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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)
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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.
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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.
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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).
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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.
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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
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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.
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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,
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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
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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).
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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.
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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.
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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