EXPLANATORY STATEMENT

Select Legislative Instrument 2010 No. 299

Subject - Maritime Transport and Offshore Facilities Security Act 2003

Maritime Transport and Offshore Facilities Security Amendment

Regulations 2010 (No. 2)

The Maritime Transport and Offshore Facilities Security Act 2003 (the Act) establishes a regulatory framework to safeguard against unlawful interference with maritime transport and offshore facilities. To achieve this purpose, the Act establishes minimum security requirements for the Australian maritime industry by imposing obligations on persons engaged in maritime activities.

Subsection 209 (1) of the Act provides that the Governor–General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Act.

The Maritime Transport and Offshore Facilities Security Regulations 2003 (the Principal Regulations) set out the requirements for maritime, ship and offshore security plans and ensure that maritime, ship and offshore security plans address specific matters to achieve maritime security outcomes as specified in the Act. In addition, the Principal Regulations outline a number of measures that must be undertaken in order to ensure the achievement of the maritime security outcomes, including requirements for access to maritime security zones and requirements for passenger security screening.

These Regulations amend the Principal Regulations to provide for a number of minor amendments in the Maritime Security Identification Card (MSIC) regime.

These Regulations are minor–predominantly machinery–and mainly clarify and highlight the new obligation on MSIC holders in relation to reporting maritime-security-relevant offences.

A Regulation Impact Statement (RIS) is not required for the Regulations because they have low or no impact on business. A RIS exemption was obtained from the Office of Best Practice Regulation on 18 October 2010 (2010/11907).

These Regulations have been discussed with industry, unions and the Attorney-General’s Department.

Attachment A outlines the scope of these Regulations. Further details of these Regulations are set out in Attachment B.

The Act specifies no conditions that need to be met before the power to make these Regulations may be exercised.

These Regulations commence on the commencement of regulation 4 of the Maritime Transport and Offshore Facilities Security Amendment Regulations 2010 (No. 1), which is due to be on 1 December 2010.

These Regulations are a legislative instrument for the purpose of the Legislative Instruments Act 2003.

Authority: Subsection 209(1) of the Maritime Transport and Offshore Facilities Security Act 2003

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ATTACHMENT A

The MSIC regime aims to reduce the risk of potential terrorists infiltrating sensitive areas of maritime infrastructure by excluding people with prior criminal backgrounds relevant to terrorism from working in security sensitive areas of the maritime industry.

The MSIC regime requires that people working unescorted in secure areas of Australia's security regulated seaports and oil and gas platforms to be background checked–that is undergo criminal history checks, ASIO security assessments and, if they are a foreign national, immigration checks. An MSIC may be issued to a person who has passed a background check.

A person is excluded from holding an MSIC if they have been convicted of a disqualifying offence or convicted of any other MSRO and sentenced to imprisonment for that offence. Broadly, an MSRO is an offence related to terrorism or certain acts of violence such as aggravated assault or armed attack relating to a vessel, port or offshore facility, unlawful interference with maritime transport or offshore facility, racial hatred and vilification, fraud, corruption and drug trafficking. Speeding fines, parking tickets, general driving offences and minor drug offences are not considered to be MSROs.

On 29 January 2010, the then Minister for Infrastructure, Transport, Regional Development and Local Government, Anthony Albanese, announced a number of enhancements to the MSIC regime following a review of the MSIC scheme.

The key regulatory amendments coming out of the announcement, which were approved on 29 June 2010, include:

·        the offences that prevent an individual from holding an MSIC have been expanded to cover additional matters including espionage, kidnapping, illegal firearms, explosives and aggravated assault (came into effect on 1 July 2010);

·        background checks will be conducted every two years with cards being valid for up to four (due to come into effect on 1 December 2010);

·        a new offence to prosecute MSIC holders who fail to advise their MSIC issuing body of changes to their criminal record (due to come into effect on 1 December 2010); and

·        a new offence to prosecute MSIC issuing bodies who fail to suspend an MSIC at the direction of the Secretary of the Department, or fail to cancel the card if the person is convicted of a disqualifying MSRO or convicted of any other MSRO and sentenced to imprisonment for that offence (due to come into effect on 1 December 2010).

ATTACHMENT B

Details of the Maritime Transport and Offshore Facilities Security Amendment Regulations 2010 (No. 2)

Regulation 1 – Name of Regulations

This regulation provides that the title of the Regulations is the Maritime Transport and Offshore Facilities Security Amendment Regulations 2010 (No. 2).

Regulation 2 – Commencement

This regulation provides for the Regulations to commence on the commencement of Regulation 4 of the Maritime Transport and Offshore Facilities Security Amendment Regulations 2010 (No. 1), which is due to be on 1 December 2010.

Regulation 3 – Amendment of Maritime Transport and Offshore Facilities Security Regulations 2003

This regulation provides that Schedule 1 amends the Maritime Transport and Offshore Facilities Security Regulations 2003 (the Principal Regulations).

Item [1] – Subregulation 6.07B (1), after definition of ASIO

This item adds a new definition for “AusCheck facility”.

This amendment is necessary to be added as the “AusCheck facility” is referred to several times in the Regulations.

Item [2] – Paragraph 6.08BA (1) (b)

This item makes a punctuation change to allow new paragraph 6.08BA (1) (c) to be added by item 3 below.

Item [3] – After paragraph 6.08BA (1) (b)

This item adds a new paragraph 6.08 (1) (c) to the Principal Regulations.

This amendment provides that an issuing body can make an application for a background check on an MSIC holder who reports a maritime-security-relevant offence (MSRO), which is an MSIC holder’s obligation from 1 December 2010. There are two levels of MSROs for which an MSIC holder may be ineligible for an MSIC due to criminal activity; a disqualifying offence and any other MSRO and imprisonment for the offence.

This amendment ensures that an MSIC holder would only be required to report offences that might make him or her ineligible to hold an MSIC.

Item [4] – Subregulation 6.08C (5)

This item replaces existing subregulation 6.08C (5) with a new subregulation 6.08C (5) and a new regulation 6.08CA.

This amendment clarifies that the issuing body may re-issue an MSIC to a former holder who had their MSIC cancelled either at their request or due to not having an operational need for the MSIC, where:

·        the former holder has an operational need for an MSIC;

·        the former holder has submitted a statutory declaration stating that no relevant circumstance (such as a change in name or an MSRO conviction with imprisonment) has occurred; and

·        the request for that MSIC is made by the issuing body within 12 months of the cancellation of the original card.

In the Principal Regulations it states that the former MSIC holder has 12 months to inform his or her issuing body to re-issue their MSIC. This does not reflect the policy intention that the application for the re-issuing of the MSIC must be provided to AusCheck within the 12-month cancellation period.

Subregulation 6.08CA AusCheck facility to be used when issuing an MSIC

This amendment specifies that issuing bodies must use the AusCheck database system when issuing an MSIC under any circumstances. The purpose of this amendment is to ensure that issuing bodies are informed of the status of MSIC holders prior to taking any action, such as re-issuing cards, and to ensure that AusCheck meets its function of being a national database for MSICs.

Item [5] – Subregulation 6.08I (4)

This item adds a subregulation 6.08I (4).

This amendment clarifies that if a cancelled MSIC is reinstated, the reinstated MSIC must not expire later than either the date that it would have expired if it had never been cancelled or if the Secretary of the Department of Infrastructure and Transport (Secretary Infrastructure) approved the reinstatement subject to a condition, the date specified by the Secretary Infrastructure.

This is regardless of any additional background checks that may have been carried out prior to or after the cancellation of the MSIC.

Item [6] – Subregulation 6.08J (2)

This item replaces existing subregulation 6.08J (2) with a new subregulation 6.08J (2).

This amendment clarifies that this subregulation only covers what must be on the front of an MSIC.

Item [7] – Subregulation 6.08J (4)

This item replaces existing subregulation 6.08J (4) with a new subregulation 6.08J (4).

The effect of this substitution is to require certain information to be printed on the back of an MSIC at the time of issue. This amendment provides an additional reminder to MSIC holders in relation to their responsibility to report an MSRO, which comes into effect on 1 December 2010. It also provides an opportunity for issuing bodies to incorporate on the back of an MSIC any other information they think appropriate, such as their contact information.

The previous content of this subregulation in relation to having an MSIC holder’s name on the back of the card under certain circumstances has been maintained.

Item [8] – Regulation 6.08LB

This item replaces existing regulation 6.08LB with a new regulation 6.08LB which was added by the Maritime Transport and Offshore Facilities Security Amendment Regulations 2010 (No. 1), due to commence on 1 December 2010. This item also adds a new regulation 6.08LBA.

This amendment requires that an MSIC holder, who has been convicted and sentenced for a disqualifying offence or convicted of any other MSRO and sentenced to imprisonment for the offence, must report the conviction and sentence to either their issuing body or directly to the Secretary AGD.

The holder is required to report the MSRO within seven days of conviction and sentencing. If sentencing occurs at a later date than the conviction was recorded, the seven days is from the date of sentencing.

An MSIC holder who has been convicted of an MSRO needs to undergo an additional background check to ensure they still remain eligible for an MSIC. The following information therefore needs to be provided, in writing, when the offence is reported:

a.       Name, date of birth and address;

b.      MSIC number (or if the person holds more than one MSIC, the MSIC numbers);

c.       The date he or she was convicted and sentenced;

d.      The court in which he or she was convicted;

e.       Whether the person consents for his or her identity to be confirmed, for another background check to be performed and for any unfavourable results to be sent to their issuing body/s.

The amendment maintains the 20 penalty units in the current subregulation for an individual who fails to report an MSRO.

If the issuing body or Secretary AGD are not satisfied that all of the information required above has been provided or if they require further information to verify a person’s identity, they may request that the holder provide that information within 14 days.

If the MSIC holder does not consent to a background check or if the person does not provide the information within 14 days, the holder’s MSIC is cancelled under regulation 6.08M.

Regulation 6.08LBA Obligation on issuing body notified under regulation 6.08LB

This regulation has been added to impose an obligation on an issuing body to apply to the Secretary AGD for an additional background check on an MSIC holder who has reported that they have been convicted of an MSRO. The issuing body, within two working days of the holder giving consent for the background check to be undertaken and providing any further information requested by the issuing body, is required to apply to the Secretary AGD for the additional background check.

The issuing body is required to provide the Secretary AGD with the information obtained from the MSIC holder under regulation 6.08LB.

If a person has committed a relevant offence after being issued with an MSIC, an additional background check is essential to determine if a person is a risk to maritime security. If the issuing body fails to inform the Secretary AGD within the appropriate timeframe, the background check is delayed and this results in a poor security outcome. Due to the seriousness of not initiating a subsequent background check, a maximum penalty of 100 penalty units has been attached to this obligation.

Item [9] – Paragraph 6.08LC (1) (a)

This item replaces existing paragraph 6.08LC (1) (a) with a new paragraph 6.08LC (1) (a).

This amendment distinguishes between the two levels of criminal conviction that may make an MSIC holder ineligible for an MSIC; a disqualifying offence and any other MSRO and imprisonment for the offence.

Item [10] – Subregulation 6.08LD (1)

This item replaces existing subregulation 6.08LD (1) with a new subregulation 6.08LD (1).

This amendment clarifies that in a case where an MSIC holder ceases to work for one employer and then commences working for a different employer, which is, or utilises the services of, an alternative issuing body, the new issuing body must request of the

Secretary AGD to conduct the two-year background check on a valid four-year MSIC.

Without this change, a new issuing body is unable to request of the Secretary AGD to conduct the second background check.

Item [11] – Paragraph 6.08LD (3) (a)

This item replaces existing paragraph 6.08LD (3) (a) with a new paragraph 6.08LD (3) (a).

This amendment distinguishes between the two levels of MSROs for which an MSIC holder may be ineligible for an MSIC due to criminal activity; a disqualifying offence and any other MSRO and imprisonment for the offence.

Item [12] – Subregulation 6.08LI (1), at the foot

This item adds a note at the bottom of subregulation 6.08LI (1).

This amendment clarifies that issuing bodies may suspend an MSIC only at the direction of the Secretary. An issuing body does not have the authority to independently suspend an MSIC under any circumstances.

Item [13] – Paragraph 6.08M (1) (e)

This item replaces existing paragraph 6.08M (1) (e) with a new paragraph 6.08M (1) (e).

This amendment clarifies that an issuing body must be informed by the Secretary AGD that an MSIC holder has a disqualifying offence or any other MSRO and imprisonment for the offence before cancelling an MSIC.

Item [14] – Paragraph 6.08M (1) (g)

This item makes a punctuation to allow new paragraph 6.08M (1) (h) to be added by item 15 below.

Item [15] – After paragraph 6.08M (1) (g), before the note

This item adds paragraph 6.08M (1) (h) after paragraph 6.08M (1) (g).

This amendment empowers issuing bodies to cancel an MSIC under circumstances where a holder has reported a disqualifying offence or any other MSRO and imprisonment for the offence, but does not consent to a background check or does not provide the information sought of them by the issuing bodies or the Secretary AGD.

Item [16] – Subparagraph 6.08MB (1) (b) (i)

This item amends existing subparagraph 6.08MB (1) (b) (i) with a new subparagraph 6.08MB (1) (b) (i).

This amendment clarifies that “applicant” means the MSIC holder or their issuing body and facilitates the amendment of paragraphs 6.08MB (4) (b) and (c) by item 17 below.

Item [17] – Paragraphs 6.08MB (4) (b) and (c)

This item replaces existing paragraphs 6.08MB (4) (b) and (c) with new paragraphs 6.08MB (4) (b) and (c).

This amendment clarifies who receives the Secretary’s decision on an MSIC cancellation (due to a qualified security assessment) appeal and the reason/s used to reach the decision. Where the Secretary Infrastructure sets aside a cancellation, the former MSIC holder, their issuing body and the Secretary AGD are required to be informed of the decision. Where the Secretary Infrastructure refuses to set aside a cancellation, for privacy reasons, only the former MSIC holder is informed of both the decision and the reason/s. However, if the issuing body appealed the cancellation on behalf of the MSIC holder, the issuing body is informed of the decision to refuse (though not of the reason/s).

Item [18] – After subregulation 6.08MB (5)

This item adds a new subregulation 6.08MB (6).

This amendment clarifies that “applicant” means the MSIC holder or their issuing body and facilitates the amendment of paragraphs 6.08MB (4) (b) and (c) by item 17 above.

Item [19] – Subparagraph 6.08MC (1) (b) (i)

This item amends existing subparagraph 6.08MC (1) (b) (i) with a new subparagraph 6.08MC (1) (b) (i).

This amendment clarifies that “applicant” means the MSIC holder or their issuing body and facilitates the amendment of paragraphs 6.08MC (2) (b) and (c) by item 20 below.

Item [20] – Paragraph 6.08MC (2) (b) and (c)

This item replaces existing paragraphs 6.08MC (2) (b) and (c) with new paragraphs 6.08MC (2) (b) and (c).

This amendment clarifies who receives the Secretary’s decision on an MSIC cancellation (due to an adverse criminal record) appeal and the reason/s used to reach the decision. Where the Secretary Infrastructure sets aside a cancellation, the former MSIC holder, their issuing body and the Secretary AGD are required to be informed of the decision. Where the Secretary Infrastructure refuses to set aside a cancellation, for privacy reasons, only the former MSIC holder is informed of both the decision and the reason/s. However, if the issuing body appealed the cancellation on behalf of the MSIC holder, the issuing body is informed of the decision to refuse (though not of the reason/s).

Item [21] – After subregulation 6.08MC (4)

This item adds a new subregulation 6.08MC (5).

This amendment clarifies that “applicant” means the MSIC holder or their issuing body and facilitates the amendment of paragraphs 6.08MC (2) (b) and (c) by item 20 above.