Administrative Law legislation assignment Essay Example

  • Category:
    Law
  • Document type:
    Research Paper
  • Level:
    Undergraduate
  • Page:
    2
  • Words:
    1403

Objects of the Environment Protection (Sea Dumping) Act 1981(Cth)

The Environment Protection (Sea Dumping) Act 1981 has two main objects namely: Protection of the environment or environmental restoration and the regulation of dumping to sea activities.

Environmental Restoration

One object of the Act is to protect Australian oceanic environment from pollution. Several vessels use the Australian open seas during travels and sea operations too (Environment Protection Bill 2nd Reading). Most vessels at sea find it easy to just dispose waste in the sea with utter disregard to the aquatic life. As stated in article 2 of the Act, parties involved must protect and preserve marine environment from all kinds of pollution and also to take effective steps to stop, reduce and even eliminate pollution caused by dumping or incineration at sea.

The Act also aims to control and manage human activities in such a way that the aquatic flora and fauna will continue to maintain the legal uses of the waters and will go on to meet requirements of current and future generations(Maritime Affairs 240; McLeod
et
al 125). In doing this, the Act has set out to list the offences of going against the legislation and the penalties to that effect.

Regulation of Sea Dumping Activities

The Act clearly define the powers of the Minister in relation to granting and refusing to grant permits for sea dumping thus ensuring that dumping and artificial placements follow laid down protocols to prevent harm to marine life (Environment Protection Act 18). Permits are only issued if the minister is satisfied that such activities will not be harmful to aquatic ecosystem and human life (Environment Protection Act 19). These powers enable the minister control the number of players in sea dumping activities. In regulating these acts, the legislation also clearly defines what are to be disposed and what are not to be disposed at sea. It ensures that dumping at sea is controlled. In relation to artificial reef placements, the Act dictates where the placements are to be placed and what materials are to be used (OSPAR 2). This will see the reduction of marine pollution to very low levels thereby protecting aquatic life. An activity that goes against those laid down in the Act is considered an offence and is punishable (Brooks et. al 425). The Act states the penalties to be incurred by the culprits in such a case. This helps in regulating sea dumping and artificial placement (Sharma 59).

Ministerial Powers

MINISTERIAL POWER

18: Application for permit

The minister is conferred the authority to receive applications for the grant of permits. The applications shall conform to the form approved by the minister. Further information may be required by the minister relating to the effects to the marine environment of the damping or artificial reef placement. This requirement must be communicated to the applicant, within 60 days after the application is made

19 Granting of Permit

The minister has the discretion to grant or refuse to grant a permit. Such granting will depend on whether the material to be dumped is controlled and in Annex 1 or Annex 2. The minister cannot grant incineration at sea permits but may use his discretion if there is an emergency. In relation to artificial reef placement, permits can only be granted to harmless material. Though not defined clearly, this discretion is imposed some conditions with particular requirements the minister must adhere to in practicing this discretion.

20: Suspension and revocation of Permits.

The minister may vary, revoke or suspend a permit if its conditions are contravened or if it he deems it prudent to control such activities. The period of suspension may be indefinite and if there are proceedings related to it, the suspension may continue until the proceedings are through. Revocation or suspension takes effect on the date set on the notice.

21: Conditions in respect of permits

The minister may also impose conditions on the permit and has the power to suspend or revoke such conditions. A suspended permit has no effect and does not prevent its revocation either. Such conditions, whether for or against the permit, take effect once the holder is served with a notice stating the appropriate action.

25: Matters to be published in Gazette

The minister shall effect the Gazettement of permits’ particulars in relation to applications, granting and conditions, revocations, suspensions, cancellations and reasons for such decisions.

26: Appointment of inspectors

The minister has the power to appoint somebody to act as an inspector. This must, however, be done by writing.

34: Delegation

The minister may delegate his duties. Actions by the delegate will be considered to have been carried out by the minister. The minister can still act during such delegation.

Extrinsic Aid- Case

In trying to solve the case, the tribunal was presented with evidence from several experts in the field. Particularly there was conflicting evidence in the degradation of red lead on the paint used to pain the vessel. The experts gave conflicting views as to the question of whether the lead would be harmful to marine life. Some stated that no harm could come from the leaching lead; others were of the opinion that leaching lead from the vessel would be harmful to the marine ecosystem while other experts noted that the question of whether the harmfulness of leaching lead could not be ascertained due to uncertainties. In regards to this, the tribunal reached the conclusion that there was no evidence directly pointing towards the harmful nature of the ship’s lead based on its bioavailability (Administrative Appeals Report 12).

The toxicity of copper to marine life also saw the presentation of conflicting evidence. While some experts argued that copper which is a compound of the antifouling paint would likely to pollute marine environment others did not consider it to contain toxins likely to pollute marine environment. Some were also stated that it was not certain to determine such. As was the case in Siam Polyethylene Co Ltd v Minister of State for Home Affairs (No 2)
[2009] FCA 838,the tribunal concluded that since complete depletion of antifoul paint took approximately 5 years, most of it on the vessel was already depleted and the risks from the remainder to the environment was not significant (Administrative Appeals Report 20 ).

Conflicting evidence was also on scuttling of the ship. The Action group stated that the State intended to use the ship, as it was, as an artificial reef with an aim of dumping it. The State however, maintained that over 500 tonnes of the ship’s part had been recycled. The tribunal thus concluded that in using the Adelaide as an artificial reef surmounts to its reuse and not dumping as was decided in Brown Boveri (Australia) Pty Ltd v Baltic Shipping Co
[1989] 1 LLR 518.

References

London Convention and Protocol/United Nations Environmental Programme, Guidelines for the Placement of Artificial Reefs, 2009.

Article 2.2(a) of Marine Environment Protection of the North-East Atlantic Convention. Paris: 22 September 1992.

Article 3.2 of the Protection of the Marine Environment of the Baltic Sea Area Convention. Helsinki 9 April 1992.

MacLeod, I, Morrison, P, Richards, V, West, N. Corrosion monitoring and the environmental impact of decommissioned naval vessels as artificial reefs. Proceedings of Metals 2004, National Museum of Australia pp 53-74; 80. Print

Richards, V, MacLeod, I, Morrison, P. Impact of Decommisioned Vessels as artificial reefs on Marine Environment. In-Situ Conservation of Cultural Heritage: Public, Professionals and Preservation, ed V Richards and J. McKinnon, PAST Foundation Publications. 2010. 50-67. Print

Parks, R . , Donnier-Marechal, M, Frickers, P, Turner, A, Readman, J. Bioavailability of Antifouling biocides in marine paint particles», Marine Pollution Bulletin. 2010: 60(8) 1226-230

Brooks, S., Waldock, M. Cooper Biocides in Marine Environments» in Ecotoxicology of Antifouling Biocides. 2009. 413-428. Springer Japan. Print.

Law Book Company. Australian legal monthly digest. The Law Book Co. of Australasia. 2004.

Gulf and Atlantic States Marine Fisheries Commissions. Marine Artificial Reef Materials Guidelines. 2004. 19.

US Environmental Protection Agency and the US Maritime Administration: National Guide: Best Practices for Preparing Vessels be used as Artificial Reef. 2006. Print.

The International Journal of Marine and Coastal Law. (1996): 11 (2) 201-15. Print.

D. W. Toews, E. Lister and J. J. Kay. Ecosystem Approach: Complexity, Uncertainty and Managing for Sustainability. New York: Colombia University Press. 2008. Print.

Australian Marine Environmental Protection Committee (MEPC). Briefing on Harmful Aquatic Organisms in Ballast Water. 58th Session: 6-10 October 2008.