Investigating Shipping Pollution Violations

Pacific Module 3: Domestic Enforcement

Aim

● To recognise issues affecting effective domestic enforcement– Overview of local legislation

Overview

• Environment Management Act 2005 • Marine Pollution Management Regulation• Domestic Policy• Violations

• MARPOL• Other

• Elements of Offences

Environment Management Act 2005

• Waste• Vessel• Discharge

• Other provisions?

Marine Pollution Management Regulation

• Waste• Vessel• Discharge

• Other provisions?

Prosecution Policy

• A Country may have a prosecution policy that determines the categorisation of certain offences and the priority of legal proceedings will progress

• For example:– Level 1 death/serious injury/environmental harm– Level 2 less serious incidents of a prosecutable breach– Level 3 incidents where a prosecutable breach is not

suspected to have occurred however an investigation by the relevant authority is required

Regulatory Agency Policy

• The Agency responsible for administration of the relevant legislation also may have a prosecution and/or investigation policy

• Based upon the resources of the Agency and the practicality of the scope and activity of the particular investigation

• Depending on offences identified, Multiple Agency involvement may apply (e.g. MOU)

Violations• Violations that relate to ship pollution can be identified Violations that relate to ship pollution can be identified

under various laws/legislation of a countryunder various laws/legislation of a country

• They includeThey include

– MARPOL specific violations MARPOL specific violations – Wildlife protection (injuring or killing a species)Wildlife protection (injuring or killing a species)– Natural resource protectionNatural resource protection– Offences relating to environmental harmOffences relating to environmental harm

• Such laws/legislation may apply criminal or Such laws/legislation may apply criminal or administrative sanctionsadministrative sanctions

Specific MARPOL violations

• Discharge above legal limit or illegal discharge

• Failure to report• Failure to maintain records• Other (possibly related to equipment,

construction and seaworthiness)

Other potential violations

• False statements• False records• Obstruction of justice• Concealment of evidence• Conspiracy• Pollution or action that harms wildlife or

endangered species• Damage to a protected area

Elements of the offences

• What is required to prove the elements of the offence– Identify all the elements of all potential offences

• Criminal offence– Elements must be proven beyond reasonable

doubt• Administrative or civil offence

– Elements proven on the balance of probabilities

Classes of defendants

• What classes of defendants are available?– Individuals– Corporations– Vessels

• What are the advantages or disadvantages associated with charging different classes of defendants?

• Deterrent value

Investigation Tasks

• Observation/ reporting of Offence• Collection of Evidence to prove the elements of the

offences• Port State Control (information and assistance)• Identification of the Offenders• Assessment of Evidence• Prosecution of Offenders• Type of Court • Enforcement of Penalty• Collection of Statistics• Feedback

Factors to consider in domestic enforcement

• Language barriers• Conflicting priorities• Procedural issues• Enforcement capacity• Penalty and sanctions• Facilitation assistance

• Admissibility of evidence• Control and accountability• Costs and practicality• Classes of defendants• Seriousness of offence

Factors Affecting Progress of Domestic Legal Proceedings

• Available evidence insufficient for conviction under domestic laws

• Vessel has left jurisdiction or committed violation while transiting

• Technical difficulties such as laws not consistent with latest standards

• Prosecutors do not progress due to high priority cases or lack of resources

Costs and practicality

● Is it practical to pursue an investigation? Has the ship left the EEZ? Is additional evidence required? Is the ship likely to return?

● What costs are likely to be involved with enforcement?

● What are the options?

• Initial investigation establishes that pollution may have occurred outside jurisdiction

Questions?