Australia

Victoria - Restrictions On Discharge Of 'Domestic Ballast Water

On 27 April 2004, the State Government of Victoria published the Waste Management Policy (Ships' Ballast Water) ('Policy') in the Victoria Government Gazette.

Pursuant to the Policy, from 1 July 2004 all ships (defined to include "every description of vessel or craft" ) that enter Victorian waters will be subject to a new ballast water management policy in respect of 'domestic ballast water' . The Victorian Environment Protection Authority ('EPA') is the Government agency responsible for the implementation and administration of the regime. However, it is to be noted that a key component of the Policy, the 'Protocol for Environmental Management' has yet to be finalised. The Protocol will set out the practical steps and options that apply in respect of a ship's compliance. The EPA anticipates that the Protocol will be finalised and published in the very near future.

Another aspect of the implementation of the Policy that has yet to be finalised is a fee structure. It is understood that the EPA is reviewing the possible imposition of an administrative charge for each ship's call at a Victorian port. Such a fee structure is likely to be introduced through statutory Regulations.

Objectives of policy 

The preamble to the Policy states that the introduction of marine pests into Victorian State waters threatens the biodiversity and ecological processes of Victoria's marine ecosystems. 'Marine pests' are defined to include "aquatic animals, plants or pathogens" . In a media release issued by the Victorian Minister for the Environment concerning the policy, references were made to the spread of the Northern Pacific Seastar to Victoria from Tasmania, and protecting against the spread of Giant Mediterranean Fan Worm and Japanese Brown Kelp. 

Statutory basis for policy 

The statutory power for the declaration of the Victorian Ballast Water policy is derived from the Environment Protection Act 1970 (Vic) ('EP Act'). The EP Act provides for the declaration of waste management policies on the recommendation of the EPA, including the treatment, transport and disposal of waste. 'Waste' is given a very broad definition and includes liquids that are discharged into the environment in such volume "as to cause an alteration in the environment." Therefore, ballast water that contains marine organisms that are foreign to Victorian waters is likely to be construed to be 'waste' under the EP Act. 

Limitation to 'domestic ballast water' 

The Policy is limited to the regulation of 'domestic ballast water' - that is, ballast water that originates from an Australian port or within the territorial sea of Australia.

The requirements in respect of 'international ballast water' will continue to be the responsibility of the Federal Australian Quarantine & Inspection Service ('AQIS')*. The administration of international ballast water will operate independently of the Policy. Therefore, a vessel entering Victorian waters may be subject to both the Federal and State ballast water policies simultaneously.

Jurisdictional limit of 'Victorian waters' 

Victorian waters (i.e. the State coastal waters) extend 3 nautical miles from the Victorian coastline. It follows that restrictions imposed by the Policy are limited to the discharge of domestic ballast water within this area. 

Key elements 

The Policy contains the following key elements:

• every ship will be required to perform a self-assessment of any domestic ballast water that it is carrying by accessing the Ballast Water Decision Support System, a computer software application developed by AQIS. This computer program will assess domestic ballast water as either 'high risk' or 'low risk'
• prior to arriving at a Victorian port, every ship must complete (and submit to the EPA) a Victorian Ballast Water Reporting Form, specifying whether the vessel is carrying domestic ballast water, the risk assessment for the ballast water, and whether it is intended to discharge domestic ballast water in Victorian waters
• if the ship is carrying domestic ballast water, it will also be required to complete (and submit to the EPA) a Ballast Water Log, specifying the most recent uptake or discharge of any domestic ballast water for every ballast tank on the vessel
• domestic ballast water that is assessed to be 'high risk' must not be discharged into Victorian waters. By comparison, there is no restriction on the discharge of 'low risk' domestic ballast water. Obviously, a key question which arises in relation to Victorian Ballast Water policy is the extent to which ballast water originating from other Australian ports will be classified as 'high risk'. If the appropriate documentation specified above is not completed, any domestic ballast water on the vessel will be deemed 'high risk' and, consequently, must not be discharged into Victorian waters
• although the EPA will assess ballast water requirements on a voyage-by-voyage basis, it is possible for regular users of Victorian ports to enter into accreditation agreements with the EPA. Such agreements will exempt ships from certain reporting requirements, although they are subject to the ship adhering to the Policy - that is, the appropriate management of 'high risk' domestic ballast water in Victorian waters
• the EPA recognises that, in certain circumstances, ships may be unable to fully comply with the Policy. This may be because of unforseen circumstances during a particular voyage (such as inclement weather conditions) or the structural limitations of a ship. In these circumstances, the EPA will determine alternative arrangements for the management of domestic ballast water, in co-ordination with the ship.

Sanctions for non-compliance 

Any breach of the Policy will be subject to the penalties specified in the EP Act.

A person who contravenes any requirements relating to 'waste' as specified in the Policy, i.e. 'high risk' domestic ballast water, may be found guilty of an indictable offence and subject to a penalty of up to A$240,000. The offence will be deemed to be committed by both the Owner and the Master of the ship.

It is also to be noted that under the EP Act, where the Owner of the ship is a corporation, each person who is a director or is concerned with the management of the corporation may be guilty of an offence. Similarly, where the Owner of the ship is a partnership, each person who is a partner may be guilty of an offence.

In the case of minor infractions of the the Policy, the EPA may exercise its discretion to issue Infringement Notices, providing for penalties of A$5,000 for a corporation and A$1,200 for an individual.

EPA co-operation with implementation 

The Victorian Minister for the Environment, Mr John Thwaites, has pledged that the new policy will be implemented in a co-operative manner, stating:

"EPA Victoria will work with the shipping industry over the next 12 months to develop the most cost-effective user-pays system which protects our coastline and the industries that depend on it."

Nonetheless, the Australian Shipowners Association ('ASA') has expressed concern that the Policy "will require ships to undertake ballast water exchange for a large number of voyages into Victoria" with the likely result being "delays to ships as many domestic voyages into Victoria are not of sufficient length to allow a full ballast water exchange" .

Other issues to be resolved include arrangements for ships that are unable to exchange ballast due to poor weather. It is understood that EPA has the sole discretion to accept or reject the advice from a ship or its operators as to the ability to conduct ballast exchange in various conditions.

The ASA also points out that the Policy "is not consistent with the recently agreed IMO Convention on Ballast Water and the duplication that will be introduced in Victoria with regulation by both AQIS and EPA is likely to cause confusion as well as additional costs to shipping companies".

The preference of the ASA's membership is to develop a national system for ballast water management across Australia through the shipping industry working in consultation with the Commonwealth and all States and the Northern Territory to achieve a practical and consistent national approach to the ballast water issue.

In the meantime, it will be necessary for the operators of ships calling at Victorian ports to familiarise themselves with additional reporting and compliance requirements that will be introduced by the Victorian Ballast Water Policy from 1 July 2004.

With thanks to Middletons for supplying this article which was first published in their Trade and Transport News of May 2004.