Document ID: chunk:federal_register_of_legislation:C2012A00090:clause:2_13cf
Version: federal_register_of_legislation:C2012A00090
Segment Type: clause
Provision Reference: sch 2 cl 13CF
Character Range: 74560–77072

13CF  Costs order—response action taken by Party to Madrid Protocol
 (1) If:
 (a) an activity is carried on in the Antarctic; and
 (b) the activity gives rise to an environmental emergency; and
 (c) the operator who organised the activity:
 (i) is not a Party to the Madrid Protocol; and
 (ii) does not take prompt and effective response action in relation to the emergency; and
 (d) a Party to the Protocol takes response action under Article 5(2) of Annex VI to the Protocol (whether directly or through an agent or other person authorised by the Party);
a Court may, on application, order the operator to pay an amount to the Party.

Limit on amount payable
 (2) The amount must not exceed:
 (a) if the environmental emergency resulted from an act or omission of the operator that was done with the intention of causing the emergency, or recklessly and with the knowledge that the emergency would probably result—the costs incurred by the Party in taking the response action; or
 (b) otherwise—the lower of the following:
 (i) the costs incurred by the Party in taking the response action;
 (ii) the amount prescribed by the regulations.

Exception
 (3) The Court must not make an order under subsection (1) if the environmental emergency was caused by:
 (a) an act or omission necessary to protect human life or safety; or
 (b) an event constituting in the circumstances of the Antarctic a natural disaster of an exceptional character if:
 (i) the event could not have been reasonably foreseen, either generally or in the particular case; and
 (ii) all reasonable preventative measures designed to reduce the risk of environmental emergencies, and their potential adverse impact, were taken by the operator; or
 (c) an act of terrorism; or
 (d) an act of belligerency against the activities organised by the operator.

Application for order
 (4) An application for an order under subsection (1) may be made by:
 (a) if the Party is Australia—the Minister; or
 (b) if the Party is another Party to the Madrid Protocol—that Party.
 (5) An application for an order under subsection (1) must be made within whichever of the following periods ends later:
 (a) the period of 3 years beginning on the day on which the response action begins;
 (b) the period of 3 years beginning on the day on which the Party knew, or ought reasonably to have known, the identity of the operator.
 (6) Despite paragraph (5)(b), the application must not be made more than 15 years after the day on which the response action begins.