Bills Digest no. 178 2004–05
Maritime Transport Security Amendment Bill
2005
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Maritime Transport Security Amendment Bill
2005
Date Introduced: 25 May 2005
House: House of
Representatives
Portfolio: Department of Transport and Regional Services
Commencement: Some of the Bill commences on, or the day after,
Royal Assent. The remainder commences on proclamation, or failing
that, six months after Royal assent.
There are two main purposes to
the Maritime Transport Security Amendment Bill 2005 (the Bill).
These are:
- to extend the existing legislative maritime security framework
applying to specified ports and shipping to offshore oil and gas
facilities, and
- to facilitate the introduction of a maritime security
identification card system for persons who have unmonitored access
to maritime and offshore security zones. The system, presumably
similar to that currently applying to the aviation industry, will
actually be established by regulations.
In December 2002, Australia and other members of the Conference
of Contracting Governments to the International Convention for the
Safety of Life at Sea, 1974 ( the SOLAS Convention ) agreed to
significant amendments to the SOLAS Convention. Amongst other
things, the amendments incorporated an entirely new agreement, the
International Ship and Port Facility Security Code ( the ISPS Code
). In part, the ISPS Code was intended to provide a standardised
international framework for security-related risk evaluation and
management in the maritime sector.
The ISPS Code was a direct reaction to increased international
terrorism concerns in the wake of the attacks in New York on 11
September 2001. The Code was implemented by Australia through the
Maritime Transport Security Act 2003 (the MTSA), which
came into effect on 1 July 2004. One of main features of the MTSA
was the requirement to have security plans applying to various port
facilities and shipping. More detail is available from the relevant
Bills
Digest to the MTSA.
On 20 July 2004, the Prime Minister announced
a number of policy and funding initiatives with respect to maritime
security. The intention to introduce the maritime security
identification card (MSIC) system was among the matters announced.
The Prime Minister also said the government would review security
arrangements for offshore oil and gas facilities. That review was
completed by a Commonwealth interagency group called the Taskforce
on Offshore Maritime Security in November 2004. No public version
of the Taskforce s review has been released. However, on 15
December 2004, the Prime Minister announced
a number of measures stemming from the review process. Of relevance
to the current Bill, the Prime Minister stated that:
The direct protection of each offshore platform
through the provision of appropriate on-site security measures is
an industry responsibility. It represents the final element in the
Government s integrated approach to enhanced offshore maritime
security. To assist industry, the Maritime Transport Security
Act 2003 (MTSA) will be extended to apply to offshore oil and
gas facilities to provide the necessary advice and oversight in the
implementation of any necessary additional security measures.
This task is being coordinated by the Department
of Transport and Regional Services and will be completed for formal
implementation by 30 September 2005. The maritime security plans
that are to be developed in accordance with the MTSA will have
regard for the special nature and location of these offshore
facilities, the practical needs of operators and the need to
complement, rather than duplicate, existing risk management and
safety plans.
As mentioned above, the Bill extends the MTSA framework
currently applying to specified ports and shipping to offshore oil
and gas facilities. In most cases the types of obligations that
exist under the MTSA, such as the requirements to have and
implement a relevant security plan, will apply to offshore
facilities. Law enforcement systems, offences and relevant
penalties which range up to $110,000 for corporations - will also
be in line with those currently applying under the MTSA. However,
given that certain types of vessels such as floating product,
storage and offtake ships (FPSOs), may also fall with the
definition of offshore facilities, and international law places
limitations regarding coastal State jurisdiction over foreign
shipping, the Bill incorporates some restrictions on the
application of offence and enforcement provisions to foreign
vessels.
It is worth noting that the SOLAS Convention amendments and the
ISPS Code do not appear to directly cover offshore oil and gas
facilities. From this perspective, there is seems no imperative
under international law to extend the MTSA to offshore facilities.
However, the Explanatory Memorandum notes that the energy sectors
has been a target for terrorist attacks by Al-Qa ida and associated
groups.(1) According to the Explanatory Memorandum, the
United States (US) has also legislated the requirement for maritime
security plans to apply to large offshore facilities under the US
Maritime Transportation Security Act 2003.(2)
The US legislation only applies to offshore facilities that exceed
certain production or operational characteristics. However, under
new Part 5A of the Australian Bill, operators of
all offshore facilities, as defined in new section
17A, must have offshore security plans.
There will be two main industry groups affected by the Bill. The
first are the operators of offshore facilities. The second will be
the various service providers for these facilities, notably
helicopter charter operators and ship-based equipment / stores
supply services.
In terms of the numbers of offshore facilities likely to be
subject to the Bill s provisions, and the obligations of the
facility operators, the Explanatory Memorandum
states:(3)
[The Department of Transport and Regional
Services, DOTARS] has estimated that there are currently up to 55
offshore oil and gas facilities [that would be subject to the MTSA]
which are operated by approximately 12 offshore facility operators.
The offshore facilities vary from conventional steel fixed
platforms and concrete gravity platforms through to mini platforms,
mono-tower, mono-pods and mini-pods, Floating Storage and Offtake
units (FSOs) and Floating Production Storage and Offtake units
(FPSOs)...
In summary, the following minimum
requirements would need to be met by offshore facility operators
under the Bill:
a) Undertake a risk assessment that takes into
account the types of interfaces with ships and other vessels,
loading of cargo and stores, personnel and visitor movements, area
of operation, and other issues which may be pertinent in
determining not only the risks to the offshore facility but also to
security regulated ships that visit the facility.
b) Based on the risk assessment, develop an
offshore security plan for submission to the Secretary of DOTARS
for approval. The plan must demonstrate how the relevant
legislative and offshore facility-specific regulatory requirements
will be met, including a capacity to monitor and control access,
monitor the activities of cargo and people and ensure an adequate
security communications capability.
c) The offshore facility operator would need to
nominate a facility security officer with appropriate training,
responsible for implementing and monitoring the offshore security
plan. This officer will have a key role in enabling communication
between the offshore facility operator and relevant
authorities.
d) The offshore facility operator would be
required to implement additional security measures as outlined in
the offshore security plan at security level 2, and implement the
required security measures at security level 3.
For service providers, the Explanatory Memorandum
comments:(4)
There are approximately six helicopter and eight
supply vessel service providers operating in Australia. Service
providers frequently share facilities and provide services for a
number of operators in the same area
The Bill provides flexibility for offshore
security plans to cover the security arrangements for interfaces or
interactions with service providers (i.e. contractors of specialist
offshore-related services or port-related services). However, some
service providers may be required to provide their own offshore
security plan, to be approved by the Secretary of DOTARS, and
implemented by 30 September 2005.
It is possible that other groups or persons that use ships in
the vicinity of offshore facilities may be affected by the Bill,
particularly in respect of any security zones potentially
established around the facilities. However, various safety zones
already apply under existing legislation, so on the face of it, any
additional impact should not be particularly great.
In terms of consultation with affected groups, the Explanatory
Memorandum states that during 2004 the Offshore Taskforce consulted
with the Australian Petroleum Production and Exploration
Association (APPEA) and companies involved in the offshore oil and
gas industry . Since then, DOTARS has held further discussions with
representatives from the offshore oil and gas industry, Australian
Government departments and agencies, and the State and Northern
Territory governments and their relevant authorities . A workshop
on the exposure draft of the Bill was held on 20 April 2005, with
various groups attending.(5)
In the initial Parliamentary debate, concern was expressed by
the Australian Labor Party (ALP) at the alleged lack of union
involvement in consultation over the Bill:(6)
I am concerned that the union movement was not
included as part of the consultation process. Instead, the
government chose to consult with industry representatives without
including any of the unions that cover the offshore industry. I
make this point: this approach by the government is very
short-sighted. In its zeal to demolish the union movement,
particularly the maritime unions, the government fails to recognise
that unions are in fact a security asset. Unions want to get the
regime right because they want to make sure that the security of
their workers at work is second to none, so they are entitled to be
properly consulted.
The only mention of consultation with unions in the Explanatory
Memorandum was that representatives attended the 20 April workshop
mentioned above.
In terms of the cost to industry in implementing obligations
under the Bill, the Explanatory Memorandum
comments:(7)
Consistent with the Australian Government s policy
that security is a cost of doing business, the operators of
offshore facilities will be required to pay for additional security
measures in accordance with their offshore security plans. This
includes costs associated with the security assessment and
development of the security plan, implementation of the security
plan, training of security officers and other staff and crew,
maintaining security plans (periodic reviews and updates) and
conducting internal audits and security exercises. As is the case
with port and port facility operators, the costs of these measures
will vary according to the nature of the facility, number of
personnel, the identified security risks, as well the extent of
existing security/safety measures .
It has been difficult to collect precise estimates
of the costs that facility operators will have to meet in order to
write plans and then implement those measures. There is anecdotal
evidence that some members of the industry estimate costs to be
below $50,000 for the development of plans. These same operators
make the point that they can not reliably estimate the costs of an
enhanced security regime: it will depend on the preventive
strategies that are put in place. These decisions have not yet been
made by all of industry. However, they note that where possible
some measures will be incorporated in existing work procedures
In general, the cost impact on off-shore providers
is likely to be negligible given that helicopter service providers
and some supply base operators are regulated by other transport
security legislation and are required to have security plans in
place. Helicopter services are regulated by the Aviation
Transport Security Act 2004. Some supply-base operators are
regulated by the Maritime Transport Security Act 2003.
Under the MTSA, access to what are called maritime security
zones (MSZ) which may be areas in ports, areas surrounding ships,
or areas on ships are generally managed by each individual port or
ship operators. However, there is no common legislative requirement
on how these operators should ensure that only properly authorised
persons can access these MSZs. By comparison, under the Aviation
Transport Security Regulations 2005, persons accessing airside
security zones or other secure areas must have and wear aviation
security identification cards (ASICs). These cards are issued after
the applicant passes a series of background checks. It is worth
noting that recent press reports on the alleged activities of some
airport employees (who would have ASICs) suggest that current ASIC
procedures are no panacea in terms of preventing criminal behaviour
in secure areas.
The framework for issuing MSICs will be set out in regulations
that have yet to be issued. Background checking is due to start on
1 October 2005, so the regulations will have to be place by them.
The Bill itself allows the bodies that will be responsible for
issuing MSICs to recover the costs involved in administering the
process, including the background checks. These costs would be
recovered as part of the application fee for a MSIC.
The issue of what sort of criminal record might prevent a person
obtaining a MSIC was raised by the ALP in the initial Parliamentary
debates on the Bill:(8)
It is the issue of criminal background checking
that needs to be carefully managed. Let us be very careful in
respect of this issue, because we can ruin many people s
opportunities and lives. If a person has made a mistake and paid
their price to society, they should not be prevented from
re-establishing themselves in the community. We have always prided
ourselves as a nation on giving these people a second chance in
life. They must have access to meaningful work, and the waterfront,
the offshore industry and the shipping industry should continue to
provide employment opportunities for these people. I take the view
that criminal background checking by the AFP must be restricted to
criminal convictions which directly relate to terrorist
activities.
By way of possible comparison, the Aviation Transport Security
Regulations 2005 would normally disqualify a person from holding an
ASIC if they had been convicted and imprisoned for an offence
involving, for example, dishonesty. However, in such cases the
DOTARS Secretary may authorise an ASIC for that person. The
effectiveness of the ASIC system will likely be a major element of
the Government s recently announced review of airport security.
(9)
More details on the proposed MSIC system can be accessed from a
recent DOTARS
publication. However, readers may be interested in the
following excerpt from the publication:
What is the role of the Australian
Government in the implementation phase?
During the implementation phase the Australian
Government will determine if an MSIC applicant is eligible for an
MSIC on the basis of the outcomes of the criminal history and ASIO
check conducted on the applicant. The Australian Government will
advise the MSIC Issuing Bodies if they can or cannot issue an MSIC.
If an MSIC cannot be issued the applicant will also be
notified.
What happens if I am unsuccessful in
obtaining an MSIC?
The Australian Government will give you a written
statement of reasons why you are not eligible to hold an MSIC, you
will also receive advice on your appeal rights.
If you are unsuccessful in your appeal or chose
not to appeal, you will need to be escorted or continuously
monitored by an MSIC holder while in a Maritime Security Zone. It
is a matter for your employer if this will affect your employment
status.
Schedule 1 Part 1
Item 1 amends the name of the MTSA to the
Maritime Transport and Offshore Facilities Security Act
2003. However, for convenience, the amended Act will still be
referred to as the MTSA.
Item 14 provides that the Criminal Code Act
1995 extended geographical jurisdiction Category D applies to
a list of security regulated offshore facility offences. Category D
is the most expansive of the 4 categories of extended jurisdiction
and allows for an offence to occur irrespective of whether or not
(i) the conduct constituting the alleged offence occurs in
Australia or (ii) the result of the conduct constituting the
alleged offence occurs in Australia.
Australia is defined in the Acts Interpretation Act
1901 as extending only as far out as the seaward edge of
Australia s 12 nautical mile territorial sea. Offshore facilities,
and the offshore security zones in and around them, may well be
sited outside these waters. Also, persons or corporations
potentially committing offences under the Bill may not be
Australian residents or citizens, be incorporated in Australia or
have some other connection with Australia. This is why category D
of extended geographical jurisdiction has been employed for many of
offences created by the Bill.
Item 60 inserts new sections
17A-17E.
New section 17A provides the key definition of
offshore facility . It includes any structure, vessel and
associated equipment that is used in the extraction of petroleum
from the seabed or its subsoil where the vessel etc is located
landward of the outer edges of Australia s continental shelf.
Storage vessels are offshore facilities, but petroleum tankers and
tugs and service/supply vessels are not. Pipelines and mobile
drilling units are not offshore facilities.
New section 17B allows the DOTARS Secretary to
designate an offshore facility, or group of such facilities, as a
security regulated offshore facility. They may also designate a
person as the offshore facility operator for a security regulated
offshore facility: new section 17C. Before doing
this, the secretary must take into account the views of the person
or persons responsible for managing the facility. Being designated
allows, for example, offshore security zones to be established in
and around the facility.
New sections 17D-E impose limitations on the
offence and law enforcement provisions of the MTSA (as amended by
the Bill) to foreign ships. It ensures that the MTSA reflects
international law limitations regarding jurisdiction over foreign
shipping, particularly when operating outside of Australian
territorial waters.
Existing Part 2 of the MTSA deals with what are termed maritime
security levels . These levels apply to ports or ships and are
designed to reflect the risk of a security incident occurring are
the relevant port etc. Except for foreign vessels, the relevant
security level operating with respect to any port or vessel will be
set and/or amended by the DOTARS Secretary. At a heightened degree
of risk, a level 2 or 3 will apply, with this triggering whatever
increased security measures are set out in the relevant maritime or
ship security plan. Background on maritime security levels and
plans are set out in the main provisions section of the MTSA
Bills
Digest, pp. 9-16. Most of the items 63-122
extend these existing Part 2 provisions to security regulated
offshore facilities and offshore industry participants. For
example, item 81 provides that, where the
Secretary amends the security level applying to a facility, the
facility operator must as soon as practicable advise a prescribed
range of persons of the change.
The Explanatory Memorandum comments in relation to item
81:(10)
Communicating the advice about the security level
to be implemented will be critical to ensuring that all relevant
offshore industry participants operating in the vicinity of the
facility have implemented measures commensurate with the security
level, as outlined in each participant s security plan. The level
of protection implemented by the measures will reflect the risks
faced by each offshore industry participant as outlined in each
participant s plan. If one or more participants are not notified of
the change in security level, the facility may be inadequately
protected.
Existing section 33 of the MTSA enables the DOTARS Secretary to
require that additional security measures be undertaken or complied
with. Such security directions can only be given only if he or she
has reason to believe that an unlawful interference with maritime
transport is probable or imminent and that specific measures are
appropriate to prevent the unlawful interference from occurring.
Item 85 enables section 33 security directions to
be given with respect of offshore facilities.
Item 105 inserts new Parts 5A
5C.
New Part 5A - Offshore security plans - is
modelled on existing Part 3 - Maritime Security Plans.
Offshore facility operators, and other participants prescribed
in regulations, are required to have an offshore security plan:
new section 100B. The content of such plans is set
out in new sections 100G-H. Key elements include:
a security assessment for the participant s operation and the
detailing of what security activities or measures are to be
undertaken or implemented for maritime security levels 1, 2 and
3.
An operator or participant, who is required to have a maritime
security plan but who does not have one in force, commits an
offence under new section 100C. The maximum
penalty is 200 penalty units ($22,000) or five times that for a
corporation. Similar penalties apply if a participant has a plan in
force but fails to comply with it: new section
100D. The offences under new sections
100C and 100D are strict
liability offences, but they do not apply if the participant has a
reasonable excuse.
New sections 100J-T set out how offshore
security plans are to be approved, varied and cancelled. If the
DOTARS Secretary is satisfied that the plan adequately addresses
the requirements in new sections 100G-I, he or she
must approve the plan. Otherwise he or she must refuse
approval, giving reasons for doing so: new section
100K. In making a decision, the Secretary may take account
of existing circumstances as they relate to maritime transport
security : new subsection 100K(3). New
section 100L provides that if the Secretary approves a
plan, the plan comes into force at the time specified in the notice
of approval. If the Secretary is no longer satisfied that an
approved plan adequately addresses the requirements of new
sections 100G-I, the Secretary may direct the participant
in writing to vary the plan: new subsection
100M(1). If the participate fails to vary the plan, the
Secretary must cancel the approval of the plan:
new subsection 100M(4).
A participant may revise an offshore security plan (new
section 100N), but the revised plan is still subject to
approval by the Secretary under new section
100K.
Maritime security plans must be revised every 5 years:
new section 100P.
If the Secretary is not satisfied that an existing plan is
adequate, and if he or she is satisfied that it is inappropriate
for the plan to be varied or revised, the Secretary must cancel the
plan: new section 100Q. The Bill provides no
guidance as to when variation or revision would be
inappropriate.
Under new section 100R, cancellation of the
plan can also occur through the accumulation of a certain number of
demerit points. (For an explanation of the demerit point system,
see the discussion in the MTSA Bills
Digest in relation to sections 198-200).
New Part 5B ISSC obligations for Australian ships
regulated as an offshore facility- is modelled on existing
Divisions 6-7 of Part 4.
New sections 100V-ZD cover International Ship
Security Certificates (ISSCs). ISSCs are a key part of the 2002
amendments to the SOLAS Convention. As the name implies, an ISSC
certifies that a ship s security plan and associated security
equipment comply with the relevant parts of chapter XI-2 of the
amended SOLAS Convention and the ISPS Code.
An Australian ship that is regulated as an offshore facility
must have an ISSC (or interim ISSC in force for the ship):
new section 100V. Otherwise, the relevant facility
operator commits an offence with a penalty of 200 penalty units
($22,000) or five times that for a company: new section
100W. It is a strict liability offence, but does not apply
if the operator has a reasonable excuse.
New section 100Y provides that the DOTARS
Secretary must give a facility operator an ISSC if the operator has
applied for an ISSC, there is an offshore security plan in force
for the ship, and the ship is ISSC verified. New section
100Z provides that a ship is ISSC verified if a maritime
security inspector has inspected the ship, the inspector has
verified that the ship meets the requirements determined in writing
by the Secretary (including the time in which the ship must be
inspected). In setting these requirements, the Secretary must have
regard to the obligations set out in the ISPS Code. An ISSC lasts
for 5 years unless the Secretary cancels it, the facility operator
is no longer the operator for the ship, the security plan has
ceased to be in force or the ship is no longer ISSC verified:
new sections 100ZA-ZB.
Where the master of an Australian ship makes a false or
misleading statement in connection with whether an ISSC or interim
ISSC is in force for the ship, he or she commits an offence under
new section 100ZD. The offence
carries a penalty of 50 penalty units ($5,500) and involves a
complicated system of strict liability and defensible
provisions.
New Section 100ZE enables the DOTARS Secretary
to delegate any of their new Part 5B powers and
functions to a person who both satisfies criteria to be prescribed
in the regulations and is engaged by a recognised security
organisation . The term recognised security organisation is not
defined in the Bill or MTSA (except insofar as existing subsection
88(2) provides that the Secretary may determine in
writing that an organisation is a recognised security
organisation ). The delegate must comply with any directions
of the Secretary.
New Part 5C Foreign Ships regulated as offshore
facilities is largely modelled on existing Part 5.
New section 100ZH requires that the operator of
a foreign ship regulated as an offshore facility must have a valid
ISSC or an approved ISSC equivalent, for the ship and ensure that
the ship is carrying the required ship security records . The term
required ship security records is not defined in the Bill, but it
is consistent with Chapter XI-2/9.2 of the SOLAS Convention (being
one of the recent amendments) and section 10 of the ISPS Code.
New Section 100ZI requires the master of a
foreign ship regulated as an offshore facility to provide certain
information if it is Australian waters or intends to proceed to an
Australian port. Such pre-arrival information is already provided
for in regulations.
New section 100ZJ provides that the master of
such a ship must also allow a maritime security inspector to board
the ship for inspection. (The powers of the inspector are set out
in existing Division 2 of Part 8). Foreign ships regulated as
offshore facilities must also comply with any security directions
given to them by the DOTARS Secretary: new section
100ZK.
New section 100ZL provides that if the master
(or operator) of a foreign ship regulated as a offshore facility is
notified by the Secretary or a port operator that maritime security
level 2 or 3 is in force for the ship, or is given a security
direction or a control direction, and fails to acknowledge the
notification or direction to the Secretary, the master (or ship
operator) commits an offence. In the case of a master, the penalty
is 25 penalty units ($2,750) or a facility operator, 100 penalty
units ($11,000). They are strict liability offences, with no
defence of reasonable excuse.
New section 100ZM enables the DOTARS Secretary
to issue a direction (called a control direction) to the ship
operator or master of a foreign ship regulated as an offshore
facility to take, or refrain from taking, specified action.
Crucially, new subsection 100ZM(3) states that the
Secretary must not give a control direction unless
it is necessary to ensure compliance with the obligations imposed
on foreign ships under new subsections 100ZH-ZL,
or it is direction of the kind that can be given under Chapter XI-2
of the SOLAS Convention or the ISPS code. New subsection
100ZM(4) provides a non-exhaustive list of the actions
that can be the subject of a control direction, including removing
the ship from Australian waters (which seems to be based more on
Article 25(1) of the United Nations Convention on Law of the Sea
(UNCLOS) than any right conferred by the SOLAS Convention). The
direction is of no effect until it appears in writing.
New subsection 100ZN(2) provides that if a
master or operator of a foreign ship regulated as an offshore
facility contravenes a control direction, the Federal Court may
grant an injunction under existing section 197.
Item 122 inserts new Division 5 of Part 6 Offshore
security zones
New Division 5 enables the DOTARS Secretary to
establish offshore security zones within and around an offshore
facility. The purpose of the zones is to subject the relevant areas
to additional security requirements.
Regulations may prescribe different types of offshore security
zones: new subsection 113B(1). New
subsection 113B(2) provides an non-exhaustive list of
purposes for which different types of offshore security zones may
be prescribed. These include limiting contact with security
regulated offshore facilities, providing cleared areas within and
around security regulated offshore facilities, preventing
interference with security regulated offshore facilities, and
preventing interference with people or goods being transported to
and from security regulated offshore facilities. The latter in
particular seems potentially very wide in scope. New
section 113C states that in establishing an offshore
security zone, the DOTARS Secretary must have regard to the purpose
of the zone, and amongst other matters take into account the
physical and operational features of the offshore facility and the
views of the facility operator. The Secretary must also act
consistently with Australia s obligations under international law .
The last requirement is presumably to prevent any restrictions from
violating UNCLOS freedom of navigation principles.
New section 113D 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.
New subsection 113D(3) provides that the
regulations may prescribe penalties for offences against
regulations made under new section 113D but sets
limits on those penalties.
New subsection 113D(4) provides that
regulations may be made to enable recovery of costs and expenses
incurred by any person in issuing a MSIC. New subsection
113D(5) provides that regulations may be made authorising
the use or disclosure of personal information as defined in the
Privacy Act 1988. This is required so the information
relevant to MSIC background checks can be exchanged between
government organisations without breaching the Privacy Act
1988. Similar provisions are contained in Schedule
2 of the Bill those relate to regulations made relating to
port security zones, ship security zones and on-board security
zones.
Items 150-151 insert enforcement provisions by
maritime security inspectors. Under existing Division 2 of Part 8,
such inspectors are appointed by the DOTARS Secretary and must be a
public service employee in DOTARS, a law enforcement officer, or a
person who satisfies criteria prescribed in the regulations. The
powers which a maritime security inspector may exercise (for the
purposes of determining if a person or ship is complying with the
MTSA or investigating a possible contravention) are set out in
existing section 139. They include the powers to board and inspect
a security regulated ship, to inspect and photograph equipment, and
to observe the operating procedures for the ship and discuss those
procedures with a person carrying them out or with another industry
participant. An inspector may inspect, photograph or copy
security-related documents or record on the ship and operate
equipment on the ship for the purposes of gaining access to a
document or record relating to the ship. Item 150
extends those existing powers to security regulated offshore
facilities (as defined in new section 17B).
Items 152-166 extend the existing powers of
other classes of officials law enforcement officers and maritime
security guards to security regulated offshore facilities. These
powers and the various restrictions on them seem consistent with
those existing under the MTSA. Enforcement actions by all classes
of officials covered in Part 8 are subject to the limitations to
certain foreign ships set in new sections
17D-E.
The demerit system operating under Division 6 of Part 11 that
can potentially lead to the cancellation of approval of maritime or
ship security plans is extended to offshore facility plans by
items 208.
Items 1-3 make amendments to the MTSA to the
same effect as those in new subsections
113D(4)-(5). These provide both that regulations may be
made to enable recovery of costs and expenses incurred by any
person in issuing a MSIC and be made authorising the use or
disclosure of personal information as defined Privacy Act
1988.
The general thrust of the Bill has the support of the ALP.
However, the ALP has flagged various concerns about how the new
security regime may affect workers in the offshore oil and gas
industry, particularly with respect to the introduction of the
MSIC. It has foreshadowed that it will seek to have the Bill
referred to an appropriate committee so as to explore these
concerns more fully.
- Explanatory Memorandum, Maritime Transport Security Amendment
Bill 2005, p. 8.
- op. cit., p. 16.
- op. cit., pp. 12-13.
- op. cit., p. 13.
- op. cit., p. 19.
- Mr Martin Ferguson, House of Representatives debates,
1 June 2005, p. 74.
- Explanatory Memorandum, op. cit., p. 15.
- Mr Martin Ferguson, House of Representatives debates,
1 June 2005, p. 75.
- The Hon John Anderson MP,
Securing and Policing Australia's Major Airports , Media
Release, 7 June 2005.
- Explanatory Memorandum, op. cit., p. 45.
Angus Martin
8 June 2005
Bills Digest Service
Information and Research Services
This paper has been prepared to support the work of the
Australian Parliament using information available at the time of
production. The views expressed do not reflect an official position
of the Information and Research Service, nor do they constitute
professional legal opinion.
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ISSN 1328-8091
© Commonwealth of Australia 2005
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