Bills Digest No.
64, 2019–20
PDF version [629KB]
Mary Anne Neilsen
Law and Bills Digest Section
4
December 2019
Contents
History of the Bill
Purpose and structure of the Bill
Background
Committee consideration
Policy position of non-government
parties
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Key issues and provisions
Concluding comments
Date introduced: 23
October 2019
House: House of
Representatives
Portfolio: Home
Affairs
Commencement: The
day after the Act receives Royal Assent.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at December 2019.
There have been two earlier iterations of this Bill. The
first 2016 Bill, the Transport Security Amendment (Serious or Organised Crime)
Bill 2016, was introduced into the 44th Parliament on 11 February 2016.[1]
That Bill passed in the House of Representatives on 16 March 2016 and then
lapsed on prorogation of Parliament.
The second 2016 Bill, the Transport Security Amendment
(Serious or Organised Crime) Bill 2016, was introduced into the 45th Parliament
on 31 August 2016 and was, on introduction, identical to the first 2016 Bill;
however, its commencement provision, second reading speech and the Explanatory
Memorandum were different.[2]
That Bill passed in the House of Representatives on 13 February 2017
and passed with amendments in the Senate on 27 March 2017. Those amendments
were disagreed in the House of Representatives and substituted Government
amendments were passed on 30 March 2017. The Government amendments replaced all
references to ‘serious or organised crime’ with ‘serious crime’, the intention
being that ‘serious crime’ will still encompass ‘organised crime’ that is of a
serious nature. The Supplementary Explanatory Memorandum stated that the
amendments were a response to concerns raised during debate in both Houses that
‘serious or organised crime’, referenced by the Bill as introduced, may allow
the Government to prevent persons with convictions for non-serious crimes from
gaining an aviation or maritime security identification card (Aviation Security
Identification Card (ASIC) or Maritime Security Identification Card (MSIC)).[3]
The second 2016 Bill lapsed on 1 July 2019 on prorogation of
Parliament.
The current Bill, the Transport Security Amendment
(Serious Crime) Bill 2019, is substantially the same as the second 2016 Bill
and incorporates the Government amendments to that Bill that replaced ’serious
or organised crime’ with ‘serious crime’. Note also that while the two 2016
Bills were introduced by the Minister for Infrastructure and Regional Development,
the current Bill was introduced by the Minister for Home Affairs. This reflects
the administrative changes that occurred in 2017, whereby responsibility for
transport security moved to the new Department of Home Affairs.[4]
This Bills Digest replicates much of the relevant material
from the Bills Digest for the second 2016 Bill.[5]
The purpose of the Transport Security Amendment (Serious Crime)
Bill 2019 (the Bill) is to amend the Aviation Transport
Security Act 2004 (ATS Act) and the Maritime Transport
and Offshore Facilities Security Act 2003 (MTOFS Act) to:
- create an additional purpose in the ATS Act and the MTOFS
Act, in relation to access to aviation and maritime areas and zones, to
prevent the use of aviation and maritime transport or offshore facilities in
connection with serious crime
- strengthen the regulatory framework, with harmonised eligibility
criteria for the ASIC and MSIC Schemes
- clarify the legislative basis for undertaking security checking
(including background checking) of ASIC and MSIC applicants and holders
- allow for Regulations to prescribe penalties for offences against
new serious crime requirements that are consistent with existing penalty
provisions across both schemes
- insert an additional severability provision to provide guidance
to a court as to Parliament’s intention and
- make other technical amendments.
The Bill contains one Schedule, making amendments to the ATS
Act and the MTOFS Act. Note, though, that the amendments
substantively prescribe that the details be set by Regulation and these Regulations
will be made at a later time. Regulations will be made by amending the Aviation Transport
Security Regulations 2005 and the Maritime Offshore
Facilities Security Regulations 2005. This use of Regulations was subject
to some criticism in relation to the two 2016 Bills, however, as has also been noted,
this practice is consistent with other operational matters relating to the
issue of an ASIC or a MSIC.[6]
A security card, known as an Aviation Security
Identification Card (ASIC) or a Maritime Security Identification Card (MSIC),
is required by individuals in Australia if they require regular access to
secure areas of Australia’s airports, seaports, Australian flagged ships, and
offshore oil and gas facilities.[7]
An ASIC is required to obtain unescorted
access to the secure areas of security controlled airports that have regular
public transport (RPT) services. An ASIC is valid for up to two years.[8]
Eligible workers include persons involved in the operation of an airport or
aircraft, couriers or suppliers, baggage handlers, passenger screening
officers, and security guards.[9]
A MSIC is required if a person needs to
work unescorted or unmonitored in a maritime security zone. The MSIC scheme
covers waterfront workers, seafarers on Australian regulated ships, customs
brokers and shipping agents, contractors, service providers and maintenance
workers, truck drivers, train operators and anyone who works onboard an
offshore oil or gas facility. An MSIC is valid for up to four years.[10]
Cards are issued by a relevant issuing authority who, in
the case of employees of Commonwealth and state and territory agencies is the
ASIC MSIC Issuing Unit within the Department of Home Affairs. For a card to be
issued, the person also needs to demonstrate an operational need for an ASIC or
MSIC. [11]
Under the AusCheck Act 2007,
AusCheck is responsible for coordinating a background check on the person
applying for the card.[12]
A background check will then include a security assessment by the Australian
Security Intelligence Organisation, a criminal history check by the Australian
Criminal Intelligence Commission and an immigration check (if needed) by the
Department of Home Affairs.[13]
Presently, by way of example, applicants are required to
fulfil the eligibility criteria set out in Division 6 of the Aviation Transport
Security Regulations, which prescribe that they have not been convicted of any
of the following:
|
Item
|
Kind of offence
|
|
1
|
An
offence involving dishonesty
|
|
2
|
An
offence involving violence or a threat of violence
|
|
3
|
An
offence involving intentional damage to property or a threat of damage to
property
|
|
4
|
An
offence constituted by the production, possession, supply, import or export
of a substance that is:
- a narcotic substance within the meaning of the Customs Act 1901; or
- a drug, within the meaning of:
- regulation 10 of the Customs (Prohibited
Exports) Regulations 1958; or
- regulation 5 of the Customs (Prohibited
Imports) Regulations 1956
|
|
5
|
An
offence, of a kind dealt with in Part II of the Crimes Act 1914,
against the Government of:
- the Commonwealth or a State or Territory; or
- a country or part of a country other than Australia[14]
|
|
6
|
An
offence against Part 2 of the Crimes (Aviation) Act 1991
|
|
7
|
An
offence against Part 5.3 of the Criminal Code
|
|
8
|
An
offence constituted by the production, possession, supply, import or export
of explosives or explosive devices
|
Source: Part 6, Division 6.1, 6.01, Aviation Transport
Security Regulations 2005.
The Government proposes in this Bill to
allow Regulations made under the ATS Act and the MTOFS Act
to also prescribe additional criteria intended to prevent the
use of aviation or maritime ports in connection with serious crime. Proposed
section 38AB of the ATS Act (at item 4 of Schedule
1 to the Bill) prescribes that Regulations may, for the
purposes of preventing the use of aviation in connection with serious crime,
prescribe requirements in relation to specified areas and zones. Item 17
of Schedule 1 inserts proposed section 113F into the MTOFS Act
to allow equivalent Regulations to be made in relation to maritime transport or
offshore facilities. The Explanatory Memorandum states that
the new eligibility criteria will introduce new offence categories such as
offences arising from anti-gang or criminal organisation legislation; illegal
importation of goods; interfering with goods under Australian Border Force
control; and foreign incursion and recruitment.[15]
Organised crime is a serious threat to
Australia’s security and prosperity, with estimated costs to the Australian
economy of more than $47 billion per annum.[16]
In his second reading speech to the Bill, the Minister for Home Affairs, Peter
Dutton, stated:
Airports and seaports are transit points for organised
criminals to import weapons, illicit drugs and other harmful goods into
Australia. Trafficking of these illicit goods puts Australia's security and
prosperity, and the welfare of our communities, at great risk.
...
The ASIC and MSIC schemes are essential in ensuring security
within Australia's transport network. Persons who hold an ASIC or MSIC card are
able to access the most secure areas of Australia's airports and seaports...
ASIC and MSIC card holders can abuse their privileged
position for criminal purposes, and card holders are able to assist crime
syndicates by facilitating the transit of illicit goods through our transport
networks and border controls...
The bill will address such criminality at our airports and
seaports by broadening the Aviation Transport Security Act 2004 and the
Maritime Transport and Offshore Facilities Security Act 2003 beyond their
present focus on security to include provisions aimed at addressing crime.
The bill establishes a regulatory framework for introducing
new eligibility criteria to address the existing vulnerability across both
schemes and to ensure that persons convicted of serious offences will be
ineligible to hold an ASIC or MSIC card. In addition, the bill will strengthen
the regulatory framework by harmonising the eligibility criteria under each
scheme. These changes will reduce the ability of criminals to exploit
Australia's aviation and maritime networks for illicit gain.[17]
The reforms in this Bill will not change the framework
under which the eligibility criteria is considered or the process by which
AusCheck conducts a background check. The same application, reporting, and
appeal mechanisms will apply.
The first 2016 Bill was referred to the Senate Rural and
Regional Affairs and Transport Legislation Committee (the Committee) on 25
February 2016. The Committee reported earlier than originally scheduled,
tabling the report out of session on 22 April 2016. The Senate noted its
receipt on 2 May 2016. The Committee’s report is discussed below.
The first 2016 Bill gave effect to the Government’s 2013
election commitment to ‘reduce potential risks associated with criminal
influences at our air and sea ports.’[18]
In June 2016, the Government included the measures in the second 2016 Bill in
its policy to ‘keep illegal guns off our streets and our communities safe’,
committing to:
... strengthen background checking regimes to ensure that
individuals with links to serious and organised crime cannot gain access [to]
our airports, ports, and other Commonwealth sites where security is a concern.[19]
There have been a number of reports focused on the
security of the aviation and maritime industries. Of particular note are three
Joint Committee of Public Accounts and Audit Reports on aviation security in
Australia and the 2005 Wheeler Airport Security and Policing Review,
which led to the establishment of AusCheck.[20]
The Australian National Audit Office Report, The
Management of the Aviation Security Identification Card and Maritime Security
Identification Card Scheme was completed in 2011.[21]
The object of this audit was to assess the effectiveness of the Department of
Infrastructure and Transport and the Attorney-General’s Department’s management
of the ASIC and MSIC schemes.[22]
The audit results focused on governance, reporting and process issues and did
not identify the eligibility criteria for ASIC and MSIC as an area for review
at the time.
The Parliamentary Joint Committee on Law Enforcement’s
(PJCLE) Inquiry into the adequacy of aviation and maritime security measures
to combat serious and organised crime was a lengthy inquiry beginning in
2009.[23]
In its report tabled two years later, the Committee recommended that the
Attorney-General’s Department, in consultation with the Australian Crime
Commission (now the Australian Criminal Intelligence Commission), review the
list of relevant security offences under the ASIC and MSIC scheme to assess
whether any further offences are required in order to effectively extend those
schemes to protect the aviation and maritime sectors against the threat of
infiltration by serious and organised criminal networks.[24]
The Government agreed with this recommendation. The PJCLE also recommended that
the scope of both Acts be widened to include combating serious and organised
crime in addition to terrorist activity and unlawful interference.[25]
The Government noted, and this Bill implements, that recommendation.[26]
The National Ice Taskforce was
established on 8 April 2015 to advise the Government on the impacts
of the drug ‘ice’ (crystal methamphetamine) in
Australia and drive the development of a National Ice Action Strategy.[27] One of the Taskforce’s
priorities was to consider ways to disrupt supply of ice, in a more coordinated
and targeted method. The National Ice Taskforce recommended in December 2015
that there be stronger law enforcement measures to tackle the trafficking of
ice, including toughening background checks made on people seeking ASICs and
MSICs.[28]
Recommendation 24 states:
The Commonwealth Government should continue to protect the
aviation and maritime environments against organised crime by strengthening the
eligibility criteria for holders of Aviation Security Identification Cards and
Maritime Security Identification Cards; and establishing a legal mechanism to
enable compelling criminal intelligence to be used in determining suitability
of workers to hold such a card.[29]
The Bill has been referred to the Senate Legal
and Constitutional Affairs Legislation Committee for inquiry and report by 21
February 2020. Details of the inquiry are at the inquiry
homepage.
The first 2016 Bill was referred to the Senate Rural and
Regional Affairs and Transport Legislation Committee on 25 February 2016.
The Committee reported on 22 April 2016.[30]
Note that in this section ‘the Bill’ refers to the first 2016 Bill.
The Senate Committee examined the provisions of the first
2016 Bill and identified the following issues of concern that had been raised
by stakeholders:
- consultation
on the development of the Bill
- the
Bill could make Australian transport infrastructure less secure
- the
Bill could adversely impact employment in the aviation and maritime sectors
- penalties
for offences outlined by the Bill exceed the recommended penalties in the Guide
to Framing Commonwealth Offences and
- the
Bill treats crews on Flag of Convenience shipping and Australian crews
differently, thereby disadvantaging local workers.[31]
The majority report recommended that the first 2016 Bill
be passed. There was no recommendation for amendment or further consideration.[32]
However, the Australian Greens provided a Dissenting Report, not supporting the
Bill in that form and Senators from the Australian Labor Party (ALP) provided
additional comments, noting that they were considering amendments to the Bill.[33]
On 4 December 2014, the same Committee was referred
matters relating to airport and aviation security for inquiry.[34]
That inquiry lapsed with the dissolution of the Parliament on 9 May 2016.[35]
On 15 September 2016 the Senate re-referred the inquiry to the Committee,
with a reporting date of 1 December 2016.[36]
Details of the inquiry can be found at the Committee’s website.[37]
The Committee’s report included consideration of the second 2016 Bill; the
numerous reviews and reforms undertaken of the ASIC scheme; the potential
shortcomings of the card; and how these shortcomings may impact on airport
security. The report concluded that the amendments in the second 2016 Bill ‘reflect
the position reached by a number of previous reviews into the ASIC scheme’ and
that a number of administrative concerns with the ASIC scheme were not within
the scope of the transport security bill’.[38]
The Senate Standing Committee for the Scrutiny of Bills
expressed some concerns in relation to the Bill. Specifically, the Committee expressed
concern that significant matters in relation to eligibility criteria for access
to aviation and maritime transport zones are provided for in delegated
legislation, and noted that some guidance on this criteria could have been
included in the Bill:
The committee has consistently raised concerns about
framework bills, which contain only the broad principles of a legislative
scheme and rely heavily on delegated legislation to determine the scope and
operation of the scheme. As the detail of the delegated legislation is
generally not publicly available when Parliament is considering the bill, this
considerably limits the ability of Parliament to have appropriate oversight
over new legislative schemes. Consequently, the committee's view is that
significant matters, such as the requirements relating to access to relevant
aviation and maritime transport zones, should be included in the primary
legislation unless a sound justification for the use of delegated legislation
is provided. In this case the explanatory materials do not provide an
explanation as to why the relevant matters cannot be included in primary
legislation. The committee notes that delegated legislation, made by the
executive, is not subject to the full range of parliamentary scrutiny inherent
in bringing proposed changes in the form of an amending bill.
It is unclear to the committee why at least high level
guidance about the eligibility criteria for access to relevant zones cannot be
included on the face of the bill. For example, the committee notes that the
explanatory memorandum lists the offence categories that will make up the new
eligibility criteria, including offences relating to anti-gang or criminal
organisation legislation and the illegal importation of goods. It is unclear to
the committee why these criteria cannot be provided for on the face of the
primary legislation. (Emphasis added)[39]
The Committee also expressed concerns in relation to
penalties being provided for in delegated legislation, noting that its ‘longstanding
view is that serious offences and penalties should be contained in the primary
legislation to allow for appropriate levels of Parliamentary scrutiny.’[40]
The Committee has requested the Minister’s advice as to
the following:
- why it is considered necessary and appropriate to leave the new
eligibility criteria for access to relevant aviation and maritime transport
zones to delegated legislation, and the appropriateness of amending the bill to
provide at least high level guidance in this regard; and
- the appropriateness of amending the bill to either include all
relevant penalties and offences in the primary legislation or for the maximum
penalties to be reduced to be consistent with the Guide to Framing Commonwealth
Offences.[41]
At the time of writing, the views of the ALP on the Bill are
not known. In the Senate Committee report on the first 2016 Bill, ALP Senators Glenn
Sterle and Alex Gallacher made additional comments that were broadly supportive
of targeted measures that address serious and organised crime. However, the
Senators were concerned that adding an additional, secondary purpose to the
Acts (preventing the use of aviation and maritime transport in connection with serious
or organised crime) would ‘confuse the two missions of transport security and
targeting serious or organised crime in the transport system’.[42]
The Senators concluded that ‘clarity of purpose is a really important issue
from a mission perspective, and the main report does not address this issue
adequately.’[43]
The Senators indicated that the ALP was considering amendments to this Bill.[44]
ALP Senators did introduce amendments to the second 2016 Bill. These were
passed in the Senate but subsequently disagreed in the House of
Representatives.[45]
In a Dissenting Report on the first 2016 Bill, the
Australian Greens stated that the eligibility criteria changes ‘make very
little sense’, noting that it is excessively punitive that someone convicted of
drug possession will no longer have access to the identification pass required
for most roles within the maritime sector.[46]
In broad terms however, the majority of the Senate
Committee considered that the first 2016 Bill would have a positive security
outcome, addressing the threat which serious and organised crime poses to
Australian transport infrastructure.[47]
While the Senate Committee inquiring into the first 2016
Bill concluded that consultation on the Bill was appropriate, some witnesses
argued that the Bill was developed with insufficient consultation with relevant
stakeholders. The Australian Maritime Officers Union and the Australian
Services Union expressed concern about potential delays in the ASIC and MSIC
application process and that the Bill does not go far enough to reach to the
security threat posed by those who are responsible for the management of the
ports.[48]
The Government at that time argued that the shift in focus
from low level or minor offences to higher risk offences related to serious or
organised crime would mean that more applicants would be expected to be found
initially eligible for an ASIC or MSIC. The Department of Infrastructure and
Regional Development asserted that this would result in a quicker issue of an
ASIC or MSIC, reducing the impact on the person’s employment and increasing the
staff available to employers:
The proposed eligibility criteria is expected to provide
positive employment outcomes overall across the ASIC and MSIC schemes.[49]
At the date of writing, there has been no reported comment
from these interest groups on the current Bill (noting that the ASIC and MSIC
schemes are now administered by the Department of Home Affairs, not the
Department of Infrastructure, Transport, Cities and Regional Development).
The Explanatory Memorandum states that the financial
impact of the Bill is low and that any costs associated with the Bill will be
met from within existing resources.[50]
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[51]
At the time of writing, the Parliamentary Joint Committee
on Human Rights has not reported on the Bill. However the Committee did report
on the first and second 2016 Bills and considered that these Bills did not
raise human rights concerns.[52]
Schedule 1 of the Bill contains 18 items. The key
items of interest for debate are item 4 and item 17.
Item 4 of the Bill will insert a new Division 4A
– Serious crime (consisting of proposed sections 38AA and 38AB)
into Part 3 of the ATS Act and item 17 will insert a new Division
6 – Serious crime (consisting of proposed sections 113E and 113F)
into Part 6 of the MTOFS Act. Proposed section 38AB of the ATS
Act and proposed section 113F of the MTOFS Act provide the
authority for amendments to the corresponding Regulations for the purpose of
preventing the use of aviation, maritime transport and offshore facilities in
connection with serious crime.[53]
Items 4 and
17 further provide for the prescription of penalties against the new serious
crime amendments. The Explanatory Memorandum notes that, by setting out the
maximum penalties that may be prescribed in the Regulations, proposed
subsection 38AB(3) of the ATS
Act and proposed subsection 113F(3) of the MTOFS
Act provide for discretion to be applied in making Regulations
imposing penalties.[54]
Section 44C of the ATS Act – ‘Requirements for
examining and clearing cargo’, provides that Regulations may be made under that
section for the general purposes of safeguarding against unlawful interference
with aviation. Item 5 amends subsection 44C(1) so that Regulations can
also be made under that section to prevent the use of aviation in connection
with serious crime. The Explanatory Memorandum notes that this amendment is to
ensure that ASIC holders who do not have access to secure areas or zones in
security controlled airports can still be captured under the new eligibility
criteria (see discussion below).[55]
All Commonwealth legislation must be
supported by a Constitutional head of power. Like most legislation, the ATS
Act and the MTOFS Act rely on more than one head of Constitutional
power (including the corporations and external affairs powers). Section 132 of
the ATS Act and section 208 of the MTOFS Act are
‘severability’ provisions that set out the alternative constitutional bases for
the Acts’ provisions. These provisions operate so that if the High Court
determined that the Acts were not properly founded on a particular
power, then the Acts would still stand to the extent that another head or heads
of power provides a valid Constitutional basis. Items 6 and 18 amend section 132 of the ATS Act and section 208 of the MTOFS
Act respectively. They insert two new severability provisions to clarify
the Commonwealth’s legislative power in relation to serious crime and the use
of the ASIC and MSIC schemes as a measure to combat it within the sectors. The
new provisions reference the incidental power (paragraph 51(xxxix)) and the
executive power (section 61) of the Constitution.
Serious crime is not defined in the Bill, the ATS Act
or the MTOFS Act. Nor was it defined when the Government introduced
amendments to the second 2016 Bill that replaced all references to ‘serious or
organised crime’ with ‘serious crime’.[56]
Definitions of ‘serious crime’ or ‘serious offence’ can be
found in some criminal legislation. For example a ‘serious Commonwealth offence’
is defined in section 15GE in the Crimes Act 1914
as involving a matter mentioned in subsection 15GE(2)[57]
and which is punishable on conviction by
imprisonment for a period of three years or more. A ‘serious Commonwealth offence’
also includes an offence in relevant parts of the Criminal Code to do
with terrorism or with child abuse (subsection 15GE(3)). ‘Serious crime’ is
defined in the Intelligence
Services Act 2001 to mean ‘conduct that, if engaged in within, or in
connection with, Australia, would constitute an offence against the law of the
Commonwealth, a State or a Territory punishable by imprisonment for a period
exceeding 12 months’.
The proposed
amendments in the Bill are quite novel, in that they will allow the respective Regulations
under the ATS Act and
the MTOFS Act to ‘tier’ offences. For example, less serious offences
will require a higher imprisonment threshold to become an aviation or
maritime-security-relevant offence, while more serious offences will only
require conviction.
For the 2016 Bills, the Department of Infrastructure and
Regional Development prepared a visual diagram of the proposed ASIC and MSIC
Eligibility Criteria subject to Parliamentary approval.[58] That diagram is now
located on the website for the Department of Home Affairs and would appear to
also be relevant in explaining the 2019 Bill.[59]
The following summary of the offence tiers is based on this diagram.
Tier 1 contains a list of disqualifying
offences. Persons captured under Tier 1 of the eligibility criteria will be
disqualified from being issued an ASIC/MSIC and would not have access to the
discretionary assessment/ discretionary review.[60]
Tier 1 offences include those involving or relating to:
Terrorism; treason, sedition, espionage
or selling national secrets; engagement in hostile activities in a foreign
country or involvement with foreign armed forces; an offence relating to
weapons of mass destruction; hijacking or destroying an aircraft, vessel or
offshore facility that is used in commerce or owned by the government;
endangerment of an aircraft, airport, vessel, port or offshore facility that is
used in commerce or owned by the government; acts of piracy at sea; an offence
relating to involvement with a criminal organisation or gang; and smuggling or
trafficking of people.
Tiers 2–5 are
adverse offences and contain offences that would result in a person being found
to have an adverse criminal record and unable to be issued an ASIC/MSIC
following the initial application. These persons would be eligible to apply for
an ASIC/MSIC through the discretionary assessment process.[61]
Tier 2 offences for which conviction is adverse include those involving or relating
to:
Assaulting or threatening a person on an
aircraft, vessel or offshore facility, or in an airport or port; theft of an
aircraft or vessel that is used in commerce or owned by the government;
questioning conducted by a person or body investigating serious and organised
crime or corruption; and an offence under the ATS Act or MTOFS Act
that is punishable by imprisonment.
Tier 3 offences for which a sentence of imprisonment is adverse include those
involving or relating to:
Murder or manslaughter, or an offence of
a kind equivalent to murder or manslaughter; firearms, ammunition, weapons or
the use of an item as a weapon; explosives or explosive devices; production,
possession, supply, import or export of an illegal drug or controlled
substance; illegal import or export of goods, fauna or flora; bribery or
corruption; perjury or other involving perversion of the course of justice; an
offence involving the use of a false identity or false identity documents;
interference with goods under customs control; and use or access of data or
electronic communications.
Tier 4 offences for which a sentence of 12 months imprisonment is adverse include
those involving or relating to:
False imprisonment, deprivation of
liberty or taking a hostage; racial hatred or racial vilification; assaulting
or resisting a law enforcement officer or other public officer; impersonating a
law enforcement officer or other public officer; extortion or blackmail; dealing
with proceeds of crime; money laundering or currency violations; and arson or
an offence of a kind equivalent to arson.
Tier 5 offences for which a sentence of 30 months imprisonment is adverse includes
those involving or relating to:
Theft (other than offences referred to in
other tiers); forgery or fraud; sexual abuse or sexual exploitation of a child;
assault (other than offences referred to in other tiers) including indecent or
sexual assault; intimidation (other than offences referred to in other tiers);
endangerment of others (other than offences referred to in other tiers); affray
or riot; and tax evasion.
The Department of Infrastructure and
Development in its submission on the 2016 Bill explained the effect of this tiered
approach:
Under current eligibility criteria, an ASIC or MSIC
applicant’s status is based solely
on the presence of a relevant offence in the applicant’s criminal
history. Under the new proposed criteria, less serious criminal offences will
only become an aviation or maritime-security relevant offence when a
significant term of imprisonment has been imposed, while more serious offences
will only require conviction. This tiered approach places emphasis on the
judgement of a court in determining the seriousness of the offence and hence
its significance to the ASIC or MSIC scheme.[62]
The Bill is the third attempt by the Government to
introduce legislative amendments to the aviation and maritime security
identification card schemes, the purpose being to improve protection of
Australia’s airports and seaports. The two previous Bills were substantially
the same as this Bill and were introduced in the 44th and 45th Parliaments. The
Minister now argues that the need for this legislation is clear, noting that the
reforms in this Bill were previously considered by the Senate Standing Rural
and Regional Affairs and Transport Committee who recommended it be passed
without amendment.[63]
While the Bill implements recommendations from the
National Ice Taskforce and the Parliamentary Joint Committee on Law
Enforcement, further scrutiny on the precise form of the eligibility criteria
should be undertaken once the Regulations are presented. As the Bills Digest
for the second 2016 Bill noted, there may be some parliamentary debate around
the practicalities of the proposed changes and whether widening the ‘purpose of
transport security legislation will confuse the two missions of transport
security and targeting serious or organised crime in the transport system’.[64]
Other issues for debate may be around the balance between potential employment
restrictions and the risk of serious crime at Australia’s air and maritime
ports. The very nature of serious crime is such that drug convictions may be
indicative of a vulnerability that may result in conduct that threatens the
security of Australia’s ports.[65]
[1]. Parliament
of Australia, ‘Transport
Security Amendment (Serious or Organised Crime) Bill 2016 homepage’,
Australian Parliament website.
[2]. Parliament
of Australia, ‘Transport
Security Amendment (Serious or Organised Crime) Bill 2016 homepage’,
Australian Parliament website.
[3]. Supplementary
Explanatory Memorandum, Transport Security Amendment (Serious or Organised
Crime) Bill 2016, p. 2.
[4]. See
Department of Prime Minister and Cabinet, Home
Affairs Portfolio established, media release, 20 December 2017.
[5]. M
Biddington, Transport
Security Amendment (Serious or Organised Crime) Bill 2016, Bills digest,
28, 2016–17, Parliamentary Library, Canberra, 19 October 2016.
[6]. Ibid.,
p. 2.
[7]. This
paragraph and subsequent paragraphs are taken from the Bills Digest for the
second 2016 Bill, Biddington, op. cit., p. 2. That Bills Digest quoted pages
from the Department of Infrastructure and Regional Development (DIRD) website:
‘Aviation security identification’ and ‘Applying for a Maritime Security
Identification Card (MSIC)’. These pages are no longer accessible, however the
Department of Home Affairs website now provides similar information at: Identity
security and Identity
security: ASIC and MSIC identification cards.
[8]. Regulation
6.32 of the Aviation
Transport Security Regulations 2005.
[9]. Department
of Home Affairs, ‘Identity
security: ASIC and MSIC identification cards’, Department of Home Affairs
website, last updated 21 November 2018.
[10]. Regulation
6.08B of the Maritime
Offshore Facilities Security Regulations 2005; Department of Home Affairs,
‘Identity
security: ASIC and MSIC identification cards’, op. cit.
[11]. Department
of Home Affairs, ASIC – Background
information and conditions of issue and use,
Department of Home Affairs website, n.d.; Department of Home Affairs,
MSIC
– Background information and conditions of issue and use, Department of Home Affairs website, n.d.
[12]. Department
of Home Affairs, ‘Crime
prevention’, Department of Home Affairs website, last
updated 26 November 2019.
[13]. Department
of Home Affairs, ‘Identity
security: ASIC and MSIC identification cards’, op. cit.
[14]. Note
that Part II of the Crimes
Act 1914 (which dealt with offences against the Government, such as
treachery and sabotage) was repealed by the National Security
Legislation Amendment (Espionage and Foreign Interference) Act 2018.
Equivalent offences are now contained in the Criminal Code Act
1995.
[15]. Explanatory
Memorandum, Transport Security Amendment (Serious Crime) Bill 2019, p. 2.
[16]. P
Dutton, ‘Second
reading speech: Transport Security Amendment (Serious Crime) Bill 2019’,
House of Representatives, Debates, 23 October 2019, p. 5087.
[17]. Ibid.
[18]. K
McNamara, ‘Second
reading speech: Transport Security Amendment (Serious or Organised Crime) Bill
2016’, House of Representatives, Debates, 16 March 2016, p. 3266.
See also, Liberal Party of Australia and National Party of Australia, The Coalition’s
policy to tackle crime, Coalition policy document, Election 2013
(August 2013), p. 5.
[19]. Liberal
Party of Australia and National Party of Australia, The
Coalition’s policy to keep illegal guns off our streets and our communities
safe, Coalition policy document, Election 2016 (June 2016), p. 7.
[20]. For
report details from the Joint Committee of Public Accounts (JCPA), see Reports
under the 40th and 41st Parliament, noting JCPA, Review
of aviation security in Australia, Report, 400,
JCPA, Canberra, June 2004; JCPA, Developments
in aviation security since the Committee's June 2004 Report 400: review of
aviation security in Australia: an interim report,
Interim report, 406, JCPA, Canberra, November 2005; Joint Committee Public
Accounts and Audit (JCPAA), Developments
in aviation security since the Committee’s June 2004 report 400: review of
aviation security in Australia, Report, 409,
JCPAA, Canberra, December 2006; and J Wheeler, An independent
review of airport security and policing for the government of Australia,
Airport Security and Policing Review, Canberra, September 2005.
[21]. Australian
National Audit Office (ANAO), Management of
the Aviation and Maritime Security Identification Card Schemes, Audit
report, 39, 2010–11, ANAO, Canberra, May 2011.
[22]. Ibid.,
p. 14.
[23]. Parliamentary
Joint Committee on Law Enforcement, Inquiry into the
adequacy of aviation and maritime security measures to combat serious and
organised crime, Report, Commonwealth of Australia, Canberra, June
2011.
[24]. Ibid.,
p. 93.
[25]. Ibid.,
p. 24.
[26]. Australian
Government response to the report of the Parliamentary Joint Committee on Law
Enforcement: Inquiry into the Adequacy of Aviation and Maritime Security
Measures to Combat Serious and Organised Crime, September 2011.
[27]. Department of Prime Minister and Cabinet (PM&C), ‘The National Ice Taskforce’, PM&C website,
n.d.
[28]. PM&C,
Final Report
of the National Ice Taskforce, PM&C, Canberra, 6
October 2015.
[29]. Ibid.,
p. 140.
[30]. Senate
Standing Committee on Rural and Regional Affairs and Transport Legislation, Transport
Security Amendment (Serious or Organised Crime) Bill 2016 [Provisions],
Senate, Canberra, April 2016.
[31]. Ibid.,
p. 5.
[32]. Ibid.,
p. 13.
[33]. Ibid.,
pp. 15–18.
[34]. N
Xenophon, ‘Committees:
Rural and Regional Affairs and Transport References Committee’, Senate, Debates,
4 December 2014, p. 10205.
[35]. Senate
Rural and Regional Affairs and Transport References Committee, ‘Airport
and aviation security’, Inquiry homepage.
[36]. Australia,
Senate, Journals,
7, 2016–17, 15 September 2016, p. 225.
[37]. Senate
Rural and Regional Affairs and Transport References Committee, ‘Airport and aviation
security’, Inquiry homepage.
[38]. Senate
Rural and Regional Affairs and Transport References Committee, Report:
airport and aviation security, The Senate, Canberra, March 2017, p. 63.
[39]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny digest,
8, 2019, The Senate, 13 November 2019, pp. 29-30.
[40]. Ibid.,
p. 30.
[41]. Ibid.,
p. 31.
[42]. Australian
Labor Party (ALP), Additional
comments, Senate Standing Committee on Rural and Regional
Affairs and Transport Legislation, Inquiry into Transport Security
Amendment (Serious or Organised Crime) Bill 2016 [Provisions], The Senate, Canberra, April 2016, p. 15.
[43]. Ibid.
[44]. Ibid.
[45]. Parliament
of Australia, ‘Transport
Security Amendment (Serious or Organised Crime) Bill 2016 homepage’,
Australian Parliament website.
[46]. Australian
Greens, Dissenting report, Senate Standing Committee on
Rural and Regional Affairs and Transport Legislation, Inquiry into the
Transport Security Amendment (Serious or Organised Crime) Bill 2016
[Provisions], The Senate, Canberra, April 2016, p. 17.
[47]. Senate
Standing Committee on Rural and Regional Affairs and Transport Legislation, Inquiry
into Transport Security Amendment (Serious or Organised Crime) Bill 2016
[Provisions], The Senate, Canberra, April 2016, pp.12-13.
[48]. Ibid.,
pp. 7–10.
[49]. Department
of Infrastructure and Regional Development, Submission
to the Senate Standing Committee on Rural and Regional Affairs and Transport
Legislation, Inquiry into the Transport Security Amendment (Serious or
Organised Crime) Bill 2016, [Submission no. 4], March 2016, p. 4.
[50]. Explanatory
Memorandum, Transport Security Amendment (Serious Crime) Bill 2019, p. 2.
[51]. The
Statement of Compatibility with Human Rights can be found in the Attachment to the
Explanatory Memorandum to the Bill.
[52]. Parliamentary
Joint Committee on Human Rights (PJCHR), Human rights
scrutiny report, 34, 23 February 2016, pp. 1-2; PJCHR, Human rights
scrutiny report, 7, 2016, 11 October 2016, pp. 99-100.
[53]. The
meaning of ‘serious crime’ is discussed below at p. 12.
[54]. Explanatory
Memorandum, Transport Security Amendment (Serious Crime)
Bill 2019, pp. 5, 10.
[55]. Ibid.,
p. 6.
[56]. As
noted above, the Supplementary Explanatory Memorandum stated the intention of
the amendments was that that ‘serious crime’ will still encompass ‘organised
crime’ that is of a serious nature. It provided the example of an offence of
violence or extortion that involves two or more members of a criminal
organisation which involves substantial planning and organisation could still
be captured under the purpose of ‘serious crime’. Supplementary
Explanatory Memorandum, Transport Security Amendment (Serious or Organised
Crime) Bill 2016, p. 2.
[57]. The
matters include, amongst others: theft; fraud; tax evasion; controlled
substances; extortion; money laundering; perverting the course of justice; people
smuggling; slavery; piracy; the organisation, financing or perpetration of
sexual servitude or a sexual offence against a person who is under 18 outside
Australia; dealings in child abuse material; importation of prohibited imports;
exportation of prohibited exports; violence; and firearms.
[58]. Department
of Infrastructure and Regional Development, ‘Proposed new eligibility criteria
for the ASIC and MSIC schemes’, DIRD website. These tables are now located on
the following Department of Home Affairs website
under the heading: ‘Background checks’.
[59]. Department
of Home Affairs, ‘Identity
security: applicants and cardholders’, Department of Home Affairs website,
last updated 26 February 2019. The relevant diagrams are hyperlinked at the
following text under the subheading ‘Background checks’: ‘The criminal records
check determines if you have any convictions against the aviation or maritime
security-relevant-offences’.
[60]. Department
of Infrastructure and Regional Development, Submission
to the Senate Standing Committee on Rural and Regional Affairs and Transport
Legislation, op. cit., p. 4. A discretionary review involves a consideration of
an individual’s circumstances/details of their criminal record following an
unsuccessful application for an ASIC or MSIC due to an adverse criminal record.
Information about discretionary reviews is available on the Department of Home
Affairs website at: ‘Identity
security: applicants and cardholders’.
[61]. Senate
Rural and Regional Affairs and Transport References Committee, Report:
airport and aviation security, op. cit., p. 62, paragraph 5.32.
[62]. Department
of Infrastructure and Regional Development, Submission
to the Senate Standing Committee on Rural and Regional Affairs and Transport
Legislation, op. cit., p. 4.
[63]. Dutton,
‘Second
reading speech: Transport Security Amendment (Serious Crime) Bill 2019’,
op. cit., p. 9.
[64]. ALP,
Additional comments, op. cit.
[65]. Biddington,
op. cit., p. 9.