Commonwealth Numbered Regulations - Explanatory Statements

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MARITIME TRANSPORT AND OFFSHORE FACILITIES SECURITY AMENDMENT (OFFSHORE EXCEPTIONS) REGULATION 2015 (SLI NO 49 OF 2015)

EXPLANATORY STATEMENT

Select Legislative Instrument No. 49, 2015

Subject -          Maritime Transport and Offshore Facilities Security Act 2003

Maritime Transport and Offshore Facilities Security Amendment (Offshore Exceptions) Regulation 2015

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 centred on the development of security plans for ships, maritime transport operations, 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 and the Maritime Transport and Offshore Facilities Security Regulations 2003 (the Principal Regulations) provide for the establishment of various maritime security zones for the purpose of subjecting areas within ports, on and around ships, and on and around offshore facilities, to additional security requirements.

Section 10 of the Act provides that maritime security zone means a port security zone, a ship security zone, an on-board security zone, or an offshore security zone. Section 113A of the Act provides that the Secretary may establish one or more offshore security zones within and around the facility.  Section 113B of the Act provides that the regulations may prescribe different types of offshore security zones.

Regulation 6.125 of the Principal Regulations prescribes two types of offshore security zones:

a.              offshore facility zone (defined in regulation 1.03 as comprising the space occupied by an offshore facility); and

b.             offshore water-side zone (defined in regulation 1.03 as comprising an area of water surrounding an offshore facility at the distance from the facility specified by the Secretary).

The Principal Regulations also establish a Maritime Security Identification Card (MSIC) scheme which provides for the issue of an MSIC to a person who has an operational need to hold an MSIC, has verified their identity, is an Australian citizen or holds a visa entitling them to work in Australia, and has undertaken a security assessment and a criminal history check.

Subregulation 6.07J(1) provides that a person commits an offence if he or she is in a maritime security zone and fails to properly display a valid MSIC or a valid temporary MSIC.  Subregulation 6.07J(2) provides a number of defences to the offence in subregulation 6.07J(1).  In addition, regulation 6.07M enables the Secretary to give a person or a class of persons exemption from the requirement to hold, carry or display an MSIC in one or more maritime security zones.

The Office of Best Practice Regulation (OBPR) was not consulted in the development of the Regulation.  However, as these amendments are anticipated to have a positive impact on industry and not pose any additional regulatory burden, the Department of Infrastructure and Regional Development did not proceed with a regulatory impact statement or receive an exemption from the OBPR.

Consultation occurred with all major offshore oil and gas companies, including Apache Energy Limited, Chevron Australia, Exxon Mobil Australia and Woodside Energy Ltd.  Consultation has also occurred through the Oil and Gas Security Forum.  Industry participants are fully supportive of the amendments.

A Statement of Compatibility with Human Rights is set out at Attachment A.

The Act does not specify any conditions that need to be satisfied before the power to make the Regulations may be exercised.

The Maritime Transport and Offshore Facilities Security Amendment (Offshore Exceptions) Regulation 2015 (the Regulation) is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

Details of the Regulation are set out at Attachment B.

The Regulation commences on the day after registration.

Authority: Subsection 209(1) of the

Maritime Transport and Offshore Facilities Security Act 2003

ATTACHMENT A

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 (Offshore Exceptions) Regulation 2015

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 Principal Regulations to add two new defences to the offence of failing to display a valid Maritime Security Identification Card (MSIC) in specified security zones.

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.

WARREN TRUSS

Minister for Infrastructure and Regional Development

ATTACHMENT B

Details of the Maritime Transport and Offshore Facilities Security Amendment (Offshore Exceptions) Regulation 2015

Regulation 1 - Name of Regulation

Regulation 1 provides that this instrument is the Maritime Transport and Offshore Facilities Security Amendment (Offshore Exceptions) Regulation 2015.

Regulation 2 - Commencement

Regulation 2 provides that this instrument commences on the day after it is registered.

Regulation 3 - Authority

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

Regulation 4 - Schedule(s)

Regulation 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 amends paragraph 6.07J(2)(a) of the Principal Regulations by inserting a new subparagraph 6.07J(2)(a)(iv).  Subparagraph 6.07J(2)(a)(iv) has the effect of giving a person who is a visitor to a maritime security zone a defence to the offence of failing to display a valid MSIC, if his or her escort is a person to whom new paragraph 6.07J(2)(f) applies (see Item 2).

This amendment is consequential to the amendment to subregulation 6.07J(2) (see Item 2).

Item 2 amends subregulation 6.07J(2) to create two new defences to the offence (set out in subregulation 6.07J(1)) of failing to properly display a valid MSIC or a valid temporary MSIC in a maritime security zone.

The first new defence is in paragraph 6.07J(2)(f).  This paragraph provides that subregulation 6.07J(1) does not apply to a person who is a crew member of an offshore facility in an offshore security zone, who is in that zone carrying out his or her duties as such a crew member, and who holds a valid MSIC.  The term "crew" is defined in section 10 of the Act as being, so far as is relevant, a person employed on an offshore facility.  The new defence will not apply to visitors to the facility (visitors will need to rely on the existing defence if applicable).

The amendment addresses workplace health and safety concerns that loose items of clothing may get caught in, for example, the drilling equipment on an offshore oil and gas facility.

The amendment does not increase the risk to maritime security as such persons must still apply for, be issued with and hold an MSIC.  If the person has not been issued with an MSIC that person will not have a defence, under this new paragraph, to the offence in subregulation 6.07J(1).

The second new defence is in paragraph 6.07J(2)(g).  This paragraph provides that subregulation 6.07J(1) does not apply to a person who is a crew member of a foreign regulated ship or a foreign ship regulated as an offshore facility (see section 17 of the Act) while that person is in an offshore water-side zone.  The person must also be in that zone carrying out his or her duties as such a crew member and not be eligible to be issued with an MSIC under subparagraph 6.08C(1)(c)(i).  That is, that person is not an Australian citizen and does not hold a visa to work in Australia.  The new defence will not apply to a person who is eligible to be issued with an MSIC.

There is no provision in the Act or Principal Regulations that requires a person to hold or carry an MSIC.  However, as a matter of practicality, foreign crew members of foreign regulated ships are ineligible to apply for an MSIC unless they hold a visa entitling them to work in Australia, and therefore can neither hold nor carry an MSIC.  The only issue is to exempt such persons from the requirement to display an MSIC.

The amendment does not increase the risk to maritime security.  If a crew member of a regulated foreign ship enters any zone other than an offshore water-side zone, the crew member will commit an offence unless one of the existing defences applies to them (e.g. the crew member is a properly escorted visitor).

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