The Environment Protection (Sea Dumping) Act 1981 (Cth) defines the offence of dumping as the dumping of a controlled substance or materials into Australian waters from any vessel, aircraft or platform, otherwise than in accordance with a permit. Controlled material means wastes or other matter within the meaning of the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972, as amended and in force for Australia from time to time.620 Article 3 of the London Convention/Protocol
introduces the precautionary approach as a general obligation.621 While the 1972
Convention permits dumping to be carried out provided certain conditions are met, according to the hazards to the marine environment presented by the materials themselves, the 1996 Protocol is more restrictive.
In relation to ocean fertilisation, the Sea Dumping Act mirrors the London Convention/Protocol. Therefore, as previously discussed, any changes to the London Convention/Protocol in relation to ocean fertilisation activities, once
619 Personal communication between the author and E L Tanner (ONC researcher), 24 August 2010. 620Environment Protection (Sea Dumping) Act 1981 (Cth).
ratified by Australia, are likely to be reflected in amendments to the relevant Australian legislation.
ENFORCEMENT AND CONTROL
Australia’s Antarctic EEZ
Australia has a number of external territories which also come under the jurisdiction of the EPBC Act. One of those external territories is the Australian Antarctic Territory (AAT). Although Australia claims an EEZ and has also legislated laws such as declaring an Australian Whale Sanctuary622 within the
waters off the AAT, there has been much difficulty in relation to enforcing those laws as the following case demonstrates.
The case of Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2008)623
exposed a number of issues in relation to the enforcement of the EPBC Act in remote Australian waters. The respondent, Kyodo Senpaku Kaisha Ltd, is a company incorporated in Japan and owner of a number of ships which, over a number of years, engaged in the killing of whales in the Australian Whale Sanctuary in Australia’s Antarctic EEZ. The respondent was whaling pursuant to the Japanese Whaling Research Program (JARPA) permits issued under Article VIII of the International Convention for the Regulation of Whaling. In the 2005 case,624 it was submitted on behalf of the Attorney-General that the claim of
Australia to the Antarctic EEZ was not one of sovereignty in the full sense over the waters adjacent to the Antarctic Territory, but of claims reflected in domestic legislation to exercise the rights of exploitation, conservation, management and control, and enforcement thereof, given to coastal States by LOSC.625 Justice
Allsop found that:
The recognition of the limitations, short of full claims to sovereignty, of Australia’s claims to the Antarctic EEZ becomes important in assessing whether
622 EPBC Act s 225.
623Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2008) FCA 3 624Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2005) FCA 664. 625 Ibid (at 12–13).
161 for the purposes of Order 8 Rules 1(a), (b) and (j) the acts of the respondent and
the contraventions of the EPBC Act took place in the Commonwealth.626
Japan is one of a number of countries which does not recognise Australia’s claim to sovereignty over the Antarctic Territory, or Australia’s claims to the Antarctic EEZ and entitlement to pass domestic legislation such as the EPBC Act in relation to these claims. Consequently, Japan considers the Australian Antarctic EEZ to be the high seas of which Australia has no right or control over. Justice Allsop went on to state:
...enforcement of Australian domestic law against foreigners in the Antarctic EEZ, based as it is on Australia’s claim to territorial sovereignty to the relevant part of Antarctica, can be reasonably expected to prompt a significant adverse reaction from other Antarctic Treaty Parties.627
Article IV(1) of the Antarctic Treaty deals with different interests of the States without compromising the position on the status or potential status of sovereignty claims. Article IV(2) deals with the enhancement of existing claims and a prohibition on any new claims throughout the duration of the Treaty.628
The effect of this is that nothing which occurs whilst the Treaty is in force will affect the pre-existing position of the interested parties and the existing boundaries remain in place for the duration of the Treaty.629 Therefore, this
interpretation of Article IV of the Antarctic Treaty suggests that Australia is not restricted from claiming an EEZ adjacent to the Australian Antarctic Territory, as a declaration of an EEZ under LOSC is based on an assertion of sovereign rights of a coastal State and is not an assertion of territorial sovereignty over the area.630
626 Ibid. 627 Ibid.
628 Donald Rothwell, The Polar Regions and the development of international law, Cambridge University Press, 1996,
76.
629 Ibid.
The LOSC631 allows for the enforcement of laws and regulations of the coastal
State in EEZs.632 The coastal State may, in the exercise of its sovereign rights to
explore, exploit, conserve and manage the living resources in the exclusive economic zone, take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with this Convention.633
The Humane Society whale case emphasises the difficulties in enforcing the EPBC Act in Australia’s Antarctic EEZ and other remote locations. Justices Black and Finkelstein examined the EPBC Act in Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2005) FCA 664 at 6–7, and concluded that:
To achieve its object of protecting the environment and promoting the
conservation of Australian biodiversity, the EPBC Act established the Australian Whale Sanctuary (‘the Sanctuary’): s 225. The Sanctuary comprises an area that includes the waters of the exclusive economic zone: s 225(2)(a). Relevantly, that area encompasses the waters within 200 nautical miles seaward of the baseline of the Australian Antarctic Territory. This is the area in which the respondent’s allegedly illegal activities are said to have been taking place. To the extent that the EPBC Act has effect in relation to the outer limits of the exclusive economic zone it applies in relation to ‘(a) all persons (including persons who are not Australian citizens); (b) all aircraft (including aircraft that are not Australian aircraft); and (c) all vessels (including vessels that are not Australian vessels)’: s 5(4).
The Parliament may be taken to know about the remoteness and general conditions pertaining to the Sanctuary which its legislation has established. It may also be taken to have appreciated that the circumstances under which its laws may be enforced in relation to the Sanctuary are quite exceptional. It nevertheless made no provision for the exclusion of the general enforcement provisions of the EPBC Act to matters occurring within the Sanctuary, even where those matters relate to conduct by foreign persons aboard foreign vessels.
631 LOSC.
632 LOSC Article 56. 633 LOSC Article 73.
163 With no provisions for the exclusion of the general enforcement provisions
under the EPBC Act, any ocean fertilisation project within Australia’s EEZ will also come under the jurisdiction of the EPBC Act. If ocean fertilisation were to be carried out in remote areas such as Antarctica, this could cause problems with enforcement and acceptance by other countries of Australia’s right to enforce domestic law in the Antarctic EEZ. At the time of writing, the case of the Japanese whalers operating in the whale sanctuary in Australia’s Antarctic EEZ has not yet been resolved and Australia is now taking Japan to the International Court of Justice.634 The case is about scientific research and there is no mention
of LOSC or the AAT in the Australian documents.