ANTARCTIC TREATY (ENVIRONMENT PROTECTION) AMENDMENT BILL 2011

i Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011

Contents

1 Short

title

...........................................................................................

2 Commencement

.................................................................................

3 Schedule(s)

........................................................................................

Schedule 1--Implementation of Measure 4 (2004)

Part 1--Safety approvals

Antarctic Treaty (Environment Protection) Act 1980

Part 2--Other amendments

Antarctic Treaty (Environment Protection) Act 1980

Part 3--Application provisions

Schedule 2--Implementation of Annex VI to the Madrid

Protocol

Part 1--Environmental protection approvals

Antarctic Treaty (Environment Protection) Act 1980

Part 2--Environmental emergencies etc.

Antarctic Treaty (Environment Protection) Act 1980

Part 3--Amendment relating to safety approvals

Antarctic Treaty (Environment Protection) Act 1980

Part 4--Application and savings provisions

Schedule 3--Implementation of Measure 15 (2009)

Antarctic Treaty (Environment Protection) Act 1980

Schedule 4--Amendments commencing on the day after Royal

Assent

Antarctic Treaty (Environment Protection) Act 1980

Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011 1

A Bill for an Act to amend the Antarctic Treaty

(Environment Protection) Act 1980, and for other

purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Antarctic Treaty (Environment

Protection) Amendment Act 2011.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

2 Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011

Commencement information

Column 1

Column 2

Column 3

Provision(s) Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Schedule 1,

Part 1

The earlier of:

(a) a single day to be fixed by Proclamation;

and

(b) the day Measure 4 (2004), adopted by

the XXVIIth Antarctic Treaty

Consultative Meeting at Cape Town on

4 June 2004, comes into force for

Australia.

The Minister must announce by notice in the

Gazette the day the Measure comes into

force for Australia.

3. Schedule 1,

Parts 2 and 3

The later of:

(a) immediately after the commencement of

the provision(s) covered by table item 9;

and

(b) immediately after Measure 4 (2004),

adopted by the XXVIIth Antarctic Treaty

Consultative Meeting at Cape Town on

4 June 2004, comes into force for

Australia.

However, the provision(s) do not commence

at all if the event mentioned in paragraph (b)

does not occur.

The Minister must announce by notice in the

Gazette the day the Measure comes into

force for Australia.

4. Schedule 2,

Part 1

The earlier of:

(a) a single day to be fixed by Proclamation;

and

(b) the day Annex VI to the Madrid

Protocol, attached to Measure 1 (2005)

adopted by the XXVIIIth Antarctic

Treaty Consultative Meeting at

Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011 3

Commencement information

Column 1

Column 2

Column 3

Provision(s) Commencement

Date/Details

Stockholm on 17 June 2005, comes into

force for Australia.

The Minister must announce by notice in the

Gazette the day the Annex comes into force

for Australia.

5. Schedule 2,

Part 2

The later of:

(a) immediately after the commencement of

the provision(s) covered by table item 9;

and

(b) immediately after Annex VI to the

Madrid Protocol, attached to Measure 1

(2005) adopted by the XXVIIIth

Antarctic Treaty Consultative Meeting at

Stockholm on 17 June 2005, comes into

force for Australia.

However, the provision(s) do not commence

at all if the event mentioned in paragraph (b)

does not occur.

The Minister must announce by notice in the

Gazette the day the Annex comes into force

for Australia.

6. Schedule 2,

Part 3

The later of:

(a) immediately after the commencement of

the provision(s) covered by table item 3;

and

(b) the start of the day Annex VI to the

Madrid Protocol, attached to Measure 1

(2005) adopted by the XXVIIIth

Antarctic Treaty Consultative Meeting at

Stockholm on 17 June 2005, comes into

force for Australia.

However, the provision(s) do not commence

at all unless both of the events mentioned in

paragraphs (a) and (b) occur.

The Minister must announce by notice in the

Gazette the day the Annex comes into force

for Australia.

7. Schedule 2,

At the same time as the provision(s) covered

4 Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011

Commencement information

Column 1

Column 2

Column 3

Provision(s) Commencement

Date/Details

Part 4

by table item 5.

8. Schedule 3

The later of:

(a) the day after this Act receives the Royal

Assent; and

(b) the day Measure 15 (2009), adopted by

the XXXIInd Antarctic Treaty

Consultative Meeting at Baltimore on

17 April 2009, comes into force for

Australia.

However, the provision(s) do not commence

at all if the event mentioned in paragraph (b)

does not occur.

The Minister must announce by notice in the

Gazette the day the Measure comes into

force for Australia.

9. Schedule 4

The day after this Act receives the Royal

Assent.

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

3 Schedule(s)

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.

Implementation of Measure 4 (2004) Schedule 1

Safety approvals Part 1

Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011 5

Schedule 1--Implementation of Measure 4

(2004)

Part 1--Safety approvals

Antarctic Treaty (Environment Protection) Act 1980

1 Subsection 3(1)

Insert:

non-State operator means a person who is not a Contracting Party

to the Treaty.

2 Subsection 3(1)

Insert:

safety approval means a safety approval granted under

section 13AC.

3 After Part 3

Insert:

Part 3A--Safety approvals

Division 1--Introduction

13AA Simplified outline

The following is a simplified outline of this Part:

This Part deals with safety approvals.

A non-State operator may apply for a safety approval in relation to

an activity (other than a mining activity) to be carried on in the

Antarctic.

The Minister may grant the approval if the Minister is satisfied that

the operator has or will have certain contingency plans, and

insurance or other arrangements, in relation to the activity.

Schedule 1 Implementation of Measure 4 (2004)

Part 1 Safety approvals

6 Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011

Mandatory conditions relating to those matters are imposed on all

safety approvals and those conditions cannot be varied or revoked.

The Minister may also impose further conditions on a safety

approval, and may vary or revoke those conditions.

If the Minister is satisfied that it is necessary to do so, the Minister

may vary a safety approval on his or her own initiative or at the

request of the holder of the approval.

The Minister may suspend or revoke a safety approval if the

Minister is satisfied that there has been non-compliance with the

conditions imposed on the approval or that the suspension or

revocation is appropriate in all the circumstances.

The Minister must cause a register of safety approvals to be kept.

Division 2--Obtaining a safety approval

13AB Application for safety approval

(1) A non-State operator may apply to the Minister for a safety

approval in relation to an activity (other than a mining activity) that

is to be carried on in the Antarctic.

(2) The application must be in the form approved, in writing, by the

Minister.

Request for further information

(3) The Minister may, by written notice, request the applicant to give

the Minister, within the period specified in the notice, further

information in relation to the application.

(4)

If:

(a) a request is made under subsection (3); and

(b) the applicant does not give the requested information within

the period specified in the notice;

the Minister may refuse to grant the safety approval under

section 13AC.

Implementation of Measure 4 (2004) Schedule 1

Safety approvals Part 1

Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011 7

Withdrawal of application

(5) An applicant may, by written notice given to the Minister,

withdraw the application at any time before the Minister makes a

decision on the application.

13AC Grant of safety approval

(1) If a non-State operator applies for a safety approval under

section 13AB in relation to an activity, the Minister may grant the

approval.

(2) The Minister must not grant the approval unless the Minister is

satisfied that:

(a) the operator has an appropriate contingency plan, and

sufficient arrangements, for health and safety, search and

rescue, and medical care and evacuation in relation to the

activity; and

(b) the operator has or will have adequate insurance, or other

arrangements, that will cover any costs associated with

search and rescue, and medical care and evacuation, in

relation to the activity.

13AD Notice of decision

Notice of grant

(1) If the Minister grants a non-State operator a safety approval under

section 13AC in relation to an activity, the Minister must give

written notice of the decision to the operator.

(2) The notice must set out:

(a) the name of the operator; and

(b) the nature of the activity; and

(d) any other conditions imposed under section 13AF at the time

of the grant; and

(e) any other matters relating to the approval that the Minister

considers appropriate.

Schedule 1 Implementation of Measure 4 (2004)

Part 1 Safety approvals

8 Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011

Notice of refusal

(3) If the Minister refuses to grant a non-State operator a safety

approval under section 13AC, the Minister must give the person

written notice of the decision and the reasons for the decision.

Division 3--Conditions of safety approvals

13AE Mandatory conditions

If the Minister grants a non-State operator a safety approval under

section 13AC in relation to an activity, the following conditions are

imposed on the approval:

(a) a condition that the operator must have an appropriate

contingency plan, and sufficient arrangements, for health and

safety, search and rescue, and medical care and evacuation in

relation to the activity;

(b) a condition that the operator must have adequate insurance,

or other arrangements, that will cover any costs associated

with search and rescue, and medical care and evacuation, in

relation to the activity.

13AF Imposition, variation and revocation of conditions

(1) Subject to subsection (5), the Minister may at any time:

(a) impose conditions, or additional conditions, on a safety

approval; or

(b) vary or revoke conditions imposed on a safety approval

(other than the conditions imposed under section 13AE).

(2) The Minister's power under subsection (1) may be exercised:

(a) on the Minister's own initiative; or

(b) at the request of the holder of a safety approval.

Request that condition be imposed etc.

(3) The holder of a safety approval may request the Minister to impose

a condition on, or to vary or revoke a condition imposed on, the

approval.

(4) The request must be made in writing and set out the reasons for the

making of the request.

Implementation of Measure 4 (2004) Schedule 1

Safety approvals Part 1

Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011 9

(5) If a request is made under subsection (3), the Minister must not

impose a condition on, or vary or revoke a condition imposed on,

the safety approval unless the Minister is satisfied that the reasons

set out in the request justify the imposition, variation or revocation.

Notice of decision etc.

(6) If the Minister imposes a condition on, or varies or revokes a

condition imposed on, a safety approval after it is granted:

(a) the Minister must give the holder of the approval written

notice of the imposition, variation or revocation; and

(b) the imposition, variation or revocation takes effect on the day

specified in the notice (which must be at least 5 days after the

day on which the notice is given).

(7)

If:

(a) the holder of a safety approval makes a request under

subsection (3); and

(b) the Minister refuses to comply with the request;

the Minister must give the holder written notice of the decision and

the reasons for the decision.

Division 4--Variation, suspension and revocation of safety

approvals

13AG Variation of safety approval

Variation on Minister's own initiative

(1) The Minister may, on the Minister's own initiative, vary a safety

approval if the Minister is satisfied that it is necessary to do so.

Request for variation

(2) The holder of a safety approval may request the Minister to vary

the approval.

(3) The request must be made in writing and set out the reasons for the

making of the request.

Schedule 1 Implementation of Measure 4 (2004)

Part 1 Safety approvals

10 Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011

(4) If a request is made under subsection (2), the Minister may vary

the safety approval if the Minister is satisfied that the reasons set

out in the request justify the variation.

Notice of decision etc.

(5) If a safety approval is varied under subsection (1) or (4):

(a) the Minister must give the holder of the approval written

notice of the variation; and

(b) the variation takes effect on the day specified in the notice

(which must be at least 5 days after the day on which the

notice is given).

(6)

If:

(a) the holder of a safety approval makes a request under

subsection (2); and

(b) the Minister refuses to comply with the request;

the Minister must give the holder written notice of the decision and

the reasons for the decision.

13AH Suspension or revocation of safety approval

(1) The Minister may, by written notice given to the holder of a safety

approval, suspend or revoke the approval if:

(a) the Minister is satisfied that a condition imposed on the

approval has not been, or is not being, complied with; or

(b) the Minister considers the suspension or revocation is

appropriate in all the circumstances.

When suspension or revocation takes effect

(2) If a safety approval is suspended or revoked under subsection (1),

the suspension or revocation takes effect on the day specified in the

notice (which must be at least 5 days after the day on which the

notice is given).

Period of suspension etc.

(3) If a safety approval is suspended under subsection (1), the notice

must specify the period of suspension (which must not be longer

than 90 days after the day on which the suspension takes effect).

Implementation of Measure 4 (2004) Schedule 1

Safety approvals Part 1

Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011 11

(4)

If:

(a) a safety approval in relation to an activity is suspended under

subsection (1); and

(b) proceedings relating to either of the following are started

while the approval is suspended:

(i) an offence against this Act that relates to the carrying on

of the activity;

(ii) a contravention of a civil penalty provision that relates

to the carrying on of the activity;

then, despite subsection (3), the period of suspension continues

until the proceedings (including any appeal) are completed.

(5) The suspension of a safety approval does not prevent its

revocation.

Division 6--Miscellaneous

13AK Register

(1) The Minister must cause to be kept a register of safety approvals

granted under this Act.

(2) The register must include the following information about a safety

approval:

(a) the name of the holder of the approval;

(b) the nature of the activity to which the approval relates;

(d) any other information prescribed by the regulations.

(3) The register must be kept in electronic form.

(4) The regulations may make provision for, or in relation to, the

13AL Monitoring of activity

The regulations may provide for the monitoring of an activity in

relation to which a safety approval has been granted.

4 After subsection 28(1A)

Insert:

Schedule 1 Implementation of Measure 4 (2004)

Part 1 Safety approvals

12 Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011

(1B) Applications may be made to the Administrative Appeals Tribunal

for review of the following decisions of the Minister:

(a) a decision under subsection 13AC(1) to refuse to grant a

safety approval;

(b) a decision under paragraph 13AF(1)(a) to impose, or to

refuse to impose, conditions on a safety approval;

to refuse to vary or revoke, conditions imposed on a safety

approval;

(d) a decision under subsection 13AG(1) to vary a safety

approval;

(e) a decision under subsection 13AG(4) to refuse to vary a

safety approval;

(f) a decision under subsection 13AH(1) to suspend or revoke a

safety approval.

5 After paragraph 29(2)(ac)

Insert:

(ad)

providing

for:

(i) the payment of a fee in the amount, or at the rate, fixed

by or calculated under the regulations in respect of the

processing of an application for a safety approval, or the

grant of the approval; and

(ii) the refund of the fee; and

Implementation of Measure 4 (2004) Schedule 1

Other amendments Part 2

Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011 13

Part 2--Other amendments

Antarctic Treaty (Environment Protection) Act 1980

6 After subsection 9(2B)

Insert:

(2C) If a person is a non-State operator, the Minister must not grant the

person a permit authorising an activity unless the person holds a

safety approval in relation to the activity.

7 Section 13AA (before the last paragraph)

Insert:

A person must not carry on an activity in the Antarctic unless the

non-State operator who organises the activity holds a safety

approval. The conditions imposed on the approval must be

complied with.

8 After Division 4 of Part 3A

Insert:

Division 5--Offences etc. relating to safety approvals

13AI Activity must not be carried on without safety approval

(1) A non-State operator contravenes this subsection if:

(a) the operator organises an activity to be carried on in the

Antarctic; and

(b) a person carries on the activity at a particular time; and

relation to the activity.

(2) A person contravenes this subsection if:

(a) the person carries on an activity in the Antarctic at a

particular time; and

(b) the activity was organised by a non-State operator; and

relation to the activity.

Schedule 1 Implementation of Measure 4 (2004)

Part 2 Other amendments

14 Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011

(3) Subsections (1) and (2) do not apply if:

(a) the activity is carried on in an emergency:

(i) to save a person from death or serious injury; or

(ii) to secure the safety of a ship or aircraft, or the safety of

equipment or facilities of high value; or

(iii) to protect the environment; or

(b) the non-State operator is authorised to carry on the activity

under a law of a Contracting Party.

Offence

(4) A person commits an offence if the person contravenes

subsection (1) or (2). The physical elements of the offences are set

out in those subsections.

Penalty: Imprisonment for 7 years or 420 penalty units, or both.

Note:

The defendant bears an evidential burden in relation to the matters in

subsection (3). See subsection 13.3(3) of the Criminal Code.

Civil penalty provision

(5) A person is liable to a civil penalty if the person contravenes

subsection (1) or (2).

Civil penalty:

1,000 penalty units.

Note:

It is not necessary to prove a person's state of mind in proceedings for

a contravention of a civil penalty provision, except in limited

circumstances (see section 22N).

(6) A person who wishes to rely on subsection (3) in proceedings for a

civil penalty order bears an evidential burden in relation to the

matters in that subsection.

13AJ Non-compliance with conditions

(1) A non-State operator contravenes this subsection if:

(a) the operator holds a safety approval in relation to an activity;

and

(b) a person carries on the activity; and

with.

(2) Subsection (1) does not apply if:

Implementation of Measure 4 (2004) Schedule 1

Other amendments Part 2

Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011 15

(a) the activity is carried on in an emergency:

(i) to save a person from death or serious injury; or

(ii) to secure the safety of a ship or aircraft, or the safety of

equipment or facilities of high value; or

(iii) to protect the environment; or

(b) the non-State operator is authorised to carry on the activity

under a law of a Contracting Party.

Offence

(3) A non-State operator commits an offence if the operator

contravenes subsection (1). The physical elements of the offence

are set out in that subsection.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

Note:

The defendant bears an evidential burden in relation to the matters in

subsection (2). See subsection 13.3(3) of the Criminal Code.

Civil penalty provision

(4) A non-State operator is liable to a civil penalty if the operator

contravenes subsection (1).

Civil penalty:

500 penalty units.

Note:

It is not necessary to prove a person's state of mind in proceedings for

a contravention of a civil penalty provision, except in limited

circumstances (see section 22N).

(5) A non-State operator who wishes to rely on subsection (2) in

proceedings for a civil penalty order bears an evidential burden in

relation to the matters in that subsection.

9 After subsection 17(4)

Insert:

(4A) An inspector may require any person whom he or she finds

carrying on, or whom he or she reasonably suspects of having

carried on, an activity in respect of which a non-State operator is

required to hold a safety approval to produce:

(a) the approval; or

(b) evidence of the existence and contents of the approval.

Schedule 1 Implementation of Measure 4 (2004)

Part 3 Application provisions

16 Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011

Part 3--Application provisions

10 Application--pre-commencement applications for a permit

(1)

This item applies if:

(a) an application under subsection 9(1) of the Antarctic Treaty

(Environment Protection) Act 1980 was made before the

commencement of this item; and

(b) the Minister did not make a decision on the application

before that commencement.

(2)

Subsection 9(2C) of that Act, as inserted by Part 2 of this Schedule,

applies in relation to the application.

11 Application--offences etc. relating to safety approvals

Sections 13AI and 13AJ of the Antarctic Treaty (Environment

Protection) Act 1980, as inserted by Part 2 of this Schedule, apply in

relation to an activity carried on in the Antarctic after the

commencement of this item.

Implementation of Annex VI to the Madrid Protocol Schedule 2

Environmental protection approvals Part 1

Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011 17

Schedule 2--Implementation of Annex VI to

the Madrid Protocol

Part 1--Environmental protection approvals

Antarctic Treaty (Environment Protection) Act 1980

1 Subsection 3(1)

Insert:

environmental emergency means an event that results in, or

imminently threatens to result in, any significant and harmful

impact on the Antarctic environment.

2 Subsection 3(1)

Insert:

environmental protection approval means an environmental

protection approval granted under section 13BC.

3 Subsection 3(1) (definition of Madrid Protocol)

Omit all the words after "4 October 1991", substitute:

and to which:

(a) in accordance with Recommendation XVI-10 adopted by the

XVIth Antarctic Treaty Consultative Meeting at Bonn on

18 October 1991, the Annex attached to that

Recommendation has been added as Annex V to the

Protocol; and

(b) in accordance with Measure 1 (2005) adopted by the

XXVIIIth Antarctic Treaty Consultative Meeting at

Stockholm on 17 June 2005, the Annex attached to that

Measure has been added as Annex VI to the Protocol.

4 Subsection 3(1)

Insert:

operator means a person who organises, or intends to organise, an

activity to be carried on in the Antarctic but does not include:

Schedule 2 Implementation of Annex VI to the Madrid Protocol

Part 1 Environmental protection approvals

18 Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011

(a) if the person is a Party to the Madrid Protocol--a contractor

or subcontractor acting on behalf of the person if the

contractor or subcontractor is not an individual; or

(b) otherwise--an individual who:

(i) is an employee, contractor, subcontractor or agent of the

person; or

(ii) is in the service of the person.

5 Subsection 3(1)

Insert:

reasonable preventative measures means preventative measures

which are:

(a) appropriate, practicable and proportionate; and

(b) based on the availability of objective criteria and information,

including information about:

(i) the risks to the Antarctic environment, and the rate of its

natural recovery; and

(ii) the risks to human life and safety; and

(iii) technological and economic feasibility.

6 Before Part 4

Insert:

Part 3B--Environmental protection approvals

Division 1--Introduction

13BA Simplified outline

The following is a simplified outline of this Part:

This Part deals with environmental protection approvals.

An operator may apply for an environmental protection approval in

relation to an activity (other than a mining activity) to be carried on

in the Antarctic.

Implementation of Annex VI to the Madrid Protocol Schedule 2

Environmental protection approvals Part 1

Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011 19

The Minister may grant the approval if the Minister is satisfied that

the operator meets certain requirements in relation to the activity.

Mandatory conditions relating to those requirements are imposed

on all environmental protection approvals and those conditions

cannot be varied or revoked. The Minister may also impose further

conditions on an environmental protection approval, and may vary

or revoke those conditions.

If the Minister is satisfied that it is necessary to do so, the Minister

may vary an environmental protection approval on his or her own

initiative or at the request of the holder of the approval.

The Minister may suspend or revoke an environmental protection

approval if the Minister is satisfied that there has been

non-compliance with the conditions imposed on the approval or

that the suspension or revocation is appropriate in all the

circumstances.

The Minister must cause a register of environmental protection

approvals to be kept.

Division 2--Obtaining an environmental protection

approval

13BB Application for environmental protection approval

(1) An operator may apply to the Minister for an environmental

protection approval in relation to an activity (other than a mining

activity) that is to be carried on in the Antarctic.

(2) The application must be in the form approved, in writing, by the

Minister.

Request for further information

(3) The Minister may, by written notice, request the applicant to give

the Minister, within the period specified in the notice, further

information in relation to the application.

(4)

If:

(a) a request is made under subsection (3); and

Schedule 2 Implementation of Annex VI to the Madrid Protocol

Part 1 Environmental protection approvals

20 Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011

(b) the applicant does not give the requested information within

the period specified in the notice;

the Minister may refuse to grant the environmental protection

approval under section 13BC.

Withdrawal of application

(5) An applicant may, by written notice given to the Minister,

withdraw the application at any time before the Minister makes a

decision on the application.

13BC Grant of environmental protection approval

(1) If an operator applies for an environmental protection approval

under section 13BB in relation to an activity, the Minister may

grant the approval.

(2) The Minister must not grant the approval unless the Minister is

satisfied that:

(a) the operator has undertaken or will undertake reasonable

preventative measures designed to reduce:

(i) the risk of environmental emergencies arising from the

activity; and

(ii) the potential adverse impact of environmental

emergencies arising from the activity; and

(b) the operator has an appropriate contingency plan for

responding to incidents with potential adverse impact on the

Antarctic environment, or dependent and associated

eco-systems, that arise from the activity; and

security, that is referred to in Articles 11(1) and (2) of Annex

VI to the Madrid Protocol up to the limits referred to in those

Articles.

13BD Notice of decision

Notice of grant

(1) If the Minister grants an operator an environmental protection

approval under section 13BC in relation to an activity, the Minister

must give written notice of the decision to the operator.

Implementation of Annex VI to the Madrid Protocol Schedule 2

Environmental protection approvals Part 1

Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011 21

(2) The notice must set out:

(a) the name of the operator; and

(b) the nature of the activity; and

(d) any other conditions imposed under section 13BF at the time

of the grant; and

(e) any other matters relating to the approval that the Minister

considers appropriate.

Notice of refusal

(3) If the Minister refuses to grant an operator an environmental

protection approval under section 13BC, the Minister must give the

operator written notice of the decision and the reasons for the

decision.

Division 3--Conditions of environmental protection

approvals

13BE Mandatory conditions

If the Minister grants an operator an environmental protection

approval under section 13BC in relation to an activity, the

following conditions are imposed on the approval:

(a) a condition that the operator must undertake reasonable

preventative measures designed to reduce:

(i) the risk of environmental emergencies arising from the

activity; and

(ii) the potential adverse impact of environmental

emergencies arising from the activity;

(b) a condition that the operator must have an appropriate

contingency plan for responding to incidents with potential

adverse impact on the Antarctic environment, or dependent

and associated eco-systems, that arise from the activity;

other financial security, that is referred to in Articles 11(1)

and (2) of Annex VI to the Madrid Protocol up to the limits

referred to in those Articles.

Schedule 2 Implementation of Annex VI to the Madrid Protocol

Part 1 Environmental protection approvals

22 Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011

13BF Imposition, variation and revocation of conditions

(1) Subject to subsection (5), the Minister may at any time:

(a) impose conditions, or additional conditions, on an

environmental protection approval; or

(b) vary or revoke conditions imposed on an environmental

protection approval (other than the conditions imposed under

section 13BE).

(2) The Minister's power under subsection (1) may be exercised:

(a) on the Minister's own initiative; or

(b) at the request of the holder of an environmental protection

approval.

Request that condition be imposed etc.

(3) The holder of an environmental protection approval may request

the Minister to impose a condition on, or to vary or revoke a

condition imposed on, the approval.

(4) The request must be made in writing and set out the reasons for the

making of the request.

(5) If a request is made under subsection (3), the Minister must not

impose a condition on, or vary or revoke a condition imposed on,

the environmental protection approval unless the Minister is

satisfied that the reasons set out in the request justify the

imposition, variation or revocation.

Notice of decision etc.

(6) If the Minister imposes a condition on, or varies or revokes a

condition imposed on, an environmental protection approval after

it is granted:

(a) the Minister must give the holder of the approval written

notice of the imposition, variation or revocation; and

(b) the imposition, variation or revocation takes effect on the day

specified in the notice (which must be at least 5 days after the

day on which the notice is given).

(7)

If:

(a) the holder of an environmental protection approval makes a

request under subsection (3); and

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Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011 23

(b) the Minister refuses to comply with the request;

the Minister must give the holder written notice of the decision and

the reasons for the decision.

Division 4--Variation, suspension and revocation of

environmental protection approvals

13BG Variation of environmental protection approval

Variation on the Minister's own initiative

(1) The Minister may, on the Minister's own initiative, vary an

environmental protection approval if the Minister is satisfied that it

is necessary to do so.

Request for variation

(2) The holder of an environmental protection approval may request

the Minister to vary the approval.

(3) The request must be made in writing and set out the reasons for the

making of the request.

(4) If a request is made under subsection (2), the Minister may vary

the environmental protection approval if the Minister is satisfied

that the reasons set out in the request justify the variation.

Notice of decision etc.

(5) If an environmental protection approval is varied under

subsection (1) or (4):

(a) the Minister must give the holder of the approval written

notice of the variation; and

(b) the variation takes effect on the day specified in the notice

(which must be at least 5 days after the day on which the

notice is given).

(6)

If:

(a) the holder of an environmental protection approval makes a

request under subsection (2); and

(b) the Minister refuses to comply with the request;

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24 Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011

the Minister must give the holder written notice of the decision and

the reasons for the decision.

13BH Suspension or revocation of environmental protection

approval

(1) The Minister may, by written notice given to the holder of an

environmental protection approval, suspend or revoke the approval

if:

(a) the Minister is satisfied that a condition imposed on the

approval has not been, or is not being, complied with; or

(b) the Minister considers the suspension or revocation is

appropriate in all the circumstances.

When suspension or revocation takes effect

(2) If an environmental protection approval is suspended or revoked

under subsection (1), the suspension or revocation takes effect on a

day specified in the notice (which must be at least 5 days after the

day on which the notice is given).

Period of suspension etc.

(3) If an environmental protection approval is suspended under

subsection (1), the notice must specify the period of suspension

(which must not be longer than 90 days after the day on which the

suspension takes effect).

(4)

If:

(a) an environmental protection approval in relation to an

activity is suspended under subsection (1); and

(b) proceedings relating to either of the following are started

while the approval is suspended:

(i) an offence against this Act that relates to the carrying on

of the activity;

(ii) a contravention of a civil penalty provision that relates

to the carrying on of the activity;

then, despite subsection (3), the period of suspension continues

until the proceedings (including any appeal) are completed.

(5) The suspension of an environmental protection approval does not

prevent its revocation.

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Division 6--Miscellaneous

13BK Register

(1) The Minister must cause to be kept a register of environmental

protection approvals granted under this Part.

(2) The register must include the following information about an

environmental protection approval:

(a) the name of the holder of the approval;

(b) the nature of the activity to which the approval relates;

(d) any other information prescribed by the regulations.

(3) The register must be kept in electronic form.

(4) The regulations may make provision for, or in relation to, the

13BL Monitoring of activity

The regulations may provide for the monitoring of an activity in

relation to which an environmental protection approval has been

granted.

7 Before subsection 28(2)

Insert:

(1C) Applications may be made to the Administrative Appeals Tribunal

for review of the following decisions of the Minister:

(a) a decision under subsection 13BC(1) to refuse to grant an

environmental protection approval;

(b) a decision under paragraph 13BF(1)(a) to impose, or to

refuse to impose, conditions on an environmental protection

approval;

to refuse to vary or revoke, conditions imposed on an

environmental protection approval;

(d) a decision under subsection 13BG(1) to vary an

environmental protection approval;

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26 Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011

(e) a decision under subsection 13BG(4) to refuse to vary an

environmental protection approval;

(f) a decision under subsection 13BH(1) to suspend or revoke an

environmental protection approval.

8 Before paragraph 29(2)(b)

Insert:

(ae)

providing

for:

(i) the payment of a fee in the amount, or at the rate, fixed

by or calculated under the regulations in respect of the

processing of an application for an environmental

protection approval, or the grant of the approval; and

(ii) the refund of the fee; and

9 At the end of Schedule 3

Add:

ANNEX VI TO THE PROTOCOL ON ENVIRONMENTAL

PROTECTION TO THE ANTARCTIC TREATY

LIABILITY ARISING FROM ENVIRONMENTAL EMERGENCIES

Preamble

The Parties,

Recognising the importance of preventing, minimising and containing the

impact of environmental emergencies on the Antarctic environment and

dependent and associated ecosystems;

Recalling Article 3 of the Protocol, in particular that activities shall be planned

and conducted in the Antarctic Treaty area so as to accord priority to scientific

research and to preserve the value of Antarctica as an area for the conduct of

such research;

Recalling the obligation in Article 15 of the Protocol to provide for prompt and

effective response action to environmental emergencies, and to establish

contingency plans for response to incidents with potential adverse effects on the

Antarctic environment or dependent and associated ecosystems;

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Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011 27

Recalling Article 16 of the Protocol under which the Parties to the Protocol

undertook consistent with the objectives of the Protocol for the comprehensive

protection of the Antarctic environment and dependent and associated

ecosystems to elaborate, in one or more Annexes to the Protocol, rules and

procedures relating to liability for damage arising from activities taking place in

the Antarctic Treaty area and covered by the Protocol;

Noting further Decision 3 (2001) of the XXIVth Antarctic Treaty Consultative

Meeting regarding the elaboration of an Annex on the liability aspects of

environmental emergencies, as a step in the establishment of a liability regime

in accordance with Article 16 of the Protocol;

Having regard to Article IV of the Antarctic Treaty and Article 8 of the

Protocol;

Have agreed as follows:

Article 1

Scope

This Annex shall apply to environmental emergencies in the Antarctic Treaty

area which relate to scientific research programmes, tourism and all other

governmental and nongovernmental activities in the Antarctic Treaty area for

which advance notice is required under Article VII(5) of the Antarctic Treaty,

including associated logistic support activities.

Measures and plans for

preventing and responding to such emergencies are also included in this

Annex. It shall apply to all tourist vessels that enter the Antarctic Treaty

area. It shall also apply to environmental emergencies in the Antarctic

Treaty area which relate to other vessels and activities as may be decided in

accordance with Article 13.

Article 2

Definitions

For the purposes of this Annex:

(a)

"Decision" means a Decision adopted pursuant to the Rules of

Procedure of Antarctic Treaty Consultative Meetings and referred to in Decision

1 (1995) of the XIXth Antarctic Treaty Consultative Meeting;

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(b)

"Environmental emergency" means any accidental event that has

occurred, having taken place after the entry into force of this Annex, and that

results in, or imminently threatens to result in, any significant and harmful

impact on the Antarctic environment;

(c)

"Operator" means any natural or juridical person, whether

governmental or nongovernmental, which organises activities to be carried out

in the Antarctic Treaty area. An operator does not include a natural person who

is an employee, contractor, subcontractor, or agent of, or who is in the service

of, a natural or juridical person, whether governmental or non-governmental,

which organises activities to be carried out in the Antarctic Treaty area, and

does not include a juridical person that is a contractor or subcontractor acting on

behalf of a State operator;

(d)

"Operator of the Party" means an operator that organises, in that Party's

territory, activities to be carried out in the Antarctic Treaty area, and:

(i)

those activities are subject to authorisation by that Party for the

Antarctic Treaty area; or

(ii)

in the case of a Party which does not formally authorise

activities for the Antarctic Treaty area, those activities are subject to a

comparable regulatory process by that Party.

The terms "its operator", "Party of the operator", and "Party of that operator"

shall be interpreted in accordance with this definition;

(e)

"Reasonable", as applied to preventative measures and response action,

means measures or actions which are appropriate, practicable, proportionate and

based on the availability of objective criteria and information, including:

(i)

risks to the Antarctic environment, and the rate of its natural

recovery;

(ii)

risks to human life and safety; and

(iii)

technological and economic feasibility;

(f)

"Response action" means reasonable measures taken after an

environmental emergency has occurred to avoid, minimise or contain the impact

of that environmental emergency, which to that end may include clean-up in

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appropriate circumstances, and includes determining the extent of that

emergency and its impact;

(g)

"The Parties" means the States for which this Annex has become

effective in accordance with Article 9 of the Protocol.

Article 3

Preventative Measures

Each Party shall require its operators to undertake reasonable

preventative measures that are designed to reduce the risk of environmental

emergencies and their potential adverse impact.

Preventative measures may include:

(a)

specialised structures or equipment incorporated into the

design and construction of facilities and means of transportation;

(b)

specialised procedures incorporated into the operation or

maintenance of facilities and means of transportation; and

(c)

specialised training of personnel.

Article 4

Contingency Plans

Each Party shall require its operators to:

(a)

establish contingency plans for responses to incidents with

potential adverse impacts on the Antarctic environment or dependent

and associated ecosystems; and

(b)

co-operate in the formulation and implementation of such

contingency plans.

Contingency plans shall include, when appropriate, the following

components:

(a)

procedures for conducting an assessment of the nature of the

incident;

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(b) notification

procedures;

(c)

identification and mobilisation of resources;

(d) response

plans;

(e) training;

(f)

record keeping; and

(g) demobilisation.

Each Party shall establish and implement procedures for immediate

notification of, and co-operative responses to, environmental emergencies, and

shall promote the use of

notification procedures and co-operative response

procedures by its operators that cause environmental emergencies.

Article 5

Response Action

Each Party shall require each of its operators to take prompt and

effective response action to environmental emergencies arising from the

activities of that operator.

In the event that an operator does not take prompt and effective

response action, the Party of that operator and other Parties are encouraged to

take such action, including through their agents and operators specifically

authorised by them to take such action on their behalf.

(a)

Other Parties wishing to take response action to an

environmental emergency pursuant to paragraph 2 above shall notify

their intention to the Party of the operator and the Secretariat of the

Antarctic Treaty beforehand with a view to the Party of the operator

taking response action itself, except where a threat of significant and

harmful impact to the Antarctic environment is imminent and it would

be reasonable in all the circumstances to take immediate response

action, in which case they shall notify the Party of the operator and the

Secretariat of the Antarctic Treaty as soon as possible.

(b)

Such other Parties shall not take response action to an

environmental emergency pursuant to paragraph 2 above, unless a

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threat of significant and harmful impact to the Antarctic environment is

imminent and it would be reasonable in all the circumstances to take

immediate response action, or the Party of the operator has failed within

a reasonable time to notify the Secretariat of the Antarctic Treaty that it

will take the response action itself, or where that response action has

not been taken within a reasonable time after such notification.

(c)

In the case that the Party of the operator takes response action

itself, but is willing to be assisted by another Party or Parties, the Party

of the operator shall coordinate the response action.

However, where it is unclear which, if any, Party is the Party of the

operator or it appears that there may be more than one such Party, any Party

taking response action shall make best endeavours to consult as appropriate and

shall, where practicable, notify the Secretariat of the Antarctic Treaty of the

circumstances.

Parties taking response action shall consult and coordinate their action

with all other Parties taking response action, carrying out activities in the

vicinity of the environmental emergency, or otherwise impacted by the

environmental emergency, and shall, where practicable, take into account all

relevant expert guidance which has been provided by permanent observer

delegations to the Antarctic Treaty Consultative Meeting, by other

organisations, or by other relevant experts.

Article 6

Liability

An operator that fails to take prompt and effective response action to

environmental emergencies arising from its activities shall be liable to pay the

costs of response action taken by Parties pursuant to Article 5(2) to such Parties.

(a)

When a State operator should have taken prompt and effective

response action but did not, and no response action was taken by any

Party, the State operator shall be liable to pay the costs of the response

action which should have been undertaken, into the fund referred to in

Article 12.

(b)

When a non-State operator should have taken prompt and

effective response action but did not, and no response action was taken

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by any Party, the non-State operator shall be liable to pay an amount of

money that reflects as much as possible the costs of the response action

that should have been taken. Such money is to be paid directly to the

fund referred to in Article 12, to the Party of that operator or to the

Party that enforces the mechanism referred to in Article 7(3). A Party

receiving such money shall make best efforts to make a contribution to

the fund referred to in Article 12 which at least equals the money

received from the operator.

Liability shall be strict.

When an environmental emergency arises from the activities of two or

more operators, they shall be jointly and severally liable, except that an operator

which establishes that only part of the environmental emergency results from its

activities shall be liable in respect of that part only.

Notwithstanding that a Party is liable under this Article for its failure to

provide for prompt and effective response action to environmental emergencies

caused by its warships, naval auxiliaries, or other ships or aircraft owned or

operated by it and used, for the time being, only on government

non-commercial service, nothing in this Annex is intended to affect the

sovereign immunity under international law of such warships, naval auxiliaries,

or other ships or aircraft.

Article 7

Actions

Only a Party that has taken response action pursuant to Article 5(2) may

bring an action against a non-State operator for liability pursuant to Article 6(1)

and such action may be brought in the courts of not more than one Party where

the operator is incorporated or has its principal place of business or his or her

habitual place of residence. However, should the operator not be incorporated in

a Party or have its principal place of business or his or her habitual place of

residence in a Party, the action may be brought in the courts of the Party of the

operator within the meaning of Article 2(d). Such actions for compensation

shall be brought within three years of the commencement of the response action

or within three years of the date on which the Party bringing the action knew or

ought reasonably to have known the identity of the operator, whichever is later.

In no event shall an action against a non-State operator be commenced later

than 15 years after the commencement of the response action.

Implementation of Annex VI to the Madrid Protocol Schedule 2

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Each Party shall ensure that its courts possess the necessary jurisdiction

to entertain actions under paragraph 1 above.

Each Party shall ensure that there is a mechanism in place under its

domestic law for the enforcement of Article 6(2)(b) with respect to any of its

non-State operators within the meaning of Article 2(d), as well as where

possible with respect to any non-State operator that is incorporated or has its

principal place of business or his or her habitual place of residence in that Party.

Each Party shall inform all other Parties of this mechanism in accordance with

Article 13(3) of the Protocol. Where there are multiple Parties that are capable

of enforcing Article 6(2)(b) against any given non-State operator under this

paragraph, such Parties should consult amongst themselves as to which Party

should take enforcement action. The mechanism referred to in this paragraph

shall not be invoked later than 15 years after the date the Party seeking to

invoke the mechanism became aware of the environmental emergency.

The liability of a Party as a State operator under Article 6(1) shall be

resolved only in accordance with any enquiry procedure which may be

established by the Parties, the provisions of Articles 18, 19 and 20 of the

Protocol and, as applicable, the Schedule to the Protocol on Arbitration.

(a)

The liability of a Party as a State operator under Article 6(2)(a)

shall be resolved only by the Antarctic Treaty Consultative Meeting

and, should the question remain unresolved, only in accordance with

any enquiry procedure which may be established by the Parties, the

provisions of Articles 18, 19 and 20 of the Protocol and, as applicable,

the Schedule to the Protocol on Arbitration.

(b)

The costs of the response action which should have been

undertaken and was not, to be paid by a State operator into the fund

referred to in Article 12, shall be approved by means of a Decision. The

Antarctic Treaty Consultative Meeting should seek the advice of the

Committee on Environmental Protection as appropriate.

Under this Annex, the provisions of Articles 19(4), 19(5), and 20(1) of

the Protocol, and, as applicable, the Schedule to the Protocol on Arbitration, are

only applicable to liability of a Party as a State operator for compensation for

response action that has been undertaken to an environmental emergency or for

payment into the fund.

Article 8

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34 Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011

Exemptions from Liability

An operator shall not be liable pursuant to Article 6 if it proves that the

environmental emergency was caused by:

(a)

an act or omission necessary to protect human life or safety;

(b)

an event constituting in the circumstances of Antarctica a

natural disaster of an exceptional character, which could not have been

reasonably foreseen, either generally or in the particular case, provided

all reasonable preventative measures have been taken that are designed

to reduce the risk of environmental emergencies and their potential

adverse impact;

(c)

an act of terrorism; or

(d)

an act of belligerency against the activities of the operator.

A Party, or its agents or operators specifically authorised by it to take

such action on its behalf, shall not be liable for an environmental emergency

resulting from response action taken by it pursuant to Article 5(2) to the extent

that such response action was reasonable in all the circumstances.

Article 9

Limits of Liability

The maximum amount for which each operator may be liable under

Article 6(1) or Article 6(2), in respect of each environmental emergency, shall

be as follows:

(a)

for an environmental emergency arising from an event

involving a ship:

(i)

one million SDR for a ship with a tonnage not

exceeding 2,000 tons;

(ii)

for a ship with a tonnage in excess thereof, the

following amount in addition to that referred to in (i) above:

for each ton from 2,001 to 30,000 tons, 400

SDR;

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for each ton from 30,001 to 70,000 tons, 300

SDR; and

for each ton in excess of 70,000 tons, 200

SDR;

(b)

for an environmental emergency arising from an event which

does not involve a ship, three million SDR.

(a)

Notwithstanding paragraph 1(a) above, this Annex shall not

affect:

(i)

the liability or right to limit liability under any

applicable international limitation of liability treaty; or

(ii)

the application of a reservation made under any such

treaty to exclude the application of the limits therein for certain

claims;

provided that the applicable limits are at least as high as the following:

for a ship with a tonnage not exceeding 2,000 tons, one million SDR;

and for a ship with a tonnage in excess thereof, in addition, for a ship

with a tonnage between 2,001 and 30,000 tons, 400 SDR for each ton;

for a ship with a tonnage from 30,001 to 70,000 tons, 300 SDR for each

ton; and for each ton in excess of 70,000 tons, 200 SDR for each ton.

(b)

Nothing in subparagraph (a) above shall affect either the limits

of liability set out in paragraph 1(a) above that apply to a Party as a

State operator, or the rights and obligations of Parties that are not

parties to any such treaty as mentioned above, or the application of

Article 7(1) and Article 7(2).

Liability shall not be limited if it is proved that the environmental

emergency resulted from an act or omission of the operator, committed with the

intent to cause such emergency, or recklessly and with knowledge that such

emergency would probably result.

The Antarctic Treaty Consultative Meeting shall review the limits in

paragraphs 1(a) and 1(b) above every three years, or sooner at the request of any

Party. Any amendments to these limits, which shall be determined after

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consultation amongst the Parties and on the basis of advice including scientific

and technical advice, shall be made under the procedure set out in Article 13(2).

For the purpose of this Article:

(a)

"ship" means a vessel of any type whatsoever operating in the

marine environment and includes hydrofoil boats, air-cushion vehicles,

submersibles, floating craft and fixed or floating platforms;

(b)

"SDR" means the Special Drawing Rights as defined by the

International Monetary Fund;

(c)

a ship's tonnage shall be the gross tonnage calculated in

accordance with the tonnage measurement rules contained in Annex I of

the International Convention on Tonnage Measurement of Ships, 1969.

Article 10

State Liability

A Party shall not be liable for the failure of an operator, other than its State

operators, to take response action to the extent that that Party took appropriate

measures within its competence, including the adoption of laws and regulations,

administrative actions and enforcement measures, to ensure compliance with

this Annex.

Article 11

Insurance and Other Financial Security

Each Party shall require its operators to maintain adequate insurance or

other financial security, such as the guarantee of a bank or similar financial

institution, to cover liability under Article 6(1) up to the applicable limits set out

in Article 9(1) and Article 9(2).

Each Party may require its operators to maintain adequate insurance or

other financial security, such as the guarantee of a bank or similar financial

institution, to cover liability under Article 6(2) up to the applicable limits set out

in Article 9(1) and Article 9(2).

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Notwithstanding paragraphs 1 and 2 above, a Party may maintain

self-insurance in respect of its State operators, including those carrying out

activities in the furtherance of scientific research.

Article 12

The Fund

The Secretariat of the Antarctic Treaty shall maintain and administer a

fund, in accordance with Decisions including terms of reference to be adopted

by the Parties, to provide, inter alia, for the reimbursement of the reasonable

and justified costs incurred by a Party or Parties in taking response action

pursuant to Article 5(2).

Any Party or Parties may make a proposal to the Antarctic Treaty

Consultative Meeting for reimbursement to be paid from the fund. Such a

proposal may be approved by the Antarctic Treaty Consultative Meeting, in

which case it shall be approved by way of a Decision. The Antarctic Treaty

Consultative Meeting may seek the advice of the Committee of Environmental

Protection on such a proposal, as appropriate.

Special circumstances and criteria, such as: the fact that the responsible

operator was an operator of the Party seeking reimbursement; the identity of the

responsible operator remaining unknown or not subject to the provisions of this

Annex; the unforeseen failure of the relevant insurance company or financial

institution; or an exemption in Article 8 applying, shall be duly taken into

account by the Antarctic Treaty Consultative Meeting under paragraph 2 above.

Any State or person may make voluntary contributions to the fund.

Article 13

Amendment or Modification

This Annex may be amended or modified by a Measure adopted in

accordance with Article IX(1) of the Antarctic Treaty.

In the case of a Measure pursuant to Article 9(4), and in any other case

unless the Measure in question specifies otherwise, the amendment or

modification shall be deemed to have been approved, and shall become

effective, one year after the close of the Antarctic Treaty Consultative Meeting

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at which it was adopted, unless one or more Antarctic Treaty Consultative

Parties notifies the Depositary, within that time period, that it wishes any

extension of that period or that it is unable to approve the Measure.

Any amendment or modification of this Annex which becomes

effective in accordance with paragraph 1 or 2 above shall thereafter become

effective as to any other Party when notice of approval by it has been received

by the Depositary.

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Part 2--Environmental emergencies etc.

Antarctic Treaty (Environment Protection) Act 1980

10 Subsection 3(1)

Insert:

Account means the Antarctic Environmental Liability Special

Account established under section 13CJ.

11 Subsection 3(1)

Insert:

authorised officer means a person appointed under section 3A as

an authorised officer for the purposes of a provision of this Act.

12 Subsection 3(1)

Insert:

costs order means an order under subsection 13CF(1) or 13CG(1).

13 Subsection 3(1)

Insert:

engage in conduct means:

(a) do an act; or

(b) omit to perform an act.

14 Subsection 3(1)

Insert:

reasonable measures means measures which are:

(a) appropriate, practicable and proportionate; and

(b) based on the availability of objective criteria and information,

including information about:

(i) the risks to the Antarctic environment, and the rate of its

natural recovery; and

(ii) the risks to human life and safety; and

(iii) technological and economic feasibility.

Schedule 2 Implementation of Annex VI to the Madrid Protocol

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15 Subsection 3(1)

Insert:

response action means reasonable measures taken after an

environmental emergency has occurred to avoid, minimise or

contain the impact of the emergency and includes:

(a) cleaning up in appropriate circumstances; and

(b) determining the extent and impact of the emergency.

16 After section 3

Insert:

3A Minister may appoint authorised officers

(1) The Minister may, in writing, appoint a person:

(a) who is an SES employee, or acting SES employee, in the

Department; or

(b) who is an APS employee who holds or performs the duties of

an Executive Level 2 position, or an equivalent position, in

the Department;

as an authorised officer for the purposes of a provision of this Act.

Note:

SES employee and acting SES employee are defined in section 2B of

the Acts Interpretation Act 1901.

(2) A copy of the instrument of appointment must be published in the

Gazette.

17 Before subsection 9(3)

Insert:

(2D) If a person is an operator, the Minister must not grant the person a

permit authorising an activity unless the person holds an

environmental protection approval in relation to the activity.

18 Section 13BA (before the last paragraph)

Insert:

A person must not carry on an activity in the Antarctic unless the

operator who organises the activity holds an environmental

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Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011 41

protection approval. The conditions imposed on the approval must

be complied with.

19 Paragraph 13BC(2)(c)

Repeal the paragraph, substitute:

financial security, in respect of an amount the operator would

be required to pay if a costs order were made in relation to an

environmental emergency arising from the activity; and

(d) the amount for which the operator is indemnified under that

insurance, or other financial security, is or will be at least

equal to the amount prescribed for the purpose of

subparagraph 13CF(2)(b)(ii).

20 Paragraph 13BE(c)

Repeal the paragraph, substitute:

or other financial security, in respect of an amount the

operator would be required to pay if a costs order were made

in relation to an environmental emergency arising from the

activity;

(d) a condition that the amount for which the operator is

indemnified under that insurance, or other financial security,

is at least equal to the amount prescribed for the purpose of

subparagraph 13CF(2)(b)(ii).

21 After Division 4 of Part 3B

Insert:

Division 5--Offences etc. relating to environmental

protection approvals

13BI Activity must not be carried on without environmental

protection approval

(1) An operator contravenes this subsection if:

(a) the operator organises an activity to be carried on in the

Antarctic; and

(b) a person carries on the activity at a particular time; and

Schedule 2 Implementation of Annex VI to the Madrid Protocol

Part 2 Environmental emergencies etc.

42 Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011

protection approval in relation to the activity.

(2) A person contravenes this subsection if:

(a) the person carries on an activity in the Antarctic at a

particular time; and

(b) the activity was organised by an operator; and

protection approval in relation to the activity.

(3) Subsections (1) and (2) do not apply if:

(a) the activity is carried on in an emergency:

(i) to save a person from death or serious injury; or

(ii) to secure the safety of a ship or aircraft, or the safety of

equipment or facilities of high value; or

(iii) to protect the environment; or

(b) the operator is authorised to carry on the activity under a law

of a Contracting Party; or

to the operator under subsection 13CD(1).

Offence

(4) A person commits an offence if the person contravenes

subsection (1) or (2). The physical elements of the offence are set

out in that subsection.

Penalty: Imprisonment for 7 years or 420 penalty units, or both.

Note:

A defendant bears an evidential burden in relation to the matters in

subsection (3). See subsection 13.3(3) of the Criminal Code.

Civil penalty provision

(5) A person is liable to a civil penalty if the person contravenes

subsection (1) or (2).

Civil penalty:

1,000 penalty units.

Note:

It is not necessary to prove a person's state of mind in proceedings for

a contravention of a civil penalty provision, except in limited

circumstances (see section 22N).

Implementation of Annex VI to the Madrid Protocol Schedule 2

Environmental emergencies etc. Part 2

Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011 43

(6) A person who wishes to rely on subsection (3) in proceedings for a

civil penalty order bears an evidential burden in relation to the

matters in that subsection.

13BJ Non-compliance with conditions

(1) An operator contravenes this subsection if:

(a) the operator holds an environmental protection approval in

relation to an activity; and

(b) a person carries on the activity; and

with.

(2) Subsection (1) does not apply if:

(a) the activity is carried on in an emergency:

(i) to save a person from death or serious injury; or

(ii) to secure the safety of a ship or aircraft, or the safety of

equipment or facilities of high value; or

(iii) to protect the environment; or

(b) the operator is authorised to carry on the activity under a law

of a Contracting Party; or

to the operator under subsection 13CD(1).

Offence

(3) An operator commits an offence if the operator contravenes

subsection (1). The physical elements of the offence are set out in

that subsection.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

Note:

A defendant bears an evidential burden in relation to the matters in

subsection (2). See subsection 13.3(3) of the Criminal Code.

Civil penalty provision

(4) An operator is liable to a civil penalty if the operator contravenes

subsection (1).

Civil penalty:

500 penalty units.

Schedule 2 Implementation of Annex VI to the Madrid Protocol

Part 2 Environmental emergencies etc.

44 Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011

Note:

It is not necessary to prove a person's state of mind in proceedings for

a contravention of a civil penalty provision, except in limited

circumstances (see section 22N).

(5) An operator who wishes to rely on subsection (2) in proceedings

for a civil penalty order bears an evidential burden in relation to the

matters in that subsection.

22 After Part 3B

Insert:

Part 3C--Environmental emergencies

Division 1--Introduction

13CA Simplified outline

The following is a simplified outline of this Part:

This Part deals with environmental emergencies in the Antarctic.

If an environmental emergency is caused by an activity carried on

by a person in the Antarctic, the operator who organised the

activity must immediately notify the Minister, or an authorised

officer, of the emergency.

The operator must also ensure that prompt and effective response

action is taken in relation to the emergency.

The Minister may give the operator a direction in relation to the

emergency. The operator must comply with the direction.

If the operator does not take prompt and effective response action

in relation to the emergency, a Court may in certain circumstances

make a costs order against the operator.

This Part also establishes the Antarctic Environmental Liability

Special Account and deals with other miscellaneous matters.

Implementation of Annex VI to the Madrid Protocol Schedule 2

Environmental emergencies etc. Part 2

Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011 45

Division 2--Obligations of operators in relation to

environmental emergencies

13CB Notification of an environmental emergency

(1) An operator contravenes this subsection if:

(a) the operator organises an activity to be carried on in the

Antarctic; and

(b) a person carries on the activity; and

(d) the operator does not immediately notify the Minister, or an

authorised officer, of the emergency.

(2) Subsection (1) does not apply if the operator has already notified a

Party to the Madrid Protocol of the environmental emergency.

Offence

(3) An operator commits an offence if the operator contravenes

subsection (1). The physical elements of the offence are set out in

that subsection.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (2). See subsection 13.3(3) of the Criminal Code.

Civil penalty provision

(4) An operator is liable to a civil penalty if the operator contravenes

subsection (1).

Civil penalty:

500 penalty units.

Note:

It is not necessary to prove a person's state of mind in proceedings for

a contravention of a civil penalty provision, except in limited

circumstances (see section 22N).

(5) An operator who wishes to rely on subsection (2) in proceedings

for a civil penalty order bears an evidential burden in relation to the

matter in that subsection.

Schedule 2 Implementation of Annex VI to the Madrid Protocol

Part 2 Environmental emergencies etc.

46 Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011

13CC Operator must ensure that prompt and effective response

action is taken

(1) An operator contravenes this subsection if:

(a) the operator organises an activity to be carried on in the

Antarctic; and

(b) a person carries on the activity; and

(d) the operator does not ensure that prompt and effective

response action is taken in relation to the emergency.

(2) Subsection (1) does not apply if the environmental emergency was

caused by:

(a) an act or omission necessary to protect human life or safety;

(b) an event constituting in the circumstances of the Antarctic a

natural disaster of an exceptional character if:

(i) the event could not have been reasonably foreseen,

either generally or in the particular case; and

(ii) all reasonable preventative measures designed to reduce

the risk of environmental emergencies, and their

potential adverse impact, were taken by the operator; or

(d) an act of belligerency against the activities organised by the

operator.

Offence

(3) An operator commits an offence if the operator contravenes

subsection (1). The physical elements of the offence are set out in

that subsection.

Penalty: Imprisonment for 7 years or 420 penalty units, or both.

Note:

A defendant bears an evidential burden in relation to the matters in

subsection (2). See subsection 13.3(3) of the Criminal Code.

Civil penalty provision

(4) An operator is liable to a civil penalty if the operator contravenes

subsection (1).

Civil penalty:

1,000 penalty units.

Implementation of Annex VI to the Madrid Protocol Schedule 2

Environmental emergencies etc. Part 2

Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011 47

Note:

It is not necessary to prove a person's state of mind in proceedings for

a contravention of a civil penalty provision, except in limited

circumstances (see section 22N).

(5) An operator who wishes to rely on subsection (2) in proceedings

for a civil penalty order bears an evidential burden in relation to the

matters in that subsection.

Division 3--Ministerial directions

13CD Directions in relation to an environmental emergency

(1)

If:

(a) a person carries on an activity in the Antarctic; and

(b) the activity gives rise to an environmental emergency;

the Minister may give the operator who organised the activity a

written direction in relation to the emergency.

(2) If an operator is given a direction under subsection (1), the operator

must comply with the direction.

Note:

See section 13CE for non-compliance with a direction.

(3) Neither the Minister nor the Commonwealth is liable to any action

or proceeding, whether civil or criminal, for or in relation to an act

done, or omitted to be done, by the operator in compliance, or

purported compliance, with the direction.

(4) A direction given under subsection (1) is not a legislative

instrument.

13CE Non-compliance with direction

(1) An operator contravenes this subsection if:

(a) the operator is given a direction under subsection 13CD(1);

and

(b) the operator engages in conduct; and

(2) Subsection (1) does not apply if the operator engages in the

conduct in an emergency:

(a) to save a person from death or serious injury; or

Schedule 2 Implementation of Annex VI to the Madrid Protocol

Part 2 Environmental emergencies etc.

48 Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011

(b) to secure the safety of a ship or aircraft, or the safety of

equipment or facilities of high value; or

Offence

(3) An operator commits an offence if the operator contravenes

subsection (1). The physical elements of the offence are set out in

that subsection.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

Note:

A defendant bears an evidential burden in relation to the matters in

subsection (2). See subsection 13.3(3) of the Criminal Code.

Civil penalty provision

(4) An operator is liable to a civil penalty if the operator contravenes

subsection (1).

Civil penalty:

500 penalty units.

Note:

It is not necessary to prove a person's state of mind in proceedings for

a contravention of a civil penalty provision, except in limited

circumstances (see section 22N).

(5) An operator who wishes to rely on subsection (2) in proceedings

for a civil penalty order bears an evidential burden in relation to the

matters in that subsection.

Division 4--Costs orders

13CF Costs order--response action taken by Party to Madrid

Protocol

(1)

If:

(a) an activity is carried on in the Antarctic; and

(b) the activity gives rise to an environmental emergency; and

(i) is not a Party to the Madrid Protocol; and

(ii) does not take prompt and effective response action in

relation to the emergency; and

Implementation of Annex VI to the Madrid Protocol Schedule 2

Environmental emergencies etc. Part 2

Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011 49

(d) a Party to the Protocol takes response action under Article

5(2) of Annex VI to the Protocol (whether directly or through

an agent or other person authorised by the Party);

a Court may, on application, order the operator to pay an amount to

the Party.

Limit on amount payable

(2) The amount must not exceed:

(a) if the environmental emergency resulted from an act or

omission of the operator that was done with the intention of

causing the emergency, or recklessly and with the knowledge

that the emergency would probably result--the costs incurred

by the Party in taking the response action; or

(b) otherwise--the lower of the following:

(i) the costs incurred by the Party in taking the response

action;

(ii) the amount prescribed by the regulations.

Exception

(3) The Court must not make an order under subsection (1) if the

environmental emergency was caused by:

(a) an act or omission necessary to protect human life or safety;

(b) an event constituting in the circumstances of the Antarctic a

natural disaster of an exceptional character if:

(i) the event could not have been reasonably foreseen,

either generally or in the particular case; and

(ii) all reasonable preventative measures designed to reduce

the risk of environmental emergencies, and their

potential adverse impact, were taken by the operator; or

(d) an act of belligerency against the activities organised by the

operator.

Application for order

(4) An application for an order under subsection (1) may be made by:

(a) if the Party is Australia--the Minister; or

Schedule 2 Implementation of Annex VI to the Madrid Protocol

Part 2 Environmental emergencies etc.

50 Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011

(b) if the Party is another Party to the Madrid Protocol--that

Party.

(5) An application for an order under subsection (1) must be made

within whichever of the following periods ends later:

(a) the period of 3 years beginning on the day on which the

response action begins;

(b) the period of 3 years beginning on the day on which the Party

knew, or ought reasonably to have known, the identity of the

operator.

(6) Despite paragraph (5)(b), the application must not be made more

than 15 years after the day on which the response action begins.

13CG Costs order--no response action taken by any person

(1)

If:

(a) an activity is carried on in the Antarctic; and

(b) the activity gives rise to an environmental emergency; and

(i) is not a Party to the Madrid Protocol; and

(ii) does not take prompt and effective response action in

relation to the emergency; and

(d) no Party to the Protocol takes response action under Article

5(2) of Annex VI to the Protocol (whether directly or through

an agent or other person authorised by the Party);

a Court may, on application by the Minister, order the operator to

pay an amount to the Commonwealth.

Limit on amount payable

(2) The amount must not exceed:

(a) if the environmental emergency resulted from an act or

omission of the operator that was done with the intention of

causing the emergency, or recklessly and with the knowledge

that the emergency would probably result--the costs of the

response action that should have been taken; or

(b) otherwise--the lower of the following:

(i) the costs of the response action that should have been

taken;

(ii) the amount prescribed by the regulations.

Implementation of Annex VI to the Madrid Protocol Schedule 2

Environmental emergencies etc. Part 2

Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011 51

Exception

(3) The Court must not make an order under subsection (1) if the

operator proves that the environmental emergency was caused by:

(a) an act or omission necessary to protect human life or safety;

(b) an event constituting in the circumstances of the Antarctic a

natural disaster of an exceptional character if:

(i) the event could not have been reasonably foreseen,

either generally or in the particular case; and

(ii) all reasonable preventative measures designed to reduce

the risk of environmental emergencies, and their

potential adverse impact, were taken by the operator; or

(d) an act of belligerency against the activities organised by the

operator.

Application for order

(4) The application must be made within the period of 15 years

beginning on the day on which the Commonwealth became aware

of the environmental emergency.

13CH Enforcement of costs order

(1) This section applies if a costs order is made that an operator pay an

amount to either of the following (the plaintiff):

(a) a Party to the Madrid Protocol;

(b)

the

Commonwealth.

(2) The amount is taken to be a civil debt payable by the operator to

the plaintiff.

(3) The plaintiff may enforce the order as if it were an order made in

civil proceedings against the operator to recover a debt due by the

operator to the plaintiff.

(4) The debt arising from the order is taken to be a judgement debt.

Schedule 2 Implementation of Annex VI to the Madrid Protocol

Part 2 Environmental emergencies etc.

52 Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011

13CI Joint and several liability

(1) If an environmental emergency arises from an activity or activities

carried on in the Antarctic that were organised by 2 or more

operators, the operators are jointly and severally liable in relation

to the emergency.

(2) Despite subsection (1), an operator is not jointly and severally

liable in relation to any part of the environmental emergency that

did not result from an activity or activities organised by the

operator.

Division 5--Special Account

13CJ Name of Account

(1) The Antarctic Environmental Liability Special Account is

established by this section.

(2) The Account is a Special Account for the purposes of the Financial

Management and Accountability Act 1997.

13CK Credits to the Account

There must be credited to the Account amounts equal to the

following:

(a) amounts paid to the Commonwealth under a costs order;

(b) voluntary payments made by a person to the Commonwealth

for the purposes of the Account;

of the Account.

Note:

An Appropriation Act may contain a provision to the effect that, if any

of the purposes of a Special Account is a purpose that is covered by an

item in the Appropriation Act (whether or not the item expressly refers

to the Special Account), then amounts may be debited against the

appropriation for that item and credited to that Special Account.

13CL Purposes of the Account

The purposes of the Account are as follows:

(a) making payments to the fund referred to in Article 12 of

Annex VI to the Madrid Protocol;

Implementation of Annex VI to the Madrid Protocol Schedule 2

Environmental emergencies etc. Part 2

Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011 53

(b) paying or discharging the costs, expenses and other

obligations incurred by the Commonwealth in taking

response action under Article 5(2) of that Annex (whether

directly or through an agent or other person authorised by the

Commonwealth);

Note:

See section 21 of the Financial Management and Accountability Act

1997 (debits from Special Accounts).

Division 6--Miscellaneous

13CM Payment to fund

If the Commonwealth is required or permitted to make a payment

to the fund referred to in Article 12 of Annex VI to the Madrid

Protocol, the Minister must cause the payment to be made in a

timely manner.

23 Before subsection 17(5)

Insert:

(4B) An inspector may require any person whom he or she finds

carrying on, or whom he or she reasonably suspects of having

carried on, an activity in respect of which an operator is required to

hold an environmental protection approval to produce:

(a) the approval; or

(b) evidence of the existence and contents of the approval.

24 After paragraph 19(3)(c)

Insert:

(ca) the action in question was done in compliance with a

direction given to the person under subsection 13CD(1); or

25 At the end of subsection 19(3)

Add:

Note:

A defendant bears an evidential burden in relation to the matters in

subsection (3). See subsection 13.3(3) of the Criminal Code.

26 At the end of section 19AA

Add:

Schedule 2 Implementation of Annex VI to the Madrid Protocol

Part 2 Environmental emergencies etc.

54 Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011

(3) Subsections (1) and (2) do not apply in relation to an action if it is

done in compliance with a direction given to the person under

subsection 13CD(1).

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (3). See subsection 13.3(3) of the Criminal Code.

27 Subsection 20(2)

Repeal the subsection, substitute:

(2) Subsection (1) does not apply in relation to conduct if the conduct

is engaged in by the person in compliance with a direction given to

the person under subsection 13CD(1).

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (2). See subsection 13.3(3) of the Criminal Code.

28 Subsections 21(2), 21AA(5) and 21AB(4)

Repeal the subsections.

29 At the end of subsection 21A(4) (before the note)

Add:

; or (c) the activity was carried on in compliance with a direction

given to the person under subsection 13CD(1).

30 At the end of section 27

Add:

; or (e) the power under section 13CD to give a direction; or

(f) the power under section 13CF or 13CG to apply for a costs

order.

Schedule 2 Implementation of Annex VI to the Madrid Protocol

Part 4 Application and savings provisions

56 Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011

Part 4--Application and savings provisions

32 Definitions

In this Part:

commencement means the commencement of this item.

Principal Act means the Antarctic Treaty (Environment Protection) Act

1980.

33 Application--pre-commencement applications for a permit

(1)

This item applies if:

(a) an application under subsection 9(1) of the Principal Act was

made before commencement; and

(b) the Minister did not make a decision on the application

before commencement.

(2)

Subsection 9(2D) of that Act, as inserted by Part 2 of this Schedule,

applies in relation to the application.

34 Application--offences etc. relating to environmental

protection approvals

Sections 13BI and 13BJ of the Principal Act, as inserted by Part 2 of

this Schedule, apply in relation to an activity carried on in the Antarctic

after commencement.

35 Application--provisions relating to environmental

emergencies

Sections 13CB, 13CC and 13CD of the Principal Act, as inserted by

Part 2 of this Schedule, apply in relation to an activity carried on in the

Antarctic that causes or gives rise to an environmental emergency if the

activity is carried on after commencement.

36 Application--costs orders

Sections 13CF and 13CG of the Principal Act, as inserted by Part 2 of

this Schedule, apply in relation to an activity carried on in the Antarctic

that gives rise to an environmental emergency if the activity is carried

on after commencement.

37 Saving of designation etc. as an authorised officer

Implementation of Annex VI to the Madrid Protocol Schedule 2

Application and savings provisions Part 4

Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011 57

(1)

This item applies if:

(a) before commencement, a person was designated or

authorised as an authorised officer under subsection 21(2),

21AA(5) or 21AB(4) of the Principal Act; and

(b) the designation or authorisation had not ended immediately

before commencement.

(2)

After commencement, the designation or authorisation continues in

force as if it were an appointment made under section 3A of that Act, as

inserted by Part 2 of this Schedule.

Schedule 3 Implementation of Measure 15 (2009)

58 Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011

Schedule 3--Implementation of Measure 15

(2009)

Antarctic Treaty (Environment Protection) Act 1980

1 Subsection 3(1)

Insert:

guide, in relation to the passengers of a vessel, means a person:

(a) who, in the opinion of the person (the organiser) who

organises the vessel to take the passengers to the Antarctic,

has relevant expertise in relation to the Antarctic; and

(b) who is engaged by the organiser to be a guide in relation to

the passengers.

2 Subsection 3(1)

Insert:

passenger, of a vessel, does not include:

(a) a person employed or engaged in any capacity on board the

vessel on the business of the vessel; or

(b)

guide.

3 After Part 2

Insert:

Part 2A--Vessels

12AA Simplified outline

The following is a simplified outline of this Part:

This Part is about vessels that carry passengers to the Antarctic.

The limits set out in this Part apply if the vessels are organised to

carry the passengers by a person who is not a Contracting Party to

the Treaty.

Implementation of Measure 15 (2009) Schedule 3

Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011 59

12AB Prohibition on passengers disembarking from certain vessels

(1) A person contravenes this subsection if:

(a) the person is not a Contracting Party to the Treaty; and

(b) the person organises a vessel to carry passengers to the

Antarctic; and

disembark (whether or not from the first vessel or another

vessel) onto land within the Antarctic; and

(d) immediately before any passengers disembark from the first

vessel, that vessel is carrying more than the number of

passengers prescribed by the regulations.

(2) Subsection (1) does not apply if the passengers disembark in an

emergency:

(a) to save a person from death or serious injury; or

(b) to secure the safety of a ship or aircraft, or the safety of

equipment or facilities of high value; or

Offence

(3) A person commits an offence if the person contravenes

subsection (1). The physical elements of the offence are set out in

that subsection.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

Note:

A defendant bears an evidential burden in relation to the matters in

subsection (2). See subsection 13.3(3) of the Criminal Code.

Civil penalty provision

(4) A person is liable to a civil penalty if the person contravenes

subsection (1).

Civil penalty:

1,000 penalty units.

Note:

It is not necessary to prove a person's state of mind in proceedings for

a contravention of a civil penalty provision, except in limited

circumstances (see section 22N).

(5) A person who wishes to rely on subsection (2) in proceedings for a

civil penalty order bears an evidential burden in relation to the

matters in that subsection.

Schedule 3 Implementation of Measure 15 (2009)

60 Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011

12AC Limit on the number of passengers that disembark from

vessels

(1) A person contravenes this subsection if:

(a) the person is not a Contracting Party to the Treaty; and

(b) the person organises a vessel to carry passengers to the

Antarctic; and

not from that vessel or another vessel) onto land within the

Antarctic; and

(d) at a particular time, the number of passengers on land within

the Antarctic is higher than the number of passengers

prescribed by the regulations.

(2) Subsection (1) does not apply if the passengers disembark in an

emergency:

(a) to save a person from death or serious injury; or

(b) to secure the safety of a ship or aircraft, or the safety of

equipment or facilities of high value; or

Offence

(3) A person commits an offence if the person contravenes

subsection (1). The physical elements of the offence are set out in

that subsection.

Penalty: Imprisonment for 12 months or 60 penalty units, or both.

Note:

A defendant bears an evidential burden in relation to the matters in

subsection (2). See subsection 13.3(3) of the Criminal Code.

Civil penalty provision

(4) A person is liable to a civil penalty if the person contravenes

subsection (1).

Civil penalty:

500 penalty units.

Note:

It is not necessary to prove a person's state of mind in proceedings for

a contravention of a civil penalty provision, except in limited

circumstances (see section 22N).

Implementation of Measure 15 (2009) Schedule 3

Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011 61

(5) A person who wishes to rely on subsection (2) in proceedings for a

civil penalty order bears an evidential burden in relation to the

matters in that subsection.

12AD Requirement relating to the number of guides in relation to

disembarked passengers

(1) A person contravenes this subsection if:

(a) the person is not a Contracting Party to the Treaty; and

(b) the person organises a vessel to carry passengers to the

Antarctic; and

not from that vessel or another vessel) onto land within the

Antarctic; and

(d) at a particular time, the number worked out by dividing the

number of guides, in relation to the passengers, who are on

the land by the number of passengers who are on the land is

less than the number prescribed by the regulations.

(2) Subsection (1) does not apply if the passengers disembark in an

emergency:

(a) to save a person from death or serious injury; or

(b) to secure the safety of a ship or aircraft, or the safety of

equipment or facilities of high value; or

Offence

(3) A person commits an offence if the person contravenes

subsection (1). The physical elements of the offence are set out in

that subsection.

Penalty: Imprisonment for 12 months or 60 penalty units, or both.

Note:

A defendant bears an evidential burden in relation to the matters in

subsection (2). See subsection 13.3(3) of the Criminal Code.

Civil penalty provision

(4) A person is liable to a civil penalty if the person contravenes

subsection (1).

Civil penalty:

500 penalty units.

Schedule 3 Implementation of Measure 15 (2009)

62 Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011

Note:

It is not necessary to prove a person's state of mind in proceedings for

a contravention of a civil penalty provision, except in limited

circumstances (see section 22N).

(5) A person who wishes to rely on subsection (2) in proceedings for a

civil penalty order bears an evidential burden in relation to the

matters in that subsection.

12AE Requirement to coordinate

(1) A person (the first person) contravenes this subsection if:

(a) the first person is not a Contracting Party to the Treaty; and

(b) the first person organises a vessel to carry passengers to the

Antarctic; and

(i) who are not Contracting Parties to the Treaty; and

(ii) who organise vessels to carry passengers to the

Antarctic;

with the objective that no more than one vessel is at a landing

site in the Antarctic at the same time.

(2) Subsection (1) does not apply if the first person fails to coordinate

with those other persons in an emergency:

(a) to save a person from death or serious injury; or

(b) to secure the safety of a ship or aircraft, or the safety of

equipment or facilities of high value; or

Offence

(3) A person commits an offence if the person contravenes

subsection (1). The physical elements of the offence are set out in

that subsection.

Penalty: Imprisonment for 12 months or 60 penalty units, or both.

Note:

A defendant bears an evidential burden in relation to the matters in

subsection (2). See subsection 13.3(3) of the Criminal Code.

Civil penalty provision

(4) A person is liable to a civil penalty if the person contravenes

subsection (1).

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64 Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011

Schedule 4--Amendments commencing on

the day after Royal Assent

Antarctic Treaty (Environment Protection) Act 1980

1 Title

Repeal the title, substitute:

An Act relating to the Antarctic and the protection

and conservation of the environment of the

Antarctic, and for related purposes

2 Preamble

After "a party to the", insert "Antarctic Treaty and the".

3 Preamble

Omit "that Protocol", substitute "that Treaty and Protocol".

4 Subsection 3(1)

Insert:

civil penalty order has the meaning given by subsection 22(4).

5 Subsection 3(1)

Insert:

civil penalty provision: a provision of this Act is a civil penalty

provision if:

(a) the provision sets out at its foot a pecuniary penalty, or

penalties, indicated by the words "Civil penalty"; and

(b) the provision is a subsection, or a section that is not divided

into subsections.

6 Subsection 3(1)

Insert:

Court means:

(a) the Federal Court of Australia; or

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Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011 65

(b) the Federal Magistrates Court; or

(d) a District, County or Local Court of a State or Territory; or

(e) a Magistrates Court of a State or Territory.

7 Subsection 3(1)

Insert:

evidential burden, in relation to a matter, means the burden of

adducing or pointing to evidence that suggests a reasonable

possibility that the matter exists or does not exist.

8 Subsection 3(1)

Insert:

penalty unit has the meaning given by section 4AA of the Crimes

Act 1914.

9 Section 6

Repeal the section, substitute:

6 Crown to be bound

(1) This Act binds the Crown in each of its capacities.

(2) This Act does not make the Crown liable to a pecuniary penalty or

to be prosecuted for an offence.

10 After section 6A

Insert:

6B Contravening offence and civil penalty provisions

(1) This section applies if a provision of this Act declares that a person

contravening another provision of this Act (the conduct rule

provision):

(a) commits an offence; or

(b) is liable for a civil penalty.

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66 Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011

(2) For the purposes of this Act, the person is taken to contravene the

offence or the civil penalty provision (as the case requires) if the

person contravenes the conduct rule provision.

11 Paragraph 17(1)(b)

After "evidence as to", insert "the contravention of a civil penalty

provision or".

12 After paragraph 17(4)(a)

Insert:

(aa) require any person whom he or she finds contravening, or

whom he or she reasonably suspects of having contravened, a

civil penalty provision to state his or her full name and usual

place of residence; and

13 Subsection 17(6)

Omit "in pursuance of subsection (4)", substitute "under this section".

14 Subsection 18(1)

After "involved in", insert "the contravention of a civil penalty

provision or".

15 Subsection 18(1)

Omit all the words after "and may", substitute:

retain the article:

(a) if proceedings for:

(i) an offence against this Act in the commission of which

it may have been involved; or

(ii) a contravention of a civil penalty provision in the

contravention of which it may have been involved;

are commenced within 60 days after it is seized--until the

proceedings (including any appeal) are completed; or

(b) otherwise--for up to 60 days.

16 Part 5 (heading)

Repeal the heading, substitute:

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Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011 67

Part 5--Offences relating to the environment etc.

17 After Part 5

Insert:

Part 5A--Civil penalty provisions

Division 1--Obtaining a civil penalty order

22 Civil penalty orders

Application for order

(1) The Minister may apply to a Court for an order that a person, who

is alleged to have contravened a civil penalty provision, pay the

Commonwealth a pecuniary penalty.

(2) The Minister must make the application within 6 years of the

alleged contravention.

Court may order person to pay pecuniary penalty

(3) If the Court is satisfied that the person has contravened the civil

penalty provision, the Court may order the person to pay to the

Commonwealth such pecuniary penalty for the contravention as the

Court determines to be appropriate.

Note:

Subsection (5) sets out the maximum penalty that the Court may order

the person to pay.

(4) An order under subsection (3) is a civil penalty order.

Determining pecuniary penalty

(5) The pecuniary penalty must not be more than:

(a) if the person is a body corporate--5 times the pecuniary

penalty specified for the civil penalty provision; and

(b) otherwise--the pecuniary penalty specified for the civil

penalty provision.

(6) In determining the pecuniary penalty, the Court must take into

account all relevant matters, including:

(a) the nature and extent of the contravention; and

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68 Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011

(b) the nature and extent of any loss or damage suffered because

of the contravention; and

(d) whether the person has previously been found by a court to

have engaged in any similar conduct.

22A Civil enforcement of penalty

(1) A pecuniary penalty is a debt payable to the Commonwealth.

(2) The Commonwealth may enforce a civil penalty order as if it were

an order made in civil proceedings against the person to recover a

debt due by the person. The debt arising from the order is taken to

be a judgement debt.

22B Conduct contravening more than one civil penalty provision

(1) If conduct constitutes a contravention of 2 or more civil penalty

provisions, proceedings may be instituted under this Part against a

person in relation to the contravention of any one or more of those

provisions.

(2) However, the person is not liable to more than one pecuniary

penalty under this Part in relation to the same conduct.

22C Multiple contraventions

(1) A Court may make a single civil penalty order against a person for

multiple contraventions of a civil penalty provision if proceedings

for the contraventions are founded on the same facts, or if the

contraventions form, or are part of, a series of contraventions of the

same or a similar character.

(2) However, the penalty must not exceed the sum of the maximum

penalties that could be ordered if a separate penalty were ordered

for each of the contraventions.

22D Proceedings may be heard together

A Court may direct that 2 or more proceedings for civil penalty

orders are to be heard together.

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Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011 69

22E Civil evidence and procedure rules for civil penalty orders

A Court must apply the rules of evidence and procedure for civil

matters when hearing proceedings for a civil penalty order.

22F Contravening a civil penalty provision is not an offence

A contravention of a civil penalty provision is not an offence.

Division 2--Civil proceedings and criminal proceedings

22G Civil proceedings after criminal proceedings

A Court may not make a civil penalty order against a person for a

contravention of a civil penalty provision if the person has been

convicted of an offence constituted by conduct that is the same, or

substantially the same, as the conduct constituting the

contravention.

22H Criminal proceedings during civil proceedings

(1) Proceedings for a civil penalty order against a person for a

contravention of a civil penalty provision are stayed if:

(a) criminal proceedings are commenced or have already been

commenced against the person for an offence; and

(b) the offence is constituted by conduct that is the same, or

substantially the same, as the conduct alleged to constitute

the contravention.

(2) The proceedings for the order (the civil proceedings) may be

resumed if the person is not convicted of the offence. Otherwise:

(a) the civil proceedings are dismissed; and

(b) costs must not be awarded in relation to the civil proceedings.

22J Criminal proceedings after civil proceedings

Criminal proceedings may be commenced against a person for

conduct that is the same, or substantially the same, as conduct that

would constitute a contravention of a civil penalty provision

regardless of whether a civil penalty order has been made against

the person in relation to the contravention.

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70 Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011

22K Evidence given in civil proceedings not admissible in criminal

proceedings

(1) Evidence of information given, or evidence of production of

documents by an individual, is not admissible in criminal

proceedings against the individual if:

(a) the individual previously gave the evidence or produced the

documents in proceedings for a civil penalty order against the

individual for an alleged contravention of a civil penalty

provision (whether or not the order was made); and

(b) the conduct alleged to constitute the offence is the same, or

substantially the same, as the conduct alleged to constitute

the contravention.

(2) However, subsection (1) does not apply to criminal proceedings in

relation to the falsity of the evidence given by the individual in the

proceedings for the civil penalty order.

Division 3--Miscellaneous

22L Ancillary contravention of civil penalty provisions

(1) A person must not:

(a) attempt to contravene a civil penalty provision; or

(b) aid, abet, counsel or procure a contravention of a civil

penalty provision; or

a civil penalty provision; or

(d) be in any way, directly or indirectly, knowingly concerned in,

or party to, a contravention of a civil penalty provision; or

(e) conspire with others to effect a contravention of a civil

penalty provision.

Note:

Section 22N (which provides that a person's state of mind does not

need to be proven in relation to a civil penalty provision) does not

apply to subsection (1) of this section.

Civil penalty

(2) A person who contravenes subsection (1) in relation to a civil

penalty provision is taken to have contravened the provision.

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Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011 71

22M Mistake of fact

(1) A person is not liable to have a civil penalty order made against the

person for a contravention of a civil penalty provision if:

(a) at or before the time of the conduct constituting the

contravention, the person:

(i) considered whether or not facts existed; and

(ii) was under a mistaken but reasonable belief about those

facts; and

(b) had those facts existed, the conduct would not have

constituted a contravention of the civil penalty provision.

(2) For the purposes of subsection (1), a person may be regarded as

having considered whether or not facts existed if:

(a) the person had considered, on a previous occasion, whether

those facts existed in the circumstances surrounding that

occasion; and

(b) the person honestly and reasonably believed that the

circumstances surrounding the present occasion were the

same, or substantially the same, as those surrounding the

previous occasion.

(3) A person who wishes to rely on subsection (1) or (2) in

proceedings for a civil penalty order bears an evidential burden in

relation to the matters in that subsection.

22N State of mind

(1) In proceedings for a civil penalty order against a person for a

contravention of a civil penalty provision (other than subsection

22L(1)), it is not necessary to prove:

(a) the person's intention; or

(b) the person's knowledge; or

(d) the person's negligence; or

(e) any other state of mind of the person.

(2) Subsection (1) does not affect the operation of section 22M (which

is about mistake of fact).

18 At the end of section 27

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72 Antarctic Treaty (Environment Protection) Amendment Bill 2011 No. , 2011

Add:

; or (d) the power under section 22 to apply for a civil penalty order.

19 At the end of paragraphs 29(2)(a) and (ab)

Add "and".

20 After paragraph 29(2)(ab)

Insert:

(ac) providing for the refund of a fee referred to in paragraph (ab);

and

21 At the end of paragraphs 29(2)(b) to (i)

Add "and".

22 After subsection 29(2)

Insert:

(2A) A fee under subsection (2) must not be such as to amount to

taxation.

Commonwealth of Australia Bills

ANTARCTIC TREATY (ENVIRONMENT PROTECTION) AMENDMENT BILL 2011