Antarctica (Environmental Protection: Liability Annex) Amendment Act 2012

1: Title
This Act is the Antarctica (Environmental Protection: Liability Annex) Amendment Act 2012.
2: Commencement
This Act comes into force on a date appointed by the Governor-General by Order in Council.
3: Principal Act amended
This Act amends the Antarctica (Environmental Protection) Act 1994 OIC Antarctica (Environmental Protection) Act 1994
4: Consent of Attorney-General required for certain proceedings
1: Section 6(1) but subject to subsection (3) any other enactment,
2: Section 6
3: Subsection (1) does not apply to proceedings under sections 37E and 37F
5: New Part 5A inserted
1: The following Part is inserted after section 37
5A: Liability for environmental emergencies
Preliminary provisions
37A: Purpose of Part
The purpose of this Part is to implement New Zealand's obligations under Annex VI to the Protocol on Environmental Protection to the Antarctic Treaty (commonly known as the Liability Annex), which concerns liability for environmental emergencies occurring in Antarctica.
37B: Interpretation for this Part
In this Part, unless the context otherwise requires,— Annex VI Annex Party environmental emergency
a: results in, or imminently threatens to result in, a significant and harmful impact on the Antarctic environment; and
b: occurs after this Part comes into force Environmental Protection Fund Ministry New Zealand operator
a: the operator is a New Zealand resident operator; or
b: the expedition proceeds from New Zealand as its final point of departure for Antarctica; or
c: the expedition uses a New Zealand ship or aircraft New Zealand resident operator operator
a: in the case of a State operator (as identified by an Annex Party), a contractor or subcontractor (other than a natural person) acting on behalf of the State operator:
b: in any other case, an employee, contractor, subcontractor, agent, or other person in the service of the person organising the expedition preventative measures
a: the use of 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:
c: specialised training of personnel prompt and effective response action
a: is taken promptly after an environmental emergency arises; and
b: is as effective as the person who takes, or could take, the response action is reasonably capable of achieving in the circumstances reasonable measures
a: the risks to the Antarctic environment and the rate of natural recovery; and
b: the risks to human life and safety; and
c: technological and economic feasibility response action
a: determining the extent of the emergency and its impact; and
b: taking reasonable measures (including, where appropriate, clean-up) to avoid, minimise, or contain the impact of the environmental emergency. Annex VI Articles 2, 3(2) Responding to environmental emergencies
37C: New Zealand operators to give notice of environmental emergencies
1: A New Zealand operator whose activities give rise to an environmental emergency, or who discovers an environmental emergency, must immediately notify the Ministry of the emergency.
2: A New Zealand operator who, knowing that the operator's activities have given rise to an environmental emergency, fails to comply with subsection (1)
3: For the purposes of this section,—
a: the cause of the environmental emergency is irrelevant to the obligation in subsection (1)
b: a New Zealand operator is deemed to know that the operator's activities have given rise to an environmental emergency if a reasonable person in the circumstances of the operator who was exercising reasonable care would have known of the environmental emergency. Annex VI Article 4(3)
37D: New Zealand operators to take response action
1: A New Zealand operator whose activities give rise to an environmental emergency must take prompt and effective response action.
2: A New Zealand operator who, knowing that, or being reckless as to whether, the operator's activities have given rise to an environmental emergency, fails to take prompt and effective response action commits an offence and is liable on conviction
3: However, a New Zealand operator is not liable to conviction under this section if the environmental emergency, or the failure to take prompt and effective response action, was a result of any of the circumstances described in section 37G(1)(a) to (d) Annex VI Article 5(1) Civil liability for failure to take response action
37E: Recovery of cost of response action taken by others
1: This section applies to an operator—
a: who is a New Zealand operator or a New Zealand resident operator; and
b: whose activities give rise to an environmental emergency; and
c: who fails to take prompt and effective response action.
2: An operator to whom this section applies is liable to pay the costs incurred by any Annex Party in taking response action.
3: An application for an order requiring an operator, other than a New Zealand State operator, to pay the costs incurred in taking response action may be made to the High Court by—
a: the Minister, if the Ministry (either directly or through an agent) took response action on behalf of New Zealand as an Annex Party; or
b: any person on behalf of another Annex Party that took response action, whether the response action was taken directly by the Annex Party or through an agent.
4: An order may be made under this section against an operator whether or not the operator knew of the environmental emergency.
5: An application for an order under this section may not be made more than 3 years after the later of—
a: the date on which the response action was begun; or
b: the date on which the Annex Party that took the response action knew, or ought reasonably to have known, the identity of the operator.
6: However, an application under this section may not be made later than 15 years after the date on which the response action was begun. Annex VI Articles 6(1), (3), 7(1)
37F: Order to pay money where no response action taken
1: This section applies to an operator—
a: who is a New Zealand operator or a New Zealand resident operator; and
b: whose activities give rise to an environmental emergency; and
c: who fails to take prompt and effective response action.
2: If no Annex Party takes prompt and effective response action, an operator to whom this section applies is liable to pay the costs of the response action that should have been undertaken.
3: An application for an order requiring an operator, other than a New Zealand State operator, to pay the costs of response action that should have been taken may be made to the High Court by—
a: the Minister (on behalf of New Zealand as an Annex Party); or
b: a person authorised in writing by any other Annex Party to make the application on its behalf.
4: The order must require the operator to pay an amount of money that the High Court determines represents the costs that would have been incurred if prompt and effective response action had been taken following the environmental emergency.
5: The amount of money specified in an order under this section is payable—
a: directly into the Environmental Protection Fund; or
b: to the Ministry, in which case the Ministry must pay the amount received directly into the Environmental Protection Fund.
6: An order may be made under this section against an operator whether or not the operator knew of the environmental emergency.
7: An application for an order under this section may not be made more than 15 years after the date on which the Annex Party on whose behalf the application is made became aware of the environmental emergency to which the proceedings relate. Annex VI Articles 6(2), (3), 7(3)
37G: Exemptions from liability
1: The High Court may not make an order against an operator under section 37E or 37F
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 that could not have been reasonably foreseen, either generally or in the particular case, provided that all reasonable preventative measures, designed to reduce the risk of environmental emergencies and their potential adverse impacts, were taken:
c: an act of terrorism:
d: an act of belligerency against the activities of the operator.
2: If the Ministry takes response action under section 37D
3: To avoid doubt, the Ministry is not liable for the failure of a New Zealand operator (other than a New Zealand State operator) to take response action. Annex VI Articles 8(1), (2), 10
37H: Limits on amount of liability
1: The amount of liability under section 37E or 37F
2: The limits on liability referred to in subsection (1) Annex VI Article 9(1), (3)
37I: Joint and several liability
If an environmental emergency arises from the activities of 2 or more operators, the operators are jointly and severally liable, except that an operator who establishes that only part of the environmental emergency resulted from its activities is liable only in respect of that part. Annex VI Article 6(4) .
2: Schedule 2, which sets out the Protocol on Environmental Protection to the Antarctic Treaty, is amended by adding Annex VI, as set out in the Schedule Section 5(1) amended 4 October 2013 regulation 3(1) Criminal Procedure (Consequential Amendments) Regulations 2013