Bills Digest no. 34 2008–09
Transport Security Amendment (2008 Measures No.1) Bill 2008
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
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Date introduced:
25 September 2008
House:
House of Representatives
Portfolio:
Infrastructure, Transport, Regional Development and Local Government
Commencement:
Sections 1 to 3 of the Act will commence on the day
the Act receives the Royal Assent. Schedule 1 will commence two months
and one day after the Act receives the Royal Assent.
Links: The relevant
links to the Bill, Explanatory Memorandum and second reading speech
can be accessed via BillsNet, which is at http://www.aph.gov.au/bills. When Bills
have been passed they can be found at ComLaw, which is at http://www.comlaw.gov.au/.
The purpose of the Bill is to amend
the Maritime Transport and Offshore Facilities Security Act 2003 (MTOFSA)
and the Aviation Transport Security Act 2004 (ATSA) to streamline
some legal terms and conditions that will enhance the effectiveness of
security outcomes.
One of the main purposes of the ATSA is to maintain and
improve transport security in civil aviation by enhancing the structure
of the aviation security regulatory framework and providing for adequate
flexibility in order to reflect the rapidly changing threat environment.[1] This Bill is acting on that purpose and will
assist industry participants in the way they are required to document
their security arrangements.
In June 2005, the Maritime Transport Security Act
2003 was amended to cover Australia's offshore oil and gas facilities
and was renamed the Maritime Transport and Offshore Facilities Security
Act 2003.
The MTOFSA and the Maritime Transport and Offshore Facilities
Security Regulations 2003 aim to safeguard against unlawful interference
with maritime transport or offshore facilities, by establishing one security
regulatory framework.
The Explanatory Memorandum notes that the Office of Transport
Security, a division of the Department of Infrastructure, Transport, Regional
Development and Local Government, undertook a review of the maritime security
regime in 2007. Being a departmental internal review, the outcomes of
that review are not available for scrutiny. However, the Explanatory Memorandum
states that ‘the outcomes of this review formed the basis for the development
of a series of legislative and policy proposals. The legislative proposals
form the basis of this Bill’.[2]
The Bill does not merge the security arrangements of
the aviation, maritime and security sectors. Rather, the Bill seeks to
ensure that a similar regulatory framework is in place for each industry
to enhance the overall efficiency of transport security.
At its meeting of 25 September 2008, the Selection of
Bills Committee deferred consideration of the Bill until its next meeting.[3]
The Explanatory Memorandum states that there is no financial
impact and that the Commonwealth will receive no direct financial benefit
from the changes to the Acts.
The ATSA and the MTOFSA contain measures and procedures
for the security of the transport sector. The proposed amendments are
not controversial and are intended to ‘deliver effective security outcomes
now and into the future.’[4]
The Explanatory Memorandum states that the changes will
provide flexibility to industry by expressly recognising that participants,
(in aviation, maritime and offshore security), may have responsibility
for multiple facilities.[5]
According to the Government, the measures in this Bill will enable industry
participants to ‘more confidently interpret, implement and administer
the legislation as it relates to their daily business practices and this
will, in turn, strengthen Australia’s security regime’.[6]
The existing provisions require that a maritime security
plan must ‘be accompanied by’ maps showing various port security zones.
The Explanatory Memorandum states that existing mapping requirements have
resulted in inconsistency in formatting, quality and accuracy of the maps.
The present statutory restrictions prevented the Secretary from imposing
any requirements as to how the maps were to be presented and submitted.
The amendments will allow, under proposed paragraph 49(1)(b), a
maritime security plan to be prepared in accordance with any requirements
set out in the regulations. Thus, the regulations will be able to specify
any methods of presentation and submission that the Secretary considers
appropriate.
Items 1, 3-5, 7, 10 will make consequential technical
amendments to the ATSA.
Item 2 will amend section 12 to add proposed
subsections 12(2) to 12(4) which provide that the Secretary (of the
Department of Infrastructure, Transport, Regional Development and Local
Government), may permit an aviation industry participant to have more
than one security program. This must be done by giving written notice
to the participant. That notice must specify all of the participant’s
programs as well as the operation or locations to be covered.
Item 6 will repeal existing section 22 of the
ATSA. Proposed subsections 22(1) to 22(4) are directed towards
participants who have more than one program. The amendments are not considerably
different from the existing section 22 which allows a participant to request
the approval for a revised program. Proposed subsection 22(4)
explicitly states that if a revised program comes into force, it replaces
the existing program.
Item 8 inserts proposed subsection 23(2A).
Existing section 23 allows the Secretary to direct participants to revise
their programs and the new subsection clarifies that existing sections
19 and 20 will apply in relation to the revised program. Section 19 outlines
the consideration and approval period for a program and section 20 outlines
the time period when a program comes into force.
In similar terms to the new subsection 22(4), item
9 will add to the end of section 23 proposed subsection
23(4), which provides that if the revised program comes into force,
it replaces the existing program.
Item 11 inserts saving and transitional provisions
for multiple programs. The savings provision in this bill will ensure
that the ATSA does not prevent an aviation industry participant from holding
more than one transport security program at the same time. This will apply
prior to the commencement of the amendments and apply so long as those
programs covered different operations or locations. The ATSA is taken
to apply to each of the programs as if it were the sole program for the
participant.
Transitionally, item 11 clarifies that if a participant
holds multiple programs, then the Secretary is taken to have given an
approval notice (under proposed subsection 12(2)) to that participant.
Items 12-14 will make consequential technical
amendments to the MTOFSA. Item 12 will insert “Australia” as a
new term under existing section 10, including the external territories.
This will extend the operation of the MTOFSA to Australian external territories
such as Norfolk Island. These consequential amendments also include a
change to the definition of port facility by item 13.
The port facility will be a place used, either wholly or partly in connection
with, the loading or unloading of security regulated ships, rather than
all ships.
Items 14–32 amend Part 3 of the MTOFSA which deals
with maritime security plans.[7]
Item 15 will add proposed subsections 42(2)
to 42(4) which will expressly permit the Secretary to approve multiple
maritime security plans for a maritime industry participant.[8] This must be done by giving written
notice to the participant. That notice must specify all of the participant’s
programs as well as the operation or locations to be covered.
Items 16-19 are minor consequential amendments
to the MTOFSA to ensure that maritime industry participants can hold multiple
maritime security plans at the same time.
Item 20 will allow for mapping standards to be
prescribed in the Maritime Transport and Offshore Facilities Security
Regulations 2003.
Items 21-24 are consequential amendments arising
out of the mapping requirements, established under the regulations.
Items 25-28 are also consequential amendments
relating to the Secretary permitting maritime industry participants holding
multiple security plans at the same time.
Item 29 inserts saving and transitional provisions
for multiple plans. The savings provision in this bill will ensure that
the MTOFSA does not prevent a maritime industry participant from holding
more than one maritime security program at the same time. This will apply
prior to the commencement of the amendments and apply so long as those
programs covered different operations or locations. The MTOFSA is taken
to apply to each of the programs as if it were the sole program for the
participant.
Transitionally, item 29 clarifies that if a participant
holds multiple programs, then the Secretary is taken to have given an
approval notice (under proposed subsection 42(2)) to that participant.
Items 30-33 are minor consequential amendments
to ensure that item 34 does not prevent an offshore industry participant
from holding multiple offshore security plans.
Items 33–47 amend Part 5A of the MTOFSA which
deals with offshore security plans.[9]
Item 34 clarifies that an offshore industry
participant[10]
can have more than one offshore security plan. This item adds proposed
subsections 100B(2) to 100B(4) which permit the Secretary to
approve multiple offshore security plans for an industry participant.
Similar to the aviation and maritime arrangements, this must be done by
giving written notice to the participant. That notice must specify all
of the participant’s programs as well as the operation or locations to
be covered.
Items 35 and 36 are minor technical amendments
to sections 100C(1)(b) and 100D(1)(b) respectively. Item 37 will
insert proposed paragraph 100G(1)(a) which addresses the need for
a requisite security assessment to address the operations or locations
covered by each plan, in the case of multiple offshore security plans.
Items 38-43 are minor amendments relating to the approval notice
and the validity of the notice. The offshore security plan will be approved
for a period of five years or less, but no less than 12 months.
Item 43 repeals subsection 100N(1) and substitutes
proposed subsection 100N(1) clarifying that an industry participant
who holds an approved offshore security plan can request the Secretary
to approve another plan in its place. Item 44 amends subsection
100N(4) to clarify that if a revised plan comes into force, it replace
the existing plan only (and not any other plans held by the participant).
Item 46 is a consequential amendment of item 30.
Item 47 inserts saving and transitional provisions
for multiple plans. The savings provision in this bill will ensure that
the MTOFSA does not prevent an offshore industry participant from holding
more than one offshore security program at the same time. This will apply
prior to the commencement of the amendments and apply so long as those
programs covered different operations or locations. The MTOFSA is taken
to apply to each of the programs as if it were the sole program for the
participant.
Transitionally, item 47 clarifies that if a participant
hold multiple programs, then the Secretary is taken to have given an approval
notice (under item 34, proposed subsection 100B(2)), to
that participant.
Items 48-59 are consequential amendments that
are necessary to ensure consistency with the more substantive items in
this Bill.
Concluding
comments
This Bill has arisen following a Department’s internal
review of its laws and procedures and aims to remove inconsistencies across
the transport security sectors. That review is not available for consideration.
[8]. Section 10 of the MTOFSA
provides that maritime industry participant means:
(a) a port operator; or
(b) a port facility operator; or
(c) the ship operator for a regulated Australian
ship; or
(d) the ship operator for a regulated foreign ship;
or
(da) an offshore industry participant; or
(f) a contractor who provides services to a person
mentioned in paragraphs (a) to (d); or
(g) a person who:
(i) conducts a maritime-related enterprise;
and
(ii) is prescribed in the regulations.
[10]. Section 10 of the MTOFSA
provides that offshore industry participant means:
(a) an offshore facility operator; or
(b) a contractor who provides services to an offshore
facility operator; or
(c) a person who:
(i) conducts an enterprise connected with a security regulated offshore
facility; and
(ii) is prescribed in the regulations.
Monica Biddington
2 October 2008
Bills Digest Service
Parliamentary Library
© Commonwealth of Australia
This work is copyright. Except to the extent of uses permitted by the
Copyright Act 1968, no person may reproduce or transmit any part of this
work by any process without the prior written consent of the Parliamentary
Librarian. This requirement does not apply to members of the Parliament
of Australia acting in the course of their official duties.
This work 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 Parliamentary Library, nor
do they constitute professional legal opinion.
Feedback is welcome and may be provided to: web.library@aph.gov.au.
Any concerns or complaints should be directed to the Parliamentary Librarian.
Parliamentary Library staff are available to discuss the contents of publications
with Senators and Members and their staff. To access this service, clients
may contact the author or the Library’s Central Entry Point for
referral.
|
