EXPLANATORY STATEMENT

 

Select Legislative Instrument 2010 No. 178

 

Subject - Maritime Transport and Offshore Facilities Security Act 2003

 

Maritime Transport and Offshore Facilities Security Amendment

Regulations 2010 (No. 1)

 

The Maritime Transport and Offshore Facilities Security Act 2003 (the Act) establishes a regulatory framework to safeguard against unlawful interference with maritime transport and offshore facilities. To achieve this purpose, the Act establishes minimum security requirements for the Australian maritime industry by imposing obligations on persons engaged in maritime activities.

 

Subsection 209 (1) of the Act provides that the Governor–General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

The Maritime Transport and Offshore Facilities Security Regulations 2003 (the Principal Regulations) set out the requirements for maritime, ship and offshore security plans and ensures that maritime, ship and offshore security plans address specific matters to achieve maritime security outcomes as specified in the Act. In addition, the Principal Regulations outline a number of measures that must be undertaken in order to ensure the achievement of the maritime security outcomes including requirements for access to maritime security zones and requirements for passenger security screening.

 

The Regulations amend the Principal Regulations to provide for a series of amendments arising from the outcomes of a comprehensive review of the Maritime Security Identification Card (MSIC) scheme. The main finding of the review was that adjustments were needed to the MSIC eligibility criteria in the current maritime security risk context which includes the threat of trusted insiders. This review considered policy input form a range of key stakeholders including maritime industry participants, law enforcement agencies, employee representative groups, criminologists and security experts. Further amendments have arisen from a recent examination of security arrangements for passenger ship screening.

 

The Office of Transport Security (OTS) in the Department of Infrastructure, Transport, Regional Development and Local Government (the Department) recently completed a review into the MSIC scheme. The regulatory proposals flowing from the review form the basis of the Regulations. The amendments will further develop the existing MSIC scheme to increase scrutiny of persons allowed unescorted and unmonitored access to Australian maritime and offshore assets. The Regulations would also enhance choice for maritime and offshore workers in the validity period of the MSIC. As the regulations amend existing requirements their impact on industry would be minimal.

 

In early 2010 the Department completed an examination of screening arrangements for passenger ships and in doing so identified opportunities to enhance the security arrangements for these vessels. The analysis noted that while the Principal Regulations currently require screening of all passengers and their accompanying baggage, there is no prescribed methodology for screening, no capabilities defined for screening equipment and no testing and calibration parameters established. The ability to issue a legal notice prescribing the methods, techniques and equipment to be used for screening will contribute to a more robust security outcome by adding clarity and specificity to current screening requirements.

 

Specifically, the Regulations:

1. increase the current list of maritime security relevant offences that will preclude an individual from obtaining/holding an MSIC;
2. increase background checking frequency to every two years, and provide a provision for additional background checks in certain circumstances;
3. decrease the maximum MSIC validity period from five years to four years in line with the biennial background checking requirement and introduce the option for applicants to select between either a four year card with two background checks or a two year card with a single background check;
4. introduce reporting requirements with offence and penalty provisions for cardholders that fail to report new maritime security relevant offence convictions under certain circumstances, and introduce offence and penalty provisions for issuing bodies that fail to act on information received;
5. introduce MSIC suspension provisions under limited circumstances at the discretion of the Secretary of the Department; and
6. introduce provisions to allow the issuing of a notice prescribing the methods, techniques, and equipment to be used for maritime security screening.

 

Details of the Regulations are set out in the Attachment.

 

The Act specifies no conditions that need to be met before the power to make the Regulations may be exercised.

 

The Regulations commence in two phases:

·        regulations 1 to 3 and 5 and Schedule 1 commence on the later of the day after the Regulations are registered on the Federal Register of Legislative Instruments or 1 July 2010; and

·        regulation 4 and Schedule 2 commence on 1 December 2010.

 

This phased implementation affords MSIC issuing bodies adequate time to implement systems modifications to comply with the new regulations. The phased implementation also allows sufficient time to explain the new requirements to existing cardholders, as well as new and renewing applicants.

 

The Regulations are a legislative instrument for the purpose of the Legislative Instruments Act 2003.

 

 

Authority: Subsection 209(1) of the Maritime Transport and Offshore Facilities Security Act 2003
ATTACHMENT

 

Details of the Maritime Transport and Offshore Facilities Security Amendment Regulations 2010 (No. 1)

 

Regulation 1 – Name of Regulations

This regulation provides that the title of the Regulations is the Maritime Transport and Offshore Facilities Security Amendment Regulations 2010 (No. 1).

 

Regulation 2 – Commencement

This regulation provides for the Regulations to commence in two phases:

·        regulations 1 to 3 and 5 and Schedule 1 commence on the later of the day after the Regulations are registered on the Federal Register of Legislative Instruments or 1 July 2010; and

·        regulation 4 and Schedule 2 commence on 1 December 2010.

 

This phased implementation affords MSIC issuing bodies adequate time to implement systems modifications to comply with the new regulations. The phased implementation also allows sufficient time to explain the new requirements to existing cardholders, as well as new and renewing applicants.

 

Regulation 3 – Amendment of Maritime Transport and Offshore Facilities Security Regulations 2003

This regulation provides that Schedule 1 amends the Maritime Transport and Offshore Facilities Security Regulations 2003 (the Principal Regulations).

 

Regulation 4 – Amendment of Maritime Transport and Offshore Facilities Security Regulations 2003

This regulation provides that Schedule 2 amends the Maritime Transport and Offshore Facilities Security Regulations 2003 (the Principal Regulations).

 

Regulation 5 – Transitional

This regulation provides for transitional arrangements to clarify that all applications lodged with the Secretary of the Attorney General’s Department (AGD) (represented by AusCheck) before the commencement of Schedule 1 would be processed in accordance with the current regulations regardless of the completion date for the issuing process. This regulation also provides for the additional appeal consideration outlined at item [7] of Schedule 1 to apply to all appeals and for the provisions relating to methods, techniques and equipment to be used for screening outlined at item [8] of Schedule 1 to commence in accordance with the commencement arrangements outlined above.

 

Schedule 1 – Amendments commencing on later of 1 July 2010 or day after registration

To reduce repetition and for clarity and ease of reading, some items have been grouped.

 

Items [1 to 4], – Regulation 6.07B

These amendments are consequential to item [9] and substitute the definitions of ‘disqualifying offence’ and ‘maritime-security-relevant offence’ with a revised definition that correctly refers to the new schedule listing the categories of maritime security relevant offences. As is the case with the current regulations ‘maritime‑security‑relevant offence’ includes an offence relating to a matter mentioned in item [9] against a law of the Commonwealth, a state or territory or a foreign country or part of a foreign country. The last of these amendments clarifies the meaning of ‘adverse’ in the context of Australian Security Intelligence Organisation (ASIO) assessments for the purposes of Division 6.1A of the regulations.

 

Item [5] – Regulation 6.07C, including Table 6.07C and notes

This amendment is consequential to item [9] and removes the table of maritime‑security-relevant offences and the current definition. These are replaced by the new definition outlined in item [3] and the Schedule of maritime‑security‑relevant offences outlined at item [9].

 

Item [6] – Regulation 6.08A, note

This amendment is consequential to amendments at item [9] and replaces the current note at 6.08A to correctly reference the definition of maritime-security-relevant offence.

 

Item [7] – After paragraph 6.08F(5)(a)

This amendment introduces an additional criterion for consideration when an applicant for an MSIC is deemed ineligible to be issued a card and appeals the decision. The Secretary of the Department is required to consider ‘if the person was convicted of the offence before becoming the holder of an MSIC’.

 

This regulation allows the Secretary to consider favourably an MSIC holder who has had no further maritime-security-relevant offence convictions during the card validity period.

 

Item [8] – Regulation 7.30

Item 8 replaces the current regulation 7.30 with new regulations 7.30 and 7.31 permitting the Secretary to issue a written notice prescribing the methods, techniques and equipment use for screening under this Part. The issuing of notice in this manner is enabled by subsection 119(3) of the Act. A notice issued under this new regulation could provide that it is to be given only to the person, or class of persons, specified in the notice. A notice is only binding if it is served on the person.

 

This amendment is required because, while regulations have been made which require the screening of all passengers and their accompanied baggage for certain weapons and prohibited items (subject to some exemptions clearly stated in the Principal Regulations), no further requirements for screening have been defined. There is currently no prescribed methodology for screening, no capabilities defined for screening equipment and no testing and calibration regime has been established. This is a challenge to the achievement of sound security outcomes for the passenger ship industry.

 

New regulation 7.31 applies if no notice is issued under new regulation 7.30 specifying the equipment to be used for screening under this Part. As is currently the case in the Principal Regulations, the equipment to be used for screening in such circumstances would need to be capable of detecting weapons and prohibited items on persons or in baggage. This provides a minimum standard that would apply whenever a notice was not in force.

 

Item [9] – After regulation 13.05

This amendment introduces a Schedule of maritime-security-relevant offences to replace the existing table at regulation 6.07C.

 

In the development of the revised MSIC eligibility criteria, a range of perspectives from maritime industry participants, unions, criminologists, law enforcement bodies and security experts were considered.

 

As a result of the review process, it was deemed necessary to increase the number of offences that would initially deem a person ineligible to obtain/hold an MSIC. In line with a ‘public reasonableness’ test, the nature of these new offences would contain elements which are considered to be of concern to maritime security such as murder, explosive and firearms offences, making of a bomb hoax, kidnapping and certain fraud and dishonesty offences.

 

Item [10] – Further amendments – decision reviewed

This amendment amends the notes at subregulations 6.07P(2), 6.07R(6), 6.07T(3), 6.07W(4), 6.08F(3) and 6.08N(2) to correct a minor drafting anomaly where each note should refer to ‘decision reviewed’ rather than ‘notice reviewed’.

 

Schedule 2 – Amendments commencing on 1 December 2010

To reduce repetition and for clarity and ease of reading, some items have been grouped.

 

Item [1] – Paragraph 6.07A(2)(d)

Item [3] – Paragraph 6.07D(1)(b)

Item [4] – Subdivision 6.1A.4

Item [23] – Subregulation 6.08X(3), heading

These minor amendments are consequential to Item [12] and correctly reference provisions and to reflect the suspension provisions created within the Regulations.

 

Item [2] – Regulation 6.07B, after definition of MSIC applicant

Item [8] – Subregulation 6.08H (4), including the note

These items move the definition for qualified security assessment from its current location in subregulation 6.08H(4) into the definition section of the Division to increase clarity within the Regulations.

 

Item [5] – Regulation 6.08B

Item [6] – Paragraph 6.08BA(2)(b)

Item [10] – Subregulation 6.08I(1)

Item 5 amends the current regulation 6.08B to introduce a provision for MSIC applicants to apply for either a two-year or a four-year card and item 6 shortens the validity period of a background check from five years to two years. Item 10 amends the validity period of the card to reflect the requirement for biennial background checks and the option to allow applicants to select either a two or a four year card.

 

Collectively, these provisions introduce biennial background checking and alter the card validity period accordingly, whilst providing applicants the option to select between a two year card and a four year card based on work requirements.

More frequent background checks are required to ensure that the eligibility of MSIC holders to access maritime security zones is validated in accordance with the regulated requirements.

 

Item [7] – After subregulation 6.08H(1)

This item inserts a note outlining a person’s rights in relation to qualified security assessments issued by ASIO.

 

Item [9] – Regulation 6.08HA

This item amends current regulation 6.08HA to ensure that the Secretary reports decisions made regarding MSIC appeals to the Secretary of AGD. The Secretary is currently required under regulation 6.08HA to report certain decisions related to the approval or refusal to issue an MSIC. This amendment ensures that all decisions to approve or refuse an MSIC on appeal are reported to the Secretary of AGD.

 

Item [11] – After subregulation 6.08I (2)

This item clarifies the expiry date for an MSIC that is suspended or cancelled and then reinstated.

 

Item [12] – After regulation 6.08 LA

This item introduces new requirements requiring MSIC holders to report new maritime-security-relevant offences, allowing issuing bodies and the Secretary to apply for additional background checks on cardholders, and suspension provisions under limited and exceptional circumstances.

 

6.08LB

This regulation introduces a requirement for MSIC holders to report convictions for maritime-security-relevant offences in writing to the Secretary of AGD or their issuing body within seven days after the day of the conviction. This also requires cardholders to provide their name, date of birth and residential address, the court attended in relation to the offence, and the date of conviction. In order to ensure compliance with this requirement, non compliance with the requirement is an offence with a strict liability penalty of 20 penalty units. The strict liability element is in accordance with other offences relating to MSIC use including non-return of expired, cancelled and damaged MSICs.

 

6.08LC

This regulation allows the Secretary to apply to the Secretary of AGD for a background check on the holder of an MSIC under certain circumstances. The regulation also requires the Secretary to consider certain information (if available) before making a decision to request a subsequent background check.

 

6.08LD

This amendment allows an issuing body to apply for the second background check on cardholders that are issued a four year MSIC and to apply for background checks on cardholders that report new maritime-security-relevant offence convictions in accordance with the provisions set out in 6.08LB. This amendment introduces an offence for issuing bodies that fail to seek an additional background check following a report from a cardholder of a new maritime-security-relevant offence conviction within two days of the report. The penalty for this offence is 50 penalty units.

 

6.08LE

This amendment allows the Secretary to direct an issuing body, in writing, to suspend an MSIC where the cardholder had been convicted for a maritime-security-relevant offence but not yet sentenced for the offence. In deciding whether to direct that an MSIC be suspended, the Secretary must decide whether the person constitutes a threat to the security of maritime transport or an offshore facility by considering:

·        the type of offence the holder was convicted of and the circumstances in which the offence was committed;

·        the effect the suspension may have on the holder’s employment;

·        whether the holder is employed in a port security zone, ship security zone, on‑board security zone or offshore security zone and the type of area in which the holder is employed; and

·        anything else relevant about which the Secretary knows.

 

In addition, this amendment requires the Secretary to notify the Secretary of AGD where a decision was made under this regulation.

 

This amendment is required to address the potential situation where an MSIC holder has been convicted of a maritime-security-relevant offence but not yet sentenced and is considered to pose an unacceptable risk to maritime transport or offshore facilities. The suspension is intended to be used on a discretionary basis only in exceptional circumstances and only in consideration of a number of factors as outlined above.

 

6.08LF

This amendment requires issuing bodies to comply with directions given by the Secretary under 6.08LE in relation to the suspension of MSICs. In addition, the amendment requires the issuing body to notify the cardholder of the suspension and the reasons for suspension in writing. The suspension takes effect as soon as the holder is told about the suspension and the holder is required to return the MSIC to the issuing body within seven days of being told of the suspension. Failure to return the MSIC is an offence of strict liability incurring a penalty of 10 penalty units. This penalty is aligned with existing penalties for failing to return cancelled, expired, or damaged MSICs as outlined in regulation 6.08P of the Principal Regulations.

 

This amendment is required to authorise issuing bodies to comply with directions given by the Secretary and the penalty for failing to return suspended MSICs is required to ensure that invalid cards are not available for use in an unauthorised manner.

 

6.08LG

This regulation sets out the period for which a suspension of an MSIC could be applied. If the cardholder was not sentenced to imprisonment, the MSIC would be suspended from the date of notification until the day after sentencing. If the cardholder was sentenced to imprisonment, the card would remain suspended until it was cancelled in accordance with the provisions set out in regulation 6.08M of the regulations.

 

 

6.08LH

This amendment is consequential to regulation 6.08LG and clarifies that if an MSIC holder also holds a temporary MSIC that the temporary MSIC is suspended when the MSIC is suspended.

 

6.08LI

If the Secretary were to direct the suspension of an MSIC under regulation 6.08LE, this amendment requires issuing bodies to report to the Secretary when the body suspends an MSIC; and would allow the Secretary to notify appropriate parties such as the cardholder’s employer or a maritime industry participant.

 

An issuing body would not be able to suspend an MSIC in any circumstances other than when directed by the Secretary as outlined at 6.08 LE.

 

Item [13] – After paragraph 6.08M(1)(c)

Item [17] – After regulation 6.08M

These items introduce the requirement for an issuing body to cancel an MSIC if the Secretary notified the issuing body that the cardholder was the subject of a qualified security assessment. This cancellation is appealable under provisions set out in item [17].

 

6.08MA

This amendment allows a former MSIC holder or their issuing body to appeal to the Secretary, in writing, against the cancellation of the MSIC made under the measures introduced in item [13] and item [14]. In addition, the amendment requires that any application be lodged within 28 days and provides the Secretary with the authority to seek additional information from the former MSIC holder or the issuing body if required.

 

6.08MB

This amendment establishes the procedure that must be followed by the Secretary in considering an appeal lodged under regulation 6.08MA where an MSIC is cancelled as the result of a qualified security assessment. In particular, the amendment requires the Secretary to decide, within 30 days, whether to allow or refuse the issue of an MSIC in consideration of the qualified security assessment and tell the applicant the result of the decision; if a decision is not made within 30 days, the amendment stipulates that the application is refused. Where an appeal is refused, the amendment requires the Secretary to notify the applicant, in writing, of the reasons for refusal.

 

6.08MC

This amendment establishes the procedure that must be followed by the Secretary in considering an appeal lodged under paragraph 6.08M(1)(ea) where an MSIC is cancelled as the result of an adverse criminal record. In particular, the amendment requires the Secretary to decide, within 30 days, whether to allow or refuse the issue of an MSIC and tell the applicant the result of the decision; if a decision is not made within 30 days, the amendment stipulates that the application is refused. Where an appeal is refused, the amendment requires the Secretary to notify the applicant, in writing, of the reasons for refusal.

 

In approving or refusing the issue of the MSIC the Secretary is required to consider:

·        the type and length of the term of imprisonment imposed on the appellant;

·        if the appellant has served the term, or part of the term – how long it is, and the appellant’s conduct since the term was served;

·        whether the appellant was convicted of the offence before becoming the holder of an MSIC;

·        the effect on the appellant’s employment if the MSIC is cancelled;

·        the location of the maritime security zone where the appellant is employed;

·        whether the appellant is employed in a port security zone, ship security zone, on-board security zone or offshore security zone and the type of area in which the appellant is employed; and

·        anything else relevant about which the Secretary knows.

 

This regulation allows the Secretary to favourably consider an MSIC holder who has had no further maritime-security-relevant offence convictions during the card validity period.

 

This regulation is required to provide an option for former cardholders to appeal against the cancellation of their MSIC. Following this appeal, former cardholders will have the option for further internal review under regulation 6.08X and if this is also unsuccessful, former cardholders will also be able to lodge an appeal with the Administrative Appeals Tribunal (AAT).

 

6.08MD

This amendment is consequential to regulations 6.08MB and 6.08MC and allows the Secretary to impose a condition on an MSIC that had been cancelled and later reinstated under regulations 6.08MB and 6.08MC.

 

Item [14] – After paragraph 6.08M(1)(e)

This item introduces measures to require the cancellation of an MSIC where a subsequent background check indicates that the cardholder has been convicted of a maritime-security-relevant offence (other than a disqualifying offence) and sentenced to imprisonment. This item also requires cancellation where an MSIC is issued for four years and the second background check is not undertaken two years after the issue of the card.

These amendments are necessary to ensure that cards which become invalid as a result of amendments made within the Regulations are cancelled by the applicable issuing body.

 

Item [15] – After subregulation 6.08M(2)

This item introduces penalties for issuing bodies that fail to cancel an MSIC in accordance with the provisions set out in item [13] and item [14]; after the Secretary has notified the issuing body in writing that a security assessment of the holder is adverse; or after the body finds out that the holder has been convicted of a disqualifying offence.

 

In addition, this item introduces penalties for issuing bodies that fail to notify an MSIC holder that their card has been cancelled in accordance with the aforementioned provisions.

 

Both of these penalties would be 50 penalty units.

 

This amendment is required to ensure that issuing bodies cancel MSICs in accordance with the regulations and the penalty has been set to provide a large incentive to comply with the regulatory requirements.

 

Item [16] – After subregulation 6.08M(5)

This item is consequential to item [15] and inserts an additional measure linking the meaning of imprisonment to the definition included at subregulation 6.08LG(4). For the purposes of the regulations imprisonment includes periodic detention, home‑based detention and detention until the rising of the court but does not include a sentence of community service. This item is required to increase clarity within the Principal Regulations.

 

Item [18] – After paragraph 6.08T(2)(j)

This item amends the record keeping requirements for MSIC issuing bodies to ensure that the register of MSICs held by the issuing body includes details of MSICs that are cancelled and subsequently reinstated and to include details regarding the suspension of MSICs.

 

This amendment is required to ensure that accurate records regarding the number of valid MSICs in existence are available and to assist in the identification of trends regarding valid and invalid MSICs that are in existence.

 

Item [19] – Paragraph 6.08V(c)

Item [20] – Paragraph 6.08V(e)

Item [21] – After paragraph 6.08V(e)

These items amend the reporting requirements for MSIC issuing bodies.

 

Item [19] amends a current requirement for issuing bodies to report the number of MSICs issued by the body that have expired or been cancelled but have not been returned to the body to include MSICs that have been suspended.

 

Item [20] is consequential and amends the list structure in regulation 6.08V to allow the introduction of item [21] in paragraph 6.08V(f).

 

Item [21] requires issuing bodies to report the number of MSICs issued by the body that were suspended in the financial year to which the report relates.

 

These additional reporting requirements are necessary to ensure that issuing bodies maintain accurate records relating to suspended MSICs in addition to the current record keeping requirements.

 

Item [22] – Subregulation 6.08X(2)

Item [24] – Subparagraph 6.08X (3)(a)(i)

Item [25] – Subparagraph 6.08X (3)(a)(ii)

Item [26] – Subparagraph 6.08X (3)(b)(iii)

Item [27] – After subparagraph 6.08X(3)(b)(iii)

Collectively, these items streamline the appeals process outlined in regulation 6.08X and introduce secondary appeals provisions for measures introduced by the amendment regulations.

 

Items [22] and [24] remove the appeal provision against an adverse maritime security status from subregulation 6.08X(2) and replace the current power for the Secretary to reconsider a decision to refuse to authorise the issue of an MSIC with the power for the Secretary to reconsider a decision to refuse to approve the issue of an MSIC.

 

These amendments are necessary to increase clarity regarding the decisions that the Secretary can reconsider upon appeal.

 

Item [25] allows the Secretary to reconsider decisions made relating to the suspension of MSICs, refusal to approve the issue of MSICs and cancellation of MSICs following qualified security assessments, and the imposition of conditions on the approval of MSICs.

 

This amendment is required to ensure that MSIC applicants that are the subject of a qualified security assessment and refused an MSIC and holders that have their existing card cancelled or suspended are able to appeal to the Secretary for reconsideration of a previous decision ahead of appealing to the AAT.

 

Item [26] is consequential to Item [27] and amends the list structure within paragraph 6.08X(3)(b).

 

Item 27 provides that that the Secretary may reconsider the decision by an issuing body in relation to the suspension of an MSIC.

 

Collectively, these amendments are required to streamline the appeals process and to ensure that MSIC applicants and existing cardholders are afforded reasonable opportunities to appeal adverse decisions before lodging an appeal with the AAT.