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Transport Security Amendment (Serious or Organised Crime) Bill 2016

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2013-2014-2015-2016

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

TRANSPORT SECURITY AMENDMENT (SERIOUS OR ORGANISED CRIME) BILL 2016

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Infrastructure and Regional Development,

the Hon Warren Truss MP)

 

 

 

 

 

 

 

 

 

 

 

TRANSPORT SECURITY AMENDMENT (SERIOUS OR ORGANISED CRIME) BILL 2016

 

OUTLINE

 

The purpose of the Transport Security Amendment (Serious or Organised Crime) Bill 2016 (the Bill) is to amend the Aviation Transport Security Act 2004 (the Aviation Act) and the Maritime Transport and Offshore Facilities Security Act 2003 (the Maritime Act) to reduce criminal influence at Australia’s airports and seaports by strengthening the aviation security identification card (ASIC) and maritime security identification card (MSIC) schemes.

 

ASIC and MSIC schemes

 

One of the primary purposes of the Aviation and Maritime Acts is to regulate access to secure aviation and maritime areas and zones to safeguard against unlawful interference with aviation and maritime transport or offshore facilities, respectively.  The Aviation and Maritime Acts, in conjunction with the Aviation Transport Security Regulations 2005 (the Aviation Regulations) and the Maritime Transport and Offshore Facilities Security Regulations 2003 (the Maritime Regulations) establish the regulatory framework for the ASIC and MSIC schemes.

 

Under the ASIC and MSIC schemes, identification cards are issued to persons, including foreign nationals, who legitimately require unescorted access to secure aviation and maritime areas, including offshore oil and gas facilities, and who have successfully undergone background checks.

 

The Aviation Act also requires certain officials exercising powers under the Act to hold and display a valid ASIC at all times, independent of their need for unescorted access, to secure aviation areas or zones.  There is no similar requirement in the Maritime Act.

 

The background checks for the ASIC and MSIC schemes are conducted by AusCheck, within the Attorney General’s Department, under the AusCheck Act 2007 (the AusCheck Act) and AusCheck Regulations 2007. The AusCheck Act defines a background check as an assessment of information relating to an individual’s identity, criminal history, security assessment, citizenship status, residency status or entitlements to work in Australia.

 

An ASIC or an MSIC cannot be issued to a person who has an adverse criminal record. The eligibility criteria for determining whether a person has an adverse criminal record are specified in the Aviation Regulations and the Maritime Regulations.  Currently, different eligibility criteria apply under the ASIC and MSIC schemes, which results in persons convicted of the same offence being treated differently in the aviation and maritime sectors.

 

Serious or Organised Crime Reform

 

This Bill will:

·            create an additional purpose in the Aviation and Maritime Acts, in relation to access to aviation and maritime areas and zones, to prevent the use of aviation and maritime transport or offshore facilities in connection with serious or organised crime;

·            establish a regulatory framework supporting the implementation of harmonised eligibility criteria for the ASIC and MSIC schemes, which better target serious or organised crime-related offences;

·            clarify and align the legislative basis for undertaking security checking of ASIC and MSIC applicants and holders;

·            allow for regulations to be made prescribing penalties for offences against the new serious or organised crime requirements that are consistent with existing penalty provisions across the ASIC and MSIC schemes; and



 

·            insert an additional severability provision to provide guidance to a court as to Parliament’s intention.

 

The amendments to the Aviation and Maritime Acts provide for the implementation of new eligibility criteria for ASICs and MSICs that better target serious or organised crime. The new eligibility criteria, to be specified in the Aviation and Maritime Regulations, will introduce new offence categories such as offences under anti-criminal organisation legislation, foreign incursion and recruitment offences, illegal importation of goods and interfering with goods under Border Force control .

 

The amendments to the ASIC and MSIC schemes in this Bill will apply to all persons required by law to hold an ASIC or MSIC; including officials, such as airport security guards, whose requirement for an ASIC is independent of their need to access secure aviation zones or areas, established under Part 3 of the Aviation Act.

 

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 or organised 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 Act and align with current practice in the issuing of MSICs and the requirements in the Aviation Act.

 

Financial impact statement

 

There will be no financial impact as a result of this Bill.

 

 

 



 

Statement of Compatibility with Human Rights

 

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

 

Transport Security Amendment (Serious or Organised Crime) Bill 2016

 

This 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

 

The purpose of the Transport Security Amendment (Serious or Organised Crime) Bill 2016 (the Bill) is to amend the Aviation Transport Security Act 2004 (Aviation Act) and the Maritime Transport and Offshore Facilities Security Act 2003 (Maritime Act) to reduce criminal influence at Australia’s airports and seaports by strengthening the aviation security identification card (ASIC) and maritime security identification card (MSIC) schemes.

 

This Bill will:

 

·            create an additional purpose in the Aviation and Maritime Acts, in relation to access to aviation and maritime areas and zones, to prevent the use of aviation and maritime transport or offshore facilities in connection with serious or organised crime;

·            establish a regulatory framework supporting the implementation of harmonised eligibility criteria for the ASIC and MSIC schemes, which better target serious or organised crime-related offences;

·            clarify and align the legislative basis for undertaking security checking of ASIC and MSIC applicants and holders;

·            allow for regulations to be made prescribing penalties for offences against the new serious or organised crime requirements that are consistent with existing penalty provisions across the ASIC and MSIC schemes; and

·            insert an additional severability provision to provide guidance to a court as to Parliament’s intention.

 

Human rights implications

 

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

 

Conclusion

 

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

 

 

 

 

 

 

 

Minister for Infrastructure and Regional Development, the Hon Warren Truss MP

 



NOTES ON CLAUSES

 

Clause 1: Short Title

 

1.              Clause 1 provides that this Act may be cited as the Transport Security Amendment (Serious or Organised Crime) Act 2016 . This Act provides for changes to the Aviation Transport Security Act 2004 and the Maritime Transport and Offshore Facilities Security Act 2003 .

 

Clause 2: Commencement

 

2.              Clause 2 provides that the whole of the Act commences on 1 July 2016. Clause 2 also allows information about the date of the Royal Assent and commencement to be added to the commencement table, but this information does not form a part of the Act.

 

Clause 3: Schedules

 

3.              Clause 3 outlines the effect of the Schedules to the Bill.  The Aviation Transport Security Act 2004 (the Aviation Act) and the Maritime Transport and Offshore Facilities Security Act 2003 (the Maritime Act) are amended as set out in Schedule 1 to the Bill.  Any other item in the Schedule has effect according to its terms.

 

Schedule 1 - Amendments

 

Aviation Transport Security Act 2004

 

Item 1 - Subsection 3(1)

 

4.              Item 1 amends subsection 3(1) of the Aviation Act. 

 

5.              Current subsection 3(1) sets out the main purpose of the Aviation Act, which is to establish a regulatory framework to safeguard against unlawful interference with aviation.

 

6.              Item 1 amends the note under subsection 3(1) to make reference to an additional purpose of the Aviation Act, which is not otherwise provided for under sections 3-5 of the Aviation Act. This additional purpose is set out in new section 38AA of Division 4A of Part 3 of the Aviation Act (see Item 4).  This additional purpose has been added as a note as it applies exclusively to Division 4A of Part 3, and is not intended to affect the application or interpretation of any other provisions in the Aviation Act.

 

Item 2 - Section 4

 

7.              Item 2 amends the paragraph relating to Part 3 in section 4 of the Aviation Act.

 

8.              Section 4 of the Aviation Act provides a simplified overview of the Act, outlining the general purpose of each Part of the Act.

 

9.              Item 2 amends the simplified overview of Part 3 of the Act to make reference to the additional purpose of new Division 4A of Part 3, of preventing the use of aviation in connection with serious or organised crime (see Item 4). This purpose will be in addition to the purpose of safeguarding against unlawful interference, which is the purpose of Divisions 1-4 and 5 of Part 3.

 

 

 

Items 3 - Section 27

 

10.          Item 3 amends section 27 of the Aviation Act to insert a simplified overview of new Division 4A of Part 3 - Serious or Organised Crime after the paragraph relating to Division 4.  

 

11.          Section 27 of the Aviation Act provides a simplified overview of Part 3 of the Act, which relates to airport areas and zones.

 

12.          The new paragraph specifies that regulations under Division 4A will prescribe requirements for the purposes of preventing the use of aviation in connection with serious or organised crime (see Item 4).

 

Item 4 - After Division 4 of Part 3

 

13.          Item 4 inserts new Division 4A- Serious or Organised Crime and new sections 38AA and 38AB in Part 3 of the Aviation Act.

 

14.          New section 38AA of the Aviation Act, entitled “38AA Purpose of this Division”, provides that the purpose of Division 4A of Part 3 is to prevent the use of aviation in connection with serious or organised crime. This purpose is exclusive to Division 4A of Part 3 and is not intended to affect the application or interpretation of any provisions outside of Division 4A of Part 3.

 

15.          New section 38AB sets out requirements for the purpose of preventing the use of aviation in connection with serious or organised crime in relation to areas or zones established under Part 3 of the Act.

 

16.          New subsection 38AB(1) provides for regulations to be made prescribing the requirements for access to areas and zones, established under Part 3 of the Aviation Act, in order to prevent the use of aviation in connection with serious or organised crime. Subsection 38AB provides for regulations to be made in relation to any or all aviation areas and zones established under Part 3 of the Aviation Act. These areas and zones are airside areas (specified in section 35), airside security zones (section 36), airside event zones (section 36A), landside areas (section 37), landside security zones (section 38) and landside event zones (section 38A).

 

17.          Without limiting the matters that may be dealt with by regulations, new subsection 38AB(2) sets out two new regulation-making powers. 

 

18.          New paragraph 38AB(2)(a) provides for regulations to deal with access to areas and zones established under Part 3, including conditions of entry, the issue and use of security passes and other identification systems.  

 

19.          New paragraph 38AB(2)(b) provides for regulations to be made in relation to security checking including background checking of persons who have access to areas and zones established under Part 3.

 

20.          The powers set out in new subsection 38AB(2) are consistent with the regulation-making powers provided for in equivalent provisions in relation to requirements for airside and landside areas and zones in Divisions 3 and 4 of Part 3 (for example, paragraphs 35(2)(a) and (g)). However, while the equivalent provisions in Divisions 3 and 4 of Part 3 provide for regulations to prescribe requirements intended to prevent against unlawful interference with aviation, subsection 38AB(2) provides that regulations may prescribe requirements specific to the purpose of Division 4A, which is to prevent the use of aviation in connection with serious or organised crime.

21.          New subsection 38AB(3) provides for regulations to prescribe penalties for offences against regulations made under new subsection 38AB(1), and sets out the maximum penalties that regulations may prescribe for different classes of offenders.

 

22.          New paragraph 38AB(3)(a) provides that the maximum penalty for airport and aircraft operators is 200 penalty units.

 

23.          For aviation industry participants, other than aircraft operators, airport operators or accredited air cargo agents, new paragraph 38AB(3)(b) provides that the maximum penalty for an offence is 100 penalty units.

 

24.          New paragraph 38AB(3)(c) provides that the maximum penalty for accredited air cargo agents or any other person, to be prescribed in regulations, is 50 penalty units.  This provision ensures that the maximum penalty that can be made in regulations for offences involving an individual is set at 50 penalty units.

 

25.          These offence provisions, setting out the maximum penalties that may be prescribed under the Aviation Regulations, follow a clear legislative precedent already established in the Aviation Act. The maximum penalties are consistent with existing penalties for these classes of offenders for corresponding offences in relation to access to secure aviation areas and zones in Part 3 of the Aviation Act (for example, subsection 35(3)). The penalties also take into account the appropriate level of deterrence for the different classes of offenders.

 

26.          Regulations prescribing penalties for offences, made under new subsection 38AB(3), will be consistent with existing penalties for equivalent offences already established in the Aviation Transport Security Regulations 2005 (the Aviation Regulations).

 

27.          All of the relevant terms in new subsection 38AB(3), “airport operator”, aircraft operator”, “aviation industry participant” and “accredited air cargo agent” are defined in section 9 of the Aviation Act.

 

Item 5 - At the end of Section 132

 

28.          Item 5 inserts new subsection 132(8) in Part 10 of the Aviation Act.

 

29.          Current section 132 provides for continued operation of the Act (or provisions of the Act) in the event of a successful constitutional challenge. Section 132 sets out the various constitutional heads of power upon which the Act can draw if its operation is expressly confined to acts or omissions under those constitutional powers.

 

30.          New subsection 132(8) inserts an additional severability or read-down provision, which provides guidance to a court as to Parliament’s intention in the event that it is necessary to read down provisions in the Act.

 

31.          New subsection 132(8) enables the Aviation Act to have the effect that it would have if its operation were expressly confined to matters incidental to the execution of any of the legislative powers of the Parliament or the executive powers of the Commonwealth, derived from section 51(xxxix) of the Constitution.

 

 

 

 

 

Maritime Transport and Offshore Facilities Security Act 2003

 

Item 6 - Subsection 3(1)

 

32.          Item 6 amends subsection 3(1) of the Maritime Act.

 

33.          Current subsection 3(1) sets out the purpose of the Maritime Act, which is to safeguard against unlawful interference with maritime transport or offshore facilities.

 

34.          This item inserts a note under subsection 3(1) that makes reference to an additional purpose of the Act. The new additional purpose is set out in new section 113F of Division 6 of Part 6 of the Maritime Act (see Item 12).  This additional purpose has been added as a note as it applies exclusively to Division 6 of Part 6, and is not intended to affect the application or interpretation of any other provisions in the Maritime Act.

 

Item 7 - Section 101

 

35.          Item 7 amends section 101 by inserting a paragraph providing a simplified overview of new Division 6 of Part 6 (see Item 12).

 

36.          Current section 101 of the Maritime Act provides a simplified overview of Part 6 of the Act, which relates to maritime security zones, and outlines the general purpose of each Division.

 

37.          This new paragraph specifies that Division 6 of Part 6 allows regulations to prescribe requirements for the purposes of preventing the use of maritime transport or offshore facilities in connection with serious or organised crime (see item 12).

 

Item 8 - After paragraph 105(2)(b)

 

38.          Item 8 inserts new paragraph 105(2)(ba) after paragraph 105(2)(b) in Part 6 of the Maritime Act.

 

39.          Current subsection 105(1) provides that regulations may, for the purposes of safeguarding against unlawful interference with maritime transport or offshore facilities, prescribe requirements in relation to each type of port security zone. 

 

40.          Current subsection 105(2) provides for certain matters to be dealt with by regulations made under subsection 105(1).

 

41.          New paragraph 105(2)(ba) provides for regulations to be made in relation to security checking (including background checking) of persons who have access to port security zones.

 

42.          New paragraph 105(2)(ba) will not create any new powers in relation to security checking for the Commonwealth government. Regulations already set out the requirement for an MSIC applicant to undergo a background check (paragraph 6.08BA(1)(a) of the Maritime Transport and Offshore Facilities Security Regulations 2003 (the Maritime Regulations)). This regulation is made under the general regulation-making power at paragraph 209(1)(b) of the Maritime Act. 

 

43.          The purpose of this new regulation-making power at paragraph 105(2)(ba) in the Maritime Act is to:

-             establish clear and transparent regulation-making powers that support the background checking function, which is required to determine an applicant’s eligibility to be issued an MSIC; and

-             mirror existing provisions in Part 3 of the Aviation Act (for example, paragraph 35(2)(g)) to enable greater alignment and consistency between the Aviation and Maritime Acts. 

 

Item 9 - After paragraph 109(2)(b)

 

44.          Item 9 inserts new paragraph 109(2)(ba) after current paragraph 109(2)(b) in Part 6 of the Maritime Act.

 

45.          Current subsection 109(1) provides that regulations may, for the purposes of safeguarding against unlawful interference with maritime transport or offshore facilities, prescribe requirements in relation to each type of ship security zone.

 

46.          Current subsection 109(2) provides for certain matters to be dealt with by regulations made under subsection 109(1).

 

47.          New paragraph 109(2)(ba) provides for regulations to be made in relation to security checking (including background checking) of persons who have access to ship security zones.

 

48.          New paragraph 109(2)(ba) will not create any new powers in relation to security checking for the Commonwealth government. Regulations already set out the requirement for an MSIC applicant to undergo a background check (paragraph 6.08BA(1)(a) of the Maritime Regulations). This regulation is made under the general regulation-making power at paragraph 209(1)(b) of the Maritime Act.

 

49.           The purpose of this new regulation-making power in the Maritime Act is to:

-             establish clear and transparent regulation-making powers that support the background checking function, which is required to determine an applicant’s eligibility to be issued an MSIC; and

-             mirror existing provisions in Part 3 of the Aviation Act (for example, paragraph 35(2)(g)) to enable greater alignment and consistency between the Aviation and Maritime Acts. 

 

Item 10 - After paragraph 113(2)(b)

 

50.          Item 10 inserts new paragraph 113(2)(ba) after paragraph 113(2)(b) in Part 6 of the Maritime Act.

 

51.          Current subsection 113(1) of the Act provides that regulations may, for the purposes of safeguarding against unlawful interference with maritime transport or offshore facilities, prescribed requirements in relation to each type of on-board security zone.

 

52.          Current subsection 113(2) provides for certain matters to be dealt with by regulations made under subsection 113(1).

 

53.          New paragraph 113(2)(ba) provides for regulations to be made in relation to security checking (including background checking) of persons who have access to on-board security zones.

 

54.          New paragraph 113(2)(ba) will not create any new powers in relation to security checking for the Commonwealth government. Regulations already set out the requirement for an MSIC applicant to undergo a background check (paragraph 6.08BA(1)(a) of the Maritime Regulations). This regulation is made under the general regulation-making power at paragraph 209(1)(b) of the Maritime Act. 

 

 

55.          The purpose of this new regulation-making power in the Maritime Act is to:

-             establish clear and transparent regulation-making powers that support the background checking function, which is required to determine an applicant’s eligibility to be issued an MSIC; and

-             mirror existing provisions in Part 3 of the Aviation Act (for example, paragraph 35(2)(g)) to enable greater alignment and consistency between the Aviation and Maritime Acts.  

 

Item 11 - After paragraph 113D(2)(b)

 

56.          Item 11 inserts new paragraph 113D(2)(ba) after current paragraph 113D(2)(b) in Part 6 of the Maritime Act.

 

57.          Current subsection 113D(1) of the Act provides that regulations may, for the purposes of safeguarding against unlawful interference with maritime transport or offshore facilities, prescribe requirements in relation to each type of offshore security zone.

 

58.          Current subsection 113D(2) provides for certain matters to be dealt with by regulations made under subsection 113(1).

 

59.          New paragraph 113D(2)(ba) provides for regulations to be made in relation to security checking (including background checking) of persons who have access to offshore security zones.

 

60.          New paragraph 113D(2)(ba) will not create any new powers in relation to security checking for the Commonwealth government. Regulations already set out the requirement for an MSIC applicant to undergo a background check (paragraph 6.08BA(1)(a) of the Maritime Regulations). This regulation is made under the general regulation-making power at paragraph 209(1)(b) of the Maritime Act. 

 

61.          The purpose of this new regulation-making power in the Maritime Act is to:

-             establish clear and transparent regulation-making powers that support the background checking function, which is required to determine an applicant’s eligibility to be issued an MSIC; and

-             mirror existing provisions in Part 3 of the Aviation Act (for example, paragraph 35(2)(g)) to enable greater alignment and consistency between the Aviation and Maritime Acts. 

 

Item 12 - Division 6 of Part 6

 

62.          Item 12 inserts new Division 6 - Serious or Organised Crime and new sections 113E and 113F in Part 6 of the Maritime Act.

 

63.          New section 113E of the Maritime Act, entitled “113E Purpose of this Division”, provides that the purpose of Division 6 of Part 6 is to prevent the use of maritime transport or offshore facilities in connection with serious or organised crime. This purpose is exclusive to Division 6 of Part 6 and is not intended to affect the application or interpretation of any provisions outside of Division 6 of Part 6.

 

64.          New section 113F sets out the requirements for access to maritime security zones, established under Part 6 of the Maritime Act, for the purpose of preventing the use of maritime transport or offshore facilities in connection with serious or organised crime.

 

65.          New subsection 113F(1) provides for regulations to be made prescribing the requirements in relation to access to zones, established under Part 6, for the purpose of preventing the use of maritime transport and offshore facilities in connection with serious or organised crime. For the purposes of subsection 113F(1), the zones established under Part 6 of the Act are port security zones (Division 2), ship security zones (Division 3), on-board security zones (Division 4) and offshore security zones (Division 5).

 

66.          The regulation-making powers set out in subsection 113F(1) are consistent with the equivalent provisions in Part 6 of the Maritime Act (for example, existing paragraphs 105(2)(a) and new paragraph 105(2)(ba) - see Item 8) and in Part 3 of the Aviation Act (for example, new subsection 38AB(2) - see Item 4, or existing paragraphs 35(2)(a) and (g)).

 

67.          New paragraph 113F(1)(a) provides for regulations to be made in relation to access to zones established under this Part (including conditions of entry, the issue and use of security passes and other identification systems).

 

68.          This new regulation-making power is consistent with equivalent provisions specific to each maritime security zone in Divisions 2-5 of Part 6 (for example, paragraph 105(2)(a)). However, while the equivalent regulation-making powers in Divisions 2-5 of Part 6 are for the purpose of safeguarding against unlawful interference, new paragraph 113F(1)(a) provides for regulations to be made for the purpose of preventing the use of maritime transport or offshore facilities in connection with serious or organised crime. New paragraph 113F(1)(a) of the Maritime Act is consistent with the equivalent provisions in the Aviation Act (for example, new paragraph 38AB(2)(a) - see Item 4 and existing paragraph 35(2)(a) of the Aviation Act).

 

69.          New paragraph 113F(1)(b) provides for regulations to be made in relation to security checking (including background checking) of persons who have access to zones established under Part 6.

 

70.          This provision clarifies the regulation-making powers that apply to background checking of MSIC applicants. New paragraph 113F(1)(b) is consistent with the equivalent provisions in Part 6, which are specific to each maritime security zone, and which are for the purpose of safeguarding against unlawful interference (for example, new paragraph 105(2)(ba) - see Item 8). Paragraph 113F(1)(b) is also consistent with the equivalent provisions in the Aviation Act (for example, new paragraph 38AB(2)(b) - see Item 4 and existing paragraph 35(2)(g) of the Aviation Act).

 

71.          New subsection 113F(2) provides for regulations to prescribe penalties for offences against regulations made under subsection 113F(1), and sets out the maximum penalties that regulations may prescribe for different classes of offenders.

 

72.          New paragraph 113F(2)(a) provides that the maximum penalty for operators of ports, ships, port facilities and offshore facilities is 200 penalty units.

 

73.          For maritime industry participants, other than those covered in paragraph 113F(2)(a), new paragraph 113F(2)(b) provides that the maximum penalty for an offence is 100 penalty units.

 

74.          New paragraph 113F(2)(c) sets out that the maximum  penalty that can be prescribed by regulations for any other person is 50 penalty units. This provision ensures that the maximum penalty that can be made in regulations for offences involving an individual is set at 50 penalty units.

 

75.          These offence provisions, setting out the maximum penalties that may be prescribed under the Maritime Regulations, follow a clear legislative precedent already established in the Maritime Act. The maximum penalties are consistent with existing penalties for these classes of offenders for corresponding offences in relation to access to secure maritime zones in Part 6 of the Maritime Act (for example, subsection 105(3)). The penalties also take into account the appropriate level of deterrence for the different classes of offenders.

 

76.          Regulations prescribing penalties for offences, made under new subsection 113F(2), will be consistent with existing penalties for equivalent offences already established in the Maritime Regulations.

 

77.          All of the relevant terms in new subsection 113F(2), “port operator”, “ship operator”, “port facility operator”, “offshore facility operator” and “maritime industry participant” are defined in section 10 of the Maritime Act.

 

Item 13 - At the end of Section 208

 

78.          Item 13 inserts new subsection 208(9) in Part 13 of the Maritime Act.

 

79.          Section 208 provides for continued operation of the Act (or provisions of the Act) in the event of a successful constitutional challenge. Section 208 sets out the various constitutional heads of power upon which the Act can draw if its operation is expressly confined to acts or omissions under those constitutional powers.

 

80.          New subsection 208(9) inserts an additional severability or read-down provision that provides guidance to a court as to Parliament’s intention in the event that it is necessary to read down provisions in the Act.

 

81.          New subsection 208(9) enables the Maritime Act to have the effect that it would have if its operation were expressly confined to matters incidental to execution of any of the legislative powers of the Parliament or the executive powers of the Commonwealth, derived from section 51(xxxix) of the Constitution.