Maritime Transport and Offshore Facilities Security Amendment Regulations 2007 (No. 2) (Cth)

Maritime Transport and Offshore Facilities Security Amendment Regulations 2007 (No. 2)¹

Select Legislative Instrument 2007 No. 173

I, PHILIP MICHAEL JEFFERY, Governor‑General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Maritime Transport and Offshore Facilities Security Act 2003.

Dated 21 June 2007

P. M. JEFFERY

Governor‑General

By His Excellency’s Command

MARK VAILE

Minister for Transport and Regional Services

Name of Regulations

These Regulations are the Maritime Transport and Offshore Facilities Security Amendment Regulations 2007 (No. 2).

Commencement

These Regulations commence as follows:

(a)on 1 July 2007 — regulations 1 to 3 and Schedule 1;

(b)on 3 September 2007 — Schedule 2.

Amendment of Maritime Transport and Offshore Facilities Security Regulations 2003

Schedules 1 and 2 amend the Maritime Transport and Offshore Facilities Security Regulations 2003.

Schedule 1 Amendments commencing on 1 July 2007

(regulation 3)

[1] Regulation 6.07B, after definition of ASIO

insert

AusCheck scheme means the scheme prescribed for the purposes of section 8 of the AusCheck Act 2007.

[2] Regulation 6.07B, definition of background check

substitute

background check, in relation to a person, is a reference to any of the following:

(a)a criminal records check of the person;

(b)unless a security assessment of the person has previously been conducted — a security assessment of the person conducted by ASIO;

(c)an assessment, under the AusCheck scheme, of information about any of the matters mentioned in section 5 of the AusCheck Act 2007.

[3] Regulation 6.07B, paragraph (a) of definition of conviction

substitute

(a)a spent conviction (within the meaning given by subsection 85ZM (2) of that Act) if Division 3 of Part VIIC of that Act applies to the person; or

[4] Regulation 6.07B, after definition of conviction

insert

Note 1 Under the definition of conviction in subsection 85ZM (1) of the Crimes Act 1914, a person is also taken to have been convicted of an offence if the person has been convicted of the offence but no conviction has been recorded, and if a court has taken the offence into account in sentencing the person for another offence (see paragraphs 85ZM (1) (b) and (c)).

Note 2 Under Part VIIC of the Crimes Act 1914, if a person receives a free and absolute pardon for an offence against a law of the Commonwealth or a Territory because the person was wrongly convicted of the offence, the person is taken for all purposes never to have been convicted (see section 85ZR).

Note 3 In certain circumstances, Division 3 of Part VIIC of the Crimes Act 1914 ceases to apply to a person in relation to a spent conviction if Division 4 (Convictions of further offences) applies.

Note 4 Under the Crimes Act 1914, a person need not disclose convictions that:

(a)have been quashed (see section 85ZT); or

(b)are spent (see section 85ZV).

Note 5 Convictions for disqualifying offences do not become spent for the purposes of an authority assessing whether to issue the convicted person with an MSIC — see the Crimes Act 1914, paragraph 85ZZH (k), and the Crimes Regulations 1990, regulation 8 and Schedule 4.

[5] Regulation 6.07B, after definition of MSIC implementation period

insert

Secretary AGD means the Secretary who is responsible for administering the AusCheck scheme.

[6] Regulation 6.07B, notes 1 to 4 after definition of temporary MSIC

omit

[7] Regulation 6.07K, heading

substitute

6.07KPerson given disqualifying notice not to enter maritime security zone

[8] Subregulation 6.07K (1)

omit

Secretary

insert

Secretary, or Secretary AGD,

[9] Subregulation 6.08B (2)

omit

An applicant

insert

If a background check is not to be performed under the AusCheck scheme, an applicant

[10] After regulation 6.08B

insert

6.08BAApplication for background check

(1)An issuing body may apply to the Secretary AGD for a background check on:

(a)an applicant for an MSIC, if the issuing body proposes to issue an MSIC to the person; or

(b)a person employed by the issuing body to issue MSICs.

(2)An issuing body may apply to the Secretary AGD for a background check on a person employed by the issuing body to issue MSICs:

(a)before the person begins to issue MSICs; and

(b)every 5 years afterwards.

[11] Subregulation 6.08C (2)

omit

and (ii),

insert

and (ii), if the background check is not performed under the AusCheck scheme,

[12] After subregulation 6.08D (2)

insert

(2A)However, if the background check is performed under the AusCheck scheme, the Secretary AGD must send the person the notice mentioned in subregulation (2) and give a copy of the notice to the Secretary.

[13] Before subregulation 6.08H (1)

insert

(1A)Subregulation (1) applies if a background check is not performed under the AusCheck scheme.

[14] Subregulation 6.08I (1)

substitute

(1)Unless earlier cancelled, an MSIC expires 5 years after the day when the criminal history check was completed.

[15] Paragraph 6.08I (2) (a)

omit

6.08C (3)

insert

6.08C (4)

[16] Subparagraph 6.08K (1) (a) (ii)

substitute

(ii)subregulation (2) applies to the person; or

(iii)subregulation (2A) applies to the person; and

[17] After subregulation 6.08K (2)

insert

(2A)This subregulation applies to a person if:

(a)the person’s application for the issue of an MSIC has been approved by the issuing body; and

(b)he or she has not yet received the MSIC.

[18] Paragraph 6.08K (5) (b)

omit

Secretary

insert

Secretary, or Secretary AGD,

[19] After subregulation 6.08K (5)

insert

(6)If the participant issues a temporary MSIC to a person to whom subregulation (2A) applies, the temporary MSIC will expire on the earliest of the following:

(a)the beginning of the day 2 months after the day when the temporary MSIC is issued;

(b)the day the MSIC holder receives his or her MSIC.

[20] After subregulation 6.08L (5)

insert

(6)If an issuing body issues a replacement MSIC under this regulation, the replacement MSIC must have an identifying number that is unique among MSICs issued by the issuing body.

[21] After regulation 6.08L

insert

6.08LASpecial arrangements for persons with visa extensions

An issuing body may issue an MSIC to a person, if the person:

(a)was the holder of an MSIC (the old MSIC) that expired because the person’s visa (the old visa) has expired; and

(b)holds a new visa entitling him or her to work in Australia, that was issued less than 12 months after the expiry of the old visa; and

(c)continues to have an operational need to hold an MSIC; and

(d)gives the issuing body a statutory declaration stating that, since the expiry of the old visa, none of the information given in relation to the application for the old MSIC has changed.

Schedule 2 Amendments commencing on 3 September 2007

(regulation 3)

[1] Regulation 6.07B, definition of background check

substitute

background check, for an individual, means an assessment, under the AusCheck scheme, of information about any of the matters mentioned in section 5 of the AusCheck Act 2007.

[2] Regulation 6.08B

substitute

6.08BMSICs — application for issue

A person may, in writing, apply to an issuing body for the issue of an MSIC if he or she has an operational need to hold an MSIC.

[3] Paragraphs 6.08C (1) (d) and (e)

substitute

(d)the issuing body has been notified in writing that a security assessment of the person has been made, and:

(i)the assessment was not adverse; or

(ii)if the assessment was qualified — the issuing body has received a notice from the Secretary that an MSIC may be issued because the person is not a threat to the security of maritime transport or an offshore facility; and

(e)the issuing body has been notified in writing that a criminal history check of the person has been made, and:

(i)the check shows that the person does not have an adverse criminal record; or

(ii)if the check shows that the person has an adverse criminal record — the Secretary has approved an application to issue an MSIC to the person under paragraph 6.08F (3) (a).

[4] Subregulation 6.08C (2)

omit

[5] After regulation 6.08C

insert

6.08CATransitional arrangement — criminal history

(1)Despite the repeal of subregulation 6.08C (2), that subregulation continues to apply if, before 3 September 2007:

(a)the AFP received a request for a criminal records check to be conducted in relation to a person; and

(b)the Secretary has not completed an assessment to decide if the person has an adverse criminal record.

(2)If, before 3 September 2007, the Secretary:

(a)received information that a person has been convicted of a disqualifying offence or has an adverse security assessment; and

(b)has not sent the person a disqualifying notice under subregulation 6.08D (2);

the Secretary must send the disqualifying notice under subregulation 6.08D (2).

[6] Subregulation 6.08D (2)

omit

Secretary

insert

Secretary AGD

[7] Subregulation 6.08D (2A)

substitute

(2A)The Secretary AGD must give the Secretary a copy of a notice issued under subregulation (2).

[8] Subregulation 6.08F (5)

omit

because, under paragraph 6.08C (1) (e),

insert

because

[9] Regulation 6.08H

substitute

6.08HPersons the subject of qualified security assessments

(1)If a security assessment of a person is a qualified security assessment, the Secretary must:

(a)if the Secretary is satisfied that the holding of an MSIC by the person would not constitute a threat to the security of maritime transport or an offshore facility — give the issuing body a written notice stating that an MSIC may be issued because the person is not a threat to the security of maritime transport or an offshore facility; or

(b)if the Secretary is satisfied that the holding of an MSIC by the person would constitute a threat to the security of maritime transport or an offshore facility — give the issuing body a written direction not to issue the MSIC to the person.

(2)The Secretary must give the person a notice stating that the Secretary has given the issuing body a notice under paragraph (1) (a) or a direction under paragraph (1) (b).

(3)An issuing body must not issue an MSIC to a person in contravention of a direction under paragraph (1) (b).

Penalty: 20 penalty units.

(4)In this regulation:

qualified security assessment has the same meaning as in Part IV of the Australian Security Intelligence Organisation Act 1979.

Note For a person’s notification and review rights in relation to a security assessment — see the Australian Security Intelligence Organisation Act 1979, section 38.

6.08HAProvision of information to Secretary AGD

If the Secretary makes a decision under regulation 6.08F or 6.08H, the Secretary must tell the Secretary AGD about the decision.

[10] Paragraph 6.08K (5) (b)

omit

Secretary, or Secretary AGD,

insert

Secretary AGD

Note

All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See