UNIDAD DE APRENDIZAJE N°3 1TEORIA DE LA UTILIDAD

The main Western Australian Act relating to pollution from ships is the

Pollution of Waters by Oil and Noxious Substances Act 1987 (the Pollution Act), which gives effect to MARPOL. The Pollution Act follows the struc-

ture of the other State Acts mentioned above. Its jurisdictional claim is that it is an offence to discharge certain matters, to be mentioned shortly, into ‘State waters’ which are defined in the Act as the territorial sea adjacent to the State and the sea on its landward side.146 _{The main Act}

giving offshore jurisdiction is the Off-Shore (Application of Law) Act 1982, which gives effect offshore to the Western Australian legislation. It also defines ‘adjacent area in respect of the State’ and ‘coastal waters’, which are given their meaning as in the Commonwealth Coastal Waters (State

Powers) Act 1980.147

The Pollution Act provides for an offence if there be a discharge from a ship into State waters, or a discharge that has the result that it enters State waters,148 _{and in relation to an oil discharge the provisions follow}

those in MARPOL Annex I, as do the defences and the provisions regard- ing the defence of ‘damage’ to a ship or its equipment.149 _{Section 8(3)}

addresses a discharge from ‘any apparatus’, which refers to transfer operations to or from a ship, although the offence provision about a dis- charge during transfer operations is set out in s 9. The Pollution Act has

144 Part 7 – Appeals and reservations of questions of law.

145 Aquaculture Act 2001; Coast Protection Act 1972; Fisheries Act 1982; Harbours and Navigation Act 1993; Historic Shipwrecks Act 1981; National Environment Protection Council (South Australia) Act 1995; National Parks and Wildlife Act 1972; Natural Resources Management Act 2004; Offshore Minerals Act 2000; Petroleum (Submerged Lands) Act 1982; River Murray Act 2003; Sewerage Act 1929; Water Conservation Act 1936; and Waterworks Act 1932.

146 Section 3.

147 Sections 2, 3, 3A. Section 2 also define ‘Shipping matters’. The request and consent

Act to give effect to the Offshore Constitutional Settlement 1979 is the Consti- tutional Powers (Coastal Waters) Act 1979 (WA); discussed in Chapter 6 above. 148 Section 3(5).

149 Section 8. Section 8(3) also addresses a discharge from ‘any apparatus’, which refers to transfer operations to or from a ship.

an express provision against discharging prescribed ‘oil residues’.150

The Act also has the usual provisions about keeping oil record books and reporting discharges.

Part III of the Pollution Act addresses discharge of noxious substances and essentially follows the MARPOL Annex II provisions. Part IV deals with ‘Miscellaneous’ matters, including recovery of expenses for cleaning up discharges, inspectors and their powers. There is no time limit within which a prosecution must be brought and the Act deals with some aspects of evidence. The schedules to the Act set out the various parts of MARPOL as well as certain protocols and MEPC resolutions that underpin the provisions of the Act. The Western Australia Government provisions are sound, but it is unfortunate that it has not yet taken legislative steps to implement Annexes III, IV and V of MARPOL.

The Western Australian Environmental Protection Act 1986 (the EPA) follows a similar model to that of the other States, discussed above. It deals with establishing a new environmental protection authority, a policy, environmental impact assessments, environmental regulation, legal proceedings and appeals. The EPA’s jurisdiction offshore is not to be found in the EPA itself but in the Off-Shore (Application of Laws) Act 1982 (WA).151 _{Its definition of ‘vessel’ follows that set out in the Western}

Australian Marine Act 1982 and its definition of ‘waters’ includes waters

in the sea.152

The EPA defines ‘environmental harm’ as either ‘material’ or ‘serious’ and the offences are listed as Tiers 1, 2 or 3, in order of serious- ness for penalty purposes.153 _{If the EPA is inconsistent with any other}

law, then the EPA prevails.154 _{The EPA continues the existence of the}

former Environment Protection Authority and makes provision for its functions and other aspects, including empowering it to publish policies. A Committee of Inquiry may be appointed to inquire into any such policy155 _{and make recommendations about the policy. There is the usual}

extensive provision for environment impact statements and overview, proposals and decision-making flowing from them. Under the regulatory aspects of the EPA, it is an offence to ‘intentionally or with criminal negli- gence’ cause pollution or allow pollution to be caused, or environmental harm, either serious or material.156 _{Work approvals, licences, protection}

notices, stop orders and prevention notices are all provided for in the regulatory basket of options. Defences to these offences place the onus on 150 Section 10. 151 Section 4. 152 EPA s 3. 153 Section3A and Sch 1. 154 Section5. 155 Section29. 156 Sections49, 50A, 50B.

the defendant and relate to danger to human life, result of an accident (but not negligence) and reasonable precautions being taken and these all require notification being given by the alleged offender.157

Under the Western Australian EPA the provision for appeals is slightly unusual in that appeals from decisions of the Authority go to the minister, not an independent court or tribunal.158 _{Further, the EPA pro-}

vides that an ‘Appeals Convenor’ may require reports to be made, consult with the appellant, report to the minister and appoint an ‘Appeals Committee’ to hear the matter.159 _{Part VIII has the general pro-}

visions, including those related to legal proceedings, and preserves rights at law other than under the EPA, removes the right of self-incrimination, sets no time limit to prosecute for Tier 1 charges but otherwise sets 24 months and it also gives an immunity in tort against breaches of the Act done in good faith in performance of a function. There are a number of schedules, including one about the Appeals Convenor.160

Another Act that should be mentioned is the Western Australian

Marine (Sea Dumping) Act 1981, which gives effect to the London Con- vention.161 _{The key provisions are that dumping of wastes or other}

prescribed matter, or incineration at sea, or loading with the intent to dump at sea, are offences unless there is a suitable permit. These offences occur if the prescribed conduct occurs in ‘coastal waters’162 _{or in ‘port}

waters’163 _{and apply to a vessel, aircraft and offshore platform. The}

defences are those to be found in the London Convention; namely, the saving of life, the vessel, aircraft or platform etc, provided damage is minimised and the incident is reported.164 _{The minister is empowered to}

clean up and to seek the costs back from the offender; the usual powers are given to inspectors and extensive provision is made for seeking permits relating to the substances listed in various categories in the annexes to the convention. Special arrangements may be made about radioactive wastes.165 _{It is noteworthy that the inspectors may arrest and}

the minister or any interested person may seek an injunction from the Supreme Court. 157 Sections74-75. 158 Part. VII. 159 Sections107-110. 160 Schedule 7.

161 The other States are content to leave this aspect of regulation of the marine environment to the Commonwealth legislation.

162 ‘Coastal waters’ are defined as in the Coastal Waters (State Powers) Act 1980 (Cth); see s 2(1).

163 ‘Port waters’ are defined as in the Shipping and Pilotage Act 1967 (WA); see s 2(1). 164 Section10.

There are, of course, other Acts that are relevant but there is no need to more than footnote them for present purposes.166