Commonwealth Numbered Acts

ENVIRONMENT PROTECTION (SEA DUMPING) AMENDMENT ACT 1993 No. 16 of 1994 - SCHEDULE 4

ADDITION OF NEW SCHEDULE
                             SCHEDULE 4                       Section 4

PROTOCOL FOR THE PREVENTION OF POLLUTION OF THE
SOUTH PACIFIC REGION BY DUMPING THE PARTIES TO THE PROTOCOL, BEING PARTIES to
the Convention for the Protection of the Natural Resources and Environment of
the South Pacific Region, adopted in Noumea, New Caledonia on the
twenty-fourth day of November in the year one thousand nine hundred and
eighty-six; RECOGNIZING the danger posed to the marine environment by
pollution caused by the dumping of waste or other matter; CONSIDERING that
they have a common interest to protect the South Pacific Region from this
danger, taking into account the unique environmental quality of the region;
DESIRING to enter into a regional agreement consistent with the Convention on
the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972
as provided in article VIII thereof according to which the Contracting Parties
to that Convention have undertaken to endeavour to act consistently with the
objectives and provisions of such regional agreement; HAVE AGREED AS FOLLOWS:
Article 1
DEFINITIONS For the purpose of this Protocol "Convention" means the Convention
for the Protection of the Natural Resources and Environment of the South
Pacific Region adopted in Noumea, New Caledonia on the twenty-fourth day of
November in the year one thousand nine hundred and eighty-six.
Article 2
GEOGRAPHICAL COVERAGE The area to which this Protocol applies, hereinafter
referred to as the "Protocol Area", shall be the Convention Area as defined in
article 2 of the Convention together with the continental shelf of a Party
where it extends, in accordance with international law, outward beyond the
Convention Area.
Article 3
GENERAL OBLIGATIONS
1. The parties shall take all appropriate measures to prevent, reduce and
control pollution in the Protocol Area by dumping.
2. Dumping within the territorial sea and the exclusive economic zone or onto
the continental shelf of a Party as defined in international law shall not be
carried out without the express prior approval of that Party, which has the
right to permit, regulate and control such dumping taking fully into account
the provisions of this Protocol, and after due consideration of the matter
with other Parties which by reason of their geographical situation may be
adversely affected thereby.
3. National laws, regulations and measures adopted by the Parties shall be no
less effective in preventing, reducing and controlling pollution by dumping
than the relevant internationally recognised rules and procedures relating to
the control of dumping established within the framework of the Convention on
the Prevention of Marine Pollution by Dumping of Wastes and Other Matter,
1972.
Article 4
PROHIBITED SUBSTANCES
1. The dumping in the Protocol Area of wastes or other matter listed in Annex
I to this Protocol is prohibited except as provided in this Protocol.
2. No provision of this Protocol is to be interpreted as preventing a Party
from prohibiting, insofar as that Party is concerned, the dumping of wastes or
other matter not mentioned in Annex I. That Party shall notify such measures
to the Organisation.
Article 5
SPECIAL PERMITS The dumping in the Protocol Area of wastes or other matter
listed in Annex II to this Protocol requires, in each case, a prior special
permit.
Article 6
GENERAL PERMITS The dumping in the Protocol Area of all wastes or other matter
not listed in Annexes I and II to this Protocol requires a prior general
permit.
Article 7
FACTORS GOVERNING THE ISSUE OF PERMITS The permits referred to in articles 5
and 6 shall be issued only after careful consideration of all the factors set
forth in Annex III to this Protocol. The Organisation shall receive records of
such permits.
Article 8
ALLOCATION OF SUBSTANCES TO ANNEXES Substances are allocated to Annexes I and
II of this Protocol in accordance with Annex IV.
Article 9
FORCE MAJEURE The provisions of articles 4, 5 and 6 shall not apply when it is
necessary to secure the safety of human life or of vessels, aircraft,
platforms or other man-made structures at sea in cases of force majeure caused
by stress of weather, or in any case which constitutes a danger to human life
or a real threat to vessels, aircraft, platforms, or other man-made structures
at sea, if dumping appears to be the only way of averting the threat and if
there is every probability that the damage consequent upon such dumping will
be less than would otherwise occur. Such dumping shall be so conducted as to
minimise the likelihood of damage to human or marine life. Such dumping shall
immediately be reported to the Organisation and, either through the
Organisation or directly, to any Party or Parties likely to be affected,
together with full details of the circumstances and of the nature and
quantities of the wastes or other matter dumped.
Article 10
EMERGENCIES
1. A Party may issue a special permit as an exception to article 4, in
emergencies arising in the Protocol Area, posing unacceptable risk relating to
human health and admitting no other feasible solution. Before doing so the
Party shall consult any other country or countries that are likely to be
affected and the Organisation which, after consulting other Parties, and
international organisations as appropriate, shall in accordance with article
15 promptly recommend to the Party the most appropriate procedures to adopt.
The Party shall follow these recommendations to the maximum extent feasible
consistent with the time within which action must be taken and with the
general obligation to avoid damage to the marine environment and shall inform
the Organisation of the action it takes. The Parties pledge themselves to
assist one another in such situations.
2. This article does not apply with respect to materials in whatever form
produced for biological and chemical warfare referred to in paragraph 6 of
Section A of Annex I.
3. Any Party may waive its rights under paragraph 1 at the time of, or
subsequent to ratification, acceptance or approval of, or accession to this
Protocol.
Article 11
ISSUANCE OF PERMITS
1. Each Party shall designate an appropriate authority or authorities to:

   (a)  issue the special permits provided for in article 5 and in the
        emergency circumstances provided for in article 10;

   (b)  issue the general permits provided for in article 6;

   (c)  keep records of the nature and quantities of the wastes or other
        matter permitted to be dumped and of the location, date and method of
        dumping; and

   (d)  monitor individually, or in collaboration with other Parties, and
        competent international organisations, the condition of the Protocol
        Area for the purposes of this Protocol.
2. The appropriate authority or authorities of each Party shall issue the
permits provided for in articles 5 and 6 and in the emergency circumstances
provided for in article 10 in respect of the wastes or other matter intended
for dumping:

   (a)  loaded in its territory or at its off-shore terminals; or

   (b)  loaded by vessels flying its flag or vessels or aircraft of its
        registry when the loading occurs in the territory or at the offshore
        terminals of a State not Party to this Protocol.
3. In issuing permits under paragraphs 1(a) and (b) the appropriate authority
or authorities shall comply with Annex III together with such additional
criteria, measures and requirements as they may consider relevant.
Article 12
IMPLEMENTATION AND ENFORCEMENT
1. Each Party shall apply the measures required to implement this Protocol to
all:

   (a)  vessels flying its flag and vessels and aircraft of its registry;

   (b)  vessels and aircraft loading in its territory or at its offshore
        terminals wastes or other matter which are to be dumped; and

   (c)  vessels, aircraft and fixed or floating platforms believed to be
        engaged in dumping in areas under its jurisdiction.
2. Each Party shall take in its territory appropriate measures to prevent and
punish conduct in contravention of the provisions of this Protocol.
3. The Parties agree to co-operate in the development of procedures for the
effective application of this Protocol particularly on the high seas,
including procedures for the reporting of vessels and aircraft observed
dumping in contravention of the Protocol.
4. This Protocol shall not apply to those vessels and aircraft entitled to
sovereign immunity under international law. However, each Party shall ensure
by the adoption of appropriate measures that such vessels and aircraft owned
or operated by it act in a manner consistent with the object and purpose of
this Protocol and shall inform the Organisation accordingly.
Article 13
ADOPTION OF OTHER MEASURES Nothing in this Protocol shall affect the right of
each Party to adopt other measures, in accordance with the principles of
international law, to prevent dumping.
Article 14
REPORTING OF DUMPING INCIDENTS Each Party undertakes to issue instructions to
its maritime inspection vessels and aircraft and to other appropriate services
to report to its authorities any incidents or conditions in the Protocol Area
which give rise to suspicions that dumping in contravention of the provisions
of this Protocol has occurred or is about to occur. That Party shall, if it
considers it appropriate, report accordingly to the Organisation and to any
other Party concerned.
Article 15
INSTITUTIONAL ARRANGEMENTS The Parties designate the Organisation to carry out
the following functions:

   (a)  to assist the Parties, upon request, in the communication of reports
        in accordance with articles 9 and 14;

   (b)  to convey to the Parties concerned all notifications received by the
        Organisation in accordance with articles 4(2) and 10;

   (c)  to transmit to the International Maritime Organization as the
        organisation responsible for the secretariat functions under the
        Convention on the Prevention of Marine Pollution by Dumping of Wastes
        and Other Matter, 1972 records and any other information received in
        accordance with article 7;

   (d)  to keep itself informed on evolving international standards and the
        results of research and investigation, and to advise meetings of
        Parties to this Protocol of such developments and any modification of
        the Annexes which may become desirable; and

   (e)  to carry out other duties assigned to it by the Parties.
Article 16
MEETING OF THE PARTIES
1. Ordinary meetings of the Parties to this Protocol shall be held in
conjunction with ordinary meetings of the Parties to the Convention held
pursuant to article 22 of the Convention. The Parties to this Protocol may
also hold extraordinary meetings in conformity with article 22 of the
Convention.
2. It shall be the function of the meetings of the Parties to this Protocol
to:

   (a)  keep under review the implementation of this Protocol, and to consider
        the efficacy of the measures adopted and the need for any other
        measures, in particular in the form of annexes;

   (b)  study and consider the records of the permits issued in accordance
        with articles 5, 6, 7 and the emergency situation in article 10, and
        of the dumping which has taken place;

   (c)  review and amend as required any Annex to this Protocol taking into
        account Annex IV:

   (d)  adopt as necessary guidelines for the preparation of records and
        procedures to be followed in submitting such records for the purposes
        of article 7;

   (e)  develop, adopt and implement in consultation with the Organisation and
        other competent international organisations procedures pursuant to
        article 10 including basic criteria for determining emergency
        circumstances and procedures for consultative advice and the safe
        disposal, storage or destruction of matter in such circumstances;

   (f)  invite, as necessary, the appropriate scientific body or bodies to
        collaborate with and to advise the Parties and the Organisation on any
        scientific or technical aspects relevant to this Protocol, including
        particularly the content and applicability of the Annexes; and

   (g)  perform such other functions as may be appropriate for the
        implementation of this Protocol.
3. The adoption of amendments to the Annexes to this Protocol pursuant to
article 25 of the Convention shall require a three fourths majority vote of
the Parties to this Protocol.
Article 17
RELATIONSHIP BETWEEN THIS PROTOCOL AND THE CONVENTION
1. The provisions of the Convention relating to any protocol shall apply with
respect to the present Protocol.
2. The rules of procedures and the financial rules adopted pursuant to article
22 of the Convention shall apply with respect to this Protocol, unless the
Parties to this Protocol agree otherwise. IN WITNESS WHEREOF the undersigned,
being duly authorised by their respective Governments, have signed this
Protocol.* DONE at Noumea, New Caledonia on the twenty-fifth day of November
in the year one thousand nine hundred and eighty-six, in a single copy in the
English and French languages, the two texts being equally authentic.

* Signatures omitted
ANNEX I
-A- The following substances and materials are listed for the purposes of
article 4 of this Protocol.
1. Organohalogen compounds.
2. Mercury and mercury compounds.
3. Cadmium and cadmium compounds.
4. Persistent plastics and other persistent synthetic materials, for example,
netting and ropes, which may remain in suspension in the sea in such a manner
as to interfere materially with fishing, navigation or other legitimate uses
of the sea.
5. Crude oil and its wastes, refined petroleum products, petroleum distillate
residues and any mixtures containing any of these taken on board for the
purpose of dumping.
6. Materials in whatever form (e.g. solids, liquids, semi-liquids, gases, or
in a living state) produced for biological and chemical warfare.
7. Organophosphorous compounds.
-B- Section A does not apply to substances, other than substances produced for
biological or chemical warfare, which are rapidly rendered harmless by
physical, chemical or biological processes in the sea provided they do not:
- make edible marine organisms unpalatable; or
- endanger human health or that of marine biota. The consultative procedure
provided for under article 10 shall be followed by a Party if there is doubt
about the harmlessness of the substance.
-C- This Annex does not apply to wastes or other materials, such as sewage
sludges and dredged spoils, containing the matters referred to in paragraphs
1-5 of Section A as trace contaminants. The dumping of such wastes shall be
subject to the provisions of Annexes II and III as appropriate.
ANNEX II The following substances and materials requiring special care are
listed for the purposes of article 5 of this Protocol.
-A- Wastes containing a significant amount of the matters listed below:
arsenic lead copper zinc
and their compounds organosilicon compounds cyanides fluorides pesticides and
their by-products not covered in Annex I.
-B- In the issue of permits for dumping of acids and alkalis, consideration
shall be given to the possible presence in such wastes of the substances
listed in section A and to the following additional substances: beryllium
chromium nickel vandium
and their compounds
-C- Containers, scrap metal and other bulky wastes liable to sink to the sea
bottom which may present a serious obstacle to fishing or navigation.
-D- Substances which, though of a non-toxic nature, may become harmful due to
the quantities in which they are dumped, or which are liable to seriously
reduce amenities.
ANNEX III Provisions to be considered in establishing criteria governing the
issue of permits for the dumping of matter at sea, taking into account article
7 of this Protocol, include:
-A- Characteristics and Composition of the Matter
1. Total amount and average composition of matter dumped (e.g. per year).
2. Form (e.g. solid, sludge, liquid, or gaseous).
3. Properties: physical (e.g. solubility and density), chemical and
biochemical (e.g. oxygen demand, nutrients) and biological (e.g. presence of
viruses, bacteria, yeasts, parasites).
4. Toxicity.
5. Persistence: physical, chemical and biological.
6. Accumulation and biotransformation in biological materials or sediments.
7. Susceptibility to physical, chemical and biochemical changes and
interaction in the aquatic environment with other dissolved organic and
inorganic materials.
8. Probability of production of taints or other changes reducing marketability
of resources (e.g. fish, shellfish, etc.).
9. In issuing a permit for dumping, Parties should consider whether an
adequate scientific basis and sufficient knowledge of the composition and
characteristics of the waste or other matter proposed for dumping exist for
assessing the impact of such material on the marine environment and human
health.
-B- Characteristics of Dumping Site and Method of Deposit
1. Location (e.g. co-ordinates of the dumping area, depth and distance from
the coast), location in relation to other areas (e.g. amenity areas, spawning,
nursery and fishing areas and exploitable resources).
2. Rate of disposal per specific period (e.g. quantity per day, per week, per
month).
3. Methods of packaging and containment, if any.
4. Initial dilution achieved by proposed method of release.
5. Dispersal characteristics (e.g. effects of currents, tides and wind on
horizontal transport and vertical mixing).
6. Water characteristics (e.g. temperature, pH, salinity, stratification,
oxygen indices of pollution-dissolved oxygen (DO), chemical oxygen demand
(COD), biochemical oxygen demand (BOD), -nitrogen present in organic and
mineral form including ammonia, suspended matter, other nutrients and
productivity).
7. Bottom characteristics (e.g. topography, geochemical and geological
characteristics and biological productivity).
8. Existence and effects of other dumpings which have been made in the dumping
area (e.g. heavy metal background reading and organic carbon content).
9. In issuing a permit for dumping, Parties should consider whether an
adequate scientific basis exists for assessing the consequences of such
dumping, as outlined in this Annex, taking into account seasonal variations.
-C- General Considerations and Conditions
1. Possible effects on amenities (e.g. presence of floating or stranded
materials, turbidity, objectionable odour, discolouration and foaming).
2. Possible effects on marine life, fish and shellfish culture, fish stocks
and fisheries, seaweed harvesting and culture.
3. Possible effects on other uses of the sea (e.g. impairment of water quality
for industrial use, underwater corrosion of structure, interference with ship
operations from floating materials, interference with fishing or navigation
through deposit of waste or solid objects on the sea floor and protection of
areas of special importance of scientific or conservation purposes).
4. The practical availability of alternative land-based methods of treatment,
disposal or elimination, or of treatment to render the matter less harmful for
dumping at sea.
-D- References Reference should also be made to "Guidelines for the
Implementation and Uniform Interpretation of Annex III" as adopted by the
Consultative Meeting of Contracting Parties to the Convention on the
Prevention of Marine Pollution by Dumping of Wastes and other Matter, 1972.
ANNEX IV
ALLOCATION OF SUBSTANCES TO ANNEXES
1. Substances are allocated to Annexes I and II on the grounds of any
combination of the following criteria: Persistence and degradability,
Bioaccumulation potential, Toxicity to marine life, Toxicity to man, domestic
animals, marine mammals and birds preying on marine organisms, Carcinogenicity
and mutagenicity, Ability to interfere with other legitimate uses of the sea.
2. Annex I substances are those which have a high degree of persistence
coupled with:
a the ability to accumulate to harmful levels in terms of toxicity to marine
organisms and their predators, to domestic animals or to man; or
b the ability to accumulate through marine pathways to levels harmful in terms
of carcinogenicity or mutagenicity to domestic animals or to man; or
c the ability to cause interference with fisheries, amenities or other
legitimate uses of the sea.
3. Annex II substances are all those considered suitable for inclusion in the
Annexes except for those allocated to Annex I.
AMENDMENTS OF THE PRINCIPAL ACT RELATING TO PENALTIES
1. Section 9D: Omit all the words after "9C", substitute "is a fine not
exceeding 500 penalty units.".
2. Paragraph 13(a): Omit all the words after "applies- ", substitute "500
penalty units; or".
3. Paragraph 13(b): Omit all the words after "applies- ", substitute "250
penalty units; or".
4. Paragraph 13(c): Omit all the words after "case- ", substitute "100 penalty
units.".
5. Paragraph 14(6)(a): Omit all the words after "subsection (2)- ", substitute
"500 penalty units; or".
6. Paragraph 14(6)(b): Omit all the words after "subsection (3)- ", substitute
"400 penalty units; or".
7. Paragraph 14(6)(c): Omit all the words after "subsection (4)- ", substitute
"250 penalty units; or".
8. Paragraph 14(6)(d): Omit all the words after "subsection (5)- ", substitute
"100 penalty units.".
9. Paragraph 17(5)(c): Omit all the words after "master- ", substitute "by
imprisonment for a term not exceeding 2 years; or".
10. Paragraphs 17(5)(d) and (e): Omit the paragraphs, substitute:

"(d) in the case of the owner-by imprisonment for a term not exceeding 2
years.".
11. Section 28 (Penalty): Omit "$100", substitute "One penalty unit".
12. Subsection 29(8): Omit "$2,000", substitute "20 penalty units".
13. Subsection 35(1): Omit all the words after "conviction,", substitute "by
imprisonment for a term not exceeding 2 years.".
14. Subsection 35(2): Omit all the words after "fine", substitute "not
exceeding 10 penalty units.".
15. Paragraph 36(a): Omit "$5,000", substitute "50 penalty units".
16. Paragraph 36(b): Omit "$50,000", substitute "500 penalty units".
17. Subsection 37(3): Omit all the words after "fine", substitute "not
exceeding 20 penalty units".
18. Subsection 37(4): Omit all the words after "impose", substitute "is
imprisonment for a term not exceeding 12 months.".
19. Paragraph 41(1)(b): Omit all the words after "exceeding", substitute "10
penalty units.".