Commonwealth Numbered Regulations - Explanatory Statements

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TRANSPORT SECURITY LEGISLATION AMENDMENT (2019 MEASURES NO. 1) REGULATIONS 2019 (F2019L00829)

EXPLANATORY STATEMENT

Issued by the Minister for Home Affairs

The Aviation Transport Security Act 2004 (the ATS Act) establishes a regulatory framework to safeguard against unlawful interference with civil aviation in Australia. The Act sets the minimum security requirements for civil aviation in Australia by imposing obligations on persons engaged in civil aviation related activities.

The Maritime Transport and Offshore Facilities Security Act 2003 (the MTOFS Act) establishes a regulatory framework to safeguard against unlawful interference with maritime transport and offshore oil and gas 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.

Section 133(1) of the ATS Act and subsection 209(1) of the MTOFS Act provide that the Governor-General may make regulations prescribing matters required or permitted by the ATS Act to be prescribed; or, necessary or convenient to be prescribed for carrying out or giving effect to those Acts. In addition, regulations may be made pursuant to the provisions of the ATS Act and the MTOFS Act as detailed in Attachment A.

The Aviation Transport Security Regulations 2005 (the ATS Regulations) and the Maritime Transport and Offshore Facilities Security Regulations 2003 (the MTOFS Regulations) provide for additional security requirements and address matters such as controlling the movement of people and things and restricting access to zones and areas (including conditions of entry; and the issue and use of security passes and other identification systems). The ATS Regulations also prescribe a number of matters that are to be dealt with in TSPs.

The Transport Security Legislation Amendment (2019 Measures No. 1) Regulations 2019 (the principal Regulations) amend the ATS Regulations and the MTOFS Regulations to enhance transport security and ensure consistency with Australia's international obligations by:

*         removing the screening exemption for hold baggage on inbound international aircraft transferring to other flights in Australia;

*         allowing the Director-General of Security to issue visitor identification cards (VICs) to officers and employees of the Australian Security Intelligence Organisation, to support the protection of those officers and employees identities

*         clarifying obligations for industry and removing unnecessary administrative burdens by removing the requirement for regulated industry participants to have a fax number and clarifying licensing obligations for security guards working on regulated Australian ships and offshore facilities located beyond a state or territory's jurisdiction;

*         removing regulatory obstacles to the expansion of the current covert systems testing program within the aviation environment; and

*         standardising inconsistent use of defined terms and addressing typographical errors and drafting inconsistencies within the ATS and MTOFS Regulations.

Industry participants and the Australian Security Intelligence Organisation have been consulted on the amendments. All consultations were supportive of the amendments.

A Statement of Compatibility with Human Rights (the Statement) has been completed in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011. The overall assessment is that the principal Regulations are compatible with human rights because they do not raise any human rights issues. A copy of the Statement is at Attachment B.

Details of the principal Regulations are set out in Attachment C.

The principal Regulations are a legislative instrument for the purposes of the Legislation Act 2003.

The principal Regulations commence on the day after registration.

Authority:                                            Subsection 133(1) of the
Aviation Transport Security Act 2004

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

ATTACHMENT A

AUTHORISING PROVISIONS

Aviation Transport Security Act 2005

Section 133(1) of the Aviation Transport Security Act 2005 (the ATS Act) provides that the Governor-General may make regulations prescribing matters required or permitted by the ATS Act to be prescribed; or, necessary or convenient to be prescribed for carrying out or giving effect to the ATS Act.

In addition, the following provisions of the ATS Act may apply:

*         Section 16(3) provides that regulations may prescribe matters to be dealt with in transport security programs;

*         Subsection 35(1) provides that regulations may, for the purposes of safeguarding against unlawful interference with aviation, prescribe requirements in relation to the airside area of a security controlled airport;

*         Subsection 36(1) provides that regulations may, for the purposes of safeguarding against unlawful interference with aviation, prescribe requirements in relation to each type of airside security zone;

*         Subsection 36A(1) provides that regulations may, for the purposes of safeguarding against unlawful interference with aviation, prescribe requirements in relation to each type of airside event zone;

*         Subsection 38A(1) provides that regulations may, for the purposes of safeguarding against unlawful interference with aviation, prescribe requirements in relation to each type of landside event zone; and

*         Subsection 42(1) provides that regulations may be made prescribing requirements for goods (including checked baggage, but not including cargo) to receive clearance.

Maritime Transport and Offshore Facilities Security Act 2003

Section 209(1) of the Maritime Transport and Offshore Facilities Security Act 2003 (the MTOFS Act) provides that the Governor-General may make regulations prescribing matters required or permitted by the MTOFS Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the MTOFS Act.

In addition, the following provisions of the MTOFS Act may apply:

*         Section 48 provides that regulations may prescribe specific matters that are to be dealt with in maritime security plans;

*         Section 67 provides that regulations may prescribe specific matters that are to be dealt with in ship security plans;

*         Section 100H provides that regulations may prescribe specific matters that are to be dealt with in offshore facility security plans;

*         Subsection 105(1) provides that the 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;

*         Subsection 109(1) provides that the 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;

*         Subsection 113(1) provides that the regulations may, for the purposes of safeguarding against unlawful interference with maritime transport or offshore facilities, prescribe requirements in relation to each type of on-board security zone; and

*         Subsection 113D(1) provides that the 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.

ATTACHMENT B

Statement of Compatibility with Human Rights

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

Transport Security Legislation Amendment (2019 Measures No. 1) Regulations 2019

This Disallowable Legislative Instrument 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 Disallowable Legislative Instrument

This Disallowable Legislative Instrument amends the Aviation Transport Security Regulations 2005 (ATS Regulations) and the Maritime Transport Security Regulations 2003 (MTOFS Regulations) to:

*         remove a key obstacle to the expansion of the current covert systems testing program within the aviation environment by exempting aviation security inspectors lawfully carrying out their duties and responsibilities from the offence provision in regulation 9.01 of the ATS Regulations;

*         remove the screening exemption for transfer hold baggage on inbound international aircraft transferring to other flights in Australia, to enhance security outcomes and ensure consistency with Australia's obligations under the International Civil Aviation Organization's framework;

*         allow the Director-General of Security to issue visitor identification cards (VICs) to officers and employees of the Australian Security Intelligence Organisation (ASIO), to support the protection of those officers and employees identities (currently ASIO officers and employees requiring a VIC must apply through other authorised issuing bodies such as airport operators);

*         improve the consistency of the regulatory framework for infringement notices issued under the ATS Regulations and MTOFS Regulations, including to allow the Secretary to issue certificates as evidence of facts in certain circumstances;

*         clarify obligations for industry and remove unnecessary administrative burdens by:

-          removing the requirement for regulated industry participants to have a fax number;

-          clarifying licensing obligations for security guards working on regulated Australian ships and offshore facilities located beyond a state or territory's jurisdiction;

-          clarifying penalties for accredited air cargo agents in relation to an offence under regulation 3.16D of the ATS Regulations;

-          removing the distinction between internal and external auditors in the MTOFS Regulations;

-          clarifying that an offence of failing to delineate the boundaries of an airside or landside special event zone is only committed if the zone is 'in force' at the time (i.e. not from the time at which the zone is established);

-          providing that a notice given to a person born in Australia under section 37 of the Australian Citizenship Act 2007 is also a Category A identification document for the purposes of applying for an aviation security identification card; 

-          standardising the inconsistent use of defined terms and amending inconsistently defined terms; and

-          addressing drafting errors and inconsistencies.

These amendments will address a number of minor policy issues and rectifying inconsistencies in the Aviation and Maritime Regulations. 

This in turn will enhance transport security by clarifying industry participant's regulatory obligations, and removing unnecessary administrative burdens to enable industry participants to better focus their resources on achieving security outcomes.

Human rights implications

This Disallowable Legislative Instrument does not engage any of the applicable rights or freedoms. While there is a nexus to the right to work (in relation to licensing obligations for security guards), the Disallowable Legislative Instrument does not limit that right in any way.  It simply clarifies existing requirements, and reduces the administrative burden on those affected.

Conclusion

The Disallowable Legislative Instrument is compatible with human rights as it does not raise any human rights issues.

ATTACHMENT C

Details of the Transport Security Legislation Amendment (2019 Measures No. 1) Regulations 2019

Section 1 - Name

This section provides that the name of the Regulations is the Transport Security Legislation Amendment (2019 Measures No. 1) Regulations 2019.

Section 2 - Commencement

This section provides that sections 1 to 4 and Schedules 1 of the Regulations are to commence the day after the instrument is registered.

Section 3 - Authority

This section provides that the Regulations are to be made under the Aviation Transport Security Act 2004, and the Maritime Transport and Offshore Facilities Security Act 2003.

Section 4 - Schedules

This section provides that each instrument specified in a schedule to this instrument is amended or repealed as set out in this instrument and any other item in a schedule to this instrument has effect according to its terms.

Schedule 1 - Amendments

Aviation Transport Security Regulations 2005

Item 1 - Regulation 1.03

Item 1 amends regulation 1.03 to introduce a definition for the term audit, in the context of an aviation industry participant's transport security program (TSP). This amendment is consequential on the amendments at Items 5, 6 and 7.

Item 2 - Regulation 1.03 (paragraph (aa) of the definition of exempt duty free item)

Item 2 amends paragraph (aa) of the definition of exempt duty free item. The purpose of this amendment is to clarify that an item must have been purchased at an airport retail outlet in order for it to be an exempt duty free item.

Item 3 - Regulation 1.03

Item 3 amends regulation 1.03 to introduce a definition for the term review, in the context of an aviation industry participant's TSP. This amendment is consequential on the amendments at Items 5, 6 and 7.

Item 4 - Regulation 1.08

Item 4 repeals the existing regulation 1.08 following the removal of the special pilot licence authorisation from the Civil Aviation Safety Regulations 1998 by the Civil Aviation Legislation Amendment Regulations 2013 (No. 1). New regulation 1.08 is consequential to this change.

Items 5, 6 and 7 – Subregulation 2.01(1) and 2.01(2)

Items 5-7 amend regulation 2.01 to repeal the current provisions setting out the meaning of the terms "audit" and "review" in the context of an aviation industry participant's TSP, and replace them with a definition for each term.

The purpose of these amendments is to clarify the purpose of an audit, in relation to an aviation industry participant's TSP, and to clearly differentiate it from a review of an aviation industry participant's TSP. This amendment, together with those in Items 68 and 69, also results in improved consistency between the ATS and MTOFS Regulations.

Item 8 - Paragraph 2.13(4)(d)

Item 8 repeals paragraph 2.13(4)(d) which removes the requirement for the operator of a security controlled airport to provide the Secretary with a fax number for the operator. 

Technological developments mean that facsimile machines are no longer relied on for communication purposes between Government and industry in relation to matters under the ATS Regulations. Operators are still required to provide an email address and multiple contact telephone numbers (including an after-hours contact number and alternative contact number). This amendment means that they are not also required to maintain a fax capacity and provide a fax number to the Secretary as part of their contact information.

Item 9 - Paragraph 2.13(4)(g)

Item 9 removes the requirement for the operator of a security controlled airport to provide the Secretary with a fax number for the operator's security contact officer by omitting "fax number" from paragraph 2.13(4)(g). 

Technological developments mean that facsimile machines are no longer relied on for communication purposes between Government and industry in relation to matters under the ATS Regulations. Operators are still required to provide a business phone number, email address and 24-hour security contact number for their security contact officer.

Item 10 - Paragraph 2.17(2)(f)

Item 10 amends paragraph 2.17(2)(f) by omitting the phrase "their first Australian port of call" and substituting it with the phrase "the first point of call in Australia".

The purpose of this amendment is to make the language used in this paragraph more consistent with the language used elsewhere in the ATS Regulations. 

Item 11 - Paragraph 2.17(2)(g)

Item 11 repeals and replaces paragraph 2.17(2)(g). Paragraph 2.17(2)(g) requires an airport operator's TSP to include measures to ensure that screened passengers departing from or boarding an aircraft do not mix with unscreened passengers on arriving aircraft.

The new paragraph 2.17(2)(g) requires an airport operator's TSP to include measures to ensure that passengers on arriving aircraft who have not been cleared do not mix with cleared passengers departing from or boarding an aircraft.

The purpose of this amendment is to ensure consistency in the use of language within the ATS Act and Regulations. Under the ATS Act, a person may be 'screened' but not 'cleared', or 'cleared' without being 'screened'. The focus of the legislative framework is on ensuring that cleared persons remain cleared by being kept separate from persons who have not yet been cleared.  This prevents the passage of prohibited items or weapons from uncleared persons into cleared areas, zones or aircraft, and reduces the need for persons to undergo multiple security clearance processes.

Item 12 - Paragraph 2.31(3)(d)

Item 12 removes the requirement for the operator of a prescribed air service to provide the Secretary with a fax number for the operator by repealing paragraph 2.31(3)(d).

Technological developments mean that facsimile machines are no longer relied on for communication purposes between Government and industry in relation to matters under the ATS Regulations. Operators are still required to provide an email address and multiple contact telephone numbers (including an after-hours contact number and alternative contact number).

Item 13 - Paragraph 2.31(3)(g)

Item 13 removes the requirement for the operator of a prescribed air service to provide the Secretary with a fax number for the operator's security contact officer by omitting "fax number" from paragraph 2.31(3)(g).    

Technological developments mean that facsimile machines are no longer relied on for communication purposes between Government and industry in relation to matters under the ATS Regulations. Operators are still required to provide a business phone number, email address and 24-hour security contact number for their security contact officer.

Item 14 - Paragraph 2.35(b)

Item 14 repeals and replaces paragraph 2.35(b). Paragraph 2.35(b) requires an aircraft operator's TSP to include measures to ensure that screened passengers departing from or boarding an aircraft to not mix with unscreened passengers on arriving aircraft.

The new paragraph 2.35(b) requires an aircraft operator's TSP to include measures to ensure that passengers on arriving aircraft who have not been cleared do not mix with cleared passengers departing from or boarding an aircraft.

The purpose of this amendment is to ensure consistency in the use of language within the ATS Act and Regulations. Under the ATS Act, a person may be 'screened' but not 'cleared', or 'cleared' without being 'screened'. The focus of the legislative framework is on ensuring that cleared persons remain cleared by being kept separate from persons who have not yet been cleared.  This prevents the passage of prohibited items or weapons from uncleared persons into cleared areas, zones or aircraft, and reduces the need for persons to undergo multiple security clearance processes.

Item 15 - Paragraph 2.81(3)(a)

Item 15 removes the requirement for the operator of a security controlled airport to provide the Secretary with a fax number for the operator by repealing paragraph 2.81(3)(a). 

Technological developments mean that facsimile machines are no longer relied on for communication purposes between Government and industry in relation to matters under the ATS Regulations. Operators are still required to provide an email address and multiple contact telephone numbers (including an after-hours contact number and alternative contact number).

Item 16 - Paragraph 2.81(3)(c)

Item 16 removes the requirement for Airservices Australia to provide the Secretary with a fax number for the operator's security contact officer by omitting "fax number" from paragraph 2.81(3)(c). 

Technological developments mean that facsimile machines are no longer relied on for communication purposes between Government and industry in relation to matters under the ATS Regulations. Operators are still required to provide a business phone number, email address and 24-hour security contact number for their security contact officer. This amendment means that they are not also required to maintain a fax capacity and provide a fax number to the Secretary as part of their contact information.

Item 17 - Subregulation 3.16(2)

Item 17 amends subregulation 3.16(2) to replace the word "zone" with the word "area". The purpose of this amendment is to remove inconsistency in language within the subregulation.

Item 18 - Subregulation 3.16D(6) (paragraph (b) of the penalty)

Item 18 amends paragraph (b) of the penalty set out in relation to subregulation 3.16D(6). The paragraph provides that the maximum penalty that could be imposed on a person who is an aviation participant other than an accredited air cargo agent (AACA) or a participant covered by paragraph (a) for an offence under subregulation 3.16D(6) is 100 penalty units, or 50 penalty units for a person who is an AACA.

The purpose of this amendment is to correct an error in the current provision which suggests that the maximum penalty that could be imposed on an AACA for an offence under subregulation 3.16D is 100 penalty units. Subsection 36(3) of the ATS Act provides that the maximum penalty that could be imposed on an AACA for this type of offence is only 50 penalty units.

Item 19 - Paragraph 3A.05(2)(a)

Item 19 amends paragraph 3A.05(2)(a) by omitting the phrase "established within the airside area of an airport" and substituting the phrase "in force".

The purpose of this amendment is to clarify that an offence under subregulation 3A.05 may only be committed when the relevant airside special event is "in force", and not from the time at which it was established.  

The current drafting leads to an unreasonable outcome, whereby a person may commit an offence by not delineating boundaries for an event zone when that may not have any legal effect (i.e. not be 'in force') at the time.

Item 20 - Paragraph 3A.11(2)(a)

Item 20 amends paragraph 3A.11(2)(a) by omitting the phrase "established within the airside area of an airport" and substituting the phrase "in force".

The purpose of this amendment is to clarify that an offence under subregulation 3A.11 may only be committed when the relevant landside special event zone is 'in force', and not from the time at which it is established.

The current drafting leads to an irrational outcome, whereby a person may commit an offence by not delineating boundaries for an event zone when that may not have any legal effect (i.e. not be 'in force') at the time.

Item 21 - Paragraph 4.12A(1)(a)

Item 21 omits "subregulation 4.11(4)" and substitute it with "paragraph 44.11(3)(d)" to correct a cross-referencing error within the ATS Regulations. 

Item 22 - Subregulation 4.22E(2) (paragraph (a) of the definition of relevant times)

Item 22 amends the definition of relevant times in subregulation 4.22E(2)to refer to an aircraft departing a "point of departure", rather than departing a "port of call". The purpose of this amendment is simplify the language used in the ATS Regulations.

Item 23 - Subregulation 4.22F(2) (paragraph (a) of the definition of relevant times)

Item 23 amends the definition of relevant times in subregulation 4.22F(2) to refer to an aircraft departing a "point of departure", rather than departing a "port of call". The purpose of this amendment is to enhance the accessibility of the ATS Regulations by simplifying the language.

Item 24 - Subregulation 4.25(2)

Item 24 replaces the term "screened" with "cleared" in subregulation 4.25(2).

Regulation 4.25 requires checked baggage on board an inbound international air service that becomes a screened air service by transiting through an airport in Australia to be screened at the aircraft's first Australian port of call if the aircraft operator cannot demonstrate that the item was screened at the port where it was loaded and has subsequently been kept secure, or if the Secretary, by notice in writing, so requires.

Under the ATS Act, an item of baggage may be 'screened' but not 'cleared', or 'cleared' without being 'screened'. An item must be 'cleared' before being loaded on to a screened air service. The purpose of this amendment is to make the obligation in regulation 4.25 consistent with the broader aviation security framework.

Item 25 - Subregulation 4.26(2)

Item 25 removes the current exemption from clearance for certain checked baggage transferring from an inbound international air service to a screened air service in Australia. 

The purpose of this amendment is to ensure Australia's ongoing compliance with its obligations under the Convention on International Civil Aviation.  

Items 26, 27 and 28 - Subregulation 4.27(2) and subparagraphs 4.27(2)(a)(i) and 4.27(2)(a)(ii)

Items 26, 27 and 28 amend subregulation 4.27(2) and subparagraphs 4.27(2)(a)(i) and 4.27(2)(a)(ii) by omitting all occurrences of the word "screened" and substituting them with the word "cleared".

Regulation 4.27 requires checked baggage on board an outbound international air service that becomes a screened air service by transiting through an airport in Australia to be screened at the aircraft's last Australian port of call if the aircraft operator cannot demonstrate that the item was screened at any of the aircraft's previous ports of call in Australia and has subsequently been kept secure, or if the Secretary, by notice in writing, so requires.

Under the ATS Act, an item of baggage may be 'screened' but not 'cleared', or 'cleared' without being 'screened’. An item must be 'cleared' before behind loaded onto a screened air service. The purpose of this amendment is to make the obligations in regulation 4.27 consistent with the broader aviation security framework.

Items 29, 30 and 31 - Subregulation 4.28(2) and subparagraphs 4.28(2)(a)(i) and 4.28(2)(a)(ii)

Items 29, 30 and 31 amends subregulation 4.28(2) and subparagraphs 4.28(2)(a)(i) and 4.28(2)(a)(ii) by omitting all occurrences of the word "screened" and substituting them with the word "cleared".

Regulation 4.28 requires checked baggage on board an outbound international air service to be cleared before being transferred to a screened air service in Australia if the aircraft operator cannot demonstrate that the item was screened at any of the aircraft's previous ports of call in Australia and has subsequently been kept secure, or if the Secretary, by notice in writing, so requires.

Under the ATS Act, an item of baggage may be 'screened' but not 'cleared', or 'cleared' without being 'screened'. An item must be 'cleared' before behind loaded onto a screened air service. The purpose of this amendment is to make the obligations in regulation 4.28 consistent with the broader aviation security framework.

Items 32 and 33 - Subparagraphs 4.54(1)(a)(ii) and (b)(ii) (notes), and at the end of subregulation 4.54(1)

Item 32 repeals the two separate notes at the end of subparagraphs 4.54(1)(a)(ii) and (b)(ii), and Item 33 replaces them with a single, consolidated note at the end of the subregulation. This amendment ensures that subregulation 4.54(1) is consistent with modern drafting standards.

Item 34 - Subregulation 4.55A(4) (note)

Item 34 corrects a minor drafting error by replacing "regulated" with "controlled". The note under subregulation 4.55A(4) currently refers to "security regulated airports". The term used elsewhere in the ATS Act and Regulations is "security controlled airport". The purpose of this amendment is to standardised language used across the ATS Act and Regulations.

Item 35 - Regulation 5.04 (note)

Item 35 corrects a minor drafting error by replacing "regulated" with "controlled". The note under subregulation 4.55A(4) currently refers to "security regulated airports". The term used elsewhere in the ATS Act and Regulations is "security controlled airport". The purpose of this amendment is to standardise language used across the ATS Act and Regulations.

Item 36 - Subregulation 6.01(1) (paragraph (a) of the definition of Category A identification document)

Item 36 amends the definition under subregulation 6.01(1)(a) of a Category A identification document. The new definition provides that a Category A identification document for a person who was born in Australia is either the person's Australian birth certificate, or a notice given to the person under section 37 of the Australian Citizenship Act 2007.

Category A identification documents must be provided to an issuing body as part of an application by an individual by a person applying for an aviation security identification card (ASIC). At present, a person born in Australia must provide the person's Australian birth certificate. For various reasons, including in relation to the registration of birth of indigenous citizens or the registration of births in overseas diplomatic missions, a person legally born in Australia may not always hold such a document. The amendment to subregulation 6.01(1) enables those people to provide a notice given to them under section 37 of the Australian Citizenship Act 2007 instead.

Item 37 - Subregulation 6.01(1) (at the end of the definition of VIC issuer)

Item 37 inserts "the Director-General of Security" in the definition of VIC issuer in subregulation 6.01(1). The purpose of this amendment is to authorise the Director-General of Security as a VIC issuer.

Item 38 - At the end of Division 6.1

Item 38 inserts a new provision, regulation 6.05B into the ATS Regulations. This regulation authorises the Director-General of Security to delegate any of the Director-General of Security's functions or powers as a VIC issuer, to a senior position holder within the meaning of the Australian Security Intelligence Organisation Act 1979. 

This allows the Director-General of Security to manage the functions and powers as a VIC issuer in a manner than best suited the Director-General, while ensuring that these functions and powers remain the responsibility of an appropriately senior officer.

Items 39, 40 and 41 - Paragraphs 6.25A(2)(a) and 6.25A(2)(i)(iii), and after paragraph 6.25A(2)(k)

These items amend subsection 6.25A(2) to provide that the register of VICs issued kept by the Director-General of Security has to meet the same requirements as the register that must be kept by the Comptroller-General of Customs.

Item 42 - After subregulation 6.25A(2)

Item 42 inserts a new subregulation 6.25A(2A), which is consequential to the amendment at Item 40.

Items 43 and 44 - Subregulations 6.37H(1) and 6.37H(2)

Items 43 and 44 amend regulation 6.37H to provide that the Director-General of Security must not allow a person to be directly involved in the issue of VICs if the person does not hold an ASIC.

Subregulation 6.37H(1) makes it an offence for a VIC issuer (other than the Comptroller-General of Customs) to allow a person to be directly involved in the issuing of VICs if the person does not hold an ASIC.

The purpose of these amendments is to place the same obligation on the Director-General of Security as is imposed on the other Commonwealth statutory position holder authorised as a VIC issuer; the Comptroller-General of Customs.

Items 45 - Subregulation 6.38(1)

Item 45 amends subregulation 6.38(1) to include a reference to new subregulation 6.38(2). This amendment is consequential to the amendments in Item 46.

Item 46 - After subregulation 6.38(1A)

Item 46 introduces a new subregulation 6.38(2) which limits the power of the Director-General of Security to issue a VIC to officers or employees of the Australian Security Intelligence Organisation (ASIO).

Item 47 - Subregulation 6.38D(5)

Item 47 amends subregulation 6.38D(5) to include a reference to new subregulation 6.38D(7) in Item 48. This amendment is consequential to the amendments in Item 48.

Item 48 - At the end of regulation 6.38D

Item 48 introduces a new subregulation 6.38D(7) which provides that the Director-General of Security must not issue a VIC that is valid for more than 24 hours or that is valid in more than one airport. This reflects the limitation currently imposed on VICs issued by the Comptroller-General of Customs.

Item 49 - Subregulation 6.38E(1)

Item 49 amends subregulation 6.38E(1) to exclude the Director-General of Security from the operation of regulation 6.38E. Regulation 6.38 limits the issuing of a VIC to an individual for any one particular airport to a maximum of 28 days within 12 months. This item is consequential to the amendments in Item 51.

Item 50 - After paragraph 6.38E(5)(a)

Item 50 amends subregulation 6.38E(5)(a) to insert a new paragraph (b). This amendment is consequential to Item 49, as it excludes any VICs issued by the Director-General of Security from an assessment of how long a person has held a VIC for the purpose of regulation 6.38.

Item 51 - After regulation 6.38EB

Item 51 inserts a new regulation 6.38EC, which provides that the Director-General of Security must not issue a VIC to a person if the person has held a VIC issued by the Director-General of Security for more than 28 days in the previous 12 months. It also makes it an offence, with a 20 unit penalty, for a person to apply to the director general for a VIC knowing that they have held a VIC, issued by the Director-General of Security, for a total of 28 days or more in the past 12 months.

This new regulation results in officers or employees of ASIO who need to access a security controlled airport for more than 28 days within 12 months being required to get an ASIC. This is consistent with the principles underpinning the VIC scheme.

Item 52 - Subregulation 6.39A(1) (heading)

Item 52 amends the heading for subregulation 6.39A(1) to also reference the Director-General of Security. This amendment is consequential to the amendments in Items 37, 53, 54, 55 and 56.

Items 53, 54, 55 and 56 - Subregulations 6.39A(1) and (3), Paragraph 6.39A(4)(b) and Subregulations 6.39A(7) and (7A)

Items 53-56 amend regulation 6.39A as a consequence of the amendment in Item 37.

The purpose of these amendments is to give the Director-General of Security the same ability to request approval to issue VICs in a form other than that set out in regulation 6.39 as the Comptroller-General of Security.

Item 58 - Regulation 6.42F (after paragraph (d) of the definition of issuer)

Item 58 amends regulation 6.42F to add a new paragraph (da).  This new paragraph provides that, for the purpose of Subdivision 6.5.5 of the ATS Regulations, for a VIC issued by the Director-General of Security, issuer means the Director General of Security. This amendment is consequential to the amendment in Item 37.

Item 59 - Subparagraph 6.45(3)(b)(iii)

Item 59 amends subparagraph 6.45(3)(b)(iii) to omit "holder" and substitute "holder; or".  This item is consequential to the amendment in Item 60.

Item 60 - At the end of subregulation 6.45(3)

Item 60 amends subregulation 6.45(3) to add a new paragraph setting out the circumstances in which a VIC holder does not need to return a VIC to a VIC issuer in 7 days.  The new paragraph applies to VICs issued by the Director-General of Security, and is consequential to the amendment in Item 37. 

Item 61 - Subregulation 6.55(1) (note)

Item 61 amends the note at the end of subregulation 6.55(1) to reflect the amendment in Item 4.

Item 62 - At the end of Part 7

Item 62 amends Part 7 of the Regulations to add new regulations 7.13, 7.14 and 7.15.

The purpose of this amendment is to enhance consistency between the ATS Regulations and the MTOFS Regulations in relation to infringement notices.

Subregulation 7.13(1) stipulates that various types of certificates, signed on behalf of the Secretary, are evidence of the facts stated in them.  These certificates may be used in prosecutions for offences in relation to which an infringement notice has been issued.  Each of the following certificates may be issued:

(a)    a certificate stating that:

i.        the infringement notice was served on the alleged offender; and

ii.      the infringement notice penalty has not been paid in accordance with Part 7 of the ATS Regulations;

(b)   a certificate stating that the notice was withdrawn on a day specified in the certificate;

(c)    a certificate stating that:

i.        a further period was refused for payment of the infringement notice penalty; and

ii.      the infringement notice penalty has not been paid in accordance with Part 7 of the ATS Regulations;

(d)   a certificate stating that:

i.        the further time mentioned in the certificate for payment of the infringement notice penalty was granted; and

ii.      the infringement notice penalty was not paid in accordance with the notice or within further time.

Subregulation 7.13(2) stipulates that, if a certificate purports to be signed by or on behalf of the Secretary, then it will be presumed to be so signed, unless the contrary is proved.

Regulation 7.14 stipulates that where a person makes an admission in an application for withdrawal of an infringement notice (under regulation 7.10), that admission is inadmissible in a prosecution unless the person introduces the application into evidence.

Regulation 7.15 stipulates that, where a person is convicted after failing to pay an infringement notice penalty, a court must not take into account the failure to pay the infringement notice penalty in determining the penalty to be imposed.

Item 63 - After subregulation 9.01(1)

Item 63 inserts a new subregulation 9.01(1A) which exempts aviation security inspectors (ASIs), who are lawfully carrying out their duties or responsibilities as ASIs, from the offence provided in regulation 9.01(1).

Regulation 9.01 provides that it is an offence to engage in conduct that a reasonable person could interpret as a threat to commit an act of unlawful interference with aviation.

An important part of ensuring that measures and procedures implemented under the ATS Act and Regulations meet the necessary security outcomes and comply with the legislative framework, involves testing security systems. An ASI who is lawfully carrying out such a test may, inadvertently, be accused of engaging in conduct that would be considered an offence under subregulation 9.01(1). This amendment provides that, where the conduct in question was engaged in by an ASI lawfully carrying out their duties or responsibilities, subregulation 9.01(1) would not apply.

Item 64 - In the appropriate position in Part 10

Item 64 inserts new Division 13. 

Division 13 - Amendments made by the Transport Security Legislation Amendment Regulations (No. 1) 2019

Regulation 10.34 provides that the amendments made by this instrument apply in relation to the approval of a TSP, or of proposed alterations of a TSP, under sections 19, 21 or 23A of the ATS Act on or after 1 July 2019.

The regulation provides that this applies whether the TSP is given to the Secretary under the ATS Act before, on or after 1 July 2019 or whether the request under section 22 or 23A of the ATS Act relating to the TSP is made before, on or after 1 July 2019. 

Maritime Transport and Offshore Facilities Security Regulations 2003

Item 65 - Subregulation 1.03(1) (paragraph (a) of the definition of contact details)

Item 65 removes the reference to a "fax number" from paragraph (a) of the definition of contact details in subregulation 1.03(1)(a).  The purpose of this amendment is to remove the requirement for a person to provide a fax number as part of their contact details.

Technological developments mean that facsimile machines are no longer relied on for communication purposes between Government and industry in relation to matters under the MTOFS Regulations. The MTOFS Regulations still require persons to provide an email address, fixed line telephone number and mobile telephone number.

Item 66 - Subregulation 1.03(1) (paragraph (c) of the definition of contact details)

Item 66 removes the reference to a "fax number" from paragraph (c) of the definition of contact details in subregulation 1.03(1).  The purpose of this amendment is to remove the requirement for an offshore facility security officer (OFSO) or an offshore service provider security officer (OSPSO) to provide a fax number as part of their contact details.

Technological developments mean that facsimile machines are no longer relied on for communication purposes between Government and industry in relation to matters under the MTOFS Regulations. The MTOFS Regulations still require OFSOs and OSPOSOs to provide a single 24-hour fixed line and mobile telephone number. 

This amendment also brings the contact details for OFSOs and OSPOSOs in line with existing requirements for company security officers (CSOs), ship security officers (SSOs), port security officers (PSOs) and port facility security officers (PFSOs).

Item 67 - Subregulation 1.03(1) (definition of port of call)

Item 67 repeals the definition of port of call set out in regulation 1.03(1). Where used in the MTOFS Regulations, the term should have its ordinary meaning.

Item 68 - Subregulation 1.03(1) (definition of security plan audit)

Item 68 amends the definition of security plan audit set out in subregulation 1.03(1).  The purpose of this amendment is to clarify the purpose of a security plan audit, and that it should be an 'audit' in the ordinary sense of the word. 

This amendment also addresses a drafting error: the current definition of security plan audit does not reference offshore security plans.  However, regulation 5A.10 clearly requires offshore security plans to have the same regulatory requirements for security plan reviews and audits as maritime security plans and ship security plans.  This amendment adds a specific reference to offshore security plans which was inadvertently overlooked when regulation 5A.10 was inserted into the MTOFS Regulations.

Item 69 - Subregulation 1.03(1) (definition of security plan review)

Item 69 amends the definition of security plan review set out in subregulation 1.03(1).  The purpose of this amendment is to clarify the purpose of a security plan review. 

This amendment also addresses a drafting error: the current definition of security plan review does not reference offshore security plans.  However, regulation 5A.10 clearly requires offshore security plans to have the same regulatory requirements for security plan reviews and audits as maritime security plans and ship security plans.  This amendment adds a specific reference to offshore security plans which was inadvertently overlooked when regulation 5A.10 was inserted into the MTOFS Regulations.

Item 70 - Subregulation 1.50(2)

Item 70 amends subregulation 1.50(2) to insert the word "facility" after the word "offshore". "Offshore facility security incident" is a defined term in the MTOFS Act.  The purpose of this amendment is to standardise language used across the MTOFS Act and Regulations.

Item 71 - Paragraph 1.55(1)(n)

Item 71 amends paragraph 1.55(1)(n) by omitting the phrase "by internal auditors".  This amendment is consequential to Items 74, 78 and 82, which removes references to internal and external auditors.

Item 72 - Paragraph 2.25(2)(c)

Item 72 amends paragraph 2.25(2)(c) by omitting the word "facsimile" and replacing it with "fax". The purpose of this amendment is to standardise language used across the MTOFS Act and Regulations.

Item 73 - Paragraph 2.35(1)(c)

Item 73 amends paragraph 2.35(1)(c) by omitting the word "facsimile" and replacing it with "fax". The purpose of this amendment is to standardise language used across the MTOFS Act and Regulations.

Item 74 - Paragraph 3.10(a)

Item 74 amends paragraph 3.10(a) by removing the reference to audits of maritime security plans being conducted "by internal and external auditors". References to both internal and external auditors within the MTOFS Regulations are confusing and unnecessary as all auditors are expected to be independent from the activities being audited. 

Item 75 - Regulation 4.85 (heading)

Item 75 amends the heading of regulation 4.85 to insert the word "facility" after the word "offshore”. "Offshore facility security incident" is a defined term in the MTOFS Act. The purpose of this amendment is to standardise language used across the MTOFS Act and Regulations.

Item 76 - Paragraph 4.85(a)

Item 76 amends paragraph 4.85(a) to insert the word "facility" after the word "offshore". "Offshore facility security incident" is a defined term in the MTOFS Act. The purpose of this amendment is to standardise language used across the MTOFS Act and Regulations.

Item 77 - Regulation 4.90 (note)

Item 77 amends regulation 4.90 to remove the note at the end of the regulation.  The note is not accurate, and may cause unnecessary confusion.

Item 78 - Paragraph 4.105(a)

Item 78 amends paragraph 4.105(a) by removing the reference to audits of ship security plans being conducted "by internal and external auditors". References to both internal and external auditors within the MTOFS Regulations are confusing and unnecessary as all auditors are expected to be independent from the activities being audited. 

Item 79 - Subparagraph 4.120(4)(f)(vi)

Item 79 amends subparagraph 4.120(4)(f)(vi) to remove the sub-subparagraphs, consistent with modern drafting practice.  

Item 80 - Subparagraph 4.150(4)(f)(vi)

Item 80 amends subparagraph 4.150(4)(f)(vi) to remove the sub-subparagraphs, consistent with modern drafting practice. 

Item 81 - Paragraph 5.25(c)

Item 81 amends paragraph 5.25(c) by omitting the word "facsimile" and replacing it with "fax". The purpose of this amendment is to standardise language used across the MTOFS Act and Regulations.

Item 82 - Paragraph 5A.10(a)

Item 82 amends paragraph 5A.10(a) by removing the reference to audits of offshore facility security plans being conducted "by internal and external auditors". References to both internal and external auditors within the MTOFS Regulations are confusing and unnecessary as all auditors are expected to be independent from the activities being audited.    

Item 83 - Paragraph 5A.10(b)

Item 83 amends paragraph 5A.10(b) to insert the word "facility" after the word "offshore".  "Offshore facility security incident" is a defined term in the MTOFS Act. The purpose of this amendment is to standardise language used across the MTOFS Act and Regulations.

Item 84 - Paragraph 5A.60(1)(m)

Item 84 amends paragraph 5A.60(1)(m) to insert the word "ship" before the words "security alert". The purpose of this amendment is to standardise the language used across the MTOFS Act and Regulations.

Item 85 - Subregulation 6.07B(1) (paragraph (a) of the definition of Category A identification document)

Item 85 amends the definition under 6.07B(1)(a) of Category A identification document. The new definition provides that a Category A identification document for a person who was born in Australia is either the person's Australian birth certificate, or a notice given to the person under section 37 of the Australian Citizenship Act 2007.

Category A identification documents must be provided to an issuing body as part of an application by an individual by a person applying for a maritime security identification card (MSIC). At present, a person born in Australia must provide the person's Australian birth certificate. For various reasons, including in relation to the registration of birth of indigenous citizens or the registration of births in overseas diplomatic missions, a person legally born in Australia may not always hold such a document. The amendment to subregulation 6.01(1) enables those people to provide a notice given to them under section 37 of the Australian Citizenship Act 2007 instead.

Item 86 - Subparagraph 6.08C(1)(c)(i)

Item 86 amends subparagraph 6.08C(1)(c)(i) to add a reference to a notice given to a person under section 37 of the Australian Citizenship Act 2007. This amendment is consequential to the amendment in Item 85.

Item 87 - Regulation 7.39

Item 87 provides for new numbering of the paragraphs in regulation 7.39. Item 84 inserts "(1)" before "In this". This amendment is consequential to the introduction of the subregulation 7.39(2) in Item 88.

Item 88 - At the end of regulation 7.39

Item 88 adds new subregulation (2) to regulation 7.39 to clarify the jurisdiction in which a licensed security guard was taken to be working for the purpose of meeting their licensing requirements under the MTOFS Regulations if the licensed security guard was working outside the jurisdiction of any Australian State or Territory.

The purpose of this amendment is to provide a clear and consistent standard for maritime industry participants whose operations take them outside the jurisdictional limits of a particular Australian State or Territory, but not outside the jurisdiction of the MTOFS Act.

A licensed security guard working on a regulated Australian ship outside the territorial jurisdiction of an Australian State or Territory must hold a security guard licence issued or recognised by the State or Territory of the ship's home port (within the meaning of the Shipping Regulations 1981).

A licensed security guard working on a regulated offshore facility outside the territorial jurisdiction of an Australian State or Territory must hold a security guard licence issued or recognised by the State or Territory closest to the place where the offshore facility is located.

Item 89 - Regulation 8.50

Item 89 repeals the existing regulation 8.50 and replaces it with a new provision which meets modern drafting standards.

Subregulation 8.50(1) provides the training and qualification requirement for maritime security guards. Subregulation 8.50(2) clarifies the jurisdiction in which a maritime security guard was taken to be working for the purpose of meeting their licensing requirements under the MTOFS Regulations if the maritime security guard was working outside the jurisdiction of any Australian State or Territory.

A maritime security guard working on a regulated Australian ship outside the territorial jurisdiction of an Australian State or Territory must hold a security guard licence issued or recognised by the State or Territory of the ship's home port (within the meaning of the Shipping Regulations 1981).

A maritime security guard working on a regulated offshore facility outside the territorial jurisdiction of an Australian State or Territory must hold a security guard licence issued or recognised by the State or Territory closest to the place where the offshore facility is located.

Item 90 - Subregulation 11.70(1)

Item 90 corrects an error in drafting whereby a certificate of evidence may only be signed on behalf of the Secretary.  The amendment to subregulation 11.70(1) authorises the Secretary to sign such a statement by replacing "signed on behalf" with "signed by or on behalf".

Item 91 - In the appropriate position in Schedule 2

Item 91 inserts new Part 8. 

Part 8 - Amendments made by the Transport Security Legislation Amendment Regulations (No. 1) 2019

Regulation 109 provides that the amendments to regulation 8.5, as substituted by Item 96 of this instrument, apply in relation to training and qualifications requirements for maritime security guards on and after the day that is 12 months after the day that Schedule commenced.