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MARITIME TRANSPORT AND OFFSHORE FACILITIES SECURITY AMENDMENT (SECURITY ASSESSMENT INSPECTORS) REGULATION 2013 (SLI NO 120 OF 2013)

 

EXPLANATORY STATEMENT

 

Select Legislative Instrument 2013 No. 120

 

Subject -              Maritime Transport and Offshore Facilities Security Act 2003

 

                            Maritime Transport and Offshore Facilities Security Amendment (Security Assessment Inspectors) Regulation 2013

 

The Maritime Transport and Offshore Facilities Security Act 2003 (the Act) establishes a regulatory framework to safeguard against unlawful interference with maritime transport and offshore oil and gas facilities.  To achieve this purpose, the Act establishes minimum security requirements for the Australian maritime industry by imposing obligations on persons engaged in maritime activities.

 

Subsection 209(1) of the Act provides that the Governor-General may make Regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Act.

 

The Act establishes a regulatory framework centred on the development of security plans for ships, other maritime transport operations, and offshore facilities.  Generally, these plans must be in writing, and prepared in accordance with any requirements set out in the Maritime Transport and Offshore Facilities Security Regulations 2003 (the Principal Regulations).  In doing so, the Act fulfils Australia's obligations under the Convention for the Safety of Life at Sea 1974 concerning implementation of the International Ship and Port Facility Security (ISPS) Code.

 

The ISPS Code requires certain maritime industry participants to have a security plan and recognises that security assessments are an essential and integral part of the process of developing and updating a security plan.  A security assessment involves a physical inspection of a facility, building, vessel or vehicle, to make observations and to ensure security procedures comply with the requirements of the Act.

 

The Principal Regulations set out the requirements for maritime, ship and offshore security plans to ensure that these plans achieve the maritime security outcomes specified in the Act.  Generally, these plans must be in writing, and prepared in accordance with any requirements set out in the Principal Regulations.

 

The Act and the Principal Regulations require maritime industry participants to include a security assessment with their security plans.  The security assessment must take into account any documents required in writing by the Secretary to be taken into account, and address any matter prescribed in the Principal Regulations.

 

The security assessment is usually undertaken by the maritime industry participant or their contractor.  However, in certain circumstances it may be appropriate for a security assessment to be conducted by the Australian Government.  A security assessment undertaken by a security assessment inspector is intended to contribute to Australia's maritime security outcomes as prescribed by the Act.

 

In July 2010, the Act was amended to insert a new Part 8, Division 2A to allow the Secretary of the Department of Infrastructure and Transport to appoint a person as a security assessment inspector and to provide that person with powers that may be exercised for the purposes of conducting a security assessment, where appropriate, of an area, facility, building (other than a residence), vessel or vehicle under the control of a maritime industry participant.  Section 145D of the Act provides that the Secretary may appoint a person as a security assessment inspector if they satisfy the criteria prescribed by the Principal Regulations.

 

The Regulation amends the Principal Regulations to prescribe the criteria that a person must satisfy in order for the Secretary to be able to appoint, in writing, that person as a security assessment inspector.  The policy intention is that a person appointed as a security assessment inspector is be a person who, either as a result of their current role or otherwise, possesses the relevant skills, experience or qualifications to enable them to conduct a security assessment.

 

Details of the Regulation are set out in the Attachment.

 

The Office of Best Practice Regulation was consulted in the development of the Regulation.  A Regulation Impact Statement exemption was granted on 8 July 2011 (reference 12839).

 

A number of relevant government agencies, including the Australian Federal Police, the Australian Customs and Border Protection Service, and State and Northern Territory Police were consulted in the development of the Regulation.  The Attorney-General and the Minister for Home Affairs have provided their support to the Regulation.

 

The Act specifies no conditions that need to be satisfied before the power to make the Regulation may be exercised.

 

The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The Regulation commences on the day after registration.

 

                                                              Authority:  Subsection 209(1) of the Maritime Transport and Offshore Facilities Security Act 2003

 


ATTACHMENT

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Maritime Transport and Offshore Facilities Security Amendment (Security Assessment Inspectors) Regulation 2013

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the Legislative Instrument

The legislative instrument amends the Maritime Transport and Offshore Facilities Security Regulations 2003 to prescribe the criteria that a person must satisfy in order for the Secretary to be able to appoint, in writing, that person as a security assessment inspector.

 

Human rights implications

This Legislative Instrument does not engage any of the applicable rights or freedoms.

 

Conclusion

This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.

 

 

 

 

 

 

ANTHONY ALBANESE

Minister for Infrastructure and Transport


 

 

Details of the Maritime Transport and Offshore Facilities Security Amendment (Security Assessment Inspectors) Regulation 2013

 

Section 1 - Name of Regulation

 

Section 1 provides that the Regulation is to be referred to as the Maritime Transport and Offshore Facilities Security Amendment (Security Assessment Inspectors) Regulation 2013.

 

Section 2 - Commencement

 

Section 2 sets out the commencement date for the Regulation to be the day after it is registered.

 

Section 3 - Authority

 

Section 3 provides that the Regulation is made under the Maritime Transport and Offshore Facilities Security Act 2003.

 

Section 4 - Schedule(s)

 

Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

 

Schedule 1 - Amendments

 

Item [1] - After Division 8.2

 

Item 1 inserts Division 8.2A and regulation 8.25 after Division 8.2 of the Principal Regulations.

 

Regulation 8.25 prescribes that the criteria for appointment of security assessment inspectors by the Secretary of the Department of Infrastructure and Transport under subsection 145D(1) of the Maritime Transport and Offshore Facilities Security Act 2003 (the Act) are that the person is:

*                an Australian Public Service (APS) employee within the Department, or

*                a member of the Australian Federal Police (AFP); or

*                a member of the police force of a State or a Territory, or

*                a customs officer (as defined in the Act to mean an Officer within the meaning of the Customs Act 1901); or

*                a person who:

o      has a good knowledge of the transport security environment; and

o      has skills, experience or qualifications relevant to conduct a security assessment; and

o      has a working knowledge, or the ability to acquire a working knowledge, of the Act and these Regulations; and

o      is suitable to access and handle security information; and

o      is otherwise able to perform the duties of a security assessment inspector.

 

The policy intention is that a person appointed as a security assessment inspector would be either:

*                a person who, as a result of their current role, possesses the skills, experience or qualifications relevant to conduct a security assessment.  This could include a member of the AFP, a member of the police force of a State or a Territory, a customs officer, or an APS employee in the Department; or

*                a person who otherwise possesses the skills, experience or qualifications relevant to conduct a security assessment.  This could include officers on secondment from other agencies, or Australian and international security experts from the public or private sectors.

 

It is intended that the appointment criteria in subregulation 8.25(b) will allow the appointment of a person who does not satisfy one of the role-based criteria listed in subregulation 8.25(a), but who for example has relevant skills, experience or qualifications, along with the other criteria, that would enable them to conduct a security assessment.


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