ELASTICIDAD PRECIO DE LA OFERTA

The South Australian suite of legislation is very sound and has been so for quite some time. The main relevant Act is the Protection of Marine

Waters (Prevention of Pollution from Ships) Act 1987 (‘Pollution from Ships Act’), which gives effect to MARPOL, except that sewage (Annex IV) is

not yet covered and nor, of course, air pollution (Annex VI). The juris- diction of the Pollution from Ships Act is over the ‘State waters’, as defined from place to place, but basically gives effect to the Offshore Consti- tutional Settlement 1979 under the Off-Shore Waters (Application of Laws)

Act 1976 (SA).127 _{The net effect is that jurisdiction extends out to three}

nautical miles from the baselines128 _{but it has to be kept in mind that the}

124 ‘State waters’ are defined as in the ‘territorial sea adjacent to the State’, but the Act itself does not limit the power to the three-mile limit. One has to trail through the Coastal and Other Waters (Application of State Laws) Act 1982 which is being replaced by the Offshore Petroleum Act 2006 (Cth); as to which see Section 6.2 in Chapter 6 and the Offshore Waters Jurisdiction Act 1976 until one finally finds the limitation of the three-mile limit in s 3(2) of the Petroleum (Submerged Lands) Act 1982. Of course, this same problem is found in the Commonwealth legislation and while it may be acceptable for skilled lawyers with some knowledge of the constitutional limitations it is not sufficiently clear and simple for others. 125 Section 9(2).

126 Crimes at Sea Act 1999; Living Marine Resources Management Act 1995; Marine and Safety Authority Act 1997; Marine Farming Planning Act 1995; National Environment Protection Council (Tasmania) Act 1995; Petroleum (Submerged Lands) Act 1982; and Water Management Act 1999.

127 See also the Petroleum (Submerged Lands) Act 1982. The ‘request and consent’ Act to give effect to the Offshore Constitutional Settlement 1979 was the Constitutional Powers (Coastal Waters) Act 1979 (SA).

South Australian and Commonwealth governments have entered into an agreement for the extension of the South Australian jurisdiction to the south and east of its offshore waters for fisheries purposes.129 _{The South}

Australian Off-Shore Waters (Application of Laws) Act 1976 also deals with the ‘nexus’ provision, which was established under Pearce v Florenca.130

The Pollution from Ships Act sets out the primary provisions of MARPOL very nicely, whereby it is an offence for a vessel to discharge oil, noxious liquid substances, packaged harmful substances or garbage into State waters, for which both the owner and the master are liable.131

The usual defences are provided for, in a welcome affinity with inter- national comity, but there are some provisions that are worthy of note. One is that the defence of damage arising from ‘damage to the ship or its equipment’ etc is negated as a defence where the damage to the ship or equipment arose from the ‘negligence’ of the master, owner, employee or agent.132 _{A similar provision is made concerning a defence to a discharge}

of noxious liquid substances.133

Part3Adealswiththeusualrequirementsfortherelevantvesselsto beconstructedtomeettheMARPOLrequirementsandforinspectionsto becarriedoutandcertificatesofcomplianceissued.Part4hasnumerous miscellaneousprovisions,someofwhicharequiteimportant.Prescribed incidentsaretobereported,aSouthAustralianMarineSpillContingency ActionPlanmustbedeveloped,theministermaycleanupspillsandreco- verexpensesandcostsfromtheoffenderandoilreceptionfacilitiesareto beprovided.Itisnoteworthythat‘aperson’whosufferslossordamage from an prescribed spill may also recover, under this Act, from the offender. All suchdamages, expenses and costs may be recoveredas a ‘debt’againsttheoffender,which can be donebysummaryproceedings.

The South Australian Government is unusual amongst the States in that it has kept its own legislation to give effect to the London Convention, rather than leave it to the Commonwealth legislation, which SA has done in the Environment Protection (Sea Dumping) Act 1984. The Act, however, has never come into operation. The Act provides for jurisdiction over ‘coastal’ waters, which is defined to mean those waters under the Coastal

Waters (State Powers) Act 1980134 _{(giving effect to the Offshore Constitu-}

129 This was tested and substantially upheld in Port MacDonnell Professional Fisher- men’s Association v South Australia (1989) 168 CLR 340. It is mentioned in its context in Chapter 6.

130 The Act sets it out, in effect, in s 3 under the definition of a ‘person connected with the State’. The ‘nexus’ provision is discussed in Chapter 6. Pearce v Florenca (1976) 135 CLR 507 was the first case, but the High Court upheld and applied it in Union Steamship Co of Australia v King (1988) 166 CLR 1 and they were further applied in the Port MacDonnell Professional Fishermens Case, above.

131 Parts 2, 3, 3AA and 3AB of the Act. 132 Section 8(3)(c).

133 Sections 18(3)(c). 134 Section 3.

tional Settlement 1979). Under the Sea Dumping Act the usual offences are set out for dumping, incinerating or loading prescribed wastes unless a permit is obtained and its provisions followed. The usual defences of securing the safety of human life, or of a vessel, etc are also set out. An offender is liable to pay a penalty and the costs of restoration etc of the environment. A right of appeal lies to the Supreme Court.135 _{As this Act}

is unlikely to be given effect it is best repealed and taken off the books. TheothermainActistheEnvironmentProtectionAct1993(SA),which istheusuallargepieceoflegislationbutitissensiblydraftedforthemost part.Itsmanyprovisionsregulatethehumanactivitiesthatmaytouchon the environment. Its jurisdiction extends to the ‘coastal’ waters of the State which include the air above and the land beneath (seabed and subsoil).136 _{It alsoextends to the ‘marine’ waters, which arethe coastal}

waters plusthe estuarine or tidal waters.137 _{Itshould be noted that the}

definition of ‘vehicle’ includes ‘any vessel or aircraft’. Prima facie the personresponsibleforanypollutionisthe‘occupierorpersonincharge’ oftherelevantplaceorvehicle,butthisdoesnotprecludeotherpersons alsobeingliable.138_{The offencescentrearoundageneral environmental}

duty andany‘environmentharm’beingcaused,whichiscategorisedin descending order of seriousness from ‘material’or‘serious’ harm toan ‘environmental nuisance’.139 _{The EPA does not apply where the Sea}

Dumping Act applies,140 _{but no exceptionis made for the Pollutionfrom}

Ships Act. The EPA is too compendious to describe in any detail, but sufficetosaythatithastheusual,butinthiscasesensible,provisionsfor regulationandenforcementinrelationtotheprotectionandpreservation of the environment, including the marine environment. Notunusually withActssuchasthisinAustralia,thereisprovisionfortheEPAuthority to proceed against arelevant person with an environmental protection order, an interim order, an interim injunction or for theoffence of not complying withanyof them,or for a civil remedy (which remedy can include anaward ofexemplarydamages).141_{The EPArepeals, amongst}

others,theMarineEnvironmentProtectionAct1990.

Appeals from orders made under the EPA lie to the specially created Environment Resources and Development Court,142 _{established under its}

own Act of that name.143 _{This court is comprised of judges from the}

135 Section 27.

136 Section 3. The definition gives effect to ‘coastal’ waters under the Coastal Waters (State Powers) Act 1980, mentioned above. See also s 9.

137 Section 3. 138 Section 4.

139 Sections 5, 25, 79-84. 140 Section 7(2).

141 Part 11 – Civil Remedies. 142 EPA Part 13 – Appeals to Court.

District Court, the Magistrates Court or Commissioners. Only judges may rule on law but two Commissioners may sit without a judge and, in this case, an umpire judge may be appointed in event of disagreement. Suitable cases may be referred to the Supreme Court and appeals lie to that court, being heard by a singe judge or the Full Court as appropriate and as provided in the Act.144

There are, of course, other Acts that touch on the marine envi- ronment and pollution from ships but they are footnoted and space precludes dealing with them.145