5.3 CONCLUSION

Victoria, and Australia, are placed in the difficult position of being obliged, legally and ethically, to protect and promote biodiversity, while simultaneously not having adequate means to deter or detect threats caused to indigenous biodiversity through ballast water discharge.

The Committee notes that there is a wide range of statutes in different jurisdictions that are of potential application to ballast water management. None of this legislation was, however, designed to specifically address the problems created by ballast water discharge and each statute has shortcomings when applied in this context.

So far as definitions are concerned, many legislative schemes depend on a species being `declared' by the Governor in Council or administering agency to be noxious or prohibited. Given, however, that there can be no exhaustive list of pest species, a classification approach will always be one step behind events. In addition, the Committee notes that focusing on known target species which are already causing problems in Australian waters may result in a failure to prevent the introduction of new species³⁰⁶

Many of the statutes examined require the detection of actual pollution in order to attribute liability, but given the difficulties inherent in species detection, this approach is of little value to the present problem. The Environment Protection Act 1970 (Vic) overcomes this inadequacy by introducing the concept of pollution as potential harm. This approach has significant advantages over other schemes because it allows for risk assessment. In light of the difficulties involved with actual detection of species in ballast water, the Committee believes that risk assessment is likely to be a more efficient and realistic means of managing incursions.

The Committee therefore concludes that it is preferable to take an open-ended approach to definition, along the lines of the Environment Protection Act 1970 (Vic) which refers to `potential harm to the environment'. This facilitates a system of regulating ballast practices rather than focusing on detecting actual introductions of ballast species, detection being another problematic area.

The damage caused by biological pollution through ballast water species and the manner in which it occurs are unique. Undetectable biological matter is discharged from the tanks and holds of any number of ships, and over a period of time some species may colonise a local marine habitat and flourish, while others will not survive. This process makes it impossible to establish a causative link between the act of ballast discharge and the pollution - that is, infestation by the exotic organism species. Consequently, the principle of `the polluter pays' in some of the legislation examined is not so easily applied to the introduction of exotic marine species, because of the difficulties in each of the three stages of identifying the polluter, establishing what pollution they caused, and then remedying the infestation.

Refer to Table 6 for a summary of Commonwealth and State Acts audited by the Committee.

The Committee further discusses the application of current legislation to the ballast water problem in Chapters 8 and 9.

TABLE 6
Summary of Acts audited

Acts Audited	Summary
Commonwealth Legislation
Coastal Waters (State Powers) Act 1980	States can legislate extra-territorially. State quarantine laws inconsistent with Federal laws may be invalid.
Environment Protection (Sea Dumping) Act 1981	Intent of statute avoids addressing ballast water issue.
Australian Maritime Safety Authority Act 1990	Not applicable to ballast regulation. Act identifies AMSA as lead Commonwealth agency re operational shipping matters.
Protection Of The Sea (Prevention Of Pollution From Ships) Act 1983	Not applicable. If ballast water Annex to MARPOL is adopted then may be relevant to national ballast management.
Quarantine Act 1908	Current Act may not give AQIS sufficient power to regulate compulsory ballast guidelines.
Victorian Legislation
Catchment and Land Protection Act 1994	Not applicable - definitions exclude coastal waters.
Plant Health and Products Act 1995	Not practical - requires detection of an offence.
Coastal Management Act 1995	Not relevant - planning Act, not regulatory.
Fisheries Act 1995	Not recommended - requires detection of an offence, has targeted species approach & penalties are small.
Health Act 1958	Not recommended - limited to human health risks (eg.cholera), and would need to be implemented by local councils.
Marine Act 1988	Harbour masters may give instruction to ships not to discharge suspected contaminated ballast.
National Parks Act 1975	Not applicable - ports not in the parks systems.
National Environment Protection Council (Victoria) Act 1995	Relevant to question of Victoria taking the lead on ballast issues. Victoria may choose to act independently on grounds that other states are not acting quickly or effectively enough.
Flora and Fauna Guarantee Act 1988	Not recommended - Victoria may be exposed to compensation claims.
Pollution of Waters by Oil and Noxious Substances Act 1986	Not applicable - will be relevant if ballast water Annex added to MARPOL by the IMO.
Port Services Act 1995	Consolidating Actii. Adopts enforcement provisions of EPA Act and transfers pre-existing port authority powers to the EPA.
Environment Protection Act 1970	Recommended as a sufficient basis for effective management of ballast water discharge.

ii Act consolidates the provisions of Marine Act re harbour master's powers, and the Pollution of Waters by Oil and Noxious Substances Act in relation to prosecuting undesirable ballast discharges