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From TCP # 7 by Andrew Crawford
Andrews background is that of police prosecuter so the article is from that perspective. This was the one that alerted the public to the depth of the issue. Our great thanks to Andrew.
POO POLICE PATROL OUR PASSAGES
There has been a bit written and spoken about the new "vessel sourced sewage" laws that have come into effect recently in Queensland.
Whatever you think you know about this issue you probably don't know the full story. The new laws are unreasonable, unworkable, unenforceable and quite frankly some components are an affront to any sensible approach to public policy.
At the outset let me say that I don't like swimming in anchorages where people are ejecting effluent from their boats, no one does, but the answer to the problem is not this weird legislation that the Queensland Government has trotted out.
Part 7 of the Transport Operations (Marine Pollution) Act 1995 is where it is all at. You can get the legislation at www.qld.gov.au and follow the links to the Queensland legislation web site. Be prepared for a long internet trip though cause the Act references the regulation which references at least two other acts, and of course you will need to branch off to areas like the criminal code. A very untidy piece of legislative drafting. For example, the act defines a ship as it is in MARPOL (the international convention re Pollution). I struggled to find a copy of that convention and had to ring Maritime safety to find the definition, and even they had to look it up. How on earth the average punter is supposed to know this is beyond me. Another way to get there is http://www.msq.qld.gov.au/qt/msq.nsf/index/sewage_mgt. Also I should point out that this article has been written in terms of the laws as they will apply from July 2004 to December 2009 - and it only gets worse from then.
And this legislation applies to everything, indeed someone on a 5 metre trailer sailer will be liable for a penalty of $63750 for discharging sewage in any of the prohibited areas and a penalty of $26250 in any other coastal waters in Queensland.
In a nutshell what does it all mean? Well that is best answered in two ways - Treated and Untreated Sewage.
If you have no treatment system on your vessel then you cannot ever at any time discharge into Marinas, Boat Harbours, Canals or Smooth Waters.
Sounds fair you say, well just reflect that the definition of Marina is "a bouy mooring, jetty or pile mooring or combination of them where for a fee or reward a ship is or may be anchored berthed or moored". One single swing mooring that you pay $2 a week to use, constitutes a marina.
Smooth Waters are extensive in Queensland. In addition to rivers creeks and the like, large tracts of water that is near land is classed as smooth. The quickest way you can gain an idea of the delineations is in the Queensland Tide Tables. In the south east that means from Cleveland, Peel Island and Amity, south to the end of the Broadwater. So if you take your 30 foot yacht or 7 metre power cat with the family to a nice quiet spot in the Broadwater for the weekend e.g. Slipping Sands, you cannot discharge untreated sewage anywhere. So you need a holding tank. And what do you do with the effluent when you get back to the ramp or the marina or wherever - well given the almost non existence of pump out facilities, I really don't know.
Further you can't discharge untreated sewage in Northern Moreton Bay waters or Hervey Bay Waters within a nautical mile of aquaculture, a reef and the low water mark of the mainland. The interesting thing here is that a reef is defined as including "underwater or intertidal rocky areas". So three rocks on the ground 20 fathoms below and there you go - discharging onto a reef.
And you don't have to know that the reef is there, see the discussion below about the non application of section 23 and 24 of the criminal code.
And outside of these areas, you can't discharge untreated sewage in any coastal waters anywhere in Queensland unless the material has been macerated - If you do it's over $26000 fine, so there you are, just off the coast of Double Island Point, you have a marine toilet without a maceration device - you use it and BANG $26000 (maximum).
If you have a treatment system on your vessel then you cannot ever at any time discharge into Marinas, Boat Harbours, Canals or, depending on the quality of the treatment plant, into the water in open waters, smooth waters, Hervey Bay waters, Moreton Bay waters to within 700meters to 926 Meters of a person in the water or aquaculture or a reef. .
Same incredibly wide definitions of reef and marina apply.
There are also some provisions that apply similar rules even more restrictively to "declared ships". These are basically commercial vessels, 1B, 1C, 1D, 1E, and 1F under the relevant act.
I said at the start I though that the new legislation was unreasonable and unworkable. Well I know of no other way to describe a fine of $60,000 for taking a dump. I also find it incredibly silly to think that a yachtie in a Trailer Tri should have to hold it in all day or fit a holding tank system to his small boat.
The silly thing is that the yachty can take a dump over the side and be quite legal, but if he does use a marine toilet and then puts that over the side - well that's illegal - I think. I also think it is unreasonable for me to be expected to have a higher quality of discharge that the rest of Brisbane in terms of what comes out of the storm water drains.
I think it is unworkable in the context of trying to sell a boat. A new buyer is going to say well drop your price by a couple of grand to pay for the treatment or holding tanks.
I think it is unreasonable to introduce this with such a short time horizon. I am sure even professional builders are just coming to grips with it.
Here come the poo police! Maritime Safety Queensland and Boating and Fisheries are apparently responsible for enforcing this. The powers of enforcement appear to be contained in the Transport Operations Marine Pollution Act. They are awesomely wide and breathtaking.
An authorised officer can board your ship at anytime for almost any reason (to see if you are complying with the act or if the officer has reasonable grounds for suspecting that the ship is involved in the commission of an offence). Once aboard the officer can search anything, take samples, copy documents, direct the ship to a place and so on (failure to comply can render you liable for penalties of over a QUARTER OF A MILLION DOLLARS!!!. Clearly these powers were written against the background of a large scale pollution dump from a tanker or similar big ship. Nevertheless they apply to you and me. [eds note; the right of the officers mentioned to board and search is discussed in the article, What to do when the dollop walloper Visits in TCP 11 and 16 and further below.]
So how are they going to enforce this? (And remember a law that can't be enforced is a bad law). Well I'm not sure really, even with the breathtaking powers that an authorised officer has, how are you going to prove that a particular piece of sewage comes from a particular boat? I have visions of DNA tests on the sewage and the persons on board.
I keep hearing government people say - well it's about encouraging boaties and it's about education etc etc. The reality is that parliament has passed legislation that includes $60,000 fines so it's also about punishment. They keep saying, but that's the maximum, it will never be applied to a small boat - well put that in writing for me please.
THE BIG PUBLIC POLICY ISSUE
But all of the issues above are relatively minor when compared to the big public policy issue, the non application of section 23 and 24 of the Criminal Code.
1000 years of legal development are encapsulated in the provisions of Chapter 5 of the Criminal Code. These provisions are statutory defences to all laws in Queensland, they are if you like a defacto bill of rights for criminal law issues.
Section 23 says basically that you cannot be held responsible for an act occurring independent or your will. So a quick analogy to describe what that means - If you lend me your car because I say I need to get to school and pick up the kids and I use it to commit a murder by running over some enemy, or use it in a bank hold-up or get intercepted drink driving, then you commit no offence because the act of the murder or bank hold-up or drink driving were acts that occurred independent of your will.
However the Act provides that an owner of a ship is culpable irrespective of the provisions of section 23 of the criminal code. So you own a charter boat that is based in Manly, you charter it to me - you get me to sign 27 declarations that I know and understand the sewage discharge obligations, you put signs up reminding me not to do this and that. I sail down to Peel Island and discharge illegally. Bad Luck, - the act clearly states that you as the owner are culpable. Penalty - up to $63,000. This is an affront to any reasonable person, and a significant example of poor public policy.
Section 24 basically says that if you have an honest and reasonable belief about the state of things, you are only criminally responsible to the extent of that belief. So another example - you have a treatment plant and you believe on reasonable grounds that it is working properly, hell it was only installed six months ago and cost you a motsa. It isn't and you discharge sewage that is not treated or doesn't meet the treatment requirements. No problem if 24 of the Criminal Code applied. You could argue that you honestly and reasonably believed that the sewage was treated. But 24 doesn't apply so it's up to $60,000 for you again.
Section 23 and 24 apply as defences to murder, arson, speeding, parking offences and indeed all statute law of Queensland except of course for vessel sourced sewage.
So that puts the matter into perspective somewhat. A floater in the Broadwater renders you with less rights at law than if you had committed murder in the same place or indeed were speeding in the same place.
I always believe that if you are going to knock something you should at least try to have a constructive alternative.
1. provide a much longer implementation schedule;
2. have a sliding scale of application, clearly a mum dad and two kids on 5 metre trailer sailer represents .........different impacts than 10 people on a 30 metre yacht. Realistically I would have thought that a .........reasonable upper limit for non application would be 10-12 metres
3. have more sensible definitions; the definition of reef in particular is poor;
4. write law that has some prospect of reasonable enforcement, and
5. reinstate the lawful protections afforded by Chapter Five of the Criminal Code.