TRANSPORT SECURITY LEGISLATION AMENDMENT (JOB READY STATUS) REGULATION 2015 (SLI NO 248 OF 2015) EXPLANATORY STATEMENT

Commonwealth Numbered Regulations - Explanatory Statements

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TRANSPORT SECURITY LEGISLATION AMENDMENT (JOB READY STATUS) REGULATION 2015 (SLI NO 248 OF 2015)

EXPLANATORY STATEMENT

Select Legislative Instrument No. 248, 2015

(Issued by the Authority of the Minister for Infrastructure and Regional Development)

Subject -

Aviation Transport Security Act 2004

Maritime Transport and Offshore Facilities Security Act 2003

AusCheck Act 2007

Transport Security Legislation Amendment (Job Ready Status) Regulation 2015

The Aviation Transport Security Act 2004 (the Aviation Act) establishes a regulatory framework to safeguard against unlawful interference with civil aviation in Australia. The Aviation Act establishes minimum security requirements for civil aviation in Australia by imposing obligations on persons engaged in civil aviation related activities. This includes providing for the establishment of various airside security zones and secure areas in the security controlled airports for the purpose of subjecting those zones and areas to additional security requirements.

Subsection 133(1) of the Aviation 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 Aviation Act.

The Aviation Transport Security Regulations 2005 (the Aviation Regulations) provide for additional security requirements and address matters such as controlling the movement of people and things; restricting access to zones and areas, including conditions of entry; the issue and use of security passes and other identification systems; and providing for screening of people, vehicles and goods.

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

Subsection 209(1) of the Maritime 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 Maritime Act.

The Maritime Transport and Offshore Facilities Security Regulations 2003 (the Maritime Regulations) set out the requirements for maritime, ship and offshore security plans to ensure that these plans achieve the maritime security outcomes specified in the Act.

In addition, the Aviation and the Maritime Regulations establish the regulatory framework for the Aviation Security Identification Card (ASIC) and the Maritime Security Identification Card (MSIC).

ASICs and MSICs are nationally consistent identification cards which show that the holder has met the minimum security requirements to remain unmonitored within an aviation or maritime security zone. As a matter of practice ASICs and MSICs are required by airport and airline workers, security and screening officers, port, port facility and port service workers, stevedores, transport operators such as train and truck drivers, seafarers on Australian security regulated ships; and people who work on and/or supply offshore oil and gas facilities.

While the ASIC and MSIC are not access cards, they allow the holder to remain unmonitored within an aviation security zone or area or maritime security zone respectively.

The Aviation and Maritime Regulations currently allow a person to apply to an issuing body for the issue of an ASIC or an MSIC only if a person has an operational need to hold an ASIC or an MSIC.

Subregulation 6.01(1) of the Aviation Regulations defines an operational need as a requirement for frequent access to all or part of a secure area of an airport where persons are required to display an ASIC for the purposes of the operation of the airport or an aircraft, or for the purposes of the person's occupation or business.

Regulation 6.07F of the Maritime Regulations provides that a person has an operational need to hold an MSIC if the person's occupation or business interests require, or will require, the person to have unmonitored access to a maritime security zone at least once each year.

The purpose of the Transport Security Legislation Amendment (Job Ready Status) Regulation 2015 (the Regulation) is to amend the Aviation Regulations and the Maritime Regulations to remove the requirement for a person to have an operational need at the time:

* the person applies to an issuing body for the issue of an ASIC or an MSIC; or

* an issuing body or a person applies to the Secretary of the Department of Infrastructure and Regional Development (Secretary) for approval to issue an ASIC to the person if the person is not eligible to be issued an ASIC only because they have an adverse criminal record; or are disqualified under regulation 6.48 of the Aviation Regulations; or

* an issuing body or a person applies to the Secretary for approval to issue an MSIC to the person if the person is not eligible to be issued an MSIC only because they have an adverse criminal record and have not been convicted of a disqualifying offence.

Currently for most people wishing to apply for a job in the aviation, maritime or offshore oil and gas industry, the employer requires them to hold an ASIC or an MSIC. There are also circumstances where an individual is required to hold an ASIC or an MSIC due to study requirements, for example trainee pilots. The Regulation enables a person to apply to an issuing body for the issue of an ASIC or an MSIC even if a person does not have a current job offer or study need, in other words, an operational need to hold an ASIC or an MSIC. The measure speeds up the employment process in the aviation, maritime or offshore oil and gas industries by reducing the wait time caused by the background check process of the ASIC/MSIC application that occurs between the offer of employment or commencement of study and the period of active employment.

It also enables an issuing body or a person to apply to the Secretary for approval to issue an ASIC or an MSIC to the person if the person is not eligible to be issued an ASIC or an MSIC only because they have an adverse criminal record, even if the person does not have an operational need to hold an ASIC or an MSIC.

The Regulation also enables an issuing body to apply to the Secretary of the Attorney-General's Department (Secretary AGD) for a background check on an applicant for an ASIC or an MSIC. This means that the background check is undertaken and the issuing body is ready to issue a card quickly when a person demonstrates an operational need to hold an ASIC or an MSIC. A background check is valid for a period of no more than two years from the date of completion of the background check. However, an issuing body will not be able to issue an ASIC or an MSIC to a person until the person has an operational need to hold the security identification card.

The AusCheck Act 2007 (the AusCheck Act) establishes a regulatory framework for coordinating and conducting certain criminal, security and other background checks. Section 5 of the AusCheck Act defines a background check as an assessment of information relating to an individual's identity, criminal history, security assessment, citizenship status, residency status or entitlements to work in Australia.

Subsection 18(1) of the AusCheck 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 that Act.

The AusCheck Regulations 2007 (the AusCheck Regulations) establishes the AusCheck scheme for coordinating and conducting certain background checks. Under the Aviation and Maritime Regulations, AusCheck is responsible for coordinating background checks on the applicants for an ASIC or an MSIC. Under the current framework, AusCheck can only conduct a background check where the applicant has an operational need to hold an ASIC or an MSIC.

The Regulation amends the AusCheck Regulations to ensure that AusCheck is also able to conduct background checks on applicants for an ASIC or an MSIC who do not have an operational need; and to ensure that other obligations on such applicants for an ASIC or an MSIC apply.

Consultation has occurred with the Civil Aviation Safety Authority and the Attorney-General's Department. Industry has been consulted through a number of industry and Government forums including Aviation Security Advisory Forums (ASAF), Regional Industry Consultative Meetings (RICM), Maritime Industry Security Consultative Forums (MISCF), Airport Security Committees (ASCs) and Identity Security Forums comprising ASIC & MSIC issuing body representatives. Industry has broadly supported the changes.

The Office of Best Practice Regulation (OBPR) has been consulted in relation to the amendments to Aviation Regulations, the Maritime Regulations, and the AusCheck Regulations. The OBPR has advised that a Regulatory Impact Statement is not required (OBPR ID:19542).

A Statement of Compatibility with Human Rights is set out at Attachment A.

The Aviation, Maritime and AusCheck Acts do not specify any conditions that need to be satisfied before the power to make the Regulation may be exercised.

The Regulation is not a legislative instrument for the purposes of the Legislative Instruments Act 2003.

The Regulation commences on 15 December 2015.

Details of the Regulation are set out in the Attachment B.

Authority:

Subsection 133(1) of the

Aviation Transport Security Act 2004

Subsection 209(1) of the

Maritime Transport and Offshore Facilities Security Act 2003

Subsection 18(1) of the

AusCheck Act 2007

ATTACHMENT A

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Transport Security Legislation Amendment (Job Ready Status) Regulation 2015

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the legislative instrument

The Legislative Instrument amends the Aviation and Maritime Regulations to enable a person to apply for an ASIC or an MSIC if a person does not have an operational need to hold an ASIC or an MSIC at the time of application.

The Legislative Instrument amends the AusCheck Regulations to ensure that:

* AusCheck is able to conduct background checks on applicants for an ASIC or an MSIC who do not have an operational need; and

* other obligations on such applicants for an ASIC or an MSIC apply.

Human rights implications

This Legislative Instrument does not engage any of the applicable rights or freedoms.

Conclusion

This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.

WARREN TRUSS

Minister for Infrastructure and Regional Development

ATTACHMENT B

Details of the Transport Security Legislation Amendment (Job Ready Status) Regulation 2015

Section 1 - Name

This section provides that the name of the Regulation is the Transport Security Legislation Amendment (Job Ready Status) Regulation 2015.

Section 2 - Commencement

This section 2 sets out the commencement date for the Regulation.

The Regulation commences on 15 December 2015.

Section 3 - Authority

This section provides that the Regulation is made under the Aviation Transport Security Act 2004, the Maritime Transport and Offshore Facilities Security Act 2003, and the AusCheck Act 2007.

Section 4 - Schedules

This section provides that the Aviation Transport Security Regulations 2005, the Maritime Transport and Offshore Facilities Security Regulations 2003, and the AusCheck Regulations 2007 are to be amended as set out in the Schedules to the Regulation.

Schedule 1 - Amendments

Part 1 - Aviation Security Identification Cards

Aviation Transport Security Regulations 2005

Item [1] - Regulation 6.26

Regulation 6.26 of the Aviation Regulations provides that a person who has an operational need may apply to an issuing body for the issue of an aviation security identification card (ASIC).

The amendment to regulation 6.26 removes the requirement for a person to have an operational need to hold an ASIC at the time the person applies to an issuing body for the issue of an ASIC. However, the amendment to regulation 6.26 does not remove the requirement for an issuing body to be satisfied that the person has an operational need to hold an ASIC before the person is actually issued with an ASIC (see regulation 6.28 of the Aviation Regulations).

Item [2] - Paragraph 6.27AA(1)(a)

Paragraph 6.27AA(1)(a) of the Aviation Regulations provides that an issuing body may apply to the Secretary of the Attorney-General's Department (Secretary AGD) for a background check on an applicant for an ASIC if the issuing body proposes to issue an ASIC to the person. A background check is defined in subregulation 6.01(1) of the Aviation Regulations as an assessment of information about any of the matters mentioned in section 5 of the AusCheck Act 2007.

The amendment to paragraph 6.27AA(1)(a) of the Aviation Regulations enables an issuing body to apply to the Secretary AGD for a background check on an applicant for an ASIC, whether or not the person has an operational need to hold an ASIC. This enables the Secretary AGD to conduct a background check on an applicant for an ASIC even if the applicant does not have an operational need to hold an ASIC.

A background check is valid for a period of no more than two years from the date of completion of the background check, regardless of when an ASIC is issued. If a person obtains an operational need to hold an ASIC within this two-year period, a further background check is not be required before that person can be issued with an ASIC, provided a further check is not otherwise required under regulation 6.41 of the Aviation Regulations (which relates to self-reporting of a conviction and sentence for an aviation-security-relevant offence).

Item [3] - Subregulation 6.27AA(3)

Subregulation 6.27AA(3) of the Aviation Regulations currently provides that the Secretary may apply to the Secretary AGD for a background check on the holder of an ASIC if the Secretary considers on reasonable grounds that the holder has been convicted of an aviation-security-relevant offence, or constitutes a threat to aviation security.

The amendment to subregulation 6.27AA(3) enables the Secretary to apply to the Secretary AGD for a background check on an applicant for an ASIC or the holder of an ASIC, if the Secretary considers on reasonable grounds that the applicant or holder has been convicted of an aviation-security-relevant offence, or constitutes a threat to aviation security. The amendment is consequential on item 2.

Item [4] - Paragraph 6.27AA(4)(a)

Paragraph 6.27AA(4)(a) of the Aviation Regulations currently provides that in considering matters mentioned in paragraphs 6.27AA(3)(a) or (b), the Secretary must take into account any information provided by the holder of the ASIC or the issuing body of the ASIC.

The amendment to paragraph 6.27AA(4)(a) requires a Secretary, when considering matters mentioned in paragraphs 6.27AA(3)(a) or (b) to take into account any information provided by an applicant for an ASIC, or the holder of the ASIC, or the issuing body of the ASIC. The amendment is consequential to item 2.

Item [5] - Paragraph 6.27AA(4)(b)

Paragraph 6.27AA(4)(b) of the Aviation Regulations currently provides that in considering matters mentioned in paragraphs 6.27AA(3)(a) or (b), the Secretary must take into account any information provided by the Secretary AGD or a law enforcement agency about the holder of an ASIC.

The amendment to paragraph 6.27AA(4)(b) requires a Secretary, when considering matters mentioned in paragraphs 6.27AA(3)(a) or (b), to take into account any information provided by the Secretary AGD or a law enforcement agency about an applicant for an ASIC or the holder of the ASIC. The amendment is consequential to item 2.

Item [6] - Subregulation 6.29(1)

Subregulation 6.29(1) of the Aviation Regulations provides that if a person is not eligible to be issued an ASIC only because they have an adverse criminal record, or are disqualified under regulation 6.48 from holding an ASIC, an issuing body or the person may apply to the Secretary, in writing, for approval to issue an ASIC to the person.

Item 6 repeals subregulation 6.29(1) to enable an issuing body or a person to apply to the Secretary for approval to issue an ASIC to the person if the person is not eligible to be issued an ASIC only because they have an adverse criminal record, or are disqualified under regulation 6.48 from holding an ASIC, even if the person does not have an operational need to hold an ASIC.

Item [7] - At the end of regulation 6.29

Item 7 adds subregulation 6.29(7) to clarify that an issuing body is not be able to issue an ASIC to a person until the person has an operational need to hold an ASIC.

Item [8] - Regulation 6.41 (heading)

The amendment to the heading to regulation 6.41 of the Aviation Regulations is consequential on the amendment to regulation 6.26 of the Aviation Regulations (see item 1). That is, the obligation to report matters concerning any conviction of, and sentence for, an aviation-security-relevant offence, exists in relation to applicants for an ASIC as well as holders of an ASIC.

Item [9] - Subregulation 6.41(1)

Subregulation 6.41(1) of the Aviation Regulations requires a holder of an ASIC who is convicted and sentenced for an aviation-security-relevant offence to notify the issuing body or the Secretary AGD in writing of certain matters within 7 days.

The amendment in item 9 provides that an applicant for an ASIC or the holder of an ASIC, that is convicted and sentenced for an aviation-security-relevant offence, is required to notify the issuing body or the Secretary AGD in writing of certain matters specified in subregulation 6.41(1) within 7 days.

Item [10] - Paragraph 6.41(1)(b)

Paragraph 6.41(1)(b) of the Aviation Regulations provides that the holder of an ASIC, who is convicted and sentenced for an aviation-security-relevant offence, must notify the issuing body or the Secretary AGD of the number of their ASIC or ASICs.

As regulation 6.33 of the Aviation Regulations refers to an ASIC having a unique number, the amendment to paragraph 6.41(1)(b) clarifies that if the person holds one or more ASICs, the person is required to notify the issuing body or the Secretary AGD of the unique number of each ASIC held by the person.

Item [11] - Subparagraph 6.41(1)(e)(iii)

Subregulation 6.41(1) of the Aviation Regulations sets out the obligations of holders of ASICs in relation to notifying the issuing body or the Secretary AGD of certain matters that relate to a conviction of, and sentence for, an aviation-security-relevant offence.

The amendment to subparagraph 6.41(1)(e)(iii) of the Aviation Regulations clarifies that a person must notify the issuing body or Secretary AGD of their consent for the outcome of the background check to be provided to the issuing body, if the outcome would adversely affect that person's ability to hold or continue to hold an ASIC. Both applicants for ASICs and holders of ASICs are subject to the requirements in the subregulation 6.41(1). The amendment is consequential on the regulation 6.26.

Item [12] - Subregulations 6.41(2), (3) and (4)

Subregulation 6.41(2) relates to the timeframe for providing information under regulation 6.41 to the issuing body or the Secretary AGD, if all of the required information is not initially provided.

Subregulation 6.41(3) sets out when a holder of an ASIC has consented to having their identity confirmed, a new background check undertaken and the outcome of the check being provided to the issuing body or the Secretary AGD. Subregulation 6.41(4) specifies that the Secretary AGD must notify the issuing body if a holder of an ASIC provides notification under subregulation 6.41(1) but does not give consent or comply with all of the requirements in subregulations 6.41(1) and 6.41(2).

The amendments to subregulations 6.41(2), (3) and (4) of the Aviation Regulations expand these provisions to apply to an applicant for an ASIC as well as a holder of an ASIC. The amendment is consequential on the regulation 6.26.

Items [13] and [14] - Regulation 6.41A

Regulation 6.41A of the Aviation Regulations provides that an issuing body commits an offence if the issuing body is notified of the matters under regulation 6.41 by the holder of an ASIC, and the issuing body does not apply to the Secretary AGD for a background check on the holder not later than 2 working days after the holder notifies their consent under paragraph 6.41(1)(a), and provides any information requested under subregulation 6.41(2).

As a result of the amendment to regulation 6.41, there is a consequential amendment to regulation 6.41A of the Aviation Regulations. An issuing body commits an offence if it failed, in certain circumstances, to apply to the Secretary AGD for a background check on an applicant for an ASIC, as well as a holder of an ASIC, who has notified the issuing body under regulation 6.41 of matters relating to any conviction of, and sentence for, an aviation-security-relevant offence.

Regulation 6.41 continues to have the maximum penalty of 100 penalty units.

Items [15] - Regulation 6.42 (heading)

The amendment to the heading to regulation 6.42 of the Aviation Regulations is consequential on the amendment to regulation 6.26 of the Aviation Regulations (see item 1). That is, the obligation to report change of name exists in relation to applicants for an ASIC as well as holders of an ASIC.

Item [16] - Subregulation 6.42(1)

Subregulation 6.42(1) of the Aviation Regulations provides that if the holder of an ASIC changes their name, they must notify the issuing body that issued the ASIC of the changes within 30 days after the change.

The amendment to subregulation 6.42(1) of the Aviation Regulations is consequential on the amendment to regulation 6.26 of the Aviation Regulations. The amendment clarifies that an applicant for an ASIC as well as a holder of an ASIC must notify the issuing body of any change to their name within 30 days after the change occurred.

Item [17] - Regulation 6.42 (note)

The amendment to the note that follows existing subregulation 6.42(4) of the Aviation Regulations makes it clear that an issuing body may issue a replacement ASIC only to a person who is a holder of an ASIC (and not an applicant for an ASIC).

Item [18] - At the end of Part 10

Regulation 10.03 of the Aviation Regulations sets out an application provision which provides that Part 1 of Schedule 1 to the Transport Security Legislation Amendment (Job Ready Status) Regulation 2015 applies in relation to an application for an ASIC made on or after the commencement of that Part.

Part 2 - Maritime Security Identification Cards

Maritime Transport and Offshore Facilities Security Regulations 2003

Item [19] - Regulation 6.07F (examples 1 to 5)

Regulation 6.07F of the Maritime Regulations provides that a person has an operational need to hold a maritime security identification card (MSIC) if their occupation or business interests require, or will require them to have unmonitored access to a maritime security zone at least once each year.

Item 19 repeals the examples from the regulation 6.07F as they cause some ambiguity.

Item [20] - Subregulation 6.08B(1)

Regulation 6.08B of the Maritime Regulations provides that a person may, in writing, apply to an issuing body for an MSIC if the person has an operational need to hold an MSIC.

The amendment to subregulation 6.08B(1) removes the requirement for a person to have an operational need to hold an MSIC at the time the person applies to an issuing body for the issue of an MSIC.

However, the amendment to subregulation 6.08B(1) does not remove the requirement for an issuing body to be satisfied that the person has an operational need to hold an MSIC before the person is actually issued with an MSIC (see regulation 6.08C of the Maritime Regulations).

Item [21] - Paragraph 6.08BA(1)(a)

Paragraph 6.08BA(1)(a) of the Maritime Regulations provides that an issuing body may apply to the Secretary AGD for a background check on an applicant for an MSIC if the issuing body proposes to issue an MSIC to the person. A background check for an individual is defined in regulation 6.07B of the Maritime Regulations as an assessment of information about any of the matters mentioned in section 5 of the AusCheck Act 2007.

The amendment to paragraph 6.08BA(1)(a) of the Maritime Regulations enables an issuing body to apply to the Secretary AGD for a background check on an applicant for an MSIC, whether or not the person has an operational need to hold an MSIC. This enables the Secretary AGD to conduct a background check on an applicant for an MSIC even if the applicant does not have an operational need to hold an MSIC.

A background check is valid for a period of no more than two years from the date of completion of the background check. If a person receives an operational need to hold an MSIC within this two-year period, a further background check is not be required before that person can be issued with an MSIC, provided a further check is not otherwise required under the regulation 6.08LB of the Maritime Regulations (which relates to self-reporting of a conviction and sentence for a disqualifying offence; or conviction for any other maritime-security-relevant offence and sentenced to imprisonment for the offence).

Item [22] - Subregulation 6.08F(1)

Subregulation 6.08F(1) of the Maritime Regulations provides that if a person is not eligible to be issued an MSIC only because they have an adverse criminal record, and they have not been convicted of a disqualifying offence, an issuing body or the person may apply to the Secretary, in writing, for approval to issue an MSIC to the person.

The amendment to subregulation 6.08F(1) enables an issuing body or a person to apply to the Secretary for approval to issue an MSIC to the person if the person is not eligible to be issued an MSIC only because they have an adverse criminal record, and they have not been convicted of a disqualifying offence, even if the person does not have an operational need to hold an MSIC.

Item [23] - At the end of regulation 6.08F

Item 23 adds subregulation 6.08F(9) to clarify that an issuing body is not be able to issue an MSIC to a person until the person has an operational need to hold an MSIC.

Item [24] - Regulation 6.08LB (heading)

The amendment to the heading to regulation 6.08LB of the Maritime Regulations is consequential on the amendment to regulation 6.08B (see item 20). That is, the obligation to report matters concerning any conviction of maritime-security-relevant offence exists in relation to applicants for an MSIC as well as holders of an MSIC.

Item [25] - Subregulation 6.08LB(1)

Subregulations 6.08LB(1) and (2) of the Maritime Regulations require the holder of an MSIC who is convicted and sentenced for a disqualifying offence, or convicted of any other maritime-security-relevant offence and sentenced to imprisonment for the offence, to notify the issuing body or the Secretary AGD, in writing, of the certain matters within 7 days after being sentenced.

The amendment in item 25 provides that an applicant for an MSIC, as well as the holder of an MSIC, that is convicted and sentenced for a disqualifying offence, or convicted of any other maritime-security-relevant offence and sentenced to imprisonment for the offence must notify the issuing body or the Secretary AGD in writing of the certain matters within 7 days after being sentenced. The amendment is consequential to the item 20.

Item [26] - Subregulation 6.08LB(2)

Subregulations 6.08LB(1) and (2) of the Maritime Regulations require the holder of an MSIC, who is convicted and sentenced for a disqualifying offence, or convicted of any other maritime-security-relevant offence and sentenced to imprisonment for the offence, to notify the issuing body or the Secretary AGD in writing of the certain matters within 7 days after being sentenced.

The amendment to subregulation 6.08LB(2) provides that an applicant for an MSIC, as well as the holder of an MSIC, who is convicted and sentenced for a disqualifying offence, or convicted of any other maritime-security-relevant offence and sentenced to imprisonment for the offence, to notify within 7 days after being sentenced the issuing body or the Secretary AGD in writing of the certain matters. The amendment is consequential to the item 20.

Item [27] - Paragraph 6.08LB(2)(b)

Paragraph 6.08LB(2)(b) of the Maritime Regulations provides that the holder of an MSIC, who is convicted and sentenced for a disqualifying offence, or convicted of any other maritime-security-relevant offence and sentenced to imprisonment for the offence, must notify the issuing body or the Secretary AGD of the number of their MSIC or MSICs.

As regulation 6.08T of the Maritime Regulations refers to an MSIC having a unique number,

the amendment to paragraph 6.08LB(2)(b) clarifies that if the person holds one or more MSICs, the person is required to notify the issuing body or the Secretary AGD of the unique number of each MSIC held by the person.

Item [28] - Subparagraph 6.08LB(2)(e)(iii)

Subregulations 6.08LB(1) and (2) of the Maritime Regulations require the holder of an MSIC that is convicted and sentenced for a disqualifying offence, or convicted of any other maritime-security-relevant offence and sentenced to imprisonment for the offence, to notify within 7 days after being sentenced the issuing body or the Secretary AGD in writing of the certain matters.

The amendment to subparagraph 6.08LB(2)(e)(iii) of the Maritime Regulations clarifies that a person must notify the issuing body or Secretary AGD of their consent for the outcome of the background check to be provided to the issuing body, if the outcome would adversely affect that person's ability to hold or continue to hold an MSIC. Both applicants for MSICs and holders of MSICs are subject to the requirements in the subregulation 6.08LB(1). The amendment is consequential to the item 20.

Item [29] - Subregulations 6.08LB(3), (4) and (5)

Subregulations 6.08LB(1) and (2) of the Maritime Regulations require the holder of an MSIC who is convicted and sentenced for a disqualifying offence, or convicted of any other maritime-security-relevant offence and sentenced to imprisonment for the offence, to notify within 7 days after being sentenced the issuing body or the Secretary AGD in writing of the certain matters.

Subregulation 6.08LB(3) relates to the timeframe for providing information under regulation 6.08LB to the issuing body or the Secretary AGD, if all of the required information is not initially provided.

Subregulation 6.08LB(4) sets out when a holder of an MSIC has consented to having their identity confirmed, a new background check being undertaken, and the outcome of the background check to be provided to the issuing body.

Subregulation 6.08LB(5) specifies that the Secretary AGD must notify the issuing body if a holder of an MSIC provides notification under subregulation 6.08LB(2) but does not give consent or comply with all of the requirements in subregulations 6.08LB(2) and 6.08LB(3).

The amendments to subregulations 6.08LB(3), (4) and (5) of the Maritime Regulations expand these provisions to apply to an applicant for an MSIC as well as a holder of an MSIC. The amendment is consequential to the item 20.

Items [30] and [31] - Paragraphs 6.08LBA(a) and (b)

Regulation 6.08LBA of the Maritime Regulations provides that if an issuing body is notified of the matters under regulation 6.08LB by the holder of an MSIC, the issuing body must apply to the Secretary AGD for a background check on the holder not later than 2 working days after the holder notifies their consent under paragraph 6.08LB(2)(e), and provides any information requested under subregulation 6.08LB(3). Failure to do so is an offence.

As a result of the amendment to regulation 6.08LB of the Maritime Regulations, there are consequential amendments to paragraphs 6.08LBA(a) and (b) of the Maritime Regulations. An issuing body commits an offence if it failed, in certain circumstances, to apply to the Secretary AGD for a background check on an applicant for an MSIC, as well as a holder of an MSIC holder, who has notified the issuing body under regulation 6.08LB, of matters relating to any conviction and sentence for a maritime-security-relevant offence.

Regulation 6.08LB continues to have the maximum penalty of 100 penalty units.

Item [32] - Regulation 6.08LC (heading)

The amendment to the heading to regulation 6.08LC of the Maritime Regulations is consequential on the amendment to regulation 6.08B of the Maritime Regulations (see item 20). That is that the Secretary may apply to the Secretary AGD for a background check on an applicant for an MSIC or a holder of an MSIC.

Item [33] - Subregulation 6.08LC(1)

Subregulation 6.08LC(1) of the Maritime Regulations currently provides that the Secretary may apply to the Secretary AGD for a background check on the holder of an MSIC if the Secretary considers that reasonable grounds exist under paragraphs 6.08LC(1)(a) or (b).

The amendment to subregulation 6.08LC(1) expands the power of the Secretary to apply to the Secretary AGD for background check on an applicant for an MSIC as well as a holder of an MSIC if the Secretary considers that reasonable grounds exist under paragraphs 6.08LC(1)(a) or (b).

Item [34] - Paragraph 6.08LC(2)(a)

Paragraph 6.08LC(2)(a) of the Maritime Regulations currently provides that in considering paragraph 6.08LC(1)(a) or (b), the Secretary must take into account any information provided to the Secretary by the holder of the MSIC or the issuing body for the MSIC.

The amendment to paragraph 6.08LC(2)(a) provides that in considering paragraph 6.08LC(1)(a) or (b), the Secretary must take into account any information provided to the Secretary by an applicant for an MSIC, the holder of the MSIC, or the issuing body for the MSIC.

Item [35] - Paragraph 6.08LC(2)(b)

Paragraph 6.08LC(2)(b) of the Maritime Regulations currently provides that in considering paragraph 6.08LC(1)(a) or (b), the Secretary must take into account any information provided to the Secretary by the Secretary AGD or a law enforcement agency about a holder of an MSIC.

The amendment to paragraph 6.08LC(2)(b) provides that in considering paragraph 6.08LC(1)(a) or (b), the Secretary must take into account any information provided to the Secretary by the Secretary AGD or a law enforcement agency about an applicant for an MSIC or a holder of an MSIC.

Item [36] - At the end of Schedule 2

This amendment inserts a new part into Schedule 2 of the Maritime Regulations: Part 3 - Amendments made by the Transport Security Legislation Amendment (Job Ready Status) Regulation 2015.

The new regulation 103 of the Maritime Regulations sets out an application provision which provides that Part 2 of Schedule 1 to the Transport Security Legislation Amendment (Job Ready Status) Regulation 2015 applies in relation to an application for an MSIC made on or after the commencement of that Part.

Part 3 - AusCheck Scheme

AusCheck Regulations 2007

Item [37] - Regulation 3

Regulation 3 of the AusCheck Regulations sets out definitions. The amendment to regulation 3 inserts the definition of 'operational need' in relation to an ASIC and MSIC by reference to the definition at Part 6 of the Aviation Regulation and Division 6.1A of Part 6 of the Maritime Regulations, respectively.

Item [38] - Subregulation 5(3)

Subregulation 5(3) of the AusCheck Regulations provides for the circumstances in which the security identification card holder is taken to have applied for a background check.

The amendment to subregulation 5(3) is consequential to the amendments to subregulation 6.41(1) of the Aviation Regulations (items 9 to 11), and subregulation 6.08LB(2) of the Maritime Regulations (items 26 to 28), which provides that self-reporting notification and consent requirements apply to both applicants for security identification cards and holders of security identification cards.

This amendment to subregulation 5(3) of the AusCheck Regulations provides that both applicants for security identification cards and holders of security identification cards are taken to have applied for a background check if the individual satisfies the self-reporting requirements under subregulation 6.41(1) of the Aviation Regulations or subregulation 6.08LB(2) of the Maritime Regulations.

Item [39] - Paragraph 6(1)(c)

Paragraph 6(1)(c) of the AusCheck Regulations requires the name and business address of the individual to be included in an application for a background check. The amendment replaces the existing paragraph 6(1)(c) with paragraphs 6(1)(c) and 6(1)(ca).

New paragraph 6(1)(c) requires ASIC or MSIC applicants who are employed at the time of making the application to include the name and business address of their employer. Persons without an operational need for an ASIC or an MSIC are not be required to enter this information at the time of applying for a background check (see item 40).

New paragraph 6(1)(ca) requires ASIC or MSIC applicants who are students at the time of making the application to include the name and business address of the institution at which they are studying. Persons without an operational need for an ASIC or an MSIC are not be required to enter this information at the time of applying for a background check (see item 40).

These amendments allow AusCheck to obtain information about an individual's employer or educational institution, reflecting the fact that some applicants are not in employment that is relevant to their need to obtain an ASIC or an MSIC at the time of applying, but need to hold an ASIC or an MSIC for study they are undertaking, such as learning to fly a plane. In these circumstances, it is important for AusCheck and their checking partners to have a clear understanding of the individual's operational need for a card.

New paragraphs 6(1)(c) and 6(1)(ca) also apply to other background checks conducted by AusCheck.

Item [40] - After subregulation 6(1)

The amendment inserts subregulation 6(1AA) into the AusCheck Regulations. Subregulation 6(1AA) directly relates to the information that, under subregulation 6(1) of the AusCheck Regulations, must be included in an application by an issuing body for a background check. Subregulation 6(1AA) provides that an applicant for an ASIC or an MSIC is only required to provide employment or student details under paragraphs 6(1)(c) and 6(1)(ca) if they have an operational need for the card at the time of the application for a background check.

A note at the end of subregulation 6(1AA) refers to the regulation 14A. The note provides that, where employment or student details are not included in the application by an issuing body for a background check, the issuing body must provide these details to the Secretary AGD before the ASIC or the MSIC can be issued to the individual.

Item [41] - Subregulation 6(1A)

Subregulation 6(1A) of the AusCheck Regulations provides that an application for a background check under subregulation 6.27AA(3) of the Aviation Regulations or subregulation 6.08LC(1) of the Maritime Regulations must include the name, date of birth and residential address of the holder of the ASIC or the MSIC.

This amendment to subregulation 6(1A) of the AusCheck Regulations requires the name, date of birth and residential address of the applicant for a security identification card or holder of a security identification card, to be included in an application by the Secretary under subregulation 6.27AA(3) of the Aviation Regulations or subregulation 6.08LC(1) of the Maritime Regulations.

Item [42] - Subregulation 6(1B)

Subregulation 6(1B) of the AusCheck Regulations provides that an application by an issuing body for a background check on an ASIC or an MSIC holder, following a self-report of a conviction of a security-relevant offence, must include the information required under subregulation 6.41(1) of the Aviation Regulations or subregulation 6.08LB(2) of the Maritime Regulations. This information includes detail of the individual (e.g. name, date of birth) and details of the relevant conviction (e.g. court, date).

The amendment to subregulation 6(1B) of the AusCheck Regulations requires an issuing body to provide this information to the Secretary AGD for applicants for security identification cards and holders of security identification cards, who self-report under subregulation 6.41(1) of the Aviation Regulations or subregulation 6.08LB(2) of the Maritime Regulations.

Item [43] - Paragraph 9(1A)(b)

Paragraph 9(1A)(b) of the AusCheck Regulations applies if a background check on an individual discloses any of the matters under subregulation 9(1D) of the AusCheck Regulations: an adverse criminal record, a conviction for a disqualifying offence or, for certain ASICs, a qualified criminal record. Paragraph 9(1A)(b) provides that the Secretary AGD must give advice to the relevant issuing body about these matters, upon application by the Secretary for a background check under subregulation 6.27AA(3) of the Aviation Regulations or subregulation 6.08LC(1) of the Maritime Regulations.

The amendment to paragraph 9(1A)(b) of the AusCheck Regulations requires the Secretary AGD to provide this advice to the issuing body in relation to both applicants for an ASIC or an MSIC, and holders of an ASIC or an MSIC.

Item [44] - Subregulation 9(1B)

Subregulation 9(1B) of the AusCheck Regulations provides that the Secretary AGD must give advice to the issuing body about the outcome of the criminal history check on an individual, upon application by the issuing body for a background check on a card holder following a self-report (under subregulation 6.41A of the Aviation Regulations or subregulation 6.08LBA of the Maritime Regulations).

The amendment to subregulation 9(1B) of the AusCheck Regulations requires the Secretary AGD to provide this advice to the issuing body for both applicants for an ASIC or an MSIC, and holders of an ASIC or an MSIC.

Items [45] and [46] - Paragraphs 9(1C)(a) and 9(1C)(b)

Paragraph 9(1C)(a) of the AusCheck Regulations provides that the Secretary AGD must give advice about the outcome of the criminal history check to the security card holder, if an application is taken to have been made by the holder following self-report of a conviction for a security-relevant offence under subregulation 6.41(1) of the Aviation Regulations or regulation 6.08LB of the Maritime Regulations. Under paragraph 9(1C)(b), the Secretary AGD must also give this advice to the issuing body if the background check discloses an adverse criminal record, a conviction for a disqualifying offence or, for certain ASICs, a qualified criminal record.

The amendments to paragraphs 9(1C)(a) and 9(1C)(b) of the AusCheck Regulations require the Secretary AGD to provide this advice to either the applicant or holder of an ASIC or an MSIC, in relation to applications for a background check following self-report by the applicant for the security identification card, or holder of the security identification card.

Items [47] and [48] - Subregulation 9(1D) and paragraph 9(1D)(c)

Subregulation 9(1D) of the AusCheck Regulations provides that the matters relating to paragraphs 9(1A)(b) and 9(1C)(b) of the AusCheck Regulations are whether the card holder has:

* an adverse criminal record;

* a conviction for a disqualifying offence; or

* if the ASIC holder's card expires more than 12 months after the last day of the month in which the background check, undertaken when the person applied for the card, was completed - a qualified criminal record.

For an application for a background check by the Secretary or upon self-report by a security identification card holder, the Secretary AGD must provide this advice to the issuing body where the background check discloses any of these matters.

The amendment to subregulation 9(1D) of the AusCheck Regulations simplifies paragraph 9(1D)(c) to require the Secretary AGD to advise the relevant issuing body where the background check of an applicant for a security identification card, or holder of a security identification card, discloses a qualified criminal record. This advice must be provided to the relevant issuing body, regardless of the expiry date of an ASIC holder's card.

Item [49] - After regulation 14

This amendment inserts new regulation 14A into the AusCheck Regulations. Regulation 14A applies if:

* an issuing body has applied for a background check on an individual;

* employment or student details about the individual were not included in the application for a background check (because the individual did not have an operational need at the time of the application for a background check); and

* the issuing body proposes to issue an ASIC or an MSIC to the individual.

In this instance, an issuing body can only issue an ASIC or an MSIC to the individual if the individual has an operational need for the card.

Subregulation 14A(2) requires an issuing body to provide employment or student details about the individual to the Secretary AGD before issuing an ASIC or an MSIC. The issuing body will need to provide the name and business address of the individual's employer if the individual has an operational need because of their employment, or the name and business address of the individual's educational institution if the individual has an operational need because they are a student.

Item [50] - At the end of the Regulations

This amendment inserts new regulation 16 into the AusCheck Regulations.

Regulation 16 of the AusCheck Regulations sets out an application provision which provides that Part 3 of Schedule 1 of the Transport Security Legislation Amendment (Job Ready Status) Regulation 2015 applies in relation to an application for a security card made on or after the commencement of that Part. The regulation also includes a note with the commencement date of that Part.

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