lead on the issue.

While the IGAE proposes that pest species controls should be developed nationally, it cannot be seen to restrain one or more states from acting when the others are not. The IGAE assumes that all signatory states are acting on the issue, and that they should therefore act together. This is not the case in the area of ballast control, where Victoria might choose to act independently on the grounds that other states and territories are not acting quickly or effectively enough.

5.2.3.9 Flora and Fauna Guarantee Act 1988 (Vic) (No 47 of 1988)

The Flora and Fauna Guarantee Act 1988 provides for the management of processes which are potentially threatening to Victoria's native flora and fauna. A Potentially Threatening Process is one which has the potential to pose a significant threat to the survival or evolutionary development of a range of flora or fauna.

Once listed, the Government is required to prepare an Action Statement describing what is to be done to conserve and manage those species, communities or processes. In November 1992, the 'Introduction of Exotic Organisms into Victorian Marine Waters' was listed as a Potentially Threatening Process under the Act. An Action Statement has not yet been released for this process. The Committee discusses this further in Chapter 10.2.

The Committee notes that two provisions of the Flora and Fauna Guarantee Act in the present context relate to compensation. Section 43 requires that the State compensates people who have incurred financial losses as a result of complying with an interim conservation order. This would expose the State of Victoria to a variety of costs in the ballast water context, including potential costs of delay in a vessel's timetable as a result of returning to sea to exchange ballast.

The other compensation provision, s 62, requires offenders to compensate the State for the cost of any restoration work done to remedy the damage caused. This would be highly contentious in the context of damage caused by exotic marine species, given that eradication may not always be possible.
This use of the `polluter pays' principle would also pose grave problems when applied to ballast water due to the difficulty of establishing causation (a link between) a specific introduction and an infestation. Even if a species were to be detected in a ship's ballast water, it would be practically impossible to link a particular infestation to any one vessel given that colonisation happens over a period of time, and organisms may have originated from other sources such as vessel hulls or fishing nets.

Thus, although a compensation provision such as s 62 might be theoretically attractive because it offers an interesting alternative deterrent, as well as opening up new possibilities for financing the costs of controlling the spread of species, the Committee believes it is unlikely to have any practical application in ballast water regulation.

5.2.3.10 Pollution of Waters by Oil and Noxious Substances Act 1986 (Vic) (No 27 of 1986)

The Pollution of Waters by Oil and Noxious Substances Act 1986 implements the MARPOL Convention. Its definitions of `prohibited discharges' are the same as those discussed in the Marine Act, and so the same difficulties would apply, in that MARPOL effectively excludes what it refers to as `clean ballast'. The penalty regime under this Act is the most significant of any examined thus far, with fines of up to $200,000 and 2 years imprisonment where the offender is an individual, and fines of up to $1,000,000 where the offender is a body corporate.

The Act also provides a wide range of powers to authorised officers, some powers of which might be relevant to ballast water, such as the power to inspect vessels and their logs. While the Act appears to be inapplicable at present, the Committee believes that it may be of relevance in the future if a ballast water Annex is added to MARPOL by the IMO.

5.2.3.11 Port Services Act 1995 (Vic) (No 82 of 1995)

The Port Services Act 1995 largely consolidates the provisions of the Marine Act in relation to a harbour master's powers, and the Pollution of Waters by Oil and Noxious Substances Act in relation to prosecuting undesirable discharges from ships.

The most significant aspect of the Act is the transfer of pre-existing port authority powers to the Environment Protection Authority (EPA) and the adoption of the enforcement provisions of the Environment Protection Act 1970. The Committee believes that this is important from a practical viewpoint in determining the lead State agency in any ballast water management plan.

5.2.3.12 Environment Protection Act 1970 (Vic) (No 8056/1970)

The Environment Protection Act 1970 created the Environment Protection Authority (EPA) and is the broadest of the anti-pollution statutes considered so far. Section 39 of the Act provides that anything which is detrimental to any beneficial use made of waters (beneficial use means a use of the environment which is conducive to public benefit, welfare, safety, health or aesthetic enjoyment), or anything which is potentially harmful to plants, humans and animal life, constitutes pollution.

The use of the word 'potentially' is very important here. The organic matter in ballast water is not `harmful' at the time of discharge; it only has the potential to be harmful at that stage. Months or years later, however, the organism may have colonised an area of the sea bed and become harmful. By extending the definition of pollution to potential harm, this Act effectively does away with the causation issue and thus overcomes the difficulties that would be encountered were other legislation to be applied.

Importantly, it must be decided how potential harm is to be ascertained. It could be said that all ballast water is potentially harmful. The Committee believes that it is appropriate to interpret potential as meaning probable rather than `definite' or simply `possible' in this context; in other words, actual detection of contaminants in a ballast tank should not necessarily be required, but some kind of risk assessment would need to be performed rather than a blanket assumption of potential for contamination. The risk assessment would be based on factors including known environmental conditions at the port of ballast uptake, whether the ship exchanged ballast, and a vessel's track record of compliance. The possibility of identifying some ballast water on some ships as `potentially harmful' to the environment is significant.

The vessel might then be advised that should it discharge ballast into Victorian waters, it would be in breach of the Environment Protection Act and subject to a fine of up to $20,000, imprisonment, or a fine of up to $1 million for a body corporate (for example, the ship owner) under s 59E, which is the aggravated pollution provision.

This course of action should constitute a deterrent to both shipowners and masters, given that s 63 specifically provides for both these persons to be personally liable in the case of discharge from a ship.

The Act also contains other less significant provisions of some relevance. Pollution Abatement Notices (PANs) under s 31A are intended to deal with the risk of potential pollution usually from a factory or land-based operation³⁰⁵ A PAN takes effect 30 days after a Notice has been served and is therefore an ineffective mechanism for ballast water regulation.

Section 31B creates a scheme for regulating minor pollution incidents, which has been used once by the EPA to prevent a vessel from discharging its ballast in Victoria. The problem with the use of a Minor Works Pollution Abatement Notice is in determining whether the cost of compliance in not discharging ballast water in port will not exceed $10,000 under s 31B(1)(b). A shipowner may argue that the costs associated with time delays and the mobilisation of the vessel to return to sea to exchange ballast will exceed $10,000, thereby rendering these provisions inapplicable to ballast water control. If indeed the costs are judged to be below $10,000, then the maximum penalty for a single offence (as a discharge of ballast would be on any given occasion) is $5,000. Therefore, if the costs of compliance are above $5,000 but below $10,000, then non-compliance will be more cost-effective for the polluter; especially when the likelihood of detection is factored into the risk analysis.

On this basis, the Committee considers it is difficult to conceive of the measures under s 31A and s 31B being an effective deterrent against shipping regulating the discharge of ballast water. Section 31B has perhaps been used by the EPA more as a symbolic and interim mechanism until a comprehensive and effective regime of regulation is introduced.

It should also be noted that the EPA has the power to recover clean-up costs from the polluter under s 62. Although that power could be used in the ballast water context, the difficulties of detection and establishing causation would still remain. Section 62B provides special powers to EPA officers where there is an imminent danger to the environment. It is quite possible that this pro-active power could be exercised where it is believed that a vessel is in the process of discharging contaminated ballast. Under this section, EPA officers would have the power to stop the discharge and require the ship's master to remedy the situation accordingly. The difficulties, however, raised in this context by the notion of `imminent danger' were discussed above in relation to the Marine Act 1988 (Vic). An amended version of s 62B might extend the EPA's powers to give directions whenever pollution (in the sense of `potential harm') is threatened, whether or not there is imminent danger to the environment.

Under s 51 (1) of the Environment Protection Act 1970, the EPA has the power to enter any premises for the purposes including administering the Act and protecting the environment. This would enable EPA officers to board vessels and sample ballast water to determine whether ballast water had been exchanged or if ballast contained exotic organisms.

In summary, it could be said that the Environment Protection Act 1970 in its present form provides a sufficient basis for effective regulation of ballast water discharge. It has four main features that would be most desirable in a regulatory scheme:

· the inclusion of potential damage as a form of pollution;

· the attribution of liability to both ships' masters and shipowners;

· the magnitude of the maximum fines and the possibility of jail sentences in the event of aggravated breach; and

· the conferral of wide pro-active powers on EPA officers in situations of imminent danger to the environment.