LA CURVA DE INDIFERENCIA

The major relevant Northern Territory legislation is the Marine Pollution

Act (MPA), which gives effect to most aspects of MARPOL and the MPA

states in various parts that this is its intention. However, scrutiny of the Act shows that the drafter has seriously interfered with MARPOL’s main provisions, so the international comity that one seeks in the international shipping industry is lost. The MPA provides for offences if prescribed discharges occur into ‘coastal waters’167 _{or into waters outside them if the}

pollutant subsequently enters coastal waters.168

Before dealing with the provisions of the MPA itself, in relation to Northern Territory jurisdiction of the MPA and other maritime acts, this is dealt with in the Off-shore Waters (Application of Territory Laws) Act, which was enacted in its original form in 1985. It is short and it applies Northern Territory laws in coastal waters and acts or omissions in ports, harbours and offshore facilities and also in the ‘adjacent waters’ beyond the outer limits of the coastal sea. This does not apply to criminal laws, which come under the Crimes at Sea Act 2000.169

In the MPA itself, in relation to oil, it is an offence for the ship’s owner or master to ‘intentionally cause or permit the discharge of oil from a ship into coastal waters’ if it causes ‘serious’ or ‘material’ environmental harm and he or she knows, or ought reasonably be expected to know, that such harm will or might result.170 _{This applies to}

offences at Levels 1 to 3, where there is no intention the penalty is less. For more minor offences, designated as Level 4, the MPA provides that the ship’s owner and master ‘must ensure that oil is not discharged from the ship’.171 _{It can be seen that these drafting provisions have very little, if}

any, connection with the wording of Annex I of MARPOL.

The defences to an oil discharge are similar to those set out in MARPOL, but once again the drafter has substantially departed from the MARPOL wording. The familiar defences of saving life at sea, etc, are

166 Marine and Harbours Act 1981; Offshore Minerals Act 2003; Petroleum Act 1967; Petroleum Pipelines Act 1969; Petroleum (Submerged Lands) Act 1982; Pilots Limitation of Liability Act 1962; Port Authorities Act 1999; Shipping and Pilotage Act 1967; and West Australian Marine Act 1982.

167 Section 6(1) defines ‘coastal waters’ in terms of the Coastal Waters (Northern Territory Powers) Act 1980 (Cth), together with the waters within the NT that are subject to the ebb and flow of the tide.

168 Section9. 169 Section3(3). 170 Section14. 171 Section14(5).

there, and the ‘damage’ to ship or equipment defence is included without the changes arising from the High Court decision in the Sitka II Case.172

However, the drafter does touch on this issue as the MPA introduces the new defence of an ‘adequate and regular inspection and maintenance’ and that the damage should not ‘reasonably be expected to be detected and repaired’ in the course of such inspection and maintenance.173 _The

lengthy MARPOL regulatory provisions for a ship to discharge certain, low, quantities of oil offshore from land is left to be set out in the Regulations.174

In relation to noxious liquid substances, the MPA follows a similar wording to that used in dealing with discharges of oil175 _{and the same}

may be said of the provisions about jettisoning harmful substances into coastal waters176 _{and discharging sewage.}177 _{However, in relation to dis-}

charge of sewage, the Act introduces the concept of discharges by a ‘small ship in a sensitivity zone’,178 _{which gives effect to a structure}

unique to the Northern Territory. The regulation of the disposal of garbage is set out in Pt 5, where the drafting has followed the structure in the rest of the MPA, although it does give effect to MARPOL Pt V after its own manner. Transfer operations (for a ship loading from, or discharging to, shore) are covered in Pt 7.

The MPA gives the CEO power to direct that ports, owners etc pro- vide reception facilities ashore for ships and it has the usual provisions about enforcement and emergencies.179 _{There are very sensible provi-}

sions for a person who claims compensation for loss or damage caused by actions under the MPA to seek compensation from the Northern Territory Government and granting jurisdiction to the court to award them if ‘it is satisfied it is just’.180 _{The MPA seems to be fair and sensible}

in balancing the powers needed to regulate marine pollution from ships and the need to compensate persons who may suffer loss or damage in their wrongful exercise.

172 Morrison v Peacock (2002) 210 CLR 275; [2002] HCA 44. See discussion in this chapter at Section 8.3.

173 Section15(2)(b),(c).

174 Section16. The Marine Pollution Regulations deal with oil in Pt 2, with noxious liquid substances in Pt 3, with packaged harmful substances in Pt 4 and Garbage in Pt 5.

175 Part 3.

176 Part 4; which gives effect to MARPOL Annex III. 177 Part 5; which gives effect to MARPOL Annex IV.

178 Section31. The Act applies to ships over 400 tonnes, following MARPOL, and a ‘small ship’ is one under that tonnage. Setting out ‘sensitivity zones’ is left to the Regulations; see definitions in s 30.

179 If asked, a person must help an authorised officer in an emergency unless the person has a reasonable excuse; s 73. See also s 81 and following about the powers given to the CEO and the minister if there is a maritime casualty. 180 Section84.

Whilst there are environmental procedures in the Northern Territory, there is no Act as extensive in this regard as in the States. Suffice to note in conclusion, therefore, that there are other Acts that touch on this aspect but it is not intended to describe their provisions.181

8.9 Conclusion

As mentioned at the outset, this chapter sets out the various laws of the Australian States and the Northern Territory giving effect to the various marine environmental conventions. It may be seen from this exercise that the Australian offshore jurisdiction is confused and confusing. Hardly any State parliament has failed to interfere with the terms of the inter- national conventions. This offends against the international law principle of comity, but more importantly, it makes the conduct of international trade by sea very difficult. The complexity of these laws adds to the costs of sea carriage of goods, fisheries and general maritime commerce.

The Australian offshore jurisdiction is badly in need of reform so that it is simplified and this chapter, when combined with the chapters on the offshore jurisdiction (Chapter 6), on the Australian Commonwealth laws (Chapter 7), demonstrate that in Australasia there is an urgent need for expert attention to be given to simplify the laws implementing the marine environmental international conventions. The New Zealand situation is dealt with in Chapter 10.

181 Crimes at Sea Act 2000; Energy Pipelines Act; Environmental Assessment Act; Environmental Assessment Administrative Procedures Act; Environmental Offences and Penalties Act 1996 (which sets out the penalties for Tiers 1- 4 offences); Marine Act; Petroleum (Submerged Lands) Act; and Water Act.