Document ID: chunk:federal_register_of_legislation:C2012A00090:clause:2_13cg
Version: federal_register_of_legislation:C2012A00090
Segment Type: clause
Provision Reference: sch 2 cl 13CG
Character Range: 77072–79110

13CG  Costs order—no response action taken by any person
 (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) no 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 by the Minister, order the operator to pay an amount to the Commonwealth.

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 of the response action that should have been taken; or
 (b) otherwise—the lower of the following:
 (i) the costs of the response action that should have been taken;
 (ii) the amount prescribed by the regulations.

Exception
 (3) The Court must not make an order under subsection (1) if the operator proves that 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) The application must be made within the period of 15 years beginning on the day on which the Commonwealth became aware of the environmental emergency.