Federal Register of Legislation - Australian Government

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A Bill for an Act to amend the law relating to the security of aviation and maritime transport and offshore facilities, and for related purposes
Administered by: Infrastructure and Transport
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Registered 26 Sep 2008
Introduced HR 25 Sep 2008

2008

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

TRANSPORT SECURITY AMENDMENT (2008 MEASURES NO. 1)
BILL 2008

 

 

 

 

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Infrastructure, Transport,

Regional Development and Local Government

the Honourable Anthony Albanese, MP)


TRANSPORT SECURITY AMENDMENT (2008 MEASURES NO. 1)
BILL 2008

 

OUTLINE

 

In 2007 a taskforce was established within the Office of Transport Security, a division of the Department of Infrastructure, Transport, Regional Development and Local Government, to review the ways in which the maritime security regime under the Maritime Transport and Offshore Facilities Security Act 2003 (MTOFSA) could be enhanced to continue to deliver effective security outcomes into the future.

 

The outcomes of the review formed the basis for the development of a series of legislative and policy proposals. The legislative proposals form the basis of this Bill.

 

The Bill amends both the MTOFSA and the Aviation Transport Security Act 2004 (ATSA).

 

In relation to the MTOFSA, the purpose of the Bill is to:

·        insert a definition of “Australia” so that the operation of the MTOFSA is extended to external Australian territories, such as Norfolk Island;

·        allow the Secretary to approve a maritime, ship or offshore security plan for up to 5 years (but no less than 12 months);

·        enable regulations to be made to prescribe mapping standards for maritime security zones and security regulated port boundaries, and standards for the presentation of information detailing offshore security zones, required to be produced by industry participants; and

·        ensure terms and definitions are used consistently throughout the MTOFSA.

 

The Bill amends both the ATSA and the MTOFSA to clarify that:

·        the Secretary may permit aviation industry participants to hold multiple security programs at the same time, and maritime industry participants to hold multiple security plans at the same time; and

·        prior to the commencement date, the operation of the ATSA and the MTOFSA did not prevent industry participants from holding more than one approved security program or plan.

 

FINANCIAL IMPACT STATEMENT

 

There is no financial impact.

 

The Commonwealth receives no direct financial benefit, however the Australian economy will benefit through the enhancement and increased flexibility of Australia’s preventive transport security arrangements.

 

 

 

 

 

NOTES ON CLAUSES

 

 

Clause 1: Short Title

 

1.      Clause 1 provides that the Act will be called the Transport Security Amendment (2008 Measures No. 1) Act 2008 once enacted.

 

 

Clause 2: Commencement

 

2.      Sections 1 to 3 of the Act will commence on the day the Act receives the Royal Assent. Schedule 1 will commence the day after the end of the period of 2 months beginning on the day on which the Act receives the Royal Assent.

 

 

Clause 3: Schedule(s)

 

3.      This clause provides that each of the Acts specified in a Schedule to this Act is amended as set out in Schedule 1.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Schedule 1 – Amendments

 

Schedule 1 amends both the Aviation Transport Security Act 2004 and the Maritime Transport and Offshore Facilities Security Act 2003.

 

Descriptions of items in the Bill have been grouped to improved readability and reduce repetition.

 

Aviation Transport Security Act 2004

 

Amendments to the Aviation Transport Security Act 2004

 

Item 1 – Section 12

Item 3 – Paragraph 13(1)(c)

Item 4 – Subsection 17(2)

Item 7 – Subsection 23(1)

Item 10 – Subsection 125(1)

 

1.      The above items are minor technical amendments consequential to Item 2 below to ensure that the sections, as drafted, do not prevent an aviation industry participant from holding multiple transport security programs at the same time.

 

2.      Item 1 inserts “(1)” before “The”. Item 3 omits the words “no transport security” and substitute with “not such a”. Item 4 omits the phrase “A transport security program for an airport operator” and substitutes it with “An airport operator’s transport security program for a security controlled airport”. Item 7 omits the words “a revised program under section 22”, and substitutes it with “another transport security program (the revised program)”. Item 10 omits “of the” and substitutes with “of a”.

 

Item 2 – At the end of section 12

 

3.      The existing section 12 outlines the aviation industry participants that are required to have a transport security program. However, as currently drafted, it is unclear as to whether a participant may have more than one program.

 

4.      Item 2 inserts new subsections 12(2) to 12(4) which expressly permit the Secretary to approve multiple programs for a participant.

 

5.      The Secretary may, by way of a written notice, allow a participant to have multiple transport security programs at the same time. The notice must specify the operations or locations to be covered by each program.

 

Item 5 – Paragraph 20(3)(a)

                                      

6.      This is a minor technical amendment consequential to Item 6 and 9. It omits “22(2)” and substitutes with “22(4) or 23(4)”.

 

 

 

Item 6 – Section 22

 

7.      Item 6 repeals existing section 22 and inserts new subsections 22(1) to 22(4) providing that where an existing plan is in force, a participant may write to the Secretary requesting the approval of another program in place of the existing program. The request is to be accompanied by a copy of the revised program.

 

8.      The amendment expressly provides that the approval of a revised program only replaces the relevant existing program and no others. The purpose of this amendment is to facilitate participants who may have more than one program.

 

Item 8 – After subsection 23(2)

 

9.      This item clarifies that if a revised program is submitted to the Secretary upon direction from the Secretary, sections 19 and 20 apply in relation to that particular program. Sections 19 and 20 deal with the approval process of a program and when a program is in force respectively. The new program effectively comes into force when approved and the five year period, or such lesser period as the Secretary specifies, starts again.

 

Item 9 – At the end of section 23

 

10.  This item clarifies that when a revised program comes into force, it replaces the existing program. In the case of a participant who has multiple programs at a given time, a revised program replaces only the relevant existing program and not all programs held by that participant.

 

Item 11 – Savings and transitional provisions for multiple programs

 

11.  Item 11 inserts a savings provision to ensure that, prior to the commencement of these amendments, the ATSA does not prevent an aviation industry participant from holding more than one transport security program at the same time, so long as those programs covered different operations or locations.

 

12.  The ATSA is taken to apply to each of those programs as if it were the only program for the participant.

 

13.  This item also inserts a transitional provision that clarifies that if a participant has multiple programs in force at the time of commencement of these amendments, the Secretary is taken to have given a notice under subsection 12(2) giving approval for the participant to hold multiple programs.

 

 

 

 

 

 

 

 

 

Maritime Transport and Offshore Facilities Security Act 2003

 

Amendments to the Maritime Transport and Offshore Facilities Security Act 2003

 

Part 1 - Definitions

 

Item 12 - Section 10

 

14.  Item 12 inserts “Australia” as a new term under section 10. “Australia” is defined to include each Australian external territory. This definition is more expansive than that provided by the Acts Interpretation Act 1901. It extends the operation of the MTOFSA to external Australian territories, such as Norfolk Island.

 

Item 13 - Section 10

 

15.  Item 13 amends the definition of “port facility”. It clarifies that a port facility is a place used in connection with the loading or unloading of security regulated ships, not any ship. By inserting “security regulated” before “ships” the amendment ensures consistency with subsection 13(1).

 

 

Part 2: Multiple maritime security plans

 

Item 14 – Section 42

Item 16 – Paragraph 43(1)(c)

Item 17 – Paragraph 44(1)(b)

Item 19 - Paragraph 47(1)(b)

Item 57 – Subsection 199(1)

 

16.  The above items are minor amendments consequential to Item 15 below to ensure that the sections, as drafted, do not prevent a maritime industry participant from holding multiple security plans at the same time.

 

17.  Item 14 inserts “(1)” before “The”. Item 16 omits “no maritime security” and substitutes it with “not such a”. Item 17 omits “a maritime security plan” and substitutes it with “such a”. Item 19 inserts “under the plan” after “participant”. Item 57 omits “of the” and substitutes it with “of a”.

 

Item 15 – At the end of section 42

 

18.  Existing section 42 specifies which maritime industry participants are required to have maritime security plans. As currently drafted it is unclear as to whether a participant may have more than one plan.

 

19.  Item 15 adds new subsections 42(2) to 42(4) which expressly permit the Secretary to approve multiple plans for a maritime industry participant.

 

20.  The Secretary may, by way of a written notice, allow a maritime industry participant to have multiple maritime security plans at the same time. The notice must specify the operations or locations covered by each plan.

 

21.  Item 15 recognises that maritime industry participants may be responsible for operating one facility or multiple facilities; it provides flexibility to industry in their approach to the preparation of maritime security plans.

 

Item 18 – Paragraph 47(1)(a)

 

22.  This amendment is related to Item 15. It clarifies that where the Secretary permits a maritime industry participant to have more than one maritime security plan, and one or more of those plans covers multiple operations or locations, the security assessment required to be included with each plan must address the operations or locations covered by each plan.

 

Item 25 – Subsection 54(1)

Item 26 – Subsection 54(4)

 

23.  These amendments are also related to Item 15.

 

24.  Item 25 repeals subsection 54(1) and inserts a new subsection clarifying that a maritime industry participant who holds an approved maritime security plan (referred to as the “existing plan”) can request the Secretary to approve another plan in its place (referred to as the “revised plan”).

 

25.  Item 26 repeals subsection 54(4) and inserts a new subsection clarifying that if a revised plan comes into force, it replaces the existing plan only (and not any other plans held by the participant). This facilitates the holding of multiple maritime security plans by maritime industry participants.

 

Item 27 – Subsection 55(4)

 

26.  Item 27 is a consequential amendment due to amendments at Item 25 and Item 26. Section 55 provides the Secretary may direct participants to revise maritime security plans. Item 27 clarifies that if a revised maritime security plan is submitted to the Secretary pursuant to a direction by the Secretary under Section 55, the revised plan will replace only the existing plan and no others held by the participant.

 

Item 29 - Savings and transitional provisions for multiple plans

 

27.  Item 29 inserts a savings provision to ensure that, prior to the commencement of these amendments, the MTOFSA did not prevent a maritime industry participant from holding more than one maritime security plan at the same time.

 

28.  The MTOFSA is taken to apply to each security plan as if it were the only plan for the participant.                   

     

29.  This item also inserts a transitional provision that clarifies that if a participant has multiple plans in force at the time of commencement of these amendments, the Secretary is taken to have given the participant a notice under the new subsection 42(2) (as detailed at Item 15) giving approval to the participant to have multiple security plans.

Part 3: Multiple offshore security plans

 

Item 33 – Section 100B

Item 35 - Paragraph 100C(1)(b)

Item 36 - Paragraph 100D(1)(b)

Item 38 – Paragraph 100G(1)(b)

Item 58 – Subsection 200A(1)

 

30.  The above items are minor technical amendments consequential to Item 34 below to ensure that the sections, as drafted, do not prevent an offshore industry participant from holding multiple offshore security plans.

 

31.  Item 33 inserts “(1)” before “The”. Item 35 omits “no offshore security” and substitutes with “not such a”. Item 36 omits “an offshore security plan” and substitutes it with “such a”. Item 38 inserts “under the plan” after “participant”. Item 58 omits “of the” and substitutes it with “of an”.

 

Item 34 – At the end of section 100B

 

32.  The existing section 100B specifies which offshore industry participants are required to have offshore security plans. As currently drafted it is not clear whether a participant can have more than one plan.

 

33.  Item 34 adds subsections 100B(2) to 100B(4) which permit the Secretary to approve multiple offshore security plans for an industry participant.

 

34.  The Secretary may by way of a written notice, allow an offshore industry participant to have multiple offshore security plans. The notice must also specify the operations or locations covered by each plan.

 

35.  Item 34 recognises that offshore industry participants may be responsible for operating one facility or multiple facilities; it provides flexibility to industry in their approach to the preparation of offshore security plans.

 

Item 37 – Paragraph 100G(1)(a)

 

36.  This amendment is related to Item 34. It clarifies that where an offshore industry participant has been permitted by the Secretary to have more than one offshore security plan, and one or more of those plans covers multiple operations or locations, the security assessment required to be included with each plan must address the operations or locations covered by each plan.

 

Item 43 – Subsection 100N(1)

Item 44 – Subsection 100N(4)

 

37.  These amendments are also related to Item 34.

 

38.  Item 43 repeals subsection 100N(1) and inserts a new subsection clarifying that an industry participant who holds an approved offshore security plan (referred to as the “existing plan”) can request the Secretary to approve another plan in its place (referred to as the “revised plan”).

 

39.  Item 44 repeals subsection 100N(4) and inserts a new subsection clarifying that if a revised plan comes into force, it replaces the existing plan only (and not any other plans held by the participant). This facilitates the holding of multiple offshore security plans by industry participants.

 

Item 45 – Subsection 100O(4)

 

40.  Item 45 is a consequential amendment due to amendments made under Item 43 and Item 44. Section 100O provides the Secretary may direct participants to revise offshore security plans. Item 45 clarifies that if a revised plan is submitted to the Secretary pursuant to a direction by the Secretary under Section 100O, the revised plan will replace only the existing plan and no others held by the participant.

 

Item 47 - Savings and transitional provisions for multiple plans

 

41.  Item 47 inserts a savings provision to ensure that prior to the commencement of these amendments, the MTOFSA did not prevent an offshore industry participant from holding more than one offshore security plan at the same time.

 

42.  This item makes it clear that the MTOFSA is taken to apply to each security plan as if it were the only plan for the participant.

 

43.  This item also inserts a transitional provision that clarifies that if a participant has multiple plans in force at the time of commencement of these amendments, the Secretary is taken to have given the participant a notice under the new subsection 100B(2) (as detailed at Item 34) giving approval to the participant to have multiple security plans.

 

 

Part 4 – Maps and maritime, ship and offshore security plans

 

Item 20 – Subsection 49(2)

 

44.  Mapping requirements to date have resulted in inconsistent approaches to format, quality and accuracy of maps. Item 20 provides the legislative basis for the prescription of mapping standards in the Maritime Transport and Offshore Facilities Security Regulations 2003 (the regulations).

 

45.  The existing provision states that a maritime security plan must “be accompanied by” maps showing various port security zones. Therefore, under the existing provision, maps were separate documents to be submitted with the maritime security plan to the Secretary. Under this arrangement, there was no avenue to allow the Secretary to impose any requirements as to how maps were to be set out. The proposed amendment omits the phrase “be accompanied by” and substitutes “include”. As a result, the maps specified under subsection 49(2) will form part of the maritime security plan. Under subsection 49(1)(b) a “maritime security plan must be prepared in accordance with any requirements set out in the regulations”. Accordingly, by “including” maps into the actual maritime security plan, the Secretary has the power to set out any requirements in the regulations as to how the maps should be set out.

    

Item 21 – Subsection 49(3)

 

46.  Item 21 amends subsection 49(3) and ensures consistency with the amendment at Item 20. It clarifies that a maritime security plan for a port operator must include a map of the whole security regulated port. This is distinct from the previous wording of the subsection which required a map to accompany a maritime security plan.

 

Item 23 – Subsection 52A(3)

 

47.  Item 23 is a consequential amendment to Item 20; it omits “is accompanied by” and substitutes “include”.

 

Item 24 – After subsection 52A(3)

 

48.  Item 24 further amends subsection 52A(3) by introducing a new subsection 52A(3A). Subsection 52A(3A) requires a map submitted under 52A(3) in the course of a plan variation under the section, to be prepared in accordance with any requirements set out in the regulations.

 

Item 31 – After subsection 71A(2)

 

49.  Item 31 amends subsection 71A(2) by introducing a new subsection 71A(2A). Subsection 71A(2A) requires an industry participant who has submitted a variation notice for a ship security plan pursuant to section 71A to ensure that the notice is prepared in accordance with any requirements set out in the regulations. The aim of this amendment is to ensure consistency with Item 24.

 

Item 39 – Subsection 100I(2)

 

50.  Section 100I deals with the form of offshore security plans. Unlike maritime security plans which require maps, as currently drafted, offshore security plans must be accompanied by information on the location of each offshore facility to which the plan relates.

 

51.  The existing provision states that an offshore security plan must “be accompanied by” information on offshore security zones. Therefore, under the existing provision, such information is submitted to the Secretary as a separate document to the offshore security plan. Under this arrangement, there was no avenue to allow the Secretary to impose requirements as to how such information was to be set out. The proposed amendment omits the phrase “be accompanied by” and substitutes “include”. As a result, the information specified under subsection 100I(2) will form part of the offshore security plan. Under subsection 100I(1)(b) an “offshore security plan must be prepared in accordance with any requirements set out in the regulations”. Accordingly, by “including” such information into the actual offshore security plan, the Secretary has the power to set out any requirements in the regulations as to how such information should be set out. This is consistent with the amendments made under Item 20 above.

 

Item 41 – Subsection 100LA(3)

 

52.  Item 41 is a consequential amendment to Item 39; it omits “is accompanied by” and substitutes “include”.

 

Item 42– After subsection 100LA(3)

 

53.  Item 42 introduces a new subsection 100LA(3A). Subsection 100LA(3A) requires an offshore industry participant who has submitted a variation notice for an offshore security plan pursuant to section 100LA to ensure that the notice is prepared in accordance with any requirements set out in the regulations. The aim of this amendment is to ensure consistency with Item 24.

 

Item 48 – Paragraph 102(2A)(a)

Item 49 – Subsection 102(2A)

Item 50 – Paragraph 102(2B)(a)

Item 51 – Subsection 102(2B)

 

54.  Items 48, 49, 50 and 51 are consequential amendments to ensure consistency with the amendment at Item 20. Item 48 omits “is accompanied by” and substitutes “includes”; Item 49 omits “accompanying” and substitutes “included in”; Item 50 omits “is accompanied by” and substitutes “includes”; and Item 51 omits “accompanying” and substitutes “included in”.

 

Item 52 – Paragraph 113A(2A)(a)

Item 53 – Subsection 113(2A)

Item 54 – Paragraph 113A(2B)(a)

Item 55 – Subsection 113(2B)

 

55.  Items 52, 53, 54 and 55 are consequential amendments to ensure consistency with the amendment at Item 39. Item 52 omits “is accompanied by” and substitutes “includes”; Item 53 omits “accompanying” and substitutes “included in”; Item 54 omits “is accompanied by” and substitutes “includes”; and Item 55 omits “accompanying” and substitutes “included in”.

 

 

Part 5 – Approval periods for maritime, ship and offshore security plans

 

Item 22 - Subsection 52(3)

 

56.  This amendment provides for the Secretary to approve maritime security plans for a period of 5 years or less (but no less than 12 months). The period in which a security plan is to be in force must be set out by the Secretary in the notice of approval. The intention of this amendment is to provide greater flexibility to respond to industry requests and changes in the security environment.

 

 

Item 28 - Section 56

 

57.  Item 28 repeals section 56 as a consequence of the amendment at Item 22.

 

Item 30 - Subsection 71(3)

 

58.  This amendment provides for the Secretary to approve ship security plans for a period of 5 years or less (but no less than 12 months). The period which a security plan is to be in force must be set out by the Secretary in the notice of approval. The intention of this amendment is to provide greater flexibility to respond to industry requests and changes in the security environment.

 

Item 32 - Section 75

 

59.  Item 32 repeals section 75 as a consequence of the amendment at Item 30.

 

Item 40 - Subsection 100L(3)

 

60.  This amendment provides for the Secretary to approve offshore security plans for a period of 5 years or less (but no less than 12 months). The period which a security plan is to be in force must be set out by the Secretary in the notice of approval. The intention of this amendment is to provide greater flexibility to respond to industry requests and changes in the security environment.

 

Item 46 - Section 100P

 

61.  Item 46 repeals section 100P as a consequence of the amendment at Item 40.

 

Item 59 – Paragraph 201(d)

 

62.  Item 59 is a consequential amendment and ensures consistency with Items 22, 30 and 40 by inserting “the approval of” after “cancel”.

 

 

Part 6 – Technical amendments

 

Item 56 - Section 113A(2B)(b)

 

63.  Item 56 corrects a technical drafting error by omitting “port” and substituting “offshore facility”.