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
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