Maritime Transport and Offshore Facilities Security Amendment Regulations 2010 (No. 1) (Cth)

Maritime Transport and Offshore Facilities Security Amendment Regulations 2010 (No. 1)¹

Select Legislative Instrument 2010 No. 178

I, QUENTIN BRYCE, 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 29 June 2010

QUENTIN BRYCE

Governor-General

By Her Excellency’s Command

ANTHONY ALBANESE

Minister for Infrastructure, Transport, Regional Development and Local Government

Contents

1Name of Regulations                                            2

2Commencement                                                 2

3Amendment of Maritime Transport and Offshore Facilities Security Regulations 2003 2

4Amendment of Maritime Transport and Offshore Facilities Security Regulations 2003 3

5Transitional                                                       3

Schedule 1Amendments commencing on later of 1 July 2010 or day after registration 3

Schedule 2Amendments commencing on 1 December 2010 9

Name of Regulations

These Regulations are the Maritime Transport and Offshore Facilities Security Amendment Regulations 2010 (No. 1).

Commencement

These Regulations commence as follows:

(a)on the later of 1 July 2010 or the day after these Regulations are registered — regulations 1 to 3 and 5 and Schedule 1;

(b)on 1 December 2010 — regulation 4 and Schedule 2.

Amendment of Maritime Transport and Offshore Facilities Security Regulations 2003

Schedule 1 amends the Maritime Transport and Offshore Facilities Security Regulations 2003.

Amendment of Maritime Transport and Offshore Facilities Security Regulations 2003

Schedule 2 amends the Maritime Transport and Offshore Facilities Security Regulations 2003.

Transitional

(1)This regulation applies if an application under regulation 6.08BA for a background check in relation to the issue of a maritime security identification card (an MSIC) is made before the commencement of Schedule 1.

(2)The amendments made by items [2], [3], [5], [6] and [9] of Schedule 1 do not apply in relation to the issue of the MSIC.

Schedule 1 Amendments commencing on later of 1 July 2010 or day after registration

(regulation 3)

[1] Regulation 6.07B

omit

In this

insert

(1)In this

[2] Regulation 6.07B, definition of disqualifying offence

substitute

disqualifying offence means a maritime-security-relevant offence mentioned in Part 1 of Schedule 1.

[3] Regulation 6.07B, after definition of issuing body

insert

maritime-security-relevant offence means an offence relating to a matter mentioned in an item in Schedule 1 against a law of:

(a)the Commonwealth, a State or Territory; or

(b)a foreign country or part of a foreign country.

[4] Regulation 6.07B

insert

(2)For this Division, a person’s security assessment is adverse if there is an adverse security assessment within the meaning of subsection 35 (1) of the Australian Security Intelligence Organisation Act 1979 for the person.

[5] Regulation 6.07C, including Table 6.07C and notes

omit

[6] Regulation 6.08A, note

substitute

Note For the meaning of maritime-security-relevant offence, see regulation 6.07B.

[7] After paragraph 6.08F (5) (a)

insert

(ab)if the person was convicted of the offence before becoming the holder of an MSIC; and

[8] Regulation 7.30

substitute

7.30Methods, techniques and equipment to be used for screening — Secretary’s notice

(1)For subsection 119 (3) of the Act, the Secretary may, by written notice, state 1 or more of the following:

(a)the method to be used for screening under this Part;

(b)the technique to be used for screening under this Part;

(c)the equipment to be used for screening under this Part.

Note The notice may provide that the notice is to be given only to the person, or class of persons, specified in the notice — see subsection 119 (3) of the Act.

(2)A notice under subregulation (1) is binding on a person only if it has been served on the person.

7.31Equipment to be used for screening — no notice

(1)This regulation applies if there is no notice in force under regulation 7.30 stating the equipment to be used for screening under this Part.

(2)For subsection 119 (1) of the Act, the equipment to be used for screening under this Part must be capable of detecting prohibited items and weapons on persons or in baggage.

Note For the meaning of prohibited item and weapon, see section 10 of the Act and regulations 1.60 and 1.65.

(3)The equipment may comprise a combination of screening equipment such as a walk‑through metal detector, hand‑held metal detector, trace explosive detection device and x‑ray equipment.

[9] After regulation 13.05

insert

Schedule 1 Maritime-security-relevant offences

(subregulation 6.07B (1))

Part 1 Disqualifying offences

Item	Matter
1.1	terrorism
1.2	treason, sedition, espionage or selling national secret
1.3	weapon of mass destruction
1.4	hijacking or destruction of an aircraft, vessel or offshore facility

Part 2 Other maritime-security-relevant offences

Item	Matter
2.1	armed attack relating to aircraft, airport, vessel, port or offshore facility
2.2	unlawful interference with maritime transport, offshore facility or aviation
2.3	threat to endanger aircraft, airport, vessel or port
2.4	theft of aircraft or vessel
2.5	piracy
2.6	assassination, murder, attempted murder or manslaughter
2.7	threat to murder
2.8	aggravated assault including the following, whether or not the assault results in injury: · grievous bodily harm · actual bodily harm · torture · wounding · aggravated sexual assault · assault with use of weapon · assault in company
2.9	kidnap
2.10	hostage-taking, deprivation of liberty or false imprisonment
2.11	people smuggling or people trafficking
2.12	racial hatred or racial vilification
2.13	affray or riot
2.14	arson or sabotage
2.15	threat to cause fire or explosion
2.16	unlawful activity relating to weapons, firearms or explosives (not including weapons of mass destruction)
2.17	armed robbery
2.18	destruction of or damage to property belonging to the Commonwealth
2.19	threat to destroy or damage property belonging to the Commonwealth
2.20	hinder or resist government officer concerned with national security
2.21	bribery or corruption
2.22	extortion, blackmail or racketeering
2.23	money laundering
2.24	false testimony, perjury or subverting the course of justice
2.25	forgery or fraud, including identity fraud
2.26	supply false documentation to get a weapons, explosives or vehicle licence
2.27	unlawful activity relating to passports or visas
2.28	impersonate, misrepresent or falsely advertise a profession or professional status
2.29	deceptive business practice
2.30	import, export, supply, manufacture or cultivate illegal drug or controlled substance
2.31	permit premises to be used for taking, selling or distributing illegal drugs or controlled substances
2.32	conspiracy to commit an offence related to a matter mentioned in items 1.1 to 1.4 and 2.1 to 2.31.

Note 1 A person convicted of an offence mentioned in Part 1 of Schedule 1 is disqualified from holding an MSIC but, under subregulation 6.08X (6), is entitled to seek reconsideration of the decision to issue a disqualifying notice.

Note 2 An issuing body must not issue an MSIC to a person who has been convicted of an offence mentioned in Part 2 of Schedule 1 and sentenced to imprisonment unless the Secretary, acting under regulation 6.08F, approves the issue of an MSIC to the person.

[10] Further amendments — decision reviewed

The note to each of the following provisions is amended by omitting ‘notice reviewed.’ and inserting ‘decision reviewed.’:

·subregulation 6.07P (2)

·subregulation 6.07R (6)

·subregulation 6.07T (3)

·subregulation 6.07W (4)

·subregulation 6.08F (3)

·subregulation 6.08M (2).

Schedule 2 Amendments commencing on 1 December 2010

(regulation 4)

[1] Paragraph 6.07A (2) (d)

substitute

(d)the expiry, suspension and cancellation of MSICs; and

[2] Regulation 6.07B, after definition of MSIC applicant

insert

qualified security assessment has the meaning given by subsection 35 (1) of the Australian Security Intelligence Organisation Act 1979.

[3] Paragraph 6.07D (1) (b)

substitute

(b)it is not expired, suspended or cancelled; and

[4] Subdivision 6.1A.4, heading

substitute

Subdivision 6.1A.4 MSICs: issue, expiry, suspension and cancellation

[5] Regulation 6.08B

substitute

6.08BMSICs — application

(1)A person may, in writing, apply to an issuing body for an MSIC if the person has an operational need to hold an MSIC.

(2)The person must state in the application whether the person is applying for an MSIC that is to be in force for 2 years or 4 years.

[6] Paragraph 6.08BA (2) (b)

omit

5 years

insert

2 years

[7] After subregulation 6.08H (1)

insert

Note For a person’s notification and review rights in relation to a qualified security assessment, see section 38 and Division 4 of Part IV of the Australian Security Intelligence Organisation Act 1979.

[8] Subregulation 6.08H (4), including the note

omit

[9] Regulation 6.08HA

omit

6.08F or 6.08H,

insert

6.08F, 6.08H, 6.08MB, 6.08MC or 6.08X,

[10] Subregulation 6.08I (1)

substitute

(1)Unless earlier cancelled, an MSIC expires:

(a)if the holder applied for an MSIC that is to be in force for 2 years — 2 years after the day the criminal history check on the holder for the issue of the MSIC is completed; or

(b)if the holder applied for an MSIC that is to be in force for 4 years — 4 years after the day the criminal history check on the holder for the issue of the MSIC is completed.

[11] After subregulation 6.08I (2)

insert

(3)If an MSIC is suspended under regulation 6.08LF, the MSIC expires on the date it would have expired if it had not been suspended.

(4)If an MSIC is cancelled and the cancellation is set aside (however described) by the Secretary or the Administrative Appeals Tribunal, the MSIC expires on the date it would have expired if it had not been cancelled.

[12] After regulation 6.08LA

insert

6.08LBHolder must report convictions

(1)The holder of an MSIC commits an offence if the holder:

(a)is convicted of a maritime-security-relevant offence; and

(b)fails to tell the Secretary AGD or the issuing body for the holder’s MSIC, in writing, not later than 7 days after the day of the conviction, about each of the following matters:

(i)the holder’s name, date of birth and residential address;

(ii)the court attended by the holder in relation to the offence;

(iii)the date of the conviction.

Penalty: 20 penalty units.

(2)An offence against subregulation (1) is an offence of strict liability.

6.08LCApplication by Secretary for background check on holder of MSIC

(1)The Secretary may apply to the Secretary AGD for a background check on the holder of an MSIC if the Secretary considers on reasonable grounds that the holder:

(a)has been convicted of a maritime‑security-relevant offence; or

(b)constitutes a threat to maritime transport or offshore facility security.

(2)In considering the matter mentioned in paragraph (1) (a) or (b), the Secretary must take into account:

(a)any information provided to the Secretary by the holder of the MSIC or the issuing body for the MSIC; and

(b)any information provided to the Secretary by the Secretary AGD or a law enforcement agency (however described) about the holder; and

(c)anything else relevant that the Secretary knows about.

6.08LDApplication by issuing body for background check on holder of MSIC

(1)If an issuing body has issued an MSIC to a holder for 4 years, the issuing body must apply to the Secretary AGD for a background check on the holder.

(2)The application must be made not earlier than 22 months, but not later than 24 months, after the day the criminal history check on the holder for the issue of the MSIC was completed.

Note If the issuing body does not apply for the background check, the issuing body must cancel the MSIC — see paragraph 6.08M (1) (eb).

(3)An issuing body for an MSIC commits an offence if:

(a)the holder of the MSIC tells the issuing body, in writing, that the holder has been convicted of a maritime‑security‑relevant offence; and

(b)the issuing body fails to apply to the Secretary AGD for a background check on the holder not later than 2 working days after the day the issuing body is told about the conviction.

Penalty: 50 penalty units.

Note An MSIC holder who is convicted of a maritime-security-relevant offence must tell the Secretary AGD or the issuing body about the conviction within 7 days after the day of the conviction — see regulation 6.08LB.

6.08LESuspension of MSICs — Secretary’s direction

(1)The Secretary may direct an issuing body, in writing, to suspend an MSIC if the holder of the MSIC:

(a)is convicted of a maritime-security-relevant offence; and

(b)has not yet been sentenced for the offence.

(2)In deciding whether to direct that an MSIC be suspended, the Secretary must decide whether the holder constitutes a threat to the security of maritime transport or an offshore facility by considering:

(a)the type of offence the holder was convicted of and the circumstances in which the offence was committed; and

(b)the effect the suspension may have on the holder’s employment; and

(c)the location of the maritime security zone where the holder is employed; and

(d)whether the holder is employed in a port security zone, ship security zone, on-board security zone or offshore security zone, and the type of area in which the holder is employed; and

(e)anything else relevant that the Secretary knows about.

(3)If the Secretary makes a direction under subregulation (1), the Secretary must tell the Secretary AGD, in writing, about the direction.

6.08LFSuspension of MSICs by issuing body

(1)An issuing body must immediately suspend an MSIC issued by the body if directed to do so by the Secretary.

(2)As soon as practicable after the issuing body suspends the MSIC, the body must tell the holder of the MSIC, in writing, that the MSIC has been suspended and the reasons for the suspension.

Note Section 27A of the Administrative Appeals Tribunal Act 1975 requires a person who makes a reviewable decision to give a person whose interests are affected by the decision notice, in writing, of the making of the decision and of the person’s right to have the decision reviewed.

(3)The suspension takes effect when the holder is told about the suspension.

(4)The holder of the MSIC must return the MSIC to the issuing body for the MSIC not later than 7 days after the day the holder is told in writing that the MSIC has been suspended.

Penalty: 10 penalty units.

(5)An offence against subregulation (4) is an offence of strict liability.

6.08LGPeriod of suspension of MSIC

(1)This regulation applies if:

(a)an MSIC is suspended under regulation 6.08LF because the holder is convicted of a maritime-security-relevant offence; and

(b)the holder is sentenced for the offence.

(2)If the holder is not sentenced to imprisonment, the MSIC is suspended until the day after the day the sentence is imposed.

Note The MSIC expires on the date it would have expired if it had not been suspended — see subregulation 6.08I (3).

(3)If the holder is sentenced to imprisonment, the MSIC is suspended until it is cancelled under regulation 6.08M.

(4)In this regulation:

imprisonment:

(a)includes periodic detention, home-based detention and detention until the rising of the court; and

(b)does not include a sentence of community service.

6.08LHSuspension of temporary MSIC

(1)This regulation applies if a person holds:

(a)an MSIC that is suspended; and

(b)a temporary MSIC.

(2)The temporary MSIC is suspended:

(a)when the MSIC is suspended; and

(b)for the period the MSIC is suspended.

6.08LIReport to Secretary of suspension of MSIC

(1)If an issuing body suspends an MSIC, the body must, not later than 7 days after the day the MSIC is suspended, tell the Secretary, in writing:

(a)about the suspension; and

(b)the name, date of birth and residential address of the holder of the MSIC.

(2)The Secretary may tell the holder’s employer, or a maritime industry participant, that the MSIC has been suspended if the Secretary considers on reasonable grounds that doing so may help to prevent unlawful interference with maritime transport or offshore facilities.

[13] After paragraph 6.08M (1) (c)

insert

(ca)the Secretary has told the issuing body in writing that the holder has received a qualified security assessment; or

[14] After paragraph 6.08M (1) (e)

insert

(ea)both of the following apply:

(i)the body finds out that the holder has been convicted of a maritime-security-relevant offence and sentenced to imprisonment;

(ii)the offence is not a disqualifying offence; or

(eb)the issuing body issued an MSIC for 4 years — if the body does not apply to the Secretary AGD for a background check on the holder of the MSIC within the period mentioned in subregulation 6.08LD (2); or

[15] After subregulation 6.08M (2), including the note

insert

(2A)An issuing body commits an offence if:

(a)the issuing body is required to cancel an MSIC under paragraph (1) (c), (ca), (e), (ea) or (eb); and

(b)the issuing body fails to immediately cancel the MSIC.

Penalty: 50 penalty units.

(2B)An issuing body commits an offence if:

(a)the issuing body cancels an MSIC under paragraph (1) (c), (ca), (e), (ea) or (eb); and

(b)the issuing body fails to tell the holder of the MSIC, in writing, as soon as practicable after the day the MSIC is cancelled, that the MSIC has been cancelled and the reasons for the cancellation.

Penalty: 50 penalty units.

[16] After subregulation 6.08M (5)

insert

(6)In this regulation:

imprisonment has the meaning given by subregulation 6.08LG (4).

[17] After regulation 6.08M

insert

6.08MAReinstatement of cancelled MSIC — application

(1)This regulation applies if an MSIC is cancelled by an issuing body under paragraph 6.08M (1) (ca) or (ea).

(2)The former holder of the MSIC or the issuing body may apply to the Secretary, in writing, for the cancellation to be set aside.

(3)The application must be made not later than 28 days after the day the former holder of the MSIC is told about the cancellation.

(4)If the Secretary needs more information to deal with an application, the Secretary may ask the former holder of the MSIC or the issuing body, in writing, to provide the information.

6.08MBReinstatement of MSIC cancelled for qualified security assessment — Secretary’s decision

(1)This regulation applies if:

(a)an MSIC is cancelled under paragraph 6.08M (1) (ca); and

(b)the Secretary receives:

(i)an application mentioned in subregulation 6.08MA (2) from the former holder of the MSIC or the issuing body for the MSIC (the applicant); or

(ii)if the Secretary asks the former holder of the MSIC or the issuing body for the MSIC for information under subregulation 6.08MA (4) — the information.

(2)If the Secretary is satisfied on reasonable grounds that setting aside the cancellation of the MSIC would not constitute a threat to the security of maritime transport or an offshore facility, the Secretary must set aside the cancellation.

(3)If the Secretary is satisfied on reasonable grounds that setting aside the cancellation of the MSIC would constitute a threat to the security of maritime transport or an offshore facility, the Secretary must refuse to set aside the cancellation.

(4)Within 30 days after the day the Secretary receives the application or, if subparagraph (1) (b) (ii) applies, within 30 days after the day the Secretary receives the information, the Secretary must:

(a)decide whether to set aside the cancellation of the MSIC; and

(b)tell the applicant, in writing, about the decision (including, if the Secretary decides to set aside the cancellation subject to a condition under regulation 6.08MD, the condition); and

(c)if the Secretary refuses to set aside the cancellation — tell the applicant, in writing, the reasons for the decision.

Note 1 Section 27A of the Administrative Appeals Tribunal Act 1975 requires a person who makes a reviewable decision to give a person whose interests are affected by the decision notice, in writing, of the making of the decision and of the person’s right to have the decision reviewed.

Note 2 For a person’s notification and review rights in relation to a qualified security assessment, see section 38 and Division 4 of Part IV of the Australian Security Intelligence Organisation Act 1979.

(5)If the Secretary does not make a decision mentioned in paragraph (4) (a) within the period mentioned in subregulation (4), the Secretary is taken to have refused to set aside the cancellation of the MSIC.

6.08MCReinstatement of MSIC cancelled for adverse criminal record — Secretary’s decision

(1)This regulation applies if:

(a)an MSIC is cancelled under paragraph 6.08M (1) (ea); and

(b)the Secretary receives:

(i)an application mentioned in subregulation 6.08MA (2) from the former holder of the MSIC or the issuing body for the MSIC (the applicant); or

(ii)if the Secretary asks the former holder of the MSIC or the issuing body for the MSIC for information under subregulation 6.08MA (4) — the information.

(2)Within 30 days after the day the Secretary receives the application or, if subparagraph (1) (b) (ii) applies, within 30 days after the day the Secretary receives the information, the Secretary must:

(a)decide whether to set aside the cancellation of the MSIC; and

(b)tell the applicant, in writing, about the decision (including, if the Secretary decides to set aside the cancellation subject to a condition under regulation 6.08MD, the condition); and

(c)if the Secretary refuses to set aside the cancellation — tell the applicant, in writing, the reasons for the decision.

Note Section 27A of the Administrative Appeals Tribunal Act 1975 requires a person who makes a reviewable decision to give a person whose interests are affected by the decision notice, in writing, of the making of the decision and of the person’s right to have the decision reviewed.

(3)If the Secretary does not make a decision mentioned in paragraph (2) (a) within the period mentioned in subregulation (2), the Secretary is taken to have refused to set aside the cancellation of the MSIC.

(4)Before making a decision mentioned in paragraph (2) (a), the Secretary must decide whether the former holder constitutes a threat to the security of maritime transport or an offshore facility by considering:

(a)the type and length of the term of imprisonment imposed on the former holder; and

(b)if the former holder has served the term, or part of the term — how long it is, and the former holder’s conduct, since the term was served; and

(c)whether the former holder was convicted of the offence before becoming the holder of an MSIC; and

(d)the effect on the holder’s employment if the MSIC is cancelled; and

(e)the location of the maritime security zone where the holder is employed; and

(f)whether the holder is employed in a port security zone, ship security zone, on-board security zone or offshore security zone and the type of area in which the holder is employed; and

(g)anything else relevant that the Secretary knows about.

6.08MDReinstatement of MSIC subject to condition

(1)The Secretary may set aside a cancellation mentioned in regulation 6.08MB or 6.08MC subject to a condition.

Example

A condition that background checking is conducted at stated intervals.

(2)If the former holder of the MSIC applied for the cancellation to be set aside, and the Secretary sets the cancellation aside subject to a condition, the Secretary must tell the issuing body for the MSIC, in writing, about the condition.

(3)If the issuing body for the MSIC applied for the cancellation to be set aside, and the Secretary sets the cancellation aside subject to a condition, the Secretary must tell the former holder of the MSIC, in writing, about the condition.

[18] After paragraph 6.08T (2) (j)

insert

(ja)if the MSIC is cancelled and the cancellation is set aside by the Secretary or set aside (however described) by the Administrative Appeals Tribunal:

(i)the date the cancellation is set aside; and

(ii)if the holder returns the MSIC to the issuing body following the cancellation — the date the body returns the MSIC to the holder;

(jb)if the MSIC is suspended:

(i)the date the issuing body tells the holder about the suspension; and

(ii)if the holder returns the MSIC to the issuing body following the suspension — the date the body returns the MSIC to the holder; and

(iii)if the suspension period ends under subregulation 6.08LG (2) — the date the body returns the MSIC to the holder.

[19] Paragraph 6.08V (c)

substitute

(c)the number of MSICs issued by the body that have expired or been suspended or cancelled, but have not been returned to the body; and

[20] Paragraph 6.08V (e)

omit

year.

insert

year; and

[21] After paragraph 6.08V (e)

insert

(f)the number of MSICs issued by the body that were suspended in the financial year to which the report relates.

[22] Subregulation 6.08X (2), including the heading

omit

[23] Subregulation 6.08X (3), heading

substitute

Decisions in relation to issue, suspension and cancellation of MSICs

[24] Subparagraph 6.08X (3) (a) (i)

substitute

(i)refuse to approve the issue of an MSIC; or

[25] After subparagraph 6.08X (3) (a) (ii)

insert

(iii)direct the suspension of an MSIC; or

(iv)give the issuing body for an MSIC a direction under paragraph 6.08H (1) (b); or

(v)refuse to set aside the cancellation of an MSIC under regulation 6.08MB or 6.08MC; or

(vi)set aside the cancellation of an MSIC subject to a condition under regulation 6.08MD; or

[26] Subparagraph 6.08X (3) (b) (iii)

omit

MSIC.

insert

MSIC; or

[27] After subparagraph 6.08X (3) (b) (iii)

insert

(iv)suspend an MSIC.

Note

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