The Biosecurity Amendment (Ballast Water and Other Measures) Bill 2017 (Ballast Water Bill) was introduced on 15 February 2017 by Mr Barnaby Joyce, Minister for Agriculture and Water Resources. The Ballast Water Bill is intended to strengthen Australia’s biosecurity system and implement the International Convention for the Control and Management of Ships’ Ballast Water and Sediments (Convention).
What are the proposed changes under the Ballast Water Bill?
The proposed changes under the Ballast Water Bill have been divided into amendments relating to the Convention and to human health as follows.
Amendments Relating to the Convention:
- The offences for discharging ballast water and disposing of sediment will be changed to regulate both Australian and foreign vessels but in different circumstances;
- The requirement for vessels to have a ballast water management plan and certificate as well as a ballast water record system will also change to regulate both Australian and foreign vessels again in different circumstances;
- There will be a reporting requirement for vessels which dispose of sediment in Australian territorial seas for the purposes relating to safety, accident or pollution which includes a strict liability offence;
- Additional powers will be given to biosecurity officers in relation to vessels including securing the vessel, conducting inspections, taking samples, asking questions and making directions. There will be a reporting requirement for vessels which fail to comply with a direction given to them;
- A power will also be created for the Director of Biosecurity to make determinations prescribing a wide range of matters required, permitted, necessary or convenient to carry out and give effect to Chapter 5.
Amendments Relating to Human Health:
- The regulations will be able to prescribe measures to be undertaken by operators of incoming aircraft or vessels to destroy disease vectors which have the potential to cause human disease and may exist aboard the aircraft or vessel;
- The Director of Biosecurity or chief human biosecurity officer will also be able to make directions for operators of a first point of entry to carry out activities to control these disease vectors.
What are the obligations under the Ballast Water Bill?
In relation to the changes relating to the Convention, when considering your obligations under the Ballast Water Bill you should keep in mind whether you operate an Australian or foreign vessel as Australia’s power to regulate foreign vessels is narrower than its power to regulate Australian vessels.
The offences for discharging ballast water and disposing of sediment will be triggered for Australian vessels regardless of whether or not they are in Australian waters whereas foreign vessels will only trigger the offences when they are in Australian waters. The penalty for discharging ballast water is 500 penalty units. The penalty for disposing of sediment remains 2,000 penalty units for a fault-based offence and 500 penalty units for a strict liability offence. Note that the offence will not be triggered in either case if one of the prescribed exceptions is also applicable in that case.
Similarly Australian vessels will be required to have a ballast water management plan and certificate as well as a ballast water record system at all times, regardless of whether or not they are in Australian waters, unless it is so prescribed or the Bessel has been granted an exemption. These requirements are only applicable to foreign vessels when they are in Australian waters. The penalty for not having this documentation when required is 200 penalty units.
If a vessel, be it Australian or foreign, disposes of sediment in Australian waters for the purposes relating to safety, accident or pollution, the vessel must make a report to the Director of Biosecurity setting out the reasons as soon as practicable and in any case within 24 hours. Failure to do so is a strict liability offence and attracts a penalty of 120 penalty units.
There are further reporting requirements in relation to directions given by biosecurity officers under the new powers. Failure of a person to comply with a direction given to them will attract a civil penalty provision of 120 penalty units. It is also a strict liability offence which attracts a penalty of 2,000 penalty units. A person who fails to comply with a direction must also make a report to the Director of Biosecurity as soon as practicable and in any case within 24 hours setting out the reason for the failure to comply including, where applicable, whether it was necessary for purposes of safety, accident or pollution.
In relation to the changes relating to human health, if a direction is made to you to carry out an activity to control disease vectors, it will be an offence if you fail to comply with that direction. The penalty is imprisonment for 5 years or 300 penalty units or both. It will also attract a civil penalty of 120 penalty units.
HWL Ebsworth’s National Transport team specialise in all aspects of wet and dry shipping and regularly assist ship owners with their obligations under maritime, insurance, corporate, commercial and trade law. For further information on the new Ballast Water Bill and the potential impact it may have on your operations, please contact a member of our team.
This article was written by Joe Hurley, Partner, and Carol Cheng, Solicitor.