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Transport Security Legislation Amendment (2010 Measures No. 1) Bill 2010

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2008-2009-2010

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

TRANSPORT SECURITY LEGISLATION AMENDMENT

(2010 MEASURES NO.1) BILL 2010

 

 

 

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Infrastructure, Transport,

Regional Development and Local Government,

The Honourable Anthony Albanese, MP)

 

 

 

TRANSPORT SECURITY LEGISLATION AMENDMENT (2010 MEASURES NO.1) BILL 2010

 

 

OUTLINE

 

The Transport Security Legislation Amendment (2010 Measures No. 1) Bill 2010 would amend the Aviation Transport Security Act 2004 (the ATSA) and the Maritime Transport and Offshore Facilities Security Act 2003 (the MTOFSA).

 

Measures contained under the ATSA are designed to safeguard Australia’s civil aviation operations against “acts of unlawful interference” and the proposed amendments would further strengthen the framework of the aviation security regime.

 

There are two proposed amendments to the ATSA under Schedule 1 to the Bill.  The first amendment would amend the ATSA to allow the prohibited items (PIs) list to be made in a legislative instrument issued by the Minister responsible for administering the Act.  The second amendment would enable the Secretary to delegate all or any of his or her powers and functions to an SES employee in the Attorney-General’s Department (AGD), in preparation for the establishment of the ‘Commonwealth Incident Coordinator’ position within the AGD from 1 July 2010.

 

In 2008, the Office of Transport Security commenced a review of security arrangements for passenger ships which found that amendments to the MTOFSA were required to strengthen passenger ship security arrangements.  Since that time, several other, minor miscellaneous amendments have been identified as being necessary to ensure the MTOFSA continues to deliver effective security outcomes into the future. The Bill amends the MTOFSA to:

·          allow operators of Australian ships to apply to the Secretary for an exemption from the requirement to hold a Ship Security Plan and/or an International Ship Security Certificate in exceptional circumstances;

·          allow operators of foreign flagged ships that have been granted an exemption by their flag State from holding an International Ship Security Certificate or equivalent to have that exemption observed in Australia;

·          enable regulations to be made to define different classes of passenger ships, to then allow notices to be issued by class of passenger ship prescribing methods, equipment and techniques to be used for screening;

·          insert the ability to conduct frisk searches for screening and clearing passengers and crew boarding security regulated passenger ships;

·          enable certain persons to be appointed as ‘security assessment inspectors’ to conduct security assessments of maritime industry participants;

·          enable the Secretary to delegate his powers under the MTOFSA to Agency Heads and certain SES officers in other agencies in certain circumstances;

·          make a minor amendment to not limit the screening and clearing matters that may be dealt with by regulations; and

·          modernise the recording media options for maritime security inspectors (and to align with security assessment inspectors)

 

 

 

FINANCIAL IMPACT STATEMENT

 

The amendments would have no significant financial impact on Government expenditure, therefore a Financial Impact Statement is not required.

 

 

NOTES ON CLAUSES

 

Clause 1: Short Title

 

Clause 1 is a formal provision specifying the short title of the Act which may be cited as the Transport Security Legislation Amendment (2010 Measures No. 1) Act 2010 .

 

Clause 2: Commencement

 

The Bill contains one schedule of amendments to the Act.  All provisions of the Bill would commence on the day it receives Royal Assent.

 

Clause 3: Schedule(s)

 

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned.  Any other item in a Schedule to this Act has effect according to its terms.

 



SCHEDULE 1 - AMENDMENTS

 

Schedule 1 would amend both the Aviation Transport Security Act 2004 and the Maritime Transport and Offshore Facilities Security Act 2003 .

 

Aviation Transport Security Act 2004

 

Amendments to the Aviation Transport Security Act 2004 .

 

Item 1 - Section 9 (paragraph (b) of the definition of prohibited item )

 

1.         Item 1 would repeal and replace paragraph (b) of the definition of prohibited item under section 9 of the ATSA, for the purpose of proposed new section 9A to be inserted by item 2.

 

2.         Under the proposed new definition, a prohibited item would mean an item that:

a)       could be used for unlawful interference with aviation; and

b)       is specified in an instrument under section 9A.

 

Item 2 - At the end of Division 4 of Part 1

 

3.         Currently, the list of prohibited items (PIs list) is made under regulation 1.07 of the Aviation Transport Security Regulations 2005 (ATSR) pursuant to the present definition of a prohibited item under section 9 of the ATSA.  

 

4.         Therefore, any amendment to be made to the PIs list currently involves a relatively lengthy legislative process.  Any delays in updating the PIs list in the event of an aviation security incident or changing threats to aviation security may result in vulnerabilities in Australia’s aviation security framework.  

 

5.         Item 2 would add a new section 9A to the ATSA, to enable the Minister responsible for administering the Act to make, by legislative instrument, a notice specifying the list of prohibited items.  The notice would be a disallowable instrument for the purposes of the Legislative Instruments Act 2003.

 

6.         This amendment would ensure that the PIs list can be easily amended and updated to reflect emerging threats to aviation security while preserving Parliamentary scrutiny. 

 

Item 3 - After paragraph 127(1)(a)

Item 4 - At the end of section 127



7.         Currently the Secretary of the Department of Infrastructure, Transport, Regional Development and Local Government (the Secretary) may, by writing, delegate all or any of his or her powers and functions under the ATSA to an Agency Head of an Agency that carries on activities that relate to national security (section 127(1) of the ATSA), and that delegate is prevented from sub delegating those powers below an SES Band 3 employee in their respective Agency (section 127A of the ATSA).



8.         Items 3 and 4 would allow the Secretary to delegate all or any of his powers and functions to an SES employee in the Attorney-General’s Department (AGD).

 

9.         The proposed amendments would facilitate the role and responsibilities of the ‘Commonwealth Incident Coordinator’, a position expected to be within the Attorney-General’s Department from 1 July 2010. 

 

10.     The creation of the position of the Commonwealth Incident Coordinator forms part of the Australian Government’s all-hazards approach to crisis and consequence management, a policy outlined in the Prime Minister’s National Security Statement and the Australian Government Crisis Management Framework. 



Item 5 - Saving - prohibited items

 

11.     Item 5 is a savings provision, consequential to items 1 and 2.  This item would make it clear that proposed items 1 and 2 would not affect the operation of the PIs list, as currently made under regulation 1.07 of the ATSR, until a legislative instrument is made, and takes effect, under proposed new section 9A. 

 

12.     The note under this item refers the reader to section 12 of the Legislative Instruments Act 2003 , which deals with when a legislative instrument takes effect.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



Maritime Transport and Offshore Facilities Security Act 2003

 

Amendments to the Maritime Transport and Offshore Facilities Security Act 2003 .

 

Descriptions of items in the Bill with regard to the MTOFSA have been grouped to improve readability and reduce repetition.

 

Part 1 - Security assessment inspectors

 

Item 6 - Section 4

 

13.     Item 6 omits the current description of Part 8 of the MTOFSA and substitutes it with a description that includes security assessment inspectors, as defined at item 9.

 

Item 9 - Section 10

 

14.     This item defines the term security assessment inspector, which means a person appointed under subsection 145D(1).

 

Item 16 - Section 134

 

15.     Section 134 provides for a simplified overview of Part 8 of the MTOFSA, which sets out the powers of officials.  Item 16 inserts “security assessment inspectors” after “maritime security inspectors” and is consequential to the amendment at item 20.

 

Item 20 - After Division 2 of Part 8

 

16.     Item 20 inserts a new Division 2A, entitled “Security assessment inspectors”. This item provides for the creation of sections 145C “Simplified overview of Division”,  145D “Appointment”, 145E “Powers of security assessment inspectors”, 145F “When powers may be exercised” and 145G “Offence-hindering or obstructing a security assessment inspector”.

 

17.     The purpose of this amendment is to enable to the Secretary of the Department of Infrastructure, Transport, Regional Development and Local Government (the Department) to appoint a person as a security assessment inspector if that person meets criteria to be specified in the Maritime Transport and Offshore Facilities Security Regulations 2003 (MTOFSR).  Security assessment inspectors will be able to survey the extant security environment at a regulated maritime site and examine the effectiveness of current security policies; this will enable timely responses to changing and emerging security threats to be developed and to identify systemic policy and operational weaknesses.

 

18.     Currently the MTOFSA does not contain any explicit powers of access into security regulated areas other than for Departmental officers and law enforcement officers. Even then, activities are restricted to ensuring compliance with the MTOFSA or investigating suspected breaches.  There is no ability to enter a site for any other purpose or activity required for the effective administration of the MTOFSA and MTOFSR or for effective regulatory policy development.  This amendment seeks to address this problem.

 

 

 

19.     Powers of security assessment inspectors are specified at section 145E. For the purposes of conducting a security assessment of an area, facility, building (other than a residence), vessel or vehicle under the control of an industry participant, a security inspector may enter and inspect the area, facility, building, vessel or vehicle and inspect equipment in these places or things.  Still or moving images or any recording can be made (for example a digital image or video).  Observations can be made of the operating procedures of the industry participant and discussions may be had with an employee of the maritime industry participant or another maritime industry participant.

 

20.     A security assessment inspector must not subject a person to greater indignity than is necessary and reasonable for the exercise of this power.  Security assessment inspectors must take account of occupational health and safety requirements when exercising powers within the boundaries of a security regulated offshore facility.

 

21.     Section 145F provides that a security assessment inspector can exercise his or her powers within the boundaries of a security regulated port at any time without notice, or otherwise after giving the maritime industry participant concerned reasonable notice.

 

22.     A person will commit an offence, as per section 145G, if the person engages in conduct which hinders or obstructs a security assessment inspector in the exercise of a power in accordance with this Division.  This is a strict liability offence; however a person will not have committed an offence if they have a reasonable excuse.

 

23.     This offence has been framed as a strict liability offence to maximise consistency with penalties for existing offences of a similar kind in the MTOFSA.  For example, the offence of hindering or obstructing a maritime security inspector, provided for at section 143 of the MTOFSA, is also a strict liability offence punishable by a penalty of 50 penalty units.  Similarly, the offence of hindering or obstructing a duly authorised officer (section 149) is also a strict liability offence punishable by a penalty of 50 penalty units.

 

24.     The specific use of strict liability in this new offence, as with similar existing offences described above, is also necessary to ensure the continued integrity of the maritime security regulatory regime.  In particular it underscores the importance of officials empowered under the MTOFSA being able to carry out their duties and responsibilities in such a way that significantly deters would be offenders from hindering and obstructing these officials, which would compromise the integrity of the regime.

 

 

Part 2 - Secretary’s delegation of powers

 

Item 7 - Section 10

Item 8 - Section 10

 

25.     Items 7 and 8 create definitions for ‘Agency Head’ and ‘national security’ respectively; these amendments are consequential to the amendment at item 24.

 

Item 24 - Subsection 202(1)

 

26.     Currently subsection 202(1) permits the Secretary to delegate his/her powers and functions under the MTOFSA to an SES employee, or acting SES employee, within the Department.  Item 24 would extend this power to permit the Secretary to delegate his/her powers and functions under the MTOFSA to Agency Heads with national security responsibilities and an SES employee in the AGD.  Creation of the ability to delegate powers to an SES employee in the AGD will allow for the delegation of powers under the MTOFSA to the Commonwealth Incident Coordinator.

 

27.     The amendment's intention is to put in place a mechanism to ensure the future flexibility of providing certain powers to other relevant agencies.  This is necessary as there are certain powers within the MTOFSA that, at times, may be appropriate to delegate to other authorities outside the Department.  It is considered a vulnerability of the maritime security framework that the Secretary does not currently have the ability to do so, especially for powers and functions that have a time critical element to them.

 

28.     For example, section 99 of the MTOFSA allows the Secretary to issue a control direction, which allows him/her to direct a ship operator for a regulated foreign ship or the master of a ship to take particular action, for instance to remove the ship from Australian waters.

 

29.     It is envisaged that this power could be delegated, after further extensive consultation, to Agency Heads within Agencies that have national security responsibilities or to an AGD SES officer such as the Commonwealth Incident Coordinator.  This would provide assistance in both pre-planned events or in prolonged emergency situations when relevant resources are limited or the Secretary is unavailable and would ensure that there are appropriate responses by the Government in a timely manner.

 

30.     With regard to delegations of power to Agency Heads who have a national security function (for example those on the Secretaries Committee on National Security), relevant agencies have not been identified separately due to the dynamic nature of the security environment.

 

31.     This approach ensures flexibility within the legislative framework to enable an appropriate response to often urgent situations.  As a condition of the delegation, subsection 202(1A) would require the Agency Head of the Agency to agree to the delegation for it to come into effect.

 

32.     Current subsection 202(3) applies to this item which states that in exercising the powers or functions under a delegation, the delegate must comply with any directions of the Secretary.

 

Item 25 - At the end of section 202

 

33.     This item is consequential to the amendment at item 24.

 

Item 26 - After section 202

 

34.     Item 26 would insert a new section 202A titled ‘Sub-delegation’.  This item would allow the Agency Head of an Agency that the Secretary had delegated powers to under 202(1)(c) to sub-delegate the powers he/she had been delegated to an SES Band 3 level employee or acting SES Band 3 level employee (i.e. a Deputy Secretary) within his or her Agency.  This sub-delegation power has been deliberately kept at a high level to ensure that these powers would be appropriately exercised.

 

35.     New subsection 202A(2) would provide that sections 34AA, 34AB and 34A of the Acts Interpretation Act 1901, which deal with delegations, the effect of delegations and the exercise of certain powers and functions by a delegate respectively, applies to the sub-delegation in the same way that it would apply if it were a delegation.

 

36.     Sub-section 202A(3) would ensure that a delegate who exercises a sub-delegation must comply with directions from the Agency Head of his/her Agency.

 

Item 27 - Saving-delegations

 

37.     Item 27 provides that any delegations in force pursuant to subsection 202(1) immediately before the commencement of this item continues to have effect following commencement as if it were a delegation under paragraph 202(1)(a).  This means that any delegations made by the Secretary to any SES employee in the Department remain valid and in force despite the amendment at item 24.

 

 

Part 3 - Passenger ship amendments

 

Item 10 - Section 15

 

38.     This item is consequential to the amendment at item 11.

 

Item 11 - At the end of section 15

 

39.     This amendment provides that the regulations may prescribe different categories of security regulated ships.  Currently the same regulatory approach is applied to passenger ship security regardless of the operational characteristics of the specific ship or class of ship.  This approach is inflexible and does not allow individual factors, constraints and considerations to be taken into account when prescribing the appropriate and customised range of preventive security measures in relation to the level of threat for their operating environments.  The amendment would instead allow different classes of security regulated ships to be prescribed in the regulations which would allow passenger ships to be defined by, for example, any combination of size, passenger capacity, geographical operation locations, items carried or operational activity type.

 

 

Part 4 - Ship Security Plan and International Ship Security Certificate (ISSC) exemptions

 

Item 12 - After Section 61

Item 13 - After Section 79

Item 14 - At the end of section 91

Item 23 - After paragraph 201(d)

 

40.      The primary purpose of the amendments at items 12 and 13 are to address the situation whereby an Australian ship that would not otherwise be regulated under the MTOFSA would be required to develop a Ship Security Plan and obtain an International Ship Security Certificate (ISSC).  An example of a situation whereby such a ship would become regulated is when they undertake an overseas or interstate voyage on an exceptional basis for maintenance purposes, typically once every five years.  The requirement to have a Ship Security Plan and ISSC in place for this one-off voyage imposes a significant and unreasonable additional cost for the ship operator.

 

41.     There may be other instances where the ability to exempt ships from security plan and ISSC requirements may be utilised, however this would only be in exceptional circumstances and where there is no diminution of the security outcome.  Given the dynamic nature of the security environment it is not possible to list all the possible scenarios in which this might occur.

 

42.     The new provisions at items 12 and 13 allow the operator of an Australian ship to apply to the Secretary for an exemption from the requirement to hold a Ship Security Plan or an ISSC respectively.  These amendments also enable regulations to be made to prescribe the requirements for each application process, such as the form and content of the application and how that application may be made.  Regulations may also be made to specify the matters that the Secretary must consider when deciding whether to grant an exemption in either case; the Secretary is also allowed to consider any other matters that may be relevant to their decision to grant an exemption.

 

43.     If a ship operator makes an application to the Secretary for an exemption from holding a Ship Security Plan or an ISSC, the Secretary must either grant an exemption from the provisions in Divisions 2 and 6 of Part 4 respectively for the circumstances specified in the exemption approval, or refuse to grant the exemption applied for.

 

44.     If the Secretary grants the applicant an exemption, they must give the applicant a copy of the exemption and it takes effect as stated in the written advice.

 

45.     If the Secretary refuses to grant the applicant an exemption, they must give the applicant written notice of the decision, specifying the reasons why the exemption was not granted.

 

46.     Advice of an exemption from the provisions in Divisions 2 and 6 of Part 4 is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 .

 

47.     The amendment at item 14 allows for regulations to be made that prescribe the kinds of foreign flagged ships that the provisions in section 91 do not apply to.  It allows foreign flagged ships that have been granted an exemption from holding an ISSC or an ISSC equivalent by their flag State to also be exempt from the requirement to hold an ISSC while in Australia.  Such exemptions are usually only granted for ‘one-off’ voyages for maintenance purposes and they relieve the ship operator of unreasonable compliance costs.  These foreign flagged vessels remain regulated foreign vessels under the MTOFSA and are subject to all other relevant provisions.

 

48.     This amendment has been introduced to make the MTOFSA consistent with the exemption power provided for in the Safety of Life at Sea (SOLAS) Convention, to which Australia is a signatory.

 

49.     Item 23 inserts a paragraph into section 201 to make the decision to refuse to grant an Australian ship operator an exemption from holding a Ship Security Plan or an ISSC a reviewable decision by application to the Administrative Appeals Tribunal.

 

 

Part 5 - Non-limitation of screening and clearing matters

 

Item 15 - Subsection 119(2)

 

50.     Item 15 is a minor amendment which allows for regulations to be made for screening and clearing matters without being limited to those items listed at subsection 119(2).  The purpose is to not limit the effect of subsection 119(1). This means that regulations will be able to be made which address all required aspects of maritime security screening practices, not only the matters specified in subsection (2).

 

Part 6 - Modernisation image recording powers

 

Item 17 - Paragraph 139(2)(b)

Item 18 - Paragraph 140A(2)(b)

 

51.     Persons appointed under the MTOFSA as maritime security inspectors currently have the power to photograph equipment on board a security regulated ship and on a security regulated offshore facility.  To modernise the options for recording media and to align with the newly created powers of security assessment inspectors at item 20, items 17 and 18 repeal references to photographing equipment on a security regulated ship or security regulated offshore facility respectively, and substitutes them with the ability to make any still or moving image or any recording (for example a digital image or video) of equipment on the ship or offshore facility.

 

Item 19 - After paragraph 141(2)(b)

 

52.     Item 19 inserts a power to allow maritime security inspectors make any still or moving image or any recording of equipment in a place, vehicle or vessel under control of a regulated maritime industry participant.  Currently no such power (not even the ability to photograph) exists in these circumstances.  This is an oversight from when the powers of maritime security inspectors were first created.  The amendment addresses this and ensures powers of maritime security inspectors with regard to image recording are consistent.

 

 

Part 7 - Frisk searches

 

Item 21 - Section 164

 

53.     Item 21 is consequential to the amendment at item 22 and provides a simplified overview of the screening powers inserted at item 22.  It provides that a person may choose, or may be requested by a screening officer, to undergo a frisk search.

 

Item 22 - After section 166

 

54.     Currently the MTOFSA does not permit a screening officer to conduct a frisk search of a person boarding a security regulated passenger ship.  Where a screening officer cannot clear a person through the screening methods permitted in the MTOFSA and MTOFSR, the operation of the MTOFSA does not allow the person to pass through the screening point but also does not offer any other means of clearing that person.  Item 22 would allow the use of frisk searches for screening and clearing passengers and crew in certain circumstances.

 

55.     Item 22 inserts sections 166A, 166B and 166C after section 166, relating to the conducting of frisk searches by screening officers.  Section 166A “Screening powers-frisk search as an alternative screening procedure” provides that a screening officer may frisk search a person if a person chooses to undergo a frisk search as an alternative to another screening procedures.  This election may be made where travellers have pacemakers or other medical conditions and may not be able to be screened through a walk through metal detector, for example. The traveller can only be frisk searched to the extent necessary to screen the person properly.

 

 

56.     Section 166B “Screening powers-frisk search as an additional screening procedure” provides that if a person undergoes a screening procedure (for example via a walk through metal detector or hand held metal detector) and the results of that procedure indicate that additional screening procedures are necessary in order to clear the person, then a screening officer may request the person to undergo a frisk search to remove suspicion that they may be concealing a weapon or prohibited item.

 

57.     A frisk search may be conducted only to the extent necessary to properly screen and clear a person. It is an offence for a screening officer to require a person to undergo a frisk search, or conduct a frisk search without the person’s consent, or to conduct the frisk search to an extent greater than necessary.  A penalty of 50 penalty units applies.  This is a strict liability offence; however a screening officer will not have committed an offence if they have a reasonable excuse.  The use of strict liability in this situation is likely to significantly minimise any contraventions by screening officers when conducting frisk searches, given the strong deterrent message it sends.  It aims to safeguard the travelling public from potential abuses of power by screening officers.

 

58.     If a person refuses to undergo a frisk search when requested, and also refuses to be screened in a private room by a screening officer of the same sex as the person, or to undergo a frisk search during screening and the refusals mean it is not possible to screen and clear the person properly then the screening officer must refuse to allow the person to pass through the screening point.

 

59.     Section 166C inserts a section with general powers for frisk searches.  This is intended to allow an additional capacity for screening officers to ask persons passing through a screening point to agree to undergo a frisk search, beyond what is empowered in section 166B. This power would be exercised in additional threat circumstances.

 

60.     If a screening officer considers it necessary in order to screen a person properly, the screening officer may request the person to undergo a frisk search.  If a screening officer conducts a frisk search they may only do it to the extent necessary to complete the proper screening of the person.  It is an offence for a screening officer to require a person to undergo a frisk search, or conduct a frisk search without the person’s consent, or to conduct the frisk search to an extent greater than necessary. A penalty of 50 penalty units applies.  This is a strict liability offence; however a screening officer will not have committed an offence if they have a reasonable excuse.  The use of strict liability in this situation is likely to significantly minimise any contraventions by screening officers when conducting frisk searches given the strong deterrent message it sends.  It aims to safeguard the travelling public from potential abuses of power by screening officers.

 

61.     If a person refuses to undergo a frisk search when requested, and also refuses to be screened in a private room by a screening officer of the same sex as the person, and the refusals mean it is not possible to screen the person properly then the screening officer must refuse to allow the person to pass through the screening point.