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Inspector of Transport Security Bill 2006

Part 3 Inquiries

   

11   Minister may initiate inquiry

             (1)  Subject to this Part, the Minister may direct the Inspector to inquire into a transport security matter or an offshore security matter.

Note:          Under subsection 33(3) of the Acts Interpretation Act 1901 , the Minister may vary or revoke such a direction.

             (2)  The direction must be in writing.

             (3)  The direction may specify the period within which the Inspector must give a final report.

             (4)  The direction is not a legislative instrument.

             (5)  The Inspector is not otherwise subject to direction from the Minister in relation to the inquiry, or any interim, draft or final report in relation to the inquiry.

             (6)  The Inspector is not subject to direction from the Secretary in relation to the inquiry, or any interim, draft or final report in relation to the inquiry.

12   What is a transport security matter ?

                   A transport security matter is:

                     (a)  an incident occurring in the course of transport, or involving a transport vehicle, that:

                              (i)  the Minister believes on reasonable grounds to be a major incident; and

                             (ii)  demonstrates, or may demonstrate, a problem with the security of transport; or

                     (b)  a state of affairs that suggests, or may suggest, a systemic failure or weakness in the way in which the security of transport is regulated; or

                     (c)  any other occurrence, circumstance, state of affairs or matter that:

                              (i)  the Minister believes on reasonable grounds to be significant; and

                             (ii)  has, or may have, implications for the security of transport.

13   What is an offshore security matter ?

                   An offshore security matter is:

                     (a)  an incident occurring on, around or in relation to a security regulated offshore facility, that:

                              (i)  the Minister believes on reasonable grounds to be a major incident; and

                             (ii)  demonstrates, or may demonstrate, a problem with the security of the facility, or security regulated offshore facilities generally; or

                     (b)  a state of affairs that suggests, or may suggest, a systemic failure or weakness in the way in which the security of offshore facilities is regulated; or

                     (c)  any other occurrence, circumstance, state of affairs or matter that:

                              (i)  the Minister believes on reasonable grounds to be significant; and

                             (ii)  has, or may have, implications for the security of the security regulated offshore facility, or security regulated offshore facilities generally.

14   Constitutional limitations—air transport

                   The Minister must not direct the Inspector to inquire into a transport security matter in relation to an aircraft or air transport unless:

                     (a)  the matter relates to an aircraft engaged in, or air transport conducted in the course of, trade or commerce with other countries or among the States; or

                     (b)  the matter affects or involves air transport:

                              (i)  outside Australia; or

                             (ii)  within a Territory, or to or from a Territory; or

                            (iii)  within a Commonwealth place, or to or from a Commonwealth place; or

                     (c)  the matter affects or involves an aircraft owned or operated by a constitutional corporation or Commonwealth agency; or

                     (d)  a State referral of power is in operation in relation to the matter; or

                     (e)  inquiry into a matter of that kind gives effect to an international agreement; or

                      (f)  inquiry into a matter of that kind is a matter of international concern; or

                     (g)  the direction is made for the purpose of improving the security of air transport and the Parliament has the power to make laws in relation to the matter on any other basis.

15   Constitutional limitations—maritime transport

                   The Minister must not direct the Inspector to inquire into a transport security matter in relation to a ship or maritime transport unless:

                     (a)  the matter relates to a ship engaged in, or maritime transport conducted in the course of, trade or commerce with other countries or among the States; or

                     (b)  the matter affects or involves maritime transport:

                              (i)  outside Australia; or

                             (ii)  within a Territory, or to or from a Territory; or

                            (iii)  within a Commonwealth place, or to or from a Commonwealth place; or

                     (c)  the matter affects or involves a ship owned or operated by a constitutional corporation or Commonwealth agency; or

                     (d)  a State referral of power is in operation in relation to the matter; or

                     (e)  inquiry into a matter of that kind gives effect to an international agreement; or

                      (f)  inquiry into a matter of that kind is a matter of international concern; or

                     (g)  the direction is made for the purpose of improving the security of maritime transport and the Parliament has the power to make laws in relation to the matter on any other basis.

16   Constitutional limitations—rail transport

                   The Minister must not direct the Inspector to inquire into a transport security matter in relation to a rail vehicle or rail transport unless:

                     (a)  the matter relates to a rail vehicle engaged in, or rail transport conducted in the course of, trade or commerce among the States; or

                     (b)  the matter affects or involves rail transport:

                              (i)  outside Australia; or

                             (ii)  within the Australian Capital Territory or the Northern Territory, or to or from the Australian Capital Territory or the Northern Territory; or

                            (iii)  within a Commonwealth place, or to or from a Commonwealth place; or

                     (c)  the matter affects or involves a rail vehicle owned or operated by a constitutional corporation or Commonwealth agency; or

                     (d)  the matter affects or involves rail transport by means of railway tracks owned or operated by a constitutional corporation or Commonwealth agency; or

                     (e)  a State referral of power is in operation in relation to the matter; or

                      (f)  inquiry into a matter of that kind gives effect to an international agreement; or

                     (g)  inquiry into a matter of that kind is a matter of international concern; or

                     (h)  the direction is made for the purpose of improving the security of rail transport and the Parliament has the power to make laws in relation to the matter on any other basis.

17   Constitutional limitations—road transport

                   The Minister must not direct the Inspector to inquire into a transport security matter in relation to a road vehicle or road transport unless:

                     (a)  the matter relates to a road vehicle engaged in, or road transport conducted in the course of, trade or commerce among the States; or

                     (b)  the matter affects or involves road transport:

                              (i)  outside Australia; or

                             (ii)  within a Territory, or to or from a Territory; or

                            (iii)  within a Commonwealth place, or to or from a Commonwealth place; or

                     (c)  the matter affects or involves a road vehicle owned or operated by a constitutional corporation or Commonwealth agency; or

                     (d)  the matter affects or involves a road owned or operated by a constitutional corporation or Commonwealth agency; or

                     (e)  a State referral of power is in operation in relation to the matter; or

                      (f)  inquiry into a matter of that kind gives effect to an international agreement; or

                     (g)  inquiry into a matter of that kind is a matter of international concern; or

                     (h)  the direction is made for the purpose of improving the security of road transport and the Parliament has the power to make laws in relation to the matter on any other basis.

18   Constitutional limitations—security regulated offshore facilities

                   The Minister must not direct the Inspector to inquire into an offshore security matter in relation to a security regulated offshore facility or security regulated offshore facilities unless:

         (a)  the matter relates to a security regulated offshore facility that is, or security regulated offshore facilities that are, used in trade or commerce with other countries or among the States; or

                     (b)  the matter affects or involves a security regulated offshore facility that is, or security regulated offshore facilities that are:

                              (i)  outside Australia; or

                 (ii)  within a Territory; or

                            (iii)  owned or operated by a constitutional corporation or Commonwealth entity; or

                     (c)  the matter occurs in a Territory; or

                     (d)  the matter:

                              (i)  demonstrates, or is reasonably likely to demonstrate, a problem with the security of a security regulated offshore facility, or security regulated offshore facilities, that would have a substantial adverse effect in a Territory; or

                             (ii)  suggests, or is reasonably likely to suggest, a systemic failure or weakness in the way in which the security of a security regulated offshore facility, or security regulated offshore facilities are regulated, that would have a substantial adverse effect in a Territory; or

                            (iii)  has, or is reasonably likely to have, implications for the security of a security regulated offshore facility, or security regulated offshore facilities, that would have a substantial adverse effect in a Territory; or

                     (e)  a State referral of power is in operation in relation to the matter; or

                      (f)  inquiry into a matter of that kind gives effect to an international agreement; or

                     (g)  inquiry into a matter of that kind is a matter of international concern; or

                     (h)  the direction is made for the purpose of improving the security of security regulated offshore facilities and the Parliament has the power to make laws in relation to the matter on any other basis.

19   Meaning of outside Australia in sections 14 to 18

                   In sections 14 to 18:

outside Australia means outside the baseline from which the breadth of the territorial sea is measured under section 7 of the Seas and Submerged Lands Act 1973 .

Note:          A reference to Australia in any other provision of this Act includes a reference to the coastal sea of Australia: see section 15B of the Acts Interpretation Act 1901 .

20   Consultation with other Ministers before direction made

             (1)  The Minister must not direct the Inspector to inquire into a transport security matter or an offshore security matter unless the Minister has consulted all other Commonwealth Ministers whose areas of responsibility might be affected by the inquiry.

             (2)  The Minister may consult such other persons and organisations as the Minister considers appropriate, before directing the Inspector to inquire into a transport security matter or an offshore security matter.

21   Defence aspects of a matter

             (1)  The Minister must not direct the Inspector to inquire into a defence aspect of a transport security matter or of an offshore security matter if , within a reasonable time of having been consulted, the Defence Minister has objected to that aspect of the matter being inquired into.

             (2)  A defence aspect of a transport security matter or an offshore security matter is an aspect of the matter that involves:

                     (a)  the operation of the Australian Defence Force in connection with the defence of Australia; or

                     (b)  the operation of the Australian Defence Force in connection with international humanitarian aid or United Nations peace-keeping operations; or

                     (c)  the management of an emergency or a disaster, to the extent that that management involves the Australian Defence Force; or

                     (d)  the use of information in the possession of the Australian Defence Force; or

                     (e)  the use of property owned or leased by, or otherwise in the possession of, the Australian Defence Force; or

                      (f)  the conduct of a member of the Australian Defence Force in the course of performing his or her duties.

22   Surface transport aspects of a transport security matter

             (1)  The Minister must not direct the Inspector to inquire into a surface transport aspect of a transport security matter unless the Transport Minister of the State or Territory in which that aspect of the matter occurs has agreed to the scope of the inquiry into that aspect of the matter.

             (2)  A surface transport aspect of a transport security matter is an aspect of the matter that relates to the security of:

                     (a)  rail vehicles operating within a particular State or Territory, other than rail vehicles owned or operated by a Commonwealth agency; or

                     (b)  road vehicles operating within a particular State or Territory, other than road vehicles owned or operated by a Commonwealth agency; or

                     (c)  ships operating within the State or Territory waters of a particular State or Territory, other than security regulated ships or ships owned or operated by a Commonwealth agency.

23   Geographical reach of inquiry

Transport security matters

             (1)  The Minister must not direct the Inspector to inquire into a transport security matter unless:

                     (a)  the matter occurs in Australia; or

                     (b)  the matter involves an Australian aircraft or an Australian ship; or

                     (c)  action facilitating the occurrence of the matter has, or may have, taken place in Australia; or

                     (d)  action facilitating the occurrence of the matter has, or may have, been carried out by an Australian citizen, an Australian permanent resident, or a person who, at the time the direction is given, is in Australia; or

                     (e)  the Minister believes, on reasonable grounds, that the matter has, or may have, implications for the management of the security of transport in Australia; or

                      (f)  the matter relates to security arrangements in a place within a foreign country from which transport vehicles depart, and the Minister believes, on reasonable grounds, that those vehicles pose or may pose particular security risks when they enter Australia, Australian waters, or the airspace above Australia.

Offshore security matters

             (2)  The Minister may direct the Inspector to inquire into an offshore security matter, whether or not the security regulated offshore facility or facilities to which the matter relates are in Australia.

             (3)  However, the Minister must not direct the Inspector to inquire into an aspect of an offshore security matter that occurs in a foreign country unless:

                     (a)  the matter involves an Australian aircraft or an Australian ship; or

                     (b)  action facilitating the occurrence of the matter has, or may have, been carried out by an Australian citizen, an Australian permanent resident, or a person who, at the time the direction is given, is in Australia; or

                     (c)  the Minister believes, on reasonable grounds, that the matter has, or may have, implications for the management of the security of security regulated offshore facilities, or the security of transport, in Australia.

24   Preservation of certain privileges and immunities

                   This Act does not affect:

                     (a)  a privilege or immunity that is conferred by or under:

                              (i)  the Consular Privileges and Immunities Act 1972 ; or

                             (ii)  the Defence (Visiting Forces) Act 1963 ; or

                            (iii)  the Diplomatic Privileges and Immunities Act 1967 ; or

                            (iv)  the Foreign States Immunities Act 1985 ; or

                             (v)  the International Organisations (Privileges and Immunities) Act 1963 ; or

                            (vi)  the Overseas Missions (Privileges and Immunities) Act 1995 ; or

                     (b)  a privilege or immunity of a similar kind that is conferred by or under any other Act.