Environment and Heritage Legislation Amendment Act 2000
No. 107, 2000
An Act to amend legislation relating to the environment, and for related purposes
Environment and Heritage Legislation Amendment Act 2000
No. 107, 2000
An Act to amend legislation relating to the environment, and for related purposes
Contents
1 Short title...................................
2 Commencement...............................
3 Schedule(s)..................................
4 Transitional—continuation of existing permits.............
5 Regulations..................................
Schedule 1—Amendments
Environment Protection (Sea Dumping) Act 1981
Sea Installations Act 1987
Environment and Heritage Legislation Amendment Act 2000
No. 107, 2000
An Act to amend legislation relating to the environment, and for related purposes
[Assented to 19 July 2000]
The Parliament of Australia enacts:
This Act may be cited as the Environment and Heritage Legislation Amendment Act 2000.
This Act commences on the 28th day after the day on which it receives the Royal Assent.
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
4 Transitional—continuation of existing permits
A permit in force immediately before the commencement of this Act under section 19 of the Environment Protection (Sea Dumping) Act 1981 continues in effect as if it had been issued under that Act, as amended by this Act.
(1) The Governor‑General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) In particular, regulations may be made for matters of a transitional or saving nature arising from the amendments made by this Act.
Environment Protection (Sea Dumping) Act 1981
Repeal the title, substitute:
An Act providing for the protection of the environment by regulating dumping into the sea, incineration at sea and artificial reef placements, and for related purposes
Insert:
Antarctic Treaty means the Treaty concerning Antarctica, to which Australia is a party, done at Washington on 1 December 1959.
Note: The text of the Treaty is set out in the Australian Treaty Series 1961 No. 12.
3 Subsection 4(1)
Insert:
artificial reef means a structure or formation placed on the seabed:
(a) for the purpose of increasing or concentrating populations of marine plants and animals; or
(b) for the purpose of being used in human recreational activities;
and includes anything prescribed by the regulations to be an artificial reef for the purposes of this definition, but does not include anything prescribed by the regulations not to be an artificial reef for the purposes of this definition.
Insert:
artificial reef permit means a permit under section 19 for the placement of an artificial reef.
Insert:
artificial reef placement means the placement of any controlled material into the sea for the purpose of creating an artificial reef, being a placement that is not contrary to the aims of the Protocol.
6 Subsection 4(1) (definition of Australian fishing zone)
Repeal the definition.
7 Subsection 4(1) (definition of Australian platform)
Repeal the definition.
8 Subsection 4(1) (paragraphs (c) and (d) of the definition of Australian waters)
Repeal the paragraphs, substitute:
(c) the exclusive economic zone, within the meaning of the Seas and Submerged Lands Act 1973, adjacent to the coast of Australia or the coast of an external Territory; or
(d) any other area of sea that is above the continental shelf of Australia or above the continental shelf of an external Territory.
Note: Section 4A can affect the scope of the definition of Australian waters.
Insert:
controlled material means:
(a) wastes or other matter (within the meaning of the Protocol); and
(b) a vessel, aircraft or platform.
10 Subsection 4(1) (definition of Convention)
Repeal the definition.
11 Subsection 4(1) (paragraph (b) of the definition of inspector)
After “police force”, insert “, or an officer of the Australian Customs Service,”.
Insert:
offending craft, in relation to an offence against section 10F, means:
(a) if the primary offence referred to in section 10F is an offence against section 10A—any vessel, aircraft or platform from which, or on which, the controlled material was dumped; or
(b) if the primary offence referred to in section 10F is an offence against section 10B—the vessel or platform on which the controlled material was incinerated; or
(c) if the primary offence referred to in section 10F is an offence against section 10C—the vessel, aircraft or platform on which the controlled material was loaded; or
(d) if the primary offence referred to in section 10F is an offence against section 10D—any vessel, aircraft or platform used to export the controlled material; or
(e) if the primary offence referred to in section 10F is an offence against section 10E—any vessel, aircraft or platform from which the artificial reef placement occurred.
Insert:
offending material means:
(a) in relation to an offence against section 10A—the controlled material that was dumped; or
(b) in relation to an offence against section 10B—the controlled material that was incinerated; or
(c) in relation to an offence against section 10C—the controlled material that was loaded; or
(d) in relation to an offence against section 10D—the controlled material that was exported; or
(e) in relation to an offence against section 10E—the controlled material that was placed for the purpose of creating an artificial reef; or
(f) in relation to an offence against section 10F—the offending material in relation to the primary offence referred to in section 10F.
Insert:
Protocol means the Protocol whose English text is set out in Schedule 1.
Insert:
seriously harmful material means:
(a) radioactive material; or
(b) any other material that is prescribed by the regulations for the purposes of this paragraph.
Note: Subsection 41(3) places limitations on the making of regulations for the purposes of paragraph (b) of this definition.
16 Subsection 4(1) (definition of SPREP Protocol)
Repeal the definition.
Insert:
Torres Strait Treaty means the Treaty between Australia and the Independent State of Papua New Guinea concerning Sovereignty and Maritime Boundaries in the area between the two Countries, including the area known as Torres Strait, and Related Matters done at Sydney on 18 December 1978.
Note: The text of the Treaty is set out in Australian Treaty Series 1985 No. 4.
Omit “Convention” (wherever occurring), substitute “Protocol”.
Repeal the subsection.
Omit “matter or thing” (wherever occurring), substitute “controlled material”.
Insert:
4A Application of Act in relation to certain waters that are subject to the Torres Strait Treaty
(1) For the purposes of this Act, Australian waters does not include the top hat area unless a notice is in force under subsection (2).
(2) The Minister may, by notice in the Gazette, declare that Papua New Guinea has notified Australia that Papua New Guinea agrees to Australia’s exercise of jurisdiction under this Act in relation to the top hat area.
Note: The notice can be revoked under subsection 33(3) of the Acts Interpretation Act 1901.
(3) In this section:
top hat area means the area described in Article 4.3 of the Torres Strait Treaty.
4B Application of Act in relation to certain waters that are subject to the Australia‑Indonesia Delimitation Treaty
(1) This section commences to have effect when the Australia‑Indonesia Delimitation Treaty enters into force for Australia.
(2) The Minister must not issue a permit in relation to the overlap area unless:
(a) the Minister has first consulted the Government of the Republic of Indonesia about issuing the permit; or
(b) a notice is in force under subsection (3) and the issue of the permit is within the scope of the agreement to which the notice relates.
(3) The Minister may, by notice in the Gazette, declare that the Government of the Republic of Indonesia has notified Australia that the Government of the Republic of Indonesia agrees to the issue of permits under this Act in relation to the overlap area, either generally or in particular circumstances.
Note: The notice can be revoked under subsection 33(3) of the Acts Interpretation Act 1901.
(4) An inspector must not exercise powers under this Act in the overlap area in relation to:
(a) a vessel other than an Australian vessel; or
(b) an aircraft other than an Australian aircraft; or
(c) a platform, other than a platform that is subject to Australia’s jurisdiction under paragraph 7(b) or (h) of the Australia‑Indonesia Delimitation Treaty;
unless:
(d) the Minister has first consulted the Government of the Republic of Indonesia about the exercise of powers by inspectors in the overlap area in relation to that vessel, aircraft or platform; or
(e) a notice is in force under subsection (5) and the exercise of the powers is within the scope of the agreement to which the notice relates.
(5) The Minister may, by notice in the Gazette, declare that the Government of the Republic of Indonesia has notified Australia that the Government of the Republic of Indonesia agrees to the exercise by inspectors of powers under this Act in the overlap area, either generally or in particular circumstances.
Note: The notice can be revoked under subsection 33(3) of the Acts Interpretation Act 1901.
(6) The validity of the exercise of a power is not affected by a failure to comply with subsection (4).
(7) In this section:
Australia‑Indonesia Delimitation Treaty means the Treaty between the Government of Australia and the Government of the Republic of Indonesia establishing an Exclusive Economic Zone Boundary and Certain Seabed Boundaries done at Perth on 14 March 1997.
overlap area means the overlapping area described in Article 7 of the Australia‑Indonesia Delimitation Treaty.
Omit “of wastes or other matter”, substitute “or storage of controlled material (other than a vessel, aircraft or platform)”.
Repeal the section, substitute:
7 Exemption for defence force vessels etc.
(1) This Act does not apply in relation to a vessel or aircraft belonging to the Australian Defence Force, when it is being used:
(a) in a situation of armed conflict; or
(b) in an emergency situation other than a situation of armed conflict.
(2) This Act does not apply in relation to a vessel or aircraft belonging to the naval, military or air forces of a foreign country.
Insert:
Chapter 2 of the Criminal Code applies to all offences against this Act.
Repeal the section, substitute:
9 Declaration by Minister in relation to coastal waters of State etc.
(1) If the Minister is satisfied that the law of a State makes provision for giving effect to the Protocol in relation to the coastal waters of that State, the Minister may, by notice published in the Gazette, make a declaration that limits the operation of this Act in relation to that State and the coastal waters of that State. A declaration may be made in relation to a State whether or not the Protocol extends to the whole of the coastal waters of that State.
Note: Subsection 33(3) of the Acts Interpretation Act 1901 allows the declaration to be revoked or amended.
(2) However, this Act continues to apply in relation to the State and its coastal waters in relation to the following activities where they involve seriously harmful material:
(a) dumping or incineration at sea;
(b) loading for dumping or incineration at sea;
(c) export for dumping or incineration at sea;
(d) artificial reef placements.
(3) A notice under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(4) In this section:
State includes the Northern Territory.
Repeal the sections, substitute:
10A Dumping of controlled material
(1) A person is guilty of an offence against this section if, otherwise than in accordance with a permit, the person:
(a) dumps controlled material into Australian waters from any vessel, aircraft or platform; or
(b) dumps controlled material into any part of the sea from any Australian vessel or Australian aircraft; or
(c) dumps a vessel, aircraft or platform into Australian waters; or
(d) dumps an Australian vessel or Australian aircraft into any part of the sea.
(2) An offence against this section is punishable, on conviction, as follows:
(a) if it is proved that any of the offending material is seriously harmful material—imprisonment for up to 10 years or a fine up to 2,000 penalty units, or both;
(b) if it is proved that any of the offending material is not within Annex 1 to the Protocol—imprisonment for up to 2 years or a fine up to 500 penalty units, or both;
(c) in any other case—imprisonment for up to 1 year or a fine up to 250 penalty units, or both.
10B Incineration of controlled material
(1) A person is guilty of an offence against this section if, otherwise than in accordance with a permit, the person incinerates controlled material at sea:
(a) on a vessel or platform in Australian waters; or
(b) on an Australian vessel in any part of the sea.
(2) An offence against this section is punishable, on conviction, as follows:
(a) if it is proved that any of the offending material is seriously harmful material—imprisonment for up to 10 years or a fine up to 2,000 penalty units, or both;
(b) if it is proved that any of the offending material is not within Annex 1 to the Protocol—imprisonment for up to 2 years or a fine up to 500 penalty units, or both;
(c) in any other case—imprisonment for up to 1 year or a fine up to 250 penalty units, or both.
10C Loading for the purpose of dumping or incineration
(1) A person is guilty of an offence against this section if, otherwise than in accordance with a permit, the person:
(a) loads controlled material on a vessel, aircraft or platform in Australia or Australian waters:
(i) knowing that it will be dumped into the sea or incinerated at sea; or
(ii) reckless as to whether it will be dumped into the sea or incinerated at sea; or
(b) loads controlled material on any Australian vessel or Australian aircraft:
(i) knowing that it will be dumped into the sea or incinerated at sea; or
(ii) reckless as to whether it will be dumped into the sea or incinerated at sea.
(2) An offence against this section is punishable, on conviction, as follows:
(a) if it is proved that any of the offending material is seriously harmful material—imprisonment for up to 10 years or a fine up to 2,000 penalty units, or both;
(b) if it is proved that any of the offending material is not within Annex 1 to the Protocol—imprisonment for up to 2 years or a fine up to 500 penalty units, or both;
(c) in any other case—imprisonment for up to 1 year or a fine up to 250 penalty units, or both.
10D Export for the purpose of dumping or incineration
(1) A person is guilty of an offence against this section if the person exports controlled material from Australia to another country:
(a) knowing that it will be dumped into the sea or incinerated at sea; or
(b) reckless as to whether it will be dumped into the sea or incinerated at sea.
(2) An offence against this section is punishable, on conviction, as follows:
(a) if it is proved that any of the offending material is seriously harmful material—imprisonment for up to 10 years or a fine up to 2,000 penalty units, or both;
(b) if it is proved that any of the offending material is not within Annex 1 to the Protocol—imprisonment for up to 2 years or a fine up to 500 penalty units, or both;
(c) in any other case—imprisonment for up to 1 year or a fine up to 250 penalty units, or both.
10E Placement of artificial reef
(1) A person is guilty of an offence against this section if, otherwise than in accordance with a permit, the person carries out an artificial reef placement.
(2) An offence against this section is punishable, on conviction, as follows:
(a) if it is proved that any of the offending material is seriously harmful material—imprisonment for up to 10 years or a fine up to 2,000 penalty units, or both;
(b) if it is proved that any of the offending material is not within Annex 1 to the Protocol—imprisonment for up to 2 years or a fine up to 500 penalty units, or both;
(c) in any other case—imprisonment for up to 1 year or a fine up to 250 penalty units, or both.
10F Offence by person responsible for offending craft or material
(1) If an offence is committed against section 10A, 10B, 10C, 10D or 10E (the primary offence), then each person who is a responsible person in relation to the offending craft or offending material is guilty of an offence against this section if the person:
(a) knew that the offending craft or offending material would be used in committing the primary offence, or was reckless as to whether it would be used in committing the primary offence; and
(b) did not take reasonable steps to prevent the use of the offending craft or offending material in committing the primary offence.
(2) Subsection (1) applies whether or not any person has been charged with, or convicted of, the primary offence.
(3) An offence against this section is punishable, on conviction, as follows:
(a) if it is proved that any of the offending material is seriously harmful material—imprisonment for up to 10 years or a fine up to 2,000 penalty units, or both;
(b) if it is proved that any of the offending material is not within Annex 1 to the Protocol—imprisonment for up to 2 years or a fine up to 500 penalty units, or both;
(c) in any other case—imprisonment for up to 1 year or a fine up to 250 penalty units, or both.
(4) For the purposes of this section:
(a) each of the following persons is a responsible person in relation to an offending craft:
(i) the owner of the offending craft;
(ii) the person in charge of the offending craft; and
(b) the owner of offending material is a responsible person in relation to the offending material.
Repeal the section, substitute:
15 Exceptions to certain offences
(1) Sections 10A and 10B do not apply in relation to:
(a) dumping into waters that are not Australian waters; or
(b) incineration at sea in waters that are not Australian waters;
if the dumping or incineration is in accordance with a permit granted in accordance with the Protocol by a party to the Protocol (other than Australia).
(2) Section 10C does not apply in relation to loading for the purpose of:
(a) dumping into waters that are not Australian waters; or
(b) incineration at sea in waters that are not Australian waters;
if the loading is in accordance with a permit granted in accordance with the Protocol by a party to the Protocol (other than Australia).
(3) Section 10A, 10B, 10C, 10E or 36 does not apply if:
(a) the relevant conduct was necessary to secure the safety of human life or of a vessel, aircraft or platform in a case of force majeure caused by stress of weather; or
(b) the relevant conduct appeared to be the only way of averting a threat to human life, or to the safety of a vessel, aircraft or platform, and there was every probability that the damage caused by the conduct would be less than would otherwise occur;
and, in either case:
(c) the relevant conduct was so carried out as to minimise the likelihood of damage to human or marine life; and
(d) a report of the relevant conduct, setting out the prescribed information, was given to the Minister as soon as practicable after the conduct occurred.
(4) In a proceedings for an offence, the defendant bears the evidential burden of proving an exception set out in this section.
Repeal the section, substitute:
(1) If the Minister considers that a regulated occurrence is likely to:
(a) cause an obstruction, or constitute a danger, to vessels; or
(b) result in harm to human or marine life; or
(c) result in an interference with the exercise of the sovereign rights of Australia as a coastal State:
(i) to explore the seabed and subsoil beneath Australian waters; and
(ii) to exploit the natural resources of the seabed and subsoil beneath Australian waters;
then the Minister may cause to be taken such steps as the Minister considers proper to repair or remedy any condition, or to mitigate any damage, arising from the occurrence.
(2) In this section:
regulated occurrence means any of the following:
(a) the dumping of controlled material into Australian waters;
(b) the incineration at sea in Australian waters of controlled material;
(c) an artificial reef placement in Australian waters;
(d) a contravention of a condition of a permit.
29 Paragraphs 17(1)(a) and (b)
Repeal the paragraphs, substitute:
(a) a person has been convicted of an offence against section 10A, 10B, 10E, 10F or 36; and
(b) because the Minister has exercised his or her powers under section 16, the Commonwealth has incurred expenses or other liabilities in repairing or remedying any condition, or mitigating any damage, arising from:
(i) if the offence is an offence against section 10A, 10B, 10E or 36—the conduct that constituted the offence; or
(ii) if the offence is an offence against section 10F—the conduct that constituted the primary offence referred to in that section;
Omit “the same act of dumping”, substitute “the same occurrence”.
Omit “that dumping”, substitute “that occurrence”.
Omit “Australian platform”, substitute “platform”.
Repeal the paragraph, substitute:
(a) has been convicted of:
(i) an offence against section 10A or 36 with respect to dumping from the vessel, aircraft or platform; or
(ii) an offence against section 10B or 36 with respect to incineration at sea on the vessel or platform; or
(iii) an offence against section 10E or 36 with respect to an artificial reef placement from the vessel, aircraft or platform; or
(iv) an offence against section 10F with respect to the vessel, aircraft or platform; and
Note: The heading to section 17 is altered by omitting “resulting from dumping”.
Repeal the subsection, substitute:
(5) If a person:
(a) takes to sea any vessel that been detained under subsection (3), before it is released from detention, knowing that it is still under detention or being reckless as to whether it is still under detention; or
(b) removes from Australia or an external Territory any aircraft that has been detained under subsection (3), before it is released from detention, knowing that it is still under detention or being reckless as to whether it is still under detention;
the person is guilty of an offence punishable, on conviction, by imprisonment for up to 2 years or a fine up to 120 penalty units, or both.
(6) If an offence (the primary offence) is committed against subsection (5) in respect of taking a vessel to sea or removing an aircraft from Australia or an external Territory, then each person who is a responsible person in relation to the vessel or aircraft is guilty of an offence against this subsection if the person:
(a) knew that the vessel or aircraft would be used in committing the primary offence, or was reckless as to whether it would be used in committing the primary offence; and
(b) did not take reasonable steps to prevent the use of the vessel or aircraft in committing the primary offence.
(7) Subsection (6) applies whether or not any person has been charged with, or convicted of, the primary offence.
(8) An offence against subsection (6) is punishable, on conviction, by imprisonment for up to 2 years or a fine up to 120 penalty units, or both.
(9) For the purposes of subsection (6), each of the following persons is a responsible person in relation to a vessel or aircraft:
(a) the owner of the vessel or aircraft;
(b) the person in charge of the vessel or aircraft.
After “dumping” (wherever occurring), insert “or artificial reef placement”.
36 Subsections 19(5), (5A), (6), (6A), (7) and (8)
Repeal the subsections, substitute:
(5) Subject to subsection (7), a permit for dumping or loading for dumping:
(a) may only be granted for controlled material that is within Annex 1 to the Protocol; and
(b) may only be granted in accordance with Annex 2 to the Protocol.
(6) Subject to subsection (7), a permit cannot be granted for incineration at sea or loading for incineration at sea.
(7) The Minister may grant a permit for dumping, incineration at sea or loading for dumping or incineration at sea, of any controlled material if, in the Minister’s opinion, there is an emergency that:
(a) poses an unacceptable risk to human health, safety, or the marine environment; and
(b) admits of no other feasible solution.
(8) A permit cannot be granted for an artificial reef placement of seriously harmful material.
(8A) In considering the granting of a permit, the Minister must have regard to the following (so far as they are relevant):
(a) the Protocol;
(b) the Torres Strait Treaty;
(c) the Antarctic Treaty;
(d) any other treaty or convention to which Australia is a party and that relates to dumping at sea or to Antarctica or Antarctic resources.
After “permit for dumping”, insert “or artificial reef placement”.
Before “a provision”, insert “in the case of a permit for dumping or artificial reef placement—”.
After “dumping operation”, insert “or artificial reef placement”.
Before “a provision”, insert “in the case of a permit for dumping—”.
41 Subsections 19(10) and (11)
Repeal the subsections.
Repeal the subsection, substitute:
(1) The holder of a permit may apply to the Minister for:
(a) variation of the permit; or
(b) revocation, suspension or variation of a condition of the permit.
After “revoke”, insert “or suspend”.
After “vary”, insert “the permit or”.
Repeal the paragraph, substitute:
(b) a decision by the Minister under subsection 19(7) granting, or refusing to grant, a permit.
After “particulars of”, insert “the following”.
Repeal the paragraph, substitute:
(d) any revocation, variation, suspension, or cancellation of the suspension, of a permit;
Add:
(f) the reasons for a decision by the Minister under subsection 19(7) granting, or refusing to grant, a permit.
Repeal the section, substitute:
The following persons are inspectors, by force of this section:
(a) members of the Australian Federal Police or of the police force of a Territory;
(b) officers of the Australian Customs Service.
After “police force”, insert “or an officer of the Australian Customs Service”.
Repeal the subsection, substitute:
(1) This section applies to the following:
(a) any Australian vessel or Australian aircraft;
(b) any vessel, aircraft or platform that is in Australia or an external Territory;
(c) any vessel or platform that is in Australian waters;
(d) any aircraft that is capable of landing on water and is in Australian waters.
Omit “matter or thing”, substitute “controlled material”.
Insert:
(aa) any controlled material that is to be placed as part of an artificial reef placement; or
Omit “member of a police force who is in uniform”, substitute “member of a police force, or officer of the Australian Customs Service, who is in uniform”.
Insert:
(aa) in the case of an officer of the Australian Customs Service—produce, for inspection by the person in charge of that vessel, aircraft or platform, written evidence of the fact that the officer is an officer of the Australian Customs Service; or
Omit “member of a police force who is in uniform”, substitute “member of a police force, or officer of the Australian Customs Service, who is in uniform”.
Insert:
(aa) in the case of an officer of the Australian Customs Service—produce, for inspection by that person, written evidence of the fact that the officer is an officer of the Australian Customs Service; or
Omit “matter or thing”, substitute “controlled material”.
Insert:
(aa) any controlled material that is to be placed as part of an artificial reef placement; or
Omit “Justice of the Peace”, substitute “magistrate”.
Omit “Justice of the Peace” (wherever occurring), substitute “magistrate”.
Omit “matter or thing”, substitute “controlled material”.
63 After subparagraph 30(3)(a)(i)
Insert:
(ia) any controlled material that is to be placed as part of an artificial reef placement; or
Insert:
30A Warrants may be granted by telephone or other electronic means
(1) An application to a magistrate for a warrant under section 30 may be made by telephone, facsimile or other electronic means:
(a) in an urgent case; or
(b) if the delay that would occur if an application were made in person would frustrate the effective execution of the warrant.
(2) The magistrate may require voice communication to the extent that it is practicable in the circumstances.
(3) An application under this section must include all information required to be provided in an ordinary application for a warrant under section 30, but the application may, if necessary, be made before the information is sworn or affirmed.
(4) If the magistrate is satisfied:
(a) after having considered the information mentioned in subsection (3); and
(b) after having received any further information that the magistrate requires about the grounds on which the issue of the warrant is being sought;
that there are reasonable grounds for issuing the warrant, the magistrate may complete and sign the same form of warrant as would be issued under section 30.
(5) If the magistrate signs a warrant under subsection (4):
(a) the magistrate must notify the inspector, by telephone, facsimile or other electronic means, of the terms of the warrant and the date on which and the time at which it was signed, and write on it the reasons for granting it; and
(b) the inspector must complete a form of warrant in the terms notified to the inspector by the magistrate and write on it the name of the magistrate and the date on which and the time at which it was signed.
(6) If the inspector completes a form of warrant under subsection (5), the inspector must, not later than the day after the day on which the warrant ceased to be in force or was executed, whichever is the earlier, give or send to the magistrate the form of warrant completed by the inspector and, if the information mentioned in subsection (3) was not sworn or affirmed, that information duly sworn or affirmed.
(7) The magistrate must attach to the documents provided under subsection (6) the warrant signed by the magistrate.
(8) A form of warrant that has been duly completed by the inspector under subsection (5), and is in accordance with the terms of the warrant signed by the magistrate, has the same authority as the warrant signed by the magistrate.
(9) If:
(a) it is material, in any proceedings, for a court to be satisfied that an exercise of power was authorised under this section; and
(b) the warrant signed by the magistrate under this section authorising the exercise of power is not produced in evidence;
the court must assume, unless the contrary is proved, that the exercise of power was not authorised by such a warrant.
65 Paragraphs 31(1)(b), (c) and (d)
Repeal the paragraph, substitute:
(b) to search for, inspect, takes extracts from and make copies of any document that relates to:
(i) the loading, dumping or incineration at sea of any controlled material; or
(ii) the export of any controlled material that is to be dumped into the sea or incinerated at sea; or
(iii) any controlled material that is to be placed as part of an artificial reef placement;
(c) to inspect, and take samples of:
(i) any controlled material; or
(ii) any controlled material that is to be placed as part of an artificial reef placement;
(d) to observe:
(i) the loading on a vessel, aircraft or platform of any controlled material that is to be dumped into the sea or incinerated at sea; or
(ii) the dumping into the sea, or the incineration at sea, of any controlled material; or
(iii) an artificial reef placement.
Omit “member of a police force who is in uniform”, substitute “member of a police force, or officer of the Australian Customs Service, who is in uniform”.
Insert:
(aa) in the case of an officer of the Australian Customs Service—produce, for inspection by that person, written evidence of the fact that the officer is an officer of the Australian Customs Service; or
Omit “Justice of the Peace”, substitute “magistrate”.
Omit “section 9A, 9B, 9C, 10, 11, 12 or 14”, substitute “section 10A, 10B, 10C, 10D or 10E”.
Omit “a fine not exceeding 10 penalty units”, substitute “imprisonment for up to 1 year or a fine up to 60 penalty units, or both”.
Repeal the section, substitute:
36 Compliance with conditions of permit
(1) The holder of a permit is guilty of an offence against this section if:
(a) the holder does an act that constitutes a contravention of a condition imposed in respect of the permit; and
(b) at the time of that act, the holder knows of the existence of that condition, or is reckless as to the existence of that condition.
(2) An offence against this section is punishable, on conviction, by imprisonment for up to 1 year or a fine up to 250 penalty units, or both.
(3) In this section:
act includes omission.
Repeal the section, substitute:
(1) An offence against section 10A, 10B, 10C, 10D, 10E or 10F or subsection 17(5), 35(1), 35(2) or 36(1) is an indictable offence.
(2) Even though an offence referred to in subsection (1) is an indictable offence, a court of summary jurisdiction may hear and determine proceedings for such an offence if:
(a) the court is satisfied that it is proper to do so; and
(b) the defendant and the prosecutor consent.
(3) The penalty that a court of summary jurisdiction may impose for an offence against section 10A, 10B, 10C, 10D, 10E or 10F is as follows:
(a) if it is proved that any of the offending material is seriously harmful material—imprisonment for up to 2 years or a fine up to 240 penalty units, or both;
(b) if it is proved that any of the offending material is not within Annex 1 to the Protocol—imprisonment for up to 1 year or a fine up to 120 penalty units, or both;
(c) in any other case—imprisonment for up to 6 months or a fine up to 60 penalty units, or both.
(4) The penalty that a court of summary jurisdiction may impose for an offence against subsection 17(5) or 35(1) is imprisonment for up to 1 year or a fine up to 60 penalty units, or both.
(5) The penalty that a court of summary jurisdiction may impose for an offence against subsection 35(2) is imprisonment for up to 6 months or a fine up to 30 penalty units, or both.
(6) The penalty that a court of summary jurisdiction may impose for an offence against subsection 36(1) is imprisonment for up to 6 months or a fine up to 60 penalty units, or both.
After “may give a certificate”, insert “stating any of the following”.
Insert:
(ba) that a specified permit was revoked, suspended or varied on a specified day;
(bb) that the suspension of a specified permit was cancelled on a specified day;
Omit “or”.
Insert:
(g) that Australian waters did, or did not, at a particular time include the top hat area referred to in section 4A;
Add:
(3) Before the Governor‑General makes a regulation prescribing material for the purposes of paragraph (b) of the definition of seriously harmful material in subsection 4(1), the Minister must be satisfied that the material is capable of causing serious harm to the marine environment.
(4) The Minister may be satisfied that material is capable of causing serious harm to the marine environment even though there is no conclusive evidence to prove a causal relationship between the input of the material into the marine environment and serious harm to the marine environment.
(5) For the purposes of subsection (3), the Minister must have regard to the principle that material should be prescribed as seriously harmful material if there is reason to believe that the material is likely to cause serious harm to the marine environment even though there is no conclusive evidence to prove a causal relationship between the input of the material into the marine environment and serious harm to the marine environment.
79 Schedules 1 to 4
Repeal the Schedules, substitute:
Schedule 1—1996 Protocol to the Convention
Note: See section 4.
1996 PROTOCOL TO THE CONVENTION ON THE PREVENTION OF MARINE POLLUTION BY DUMPING OF WASTES AND OTHER MATTER, 1972
THE CONTRACTING PARTIES TO THIS PROTOCOL,
STRESSING the need to protect the marine environment and to promote the sustainable use and conservation of marine resources,
NOTING in this regard the achievements within the framework of the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 and especially the evolution towards approaches based on precaution and prevention,
NOTING FURTHER the contribution in this regard by complementary regional and national instruments which aim to protect the marine environment and which take account of specific circumstances and needs of those regions and States,
REAFFIRMING the value of a global approach to these matters and in particular the importance of continuing co‑operation and collaboration between Contracting Parties in implementing the Convention and the Protocol,
RECOGNIZING that it may be desirable to adopt, on a national or regional level, more stringent measures with respect to prevention and elimination of pollution of the marine environment from dumping at sea than are provided for in international conventions or other types of agreements with a global scope,
TAKING INTO ACCOUNT relevant international agreements and actions, especially the United Nations Convention on the Law of the Sea, 1982, the Rio Declaration on Environment and Development and Agenda 21,
RECOGNIZING ALSO the interests and capacities of developing States and in particular small island developing States,
BEING CONVINCED that further international action to prevent, reduce and where practicable eliminate pollution of the sea caused by dumping can and must be taken without delay to protect and preserve the marine environment and to manage human activities in such a manner that the marine ecosystem will continue to sustain the legitimate uses of the sea and will continue to meet the needs of present and future generations,
HAVE AGREED as follows:
ARTICLE 1
DEFINITIONS
For the purposes of this Protocol:
1 “Convention” means the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972, as amended.
2 “Organization” means the International Maritime Organization.
3 “Secretary‑General” means the Secretary‑General of the Organization.
4 .1 “Dumping” means:
.1 any deliberate disposal into the sea of wastes or other matter from vessels, aircraft, platforms or other man‑made structures at sea;
.2 any deliberate disposal into the sea of vessels, aircraft, platforms or other man‑made structures at sea;
.3 any storage of wastes or other matter in the seabed and the subsoil thereof from vessels, aircraft, platforms or other man‑made structures at sea; and
.4 any abandonment or toppling at site of platforms or other man‑made structures at sea, for the sole purpose of deliberate disposal.
.2 “Dumping” does not include:
.1 the disposal into the sea of wastes or other matter incidental to, or derived from the normal operations of vessels, aircraft, platforms or other man‑made structures at sea and their equipment, other than wastes or other matter transported by or to vessels, aircraft, platforms or other man‑made structures at sea, operating for the purpose of disposal of such matter or derived from the treatment of such wastes or other matter on such vessels, aircraft, platforms or other man‑made structures;
.2 placement of matter for a purpose other than the mere disposal thereof, provided that such placement is not contrary to the aims of this Protocol; and
.3 notwithstanding paragraph 4.1.4, abandonment in the sea of matter (e.g., cables, pipelines and marine research devices) placed for a purpose other than the mere disposal thereof.
.3 The disposal or storage of wastes or other matter directly arising from, or related to the exploration, exploitation and associated off‑shore processing of seabed mineral resources is not covered by the provisions of this Protocol.
5 .1 “Incineration at sea” means the combustion on board a vessel, platform or other man‑made structure at sea of wastes or other matter for the purpose of their deliberate disposal by thermal destruction.
.2 “Incineration at sea” does not include the incineration of wastes or other matter on board a vessel, platform, or other man‑made structure at sea if such wastes or other matter were generated during the normal operation of that vessel, platform or other man‑made structure at sea.
6 “Vessels and aircraft” means waterborne or airborne craft of any type whatsoever. This expression includes air‑cushioned craft and floating craft, whether self‑propelled or not.
7 “Sea” means all marine waters other than the internal waters of States, as well as the seabed and the subsoil thereof; it does not include sub‑seabed repositories accessed only from land.
8 “Wastes or other matter” means material and substance of any kind, form or description.
9 “Permit” means permission granted in advance and in accordance with relevant measures adopted pursuant to article 4.1.2 or 8.2.
10 “Pollution” means the introduction, directly or indirectly, by human activity, of wastes or other matter into the sea which results or is likely to result in such deleterious effects as harm to living resources and marine ecosystems, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities.
ARTICLE 2
OBJECTIVES
Contracting Parties shall individually and collectively protect and preserve the marine environment from all sources of pollution and take effective measures, according to their scientific, technical and economic capabilities, to prevent, reduce and where practicable eliminate pollution caused by dumping or incineration at sea of wastes or other matter. Where appropriate, they shall harmonize their policies in this regard.
ARTICLE 3
GENERAL OBLIGATIONS
1 In implementing this Protocol, Contracting Parties shall apply a precautionary approach to environmental protection from dumping of wastes or other matter whereby appropriate preventative measures are taken when there is reason to believe that wastes or other matter introduced into the marine environment are likely to cause harm even when there is no conclusive evidence to prove a causal relation between inputs and their effects.
2 Taking into account the approach that the polluter should, in principle, bear the cost of pollution, each Contracting Party shall endeavour to promote practices whereby those it has authorized to engage in dumping or incineration at sea bear the cost of meeting the pollution prevention and control requirements for the authorized activities, having due regard to the public interest.
3 In implementing the provisions of this Protocol, Contracting Parties shall act so as not to transfer, directly or indirectly, damage or likelihood of damage from one part of the environment to another or transform one type of pollution into another.
4 No provision of this Protocol shall be interpreted as preventing Contracting Parties from taking, individually or jointly, more stringent measures in accordance with international law with respect to the prevention, reduction and where practicable elimination of pollution.
ARTICLE 4
DUMPING OF WASTES OR OTHER MATTER
1 .1 Contracting Parties shall prohibit the dumping of any wastes or other matter with the exception of those listed in Annex 1.
.2 The dumping of wastes or other matter listed in Annex 1 shall require a permit. Contracting Parties shall adopt administrative or legislative measures to ensure that issuance of permits and permit conditions comply with provisions of Annex 2. Particular attention shall be paid to opportunities to avoid dumping in favour of environmentally preferable alternatives.
2 No provision of this Protocol shall be interpreted as preventing a Contracting Party from prohibiting, insofar as that Contracting Party is concerned, the dumping of wastes or other matter mentioned in Annex 1. That Contracting Party shall notify the Organization of such measures.
ARTICLE 5
INCINERATION AT SEA
Contracting Parties shall prohibit incineration at sea of wastes or other matter.
ARTICLE 6
EXPORT OF WASTES OR OTHER MATTER
Contracting Parties shall not allow the export of wastes or other matter to other countries for dumping or incineration at sea.
ARTICLE 7
INTERNAL WATERS
1 Notwithstanding any other provision of this Protocol, this Protocol shall relate to internal waters only to the extent provided for in paragraphs 2 and 3.
2 Each Contracting Party shall at its discretion either apply the provisions of this Protocol or adopt other effective permitting and regulatory measures to control the deliberate disposal of wastes or other matter in marine internal waters where such disposal would be “dumping” or “incineration at sea” within the meaning of article 1, if conducted at sea.
3 Each Contracting Party should provide the Organization with information on legislation and institutional mechanisms regarding implementation, compliance and enforcement in marine internal waters. Contracting Parties should also use their best efforts to provide on a voluntary basis summary reports on the type and nature of the materials dumped in marine internal waters.
ARTICLE 8
EXCEPTIONS
1 The provisions of articles 4.1 and 5 shall not apply when it is necessary to secure the safety of human life or of vessels, aircraft, platforms or other man‑made structures at sea in cases of force majeure caused by stress of weather, or in any case which constitutes a danger to human life or a real threat to vessels, aircraft, platforms or other man‑made structures at sea, if dumping or incineration at sea appears to be the only way of averting the threat and if there is every probability that the damage consequent upon such dumping or incineration at sea will be less than would otherwise occur. Such dumping or incineration at sea shall be conducted so as to minimize the likelihood of damage to human or marine life and shall be reported forthwith to the Organization.
2 A Contracting Party may issue a permit as an exception to articles 4.1 and 5, in emergencies posing an unacceptable threat to human health, safety, or the marine environment and admitting of no other feasible solution. Before doing so the Contracting Party shall consult any other country or countries that are likely to be affected and the Organization which, after consulting other Contracting Parties, and competent international organizations as appropriate, shall, in accordance with article 18.6 promptly recommend to the Contracting Party the most appropriate procedures to adopt. The Contracting Party shall follow these recommendations to the maximum extent feasible consistent with the time within which action must be taken and with the general obligation to avoid damage to the marine environment and shall inform the Organization of the action it takes. The Contracting Parties pledge themselves to assist one another in such situations.
3 Any Contracting Party may waive its rights under paragraph 2 at the time of, or subsequent to ratification of, or accession to this Protocol.
ARTICLE 9
ISSUANCE OF PERMITS AND REPORTING
1 Each Contracting Party shall designate an appropriate authority or authorities to:
.1 issue permits in accordance with this Protocol;
.2 keep records of the nature and quantities of all wastes or other matter for which dumping permits have been issued and where practicable the quantities actually dumped and the location, time and method of dumping; and
.3 monitor individually, or in collaboration with other Contracting Parties and competent international organizations, the condition of the sea for the purposes of this Protocol.
2 The appropriate authority or authorities of a Contracting Party shall issue permits in accordance with this Protocol in respect of wastes or other matter intended for dumping or, as provided for in article 8.2, incineration at sea:
.1 loaded in its territory; and
.2 loaded onto a vessel or aircraft registered in its territory or flying its flag, when the loading occurs in the territory of a State not a Contracting Party to this Protocol.
3 In issuing permits, the appropriate authority or authorities shall comply with the requirements of article 4, together with such additional criteria, measures and requirements as they may consider relevant.
4 Each Contracting Party, directly or through a secretariat established under a regional agreement, shall report to the Organization and where appropriate to other Contracting Parties:
.1 the information specified in paragraphs 1.2 and 1.3;
.2 the administrative and legislative measures taken to implement the provisions of this Protocol, including a summary of enforcement measures; and
.3 the effectiveness of the measures referred to in paragraph 4.2 and any problems encountered in their application.
The information referred to in paragraphs 1.2 and 1.3 shall be submitted on an annual basis. The information referred to in paragraphs 4.2 and 4.3 shall be submitted on a regular basis.
5 Reports submitted under paragraphs 4.2 and 4.3 shall be evaluated by an appropriate subsidiary body as determined by the Meeting of Contracting Parties. This body will report its conclusions to an appropriate Meeting or Special Meeting of Contracting Parties.
ARTICLE 10
APPLICATION AND ENFORCEMENT
1 Each Contracting Party shall apply the measures required to implement this Protocol to all:
.1 vessels and aircraft registered in its territory or flying its flag;
.2 vessels and aircraft loading in its territory the wastes or other matter which are to be dumped or incinerated at sea; and
.3 vessels, aircraft and platforms or other man‑made structures believed to be engaged in dumping or incineration at sea in areas within which it is entitled to exercise jurisdiction in accordance with international law.
2 Each Contracting Party shall take appropriate measures in accordance with international law to prevent and if necessary punish acts contrary to the provisions of this Protocol.
3 Contracting Parties agree to co‑operate in the development of procedures for the effective application of this Protocol in areas beyond the jurisdiction of any State, including procedures for the reporting of vessels and aircraft observed dumping or incinerating at sea in contravention of this Protocol.
4 This Protocol shall not apply to those vessels and aircraft entitled to sovereign immunity under international law. However, each Contracting Party shall ensure by the adoption of appropriate measures that such vessels and aircraft owned or operated by it act in a manner consistent with the object and purpose of this Protocol and shall inform the Organization accordingly.
5 A State may, at the time it expresses its consent to be bound by this Protocol, or at any time thereafter, declare that it shall apply the provisions of this Protocol to its vessels and aircraft referred to in paragraph 4, recognising that only that State may enforce those provisions against such vessels and aircraft.
ARTICLE 11
COMPLIANCE PROCEDURES
1 No later than two years after the entry into force of this Protocol, the Meeting of Contracting Parties shall establish those procedures and mechanisms necessary to assess and promote compliance with this Protocol. Such procedures and mechanisms shall be developed with a view to allowing for the full and open exchange of information, in a constructive manner.
2 After full consideration of any information submitted pursuant to this Protocol and any recommendations made through procedures or mechanisms established under paragraph 1, the Meeting of Contracting Parties may offer advice, assistance or co‑operation to Contracting Parties and non‑Contracting Parties.
ARTICLE 12
REGIONAL CO‑OPERATION
In order to further the objectives of this Protocol, Contracting Parties with common interests to protect the marine environment in a given geographical area shall endeavour, taking into account characteristic regional features, to enhance regional co‑operation including the conclusion of regional agreements consistent with this Protocol for the prevention, reduction and where practicable elimination of pollution caused by dumping or incineration at sea of wastes or other matter. Contracting Parties shall seek to co‑operate with the parties to regional agreements in order to develop harmonized procedures to be followed by Contracting Parties to the different conventions concerned.
ARTICLE 13
TECHNICAL CO‑OPERATION AND ASSISTANCE
1 Contracting Parties shall, through collaboration within the Organization and in co‑ordination with other competent international organizations, promote bilateral and multilateral support for the prevention, reduction and where practicable elimination of pollution caused by dumping as provided for in this Protocol to those Contracting Parties that request it for:
.1 training of scientific and technical personnel for research, monitoring and enforcement, including as appropriate the supply of necessary equipment and facilities, with a view to strengthening national capabilities;
.2 advice on implementation of this Protocol;
.3 information and technical co‑operation relating to waste minimization and clean production processes;
.4 information and technical co‑operation relating to the disposal and treatment of waste and other measures to prevent, reduce and where practicable eliminate pollution caused by dumping; and
.5 access to and transfer of environmentally sound technologies and corresponding know‑ how, in particular to developing countries and countries in transition to market economies, on favourable terms, including on concessional and preferential terms, as mutually agreed, taking into account the need to protect intellectual property rights as well as the special needs of developing countries and countries in transition to market economies.
2 The Organization shall perform the following functions:
.1 forward requests from Contracting Parties for technical co‑operation to other Contracting Parties, taking into account such factors as technical capabilities;
.2 co‑ordinate requests for assistance with other competent international organizations, as appropriate; and
.3 subject to the availability of adequate resources, assist developing countries and those in transition to market economies, which have declared their intention to become Contracting Parties to this Protocol, to examine the means necessary to achieve full implementation.
ARTICLE 14
SCIENTIFIC AND TECHNICAL RESEARCH
1 Contracting Parties shall take appropriate measures to promote and facilitate scientific and technical research on the prevention, reduction and where practicable elimination of pollution by dumping and other sources of marine pollution relevant to this Protocol. In particular, such research should include observation, measurement, evaluation and analysis of pollution by scientific methods.
2 Contracting Parties shall, to achieve the objectives of this Protocol, promote the availability of relevant information to other Contracting Parties who request it on:
.1 scientific and technical activities and measures undertaken in accordance with this Protocol;
.2 marine scientific and technological programmes and their objectives; and
.3 the impacts observed from the monitoring and assessment conducted pursuant to article 9.1.3.
ARTICLE 15
RESPONSIBILITY AND LIABILITY
In accordance with the principles of international law regarding State responsibility for damage to the environment of other States or to any other area of the environment, the Contracting Parties undertake to develop procedures regarding liability arising from the dumping or incineration at sea of wastes or other matter.
ARTICLE 16
SETTLEMENT OF DISPUTES
1 Any disputes regarding the interpretation or application of this Protocol shall be resolved in the first instance through negotiation, mediation or conciliation, or other peaceful means chosen by parties to the dispute.
2 If no resolution is possible within twelve months after one Contracting Party has notified another that a dispute exists between them, the dispute shall be settled, at the request of a party to the dispute, by means of the Arbitral Procedure set forth in Annex 3, unless the parties to the dispute agree to use one of the procedures listed in paragraph 1 of Article 287 of the 1982 United Nations Convention on the Law of the Sea. The parties to the dispute may so agree, whether or not they are also States Parties to the 1982 United Nations Convention on the Law of the Sea.
3 In the event an agreement to use one of the procedures listed in paragraph 1 of Article 287 of the 1982 United Nations Convention on the Law of the Sea is reached, the provisions set forth in Part XV of that Convention that are related to the chosen procedure would also apply, mutatis mutandis.
4 The twelve month period referred to in paragraph 2 may be extended for another twelve months by mutual consent of the parties concerned.
5 Notwithstanding paragraph 2, any State may, at the time it expresses its consent to be bound by this Protocol, notify the Secretary‑General that, when it is a party to a dispute about the interpretation or application of article 3.1 or 3.2, its consent will be required before the dispute may be settled by means of the Arbitral Procedure set forth in Annex 3.
ARTICLE 17
INTERNATIONAL CO‑OPERATION
Contracting Parties shall promote the objectives of this Protocol within the competent international organizations.
ARTICLE 18
MEETINGS OF CONTRACTING PARTIES
1 Meetings of Contracting Parties or Special Meetings of Contracting Parties shall keep under continuing review the implementation of this Protocol and evaluate its effectiveness with a view to identifying means of strengthening action, where necessary, to prevent, reduce and where practicable eliminate pollution caused by dumping and incineration at sea of wastes or other matter. To these ends, Meetings of Contracting Parties or Special Meetings of Contracting Parties may:
.1 review and adopt amendments to this Protocol in accordance with articles 21 and 22;
.2 establish subsidiary bodies, as required, to consider any matter with a view to facilitating the effective implementation of this Protocol;
.3 invite appropriate expert bodies to advise the Contracting Parties or the Organization on matters relevant to this Protocol;
.4 promote co‑operation with competent international organizations concerned with the prevention and control of pollution;
.5 consider the information made available pursuant to article 9.4;
.6 develop or adopt, in consultation with competent international organizations, procedures referred to in article 8.2, including basic criteria for determining exceptional and emergency situations, and procedures for consultative advice and the safe disposal of matter at sea in such circumstances;
.7 consider and adopt resolutions; and
.8 consider any additional action that may be required.
2 The Contracting Parties at their first Meeting shall establish rules of procedure as necessary.
ARTICLE 19
DUTIES OF THE ORGANIZATION
1 The Organization shall be responsible for Secretariat duties in relation to this Protocol. Any Contracting Party to this Protocol not being a member of this Organization shall make an appropriate contribution to the expenses incurred by the Organization in performing these duties.
2 Secretariat duties necessary for the administration of this Protocol include:
.1 convening Meetings of Contracting Parties once per year, unless otherwise decided by Contracting Parties, and Special Meetings of Contracting Parties at any time on the request of two‑thirds of the Contracting Parties;
.2 providing advice on request on the implementation of this Protocol and on guidance and procedures developed thereunder;
.3 considering enquiries by, and information from Contracting Parties, consulting with them and with the competent international organizations, and providing recommendations to Contracting Parties on questions related to, but not specifically covered by, this Protocol;
.4 preparing and assisting, in consultation with Contracting Parties and the competent international organizations, in the development and implementation of procedures referred to in article 18.6.;
.5 conveying to the Contracting Parties concerned all notifications received by the Organization in accordance with this Protocol; and
.6 preparing, every two years, a budget and a financial account for the administration of this Protocol which shall be distributed to all Contracting Parties.
3 The Organization shall, subject to the availability of adequate resources, in addition to the requirements set out in article 13.2.3.
.1 collaborate in assessments of the state of the marine environment; and
.2 co‑operate with competent international organizations concerned with the prevention and control of pollution.
ARTICLE 20
ANNEXES
Annexes to this Protocol form an integral part of this Protocol.
ARTICLE 21
AMENDMENT OF THE PROTOCOL
1 Any Contracting Party may propose amendments to the articles of this Protocol. The text of a proposed amendment shall be communicated to Contracting Parties by the Organization at least six months prior to its consideration at a Meeting of Contracting Parties or a Special Meeting of Contracting Parties.
2 Amendments to the articles of this Protocol shall be adopted by a two‑thirds majority vote of the Contracting Parties which are present and voting at the Meeting of Contracting Parties or Special Meeting of Contracting Parties designated for this purpose.
3 An amendment shall enter into force for the Contracting Parties which have accepted it on the sixtieth day after two‑thirds of the Contracting Parties shall have deposited an instrument of acceptance of the amendment with the Organization. Thereafter the amendment shall enter into force for any other Contracting Party on the sixtieth day after the date on which that Contracting Party has deposited its instrument of acceptance of the amendment.
4 The Secretary‑General shall inform Contracting Parties of any amendments adopted at Meetings of Contracting Parties and of the date on which such amendments enter into force generally and for each Contracting Party.
5 After entry into force of an amendment to this Protocol, any State that becomes a Contracting Party to this Protocol shall become a Contracting Party to this Protocol as amended, unless two‑thirds of the Contracting Parties present and voting at the Meeting or Special Meeting of Contracting Parties adopting the amendment agree otherwise.
ARTICLE 22
AMENDMENT OF THE ANNEXES
1 Any Contracting Party may propose amendments to the Annexes to this Protocol. The text of a proposed amendment shall be communicated to Contracting Parties by the Organization at least six months prior to its consideration at a Meeting of Contracting Parties or Special Meeting of Contracting Parties.
2 Amendments to the Annexes other than Annex 3 will be based on scientific or technical considerations and may take into account legal, social and economic factors as appropriate. Such amendments shall be adopted by a two‑thirds majority vote of the Contracting Parties present and voting at a Meeting of Contracting Parties or Special Meeting of Contracting Parties designated for this purpose.
3 The Organization shall without delay communicate to Contracting Parties amendments to the Annexes that have been adopted at a Meeting of Contracting Parties or Special Meeting of Contracting Parties.
4 Except as provided in paragraph 7, amendments to the Annexes shall enter into force for each Contracting Party immediately on notification of its acceptance to the Organization or 100 days after the date of their adoption at a Meeting of Contracting Parties, if that is later, except for those Contracting Parties which before the end of the 100 days make a declaration that they are not able to accept the amendment at that time. A Contracting Party may at any time substitute an acceptance for a previous declaration of objection and the amendment previously objected to shall thereupon enter into force for that Contracting Party.
5 The Secretary‑General shall without delay notify Contracting Parties of instruments of acceptance or objection deposited with the Organization.
6 A new Annex or an amendment to an Annex which is related to an amendment to the articles of this Protocol shall not enter into force until such time as the amendment to the articles of this Protocol enters into force.
7 With regard to amendments to Annex 3 concerning the Arbitral Procedure and with regard to the adoption and entry into force of new Annexes the procedures on amendments to the articles of this Protocol shall apply.
ARTICLE 23
RELATIONSHIP BETWEEN THE PROTOCOL AND THE CONVENTION
This Protocol will supersede the Convention as between Contracting Parties to this Protocol which are also Parties to the Convention.
ARTICLE 24
SIGNATURE, RATIFICATION, ACCEPTANCE,
APPROVAL AND ACCESSION
1 This Protocol shall be open for signature by any State at the Headquarters of the Organization from 1 April 1997 to 31 March 1998 and shall thereafter remain open for accession by any State.
2 States may become Contracting Parties to this Protocol by:
.1 signature not subject to ratification, acceptance or approval; or
.2 signature subject to ratification, acceptance or approval, followed by ratification, acceptance or approval; or
.3 accession.
3 Ratification, acceptance, approval or accession shall be effected by the deposit of an instrument to that effect with the Secretary‑General.
ARTICLE 25
ENTRY INTO FORCE
1 This Protocol shall enter into force on the thirtieth day following the date on which:
.1 at least 26 States have expressed their consent to be bound by this Protocol in accordance with article 24; and
.2 at least 15 Contracting Parties to the Convention are included in the number of States referred to in paragraph 1.1.
2 For each State that has expressed its consent to be bound by this Protocol in accordance with article 24 following the date referred to in paragraph 1, this Protocol shall enter into force on the thirtieth day after the date on which such State expressed its consent.
ARTICLE 26
TRANSITIONAL PERIOD
1 Any State that was not a Contracting Party to the Convention before 31 December 1996 and that expresses its consent to be bound by this Protocol prior to its entry into force or within five years after its entry into force may, at the time it expresses its consent, notify the Secretary‑General that, for reasons described in the notification, it will not be able to comply with specific provisions of this Protocol other than those provided in paragraph 2, for a transitional period that shall not exceed that described in paragraph 4.
2 No notification made under paragraph 1 shall affect the obligations of a Contracting Party to this Protocol with respect to incineration at sea or the dumping of radioactive wastes or other radioactive matter.
3 Any Contracting Party to this Protocol that has notified the Secretary‑General under paragraph 1 that, for the specified transitional period, it will not be able to comply, in part or in whole, with article 4.1 or article 9 shall nonetheless during that period prohibit the dumping of wastes or other matter for which it has not issued a permit, use its best efforts to adopt administrative or legislative measures to ensure that issuance of permits and permit conditions comply with the provisions of Annex 2, and notify the Secretary‑General of any permits issued.
4 Any transitional period specified in a notification made under paragraph 1 shall not extend beyond five years after such notification is submitted.
5 Contracting Parties that have made a notification under paragraph 1 shall submit to the first Meeting of Contracting Parties occurring after deposit of their instrument of ratification, acceptance, approval or accession a programme and timetable to achieve full compliance with this Protocol, together with any requests for relevant technical co‑operation and assistance in accordance with article 13 of this Protocol.
6 Contracting Parties that have made a notification under paragraph 1 shall establish procedures and mechanisms for the transitional period to implement and monitor submitted programmes designed to achieve full compliance with this Protocol. A report on progress toward compliance shall be submitted by such Contracting Parties to each Meeting of Contracting Parties held during their transitional period for appropriate action.
ARTICLE 27
WITHDRAWAL
1 Any Contracting Party may withdraw from this Protocol at any time after the expiry of two years from the date on which this Protocol enters into force for that Contracting Party.
2 Withdrawal shall be effected by the deposit of an instrument of withdrawal with the Secretary‑General.
3 A withdrawal shall take effect one year after receipt by the Secretary‑General of the instrument of withdrawal or such longer period as may be specified in that instrument.
ARTICLE 28
DEPOSITARY
1 This Protocol shall be deposited with the Secretary‑General.
2 In addition to the functions specified in articles 10.5, 16.5, 21.4, 22.5 and 26.5, the Secretary‑General shall:
.1 inform all States which have signed this Protocol or acceded thereto of:
.1 each new signature or deposit of an instrument of ratification, acceptance, approval or accession, together with the date thereof;
.2 the date of entry into force of this Protocol; and
.3 the deposit of any instrument of withdrawal from this Protocol together with the date on which it was received and the date on which the withdrawal takes effect;
.2 transmit certified copies of this Protocol to all States which have signed this Protocol or acceded thereto.
3 As soon as this Protocol enters into force, a certified true copy thereof shall be transmitted by the Secretary‑General to the Secretariat of the United Nations for registration and publication in accordance with Article 102 of the Charter of the United Nations.
ARTICLE 29
AUTHENTIC TEXTS
This Protocol is established in a single original in the Arabic, Chinese, English, French, Russian and Spanish languages, each text being equally authentic.
IN WITNESS WHEREOF the undersigned being duly authorized by their respective Governments for that purpose have signed this Protocol.
[Signatures omitted]
DONE AT LONDON, this seventh day of November, one thousand nine hundred and ninety‑six.
ANNEX 1
WASTES OR OTHER MATTER THAT
MAY BE CONSIDERED FOR DUMPING
1 The following wastes or other matter are those that may be considered for dumping being mindful of the Objectives and General Obligations of this Protocol set out in articles 2 and 3:
.1 dredged material;
.2 sewage sludge;
.3 fish waste, or material resulting from industrial fish processing operations;
.4 vessels and platforms or other man‑made structures at sea;
.5 inert, inorganic geological material;
.6 organic material of natural origin; and
.7 bulky items primarily comprising iron, steel, concrete and similarly unharmful materials for which the concern is physical impact, and limited to those circumstances where such wastes are generated at locations, such as small islands with isolated communities, having no practicable access to disposal options other than dumping.
2 The wastes or other matter listed in paragraphs 1.4 and 1.7 may be considered for dumping, provided that material capable of creating floating debris or otherwise contributing to pollution of the marine environment has been removed to the maximum extent and provided that the material dumped poses no serious obstacle to fishing or navigation.
3 Notwithstanding the above, materials listed in paragraphs 1.1 to 1.7 containing levels of radioactivity greater than de minimis (exempt) concentrations as defined by the IAEA and adopted by Contracting Parties, shall not be considered eligible for dumping; provided further that within 25 years of 20 February 1994, and at each 25 year interval thereafter, Contracting Parties shall complete a scientific study relating to all radioactive wastes and other radioactive matter other than high level wastes or matter, taking into account such other factors as Contracting Parties consider appropriate and shall review the prohibition on dumping of such substances in accordance with the procedures set forth in article 22.
ANNEX 2
ASSESSMENT OF WASTES OR OTHER MATTER
THAT MAY BE CONSIDERED FOR DUMPING
GENERAL
1 The acceptance of dumping under certain circumstances shall not remove the obligations under this Annex to make further attempts to reduce the necessity for dumping.
WASTE PREVENTION AUDIT
2 The initial stages in assessing alternatives to dumping should, as appropriate, include an evaluation of:
.1 types, amounts and relative hazard of wastes generated;
.2 details of the production process and the sources of wastes within that process; and
.3 feasibility of the following waste reduction/prevention techniques:
.1 product reformulation;
.2 clean production technologies;
.3 process modification;
.4 input substitution; and
.5 on‑site, closed‑loop recycling.
3 In general terms, if the required audit reveals that opportunities exist for waste prevention at source, an applicant is expected to formulate and implement a waste prevention strategy, in collaboration with relevant local and national agencies, which includes specific waste reduction targets and provision for further waste prevention audits to ensure that these targets are being met. Permit issuance or renewal decisions shall assure compliance with any resulting waste reduction and prevention requirements.
4 For dredged material and sewage sludge, the goal of waste management should be to identify and control the sources of contamination. This should be achieved through implementation of waste prevention strategies and requires collaboration between the relevant local and national agencies involved with the control of point and non‑point sources of pollution. Until this objective is met, the problems of contaminated dredged material may be addressed by using disposal management techniques at sea or on land.
CONSIDERATION OF WASTE MANAGEMENT OPTIONS
5 Applications to dump wastes or other matter shall demonstrate that appropriate consideration has been given to the following hierarchy of waste management options, which implies an order of increasing environmental impact:
.1 re‑use;
.2 off‑site recycling;
.3 destruction of hazardous constituents;
.4 treatment to reduce or remove the hazardous constituents; and
.5 disposal on land, into air and in water.
6 A permit to dump wastes or other matter shall be refused if the permitting authority determines that appropriate opportunities exist to re‑use, recycle or treat the waste without undue risks to human health or the environment or disproportionate costs. The practical availability of other means of disposal should be considered in the light of a comparative risk assessment involving both dumping and the alternatives.
CHEMICAL, PHYSICAL AND BIOLOGICAL PROPERTIES
7 A detailed description and characterization of the waste is an essential precondition for the consideration of alternatives and the basis for a decision as to whether a waste may be dumped. If a waste is so poorly characterized that proper assessment cannot be made of its potential impacts on human health and the environment, that waste shall not be dumped.
8 Characterization of the wastes and their constituents shall take into account:
.1 origin, total amount, form and average composition;
.2 properties: physical, chemical, biochemical and biological;
.3 toxicity;
.4 persistence: physical, chemical and biological; and
.5 accumulation and biotransformation in biological materials or sediments.
ACTION LIST
9 Each Contracting Party shall develop a national Action List to provide a mechanism for screening candidate wastes and their constituents on the basis of their potential effects on human health and the marine environment. In selecting substances for consideration in an Action List, priority shall be given to toxic, persistent and bioaccumulative substances from anthropogenic sources (e.g., cadmium, mercury, organohalogens, petroleum hydrocarbons, and, whenever relevant, arsenic, lead, copper, zinc, beryllium, chromium, nickel and vanadium, organosilicon compounds, cyanides, fluorides and pesticides or their by‑products other than organohalogens). An Action List can also be used as a trigger mechanism for further waste prevention considerations.
10 An Action List shall specify an upper level and may also specify a lower level. The upper level should be set so as to avoid acute or chronic effects on human health or on sensitive marine organisms representative of the marine ecosystem. Application of an Action List will result in three possible categories of waste:
.1 wastes which contain specified substances, or which cause biological responses, exceeding the relevant upper level shall not be dumped, unless made acceptable for dumping through the use of management techniques or processes;
.2 wastes which contain specified substances, or which cause biological responses, below the relevant lower levels should be considered to be of little environmental concern in relation to dumping; and
.3 wastes which contain specified substances, or which cause biological responses, below the upper level but above the lower level require more detailed assessment before their suitability for dumping can be determined.
DUMP‑SITE SELECTION
11 Information required to select a dump‑site shall include:
.1 physical, chemical and biological characteristics of the water‑column and the seabed;
.2 location of amenities, values and other uses of the sea in the area under consideration;
.3 assessment of the constituent fluxes associated with dumping in relation to existing fluxes of substances in the marine environment; and
.4 economic and operational feasibility.
ASSESSMENT OF POTENTIAL EFFECTS
12 Assessment of potential effects should lead to a concise statement of the expected consequences of the sea or land disposal options, i.e., the “Impact Hypothesis”. It provides a basis for deciding whether to approve or reject the proposed disposal option and for defining environmental monitoring requirements.
13 The assessment for dumping should integrate information on waste characteristics, conditions at the proposed dump‑site(s), fluxes, and proposed disposal techniques and specify the potential effects on human health, living resources, amenities and other legitimate uses of the sea. It should define the nature, temporal and spatial scales and duration of expected impacts based on reasonably conservative assumptions.
14 An analysis of each disposal option should be considered in the light of a comparative assessment of the following concerns: human health risks, environmental costs, hazards, (including accidents), economics and exclusion of future uses. If this assessment reveals that adequate information is not available to determine the likely effects of the proposed disposal option then this option should not be considered further. In addition, if the interpretation of the comparative assessment shows the dumping option to be less preferable, a permit for dumping should not be given.
15 Each assessment should conclude with a statement supporting a decision to issue or refuse a permit for dumping.
MONITORING
16 Monitoring is used to verify that permit conditions are met ‑ compliance monitoring ‑ and that the assumptions made during the permit review and site selection process were correct and sufficient to protect the environment and human health ‑ field monitoring. It is essential that such monitoring programmes have clearly defined objectives.
PERMIT AND PERMIT CONDITIONS
17 A decision to issue a permit should only be made if all impact evaluations are completed and the monitoring requirements are determined. The provisions of the permit shall ensure, as far as practicable, that environmental disturbance and detriment are minimized and the benefits maximized. Any permit issued shall contain data and information specifying:
.1 the types and sources of materials to be dumped;
.2 the location of the dump‑site(s);
.3 the method of dumping; and
.4 monitoring and reporting requirements.
18 Permits should be reviewed at regular intervals, taking into account the results of monitoring and the objectives of monitoring programmes. Review of monitoring results will indicate whether field programmes need to be continued, revised or terminated and will contribute to informed decisions regarding the continuance, modification or revocation of permits. This provides an important feedback mechanism for the protection of human health and the marine environment.
ANNEX 3
ARBITRAL PROCEDURE
Article 1
1 An Arbitral Tribunal (hereinafter referred to as the “Tribunal”) shall be established upon the request of a Contracting Party addressed to another Contracting Party in application of article 16 of this Protocol. The request for arbitration shall consist of a statement of the case together with any supporting documents.
2 The requesting Contracting Party shall inform the Secretary‑General of:
.1 its request for arbitration; and
.2 the provisions of this Protocol the interpretation or application of which is, in its opinion, the subject of disagreement.
3 The Secretary‑General shall transmit this information to all Contracting States.
Article 2
1 The Tribunal shall consist of a single arbitrator if so agreed between the parties to the dispute within 30 days from the date of receipt of the request for arbitration.
2 In the case of the death, disability or default of the arbitrator, the parties to a dispute may agree upon a replacement within 30 days of such death, disability or default.
Article 3
1 Where the parties to a dispute do not agree upon a Tribunal in accordance with article 2 of this Annex, the Tribunal shall consist of three members:
.1 one arbitrator nominated by each party to the dispute; and
.2 a third arbitrator who shall be nominated by agreement between the two first named and who shall act as its Chairman.
2 If the Chairman of a Tribunal is not nominated within 30 days of nomination of the second arbitrator, the parties to a dispute shall, upon the request of one party, submit to the Secretary‑General within a further period of 30 days an agreed list of qualified persons. The Secretary‑General shall select the Chairman from such list as soon as possible. He shall not select a Chairman who is or has been a national of one party to the dispute except with the consent of the other party to the dispute.
3 If one party to a dispute fails to nominate an arbitrator as provided in paragraph 1.1 within 60 days from the date of receipt of the request for arbitration, the other party may request the submission to the Secretary‑General within a period of 30 days of an agreed list of qualified persons. The Secretary‑General shall select the Chairman of the Tribunal from such list as soon as possible. The Chairman shall then request the party which has not nominated an arbitrator to do so. If this party does not nominate an arbitrator within 15 days of such request, the Secretary‑General shall, upon request of the Chairman, nominate the arbitrator from the agreed list of qualified persons.
4 In the case of the death, disability or default of an arbitrator, the party to the dispute who nominated him shall nominate a replacement within 30 days of such death, disability or default. If the party does not nominate a replacement, the arbitration shall proceed with the remaining arbitrators. In the case of the death, disability or default of the Chairman, a replacement shall be nominated in accordance with the provision of paragraphs 1.2 and 2 within 90 days of such death, disability or default.
5 A list of arbitrators shall be maintained by the Secretary‑General and composed of qualified persons nominated by the Contracting Parties. Each Contracting Party may designate for inclusion in the list four persons who shall not necessarily be its nationals. If the parties to the dispute have failed within the specified time limits to submit to the Secretary‑General an agreed list of qualified persons as provided for in paragraphs 2, 3 and 4, the Secretary‑General shall select from the list maintained by him the arbitrator or arbitrators not yet nominated.
Article 4
The Tribunal may hear and determine counter‑claims arising directly out of the subject matter of the dispute.
Article 5
Each party to the dispute shall be responsible for the costs entailed by the preparation of its own case. The remuneration of the members of the Tribunal and of all general expenses incurred by the arbitration shall be borne equally by the parties to the dispute. The Tribunal shall keep a record of all its expenses and shall furnish a final statement thereof to the parties.
Article 6
Any Contracting Party which has an interest of a legal nature which may be affected by the decision in the case may, after giving written notice to the parties to the dispute which have originally initiated the procedure, intervene in the arbitration procedure with the consent of the Tribunal and at its own expense. Any such intervenor shall have the right to present evidence, briefs and oral argument on the matters giving rise to its intervention, in accordance with procedures established pursuant to article 7 of this Annex, but shall have no rights with respect to the composition of the Tribunal.
Article 7
A Tribunal established under the provisions of this Annex shall decide its own rules of procedure.
Article 8
1 Unless a Tribunal consists of a single arbitrator, decisions of the Tribunal as to its procedure, its place of meeting, and any question related to the dispute laid before it, shall be taken by majority vote of its members. However, the absence or abstention of any member of the Tribunal who was nominated by a party to the dispute shall not constitute an impediment to the Tribunal reaching a decision. In case of equal voting, the vote of the Chairman shall be decisive.
2 The parties to the dispute shall facilitate the work of the Tribunal and in particular shall, in accordance with their legislation and using all means at their disposal:
.1 provide the Tribunal with all necessary documents and information; and
.2 enable the Tribunal to enter their territory, to hear witnesses or experts, and to visit the scene.
3 The failure of a party to the dispute to comply with the provisions of paragraph 2 shall not preclude the Tribunal from reaching a decision and rendering an award.
Article 9
The Tribunal shall render its award within five months from the time it is established unless it finds it necessary to extend that time limit for a period not to exceed five months. The award of the Tribunal shall be accompanied by a statement of reasons for the decision. It shall be final and without appeal and shall be communicated to the Secretary‑General who shall inform the Contracting Parties. The parties to the dispute shall immediately comply with the award.
Repeal the subsection.
Repeal the subsection.
[Minister’s second reading speech made in—
Senate on 31 March 1999
House of Representatives on 11 May 2000]
(62/99)