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
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do not reflect an official position of the Information and Research Service,
nor do they constitute professional legal opinion.
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