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Transport Security Amendment (Serious Crime) Bill 2020

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2019

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

HOUSE OF REPRESENTATIVES

TRANSPORT SECURITY AMENDMENT (SERIOUS CRIME) BILL 2019

EXPLANATORY MEMORANDUM

(Circulated by authority of the Minister for Home Affairs,

the Hon. Peter Dutton MP)



Transport Security Amendment (Serious Crime) Bill 2019

OUTLINE

The Transport Security Amendment (Serious Crime) Bill 2019 (the Bill) introduces an additional purpose to the Aviation Transport Security Act 2004 (the Aviation Act) and the Maritime Transport and Offshore Facilities Security Act 2003 (the Maritime Act) to prevent the use of aviation and maritime transport or offshore facilities in connection with serious crime. This additional purpose aims to reduce criminal influence at Australia’s security controlled airports, security regulated ports, and security regulated offshore oil and gas facilities.

Specifically, the Bill will:

·          create an additional purpose for the Aviation and Maritime Acts, to prevent the use of aviation and maritime transport or offshore oil and gas facilities in connection with serious crime

·          provide for the making of regulations for this additional purpose, which will support strengthening of the eligibility criteria under the aviation and maritime security identification card (ASIC and MSIC) schemes to target serious criminal offences

·          allow for regulations made for the additional purpose to prescribe penalties for offences against the regulations of up to 200 penalty units, consistent with penalty provisions across the ASIC and MSIC schemes

·          clarify and align the legislative basis for undertaking background checks of individuals under the Aviation and Maritime Acts, and

·          make technical amendments to improve the operation of the Aviation and Maritime Acts.

ASIC and MSIC schemes

The Aviation Transport Security Regulations 2004 (the Aviation Regulations) and the Maritime Transport and Offshore Facilities Security Regulations 2003 (the Maritime Regulations) establish the ASIC and MSIC schemes. The additional purpose inserted into the Aviation and Maritime Acts by the Bill will be limited to specific regulation-making powers in the Aviation and Maritime Acts that enable the ASIC and MSIC schemes, and would not apply generally to all provisions in those Acts.

Serious crime reform

The intention of making amendments to the Aviation and Maritime Acts is to provide for the prescription of new eligibility criteria in the ASIC and MSIC schemes to better target serious crime. 

The new eligibility criteria, to be specified in the Aviation and Maritime Regulations, will introduce new offence categories such as offences relating to: anti-gang or criminal organisation legislation; illegal importation of goods; interfering with goods under customs control; and foreign incursion and recruitment. It is intended that Commonwealth, State and Territory offences will be captured.

The amendments to the ASIC and MSIC schemes will apply to all persons required by law to hold an ASIC or MSIC.

The Bill also provides for regulations to prescribe penalties for offences against requirements made for the purpose of preventing the use of aviation and maritime transport or offshore facilities in connection with serious crime. These maximum penalties, which are graded for different classes of offenders, are consistent with existing maximum penalties for equivalent offences in the Aviation and Maritime Acts.

The Bill amends the Maritime Act to clarify the legislative basis for undertaking background checks of persons who have, or require, access to secure maritime zones. This amendment is intended to reduce reliance on the general regulation-making powers within the Maritime Act and align with current practice in the issuing of MSICs with the requirements in the Aviation Act.

Supporting these amendments is the inclusion of a severability provision to provide for the continuation of the Aviation and Maritime Acts in the instance of a successful constitutional challenge to a provision of those Acts.

FINANCIAL impact statement

The financial impact of the Bill is low. Any costs associated with the Bill will be met from within existing resources.

statement OF COMPATIBILITY with Human rights

A Statement of Compatibility with Human Rights has been completed in relation to the Bill and assesses that the Bill is compatible with Australia’s human rights obligations. A copy of the Statement of Compatibility with Human Rights is included in the Attachment .



 

Transport Security Amendment (Serious Crime) Bill 2019

NOTES ON PROVISIONS

Part 1—Preliminary

Section 1         Short title

1.                   Section 1 of the Bill provides for the short title of the Act to be the Transport Security Amendment (Serious Crime) Act 2019 .

Section 2         Commencement

2.                   Section 2 of the Bill sets out the times at which the Act commences.

3.                   Subsection 2(1) provides that each provision of the Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

4.                   The effect of subsection 2(1), and the associated table, is that all provisions of the Bill commence on the day after the Act receives Royal Assent. The note in subsection 2(1) makes it clear that the table relates only to the provisions of the Act as originally enacted. The table will not be amended to deal with any later amendments to the Act.

5.                   Subsection 2(2) provides that any information in column 3 of the table is not part of the Act. Information may be inserted in this column, or information in it may be edited, in any published version of the Act. There is currently no information in column 3 of the table.

Section 3         Schedules

6.                   Section 3 of the Bill provides that legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned. In addition, this clause provides that any other item in a Schedule to this Act has effect according to its terms.

7.                   There is one Schedule to the Bill, which makes amendments to the Aviation Transport Security Act 2004 (the Aviation Act) (items 1 to 6) and the Maritime Transport and Offshore Facilities Security Act 2003 (the Maritime Act) (items 7 to 18).

Schedule 1—Amendments

Aviation Transport Security Act 2004

Item 1             Subsection 3(1) (note)

8.                   Item 1 repeals the note to subsection 3(1) of the Aviation Act, and substitutes a new note. The new note refers to the additional purpose of preventing the use of aviation in connection with serious crime being inserted by the Bill for new Division 4A of Part 3 (see item 4) and section 44C (see item 5).  

Item 2             Section 4 (at the end of the paragraph relating to Part 3)

9.                   Item 2 amends section 4 of the Aviation Act, which contains a simplified outline of that Act. The simplified overview relating to Part 3 of the Aviation Act is amended to make reference to the additional purpose of new Division 4A of Part 3, to prevent the use of aviation in connection with serious crime (see item 4). This purpose is in addition to the purpose of safeguarding against unlawful interference with aviation, which is the purpose of Divisions 1-4 and 5 of Part 3 of the Aviation Act (see subsection 3(1) of that Act).

Item 3             Section 27 (after the paragraph relating to Division 4)

10.               Item 3 amends section 27 of the Aviation Act, which contains a simplified overview of Part 3 of the Act. This section is amended to insert a paragraph referring to new Division 4A of Part 3, after the paragraph referring to Division 4.

Item 4             After Division 4 of Part 3

11.               Item 4 inserts new Division 4A into Part 3 of the Aviation Act, containing new sections 38AA and 38AB. The purpose of new Division 4A is to provide the authority to make amendments to the Aviation Regulations for the purpose of preventing the use of aviation in connection with serious crime.

12.               The additional purpose applies solely to the aviation security identification card (ASIC) scheme as established by Part 6 of the Aviation Transport Security Regulations 2005 (the Aviation Regulations). New Division 4A is intended to facilitate the introduction of eligibility criteria in the ASIC scheme, meaning that a person will not be eligible for an ASIC where they have been convicted of certain serious crimes. These eligibility criteria will be harmonised across both the ASIC and maritime security identification card (MSIC) schemes (established under Part 6 of the Maritime Transport and Offshore Facilities Security Regulations 2005 (the Maritime Regulations)).

Section 38AA—Purpose of this Division

13.               New section 38AA provides that the purpose of Division 4A of Part 3 of the Aviation Act is to prevent the use of aviation in connection with serious crime. This is different to the general purposes of the Aviation Act, to prevent unlawful interference with aviation and to meet Australia’s obligations under the Convention on International Civil Aviation, as outlined in section 3.

14.               This section will enable regulations to be prescribed for the additional purpose of preventing the use of aviation in connection with serious crime under new section 38AB.

Section 38AB—Requirements relating to access to areas and zones

15.               New section 38AB provides for the making of regulations to prevent the use of aviation in connection with serious crime.

16.               Subsection 38AB(1) provides a general regulation-making power for this purpose.

17.               Subsection 38AB(2) provides that, without limiting the generality of new subsection 38AB(1), regulations under subsection (1) may deal with:

·          access to areas and zones (including conditions of entry, the issue and use of security passes and other identification systems) (paragraph (a)), and

·          the security checking (including background checking) of persons who have access to areas and zones (paragraph (b)). In this paragraph, ‘background checking’ includes a reference to a background check conducted under the AusCheck Act 2007 (AusCheck Act) and AusCheck Regulations 2017 (AusCheck Regulations).

18.               Subsection 38AB(3) provides that regulations made under section 38AB may prescribe penalties for offences against those regulations. The maximum penalties that may be prescribed depend upon the person committing the relevant offence, as follows:

·          for an offence committed by an airport operator or an aircraft operator—200 penalty units (paragraph (a))

·          for an offence committed by an aviation industry participant other than a participant covered by paragraphs (a) or (c)—100 penalty units (paragraph (b)). This means that a 100 penalty unit applies for offences committed by a known consignor, a regulated air cargo agent, a person who occupies or controls an area of an airport, a person appointed by the Secretary under the Aviation Act to provide a security function, Airservices Australia or a contractor of any of these persons, or

·          for an offence committed by an accredited air cargo agent or any other person—50 penalty units (paragraph (c)). 

19.               By prescribing maximum penalties, new subsection 38AB(3) provides for discretion to be applied in making regulations imposing penalties. It also takes into consideration the need to provide an appropriate level of deterrence for the relevant classes of offenders. The penalty limits under subsection 38AB(3) are consistent with existing penalties that may be prescribed in relation to offences concerning access to secure aviation areas and zones that already exist in other provisions of Part 3 of the Aviation Act.

20.               Whilst the maximum penalties of 200 and 100 penalty units are above the maximum recommended to be imposed by regulations under the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (the Guide), it is considered appropriate to have these higher maximums. Such a strong deterrent is appropriate to enact in delegated legislation:

·          because of the security-sensitive nature of the aviation environment, which may be targeted by criminal enterprises to facilitate the movement of illicit goods, and

·          to align with other regulation-making provisions of the Aviation Act.

21.               It is also noted that the higher maximum penalties would apply to a limited number of persons, being selected aviation industry participants, and not to the general public. This means that the enhanced deterrence is tailored specifically to an appropriate cohort of persons, and not the public at large.

Item 5 Subsection 44C(1)

22.               Item 5 amends subsection 44C(1) of the Aviation Act to provide that, in addition to the general purposes of the Act outlined in section 3, regulations may also be made under that subsection to prevent the use of aviation in connection with serious crime.

23.               The intention of making amendments to subsection 44C(1) of the Aviation Act is to ensure that ASIC holders who do not have access to secure areas or zones of a security controlled airport can also be captured under the new eligibility criteria for the ASIC scheme.

Item 6             At the end of section 132

24.               Section 132 of the Aviation Act contains a severability clause, which would provide for the continued operation of the Aviation Act (or provisions of that Act) in the event of a successful constitutional challenge. It sets out that the constitutional heads of power upon which the Act can operate is expressly confined to acts or omissions under those constitutional powers.

25.               Item 6 inserts a new subsection (8) into section 132, to indicate that the Aviation Act has effect as if its operation were expressly confined to matters incidental to the execution of any of the legislative powers of the Parliament in section 51 of the Constitution or the executive power of the Commonwealth in section 61 of the Constitution.

Maritime Transport and Offshore Facilities Security Act 2003

Item 7             At the end of subsection 3(1)

26.               Item 7 repeals the note to subsection 3(1) of the Maritime Act, and substitutes a new note. The new note refers to the additional purpose of preventing the use of aviation in connection with serious crime being inserted by the Bill for new Division 6 of Part 6 (see item 17).

Item 8             Section 101 (after the paragraph relating to Division 5)

27.               Item 8 amends section 101 of the Maritime Act, which contains a simplified overview of Part 6 of that Act. This section is amended to insert a paragraph referring to new Division 6.

Item 9             Subsection 105(2)

28.               Item 9 repeals the chapeau of subsection 105(2) and replaces it with the words ‘without limiting the matters that may be dealt with by regulations made under subsection (1), the regulations may deal with the following’. This is a technical amendment to:

·          confirm that the regulation-making power in subsection 105(1) is not limited to the specific matters outlined in subsection 105(2),

·          ensure that the power in subsection 105(1) allows the MSIC scheme to be adaptable to future threat environments in the maritime sector, and

·          align the drafting of Part 6 of the Maritime Act with Part 3 of the Aviation Act.

Item 10           After paragraph 105(2)(b)

29.               Item 10 inserts new paragraph 105(2)(ba) into the Maritime Act, providing that regulations made under subsection 105(1) of that Act may be made dealing with the security checking (including background checking) of persons who have access to port security zones.

30.               This amendment is intended to clarify that regulations made under subsection 105(1) of the Maritime Act may include regulations relating to the conduct of background checks, within the meaning of the AusCheck Act and AusCheck Regulations, of persons who are required to hold MSICs under the MSIC scheme.

Item 11           Subsection 109(2)

31.               Item 11 repeals the chapeau of subsection 109(2) and replaces it with the words ‘without limiting the matters that may be dealt with by regulations made under subsection (1), the regulations may deal with the following’. This is a technical amendment to:

·          confirm that the regulation-making power in subsection 109(1) is not limited to the specific matters outlined in subsection 109(2),

·          ensure that the power in subsection 109(1) allows the MSIC scheme to be adaptable to future threat environments in the maritime sector, and

·          align the drafting of Part 6 of the Maritime Act with Part 3 of the Aviation Act.

Item 12           After paragraph 109(2)(b)

32.               Item 12 inserts new paragraph 109(2)(ba) into the Maritime Act, providing that regulations made under subsection 109(1) of that Act may be made dealing with the security checking (including background checking) of persons who have access to ship security zones.

33.               This amendment is intended to clarify that regulations made under subsection 109(1) of the Maritime Act may include regulations relating to the conduct of background checks, within the meaning of the AusCheck Act and AusCheck Regulations, of persons who are required to hold MSICs under the MSIC scheme.

Item 13           Subsection 113(2)

34.               Item 13 repeals the chapeau of subsection 113(2) and replaces it with the words ‘without limiting the matters that may be dealt with by regulations made under subsection (1), the regulations may deal with the following’. This is a technical amendment to:

·          confirm that the regulation-making power in subsection 113(1) is not limited to the specific matters outlined in subsection 113(2),

·          ensure that the power in subsection 113(1) allows the MSIC scheme to be adaptable to future threat environments in the maritime sector, and

·          align the drafting of Part 6 of the Maritime Act with Part 3 of the Aviation Act.

Item 14           After paragraph 113(2)(b)

35.               Item 14 inserts new paragraph 113(2)(ba) into the Maritime Act, providing that regulations made under subsection 113(1) of that Act may be made dealing with the security checking (including background checking) of persons who have access to on-board security zones.

36.               This amendment is intended to clarify that regulations made under subsection 113(1) of the Maritime Act may include regulations relating to the conduct of background checks, within the meaning of the AusCheck Act and AusCheck Regulations, of persons who are required to hold MSICs under the MSIC scheme.

Item 15           Subsection 113D(2)

37.               Item 15 repeals the chapeau of subsection 113D(2) and replaces it with the words ‘without limiting the matters that may be dealt with by regulations made under subsection (1), the regulations may deal with the following’. This is a technical amendment to:

·          confirm that the regulation-making power in subsection 113D(1) is not limited to the specific matters outlined in subsection 113D(2),

·          ensure that the power in subsection 113D(1) is adaptable to future threat environments in the maritime sector, and

·          align the drafting of Part 6 of the Maritime Act with Part 3 of the Aviation Act.

Item 16           After paragraph 113D(2)(b)

38.               Item 16 inserts new paragraph 113D(2)(ba) into the Maritime Act, providing that regulations made under subsection 113D(1) of that Act may be made dealing with the security checking (including background checking) of persons who have access to offshore security zones.

39.               This amendment is intended to clarify that regulations made under subsection 113D(1) of the Maritime Act may include regulations relating to the conduct of background checks, within the meaning of the AusCheck Act and AusCheck Regulations, of persons who are required to hold MSICs under the MSIC scheme.

Item 17           At the end of Part 6

40.               Item 17 inserts new Division 6 into Part 6 of the Aviation Act, containing new sections 113E and 113F. The purpose of new Division 6 is to provide the authority to make amendments to the Maritime Regulations for the purpose of preventing the use of maritime transport or offshore facilities in connection with serious crime.

41.               The additional purpose applies solely to the MSIC scheme as established by Part 6 of the Maritime Regulations. New Division 6 is intended to facilitate the introduction of eligibility criteria in the MSIC scheme, meaning that a person will not be eligible for an MSIC where they have been convicted of certain serious crimes. These eligibility criteria will be harmonised across both the MSIC and ASIC schemes.

Section 113E—Purpose of this Division

42.               New section 113E provides that the purpose of Division 6 of Part 6 of the Maritime Act is to prevent the use of maritime transport or offshore facilities in connection with serious crime. This is different to the general purpose of the Maritime Act, to prevent unlawful interference with maritime transport or offshore facilities, as outlined in subsection 3(1).

43.               This section will enable regulations to be prescribed for the additional purpose of preventing the use of maritime transport or offshore facilities in connection with serious crime under new section 113F.

Section 113F—Requirements relating to access to zones

44.               New section 113F provides for the making of regulations to prevent the use of maritime transport or offshore facilities in connection with serious crime.

45.               Subsection 113F(1) provides a general regulation-making power for this purpose.

46.               Subsection 113F(2) provides that, without limiting the generality of new subsection 113F(1), regulations under subsection (1) may deal with:

·          access to areas and zones (including conditions of entry, the issue and use of security passes and other identification systems) (paragraph (a)), and

·          the security checking (including background checking, within the meaning of the AusCheck Act and AusCheck Regulations).

47.               Subsection 113F(3) provides that regulations made under section 113F may prescribe penalties for offences against those regulations. The maximum penalties that may be prescribed depend upon the person committing the relevant offence, as follows:

·          for an offence committed by a port operator, ship operator, port facility operator or offshore facility operator—200 penalty units (paragraph (a))

·          for an offence committed by a maritime industry participant other than a participant covered by paragraph (a)—100 penalty units (paragraph (b)), or

·          for an offence committed by any other person—50 penalty units (paragraph (c)). 

48.               By prescribing maximum penalties, new subsection 113F(3) provides for discretion to be applied in making regulations imposing penalties. It also takes into consideration the need to provide an appropriate level of deterrence for the relevant classes of offenders. The penalty limits under subsection 113F(3) are consistent with existing penalties that may be prescribed in relation to offences concerning access to secure aviation areas and zones that already exist in other provisions of Part 6 of the Maritime Act.

49.               Whilst the maximum penalties of 200 and 100 penalty units are above the maximum recommended to be imposed by regulations under the Guide, it is considered appropriate to have these higher maximums. Such a strong deterrent is appropriate to enact in delegated legislation:

·          because of the security-sensitive nature of the aviation environment, which may be targeted by criminal enterprises to facilitate the movement of illicit goods, and

·          to align with other regulation-making provisions of the Aviation Act.

50.               It is also noted that the higher maximum penalties would apply to a limited of persons, being selected maritime industry participants, and not to the general public. This means that the enhanced deterrence is tailored specifically to an appropriate cohort of persons, and not the public at large.

Item 18           At the end of section 208

51.               Section 208 of the Maritime Act contains a severability clause, which would provide for the continued operation of the Maritime Act (or provisions of that Act) in the event of a successful constitutional challenge. It sets out that the constitutional heads of power upon which the Act can operate is expressly confined to acts or omissions under those constitutional powers.

52.               Item 18 inserts a new subsection (9) into section 208, to indicate that the Maritime Act has effect as if its operation were expressly confined to matters incidental to the execution of any of the legislative powers of the Parliament in section 51 of the Constitution or the executive power of the Commonwealth in section 61 of the Constitution.



ATTACHMENT

Statement of Compatibility with Human Rights

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

Transport Security Amendment (Serious Crime) Bill 2019

The Transport Security Amendment (Serious Crime) Bill 2019 (the Bill) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

1.                   The Transport Security Amendment (Serious Crime) Bill 2019 (the Bill) introduces an additional purpose to the Aviation Transport Security Act 2004 (the Aviation Act) and the Maritime Transport and Offshore Facilities Security Act 2003 (the Maritime Act) to prevent the use of aviation, or maritime transport, in connection with serious crime. This additional purpose aims to reduce criminal influence at Australia’s security controlled airports, security regulated ports, and security regulated offshore oil and gas facilities.

2.                   The Bill will:

·          create an additional purpose for the Aviation and Maritime Acts, to prevent the use of aviation and maritime transport or offshore oil and gas facilities in connection with serious crime

·          provide for the making of regulations for this additional purpose, which will support strengthening of the eligibility criteria under the aviation and maritime security identification card (ASIC and MSIC) schemes to target serious criminal offences

·          allow for regulations made for the additional purpose to prescribe penalties for offences against the regulations of up to 200 penalty units, consistent with penalty provisions across the ASIC and MSIC schemes

·          clarify and align the legislative basis for undertaking background checks of individuals under the Aviation and Maritime Acts, and

·          make technical amendments to improve the operation of the Aviation and Maritime Acts.

Human rights implications

3.                   The Bill makes technical amendments to include regulation making powers in the Aviation and Maritime Act in relation to a new specific purpose of preventing the use of aviation and maritime transport or offshore oil and gas facilities in connection with serious crime. As such, it does not engage with any of the applicable human rights and freedoms.

Conclusion

4.                   The Bill is compatible with human rights as it does not raise any human rights issues.

Minister for Home Affairs, the Hon. Peter Dutton MP