Bills Digest no. 141 2009–10
Transport Security Legislation Amendment (2010 Measures
No.1) Bill 2010
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
Contact officer & copyright details
Passage history
Transport Security Legislation Amendment
(2010 Measures No.1) Bill 2010
Date introduced: 11 March 2010
House: House
of Representatives
Portfolio: Infrastructure, Transport, Regional Development and
Local Government
Commencement: The day after Royal Assent
Links: The relevant
links to the Bill, its Explanatory Memorandum and second
reading speech can be found on the Bills page, 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 Bill amends the Aviation Transport Security Act
2004 (Cth) (ATSA) and the Maritime Transport and Offshore
Facilities Security Act 2003 (Cth) (MTOFSA):
- the ATSA amendments are designed to increase the flexibility of
the aviation transport security framework to rapidly respond to an
aviation security incident, and
- the MTOFSA amendments, amongst other things, give (or allow
for) increased powers to various maritime security officials for
various purposes.
Background
Since the terrorist attacks in the United States on 11 September
2001, significant efforts have been made around the world to
improve transport security. Consistent with this, the Australian
Government has, within its constitutional limitations, made ongoing
efforts to ensure Australia has a security regime suitable for the
protection against potential terrorist threats and attacks.
The original introduction of the ATSA and the MTOFSA are part of
these efforts. Several amendments have been made since their
commencement to improve their effectiveness.
The main purpose of the ATSA is to establish a regulatory
framework to safeguard against unlawful interference with civil
aviation operations. The ATSA achieves this by:
…establish[ing] minimum security
requirements for civil aviation in Australia by imposing
obligations on persons engaged in civil aviation related
activities. In particular, it obliges certain aviation industry
participants to develop, and comply with, aviation security
programs.[1]
The attempted terrorist attack on a flight bound for the United
States on Christmas Day 2009 has indicated to the Government that
Australia is in need of stronger measures to prevent unlawful
interference with aviation in Australia. The Bill has been
introduced as part of an attempt to achieve this.[2] The Commonwealth Government
continues to identify Australia as being at real risk of terrorist
attacks, as indicated in the Counter-Terrorism White Paper.[3]
The first major proposed amendment to the ATSA is to allow the
Minister for Infrastructure, Transport, Regional Development and
Local Government (the Minister) to alter the ‘prohibited
items’ (PI) list by issuing a legislative instrument rather
than by regulation. The term ‘prohibited item’ is
currently defined in section 9 of the ATSA to mean an item that
could be used for unlawful interference with aviation and is
prescribed in the Aviation Transport Security Regulations 2005
(ATSR) for the purposes of this definition. More
specifically, the list of PIs appears in regulation 1.07 of the
ATSR. Some examples of items currently on the PI list
are:
- meat cleavers
- aerosol containers
- golf clubs
- letter openers, and
- handcuffs.[4]
The
maximum penalty for being in unauthorised
possession[5] of a PI
in a specified area[6] under the ATSA is 20 penalty units ($2 200 fine)[7] or two years’
imprisonment.
The Government has
stated that enabling the PI list to be amended by legislative
instrument rather than by regulation will allow this list to remain
responsive to ‘emerging threats to aviation security while
preserving Parliamentary scrutiny’[8] via the usual disallowance
procedure.[9]
The second major amendment to the ATSA is to
allow the Secretary of the Department of Infrastructure, Transport,
Regional Development and Local Government (the Secretary) to
delegate, by writing, all or any of his or her powers to a Senior
Executive Service (SES) employee of the Attorney-General’s
Department.
Currently, the Secretary is able to delegate
all or any of his or her powers to:
(a) an acting SES employee,
or acting SES employee, in the Department [of Infrastructure,
Transport, Regional Development and Local Government]
(b) the Agency Head of an Agency
that carries on activities that relate to national
security.[10]
The object of the amendment is:
… for the preparation of the
establishment of the ‘Commonwealth Incident
Coordinator’ position within the Attorney-General’s
Department from 1 July 2010. The creation of the position of
the Commonwealth Incident Coordinator forms part of the Australian
Government’s all-hazards approach to crises and consequence
management.[11]
The second reading speech for the Bill described the proposed
Commonwealth Incident Coordinator (CIC) as a role that will respond
quickly and efficiently to security incidents, coordinate response
planning and implement crisis management decisions. The
following example was provided to illustrate the role of the
CIC:
… as part of a coordinated response to a
terrorist incident, the Commonwealth Incident Coordinator could use
the powers to direct an aircraft subject to a bomb threat to land
at a particular airport, or park in a specific part of an airport,
where emergency services are best placed to respond to the
threat.[12]
The creation of the CIC is part of the Government’s plan
to create an integrated crisis management centre (also flagged in
the Counter-Terrorism White Paper).[13] Whilst it is unclear whether the CIC
will be a statutory role, there does not appear to be anything
obvious on the public record to suggest that it will be. At the
time of writing, there was no a Bill to establish this role.
Indeed, there is very little information on the position.
The purpose of the MTOFSA is to protect against unlawful
interference with maritime transport or offshore facilities.
This is achieved by ‘establish[ing] a regulatory framework
centred around the development of security plans for ships, other
maritime transport operations and offshore
facilities’.[14]
Some of the amendments to the MTOFSA are in response to reviews
by the Office of Transport Security which recommended that stronger
maritime security measures are needed for passenger ships.[15]
The first main proposed amendment to the MTOFSA is the creation
of ‘security assessment inspectors’ (SAIs). The
SAIs will assess the security of maritime industry participants for
the effectiveness of security policies to identify possible
security threats and implement policies to address
weaknesses. For the purpose of administering the MTOFSA, the
Act does not currently permit access to security-regulated
areas[16] by
persons other than Departmental officers and law enforcement
officers.
Currently, the Secretary may:
(1) … by writing, delegate all or
any of his or her powers and functions under this Act to an SES
employee, or acting SES employee, in the Department.
(2) … by writing, delegate all or
any of his or her powers and functions under this Act, other than
powers or functions under Division 3 of Part 11, to an
APS employee who holds, or is acting in, an Executive Level 2, or
equivalent, position in the Department.[17]
The Bill seeks to widen the Secretary’s delegation powers
‘under the MTOFSA to Agency Heads with national security
responsibilities and an SES employee of the Attorney
General’s Department’.[18] The aims of this amendment are
similar to those in relation to delegation of powers under the ATSA
discussed above.
Currently under the MTOFSA, a maritime security inspector can
take photographs of the equipment of a security related ship and
security–regulated offshore facility.[19] The Bill seeks to extend this
power to include the taking of moving images and any other
recording, and also seeks to broaden the circumstances in which a
maritime security inspector can exercise these powers.
The MTOFSA does not currently allow a screening officer to
perform a frisk search of passengers passing through the screening
point when boarding a security-regulated ship. The powers
that a screening officer has to detect weapons and prohibited items
currently are as follows:
1. the power to use screening
equipment. The Maritime Transport and Offshore Facilities
Security Regulations (MTOFSR) state that screening equipment can
include a ‘walk-through metal detector, hand-held metal
detector, trace explosive detection device and x-ray
equipment’ with the requirement that they are ‘capable
of detecting weapons and prohibited items on persons or in
baggage’.[20] A ship or port facility operator that fails to
screen a person and their baggage, and goods that are required to
be screened and cleared before entry onto the ‘cleared
zone’ may receive a maximum penalty of 200 penalty units ($22
000 fine).[21]
2. the ability to request
a person to remove any item of their clothing in order to properly
screen a person. If the person refuses the request and
‘refuses to be screened in a private room by a screening
officer of the same sex’, ‘the screening officer must
refuse to allow the person to pass through the screening
point’. If a screening officer requires or
removes a person’s item of clothing, the screening
officer may receive a maximum penalty of 50 penalty units ($5 500
fine).[22]
3. the power to physically
restrain a person if ‘the screening officer reasonably
suspects that the person is committing, or has committed an offence
against’ the MTOFSA, and ‘the screening officer
reasonably believes it is necessary to do so in order to ensure
that [the] person’ does not enter the cleared area or to
‘maintain the integrity of [the] cleared area’.[23]
The screening officer, in exercising these powers, ‘must
not use more force, or subject a person to greater indignity, than
is necessary and reasonable’.[24]
The Bill will, at Items 21 and
22, allow a screening officer to request
a person to be subject to a frisk search in order to properly
screen that person in certain circumstances. In addition to
addressing the need for tighter maritime security, this option may
also be useful when a person has a pacemaker or other medical
condition and as a result, cannot be properly screened by walking
through a metal detector.[25]
The
Bill has been considered by the Senate Standing Committee for the
Scrutiny of Bills (the Committee).[26] Details of the inquiry are at
http://www.aph.gov.au/Senate/committee/scrutiny/alerts/2010/d04.pdf
The Committee has requested for further clarification from the
Minister on a number of matters, namely in relation to the
amendments to the MTOFSA:
- the underlying need (other than for modernisation) for maritime
security inspectors to have the power to take still or moving
images for security purposes or any type of recording as opposed to
only still images as it may impose on personal rights and
liberties
- the need for the appointment of a security assessment inspector
and details on the operation of the role as it may impose on
personal rights and liberties, and
- justification for imposing strict liability and placing the
onus of proof on the defendant to prove they had a reasonable
excuse for their actions under the offences introduced by the
Bill.[27]
At the time of publication, this Bill has not attracted media or
political attention.
There are no significant financial implications for Government
expenditure.[28]
Items 1 and 2 allow for the
list of prohibited items to be defined (and hence amended) by
legislative instrument rather than regulation as discussed earlier
in this Digest. The existing list will effectively remain in force
until replaced: item 5.
Items 3 and 4 allow the
Secretary to delegate in the usual way all or any of his or her
powers to a SES employee of the Attorney-General’s
Department.
In general, an Australian
registered ship is only subject to the MTOFSA if it is defined as a
‘security-regulated ship’. Amongst other things, it
must be ‘used for overseas or inter-State voyages’.
Currently, if such a ship does not usually engage in such voyages,
but very occasionally goes overseas for maintenance purposes (the
Explanatory Memorandum suggests this might occur every five years
or so) it would be required under the MTOFSA to develop a Ship
Security Plan and obtain an International Ship Security Certificate
(ISSC).
Items 12 and
13 insert proposed sections 61A
and 79A, which will respectively allow the
operator of a regulated Australian ship to seek an exemption from
having to hold a Ship Security Plan and/or an ISSC respectively.
Regulations will specify what matters that the Secretary must
consider in making a decision on an application. An exemption is
not a legislative instrument, and hence not subject to
parliamentary disallowance.
Item 14 will
enable regulations to prescribe certain kinds of foreign registered
flagged ships that will not be subject to section 91 requirements.
Section 91 requires the holding of a valid ISSC, or an approved
ISSC equivalent and what are termed ‘ship security
records’. The Explanatory Memorandum states that item
14 will allow:
…foreign flagged ships that have been
granted an exemption from holding an ISSC or an ISSC equivalent by
their flag State to also be exempt from the requirement to hold an
ISSC while in Australia. Such exemptions are usually only granted
for ‘one-off’ voyages for maintenance purposes and they
relieve the ship operator of unreasonable compliance costs. These
foreign flagged vessels remain regulated foreign vessels under the
MTOFSA and are subject to all other relevant provisions.
This amendment has been introduced to make the
MTOFSA consistent with the exemption power provided for in the
Safety of Life at Sea (SOLAS) Convention, to which Australia is a
signatory.
Items 17 and
18 will allow maritime security inspectors to make
a ‘moving image or any recording’ of equipment in
certain areas on a ship or offshore facility subject to the Act.
Currently they may only ‘photograph’ such equipment in
these same areas.[29] Item 19 will allow maritime security
inspectors to make any still or moving images or any recording of
equipment ‘in a place, vehicle or vessel under control of a
regulated maritime industry participant’.[30] The Explanatory Memorandum
comments that ‘currently no such power (not even the ability
to photograph) exists in these circumstances. This is an oversight
from when the powers of maritime security inspectors were first
established’.[31]
Item 20 inserts a new Division 2A,
‘Security assessment inspectors’ (SAIs), into Part 8 of
the MTOFSA. This division creates such positions under the Act,
sets out their powers and when they may be exercised, as well as
creating offences for hindering or obstructing such officers.
Criteria for appointment as a SAI will be prescribed in
regulations. The role of SAIs is to conduct security
assessments of areas, buildings (other than residences), vessels
and vehicles under the control of maritime industry
participants.[32]
The role is unlike other positions under the Act. The main
role of SAIs is to ensure the effectiveness of security policies,
whereas the main function of a maritime security inspector is to
inspect for contraventions under the Act.[33]
A SAI, for the purpose of conducting a security assessment, is
permitted to:
- enter and inspect,
- inspect equipment, and
- make still or moving images or any recording of the area,
facility, building (other than a residence), vessel or vehicle
under the control of maritime industry participants,
- observe operating procedures of the maritime industry
participants, and
- discuss these procedures with an employee of the maritime
industry participant or with another maritime industry
participant.
These powers may be exercised at any time and
without notice if exercised within the boundaries of a
security-regulated port, or otherwise after giving reasonable
notice to the maritime industry participant.[34] A person who hinders or
obstructs a SAI in the exercise of their powers may receive a
maximum of 50 penalty units ($5 500 fine).[35] Similar offences appear in the
MTOFSA in relation to maritime security inspectors[36] and duly authorised
officers.[37]
Items 21 and 22 insert an
additional power for screening officers to conduct frisk searches
as an alternative screening procedure.[38] The procedures available
currently to screening officers are discussed above in the
background to the MTOFSA.
Under the amendments, a person may choose, or may be
requested by a screening officer to undergo a frisk search
‘to the extent necessary to screen the person
properly’.[39] There are restrictions on this power. For
example, the ‘screening officer must not, unless
there is a reasonable excuse to do so,
- require a person to undergo a frisk search,
- conduct a frisk search without the person’s consent,
and
- when performing the frisk search, go beyond what is necessary
to search the person properly.
If a screening officer breaches one of these restrictions, he or
she may receive a maximum penalty of 50 penalty units ($5 500
fine).
A screening officer must refuse to allow a person to pass
through the screening point if a request for a frisk search is
refused (including in a private room with a screening officer of
the same sex) and, as a result, the person cannot be screened
properly.
The amendments listed in item 22 are identical
to sections 95A to 95C of the ATSA in relation to screening
procedures available to screening officers.
Items 24 and 25 allows the
Secretary to delegate all or any of his or her powers under the
MTOFSA to an ‘SES employee in the Attorney-General’s
Department’ and ‘the Agency Head of an Agency that
carries on activities that relate to national
security’.[40] These available delegates are in addition to
those already listed in the MTOFSA (discussed above in the
background to the MTOFSA). The Bill also allows an Agency
Head, who has been delegated powers from the Secretary, to
sub-delegate those powers to an SES Band 3 employee in the
Agency.[41]
The sub-delegation power under the MTOFSA will be identical to that
under the ATSA.[42]
Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library on (02) 6277 2764.
Angus Martyn and Xenia Stathopoulos
10 May 2010
Bills Digest Service
Parliamentary Library
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