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Maritime Transport Security Bill 2003

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2002-2003

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

MARITIME TRANSPORT SECURITY BILL 2003

 

 

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Transport and Regional Services,

the Honourable John Anderson, MP)

 





MARITIME TRANSPORT SECURITY BILL 2003

 

 

OUTLINE

 

The purpose of the Maritime Transport Security Bill (MTSB Bill) is to enhance maritime transport security by:

 

·          establishing a maritime transport security regulatory framework, and providing for adequate flexibility within this framework to reflect a changing threat environment;

·          implementing the mandatory requirements in Chapter XI-2 and the International Ship and Port Facility (ISPS) Code of the Safety of Life at Sea (SOLAS) Convention, 1974, to ensure that Australia is aligned with the international maritime transport security regime;

·          ensuring that identified Australian ports, port facilities within them, and other maritime industry participants operate with approved maritime security plans;

·          ensuring that certain types of Australian ships operate with approved ship security plans;

·          issuing International Ship Security Certificates (ISSCs) to Australian ships which have been security verified so that these ships will be able to enter ports in other SOLAS Contracting Countries; and

·          undertaking control mechanisms to impose control directions on foreign ships that are not compliant with the relevant maritime security requirements in this Bill.

 

 

The Bill has thirteen parts:

 

Part 1 - Preliminary: This Part includes the objects of the Bill, its application, both inside and outside Australia, and definitions. A detailed definition of the meaning of ‘unlawful interference with maritime transport’ is included to clarify the application of the Bill. Other detailed definitions include those of ‘security regulated ports and port operators’ and ‘security regulated ships’. The Bill is intended to prevail over other Commonwealth and State laws to the extent of any inconsistency when necessary to meet the objects of the Bill. The Bill will not apply to state ships or navel vessels. Neither the Australian Defence Force, nor the Australian Customs Services or other Commonwealth agencies prescribed in the regulations will be included in the definition of a ‘maritime industry participant’.

 

It should also be noted that by virtue of Section 2.2(2) of the Criminal Code Act 1995 , Chapter 2 of the Criminal Code (which is found at the Schedule to that Act) applies to all offences against this Bill. Chapter 2 of the Criminal Code contains all the general principles of criminal responsibility that apply to any offence, irrespective of how the offence is created. Chapter 2 covers elements of an offence, circumstances in which there is no criminal responsibility, extensions of criminal responsibility, corporate criminal responsibility and proof of criminal responsibility. Where no element is specified, the default elements under Chapter 2 of the Code apply.

 

Part 2 - Maritime security levels: This Part outlines the application of maritime security levels, security directions, and a system for notification. Maritime security level 1 will be the default level. Maritime security level 2 and maritime security level 3 will be declared by the Secretary when it is appropriate for a higher level of security to be put in place. In addition, in a security direction which can be issued at security level 1, 2 or 3, the Secretary may direct maritime industry participants to comply with additional security measures when an unlawful interference with maritime transport is imminent or probable. The notification system ensures that those maritime industry participants and other persons who need to know about essential security level and security direction information are contacted.

 

Part 3 - Maritime security plans: This Part requires certain maritime industry participants to have maritime security plans in force which must include security measures and activities to be undertaken at security levels 1, 2 and 3. Regulations will provide additional detail on the content and form of the maritime security plans. The plans will be approved by the Secretary if adequate, may be cancelled by the Secretary in certain circumstances, and will be reviewed over time to maintain relevance.

 

Part 4 - Ship security plans and ISSCs: This Part requires certain Australian ships to have ship security plans in force which must include security measures and activities to be undertaken at security levels 1, 2 and 3. Regulations will provide additional detail on the content and form of the ship security plans. The plans will be approved by the Secretary if adequate, may be cancelled by the Secretary in certain circumstances, and will be reviewed over time to maintain relevance. Ships will be required to have ISSCs that will be issued on ISSC verification. Part 4 sets out the requirements in relation to obtaining such a certificate.

 

Part 5 - Regulated foreign ships: This Part requires certain foreign ships to provide pre-arrival information and their ISSCs to demonstrate their compliance with the Bill. Foreign ships are also obliged to comply with the existing security levels. Ship operators of regulated foreign ships and masters of such ships are required to acknowledge communications regarding security levels and security directions. Part 5 includes compliance checking and control directions that regulated foreign ships may be subject to in the event of non-compliance with the Bill.

 

Part 6 - Maritime security zones: Under this Part, the Secretary may establish port security zones within a security regulated port, declare ship security zones around a security regulated ship, and establish on board security zones on board a security regulated ship. The purpose of such zones is to subject these areas to access control measures for the prevention of unlawful interference with maritime transport. These zones will be supported by an effective enforcement regime. Regulations will identify the requirements that apply to each zone.

 

Part 7 - Other security measures: This Part establishes security requirements in relation to screening and clearing, weapons and prohibited items. The Part creates a number of offences relating to carriage of weapons and other items that, while not strictly weapons, could be used to threaten or cause injury (ie. prohibited items).

 

Part 8 - Powers of officials: This Part deals with five classes of persons who may exercise powers for the purposes of checking compliance with this Bill and/or preventing unlawful interference with maritime security. The five classes of persons are:

1.       Maritime security inspectors (Division 2);

2.       Duly authorised officers (Division 3);

3.       Law enforcement officers (Division 4);

4.       Maritime security guards (Division 5); and

5.       Screening officers (Division 6)

This Part sets out eligibility criteria for each class of person, grants specific powers to each class and places limits upon the exercise of those powers. Powers given to law enforcement officers under this Part are intended to complement existing powers conferred upon them under other State, Territory or Commonwealth legislation.

 

Part 9 - Reporting maritime transport security incidents: This Part formalises a communications system to ensure that adequate information is reported to relevant persons, including industry organisations and the Australian Government, in the event of a maritime transport security incident. This Part details the form, content and manner of reporting, clarifying the roles of all persons with incident reporting responsibilities in the event of any incident that is related to maritime security.

 

Part 10 - Information-gathering: This Part enables the Secretary to collect security compliance information from maritime industry participants. The collection of information is essential for the Secretary to deal with, and to resolve, compliance concerns before they become serious and compromise maritime security.

 

Part 11 - Enforcement: This Part provides for a number of different enforcement options in circumstances where contraventions of the Bill have occurred or are suspected to have occurred. These enforcement options are:

·          infringement notices;

·          enforcement orders;

·          injunctions; and

·          a demerit points system.

This Part is structured so that the regulator has a range of options to enforce compliance with the Bill, instead of or in addition to referring matters to the Director of Public Prosecutions for the purposes of prosecuting. Prosecutions are resource intensive and while prosecution is an appropriate remedy for serious breaches of maritime security, the fundamental purpose of maritime security regulation is to encourage and effect compliance.

 

Part 12 - Review of decisions: This Part sets out the decisions which can be made under this Bill, which are reviewable by the Administrative Appeals Tribunal (AAT). Whilst the AAT is limited in undertaking merits review to the decisions listed in this clause, this does not limit the scope for judicial review to occur under the Administrative Decisions (Judicial Review) Act 1976 , or at common law.

 

Part 13 - Miscellaneous: This Part contains technical information about the operation of this Bill and its intended effect on the application of existing legislation such as the Consular Privileges and Immunities Act 1972, Defence (Visiting Forces) Act 1963, the Diplomatic Privileges and Immunities Act 1967. It allows for delegation of certain powers and functions of the Bill. This Part also includes provisions relating to compensation for damage to a maritime industry participant’s equipment or data and compensation for acquisition of property. This Part also allows further regulations to be made as required to give effect to this Bill.

 

 

Financial Impact Statement

 

The 2003-4 budget allocation is $15.6 million over two years for DOTARS’ administrative, compliance and monitoring duties which include:

 

·          assessment of port, port facility and ship security plans;

·          verification of ship security and issuing of International Ship Security Certificates;

·          checking of compliance;

·          management of sensitive security threat information;

·          negotiating agreement on Memoranda of Understanding with other Australian Government departments which will be assisting with the ISPS compliance checking of Australian and foreign ships;

·          establishment of a communications network with maritime industry participants;

·          regular liaison with other Commonwealth departments and State and Northern Territory authorities;

·          undertaking of compliance checking of foreign ships and control functions regarding non-compliant foreign ships;

·          regular reporting on compliance issues to the IMO; and

·          staff training.

 

The Commonwealth receives no direct financial benefit but Australia’s economy benefits from the uniform regulation of security aspects of the maritime industry and its beneficial impact on international trade.

 



Regulation Impact Statement

 

A Regulation Impact Statement (RIS) has been prepared for this Bill.

 

Part 1              Problem

The terrorist attacks since 11 September 2001, the attack on the French tanker Limburg, and the Bali bombing have raised global awareness and concern of the devastating effects terrorist attacks can have on human life, public infrastructure, and private industry assets and operations. At the international level and in many cases at the national level there has been a realisation that public and private assets, critical infrastructure, and business operations may not be adequately protected from the risk of being the target of a terrorist attack or other equally disruptive unlawful activity.

 

In the case of the maritime industry, the International Maritime Organization (IMO), the principal maritime industry body at international level, addressed this problem by developing a new preventive security regime to enhance security at ports, terminals, facilities, and on board ships. The new regime has been given effect through amendments to the Safety of Life at Sea (SOLAS) Convention, 1974. The relevant amendment to SOLAS is the newly inserted Chapter XI-2 and its companion, the two-part International Ship and Port Facility (ISPS) Code. Part A of the ISPS Code is mandatory for Contracting Governments, and Part B is recommendatory. It should be emphasised that Chapter XI-2 and the ISPS Code establish a preventive security system with commonsense security measures and activities for operators of ports, facilities, terminals and ships to implement. It is not intended to replace any national or international counter-terrorism response mechanisms or other law enforcement activities.

 

Australia is a signatory to SOLAS and adopted the amendments to SOLAS at the IMO’s Conference of Contracting Governments in December 2002. The deadline for implementation of Chapter XI-2 and the ISPS Code is tight. Contracting Governments will have been deemed to have accepted the amendments by the end of 2003 - unless an objection is lodged - and are required to ensure that the requirements in Chapter XI-2 and the ISPS Code have been adequately implemented by 1 July 2004. To do so, the Australian Government has deemed it appropriate to establish a regulatory system to guide the Australian maritime industry towards compliance with the international regime by 30 June 2004.

 

The consequences of not establishing an efficient regulatory maritime security regime to compliment the international one range from significant reduction in business operations for those Australian maritime industry participants (eg. ports, facilities, terminals, ships) who are not compliant and may therefore be excluded from trading with compliant international maritime industry participants to serious infrastructure and asset damage due to a terrorist incident which could have been prevented by implementing the preventive security arrangements contemplated in the Maritime Transport Security Bill (the Bill). The map below demonstrates the maritime security challenges Australia faces.

 



 



 

Biggest Maritime Trade Relationships



JAPAN



IMPORT   VALUE

$13 830 179 000

 

EXPORT VALUE

$21 470 726 000

 

 

UNITED STATES

 

IMPORT  VALUE

$11 559 420 000



EXPORT VALUE

$8 797
792 000

 
 

A report from the Organisation for Economic Co-operation and Development (OECD) from July 2003 entitled ‘Security in maritime [sic] transport: risk factors and economic impact’ indicates that world trade depends on maritime transport and that the vulnerabilities of the maritime transport sector range from the possibility of physical breaches of the integrity of shipments and ships to document fraud and illicit money-raising for terrorist groups. The stakes, the OECD report emphasises, are extremely high because any major breakdown in the maritime transport sector would fundamentally cripple the world’s economy. The United Nations Conference on Trade and Development estimates that 5.8 billion tonnes of goods were traded by sea in 2001 which accounts for 80% of world trade by volume. The bulk of trade is carried by over 46,000 vessels servicing nearly 4,000 ports throughout the world. The OECD report makes two critical conclusions:

 

1.      

v 70 ports

v 300 port facilities

v 70 Australian flagged vessels

v 10,000 voyages p.a.

v 22,000 port calls

v 282 945 foreign seafarers visit p.a.

v 232,000 cruise ship passengers visit p.a

 
the costs of inaction are potentially tremendous because the costs of government and/or industry reaction to an attack are far greater than the costs of adequately equipping a port, port facility or ship with preventive security measures; and

2.       benefits will flow from enhancing security at ports, port facilities and on board ships, such as reduced delays, faster processing times, better asset control, decreased payroll due to improved information management systems, fewer losses due to theft, and decreased insurance costs.

 

These conclusions align with the policy position of the Australian Government and underpin the rationale for the Maritime Transport Security Bill.

 

Part 2              Objectives

 

Interstate movement of cargo, bulk vessels on Coastal Trade Permits

 
The primary objective for the Australian Government in taking action is to adequately safeguard against unlawful interference with maritime transport in Australia. A secondary objective is to establish a national regulatory framework to assist maritime industry participants to comply with the requirements in Chapter XI-2 and the ISPS Code. This will enable the Australian Government to inform the IMO by the deadline of 1 July 2004 that Australian ports, facilities, terminals and ships are compliant with the new international rules. As a result there will be no disruption to trade with other SOLAS signatories. The Problem identified in Part 1 above will be adequately addressed through the implementation of these objectives.

 

When pursuing these objectives the Australian Government is not intending to impact adversely on:

 

·          existing counter-terrorism arrangements, law enforcement legislation and police operations at the Commonwealth, State or Northern Territory level;

·          other Commonwealth operations and activities at ports (such as border protection);

·          the relationship between State and Northern Territory governments with ports under their jurisdiction; or

·          the efficient operations of the maritime industry participants to be regulated.

 



Part C             Options

 

The main options available to the Australian Government are described below.

 

Option 1: Explicit government regulation

 

To ensure that Australian maritime industry participants are compliant with the IMO maritime security regime, the Bill proposes an outcomes based maritime security framework to regulate the maritime industry. The universal application of a single regulatory system for maritime security will provide maritime industry participants throughout all States and the Northern Territory with a consistent approach and a central regulator, which is the Department of Transport and Regional Services (DOTARS). DOTARS will assume the responsibility for and costs associated with the assessment of security plans, verification of ship security, liaison with industry, coordination of national maritime threat information, and communication with the IMO on industry compliance issues.

 

At the last Australian Transport Council (ATC) meeting in May 2003, State and Northern Territory Transport Ministers agreed to the National Maritime Transport Security Framework - the precursory to this Bill - as developed by the Australian Government with the stakeholders from the States, the Northern Territory and industry. The key element of the framework is to put in place preventive security measures to protect Australia’s ships, ports and port facilities from the threat of terrorism in accordance with Australia’s obligations as signatory to SOLAS. The Transport Ministers also expressed commitment to meeting the international deadline for compliance of 1 July 2004.

 

This option is considered optimal.

 

Option 2: Self-regulation

 

Self-regulation refers to the circumstances where industry formulates the rules for its own operation and where industry is solely responsible for the enforcement of these rules. An example of this would be a code of conduct developed by a peak industry body. A voluntary code would contain the requirements in Chapter XI-2 and the ISPS Code, and it would operate in a similar way to the International Standards Organization (ISO) system. Ships, ports and facilities that wished to comply with the code would seek a certificate of compliance from the organisation administering the code in Australia.

 

It is suggested that this option would not result in adequate implementation of the IMO security measures because there would be no legislative backing to ensure compliance by Australian flag ships, ports and facilities and therefore no need to comply. A voluntary code would create significant uncertainty as to whether ports, facilities and ships are complying with requirements to upgrade security measures to meet increased risks. In addition, a voluntary code may not satisfy the requirements of foreign ship operators and ports, in which case they may prefer not to trade with Australian ports, facilities and ships.

 

The general public, for example those undertaking holiday cruises or living in the vicinity of a port facility or port, are becoming increasingly sensitive to maritime security issues. Allowing industry to set security standards would not assuage increasing public concern over maritime security. A terrorist incident involving a major port near residential areas or on board an international cruise liner with Australian citizens aboard would have a major impact on the Australian community.

 

The potential social and economic consequences of an ineffective industry self-regulatory scheme are too great to permit industry to determine their own standards through a voluntary code of conduct on the matter of maritime transport security.

 

Option 3: Devolution of the responsibility for maritime security regulation to the States and Northern Territory

 

Under this option the Australian Government would enact legislation to set out minimum security standards, and the responsibility for regulating the industry would be devolved to the States and the Northern Territory. The legislation would also need to include obligations placed on States and Northern Territory authorities to undertake the administration of the requirements in the amendments to SOLAS and the ISPS Code. The regime would need to be agreed to by the State and Northern Territory governments. The most likely administrative model would be for the Australian Government to enact an overarching statutory framework which would be mirrored at the State and Territory level according to jurisdictional responsibilities, administrative arrangements and local industry needs.

 

The two-step process of, firstly, the Australian Government enacting legislation and, secondly, each State and Northern Territory following suit would be time consuming and costly. It would be extremely unlikely for this process to be completed in enough time to ensure industry compliance with the international deadline of 1 July 2004.

 

Even if State and Northern Territory legislation was introduced in time for security plans to be approved and ships to be issued with International Ship Security Certificates, it is likely that each State and the Northern Territory would not have matching systems in place. This might lead to unfair advantages and confusion, particularly where foreign masters and crew have to adapt to seven different regulatory systems when visiting different State and Northern Territory ports in Australia. It would not be in Australia’s best trading interests, or in the interests of Australia’s maritime industry, to have seven different, locally controlled regulatory schemes.

 

As mentioned above, State and Territory Transport Ministers have acknowledged the need for the Australian Government to take the lead role in maritime transport security regulation.

 

Part 4              Impact Analysis

 

Due to the urgency of the task and the international compliance deadline, there has not been time to subject the regulatory model proposed in the Bill to detailed quantitative and qualitative research to determine the impact of the Bill on the Australian maritime transport industry, other jurisdictions, and consumers. Nonetheless, information gathered during the period leading up to the development of the Bill strengthens the need for the enhancement of transport security in the maritime sector and is supportive of the proposed regulatory action. The conclusions drawn from the above mentioned OECD report reinforce this view. Ultimately, the cost of enhancing security whether in the maritime transport sector, aviation transport sector, or at home, can only be measured against the benefits from preventing unlawful interference, and the adverse economic impact unlawful interference can have on commercial enterprises and the adverse psychological impact it can have on personal wellbeing.

 

The assessment of the options discussed below are based on quantitative research undertaken by an independent consultant employed by DOTARS in December 2002, the OECD report referred to above, and the outcome of consultations DOTARS held with industry and State and Northern Territory government stakeholders.

 

Option 1: Explicit government regulation

 

Benefits

 

Under the Australian Constitution, the Australian Government has the responsibility for the obligations arising from adopted and accepted international treaties. The international obligations arising from Chapter XI-2 and the ISPS Code are considerable, and the Australian Government will need to be able to report positively to the IMO on, or before, 1 July 2004 about the domestic implementation of the treaty obligations. With this in mind and despite the tight deadline, the Australian Government has prepared a Bill which provides certainty to state-regulated entities, privately operating port facilities and the Australian shipping industry, sets penalties for offences including serious penalties for trespassing, and creates a new centralised regulatory regime with DOTARS as the regulator. Universal application is critical to ensure Australia’s international obligations are met on time and to a standard acceptable to all Australian jurisdictions and affected industry participants.

 

A direct benefit of the Bill is that it provides a nationally consistent framework for a preventive maritime security system. The consequences of non-compliance is high and ranges from detrimentally affecting relations with international trading partners to the adverse consequences of a terrorist attack on the public health and safety as well as government and private industry assets and business operations.

 

There are numerous indirect benefits to managing maritime security through explicit government regulation, including upholding Australia’s reputation as a ‘secure’ trading partners, centralising the cost of administration, improving waterfront occupational health and safety, and reducing maritime industry participants’ insurance costs by reducing the instances of theft and property damage.

 

Costs

 

Security regulated ports, including port facilities within these ports

 

The Bill places obligations on port authorities and/or those entities controlling vital areas of water in ports or approaches to ports to take an active role in port security. This is necessary because the definition of a ‘port facility’ in Chapter XI-2 and the ISPS Code refers to a location which covers areas where ship-port interfaces take place rather than an entity, such as a port authority or a Harbourmaster. The definition of the international term ‘port facility’ includes areas where direct interfaces take place as well as indirect interfaces, such as anchorages, waiting berths and seaward approaches. In the Bill, security regulated ports will be those ports which interface directly or indirectly with the types of ships which are subject to the Bill.

 

The regulation of ports is not without jurisdictional complexities. Ports are traditionally under the jurisdiction of the States and the Northern Territory. As a result, this Bill will have cost and resource implications for the States and Northern Territory governments. At the Australian Transport Council (ATC) meeting in May 2003 it was agreed with States and Northern Territory Transport Ministers that for the purpose of implementing the international maritime security regime the Australian Government would need to be able to regulate the entities controlling waterways. The States and the Northern Territory will be obliged to provide adequate security of their assets as owners of these assets. This is in line with the Commonwealth, State and Territory governments’ principles on the protection of critical infrastructure as outlined in the National Counter-Terrorism Committee’s paper ‘Critical Infrastructure Protection in Australia’.

 

The following statutory obligations on operators of security regulated ports, and port facilities within these ports, are most likely to have the greatest cost impact:

 

·          Security regulated ports, and relevant port facility operators, will be obliged to self-assess existing security arrangements. On completion of security assessments, port operators, and port facility operators, will need to prepare security plans based on existing arrangements and identify additional security measures and activities to ensure compliance with the Bill. The plans will include security measures and activities to be implemented at security level 1 (default level), security level 2 and security level 3. The security plans will need to be submitted to the Secretary of DOTARS for approval, and DOTARS will assess compliance as required.

·          When undertaking security assessments, port operators, and relevant port facility operators, should identify areas within their ports, and port facilities, which may require stricter access control arrangements and may qualify for the establishment of a maritime security zone under the Bill. The location of the proposed maritime security zones must be submitted to the Secretary for consideration. Once the Secretary has established such a zone the port operator, or port facility operator, will be obliged to comply with extra statutory requirements, for example, screening of passengers and public notification of the boundaries of a zone. This is essential to support the enforcement regime outlined in the Bill.

·          The Secretary may direct a port operator and/or one or more port facility operators within a security regulated port to implement extra security measures and activities on top of those already established in the port or port facility operator’s security plan at the existing security level (1, 2 or 3) when an unlawful interference with maritime transport is imminent or probable.

 

At this early stage of implementation, it is extremely difficult to estimate the cost of enhancing security at the approximately 70 ports which will become security regulated ports, and the up to 300 port facilities within these ports. The local security assessment might show that a port or port facility is adequately equipped to be considered compliant with the provisions in the Bill. For example, some ports and port facilities may already have security equipment, such as hand-held radios, gates, closed circuit TV (CCTV), lights, communications system, fencing and security guards. In this case, additional costs due to upgrading security to meet the new requirements will be minimal. DOTARS is not in the position at this early stage of implementation to know exactly what security arrangements exist at each port and port facility.

 

The OECD report referred to in Part 1 does not provide conclusive figures for port security costs as it acknowledges that these costs will vary dramatically from port to port and will depend on what security is already in place. For example, container facilities will have security in place to reduce theft. For some types of cargo there are already extra security requirements in place, for example, for dangerous goods. Staffing costs will also vary according to local labour costs. The report concludes that the highest cost items for ports are most likely to be security officers and security guards.

 

Given the above caveats, the figures below must be treated with caution. They are based on an early estimate made by an independent consultant engaged by DOTARS, who undertook a desktop audit of potential security costs to 50 Australian ports based on a prescriptive regulatory model. The ports were grouped into four different risk categories, ranging from the high risk Category A to the low risk Category D. A Category A port would typically comprise a range of diverse port facilities and terminals, such as container terminals, multi-purpose terminals, passenger ship terminals, liquid bulk terminals, and tug and pilot boat facilities. These terminals and port facilities would have different security needs and requirements. The consultant estimated that a Category A port would require physical security measures (eg. fencing, patrols, CCTV, etc) and procedural measures (eg. access control, etc). Table 1 reproduces an aggregate figure for Category A ports based on the consultant’s estimates.

 

Table 1: DOTARS cost estimates for high risk Australian ports (security level 1)

 

Items

$ million

Closed circuit TV (CCTV) to monitor access to the port or port facility

33

Communications, such as radios, data links, etc

33

Guards and patrols

33

Vehicle booking/community system for the tracking and management of vehicles access and departing from port facilities

28

Perimeter lighting

11

Perimeter fencing

11

Security briefings/security committees

3

Personnel ID system   

2.6

Uninterrupted power supply

2.4

Personnel x-ray system, including bag conveyor, for passenger facilities

2

Training          

1

Possible additional cargo security prior to loading containers at major ports

80

Other, including cost of security assessments and security plan development

36

Total

276

 

Lower risk ports are expected to incur significantly lower costs in meeting the requirements in the Bill. For these types of ports the initial costs have been estimated to be up to $24 million.

 

In summary, total set-up costs to security regulated ports, including the port facilities within these ports, could be up to $300 million with ongoing costs up to $90 million p.a.

 

Increasing from security level 1 to 2 could mean introducing extra security measures such as additional patrols, limiting access points, increasing searches of persons, personal effects and vehicles, denying access to visitors, and using patrol vessels to enhance waterside security. The cost of such measures could be about $5,000 per day for each port or port facility concerned. Port and port facility operations should be able to continue without significant delays at this level.

 

Maritime security level 3 is unlikely to be imposed on a national basis. The Secretary may declare that maritime security level 2 or 3 is in force for a port or a number of facilities or terminals if a heightened security risk to maritime transport has been identified. As the intelligence used to trigger a move to maritime security level 3 will be specific, DOTARS, in consultation with other Commonwealth agencies, such as the Australian Security Intelligence Organisation (ASIO) and the Australian Federal Police (AFP), will issue specific and targeted advice, aimed at reducing the risk associated with the specific threat. In extreme circumstances coordination and response arrangements will be progressed in accordance with the National Counter-Terrorism Plan.

 

The costs of augmenting security at maritime security level 3 could be considerable and could result in operations being slowed down. For example, a container terminal could lose about $100,000 per day in revenue from suspension of container ship operations. Costs at liquid bulk terminals (for example, petroleum products, gas) and dry bulk terminals (for example, coal, iron ore, grain) would be considerably less as there are less people and equipment involved in the operations of such terminals.

 

In addition to the higher maritime security levels, the Secretary may also issue security directions to individual ports and facilities that may be affected by a particular threat. The Secretary must not give this kind of direction unless an unlawful interference with maritime transport is imminent or probable. A security direction can be given at security level 1, 2 or 3 and will be revoked by the Secretary once intelligence information has been received that the imminent or probable threat has subsided.

 

There will be penalties for non-compliance with the Bill. The penalties for breaching provisions which could seriously compromise maritime security are 200 penalties units for a port or port facility operator, 100 for penalties units for a minor maritime industry participant, and 50 penalty units for any person. In monetary terms, 200 penalties units for an individual equals $22,000, and for a body corporate $110,000. Infringement notices can be issued for less serious breaches of the Bill. The maximum amount of an infringement notice may not exceed one-fifth of the maximum fine that a court could impose, ie. the above monetary fines.

 

Regulated Australian ships

 

Australian ships which are of a certain type will be considered regulated Australian ships and as such will need to comply with the requirements in the Bill. The new security arrangements in the Bill apply to all Australian passenger ships and cargo ships of 500 gross tonnage and upwards on inter-state and international voyages. The Bill also has provisions which apply to foreign ships on intra-state and inter-state voyages which are referred to as regulated foreign ships.

 

While SOLAS and Chapter XI-2 only apply to certain types of ships on international voyages, the Australian Government decided to extend the maritime security regime to ensure broader coverage and better security of Australian ships and ports. The external affairs power in the Constitution provided the necessary head of power for the Australian Government to extend the application of the Convention to Australian ships on inter-state voyages.

 

The following statutory obligations on the operators of regulated Australian ships are most likely to have the greatest cost impact:

 

·          Operators of regulated Australian ships will be obliged to self-assess existing security arrangements for their ships. On completion of the security assessments, ship operators will need to prepare security plans based on existing arrangements and identify additional security measures and activities to ensure compliance with the Bill and to qualify for an International Ship Security Certificate (ISSC). The plans will include security measures and activities to be implemented at security level 1 (default level), security level 2 and security level 3. The security plans will need to be submitted to the Secretary of DOTARS for approval, and DOTARS will assess compliance as required. The ISSC will be issued by the Secretary once security measures have been adequately implemented on board a regulated Australian ship. This certificate ensures compliance with the ISPS Code, and it is essential that ship operators obtain ISSCs for their ships if they wish their ships to trade with ports classified as secure under the ISPS Code.

·          When undertaking a security assessments, ship operators should identify areas on board their ships which may require stricter access control arrangements and may qualify for the establishment of an on board security zone under the Bill. The location of the proposed zones must be submitted to the Secretary for consideration. Once the Secretary has established such a zone the ship operator will be obliged to comply with extra statutory requirements, for example, screening of passengers and public notification of the boundaries of a zone. This is essential to support the enforcement regime outlined in the Bill.

·          The Secretary may direct a ship operator to implement extra security measures and activities on top of those already established in the ship’s security plan at the existing security level (1, 2 or 3) when if an unlawful interference with maritime transport is imminent or probable.

 

At present, there are approximately 70 Australian registered trading ships (8 on international voyages and 62 on coastal voyages) that could be engaged in international or inter-state coastal trading and would be classified as regulated Australian ships under the Bill. In addition, the Bill will also apply to mobile offshore industry units. These units will be classified as ships if able to navigate the high seas. While DOTARS has not been able to obtain an accurate figure, the number of such units which are Australian registered appears to be very small.

 

It should be noted that ship operators could easily switch trading ships between international, inter-state and intra-state voyages. The cost estimate below assumes that all Australian registered ships that come within the ambit of SOLAS Convention Regulation 3 could be used on international or inter-state voyages.

 

Table 2: DOTARS cost estimates for Australian regulated ship (security level 1)

 

Items

$ million

Security in port, such as guards, watchmen, offside patrols when required

4.55

Training

3.77

Structural modifications to secure access to on-board security zones

1.65

Equipment, including the ship security alert system

0.45

Personal identification

0.45

Admin/record keeping

0.35

Other, including cost of security assessments and security plan development

1.78

Total

13

 

On the above basis it is estimated that the initial costs for complying with the requirements in the Bill will be around $13 million. Ongoing costs have been estimated to be at around $6 million per year.

 

For the sake of comparison, the US Coastguard (USCG) figures for ship compliance with the ISPS Code have been reproduced here from the OECD report. The USCG requires a high standard of compliance from the shipping industry. The costings per item per ship provide a benchmark for investment costs. According to the USCG assessment, the highest costs to ship operators will be crew training, the ship security alert system, auto-intrusion alarms, and additional locks and lights on board ships to detect unlawful interference.

 

Table 3: US Coastguard cost estimates for ship compliance with the ISPS Code (in Australian dollars)

 

Items

Initial cost

per ship over 1,000 gross tonnage

Ongoing cost

per ship over 1,000 tonnage

Ship security alert system

$3,070

$153

Key crew training

$7,678

$7,678

Ship security assessment

$2,457

0

Ship security plan

$614

0

Ship security officer (function to be given to Master who on average would be occupied 5 days per year in this role)

$1,045

$1,045

Ship security training and drills (1 hour 4 times per year)

$581

$581

Total

$15,445

$9,457

 

In addition, ships to which Chapter XI-2 applies will need to be fitted out with security equipment. Tables 4, 5 and 6 are based on US Coastguard figures for compliance with Part B of the ISPS Code, which is beyond the intention of the Bill as Part B was designed by the IMO to be recommendatory only. Australian ship operators who wish to trade with the US will need to be aware of the US maritime security laws and make the necessary arrangements.

 

Table 4: US Coastguard figures for security equipment for a tanker (oil, gas, chemical) required to comply with Part B of the ISPS Code (in Australian dollars)

 

Equipment with USCG recommended quantity

Initial cost

per ship

Ongoing cost

per ship

1 hand-held metal detector

$306

$15

5 hand-held radios

$1,530

$76

10 locks

$4,590

$229

5 lights

$3,060

$153

5 auto-intrusion alarms

$3,825

$191

Total

$13,311

$664

 

Table 5: US Coastguard figures for security equipment for a freighter required to comply with Part B of the ISPS Code (in Australian dollars)

 

Equipment with USCG recommended quantity

Initial cost

per ship

Ongoing cost

per ship

2 hand-held metal detectors

$612

$30

5 hand-held radios

$1,530

$76

10 locks

$4,590

$229

5 lights

$3,060

$153

5 auto-intrusion alarms

$3,825

$191

1 portable vapour detector (for explosives)

$12,240

$612

Total

$25,857

$1,291

 

Table 6: US Coastguard figures for security equipment for ships under 1,000 gross tonnage required to comply with Part B of the ISPS Code (in Australian dollars)

 

Equipment with USCG

Recommended quantity

Initial cost

per ship

Ongoing cost

per ship

3 hand-held radios

$918

$15

5 locks

$2,295

$114

5 lights

$3,060

$153

2 auto-intrusion alarms

$1,530

$76

Total

$7,803

$358

 

Ship operators will also need to consider employing a company security officer who will have a key role in enabling communication between a ship, the company and relevant authorities. If the company is operating less than 10 ships on international voyages the USCG estimates the annual salary for this function to be US$37,500 which is AU$57,575. The training for this officer is estimated to be US$3,500 per year which is AU$5,374. The salary for a company security officer in a company operating more than 10 ships on international voyages is substantially higher. There are only 8 Australian flagged ships on international voyages so this figure has not been included in this comparison.

 

As for security regulated ports and the facilities within these ports, increasing from security level 1 to 2 will mean introducing extra security measures. The cost of such measures could be about $2,000 per day for each ship involved in the heightened security situation. Ship operations should be able to continue without significant delays at this level.

 

The costs of augmenting security at level 3 depends on the type of ship. Operators of container ships are more likely to face higher security costs at security level 3. Costs to container shipping companies could be about $30,000 for each day that a container ship is delayed. The operating costs of most bulk ships are significantly less than for container ships. However, as mentioned above, the Secretary may only impose security level 3 when a threat is imminent or probable in which case the ship operator would have a vested interest in incurring the costs of higher security to protect the asset and the crew.

 

As for port and port facility operators, there will be penalties for non-compliance by the ship operator, or master in certain instances. The same graduated penalty scheme as above applies.

 

Summary of costs to maritime industry participants

 

The best estimate that can be made at this stage of the set-up costs to the Australian maritime sector (ports and ships) of complying with the IMO security measures would be $313 million in the first year. It is estimated that ongoing costs will be around $96 million p.a. for ships and ports.

 

It is important to remember that because these expenses are being required for compliance with a significant international agreement, these costs will not just apply to the Australian maritime industry sector but to shipping and port services sectors in all countries which are signatories to the SOLAS Convention. In fact, even those countries which are not SOLAS signatories, will have a vested commercial interest in complying with the minimum security requirements in Chapter XI-2 and the ISPS Code to be able to continue their current trading arrangements with the maritime sector in SOLAS countries. The global necessity for compliance investment means that the need for Australian maritime industry participants to budget for compliance with the Bill should not have a major impact on the competitiveness of Australia’s shipping and port services industry.

 

Table 6: Summary of aggregate cost estimates (security level 1)

 

Maritime industry participant

Initial investment

$ million

Ongoing expenses

$ million

Security regulated ports, including port facilities within these ports

$300

$90

Regulated Australian ships

$13

$6

Total

$313

$96

 

For illustrative purposes, the cost impact on cargo could represent about $2 per tonne on containerised cargo and 40 cents per tonne on bulk cargo. While shipping companies and port facility operators can be expected to recover the costs of security measures through their normal charging mechanisms, the final cost impact on consumers of goods carried by sea is expected to be very small.

 

The above costs relate to security measures and activities at security level 1. The costs would increase proportionate to the additional measures or activities to be undertaken at security levels 2 and 3. Additional costs would be incurred when the Secretary issues security directions, which can happen at security level 1, 2 or 3. Additional costs would be greatest if the Secretary issued a security direction to a maritime industry participant who was already operating at security level 3. However, in this case the probability of the terrorist incident or other unlawful interference occurring would be so high that the maritime industry participant would have a vested interest in incurring additional costs to protect his or her assets, staff and business operations from the attack or other serious damage.

 

It should be noted that these costs must be seen in an operational context. Firstly, the set-up costs associated with raising standards in order to meet the new security requirements will largely be capital in nature. Although purchased in Year 1, the capital assets purchased will have an effective life which is much greater. In some cases, the effective life of an asset may be 20 years. These costs would typically be represented over this 20-year period under an accrual accounting system - not on a cash basis. Secondly, the costs which are incurred through the implementation of the security measures, although principally required for security reasons, are expected to also provide business benefits. Examples include reduced criminal activity and efficiencies from improved procedures.

 

A difficulty in quantifying the ‘costs’ to industry is that the real costs are difficult to determine. Some of the costs mentioned above are in addition to the costs which would otherwise be expended through the normal course of doing business. Introducing the new security measures will effectively bring many costs forward, when infrastructure may have actually been upgraded on replacement in any event. Additionally, whilst costs are easier to quantify - at least in ‘book’ terms - the benefits resulting from the costs are much more difficult to quantify, and may not be immediately apparent. Reduced criminal activity and improving the integrity of cargo and confidence in the business all have commercial merit and inherent value. Some of these benefits will accrue over time and are not possible to include in an informed cost/benefit analysis at this time.

 

It is implicit in the OECD report that lax security at ports, facilities and on board ships will be perceived to be less attractive to trading partners which strengthens the argument that compliance with the new security measures is a cost of doing business in the maritime sector.

 

How to meet the costs

 

It is the Australian Government’s view that preventive security is a cost of doing business. Maritime industry participants are in a position to recover the costs of additional security measures through existing cost recovery mechanisms. The Bill does make provision for the sharing of security arrangements. This opens up the option of local arrangements between the public and private sector to assist the development of viable cost-effective approaches to maritime security. Once again, it needs to be emphasised that the cost of security at an individual port, port facility, terminal, ship, or other maritime industry service provider will depend on existing security arrangements.

 

In some cases, upgrading security could result in reduced insurance premiums through a reduction in the perceived level of risk. The shipping industry is already imposing surcharges arising from increased insurance premiums on ships trading to a number of countries in the Middle-East. These surcharges have ranged from $50 per container to about $290 per container for ships calling at Yemen where the terrorist attack on the French tanker Limburg occurred.

 

The costs of additional security at ports will need to be borne by State and the Northern Territory governments and the private sector. This is in line with the existing arrangements which recognise that while the Australian Government’s role is to, among others, provide coordination and national leadership in areas of joint responsibility such as maritime transport, the owners and operators of critical infrastructure have the responsibility of providing adequate security of their assets. In this case, the Bill provides a system for assessing the security at State and Territory owned ports and privately owned or leased maritime facilities, and based on these assessment further investments may be necessary to ensure national compliance, consistency and fairness across all jurisdictions and ports.

 

In addition to potential costs for upgrading security at ports, States and the Northern Territory governments and the private sector will also need to consider the costs of enforcement. The new trespassing penalties may result in an increase in requests for police presence at ports and waterside police patrols.

 

Australian Government costs

 

DOTARS’ regulatory roles and responsibilities will include:

 

·          assessment of port, port facility and ship security plans;

·          verification of ship security and issuing of International Ship Security Certificates;

·          checking of compliance;

·          management of sensitive security threat information;

·          negotiating agreement on Memoranda of Understanding with other Australian Government departments which will be assisting with the ISPS compliance checking of foreign ships;

·          establishment of communications network with maritime industry participants;

·          regular liaison with other Commonwealth departments and State and Northern Territory authorities;

·          undertaking of compliance checking of foreign ships and control functions regarding non-compliant foreign ships;

·          regular reporting on compliance issues to the IMO; and

·          staff training.

 

The 2003-4 budget allocation is $15.6 million over 2 years for DOTARS’ administrative, compliance and monitoring duties.

 

Option 2: Self-regulation

 

Benefits

 

The voluntary nature of self-regulation means that maritime transport security initiatives would be implemented at the discretion of industry. There would be a fair amount of freedom and flexibility for industry to decide on how to implement the obligations under Chapter XI-2 and the ISPS Code through a code of conduct. Industry would retain ownership of the problem and the solution.

 

Self-regulation by industry may result in the implementation of security measures which minimise costs to industry participants and reduce need for major investment in security treatments. Industry may benefit from reduced compliance costs in comparison to explicit government regulation.

 

The lack of government involvement would mean that public resources would be allocated to other portfolios.

 

Costs

 

There would be administrative costs associated with the development of the code and the consultation period with key industry groups. It would be administratively advisable to establish a peak regulatory body to administer the code. There would be costs involved with the administration of this national body and its subsidiaries, if any, in all States and the Northern Territory. These costs would be passed on to code members and would add to their costs of doing business. Annual conferences and seminars would need to be held to update members on new approaches and amendments to the code. Event hosting and travelling to events are costly, and would need to be subsidised by the members.

 

In return, the discretionary self-regulatory scheme may provide cost savings to members in the form of lenient security standards. There would be little incentive to comply as there will be no strict compliance and enforcement provisions in a voluntary industry code of conduct, apart from, for example, excluding members from the code or providing commercial disincentives or fines.

 

Non-compliance with the standards set in the ISPS Code would seriously disadvantage the reputation of Australia as a secure trading nation. To ensure a nationally consistent approach and be able to justify this approach and the impeccability of its implementation to the IMO the Australian Government would need to allocate resources to setting up a body to monitor the compliance with the code or determine a governance structure with strict terms of reference to temper industry’s discretionary decision making powers regarding maritime security.

 

In the end, the seriousness of the problem identified in Part 1 of this RIS, and the international obligations which flow from Chapter XI-2 and the ISPS Code do not lend themselves to industry self-regulation.

 

Option 3: Devolution of the responsibility for maritime security regulation to the States and Northern Territory

 

Benefits

 

A benefit that would result from this approach is that the administrative costs for the implementation of Chapter XI-2 and the ISPS Code are transferred from the Australian Government to the States and Northern Territory governments. This would result in a freeing up of Commonwealth resources for other portfolios’ responsibilities.

 

Having local knowledge of an issue and being able to determine local solutions to local problems can have positive effects on all involved. Local industry would benefit from being able to come to cooperative arrangements with their State or Northern Territory Government and associated maritime and/or transport authority. Local enforcement arrangements would be made to accommodate all budgets and human resource capabilities.

 

In addition, the Australian Government would not need to introduce a major piece of legislation as is being proposed here. Instead, and for the purposes of regulating how State and Northern Territory governments implement the international requirements, the Australian Government could introduce an overarching statutory framework which would enable the devolution of authority on maritime security to the other jurisdictions and result in State and Northern Territory legislation being developed. The Commonwealth framework would need to include strict reporting mechanisms because the Australian Government, as the signatory to SOLAS, would retain the responsibility of communication on industry compliance with Chapter XI-2 and the ISPS Code to the IMO.

 

Costs

 

Having seven authorities - one in each State and Northern Territory - with responsibility for implementing the IMO security measures is likely to cost significantly more than having a central authority. There could be problems with the consistency of enforcement of the security standards and this could impact adversely on Australia’s export trades, particularly if other signatories to SOLAS believes that the Australian arrangements were not applied according to the international agreement across all Australian jurisdictions. The aggregate costs to business are therefore likely to be higher not only due to administrative duplication, but also through inconsistency of application. These costs would be greatly magnified if Australia’s reputation as a secure trading partner were undermined.

 

The Australian Government would need to maintain and resource an administrative function in order to report back to the IMO on the implementation of Chapter XI-2 and the ISPS Code.

 

Part 5              Consultation

 

DOTARS has consulted extensively with representatives from the maritime industry, Commonwealth departments, and State and Northern Territory governments and relevant authorities. Attachment A lists the groups of stakeholders consulted and types of forums used for consultation and information dissemination. Overall, there has been a high level of cooperation from all concerned. At State and Northern Territory level it was acknowledged at the Australian Transport Council (ATC) meeting in May 2003 that the Australian Government needed to take the lead role in maritime security regulation.

 

The most significant consultation process was the recent release of the exposure draft of the Bill to peak maritime industry organisations, State and Territory transport and maritime authorities, and a number of other influential organisations and senior staff. Around 40 submissions were received by the deadline. Key issues identified were:

 

·          differences in the use of terminology between Chapter XI-2 and the Bill;

·          lack of detail in the Bill;

·          overlap with maritime safety issues, particularly in the definition of unlawful interference with maritime operations;

·          enforcement of waterside issues;

·          zoning provisions too top down;

·          relationship between a port security plan and a port facility security plan unclear;

·          definition of a security regulated ship difficult to understand;

·          definition of critical installation unclear;

·          demerit points system questioned;

·          implications for existing cost recovery mechanisms at State and Territory level for port services mentioned;

·          penalties on non-compliant foreign ships considered too lenient; and

·          some concerns about the responsibilities attached to incident reporting.

 

DOTARS considered the merits of these issues and where reasonable have reflected these in the Bill. In some cases, further clarification of the intention of a particular provision, or group of provisions, in the Bill has been provided in the Explanatory Memorandum. Many of the issues raised will be addressed in the regulations as they relate predominantly to operational matters.

 

Part 6              Recommended Option

 

It is recommended that Option 1 be adopted.

 

Attachment A - Consultation on exposure draft

 

The exposure draft was sent to all key Commonwealth departments with a presence at ports, otherwise involved in the maritime industry, or with an interest in law enforcement and legal matters. The draft was also sent to peak industry bodies, State and Northern Territory premier departments and transport agencies and other relevant authorities, police agencies in all States and the Northern Territory, the Australian Local Government Association, and a number of maritime unions.

 

During the consultation period bilateral discussions were held with relevant Commonwealth departments and agencies, the NSW government, peak industry bodies, and the Maritime Union of Australia.

 

Maritime Security Working Group (MSWG)

 

The primary vehicle for consultation relating to the IMO’s security framework is the Maritime Security Working Group. Membership comprises senior representatives of relevant Commonwealth departments, State and Northern Territory maritime and transport agencies, and peak industry bodies. The MSWG met 5 times in 2002.

 

Australian Transport Council (ATC)

 

The Australian Transport Council (ATC) is a Ministerial forum for Commonwealth, State and Territory consultations and provides advice to governments on the coordination and integration of all transport policy issues at a national level. The new maritime security measures were presented to ATC at meetings, most recently in May 2003.

 

Standing Committee on Transport (SCOT)

 

ATC is supported by the Standing Committee on Transport (SCOT) comprising a nominee of each ATC Minister, generally at Head of Department/Agency level. Maritime security issues were presented to SCOT at 3 meetings in 2002 and 1 meeting in 2003.

 

Australian Maritime Group (AMG)

 

The Australian Maritime Group is a sub-committee of SCOT. It brings together senior Commonwealth, State and Territory officials for consultations on the maritime sector. AMG discussed maritime security issues at 3 meetings in 2002 and 2 meetings in 2003.

 

The AMG has an ad hoc group on maritime security, which met 3 times in 2002 and 5 times in 2003. The ad hoc group has closely scrutinised the policy and implementation model developed by DOTARS from the perspective of State and Territory governments with constitutional responsibility for ports, and as the owners and operators of ports and port facilities in several jurisdictions.

 

Industry meetings

 

Briefings and general presentations were provided to a range of key industry stakeholders, often at the invitation of the stakeholder organisation or group. Industry groups have included port authorities/port owners, shipping companies, State Counter-Terrorism Units, law enforcement organisations, and peak industry associations. There were 6 meetings in December 2002 and over 40 meetings in 2003.

 

Preventive Maritime Security Workshops

 

From May to July 2003 DOTARS held preventive maritime security workshops in each State and the Northern Territory to inform industry and other interested persons about the broad approach taken in the Bill to maritime security.



MARITIME TRANSPORT SECURITY BILL 2003

 

 

NOTES ON CLAUSES

 

 

PART 1 - PRELIMINARY

 

Division 1 - Short title and commencement

 

Clause 1  Short title

This clause provides that the Bill, once enacted, will be known as the Maritime Transport Security Act 2003 .

 

Clause 2  Commencement

This clause provides that the Bill commences in two stages:

 

1.       the day on which the Bill receives the royal assent;

2.       a day fixed by proclamation.

 

Royal Assent

The provisions of the Bill commencing on Royal Assent are those that establish definitions, various processes (for example, the declaration of security regulated ports and for approval and cancellation of plans), describe the powers of maritime security inspectors and allow for review of decisions.

 

By proclamation

All remaining provisions of the Bill will commence on the same day fixed by proclamation. If the provisions do not commence within 12 months of the Act receiving Royal Assent, then the provisions will commence immediately after 12 months from Royal Assent. The provisions commencing by proclamation are for example those that create an obligation on a maritime industry participant to comply with their security plans, provide for some powers of officials and the enforcement provisions. It is anticipated that the date of proclamation will be 1 July 2004 when Australia's obligations under the maritime security amendments to the SOLAS Convention enter into force.

 

The two stage commencements allows maritime industry participants time to recognise their obligations and to have their maritime security plans approved by the Secretary and in place before the obligations and associated penalties come into force.

 

Division 2 - Purposes and simplified overview of this Act

 

Clause 3  Purpose of this Act

This clause describes the purposes of the Bill. The main purpose of the Bill is to establish a regulatory framework that will safeguard maritime transport against unlawful interference. In particular, the framework is aimed at protecting ships, ports and port facilities within Australia, and Australian ships operating outside of Australia. The Bill will establish certain security requirements for maritime activities, requiring persons involved in these activities to meet certain obligations. A particular obligation is the requirement of certain maritime industry participants to develop, and comply with, maritime security plans.

 

The regulatory framework established by this Bill is based on the four maritime security outcomes listed under subclause 3(4). The maritime security outcomes are:

(a)                 Australia’s obligations under Chapter XI-2 of the SOLAS Convention and the ISPS Code, including those with regard to the welfare of seafarers are met;

(b)                the vulnerability to terrorist attack of Australian ships, ports and other ships within Australia is reduced without undue disruption to trade;

(c)                 the risk that maritime transport is used to facilitate terrorist or other unlawful activities is reduced; and

(d)                security information is communicated effectively among maritime industry participants and government agencies with maritime transport security responsibilities.

 

The purpose of the outcomes-based framework is to enable maritime industry participants to develop security measures relevant to their particular circumstances. Maritime security plans will outline security measures that respond to the security risks identified by regulated Australian ships, ports and port facilities.

 

Clause 4  Simplified overview of this Act

This clause provides a simplified overview of this Bill.

 

Division 3 - Application

 

Clause 5  Extension to Territories

This clause provides that the Bill will apply in Australia and all its external territories, eg. Christmas Island and Norfolk Island.

 

Clause 6  Geographical jurisdiction

This clause notes that section 15.2 of the Criminal Code (extended geographical jurisdiction - category B) applies to an offence against this Bill. The extension of geographical jurisdiction under section 15.2 of the Criminal Code requires the offending conduct to have a connection with Australia. There may be occasions where a person should be liable under Australian law for conduct that occurs outside Australia due to the impact that conduct might have on our maritime security system. The fact that the conduct is not a crime under the law of the foreign country where the conduct occurred may be used as a defence for persons who are not Australian citizens or Australian companies.

 

Because of the definition of this Act any regulations made under the Bill will also have extended geographical jurisdiction.

 

Clause 7  Act to bind Crown

This clause provides that the Crown in right of the Commonwealth and all the States and Territories is subject to the Bill, but it cannot be prosecuted for an offence under the Bill.

 

Clause 8  Operation of State and Territory laws

This clause provides that the Bill will not exclusively regulate maritime security and that State or Territory laws relating to maritime security remain in force except to the extent that they are inconsistent with the operation of this Bill.

 

Clause 9  Act not to apply to state ships etc.

This clause provides that the Bill does not apply to warships or other ships operated for naval, military, customs or law enforcement purposes by Australia or by a foreign state, nor will it apply to other ships owned, leased, chartered by, or in the operational control of the Commonwealth, a State or Territory and being used wholly for non-commercial activities (such as government-operated scientific research vessels).

 

The Australian Defence Force (ADF) and the Australian Customs Service are not included in the definition of a maritime industry participant. The provisions of this Bill also do not apply to ports and port facilities operated exclusively by the ADF. Provision has also been made to exclude from the operation of this Bill other Commonwealth agencies that may have been inadvertently captured by the definition of a maritime industry participant by prescribing the agency in the regulations.

 

Division 4 - Definitions

 

Clause 10  Definitions

This clause defines certain terms used in the Bill. The definitions appear in alphabetical order in the Bill. The definitions are best read in conjunction with the relevant parts of the Bill. A number of key definitions are included here.

 

Australian waters means the following:

·          the territorial sea of Australia which extends 12 nautical miles from the territorial sea baseline; and

·          the waters of the sea on the landward side of the territorial sea; and

·          the territorial sea of each Territory; and

·          the waters of the sea on the landward side of the territorial sea of each external Territory; and

·          inland waters prescribed in regulations.

 

The regulations may prescribe a security regulated port extends beyond what are considered to be the waters of the sea. For example, where port facilities are located upriver.

 

Declaration of Security means an agreement reached between a ship and other party (ship or a person) which identifies the security activities or measures to be undertaken or implemented by each party in specified circumstances.

 

Cleared area means an area that can only be entered by persons who have received clearance. A cleared area is considered a secure environment, as all persons within that area have been screened for weapons and other prohibited items or otherwise deemed cleared. A cleared area can no longer be considered secure, and ceases to be a cleared area, if uncleared persons or goods move into the area. Part 6 has the required regulation making powers for the establishment of cleared areas within certain zones. Part 7 has the provisions for screening and clearing persons, goods, vehicles and vessels.

 

ISSC means an International Ship Security Certificate, a document issued to a ship operator upon verification that the ship meets particular security requirements. Ship operators of regulated Australian ships will apply to the Secretary for an ISSC. Ship operators of regulated foreign ships will need to present a valid ISSC issued for or on behalf of their flag state at any time while in Australian waters.

 

Maritime industry participant is defined to include persons who must have regard to maritime security matters as part of their business activities. A maritime industry participant includes:

·          A port operator;

·          A port facility operator;

·          An operator of a regulated Australian ship;

·          An operator of a regulated foreign ship;

·          A person (other than a maritime security inspector) appointed by the Secretary to perform a maritime security function;

·          A contractor who provides services to persons mentioned above;

·          A person who conducts a maritime-related enterprise and is prescribed in the regulations.

 

Maritime security levels means the security levels as advised by the Secretary which will inform maritime industry participants which measures in their security plans need to be implemented at any given time. Maritime security level 1 will be in place unless the Secretary advises otherwise.

 

Maritime security plan is defined as a plan prepared for the purposes of Part 3. The plan includes a security assessment and details of measures to be implemented at each of the three maritime security levels. The maritime security plan is the key mechanism which maritime industry participants will use to guide their management of risks and implementation of security measures within their areas of responsibility.

 

Passenger means a passenger travelling by maritime transport and includes an intending passenger. A passenger need not be a fare paying passenger.

 

Prohibited item means an item that:

·          could be used for unlawful interference with maritime transport; and

·          is prescribed in the regulations for the purposes of this definition.

 

This definition recognised that many items, which are not strictly considered to be weapons, could be used to threaten, injure or in any way commit an act of unlawful interference with maritime transport. The penalties that pertain to prohibited items are significantly lower than those for weapons to reflect the relative seriousness of the offences. The reference to unlawful interference with maritime transport appropriately limits the regulation making power given there are serious offences attached to the definition.

 

Port operator is defined as a person designated by the Secretary through the Gazette to be the operator of a security regulated port.

 

Port facility operator means a person who operates a port facility, being an area within a security regulated port used wholly or partly for the loading or unloading of ships.

 

Port security zone means a zone within a security regulated port established for the purposes of controlling movement, restricting access and generally preventing unlawful interference with maritime transport as described in clause 102. The Secretary will establish a port security zone by a written notice to the port operator and any relevant maritime industry participants controlling areas within the zone (eg. port facility operators).

 

Recognised security organisation means an organisation that the Secretary has determined in writing and to whom all or some of the powers and functions under Part 4 of this Act in relation to ship security plans and ISSCs has been delegated.

 

Regulated Australian ship means a Australian ship that is:

(a)                 a passenger ship used for overseas or inter-State voyages; or

(b)                a cargo ship of 500 or more gross tonnes used for overseas or inter-State voyages; or

(c)                 a mobile offshore drilling unit on an overseas or inter-State voyage; or

(d)                a ship of a kind prescribed in the regulations.

 

The regulations may prescribe that a ship which is covered by one of categories (a), (b) or (c) is not a regulated Australian ship.

 

Regulated foreign ship means a foreign ship that is:

(a)                 a passenger ship; or

(b)                a cargo ship of 500 or more gross tonnes; or

(c)                 a mobile offshore drilling unit; or

(d)                a ship of a kind prescribed in the regulations.

 

Security officer means a person designated by a maritime industry participant to implement and maintain:

(a)     the participant’s maritime security plan; or

(b)     the ship security plan for a ship operated by the participant.

 

Ship operator means the owner of a security regulated ship, or a person who has an agreement with the owner of a security regulated ship to be the ship operator for the ship for the purposes of this Bill, for example ship management company or bareboat charterer.

 

Security regulated port is defined as areas of water or land declared by the Secretary in the Gazette to be wholly or partly intended for use in connection with the movement, loading, unloading, maintenance or provisioning of security regulated ships.

 

Security regulated ship includes regulated Australian ships and regulated foreign ships which are subject to the security regulatory framework set out in this Bill.

 

Ship security records will be prescribed in the regulations and may include:

·          the ISSC for the ship;

·          details of the ship’s previous ten port calls and the security level at which the ship operated at those calls; and

·          certain parts of the ship security plan, consistent with the ISPS Code

 

Ship security zone means a zone declared by the Secretary under section 104 to operate around a ship while the ship is in a security regulated port, for the purpose of protecting the ship from unlawful interference. The declaration will be given both to the ship operator and the port operator of the port, or ports, where the zone will apply.

 

Weapon means:

(a)                 a firearm of any kind; or

(b)                a thing prescribed by the regulations as a weapon; or

(c)                 a device that, except for the absence of, or defect in, a part of the device, would be a weapon of a kind mentioned in paragraph (a) or (b); or

(d)                a device that is reasonably capable of being converted into a weapon of a kind mentioned in paragraph (a) or (b).

 

It is essential to allow the regulations to prescribe what a weapon is because new weapons may be developed and new threats may arise. Amendments in response to these situations may need to be inserted into the regulatory framework quickly, which is not achievable by having to amend an Act.

 

Division 5 - Unlawful interference with maritime transport

 

Clause 11  Meaning of unlawful interference with maritime transport

This clause defines the term unlawful interference with maritime transport . The term is central to the application and understanding of the Bill and its purpose. It defines the types of activities that constitute unlawful interference with maritime transport and thus the types of activities the Bill is aimed at safeguarding against. It covers conduct that threatens the safe operation of ports and ships and which may cause harm to passengers, crew, port personnel and the general public or damage to property (whether on board or off a ship).

 

Division 6 - Security regulated ports and port operators

 

This Division allows the Secretary to establish security regulated ports. The establishment of a security regulated port brings that particular port, port facilities and associated port services under the regulatory framework in this Bill.

 

Clause 12  Meaning of port

This clause provides that a port is defined as an area of water, or land and water (including any buildings, installations or equipment situated in or on that land or water) intended for use either wholly or partly in connection with the movement, loading, unloading, maintenance or provisioning of ships.

 

To further clarify this meaning, a port may include:

(a)                 areas of water, located between the land of the port and the open waters outside the port, which are intended for use by ships to gain access to load, unload or other land-based port facilities. For example, it includes the channels and approaches through which ships move from the open water to a berth.

(b)                areas of open water intended for anchoring or otherwise holding before they enter areas of water described in paragraph (a).

(c)                 areas of open water between the areas of water described in paragraphs (a) and (b). For instance, at roadsteads and other areas of open water where a ship loads or unloads cargo or passengers brought from a land-based port facility by smaller vessels.

 

This definition has been used to comprehensively cover the meaning and intention of the term ‘port facility’ as used in Chapter XI-2 of SOLAS. In Chapter XI-2 the definition of a ‘port facility’ refers a location where ship-port interfaces take place rather than an entity which controls, or has responsibility for, such interfaces. The definition refers to areas where direct ship-port interfaces take place as well as indirect interfaces, such as anchorages, waiting berths and seaward approaches.

 

Clause 13  Security regulated ports

This clause provides that the Secretary may publish a notice in the Gazette declaring areas of a port which meet the definition in clause 12 to comprise a security regulated port . Security regulated ports are those ports which interface directly or indirectly with the security regulated ships. The Gazette notice must include a map showing the boundaries of the security regulated port. The gazetted boundaries of a security regulated port indicate where some of the key regulatory obligations for maritime industry participants under this Bill commence and terminate. The gazettal serves the purpose of public notification of the boundaries of the security regulated port. This process is most likely to occur concurrently with the gazettal of the port operator (clause 14 refers).

 

A security regulated port will include the activities of a port operator, one or more port facility operators and other port service providers. For the purposes of this Bill, a ‘port facility’ does not have the same meaning as in Chapter XI-2 of SOLAS. In this Bill a ‘port facility’ will be those areas at which direct and indirect ship-port interfaces take place, including, but not limited to, container terminals, bulk terminals, passenger terminals, common user facilities, and other port service providers which fall under the meaning of a ‘maritime industry participant’ and are regulated under this Bill.

 

Subclause 13(3) clarifies that as naval ships are excluded from this Bill, the boundaries of a security regulated port may not include areas controlled exclusively by the Australian Defence Force.

 

In practice, the Government anticipates that ports wishing to be considered security regulated ports will identify themselves to the Secretary and provide a map of the boundaries of the port for the Secretary’s consideration.

 

Clause 14  Port operators

This clause provides that the Secretary may publish a notice in the Gazette designating a person as the port operator for the security regulated port. The port operator must be able to demonstrate that it has responsibility for the relevant waterside and landside areas within a proposed or an established security regulated port, for example, control of vessel movement and management of port infrastructure.

 

The person designated as port operator will then be a maritime industry participant and responsible for ensuring that relevant obligations under this Bill are met.

 

Subclause 14(2) places an obligation on the Secretary to take into account certain criteria when designating the port operator, for example the ability of the person to undertake the functions of a port operator, the physical and operational features of the port, and the views of the person, or persons, responsible for managing the operations of the ports.

 

In practice, the Government anticipates that appropriate persons will identify themselves as port operators to the Secretary.

 

Division 7 - Security regulated ships

 

Clause 15  Meaning of security regulated ship

This clause defines the term security regulated ship and outlines the types of ships that are included in the regulatory framework established by this Bill. Security regulated ships comprise regulated Australian ships and regulated foreign ships.

 

Clause 16  Meaning of regulated Australian ship

This clause defines that regulated Australian ships are Australian ships that fall into one of the following categories:

(a)                 passenger ship used for overseas or interstate voyages; or

(b)                cargo ship of 500 or more gross tonnes used for overseas or inter-State voyages; or

(c)                 a mobile offshore drilling unit that is on an overseas or inter-State voyage; or

(d)                a ship of a kind prescribed in the regulations.

 

A passenger ship is a ship that carries more than twelve passengers. Passenger ships may also be cargo ships and vice versa.

 

Government ships on commercial voyages are included if they fit into one of the categories outlined above.

 

Note that category (d) allows the regulations to prescribe other Australian ships to become regulated Australian ships should circumstances warrant the inclusion of other ships.

 

Clause 17  Meaning of regulated foreign ship

This clause defines regulated foreign ship s to be foreign ships that fall into one or more of the following categories:

(a)                 a passenger ship; or

(b)                a cargo ship of 500 or more gross tonnes; or

(c)                 a mobile offshore drilling unit; or

(d)                a ship of a kind prescribed in the regulations;

 

and are in Australian waters and in, or intending to enter, an Australian port. Regulated foreign ships are defined as such regardless of the nature of the voyage they are undertaking while in Australian waters (ie. overseas, interstate or intrastate). Foreign government ships on commercial voyages are included if they fit into one of the categories outlined above.

 

Division 8 - General defences

 

Clause 18  General defences

This clause allows for a person to be excused from an offence under this Bill when that person engages in conduct which would otherwise amount to an offence. For the excuse to operate the conduct must arise from circumstances where it was necessary and reasonable for the master of a ship to take steps to protect the safety or security of the ship or its cargo, a person on or off the ship, another ship or a port, port facility or other installation within a port.

 

An offence is also not committed if a person is required to do something in accordance with a security direction or a control direction that would otherwise be an offence or a contravention of the Bill. For example, a security direction may be issued requiring a port facility to do something that conflicts with the measures set out in its maritime security plan. In such a case, if the port facility operator complies with the direction, he or she would not be taken to have committed the offence of not complying with the plan.

 

Division 9 - Communicating with ship operators

 

Clause 19  Communicating with ship operators

This clause provides that, where a person is required to give a notice or direction to a ship operator, the person may give that direction to the shipping agent for the ship. This provision is in recognition of industry practice of communicating with ship operators and masters through the shipping agent.

 

PART 2 - MARITIME SECURITY LEVELS AND SECURITY DIRECTIONS

 

A system of three maritime security levels will operate according to the prevailing threat environment, providing direction to maritime industry participants on the security measures that should be implemented. Maritime industry participants will be required in their security plans (plans are covered in Part 3 of the Bill) to include information on the measures to be undertaken at each level and must implement the measures according to the security level. The Secretary may also provide specific security directions on particular measures to be implemented.

 

Division 1 - Simplified overview of Part

 

Clause 20  Simplified overview of Part

This clause provides an overview of each Division in this Part.

 

Division 2 - Maritime security levels 1, 2 and 3

 

Clause 21  Default security level - maritime security level 1

This clause provides that the default level is maritime security level 1. That is, unless the Secretary advises otherwise, maritime security level 1 applies at all times to each:

·          security regulated port;

·          regulated Australian ship;

·          area within a security regulated port; and

·          maritime industry participant.

 

Clause 22  Secretary may declare maritime security level 2 or 3

This clause provides that where there are grounds for raising the security level to 2 or 3, the Secretary will declare this in writing. A declaration may apply to one or more ports, regulated Australian ships or class of ships, areas within a security regulated port, operations within or in connection with a security regulated port or ports, or maritime industry participants.

 

The Secretary may also declare in writing that maritime security level 2 or 3 is in force for a regulated foreign ship. To clarify, this does not mean that, if a foreign regulated ship is operating at a higher security level than the port operator or port facility operator or other maritime industry participant, that any of these maritime industry participants will be obliged to match the foreign regulated ships security level. A declaration of security will be required in such circumstances.

 

Subclause 22(3) notes that the Secretary must only make a declaration of maritime security level 2 or 3 when a heightened risk to maritime transport has been identified and it is subsequently appropriate for increased security measures to be implemented for the port, ship, area (within a security regulated port), port facility or participant concerned.

 

Clause 23  When a maritime security level is in force

This clause provides that a security level declaration will remain in place for the port, ship, area or participant concerned until any period specified in the Secretary’s declaration expires, or the declaration is revoked in writing by the Secretary.

 

Clause 24  Maritime security level declaration for a port covers all port operations

This clause provides that where the Secretary makes a declaration for a security regulated port, the declaration applies to each area or security regulated ship and any operations conducted by a maritime industry participant within the boundaries of the security regulated port.

 

Clause 25  Security levels and complying with plans

This clause provides that where maritime security level 2 or 3 is in force, any affected maritime industry participant, area, port facility and operations of the participant, must comply with the corresponding measures set out in the security plan for that participant, area or operations. Subclause 44(1) states that it is an offence for a maritime industry participant to fail to comply with their security plan.

 

Similarly, where the declaration affects a regulated Australian ship, the corresponding measures set out in the ship security plan must be complied with; subclause 63(1) states that it is an offence for a ship operator to fail to comply with the security plan.

 

Clause 26  Maritime security level 1, 2 or 3 applies with security directions

This clause provides that when a security direction is given, the entity to which the direction is given must comply with the requirements of that direction, but all other measures remain in place at the existing security level. For example, if maritime security level 2 is in force and a security direction is given, security level 2 measures remain in force and the specific security direction must also be complied with. Where any conflict occurs between the maritime security level 2 measures and the security direction, the security direction takes precedence.

 

Division 3 - Notifying maritime security level 2 and 3 declarations and revocations

 

Clause 27  Notifying declarations covering security regulated ports

This clause describes the manner in which the Secretary is required to communicate to affected port operators and maritime industry participants the fact that a maritime security level 2 or 3 declaration has been made.

 

The Secretary must notify the port operator and maritime industry participant with a maritime security plan in force of the declaration as soon as practicable. In turn, the port operator must, as soon as practicable, advise the following persons of the change in the security level:

·          maritime industry participants covered by the port operator’s plan, or who operate within the boundaries of the port (for example a tug operator or pilot); and

·          the master of every security regulated ship within the port or about to enter the port. This will most likely occur when the security regulated ship confirms with the port operator that they are intending to enter a port.

 

Communicating the advice about the security level to be implemented will be critical to ensuring that all relevant maritime industry participants operating in the port and ships in or approaching the port have implemented measures commensurate with the security level, as outlined in each participant’s security plan. The level of protection implemented by the measures will reflect the risks faced by each maritime industry participant as outlined in each participant’s plan. If one or more participants are not notified of the change in security level, the port may be inadequately protected.

 

Clause 28  Notifying declarations covering security regulated ships

Clause 28 states that when a declaration of a maritime security level is made for a security regulated ship, either the ship operator or master of that ship must be notified by the Secretary. The ship operator may be required to notify the master.

 

Clause 29  Notifying declarations covering areas within security regulated ports

This clause provides that declarations of a maritime security level made for an area within a security regulated port must be notified by the Secretary to maritime industry participants controlling those areas, and the port operator.

 

Clause 30  Notifying declarations covering maritime industry participants

This clause provides that declarations of a maritime security level made for maritime industry participants must be notified by the Secretary to both the participant concerned and the port operator of the port in which that participant conducts operations, if the participant is not the port operator.

 

Clause 31  Notifying revocations

This clause provides that where the Secretary has advised a person that maritime security level 2 or 3 is in force and the declaration is revoked, he must, as soon as practicable, notify the person of the revocation. Similarly, if a port or ship operator has notified a person that security level 2 or 3 is in force, and the Secretary revokes the declaration, the port or ship operator must as soon as practicable advise the person of the revocation. Adequate lines of communication when a maritime security level is revoked are important as maritime industry participants should not have to have security measures in place which are not commensurate with the risks faced at a particular time.

 

Clause 32  Requirements for giving notice

This clause provides that specific requirements relating to the notification and cancellation of declarations may be prescribed in the regulations. This may include, for example, requirements for electronic or oral notification.

 

Division 4 - Security directions

 

Clause 33  Secretary may give security directions

This clause provides that the Secretary may direct that additional security measures be undertaken or complied with. These directions are known as security directions and must be committed in writing before taking effect. Security directions may be issued by the Secretary only if he or she has reason to believe that an unlawful interference with maritime transport is probable or imminent and that specific measures are appropriate to prevent the unlawful interference from occurring. Security directions are additional to the measures which maritime industry participants must comply with according to their approved plans.

 

Regulations may provide for specific requirements in relation to the giving of security directions, eg oral or electronic transmission.

 

Clause 34  Confidentiality requirements

This clause provides that a security direction may include a requirement for confidentiality. This is intended to preserve the effectiveness of security measures that may be compromised if the details were known to those intending to interfere with maritime security. Where a person is advised of the requirement for confidentiality they have an obligation to protect the content of the security direction from unauthorised access or disclosure.

 

Clause 35  Persons to whom security directions may be given

This clause sets out the persons to whom security directions may be given. These may include maritime industry participants and their employees, passengers, and persons who are otherwise within the boundaries of a security regulated port. Where the Secretary issues security directions to passengers and persons other than maritime industry participants, the direction is given if it is clearly displayed at a place where the direction will be complied with.

 

A security direction given to a port operator may require the operator to communicate all or part of the direction to specified maritime industry participants who operate within the security regulated port. Failure to pass the direction on is an offence punishable by 50 penalty units. This is a strict liability offence. The offence does not apply if the port operator has a reasonable excuse.

 

Clause 36  Secretary may give security directions to security regulated ships

This clause provides that security directions may be given to security regulated ships, either to the ship operator of the ship, who must pass it on to the master, or directly to the master of the ship.

 

Failure by the ship operator to communicate the direction to the master of the ship is a strict liability offence punishable by 50 penalty units. The offence does not apply if the ship operator has a reasonable excuse.

 

Clause 37  When a security direction is in force

In general, it is envisaged that because security directions are a threat response mechanism they will need to be in place as soon a practicable. In practice, the Secretary recognises that the maritime transport industry may often require time to put the required measures in place. This clause provides that a security direction comes into force at the time specified in the direction, although if no time is specified or the specified time is before the time when the direction is given, the direction comes into force 24 hours after it is given. Further, if the specified time is seven days or more after the direction is given, the direction comes into force at the start of that day.

 

Security directions remain in force until the Secretary revokes them or the direction has been in force for 3 months. This requirement ensures that the security direction is current and appropriate to the circumstances. Any risk to maritime transport that requires increased security measures that go beyond three months duration will need to be addressed by changes to maritime security plans.

 

Clause 38  Revoking security directions

This clause provides that a security direction must be revoked if the unlawful interference, which was the subject of the direction, is no longer probable or imminent. The Secretary must notify the person to whom the direction was given of the revocation. Where a direction has been displayed, for example, to passengers or other persons, the displayed direction must be removed.

 

Clause 39  Failure to comply with security directions

This clause provides that it is an offence not to comply with a security direction that is in force and given to a person. The maximum level of penalty ranges from 200 penalty units for port operators, ship operators and port facility operators, 100 penalty units for other maritime industry participants, and 50 penalty units for any other person.

 

Clause 40  Failure to comply with confidentiality requirements

This clause provides that it is an offence to fail to comply with a confidentiality requirement set out in a security direction. It is not an offence if the disclosure is to a court, tribunal or other authority or person who has the power to require documents or answers to questions (eg. a Royal Commission). This is a strict liability offence punishable by 20 penalty units.

 

PART 3 - MARITIME SECURITY PLANS

 

Certain maritime industry participants will be required to have maritime security plans approved by the Secretary. Part 3 of the Bill describes the requirements for these plans and the processes for approving, revising and cancelling plans. The security plan will detail the measures that will be undertaken or implemented in order to prevent unlawful interference with the participant’s operations having regard to their identified security risks and specific physical and operational characteristics. In this way, flexibility is available for individual participants to tailor their security plans according to their particular needs, risks faced and other circumstances.

 

Division 1 - Simplified overview of Part

 

Clause 41  Simplified overview of Part

This clause provides a simplified overview of this Part.

 

Division 2 - Maritime industry participants required to have maritime security plans

 

Clause 42  Who must have maritime security plans

This clause provides that the maritime industry participants who must have a maritime security plan in place are:

·          port operators;

·          port facility operators;

·          participants of a kind prescribed in the regulations; and

·          particular participants prescribed in the regulations.

 

Division 6 of Part 1 deals with the identification of port operators of security regulated ports. Port facility operators required to have maritime security plans are those port facility operators located within security regulated ports, in addition some port service providers whose operations are not covered in either a port or port facility operators plan may be required to have a security plan.

 

Clause 43  Offence - operating without a maritime security plan

This clause makes it an offence for a maritime industry participant to operate without a maritime security plan in force when one is required.

 

Clause 44  Offence - failing to comply with maritime security plan

This clause provides that the purpose of a maritime security plan will be to detail the measures which the maritime industry participant will implement at any given security level. In order to protect against unlawful interference with maritime transport, the participant must ensure that the measures are fully implemented as set out in the plan. Failure to comply with a maritime security plan could potentially result in an opportunity for unlawful interference to occur. Therefore it will be an offence to fail to comply with a plan which is in force as approved and notified by the Secretary.

 

Division 3 - Complying with other plans

 

Clause 45  Complying with maritime security plans of other participants

This clause provides that where a maritime security plan covers, or may cover, the activities of another maritime industry participant, that the other participant is given the relevant parts of the plan. The maritime industry participants must not hinder or obstruct compliance with the maritime security plan of another maritime industry participant. For example, a maritime industry participant (who is not required to have an approved security plan) must take all reasonable steps to comply with a port facility operator’s approved security procedures when operating at the port facility’s premises.

 

Maritime industry participants with security plans in force must not only be given the relevant parts of another maritime industry participant’s security plan with which they are required to comply, they are required to agree, in writing to their activities being covered by another maritime industry participant’s security plan. This is intended to create a record of each party’s knowledge of the arrangement and their obligations under it.

 

Where a maritime industry participant does obstruct compliance with another participant’s plan, the participant does not commit an offence but may be subject to an enforcement order or an injunction. The objective of this provision is that the participant ceases the conduct which is obstructing compliance.

 

Clause 46  Australian regulated ships must not hinder or obstruct compliance with maritime security plans

This clause provides that the operations of a regulated Australian ship must not interfere with or obstruct compliance with a maritime security plan. Where the operations do obstruct compliance, either or both of the ship’s operator or master may be subject to an enforcement order or an injunction.

 

Obligations on regulated foreign ships are dealt with in Division 2 of Part 5.

 

Division 4 - Content and form of maritime security plans

 

Clause 47  Content of maritime security plans

This clause provides that a key component of the maritime security plan is the security assessment of the participant’s operation. The purpose of the security assessment is to ensure that a risk-based systematic and analytical process is conducted on the likelihood and consequences of a potential security incident. The security plan will set out the security activities or measures to be undertaken or implemented at maritime security levels 1, 2 and 3. These activities or measures will be informed by the security assessment and will address the individual circumstances and operational requirements of maritime industry participants.

 

The plan must demonstrate that implementation will contribute towards the achievement of the maritime security outcomes. In particular, a security plan must provide the contact details of the participant’s security officer and make provision for the use of declarations of security . A declaration of security may be required for specific situations, such as a ship calling at a port when the ship is operating at a higher level of security than the port.

 

The Secretary may require maritime industry participants to take into account certain documents in completing their security assessments, for example, threat and security environment information.

 

The regulations may set out other matters to be covered in the security assessment, for example the basic elements of security assessments and the key matters to be covered in security assessment submissions.

 

The Department will issue guidance material to assist maritime industry participants in the preparation of maritime security plans that should be taken into account when the plan is prepared.

 

Clause 48  Prescribed content for maritime security plans

This clause provides that the regulations may set out specific matters that are to be dealt with in maritime security plans, whether in all plans, plans for a particular kind of maritime industry participant, or plans for a particular class of a particular kind of maritime industry participant. For example, different security requirements may be set out for operators of bulk liquid facilities than for container terminals.

 

Clause 49  Form of maritime security plans

This clause provides that maritime security plans must be in writing and prepared according to the requirements prescribed in the regulations.

 

A maritime security plan must be accompanied by a map displaying any port security zones established for the area covered by the plan, and, where any changes to port security zones are proposed, a map showing the proposed changes. Divisions 3 and 4 of Part 6 deal with maritime security zones.

 

Division 5 - Approving, revising and cancelling maritime security plans

 

Clause 50  Providing maritime security plans for approval

This clause states that a maritime industry participant wishing to operate with a maritime security plan may submit the plan to the Secretary for approval. This provision reflects the procedure to be adopted by a maritime industry participant that operates within a declared security regulated port and is required to have a security plan in force.

 

Clause 51  Approval of maritime security plans

This clause provides that the Secretary will approve a plan in writing if he is satisfied that the plan addresses the relevant requirements under Division 4. If the Secretary is not satisfied, he or she must refuse to approve the plan and advise the participant in writing of the refusal and outline reasons for the refusal.

 

The Secretary is taken to have refused to approve the plan if a participant has given the Secretary a plan and the Secretary does not provide any written notice of approval, or refusal to approve, within 90 days after the plan was submitted. The participant may seek a review of a decision or deemed decision to refuse to approve a plan. Review mechanisms are detailed in Part 12.

 

Clause 52  When a maritime security plan is in force

This clause provides that the plan comes into force (ie. the operator implements the plan and compliance may be enforced) at a time specified in the notice of approval. If the time specified in the notice is earlier than the time at which the notice is given, or the notice does not specify a time, the plan is deemed to come into force when the notice is given.

 

The plan remains in force until it is replaced or the approval of the plan is cancelled.

 

Clause 53  Secretary may direct variations of maritime security plans

This clause reflects that in changing circumstances, the Secretary is able to direct a participant to carry out specific variations to a plan. The Secretary may, by written notice, give a direction to vary where he or she is no longer satisfied that the plan is adequate for the purposes of Division 4. The directed variation should address the requirements under Division 4. The notice must detail what the required variation is, and the timeframe within which the participant must give the Secretary the varied plan. If the participant does not give the Secretary the varied plan within the specified period, or within any further allowed period, the Secretary must cancel the approval of the plan.

 

Clause 54  Participants may revise maritime security plans

This clause provides that maritime industry participants may also provide revised plans to the Secretary for approval on their own initiative. Where the participant wishes to revise the plan, the approval process as described in clauses 51 and 52 applies. The revised plan, once approved, replaces any other plan for the participant in force at that time.

 

Clause 55  Secretary may direct participants to revise maritime security plans

This clause provides that the Secretary may direct the participant in writing to revise the plan (and submit the revised plan for approval) where he or she believes that the plan no longer adequately addresses the relevant requirements under Division 4. The direction to revise the plan must include a specified time period within which the participant must give the Secretary the revised plan. If the participant does not give the Secretary the revised plan within the specified time period, or within any further period allowed by the Secretary, the Secretary must cancel the approval of the plan in writing. This provision reflects the need to have security plans remain current and responsive to the security environment during the life of the plan.

 

Clause 56  Maritime security plans must be revised every 5 years

This clause requires that plans must be revised every five years, unless the Secretary has approved a revised plan for the participant within that period. If the maritime industry participant does not submit a revised plan for approval (in accordance with the established approval procedures) when the existing plan has been in force for 5 years, the approval of the existing plan is automatically cancelled.

 

Clause 57  Cancelling inadequate maritime security plans

This clause provides that a plan may be cancelled if the Secretary believes that the plan no longer adequately addresses the requirements under Division 4 and that it would not be appropriate to direct either a variation or a revision of a plan. The Secretary must cancel the approval of the plan in writing.

 

Clause 58  Cancelling for failure to comply with maritime security plans

This clause provides that a plan may be cancelled when a maritime industry participant has accumulated a prescribed number of demerit points in respect of non-compliance with the plan, as described in Division 6 of Part 11. The Secretary must cancel the approval of the plan in writing.

 

Where the Secretary believes it is necessary to cancel a plan due to non-compliance, he or she may request the participant to show cause why the plan should not be cancelled.

 

Clause 59  Cancelling maritime security plans on request

This clause provides that a maritime industry participant may request the Secretary in writing to cancel the approval of the participant’s plan.

 

PART 4 - SHIP SECURITY PLANS AND ISSCs

 

This Part deals with the requirement for regulated Australian ships to have ship security plans and International Ship Security Certificates (ISSCs). The responsibilities of regulated foreign ships are dealt with in Part 5.

 

Division 1 - Simplified overview of Part

 

Clause 60  Simplified overview of Part

This clause provides a simplified overview of this Part.

 

Division 2 - Ships required to have ship security plans

 

Clause 61  Which ships must have ship security plans

This clause provides that regulated Australian ships are required to have ship security plans in place. Regulated Australian ships are defined in Division 7 of Part 1.

 

Clause 62  Offence - operating without a ship security plan

This clause makes it an offence, punishable by a maximum of 200 penalty units, for a ship operator to operate a regulated Australian ship without a ship security plan in force, unless the operator has a reasonable excuse.

 

Clause 63  Offence - failing to comply with ship security plan

This clause makes it an offence, punishable by a maximum penalty of 200 penalty units, for a ship operator to operate a regulated Australian ship not in accordance with the plan, unless the operator has a reasonable excuse.

 

Division 3 - Complying with other plans

 

Clause 64  Complying with ship security plans of other ships

This clause is intended to prevent the operations of a regulated Australian ship from interfering with the compliance of a ship security plan of another ship. Where such obstruction does occur, an enforcement order or injunction may be sought against the ship operator, the master of the ship, or the maritime industry participant causing the obstruction.

 

Clause 65  Maritime industry participants must not hinder or obstruct compliance with ship security plans

This clause is intended to prevent the operations of a maritime industry participant from interfering with the compliance of a ship security plan. Where such obstruction does occur, the participant may be subject to an enforcement order or injunction.

 

Division 4 - Content and form of ship security plans

 

Clause 66  Content of ship security plans

This clause provides that a ship security plan must include a security assessment. The purpose of the security assessment is to ensure that a risk-based systematic and analytical process is conducted on the likelihood and consequences of a potential security incident.

 

The security plan will set out the security activities or measures to be undertaken or implemented at maritime security levels 1, 2 and 3. These activities or measures will be informed by the security assessment and will address the individual circumstances and operational requirements of the ship. The plan must demonstrate that implementation will contribute towards the achievement of the maritime security outcomes.

 

In particular, a security plan must provide the contact details of the ship’s security officer and make provision for the use of declarations of security . A declaration of security may be required for specific situations, such as a ship visiting a port which is not a security regulated port or the ship calling at a port when the ship is operating at a higher level of security than the port.

 

The Secretary may require certain documents to be taken into account in completing security assessments, for example, threat and security environment information.

 

The regulations may set out other matters to be covered in the security assessment, for example, the basic elements of security assessments and the key matters to be covered in security assessment submissions.

 

The Department will issue guidance material to assist in the preparation of ship security plans that should be taken into account when the plan is prepared.

 

Clause 67  Prescribed content for ship security plans

This clause provides that the regulations may set out specific matters that are to be dealt with in maritime security plans, whether in all plans, plans for operators of a particular kind of ship, or plans for operators of a particular class of a particular kind of ship. For example, different security requirements may be set out for operators of bulk liquid ships than for container ships.

 

Clause 68  Form of ship security plans

This clause provides that ship security plans must be in writing and in a form prescribed in the regulations.

 

Division 5 - Approving, revising and cancelling ship security plans

 

Clause 69  Providing ship security plans for approval

This clause reflects the process that operators of Australian ships wishing to operate their ships as security regulated ships will need to prepare a ship security plan and submit it to the Secretary for approval.

 

Clause 70  Approval of ship security plans

This clause provides that the Secretary will approve a plan in writing if he or she is satisfied that the plan addresses the relevant requirements under Division 4. If the Secretary is not satisfied, he or she must refuse to approve the plan and advise the participant in writing of the refusal and outline reasons for the refusal.

 

The Secretary is taken to have refused to approve the plan if the ship operator has given the Secretary a plan and the Secretary does not provide any written notice of approval, or refusal to approve, within 90 days after the plan was submitted.

 

The ship operator may seek a review of a decision or deemed decision to refuse to approve (Part 12 refers).

 

Clause 71  When a ship security plan is in force

This clause provides that once the plan has been approved, it comes into force (ie it is operational and compliance may be enforced) at the time specified in the approval notice. Where the approval notice does not specify a time, or the time specified is earlier than the time the notice was given, the plan comes into force when the notice is given.

 

Clause 72  Secretary may direct variations of ship security plans

This clause reflects the potential for changing circumstances and the need for the Secretary to be able to direct specific variations to a plan. The Secretary may, by written notice, direct the operator of the ship to vary the plan if the Secretary is no longer satisfied that the plan adequately addresses the requirements set out in Division 4. The notice must set out the required variation and specify the period within which the operator must provide the new plan. If the operator does not provide a new plan in accordance with the notice and within the timeframe specified, or any further time allowed by the Secretary, the Secretary must cancel the approval of the plan.

 

Clause 73  Ship operator may revise ship security plan

This clause provides that ship operators may also provide revised plans to the Secretary for approval on their own initiative. Where the operator wishes to revise the plan, the approval process as described in clauses 70 and 71 applies. The revised plan, once approved, replaces any other plan for the ship in force at that time.

 

Clause 74  Secretary may direct operator to revise ship security plan

This clause provides that the Secretary may, by written notice, direct the operator of a security regulated ship to revise the ship security plan if the Secretary believes that the plan is no longer adequate with regard to the requirements set out in Division 4. Where the operator does not provide a revised plan within the specified period, or within any further period allowed by the Secretary, the Secretary must cancel the approval of the plan.

 

Clause 75  Ship security plans must be revised every 5 years

This clause requires that ship security plans must be revised every five years, unless the Secretary has approved a revised plan for the participant within that period. If the ship operator does not submit a revised plan for approval (in accordance with the established approval procedures) when the existing plan has been in force for 5 years, the approval of the existing plan is automatically cancelled.

 

Clause 76  Cancelling inadequate ship security plans

This clause provides a ship security plan may be cancelled if the Secretary believes that the plan no longer adequately addresses the requirements under Division 4 and that it would not be appropriate to direct either a variation or a revision of a plan.

 

Clause 77  Cancelling for failure to comply with ship security plan

This clause provides that a ship security plan may be cancelled when a ship has accumulated a prescribed number of demerit points in respect of non-compliance with the plan, as described in Division 6 of Part 11. The Secretary must cancel the approval of the plan in writing.

 

Where the Secretary believes it is necessary to cancel a plan due to non-compliance, he or she may request the participant to show cause why the plan should not be cancelled.

 

Clause 78  Cancelling ship security plans on request

This clause provides that a ship operator may request the Secretary in writing to cancel the approval of the ship security plan.

 

Division 6 - International Ship Security Certificates

 

Clause 79  Which ships must have ISSCs

This clause provides that regulated Australian ships will be required to hold an International Ship Security Certificate (ISSC) in order to visit security regulated ports in Australia. An ISSC will be required for all regulated Australian ships wishing to visit overseas ports which are regulated by another SOLAS Contracting Government.

 

For regulated Australian ships, the possession of an ISSC will verify that the ship has implemented its approved security plan.

 

Clause 80  Offence - operating without an ISSC

This clause provides that it will be an offence for the ship operator of a regulated Australian ship to operate without an ISSC or interim ISSC in force, unless there is a reasonable excuse.

 

Clause 81  Applying for an ISSC

This clause provides that the process to obtain an ISSC is for the operator of a regulated Australian ship to apply in accordance with the prescribed requirements.

 

Clause 82  Conditions for giving an ISSC

This clause provides that the Secretary must issue an ISSC to the ship operator of a regulated Australian ship if the applicant has a ship security plan in force (which has been approved in accordance with the provisions under Division 5), and the ship has been ISSC verified.

 

Clause 83  ISSC verification

ISSC verification forms part of the process for the issuing of the ISSC. This clause provides that following application for the ISSC, the ship will be ISSC verified by a maritime security inspector in accordance with procedures determined in writing by the Secretary. The verification will signify that the ship meets the requirements determined in writing by the Secretary, and an ISSC will be issued. Generally speaking, the maritime security inspector will inspect the ship to verify that the ship is operating in accordance with the procedures set out in its approved ship security plan.

 

Subclause 83 (3) provides that if an ISSC is in force and a maritime security inspector finds that the ship does not meet the Secretary’s requirements for ISSC verification, the ship is no longer ISSC verified. The inspector may allow a period of time for the ship to rectify compliance with the requirements for verification.

 

Clause 84  When an ISSC is in force

This clause provides that an ISSC comes into force when it is issued and will remain in force until:

·          cancelled by the Secretary; or

·          the ship operator is no longer the operator of that ship; or

·          five years expire after the ISSC was issued.

 

Clause 85  Cancelling ISSCs

This clause provides that the Secretary must cancel an ISSC if the ship no longer has a security plan in force (ie. if the security plan has been cancelled), or the ship no longer meets the requirements for ISSC verification.

 

Clause 86  Interim ISSCs

This clause provides that an interim ISSC may be issued by the Secretary if the ship operator has applied for an ISSC, has a security plan in place but has not yet been ISSC verified, and the Secretary believes that the ship would be ISSC verified if it were to be inspected.

 

To facilitate the transfer of ships from one operator to another, interim ISSCs may be issued to a ship operator who has become the operator of a regulated Australian ship which held an ISSC before the transfer of operations.

 

Interim ISSCs remain in force for a period specified in the interim ISSC but not exceeding six months.

 

Clause 87  Offence - false or misleading statements in relation to having an ISSC

This clause makes it an offence punishable by a maximum 50 penalty units for a master of a regulated Australian ship to engage in conduct which suggests that an ISSC or interim ISSC is in force for the ship when this is not the case. The offence also applies if the false or misleading conduct is made to another SOLAS Contracting Government.

 

Division 7 - Recognised security organisations

 

Clause 88  Secretary may delegate powers and functions under this Part
Clause 89  Recognised security organisations may conduct ISSC inspections

These clauses provide for the delegation of any of the Secretary’s powers and functions under Part 4 to a person satisfying prescribed criteria and engaged by a recognised security organisation. A recognised security organisation will be an organisation determined in writing by the Secretary. This provision is to allow for suitably qualified organisations to carry out the functions of approving ship security plans, ISSC verification and issuing ISSCs. The Secretary may choose to delegate all or any of these functions. For example, it may be the case that a recognised security organisation is authorised to carry out ISSC verifications but that the Secretary continues to issue the ISSC on the advice of the recognised security organisation. Clause 89 provides in particular that the Secretary may authorise a person to conduct inspections for ISSC verification purposes. That person is considered to be a maritime security inspector for the purposes of subclause 83(1).

 

For the time being, the Australian Government intends that the Secretary will exercise all of the functions and powers described in this Part and will not delegate any functions to a recognised security organisation. Such delegation may be required in the future and this Division has been included in the Bill to allow for that, if required.

 

PART 5 - REGULATED FOREIGN SHIPS

 

Division 1 - Simplified overview of Part

 

Clause 90  Simplified overview of Part

This clause provides a simplified overview of this Part.

 

Division 2 - Obligations on regulated foreign ships

 

Clause 91  Regulated foreign ships must have ISSCs

This clause requires that the ship operator for a regulated foreign ship must have a valid International Ship Security Certificate (ISSC) or an approved ISSC equivalent for the ship. The ship must also carry the prescribed ship security records.

 

A valid ISSC will be issued to a foreign ship by or on behalf of its flag state in accordance with that state’s acceptance of the ISPS Code. ISSCs may be issued by another flag state or a recognised security organisation (such as classification societies), where for example a foreign state has delegated this function to an RSO or a flag state is not a signatory to the SOLAS Convention.

 

The Secretary may approve in writing a certification to be an approved ISSC equivalent. The provision will facilitate the entry into Australian regulated ports of ships that meet ISPS Code security standards but have not been issued with an ISSC.

 

The master of a regulated foreign ship must be able to show the ISSC or ISSC equivalent and other ship security records to Australian authorities. This is likely to occur during port inspections but may also occur at any time while the ship is in Australian territorial waters.

 

If the ship operator fails to have the required ship security records on-board the master or the ship operator may be given a control direction by the Secretary under clause 99.

 

Clause 92  Regulated foreign ships must provide pre-arrival information

This clause compels masters of regulated foreign ships to provide certain security information prior to their arrival in Australian waters or entry into a port, as part of pre-arrival reporting procedures.

 

The regulations will prescribe the requirements for the provision of pre-arrival information including the information to be provided, to whom, when, the circumstances, and the form and manner in which this information is to be given. The regulations may prescribe that different pre-arrival information is to be provided before entering different places or areas within Australia.

 

If the master fails to comply with this provision the Secretary may under clause 99 give a control direction to the master or the ship operator.

 

Clause 93  Regulated foreign ships must allow inspections etc.

This clause provides that the master of a regulated foreign ship must allow a maritime security inspector to board the ship for inspection in accordance with the powers of a maritime security inspector set out in Division 2 of Part 8 of the Bill. For clarity this clause provides that the master must provide the ship security records to an inspector when requested to do so. If the master does not allow an inspector to inspect the ship then the master, or the ship operator, may under clause 99 be given a control direction by the Secretary.

 

Clause 94  Regulated foreign ships must comply with security levels

This clause sets out a number of security measures that regulated foreign ships must comply with when in Australian waters. The ship must be at security level 1 unless otherwise declared by the Secretary. If the Secretary declares that security level 2 applies to a security regulated port a foreign ship in that port must implement ISPS level 2 measures. ISPS level 2 measures are measures that should, under the ISPS Code, be implemented when maritime security level 2 is in force. The ship specific measures to be implemented by the ship at ISPS level 2 will be contained in the ship’s security plan, as approved by its flag state (country of ship registration). Similar requirements apply if the Secretary declares that security level 3 applies to a port.

 

The provision also acknowledges that a ship may have been directed by its flag state to implement a higher security level than would otherwise apply under this clause. In these circumstances, the ship must comply with the directions received from its flag state.

 

If a foreign regulated ship does not implement security measures appropriate to the security level declared by the Secretary the ship operator for the ship or the ship’s master may be given a control direction by the Secretary under clause 99.

 

Clause 95  Meaning of ISPS level 1, 2 and 3 measures

This clause defines that ISPS level 1, 2 and 3 measures applicable at security levels 1, 2 and 3 respectively are those that should be implemented as provided in the ISPS Code. The types of measures to be implemented are described in general terms in the ISPS Code. Foreign regulated ships with ISSCs will have details of specific security measures to be implemented at these security levels in their individual ship security plans.

 

Clause 96  Regulated foreign ships must comply with security directions

This clause states that if the Secretary gives a security direction to a regulated foreign ship the ship must comply with this direction. If the ship does not comply, the ship operator or master may be given a control direction under clause 99.

 

In addition to the control direction, the master of the ship and the ship operator may incur a penalty for failing to comply with a security direction under clause 39. The penalty for a ship operator is 200 penalty units and 50 penalty units for a master. This is an offence of strict liability. The penalty does not apply, however, if the person has a reasonable excuse.

 

Clause 97  Complying with maritime and ship security plans

This clause provides that a regulated foreign ship must not operate so as to compromise compliance with a maritime security plan of a maritime industry participant or a ship security plan of an Australian regulated ship. If the operations do compromise compliance, the ship operator or the master of the foreign regulated ship may be given a control direction under clause 99.

 

Clause 98  Acknowledging level notifications and directions

This clause provides that if the master of a foreign regulated ship has received notice from the Secretary or port operator that maritime security level 2 or 3 is in place for the ship or a control direction has been given to the ship, and the master does not acknowledge receipt of such notice or direction to the Secretary the master commits an offence. This is an offence of strict liability.

 

Similar offences may also apply to the operator of the foreign regulated ship.

 

Division 3 - Control directions

 

Clause 99  Secretary may give control direction

This clause provides the major regulatory powers over regulated foreign ships. Under this clause the Secretary may give control directions to the ship operator or master of a regulated foreign ship to either control the movement of the ship or require the master or operator to take specific action or refrain from specific action. The Secretary may only give a control direction if is required to ensure compliance with the obligation imposed on regulated foreign ships under the Bill or in respect of a special measure to enhance maritime security as set out in Chapter XI-2 of the SOLAS Convention. For example, if a master fails to provide a valid ISSC for a ship the ship may be denied entry into an Australian port.

 

Control directions include, but are not limited to:

·          removing the ship from Australian waters;

·          removing the ship from a security regulated port;

·          moving the ship to another location within the port;

·          holding the ship in a certain position for a specified period or until a specified event occurs;

·          taking particular actions on board the ship;

·          allowing a maritime security inspector on board the ship to inspect the ship or the ship security records carried by the ship.

 

It should be noted that authority to remove a ship from Australian waters is provided for in Article 25 of the United Nations Convention on the Law of the Sea.

 

The Secretary may not issue a direction requiring the payment of money other than an amount of money that is already recoverable at law. The clause also provides that a control direction is not a valid direction unless the Secretary has committed it in writing, although the regulations may provide the method or circumstances in which a direction is given, for example orally or electronically.

 

Clause 100  Enforcing control directions

This clause provides that if a foreign regulated ship fails to comply with a control direction, an injunction may be sought to compel compliance by the ship operator or master

 

PART 6 - MARITIME SECURITY ZONES

 

This Part make provisions for the establishment of maritime security zones within the boundaries of security regulated ports. These zones may be subject to tighter access control arrangements than other parts of the port. The intention is to prevent the possibility of unlawful interference with maritime transport by developing a system designed to deter and detect unauthorised entry and unauthorised carriage of weapons and prohibited items into maritime security zones. This is one of the key elements in the national maritime transport security framework being established by this Bill.

 

Division 1 - Simplified overview of Part

 

Clause 101  Simplified overview of Part

This clause provides a simplified overview of this Part.

 

Division 2 - Port security zones

 

This Division allows the Secretary to establish port security zones within security regulated ports and port facilities in order to protect against unlawful interference with maritime transport. Additional security requirements will apply to the different types of zones and unauthorised people, vessels and vehicles must remain outside of the zones.

 

Clause 102  Establishing port security zones

This clause allows the Secretary to establish one or more port security zones within a security regulated port. The zones must be of a type prescribed in the regulations. The Secretary is obliged to give the port operator of the security regulated port a written notice about the establishment of port security zones. The notice must include a map of the port with the boundaries of the zones. The Secretary must also notify each maritime industry participant (other than the port operator) who controls an area affected by the zone. The notification must include a map that shows the boundaries of the zones.

 

In practice, most port security zones will be established at the request of a port or port facility operator and the operator will include a map of the areas to be designated as port security zones in the port or port facility security plan.

 

Clause 103  Types of port security zones

This clause provides that the regulations may prescribe different types of port security zones. This will provide flexibility to specify particular types of zones to meet the needs of a diverse industry. For example, there could be port facility restricted access zones, cleared zones, critical equipment zones, cargo handling zones, etc.

 

Subclause 103(2) lists the purposes for which different types of port security zones may be prescribed. These include, but are not limited to, controlling movement within a port, restricting access to certain areas within a port, establishing cleared areas (eg for screened passengers) in ports, preventing interference with ships, and ensuring the security around areas of the port considered critical for the safe operation of a port or ship.





Clause 104  Matters to be considered in establishing port security zones

This clause provides that when establishing a port security zone the Secretary must have regard to the purpose of the zone, and take into account the physical and operational features of the port and the views of the port operator and each person who controls an area of land (including any buildings on the land) that is to be included in the zone.

 

Clause 105  Requirements for port security zones

This clause provides that the regulations may prescribe requirements in relation to port security zones to safeguard against unlawful interference with maritime transport. The reference to unlawful interference with maritime transport limits the extent of requirements that can be prescribed by regulations made under this clause.

 

The regulations may prescribe issues such as access control, identification and marking of zones, regulate movement in a zone, the integrity of the zones and the management of people and goods including suspicious and abandoned items. The intention is that the regulations will as far as possible be outcomes based. There will be exceptions to this, for example national standards will be set for passenger screening.

 

Subclause 105(3) provides that the regulations may prescribe penalties. The penalties for an offence committed by a port operator, ship operator or port facility operator must not exceed 200 penalty units. The penalties for an offence committed by other maritime industry participants may not exceed 100 penalty units. An offence committed by any other person may not exceed 50 penalty units. This graduated penalty range reflects the different levels of responsibility for maritime security and the size of the penalties reflects the seriousness and importance of maintaining the security of Australia's maritime industry.

 

Division 3 - Ship security zones

 

This division allows the Secretary to declare security zones within a security regulated port that may operate around a security regulated ship in order to protect against unlawful interference with maritime transport. Unauthorised persons, vehicles and vessels must remain outside of the ship security zones.

 

Clause 106  Declaring ship security zones

The Secretary may declare a ship security zone around a security regulated ship while the ship is within a security regulated port, including while it is moving within the port. The zone must of a type prescribed in clause 107. The purpose of ship security zones is to protect ships, they do not restrict people or things on-board the ship.

 

The Secretary is obliged to give a written notice to the ship operator or the master of the ship and the relevant port operator about the declaration of the ship security zone.

 

In practice, for example, when a port is expecting a ship which is considered to be of a high security risk, the port operator may request the Secretary declare a ship security zone around that ship.

 

Clause 107  Types of ship security zones

This clause provides that regulations may prescribe different types of ship security zones. For example, there could be flexible zones (ie. no fixed dimensions to suit narrow port entrances), rigid zones (ie. fixed dimensions), dangerous cargo zones, limited time period zones, special access zones, etc.

 

Subclause 107(2) lists the purposes for which different types of ship security zones may be prescribed. These include, but are not limited to, limiting contact with other security regulated ships, controlling movement of ships and other things near ships, establishing cleared areas around ships, preventing interference with ships and those people or goods about to board ships.

 

Clause 108  Matters to be considered in declaring ship security zones

This clause provides that when declaring a ship security zone the Secretary must have regard to the purpose of the zone and take into account the operational features of the ship and the existing physical and operational features of the port or ports and port services to be used by the ship.

 

Clause 109  Requirements for ship security zones

This clause provides that the regulations may prescribe requirements in relation to ship security zones to safeguard against unlawful interference with maritime transport. The reference to unlawful interference with maritime transport limits the extent of requirements that can be prescribed by regulations made under this clause.

 

The regulations may prescribe issues such as access control, identification or marking of zones, regulating movement in a zone, integrity of the zone and the management of people and goods including suspicious and abandoned items. The regulations will be as far as possible outcomes based.

 

Subclause 109(3) provides that the regulations may prescribe penalties. The penalties for an offence committed by a port operator, ship operator or port facility operator must not exceed 200 penalty units. The penalties for an offence committed by other maritime industry participants may not exceed 100 penalty units. An offence committed by any other person may not exceed 50 penalty units. This graduated penalty range reflects the different levels of responsibility for maritime security, and the size of the penalties reflects the seriousness and importance of maintaining the security of Australia's maritime industry.

 

Division 4 - On-board security zones

 

This Division allows the Secretary to establish on-board security zones on regulated Australian ships in order to protect against unlawful interference with maritime transport. Additional security requirements will apply to the different types of zones and unauthorised people and things must remain outside of the zones.

 

Clause 110  Establishing on-board security zones

This clause provides that the Secretary may establish one or more on-board security zones on a regulated Australian ship. The zone must of a type prescribed in clause 111. The Secretary is obliged to write to the ship operator of the ship about the establishment of the zone or zones on-board the ship. The notice must identify clearly which areas and parts are to be covered by the on-board security zone or zones.

 

Clause 111  Types of on-board security zones

This clause provides that the regulations may prescribe different types of on-board security zones. For example, on board a passenger ship there may be restricted access zones to operational areas such as engine rooms, communication rooms, etc.

 

Subclause 111(2) lists the purposes for which different types of on-board security zones may be prescribed. These include, but are not limited to, controlling access, maintaining security, establishing cleared areas, preventing interference with the operation of ships and people or goods involved.

 

Clause 112  Matters to be considered in establishing on-board security zones

This clause provides that when establishing an on-board security zone on a regulated Australian ship the Secretary must have regard to the purpose of the zone and take into account the operational features of the ship and the views of the ship operator for the ship.

 

In practice, a ship operator will request on-board security zones be established.

 

Clause 113  Requirements for on-board security zones

This clause provides that the regulations may prescribe requirements in relation to on-board security zones to safeguard against unlawful interference with maritime transport. The reference to unlawful interference with maritime transport limits the extent of requirements that can be prescribed by regulations made under this clause.

 

The regulations may prescribe issues such as access control, identification and marking of zones, regulation of movement in a zone, and the management, integrity of the zone and the management of people and goods including suspicious and abandoned items. The regulations will be as far as possible outcomes based, although there may be exceptions to this.

 

Subclause 113(3) provides that the regulations may prescribe penalties. The penalties for an offence committed by a port operator, ship operator or port facility operator must not exceed 200 penalty units. The penalties for an offence committed by other maritime industry participants may not exceed 100 penalty units. An offence committed by any other person may not exceed 50 penalty units. This graduated penalty range reflects the different levels of responsibility for maritime security and the size of the penalties reflects the seriousness and importance of maintaining the security of Australia's maritime industry.

 

PART 7 - OTHER SECURITY MEASURES

 

This Part makes provision for the screening and clearing of people, goods, vehicles and vessels for unauthorised weapons and prohibited items. Screening will assist in maintaining the security integrity of a security regulated port or a security regulated ship.

 

Division 1 - Simplified overview of the Part

 

Clause 114  Simplified overview of the Part

This clause provides a simplified overview of this Part.

 

Division 2 - Screening and clearing

 

This Division establishes rules for screening and clearing people, goods, vehicles and vessels prior to entry into a cleared zone in a security regulated port or on-board a security regulated ship.

 

The process of screening contains three elements:

·          the process to be undertaken (screening);

·          the decision made (ie cleared or not cleared); and

·          if cleared, the maintenance of the cleared state.

 

The Bill separates the screening and clearing of people, goods, vehicles and vessels to allow regulations to be made that specifically deal with the different treatments that are required for effective screening outcomes for each. For example, goods being loaded onto a passenger ship would be screened and cleared in a different way to passengers.

 

This Part also contemplates that a small number of people or classes of people will not need to be screened or may need to enter a cleared area or zone other than through a screening point. Screening is intended to be non-intrusive and consensual. The purpose of screening is to meet maritime security outcomes and promote public confidence in the system aimed at preventing unlawful interference with maritime transport.

 

Clause 115  Screening and clearing people

This clause provides that a person is screened when they undergo screening. The regulations made under clause 119 will set out requirements for screening prior to entry into a cleared area or zone within a security regulated port or on-board a ship. Screened refers to the outcome of screening.

 

Subclause 115(2) outlines the three ways to receive clearance. Firstly, the standard method is for a person to be screened and receive clearance from a screening officer. A person receives clearance if they are allowed to proceed through a screening point. Secondly, a person may pass through a screening point without being screened if the regulations provide or the Secretary has permitted this action in writing. Paragraph 115(5)(a) clarifies that the Secretary’s written notice may provide that a class of persons may pass through the screening point without being screened, for example certain Customs officers on duty at ports. Thirdly, a person can enter a cleared area or board a cleared vessel through an entry point other than a screening point if the regulations provide that this person may enter in this way or the Secretary has given written permission that the person may enter in this way. Paragraph 115(5)(b) clarifies that the Secretary’s written notice may provide that a class of persons may enter a cleared area or board a cleared vessel other than through the screening point, for example Australian Defence Force members on duty.

 

Subclause 115(3) states that a person will be considered cleared if the person has received clearance in accordance with subclause 115(2), and the person has been in a cleared area or on a cleared vessel at all times since receiving clearance. In addition, subclause 115(4) emphasises that the cleared person will be taken to be in a cleared area if the person is under the supervision or control prescribed in regulations. This will also allow for the screening of people offsite, for example the transporting of cleared passengers from an airport to a passenger ship.

 

It is essential that cleared persons retain that status and are kept separate from those persons not cleared. If this separation did not occur the integrity of the clearance system, the ability of screening officers to undertake their screening duties and the security of the vessel to be boarded or the cleared area to be entered may be compromised.

 

Clause 116  Screening and clearing goods
Clause 117  Screening and clearing vehicles
Clause 118  Screening and clearing vessels

These clauses have equivalent provisions for goods, vehicles and vessels as those mentioned above for people. The same principles and grounds for screening and clearance apply.

Note: the term goods has its natural meaning and includes cargo, baggage and stores.

 

Clause 119  Requirements for screening and clearing

This clause provides the framework for regulations to be made for screening, receiving clearance, and the circumstances in which persons, goods, vehicles or vessels are required to be cleared. These regulations are for the purposes of safeguarding against unlawful interference with maritime transport.

 

Subclause 119(2) limits the matters for which regulations under subclause 119(1) can be made. Most of these are self-explanatory and typical for a screening process, such as who can conduct screening, what things are to be detected by screening, the circumstances in which people, ship’s stores, baggage, cargo, vehicles and vessels must be cleared before being taken on-board another vessel or into a cleared area within a security regulated port, where screening is done, etc.

 

It should be noted that regulations made under Division 6 of Part 8 will prescribe the training and qualifications that screening officers must have as well as the form, issue and use of identify cards.

 

Full compliance is expected from those maritime industry participants who will need to screen people, goods, vehicles and vessels. Subclause 119(4) provides that the regulations may prescribe penalties. The penalties for an offence committed by a port operator, ship operator or port facility operator must not exceed 200 penalty units. The penalties for an offence committed by other maritime industry participants may not exceed 100 penalty units. An offence committed by any other person may not exceed 50 penalty units. This graduated penalty range reflects the different levels of responsibility for maritime security and the size of the penalties reflects the seriousness and importance of maintaining the security of Australia's maritime industry.

 

Division 3 - Weapons

 

The control of weapons within certain areas related to maritime transport is an important aspect of preventing unlawful interference with maritime transport. Although it may be ordinarily permitted to carry certain weapons in a public place, it may be necessary for the purpose of preventing unlawful interference with maritime transport to prohibit the possession of weapons in certain areas of ports and on-board ships.

 

A weapon is a firearm or a thing prescribed in the regulations to be a weapon. Different areas within a security regulated port may have different weapon restrictions.

 

Clause 120  Weapons in maritime security zones

Clause 120 makes it an offence for a person to have a weapon in a maritime security zone, unless the person is a law enforcement officer, a member of the Australian Defence Force who is on duty, or a person authorised by the regulations or in writing by the Secretary to have a weapon in the maritime security zone, for example a class of employees who require knives to perform their duties. Reference to a zone limits the application of this clause.

 

This offence may be prosecuted as either a strict liability or general offence. The strict liability offence carries a penalty of 100 penalty units. The general offence, where a fault element must be proved, has a maximum of 7 years’ imprisonment, for example a person who intentionally carries or is reckless as to the fact that he or she is in an area where carriage of a weapon is not permitted. The higher penalty for a general offence recognises that intentional conduct of this type warrants more serious punishment than inadvertent breaches of the offence provisions.

 

Clause 121  Carrying weapons through a screening point

Clause 122 makes it an offence for a person to possess a weapon when passing through a screening point, unless the person is a law enforcement officer or authorised by the regulations or in writing by the Secretary to do so. Consistent with clause 120 the general offence carries a higher penalty than the strict liability offence.

 

Clause 122  Weapons on board regulated Australian ships - strict liability
Clause 123  Weapons on board regulated Australian ships - general

These clauses provide offences for the carriage or possession of accessible weapons on board Australian regulated ships, if the person is not a law enforcement officer or the carriage or possession is not authorised by the regulations or the Secretary and the weapon is not under the control of the master of the ship. Consistent with clause 120 the general offence carries a higher penalty than the strict liability offence.

 

Clause 124  Failure to comply with conditions

This clause makes it an offence for a person to fail to comply with any conditions contained in the authorisation or permission to carry or possess a weapon in a maritime security zone or on board a regulated Australian ship. This clause reinforces the principle that weapons are generally prohibited in certain areas of ports and on board ships and that an authorisation or permission is given in limited circumstances. The inability to enforce compliance with conditions would undermine the ability to give authorisations and permissions. This is a strict liability offence. The offence does not apply if the person has a reasonable excuse.

 

Clause 125  Secretary may permit by class

This clause clarifies that the Secretary may give permission in relation to particular conduct relating to the carriage or possession of weapons by giving permission to a class of persons.

 

Clause 126  Other weapons requirements

This clause provides that regulations may be made to prescribe requirements for the purposes of safeguarding against unlawful interference with maritime transport in relation to the carriage and use of weapons in maritime security zones or on board regulated Australian ships, including penalties for offences against those regulations. The regulations may set out the detail of authorisations for the carriage of weapons (for example specifying the circumstances), procedures for dealing with a person who is suspected of an offence under this Division, and procedures for handling a surrendered weapon.

 

Division 4 - Prohibited items

 

This Division sets out similar offences for prohibited items to those in Division 3 in relation to weapons. This Division recognises that many items, which are not considered to be weapons, could be used to commit an act of unlawful interference with maritime transport even though they were not manufactured for that purpose.

 

As different areas within a security regulated port may be more security sensitive than other areas they may have different prohibited item restrictions. The penalties that relate to prohibited items are lower than those for weapons to reflect the relative seriousness of the offences.

 

Clause 127  Prohibited items in maritime security zones

This clause makes it an offence for a person to have a prohibited item in a maritime security zone, unless the person is a law enforcement officer, a maritime security guard, a maritime security inspector, a member of the Australian Defence Force who is on duty, or a person authorised by the regulations or in writing by the Secretary to have the prohibited item in the maritime security zone.

 

This offence may be prosecuted as either a strict liability or general offence. The strict liability offence carries a penalty of 20 penalty units. In the case of the general offence, a fault element must be proved. That is, a person who intentionally carries a weapon or is reckless as to the fact that he or she is in an area where this is not permitted faces a maximum of 2 years’ imprisonment. The higher penalty recognises that intentional conduct of this type warrants more serious punishment than inadvertent breaches of the offence provision.

 

Clause 128  Carrying prohibited items through a screening point

This clause makes it an offence for a person to possess a prohibited item when passing through a screening point, unless the person is a law enforcement officer, a maritime security guard, or a maritime security inspector, or a person authorised by the regulations or in writing by the Secretary to do so. The general offence carries a higher penalty than the strict liability offence for the reason discussed in clause 127.

 

Clause 129  Prohibited items on board regulated Australian ships - strict liability
Clause 130  Prohibited items on board regulated Australian ships - general

These clauses provide offences for the carriage or possession of accessible prohibited items on board Australian regulated ships, if the person is not a law enforcement officer, a maritime security guard or a maritime security inspector, or the carriage or possession is not authorised by the regulations or the Secretary and the prohibited item is not under the control of the master of the ship. Consistent with clause 127 the general offence carries a higher penalty than the strict liability offence.

 

Clause 131  Failure to comply with conditions

This clause makes it an offence for a person to fail to comply with any conditions contained in the authorisation or permission to carry or possess a prohibited item in a maritime security zone or on board a regulated Australian ship. This clause reinforces the principle that prohibited items are generally not allowed in certain security sensitive areas of ports and on-board ships and that an authorisation or permission is given in limited circumstances. The inability to enforce compliance with conditions would undermine the ability to give authorisations and permissions. This is a strict liability offence. The offence does not apply if the person has a reasonable excuse.

 

Clause 132  Secretary may permit by class

Clause 132 clarifies that the Secretary may give permission in relation to particular conduct concerning the carriage or possession of a prohibited item by giving permission to a class of persons.

 

Clause 133  Other prohibited items requirements

This clause provides that regulations may be made to prescribe requirements for the purpose of safeguarding against unlawful interference with maritime transport in relation to the carriage and use of prohibited items in maritime security zones or on board regulated Australian ships, including penalties for offences against those regulations. Regulations may set out the detail of authorisations for the carriage of prohibited items (for example, specifying the circumstances), procedures for dealing with a person who is suspected of an offence under this Division, and procedures for handling a surrendered item.

 

PART 8 - POWERS OF OFFICIALS

 

This Part deals with the powers, functions and responsibilities of certain persons under this Bill in preventing unlawful interference with maritime transport. Some categories of officials will be responsible for checking the compliance of regulated entities with their obligations, other officials will be responsible for specific duties under the Bill. In some instances, officials will require specific qualifications and meet other requirements.

 

Division 1 - Simplified overview of Part

 

Clause 134  Simplified overview of the Part

This clause provides a simplified overview of this Part.

 

Division 2 - Maritime security inspectors

 

This Division sets out who may be a maritime security inspector, their powers and the limits on their powers. The primary role of maritime security inspectors is to conduct ISSC verifications and to audit and investigate the compliance of maritime industry participants with the Bill. In order to do this effectively, they require a number of powers, including the power to enter premises and ships and inspect documents.

 

Clause 135  Simplified overview of Division

This clause provides a simplified overview of the Division.

 

Clause 136  Appointment

This clause provides that the Secretary may appoint an Australian Public Service (APS) employee of the Department, a law enforcement officers or persons satisfying criteria prescribed in the regulations to be maritime security inspectors. Appointments must be in writing.

 

Clause 137  Identity cards

This clause provides that the Secretary must issue each maritime security inspector with an identity card. The requirements in relation to identity cards, including their form, issue and use and use in combination with another identity card will be prescribed in regulations.

 

Clause 138  Maritime security inspector powers - ISSC verifications

Clause 138 provides that a maritime security inspector may inspect a regulated Australian ship for ISSC verification including the inspection of ship security records and other security related documents on board the ship. The purpose of the inspection is to determine whether the ship has implemented security measures in order to meet the requirements for ISSC verification. Clause 83 sets out those requirements.

 

Subclause 138(2) states that the maritime security inspector’s powers are limited to the extent that the inspector must not subject a person to greater indignity than is reasonable or necessary.

 

Clause 139  Maritime security inspector powers - ships

Clause 139 provides a maritime security inspector with a number of powers he or she may exercise in determining whether a person or ship is complying with the Bill and if non-compliance is suspected to investigate a possible contravention. These powers are essential to the ability of the Secretary to monitor and investigate compliance with the Bill and fulfil his or her role as a regulator. This clause gives maritime security inspectors the ability to board and inspect any part of a security regulated ship, inspect and photograph equipment, observe and record operating procedures (including training drills), discuss operating procedures with crew or other maritime industry participants (eg port service providers) and inspect and copy a range of security related documents.

 

Subclause 139(3) states that the maritime security inspector’s powers are limited to the extent that the inspector must not subject a person to greater indignity than is reasonable or necessary.

 

Clause 140  When powers may be exercised - ships

This clause limits when a maritime security inspector may exercise his or her powers on-board a ship. In the operational areas of a ship a maritime security inspector may exercise his or her powers at any time and without notice if the ship is within the boundaries of a security regulated port. However, if the power is to be exercised outside those boundaries, reasonable notice must be given to the ship operator or the master of the ship.

 

Subclause 140(5) defines an operational area on a ship as one which is not a private living area.

 

In recognition that people live on-board ships subclause 140(2) and (3) specify that a maritime security inspector may not inspect private living areas of a ship unless both the master and any person or persons who occupy the private living area consent to the inspection, or a warrant has been issued in accordance with clause 144. In any inspection of a private living area the maritime security inspector must be accompanied by the master of the ship or a person nominated by the master.

 

Subclause 140(4) defines a private living area on a ship as an area which is used for the purposes of providing accommodation for passengers or crew of the ship and to which all crew or passengers do not have general access.

 

Clause 141  Maritime security inspector powers - participants

This clause provides a maritime security inspector with a number of powers he or she may exercise in determining whether a person or ship is complying with the Bill and if non-compliance is suspected investigate a possible contravention. These powers are essential to the ability of the Secretary to monitor and investigate compliance with the Bill and fulfil his or her role as a regulator. This clause gives maritime security inspectors the ability to enter and inspect any area, building, vehicle or vessel under the control of a maritime industry participant. If a maritime industry participant operates from a residence the inspectors powers of entry are limited to that part of the residence that are used for those operations. The maritime industry inspector may also inspect and photograph equipment, observe operating procedures (including training drills), discuss operating procedures with employees or other maritime industry participants (eg port service providers), inspect and copy documents and operate equipment in order to access a document or record kept by a maritime industry participant.

 

Subclause 141(3) provides that the maritime security inspector’s powers are limited to the extent that the inspector must not subject a person to greater indignity than is reasonable or necessary.

 

Clause 142  When powers may be exercised - participants

This clause provides that a maritime security inspector may exercise the powers in clause 141 within the boundaries of a security regulated port at any time and without notice. However, if the power is to be exercised outside those boundaries, reasonable notice must be given to the maritime industry participant.

 

Clause 143  Offence - hindering or obstructing a maritime security inspector

This clause makes is an offence for a person to engage in conduct which hinders or obstructs a maritime security inspector from exercising the powers set out in this Division. This is a strict liability offence. The offence does not apply if the person has a reasonable excuse. The maximum penalty is 50 penalty units.

 

Clause 144  Ship inspection warrants

This clause enables a maritime security inspector to apply to a magistrate for a warrant to inspect a private living area on-board a security regulated ship. The clause provides that a magistrate may only issue a warrant if he or she is satisfied that the warrant is necessary for one of the purposes listed. The magistrate may require further information concerning the reason why a warrant is sought. A warrant must stipulate the terms, time, day and purpose for which the warrant is issued.

 

Clause 145  Ship inspection warrants by telephone, fax etc.

Clause 145 sets out the requirements for the issuing of an urgent warrant by a magistrate. In an urgent situation a maritime security inspector may apply for a warrant by phone, fax or other electronic means. The clause provides that certain requirements are to be met by the maritime security inspector and the magistrate in such circumstances. These requirements are in place both to facilitate the provision of a warrant in urgent circumstances and to safeguard that proper procedure and accountability requirements are met.

 

Division 3 - Duly authorised officers

 

This Division enables the Secretary to appoint officers of certain Commonwealth agencies as duly authorised officers to perform limited functions associated with the checking of compliance by security regulated ship with the Bill.

 

Clause 146  Simplified overview of Division

This clause provides a simplified overview of the Division.

 

Clause 147  Secretary may appoint duly authorised officers

This clause provides that the Secretary may appoint a person who is a customs officer, ADF member, immigration officer, AMSA surveyor, or quarantine officer to be a duly authorised officer for the purposes of the Bill. Appointments must be in writing.

 

Clause 148  Duly authorised officer powers - operational areas of ships

This clause limits the powers of a duly authorised officer to operational areas of a ship for the purposes of determining whether a person or ship is complying with the Bill.

 

Subclause 148(2) states that, among others, a duly authorised officer may board a security regulated ship and inspect its operational areas (including restricted access areas), observe and record operating procedures, and inspect and copy security related documents and operate equipment in order to access such documents.

 

Subclause 148(3) provides that a duly authorised officer may exercise the powers mentioned in this clause within the boundaries of a security regulated port at any time and without notice. However, if the power is to be exercised outside those boundaries, reasonable notice must be given to the ship operator or master of the ship.

 

Subclause 148(4) states that the duly authorised officer’s powers are limited to the extent that the officer must not subject a person to greater indignity than is reasonable or necessary.

 

Clause 149  Offence - hindering or obstructing a duly authorised officer

This clause makes it an offence for a person to engage in conduct which hinders or obstructs a duly authorised officer from exercising the powers set out in this Division. This is a strict liability offence. The offence does not apply if the person has a reasonable excuse. The maximum penalty is 50 penalty units.

 

Division 4 - Law enforcement officers

 

Law enforcement officers are granted relatively extensive powers because it is recognised that there may be circumstances where coercive powers are necessary to safeguard against unlawful interference with maritime transport. Police and certain customs officers, due to the nature and level of their training and expertise, are seen as the most appropriate people to exercise coercive powers in security regulated ports and on board security regulated ships.

 

The powers set out in this Bill are in addition to any powers that a law enforcement officer may have apart from this Bill. They are not intended in any way to limit those other powers.

 

Clause 150  Simplified overview of Division

This clause provides a simplified overview of the Division.

 

Clause 151  Law enforcement officers

This clause provides that the law enforcement officers who will be able to exercise powers under this Bill are members of the Australian Federal Police, the police force of a State or Territory and customs officers prescribed in the regulations.

 

Clause 152  Access to ports by law enforcement officers

This clause provides that law enforcement officers will be able to enter, and remain in, any part of a security regulated port at any time. However, before entering a part of a security regulated port that is under the control of a maritime industry participant (for example a container terminal) the law enforcement officer must identify himself or herself to the maritime industry participant and inform the participant why they are entering that part of the security regulated port.

 

Clause 153  Stopping and searching people
Clause 154  Stopping and searching vehicles
Clause 155  Stopping and searching vessels

These clauses provide that a law enforcement officer may stop and search any person, vehicle or vessel within a maritime security zone or on-board a security regulated ship if the officer reasonably believes that it is necessary to do so to safeguard against unlawful interference with maritime transport. The officer must identify himself or herself to the person being stopped, tell the person why he or she is being stopped, and if a search is to take place, the reasons for the search. The power is limited to ordinary searches and frisk searches, which have the same meaning as in the Crimes Act 1914 . Where a vehicle or vessel is not stopped by the officer, the officer must, if the person in control of the vehicle or vessel is present, identify himself or herself and tell the person the reasons for the search.

 

It is an offence for a person to hinder or obstruct a law enforcement officer from exercising these powers. The maximum penalty for this offence is imprisonment for 2 years.

 

Clause 156  Requests to leave ships or zones

This clause provides that a person may be asked to leave a maritime security zone or a security regulated ship if the law enforcement officer has reason to suspect that the person is committing, or has committed, an offence against this Bill. Failure to comply with the request to leave is a strict liability offence punishable by a maximum of 50 penalty units.

 

Clause 157  Removing people from ships or zones

This clause provides that a law enforcement officer may remove a person from a ship or zone, without any more force than necessary and without subjecting the person to greater indignity than necessary or reasonable, if the person fails to comply with a request to leave. This clause recognises that a balance must be struck between the legitimate use of force to protect maritime transport security and the civil liberties of individuals.

 

Clause 158  Removing vehicles from zones
Clause 159  Removing vessels from zones

These clauses provide that if a law enforcement officer has reason to suspect that a vehicle or vessel in or near a maritime security zone presents a risk to maritime transport security or is not authorised to be in a maritime security zone he or she may remove the vehicle or vessel. Before removing the vehicle or vessel the officer must make reasonable efforts to have the person in control of the vehicle or vessel remove it. A law enforcement officer must not use more force, or subject a person to greater indignity than is reasonably necessary to remove the vehicle or vessel. A law enforcement officer must make reasonable efforts to avoid damaging the vehicle or vessel.

 

Clause 160  Other law enforcement powers not affected

Clause 160 clarifies that other powers held by law enforcement officers apart from those set out in this Bill are not affected by this Bill.

 

Division 5 - Maritime security guards

 

This division sets out the framework for maritime security guards and provides them with limited powers to restrain and detain persons. The operators of security regulated ships, ports, port facilities and other maritime industry participants may choose to employ maritime security guards to safeguard against unlawful interference with their maritime operations.

 

Clause 161  Simplified overview of Division

This clause provides a simplified overview of the Division.

 

Clause 162  Maritime security guards

Subclause 162(1) defines that a maritime security guard is a person who satisfies the requirements prescribed in the regulations, is on duty at a security regulated port, and is not a law enforcement officer. Regulations will provide training and qualification requirements that limit who may be classified as a maritime security guard for the purposes of this Bill.

 

Subclause 162(2) requires the regulations to prescribe the training and qualification requirements, as well as any requirements in relation to the use and form of identify cards.

 

Subclause 162(3) allows regulations to be made in relation to uniforms and any other requirements in relation to maritime security guards.

 

Clause 163 Maritime security guards’ power to physically restrain person

This clause grants a maritime security guard a limited power of physical restraint. This power recognises that there are circumstances where law enforcement officers will not be available to attend to suspected breaches of security, and in these circumstances it is appropriate for maritime security guards to exercise limited powers. This clause provides that a maritime security guard may use reasonable force to physically restrain a person if the maritime security guard reasonably suspects the person is committing or has committed an offence against this Bill. In addition, if the maritime security guard reasonably believes that it is necessary to restrain a person who is not cleared from entering a cleared area the security guard may restrain the person, for example a person who goes though a screening point without being screened. A security guard may also restrain a person to protect the integrity of a maritime security zone, for example an intruder.

 

Subclause 163(2) specifies that the power of restraint may only be exercised until the person can be dealt with by a law enforcement officer.

 

Subclause 163(3) provides that a maritime security officer must not use more force than necessary and not subject the person to greater indignity than necessary or reasonable to detain a person. This clause recognises that a balance must be struck between the legitimate use of force to protect maritime transport security and the civil liberties of individuals.

 

Division 6 - Screening officers

 

This Division sets out the parameters of acceptable behaviour from a person employed as a screening officer and provides them with limited powers to restrain and detain persons. These provisions complement those in Division 2 of Part 7.

 

Clause 164  Simplified overview of Division

This clause provides a simplified overview of the Division.

 

Clause 165  Screening officers

This clause defines that a screening officer is a person who is authorised or required to conduct screening. The regulations will prescribe the training and qualification requirements that must be met for a person to be a screening officer, as well as any requirements in relation to the use and form of identity cards.

 

Subclause 162(3) allows regulations to be made in relation to uniforms and any other requirements.

 

Clause 166  Screening powers

This clause limits the powers of a screening officer. The clause provides that if a screening officer considers it necessary to adequately screen a person, the officer may request a person to remove any item of clothing to assist the process. The power is non-coercive, and it is an offence for a screening officer to require the removal, remove or cause the removal of any clothing. Subclause 166(3) states that this penalty does not apply if the screening officer has a reasonable excuse. For example, a senior citizen may seek assistance in removing his or her coat.

 

Subclause 166(5) clarifies that where a person has been requested to remove an item of clothing under subclause 166(1) and refuses to do so the person may be asked to proceed to a private room to be screened by a screening officer of the same sex as the person. If the person refuses this option, the screening officer is not be able to complete the screening task and the person must not be permitted to pass through the screening point.

 

Clause 167  Screening officers’ power to physically restrain a person

Clause 167 grants screening officers the same powers as maritime security guards to restrain a person. However, the screening officers’ power to physically restrain a person are restricted to cleared areas. This power has been included in recognition that there are circumstances where law enforcement officers will not be available to attend to breaches of security arrangements, and in these circumstances it is appropriate for screening officers to exercise limited powers.

 

Subclause 167(2) specifies that the power of restraint may only be exercised until the person can be dealt with by a law enforcement officer.

 

Clause 168  Exercise of powers by screening officers

This clause provides that a screening officer when exercising his or her powers under this Division must not use more force or subject a person to greater indignity than is necessary and reasonable.

 

PART 9 - REPORTING MARITIME TRANSPORT SECURITY INCIDENTS

 

This Part establishes the requirements relating to the provision of information about maritime transport security incidents to the Secretary and the Department. This will ensure that the Secretary, as the regulator of maritime transport security, has adequate information in the event of a maritime transport security incident.

 

Division 1 - Simplified overview of Part

 

Clause 169  Simplified overview of Part

This clause provides a simplified overview of the Division.

 

Division 2 - Meaning of maritime transport security incident

 

Clause 170  Meaning of maritime transport security incident

This clause defines two types of maritime transport security incidents. Firstly, if a threat of unlawful interference with maritime transport is made (for example, a bomb threat) and this threat is, or is likely to be, a terrorist act, then the threat is a maritime transport security incident. Secondly, if an unlawful interference with maritime transport is, or is likely to be, a terrorist act (for example, damage to property with the intention of advancing a political, religious or ideological cause), then the unlawful interference is a maritime transport security incident.

 

Division 3 - Certain people must report incidents

 

This Division establishes that certain maritime industry participants must report maritime transport security incidents to the Secretary.

 

Clause 171  Port operators
Clause 172  Ship masters
Clause 173  Ship operators
Clause 174  Port facility operators

These clauses make it an offence for port operators, ship masters, ship operators and port facility operators not to report a maritime transport security incident according to the reporting requirements set out in Division 4 when they become aware of the incident. These are strict liability offences. The penalty will not apply if the operator or master believes on reasonable grounds that the person to whom the report has to be made is already aware of the incident.

 

Clause 175  Persons with incident reporting responsibilities

This clause makes it an offence for the persons listed in subclause 175(4) who become aware of a maritime transport security incident not to report that incident as soon as possible as required under clause 181. The classes of persons listed are maritime security inspectors, duly authorised officers, maritime security guards, screening officers and maritime industry participants and their employees otherwise required by this Division to report maritime transport security incidents.

 

This is a strict liability offence. The penalty will not apply if the person with incident reporting responsibilities believes on reasonable grounds that the person to whom the report has to be made has already been informed of the incident.

 

Clause 176  Employees

Clause 176 makes it an offence for employees of maritime industry participants who become aware of a maritime transport security incident to fail to report the incident to their employer as soon as possible. This clause reflects the fact that, while the organisation has overall responsibility for maritime transport security, individual employees also have an important role in ensuring the security of Australia's maritime industry. This is a strict liability offence with a maximum penalty of 50 penalty units. The penalty does not apply if the employee has a reasonable excuse.

 

Division 4 - Reporting requirements

 

This Division deals with the requirements for reporting incidents by those with incident reporting responsibilities as defined in Division 3. This Division reflects the fact that while the Secretary needs to be made aware of maritime transport security incidents the relevant police forces are the first response agencies to an incident.

 

Clause 177  Reporting by port operators

Clause 177 stipulates the reporting requirements for port operators. Under clause 171 it was established that port operators must report maritime transport security incidents when they become aware of them. An incident that relates to the port of the port operator must be reported by the port operator to the Secretary and the Australian Federal Police or the police force of the relevant State or Territory. If the incident is directed at a part of a port controlled by another person, the operations of another person or a security regulated ship, the port operator must also report the incident to the person who controls that part, operation or ship. Subclause 177(4) also stipulates that if the incident relates to a port of another port operator then the incident must be reported to that port operator.

 

The intention of this clause is to ensure that the relevant people and organisations are aware of any incident that has security implication for them, their business, or their property.

 

Clause 178  Reporting by ship masters
Clause 179  Reporting by ship operators
Clause 180  Reporting by port facility operators

These clauses stipulate similar incident reporting requirements to those specified in clause 177 for other maritime industry participants. Reports of maritime transport security incidents must be given to the Secretary, the Australian Federal Police or the relevant State or Territory police, the port operator and to any other maritime industry participant or security regulated ship affected by the incident.

 

Clause 181  Reporting by persons with incident reporting responsibilities

Subclause 181 stipulates that a person with incident reporting responsibilities must report incidents to the Secretary. If the incident relates to a security regulated port, the person must report this incident to the relevant port operator. And, similarly, if the incident relates to a security regulated ship, the incident must be reported by the person to the relevant ship operator or master of the ship. This clause reflects the fact that in practice it will be the port operator, port facility operator or ship's master who will report maritime transport security incidents to the police. However, nothing in this clause is intended to prevent immediate reporting of a maritime transport security incident to the relevant police force by any person.

 

Division 5 - Form and content of reports

 

Clause 182  How reports are to be made

This clause allows that a notice may be published by the Secretary in the Gazette setting out what information is be included in an incident report or the way in which the report must be made, or both.

 

This notice must be tabled in Parliament and may be disallowed.

 

Subclause 182(3) clarifies that if a maritime industry participant or a person with incident reporting responsibilities does not report a maritime transport security incident in compliance with the gazetted requirements, then the report will be considered not to have been made for the purposes of this Part. This means that the maritime industry participant or person with incident reporting responsibilities may face a penalty under Division 3 if they do not report an incident in the required manner, unless they have a reasonable excuse.

 

PART 10 - INFORMATION GATHERING

 

Division 1 - Simplified overview of Part

 

This Part allows the Secretary to obtain security compliance information from maritime industry participants. The collection of security compliance information is important for ensuring that appropriate security measures are implemented and maintained to safeguard against unlawful interference in maritime transport, and that Australia has met its international obligations.

 

Clause 183 Simplified overview of Part

This clause provides a simplified overview of the Division.

 

Division 2 - Secretary may require security compliance information

 

Clause 184  Secretary may require security compliance information

Clause 184 enables the Secretary to require information from maritime industry participants which can be used to assess participants’ compliance, or non compliance, with their maritime security plans, ship security plans, or other security-related obligations under this Bill. Such information is security compliance information. If the Secretary has reasonable grounds to believe that the participant has security compliance information he or she may require the information from a participant under subclause 184(2). The information must be given within the period and in the form and manner specified in the Secretary’s written notice. Subclause 184(3) limits the time period to not less than 14 days. The Secretary may specify that the participant provide the information orally, in writing, and/or by electronic transmission.  Failure to comply with the Secretary’s request under subclause 184(2), without a reasonable excuse, is a strict liability offence with a maximum penalty of 45 penalty units.

 

This clause will allow the Secretary to assess the health of the security of the maritime industry and will enable the Secretary to recognise possible weaknesses in the maritime security system and rectify problems before the safety of the industry and the public is compromised.

 

Clause 185  Self-incrimination

Subclause 185(1) clarifies that whenever a person is required to give security compliance information that person cannot be excused from giving the information on the grounds that it might incriminate them or expose them to a penalty.

 

In acknowledgment that coercive information-gather powers, where the common law privilege is removed, must be accompanied by appropriate protection for the informant, subclause 185(2) provides that the individual giving the information and any information, document or thing obtained directly or indirectly as a result of giving information cannot be admitted as evidence in a criminal proceeding, or any other proceeding for the recovery of a penalty, against the person. This protection does not extend to the giving of false or misleading information or documents as provided under section 137.1 or 137.2 of the Criminal Code . This clause reinforces the concept that the processes of gathering compliance information to improve maritime security and those relating to judicial proceedings, particularly criminal proceedings, should be separate to ensure a continued free flow of security compliance information. Giving security compliance information should be encouraged so that issues regarding compliance can be addressed before they compromise maritime transport security or put the general public in danger.

 

Nothing in this Part prevents agencies separately collecting and using compliance information for the purpose of judicial or other proceedings.

 

PART 11 - ENFORCEMENT

 

This Part provides a range of enforcement options that are available to the Secretary as an alternative to, or in addition to, prosecution. Making a range of enforcement options available enables appropriate enforcement measures to be selected to meet the nature and circumstances of a particular contravention.

 

Division 1 - Simplified overview of Part

 

Clause 186  Simplified overview of Part

The Division provides a simplified overview of the Part.

 

Division 2 - Infringement notices

 

Clause 187  Infringement notices

This clause enables regulations to be made which allow infringement notices, or ‘on-the-spot’ fines, to be issued as an alternative to prosecution where it is alleged that an offence under the Bill or the regulations has occurred. Offences for which this option would not be made available are those against subclauses 43(1), 62(1), 120(3), 121(3), 127(3), 128(3), 153(3), 154(4), 155(4) or clauses 123 or 130, because these are considered to be serious acts that should be subject to criminal sanction (for example, a maritime industry participant operating without a maritime security plan in force or the intentional carriage of an unauthorised weapon into a maritime security zone).

 

A fine issued through an infringement notice must not exceed one-fifth of the maximum fine that could be imposed by a court as a penalty for the offence. This is in keeping with current Commonwealth criminal law policy.

 

Division 3 - Enforcement orders for maritime industry participants

 

An enforcement order is a regulatory instrument which may be issued when the Secretary is of the opinion that a breach of the Bill has occurred and that specific action is required (or stopped or restricted) in order to safeguard against unlawful interference with maritime transport. Use of an order reflects the policy that rectification of a problem is the preferred outcome to prosecution. As an enforcement order is a civil enforcement remedy, the Secretary will only need to be satisfied of these matters on the balance of probabilities rather than the criminal standard of beyond reasonable doubt. If an enforcement order is contravened an injunction may be sought from a court.

 

Clause 188  Simplified overview of Division

This clause provides a simplified overview of the Division.

 

Clause 189  Secretary may make enforcement orders - participants

This clause allows the Secretary to make enforcement orders prohibiting or restricting specified activities or requiring specific action by a maritime industry participant named in the enforcement order. The Secretary’s power to issue an enforcement order must be based on a reasonable belief that the maritime industry participant has contravened a provision in this Bill and that the order is necessary to safeguard against unlawful interference with maritime transport.

 

An enforcement order must bear a clear and direct relationship to the contravention and be proportionate to the contravention. In addition, the Secretary cannot require the payment of money other than an amount that is already recoverable at law.

 

Clause 190  Commencement and duration of enforcement orders

This clause provides that an enforcement order comes into force at the time specified in the order, for example 1:00am on a particular day, or if there is no specified time, at the beginning of the 7 th day after the order is made. The provision for a shorter period will allow for orders to be given in emergency situations. An enforcement order remains in force either for the period specified in the order, or if a period is not specified, until the order is revoked by the Secretary.

 

Clause 191  Reviews of enforcement orders

To ensure enforcement orders remain current and relevant, this clause provides for their regular review. Under this clause the Secretary must review enforcement orders at least every 3 months, and after each review, confirm, vary or revoke the order in writing. This reflects the fact that enforcement orders are aimed at rectification of a particular problem and should be monitored to ensure the activities or actions specified in the order continue to address that particular contravention.

 

An order must be revoked unless the Secretary is satisfied that the order is still required to safeguard against unlawful interference with maritime transport.

 

The Secretary must not vary the order unless he or she is satisfied that the order as varied adequately safeguards against unlawful interference with maritime transport and the varied order bears a clear and direct relationship to the contravention and remains proportionate to the contravention.

 

Subclause 191(4) clarifies that an order continues in force as varied, and will require a further review after an additional 3 months.

 

Clause 192  Notice of enforcement orders

This clause provides that the Secretary must, as soon as is practicable after making or reviewing an enforcement order, inform the maritime industry participant named in the order of the making or review of the order.

 

Subclause 192(2) provides that failure by the Secretary to comply with subclause 192(1) does not affect the validity of an order.

 

Clause 193  Complying with enforcement orders

This clause provides that a person must not engage in conduct that contravenes an enforcement order. While non compliance with an enforcement order is not an offence, it may be enforced through injunctive relief under clause 197.

 

Division 4 - Ship enforcement orders for regulated Australian ships

 

This Division details provisions for the issuing of enforcement orders to the ship operator or master of a regulated Australian ship. The provisions are similar to the enforcement orders able to be issued to other maritime industry participants in that the conditions which must be satisfied and the circumstances under which an order may be issued are the same but an order is limited to the taking or stopping of specified action in relation to the ship.

 

Clause 194  Simplified overview of Division

This Clause provides a simplified overview of the Division.

 

Clause 195  Ship enforcement orders - regulated Australian ships

This clause allows the Secretary to issue a ship enforcement order to the ship operator for a regulated Australian ship or the master of the ship requiring the ship operator or the master to take specified action, or refraining from specified action, in relation to the ship.

 

The Secretary’s power to issue a ship enforcement order is limited to those instances where the Secretary reasonably believes that the regulated Australian ship has contravened a provision in this Bill and it is necessary to make the order to safeguard against unlawful interference with maritime transport.

 

An enforcement order must bear a clear and direct relationship to the contravention and be proportionate to the contravention. Some of the actions that may be required include removing the ship from specified waters or port, or moving or holding the ship within a port. In addition, the Secretary cannot require the payment of money other than an amount that is already recoverable at law.

 

These orders are similar to the control directions the Secretary may give to regulated foreign ships in certain circumstances under subclause 99(4).

 

Subclause 195(6) requires that the Secretary must commit the ship enforcement order to writing before giving it, however the order may be given orally or by any other means.

 

Clause 196  Enforcing ship enforcement orders

This clause provides that a ship operator or master must not engage in conduct that contravenes a ship enforcement order. While contravention of an enforcement order is not an offence, it may be enforced through injunctive relief under clause 197.

 

Division 5 - Injunctions

 

The Federal Court may grant an injunction to restrain a person from taking action which contravene this Bill, or to require a person to do an act or thing. Such a power allows action to be taken before a contravention occurs, rather than waiting until it has occurred and then prosecute. The phrase engage in conduct , in this context, covers both acts or omissions, such as if a person fails to do something which he or she would otherwise be required to do.

 

This injunction power is not intended to limit any other powers the Federal Court may have which would impact on maritime transport security.

 

An example of where an injunction may be sought is when a maritime industry participant who is required to be operating with an approved security plan in force, operates without such a plan. An injunction could stop the maritime industry participant from operating immediately. In addition to being subject to a penalty of up to 200 penalty units for committing an offence under clause 43, the granting of an injunction in such circumstances could mean that individual directors of such an operation would be in contempt of court if they breached the injunction, and would face the usual penalties associated with such a breach.

 

Clause 197  Injunctions

Subclause 197(1) provides that the Federal Court may on application by the Secretary grant an injunction to restrain a person from engaging in the conduct in contravention of this Bill or require the person to do an act or a thing.

 

Subclause 197(2) empowers the Federal Court to grant an injunction where consent is given by all parties to the proceedings, regardless of whether the Court is satisfied that the circumstances necessary to grant an injunction are satisfied.

 

Subclause 197(3) allows the court to grant an interim injunction.

 

Subclause 197(4) provides that the court is not to require the Secretary, or anyone else, as a condition of granting an interim injunction to give an undertaking as to damages. This clause limits the court’s usual discretion to require undertakings as to damages. This recognises that the Commonwealth, as represented by the Secretary, does not represent a risk in relation to its ability to pay damages.

 

Subclause 197(5) allows the court to release or vary an injunction it has granted.

 

Subclause 197(6) and 197(7) clarifies that the court has the discretion to grant or vary an injunction irrespective of previous or continuing conduct or intention of a person or imminent danger of substantial damage to any person if an action or thing is not done.

 

Division 6 - Demerit points system

 

This Division allows regulations to be made to establish a demerit point system attached to the approval of a maritime security plan or a ship security plan. The purpose of the demerit points system is to allow for a regulatory framework that builds a security profile for each regulated entity, and records systemic breaches of the Bill and/or regulations. Such a system provides flexibility with enforcement measures and ensures that regulated entities are aware of how their organisation is performing from a compliance perspective. It therefore encourages a maritime industry participant to make the necessary changes to their operations so as to ensure that the operations can continue.

 

Clause 198  Demerit points system

This clause provides that the regulations may establish a demerit point system under which the approval of a maritime security plan or a ship security plan may be cancelled.

 

Clause 199  Demerit points - maritime security plans

This clause provides that the demerit point system may provide that the approval of a maritime security plan may be cancelled if the maritime industry participant has accrued a prescribed number of demerit points. Clause 58 deals with the cancellation of a maritime security plan based on the accumulation of demerit points.

 

Demerit points only accrue if a participant is found guilty of an offence against this Bill or regulations, or the person pays an infringement notice or other alternative to prosecution as set out in the regulations.

 

The demerit points scheme may differentiate between kinds of maritime industry participants, as well as between different classes of participants within a kind of maritime industry participant.

 

Clause 200  Demerit points - ship security plans

Clause 200 mirrors the provisions in clause 199 with regard to a ship operator operating without a ship security plan or not operating in compliance with a ship security plan.

 

PART 12 - REVIEW OF DECISIONS

 

Clause 201  Review of decisions by Administrative Appeals Tribunal

This clause sets out the decisions that can be made under this Bill which are reviewable by the Administrative Appeals Tribunal (AAT). Whilst the AAT is limited in undertaking merits review to the decisions listed in this clause, this does not limit the scope for judicial review to occur under the Administrative Decisions (Judicial Review) Act 1976 , or at common law.

 

The following decisions made by the Secretary are reviewable:

(a)                 refusing to approve a maritime security plan or a ship security plan;

(b)                giving a maritime industry participant or ship operator a direction to vary a plan;

(c)                 giving a maritime industry participant or ship operator a direction to revise a plan;

(d)                cancelling a maritime security plan or ship security plan;

(e)                 refusing to give an interim ISSC;

(f)                 declaring a particular port, or part of a particular port, as a security regulated port;

(g)                designating a person as a port operator;

(h)                establishing a port security zone;

(i)                  declaring a ship security zone around a ship; or

(j)                  establishing an on-board security zone.

 

PART 13 - MISCELLANEOUS

 

Clause 202  Delegation

Through its Secretary, the Department of Transport and Regional Services will be the administering authority of this Bill. Subclause 202(1) permits the Secretary to delegate in writing all or any of his or her powers under the Bill to a Senior Executive Service (SES) employee or person acting as an SES employee in the Department.

 

Subclause 202(2) provides that the Secretary may delegate most of his or her powers to an APS employee in an Executive Level 2 or equivalent position in the Department, (whether ongoing or otherwise). The exception to this Executive Level 2 delegation are the powers under Division 3 of Part 11, which relate to the issuing of enforcement orders. These are significant powers and exercise of them has been restricted to senior managers to promote consistency and accountability.

 

All delegates must comply with any directions issued by the Secretary in relation to the exercise of any delegated powers or functions.

 

Clause 203  Compensation for damage to electronic equipment

This clause provides details of the circumstances in which compensation for damage to electronic equipment must be made when such equipment has been operated by maritime security inspectors in exercise of their powers under clauses 139 and 141 and by duly authorised officers in exercise of their powers under clause 148. This is a common provision in legislation which permits the operation of electronic equipment of another person by a Commonwealth official.

 

Clause 204  Compensation for acquisition of property

This clause provides for compensation for acquisition of property where compensation is required for constitutional reasons.

 

Clause 205  Compensation for unnecessary delay - paid by the Commonwealth

This clause provides for compensation to be paid by the Commonwealth if the Secretary has given a control direction to a regulated foreign ship or a ship enforcement order to a regulated Australian ship, and compliance with the direction or order causes a ship to be delayed and in the circumstances the delay is unreasonable.

 

Clause 206  Compensation for inspection and detention - paid by ship operators or other person

Subclause 206(1) provides for compensation to be paid by a person to the Commonwealth if the Commonwealth incurs costs for the detention or inspection of a ship due to the person’s failure to comply with this Bill and the detention or inspection is reasonable in the circumstances.

 

Subclause 206(2) mirrors the above provision in the respect of a ship operator of a non-compliant security regulated ship’s failure to comply with this Bill irrespective of whether the detention or inspection was to the non complying ship or another ship.

 

Clause 207  Saving of other laws

Under international law, representatives of foreign governments, such as diplomats, consular officials and heads of state, are immune from many Australian laws. These immunities have been recognised in several existing Commonwealth Acts that are listed in this clause. This clause ensures that this Bill does not affect those existing immunities.

 

Clause 208  Severability - additional effect of Act

This clause provides for continued operation of the Bill (or provisions of the Bill) in the event of a successful constitutional challenge. It sets out the various constitutional heads of power upon which the Bill can draw if its operation is expressly confined to acts or omissions under those constitutional powers.

 

Clause 209  Regulations

This clause allows regulations to be made where required or permitted by this Bill, or where necessary or convenient for the purposes of the Bill.

 

Regulation making powers are spread throughout the Bill. In particular, Parts 3 and 4 provide for extensive regulations to be made regarding the form and content of maritime and ship security plans. Providing for a wide range of issues to be dealt with in regulations builds in a necessary degree of flexibility as the nature and extent of terrorist and other unlawful interference with maritime transport and their countermeasures change. Providing for much of the detail to be set out in regulations allows the Government to respond to changes in the maritime transport security environment promptly while still maintaining the necessary parliamentary oversight.

 

In addition to the regulation making powers specified elsewhere in the Bill, provision is made in this clause for the prescription of fees and penalties (not exceeding 50 penalty units). Many other clauses in the Bill provide for higher penalties to be prescribed in the regulations; these higher penalties will still apply to any regulations made under those clauses.