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MARITIME TRANSPORT AND OFFSHORE FACILITIES SECURITY AMENDMENT REGULATIONS 2005 (NO. 1) (SLI NO 201 OF 2005)
Explanatory Statement
Select Legislative Instrument 2005 No. 201
Issued by Authority of the Minister for Transport and Regional Services
Subject: Maritime Transport and Offshore Facilities Security Act 2003
Maritime Transport and Offshore Facilities Security Amendment Regulations 2005 (No. 1)
Subsection 209(1) of the Maritime Transport and Offshore Facilities Security Act 2003 (the 2003 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.
Subsection 209(2) provides that without limiting subsection (1) the regulations may prescribe fees in respect of matters under the Act (including the regulations); and prescribe penalties of not more than 50 penalty units for offences against the regulations. Subsection 209(3) provides that paragraph (2)(b) does not limit any provision in the Act that provides for the regulations to prescribe penalties higher than 50 penalty units.
The purpose of the 2003 Act is to safeguard against unlawful interference with maritime transport and offshore facilities. The 2003 Act establishes a regulatory framework to safeguard against unlawful interference with maritime transport and offshore facilities. To achieve this purpose, the 2003 Act establishes minimum security requirements for the Australian maritime industry by imposing obligations on persons engaged in maritime activities.
The Maritime Transport Security Amendment Act 2005 (the Amendment Act) amended the 2003 Act to:
· provide that any reasonable costs incurred by maritime security identification card (MSIC) issuing bodies may be cost recovered;
· provide that the disclosure of information between entities involved in coordinating background checks is undertaken within the meaning of the Privacy Act 1988; and
· extend coverage of the 2003 Act to offshore oil and gas facilities.
The purpose of the Regulations is to amend the Maritime Transport Security Regulations 2003 (the Principal Regulations). To provide the necessary details regarding the introduction of the MSIC for maritime industry and offshore industry participants. The Regulations provide detail regarding the obligations for maritime industry participants and offshore facility operators, and other offshore industry participants, with regard to the introduction of the MSIC Scheme, including content and form of MSIC plans; establishing and managing the MSIC scheme; including the role and responsibility of all persons who require unmonitored access in a maritime security zone. The Regulations also clarify that those provisions dealing with the establishment and enforcement of offshore security zones, which will come into effect on proclamation of item 122 of the Amendment Act.
The Office of Regulatory Review has advised that a Regulation Impact Statement (RIS) is not required. The RIS requirements were met by the RIS that was tabled as part of the Explanatory Memorandum for the Maritime Transport Security Amendment Bill 2005.
Details of the provisions in the Act, relating to the MSIC and offshore facilities, which provide for the scope of regulations made under the Act are listed at Attachment A.
Details of the Regulations are set out in Attachment B.
The Act specifies no conditions that need to be satisfied before the power to make the Regulations may be exercised.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulations commenced on the day after they were registered on the Federal Register of Legislative Instruments.
ATTACHMENT A
Sections of the Act that provide for regulations to be made
Paragraph 6(2)(i) of the Maritime Transport and Offshore Facilities Security Act 2003 provides that section 15.4 of the Criminal Code (extended geographical jurisdiction – category D) applies to an offence under regulations made under sections 109, 113D, 119, 126 or 133 where the offence is committed in, or at the edge of, an offshore security zone or a ship security zone declared under subsection 106(1A), or on or near a foreign ship regulated as an offshore facility.
Section 10 of the Act defines offshore industry participant to include a person who conducts an enterprise connected with a security regulated offshore facility, and is prescribed in the regulations.
Subsection 33(5) of the Act provides that the Regulations may prescribe requirements for, or in relation to the giving of security directions by the Secretary.
Section 100G(2)(b) of the Act provides that the security assessment under paragraph 100G(1)(a) must address any matters prescribed in the regulations.
Subsection 105(1) of the Act provides that the regulations may, for the purposes of safeguarding against unlawful interference with maritime transport prescribe requirements in relation to each type of port security zone.
Subsection 105(2) of the Act sets out various matters which may be dealt with by regulations made under subsection 105(1).
Subsection 105(3) of the Act provides that the regulations made under section 105 may prescribe penalties for offences against those regulations.
Subsection 105(4) of the Act provides that regulations made under subsection 105(1) may provide for the recovery of costs and expenses reasonably incurred by a person in relation to the performance of functions or the exercise of powers, by the person in relation to a security identification card scheme set out in those regulations.
Subsection 105(5) of the Act provides that regulations made under subsection 105(1) may authorise the use or disclosure of information (including personal information within the meaning of the Privacy Act 1988) for the purpose of, or in relation to, assessing the security risk posed by a person.
Subsection 109(1) of the Act provides that the regulations may, for the purposes of safeguarding against unlawful interference with maritime transport prescribe requirements in relation to each type of ship security zone.
Subsection 109(2) of the Act sets out various matters which may be dealt with by regulations made under subsection 109(1).
Subsection 109(3) of the Act provides that the regulations made under section 109 may prescribe penalties for offences against those regulations.
Subsection 109(4) of the Act provides that regulations made under subsection 109(1) may provide for the recovery of costs and expenses reasonably incurred by a person in relation to the performance of functions or the exercise of powers, by the person in relation to a security identification card scheme set out in those regulations.
Subsection 109(5) of the Act provides that regulations made under subsection 109(1) may authorise the use or disclosure of information (including personal information within the meaning of the Privacy Act 1988) for the purpose of, or in relation to, assessing the security risk posed by a person.
Subsection 113(1) of the Act provides that the regulations may, for the purposes of safeguarding against unlawful interference with maritime transport, prescribe requirements in relation to each type of on-board security zone.
Subsection 113(2) of the Act sets out various matters which may be dealt with by regulations made under subsection 113(1).
Subsection 113(3) of the Act provides that the regulations made under section 113 may prescribe penalties for offences against those regulations.
Subsection 113(4) of the Act provides that regulations made under subsection 113(1) may provide for the recovery of costs and expenses reasonably incurred by a person in relation to the performance of functions or the exercise of powers, by the person in relation to a security identification card scheme set out in those regulations.
Subsection 113(5) of the Act provides that regulations made under subsection 113(1) may authorise the use or disclosure of information (including personal information within the meaning of the Privacy Act 1988) for the purpose of, or in relation to, assessing the security risk posed by a person.
Subsection 113A(2) of the Act provides that a notice by the Secretary in relation to establishment of an offshore security zone must include information about the location and boundaries of the offshore security zones of the kind and in the form prescribed in the regulations.
Subsection 113A(3) of the Act provides that where an offshore security zone is established, the offshore facility operator must notify each maritime industry participant who conducts operations within the zone. The notice must include information about the location and boundaries of the zone of the kind and in the form prescribed by the regulations.
Subsection 113B(1) of the Act provides that the regulations may prescribe different types of offshore security zones. Subsection 113B(2) of the Act sets out various purposes for which different types of offshore security zones may be prescribed. This list is not intended to be exhaustive.
Subsection 113D(1) of the Act provides that the regulations may, for the purposes of safeguarding against unlawful interference with maritime transport or offshore facilities, prescribe requirements in relation to each type of offshore security zone.
Subsection 113D(2) of the Act sets out various matters which may be dealt with by regulations made under subsection 113D(1).
Subsection 113D(3) of the Act provides that the regulations made under section 113D may prescribe penalties for offences against those regulations.
Subsection 113D(4) of the Act provides that regulations made under subsection 113D(1) may provide for the recovery of costs and expenses reasonably incurred by a person in relation to the performance of functions or the exercise of powers, by the person in relation to a security identification card scheme set out in those regulations.
Subsection 113D(5) of the Act provides that regulations made under subsection 113D(1) may authorise the use or disclosure of information (including personal information within the meaning of the Privacy Act 1988) for the purpose of, or in relation to, assessing the security risk posed by a person.
ATTACHMENT B
Details of the Maritime Transport and Offshore Facilities Security Amendment Regulations 2005 (No. 1)
This regulation provides that the title of the Regulations is the Maritime Transport and Offshore Facilities Security Amendment Regulations 2005 (No. 1).
(b) on the commencement of item 122 of Schedule 1 to the Maritime Transport Security Amendment Act 2005 – Schedule 2 to the Regulations.
This regulation provides that the Maritime Transport and Offshore Facilities Security Regulations 2003 (the Principal Regulations) are amended as set out in Schedules 1 and 2.
Item 1 – Regulation 1.03 after the definition of Act
This item inserts a definition of airport to have the same meaning as in the Aviation Transport Security Act 2004.
Item 2 - Regulation 1.03, definitions of offshore facility zone and offshore waterside zone
Item 3 – Regulation 1.03, definition of supply base
This definition establishes the requirement for parties who are offshore service providers to write offshore security plans. If a party manages a supply base then that person is an offshore service provider.
This definition is intended to identify the parties who are involved in the final transportation of goods or passengers to an offshore facility as offshore service providers. Not all parties who are involved in transportation of goods or passengers to an offshore facility will be offshore service providers. For example, persons who work in the industry often do not live locally. In order to work a shift they may fly to small towns by regular jet services which leave the State or Territory capital. The operator of the plane that flies from Perth would not become an offshore service provider as he or she would not transport the person directly to the facility. This is done by a locally based helicopter transfer service which operates at a place at an airport where persons board aircraft for transport directly to an offshore facility.
Item 4 – Subregulation 1.45(1A), Declarations of security
Item 5 – Regulation 2.30, Requirement for consultation
Item 6 – Paragraph 2.30(a), Requirement for consultation
Item 7 – Paragraph 2.35(2)(b), Requirement for consultation
Regulation 3.12 Operator to tell Secretary about issuing body for MSICs
New paragraph 3.12(1)(a) requires a port operator, port facility operator or port service provider to notify the Secretary by 30 June 2006 if the operator is going to be an MSIC issuing body; and if they are not who will issue MSICs for the operator.
New paragraph 3.12(1)(b) requires a port operator, port facility operator or port service provider to notify the Secretary by 30 June 2006 if the operator is going to issue temporary MSICs and if they are not who will issue their temporary MSICs.
New subregulation 3.12(2) requires an operator to notify the Secretary within 7 days if any information given in subregulation 3.12(1) is no longer correct.
Paragraph 4.85(a) provides that a ship security plan must set out procedures for reporting a maritime transport and offshore security incident to the Secretary. Item 8 substitutes a new regulation 4.85 to omit reference to offshore security incidents in paragraph 4.85(a).
New paragraph 5A.12(1)(a) requires an offshore operator to notify the Secretary in writing by 30 June 2006 if the operator is going to be an MSIC issuing body and if they are not who will issue MSICs for the operator.
New paragraph 5A.12(1)(b) requires an offshore facility operator to notify the Secretary in writing by 30 June 2006 if the operator is going to issue temporary MSICs and if they aren’t who will issue their temporary MSICs.
New subregulation 5A.12(2) requires an operator to notify the Secretary within 7 days if any information given in subregulation 5A.12(1) is no longer correct.
New subregulation 6.07A(1) describes the purpose of the Maritime Security Identification Card (MSIC) scheme. The MSIC scheme provides for the issue of an MSIC to a person after successfully completing a background check. A maritime industry participant must not allow a person to enter or remain in a maritime security zone unless they display a valid MSIC or are escorted by a holder of an MSIC.
New subregulation 6.07A(2) sets out the requirements prescribed in Division 6.1A. These include the display of MSICs; issuing bodies for MSICs; the issue of an MSIC to a person; and the expiry and cancellation of an MSIC.
Regulation 6.07B Definitions for Division 6.1A
New regulation 6.07B inserts the following definitions:
AFP means the Australian Federal Police established under the Australian Federal Police Act 1979.
ASIO means the Australian Security Intelligence Organisation established under the Australian Security Intelligence Organisation Act 1979.
background check means a criminal record check of the person and a security assessment of the person conducted by ASIO.
Commonwealth authority means a Commonwealth department or body established under a law of the Commonwealth.
conviction of a person for an offence has the meaning given by subsection 85ZM(1) of the Crimes Act 1914 but does not include a spent conviction; or a conviction which a person has been pardoned or had quashed.
DIMIA means the Department of Immigration, Multicultural and Indigenous Affairs.
disqualifying offence means an offence mentioned in item [1],[2] or [3] of Table 6.07C.
holder means the person to whom an MSIC issued to.
issuing body means person or body authorised to issue MSICs.
MSIC means maritime security identification card.
security assessment has the same meaning as in Part IV of the Australian Security Intelligence Organisation Act 1979.
sentence includes a suspended sentence.
Regulation 6.07C Meaning of maritime-security-relevant offence
New regulation 6.07C provides for the meaning of a maritime-security-relevant offence means an offence of a kind listed in Table 6.07C or a similar offence against a law of a State or Territory, or of any other country or part of a country.
This table includes the kinds of offences that are defined as a maritime-security-relevant offence for example crimes against Chapter 5 of the Criminal Code including, treason, espionage and harming Australians. Another example is an offence involving interference with maritime transport infrastructure including the destruction of a ship, carriage of dangerous goods onboard a ship or endangering the security of ports.
New subregulation 6.07D(1) provides for the meaning of a valid MSIC. An MSIC is valid if:
a) it is issued in accordance with the Subdivision 6.1.A.4 of the regulations (MSIC: issue, expiry and cancellation);
b) it is not expired or cancelled;
c) it is not altered or defaced (permanently or temporarily); and
d) is issued to the person who shows or displays it.
For example, a card that was issued to Mary, and which has not expired, been cancelled, altered or defaced, will be valid when it is being shown or displayed by Mary. However, the same card would not be valid if it is shown or displayed by Jane.
New subregulation 6.07D(2) provides that an MSIC issued to a person who changes his or her name ceases to be valid one month after the name change.
New subregulation 6.07E(1) provides for the meaning of properly displaying an MSIC. To be properly displayed an MSIC must be clearly visible, attached to a person’s outer clothing, above waist height, at the front or side of their body and the whole of the front of the MSIC must be clearly visible.
New subregulation 6.07E(2) provides that an MISC is not properly displayed if anything obscures the photograph or anything else on it.
Regulation 6.07F Meaning of operational need
New regulation 6.07F provides for the meaning of operational need for the purposes of Division 6.1.A. A person must demonstrate that they have an occupational or business need for unmonitored access to a maritime security zone at least once a year before they can be issued an MSIC.
New subregulation 6.07G(1) sets out the criteria that a document must meet to qualify as a primary, secondary or tertiary identification document for somebody.
New subregulation 6.07G(2) deals with the kind of document that will be considered as primary identification document. For example a certified copy of an Australian Birth Certificate or a certified copy of a citizenship certificate or a passport.
New subregulation 6.07G(3) deals with the kind of document that will be considered a secondary identification document. For example drivers license, a government employee identification document or an Australian student identification document.
New sub regulation 6.07G(4) provides for the meaning of terms used in subregulation 6.07(3); including the following definitions:
Australian student identification document means a card or document issued to a student at a tertiary education institution in Australia to identify him or her as a student at the institution.
government employee identification document means a document issued by or for the Commonwealth or State or Territory to somebody employed by or for the Commonwealth or State or Territory.
verifiable reference (the identified person) means a reference from a bank or financial institution; or somebody whose identity has been verified as set out in the definition; or an acceptable referee that identifies the person and that certifies that he or she has known the person for at least 12 months.
New subregulation 6.07G(5) deals with the kind of document that will be considered a tertiary identification document. This kind of document must set out the name and address of a person and is for example a document issued by a rating authority or a bank or an extract from an electoral roll.
New subregulation 6.07H(1) provides for the meaning of Hague Convention.
New subregulation 6.07H(2) deals with the application of the regulation where a person presents a document for the purposes of the Hague Convention.
New subregulation 6.07H(3) provides that a person may be required to have an identity document authenticated in accordance with that Convention.
New subregulation 6.07I provides for the following definitions for the purposes of subdivision 6.1.A.2;
escort means a person who escorts or continuously monitors another person in a maritime security zone; and
visitor means a person who is entitled to be in a maritime security zone because he or she is being escorted or continuously monitored.
New subregulation 6.07J(1) provides that a person in a maritime security zone must properly display a valid MSIC. If a person fails to properly display an MSIC if he or she commits an offence which attracts a penalty of 5 penalty units for a first offence, 10 penalty units for a second offence in 2 years or 20 penalty units for a third or subsequent offence within 2 years of a prior offence.
New subregulation 6.07J(2) sets out those persons who are exempt from the MSIC display requirements. Those persons are visitors who are being escorted by an MSIC holder, a holder of a Defence Force Identification card who displays that card and is in a maritime security zone as part of his or her duties or those persons who are in a non-operational area of an offshore facility zone.
New subregulation 6.07J(3) provides that contravention of subregulation 6.07J(1) is a strict liability offence.
It should be noted that the existence of a strict liability does not make any other defence unavailable. Defences available to an accused other than those removed by making a matter one of strict liability remain available to him or her.
In framing the offence provisions contained in the Regulations, consideration was given to the principles contained in the Sixth Report of 2002 on the Application of Absolute and Strict Liability Offences in Commonwealth Legislation by the Senate Standing Committee for the Scrutiny of Bills and to matters discussed in Part 4.5 of the Guide to Framing of Commonwealth Offences, Civil Penalties and Enforcement Powers. In the development of the offence provisions consultation was undertaken by the Department of Transport and Regional Services with the maritime industry, the Attorney-General’s Department, Australian Federal Police, Australian Security Intelligence Organisation and Australian Customs Service.
An effective security regime is crucial to ensure better security for maritime and offshore facilities against international terrorism. To complement the regulatory model governing the maritime and offshore industries, it is necessary to include a number of offences with serious consequences. It is necessary for this approach to be adopted because of the public harm which could result. Potential consequences of non-compliance are high and range from detrimentally affecting confidence in the maritime and offshore industry and the Australian economy, right through to adverse consequences that a terrorist attack could have on the maritime and offshore industry assets and physical operations.
New subregulation 6.07J(4) provides that subregulation 6.07J(1) does not apply until 1 January 2007.
New subregulation 6.07K(1) provides that a person who has been given a disqualifying notice by the Secretary under new regulation 6.08D must not enter a maritime security zone. This is a strict liability offence with a penalty of 5 penalty units.
It should be noted that the existence of a strict liability does not make any other defence unavailable. Defences available to an accused other than those removed by making a matter one of strict liability remain available to him or her.
The explanation provided in regulation 6.07J deals in more detail with issues taken into account in relation to the imposition of strict liability offences.
New subregulation 6.07K(2) provides that subregulation 6.07K(1) does not apply to a person who is a visitor boarding or leaving a recreational vessel.
New subregulation 6.07L(1) provides that a person is guilty of an offence if he or she fails to escort or continuously monitor a visitor in accordance with the procedures set out in maritime or offshore security plan. This is a strict liability offence with a penalty of 5 penalty units.
It should be noted that the existence of a strict liability does not make any other defence unavailable. Defences available to an accused other than those removed by making a matter one of strict liability remain available to him or her.
The explanation provided in regulation 6.07J deals in more detail with issues taken into account in relation to the imposition of strict liability offences.
New subregulation 6.07M(1) provides that a person who is exempted by the Secretary may not need to display an MSIC in a maritime security zone.
New subregulation 6.07M(2) provides that the Secretary must make a decision on an application to give an exemption within 30 days. Where a decision is to refuse an exemption reasons for the decision need to be provided in writing.
New subregulation 6.07M(3) enables the Secretary, on his or her own initiative, or on written application by a person to give an exemption to hold, carry or display an MSIC.
New subregulation 6.07M(4) requires the Secretary to take into account relevant reasons before making a decision on whether to grant an exemption. The Secretary must consider why the exemption is necessary, the likely effect of any exemption, the length of time of any exemption and any other relevant fact that the Secretary is aware of.
New subregulation 6.07M(5) enables the Secretary to give an exemption for a particular period and with any conditions including limitations to particular zones.
New subregulation 6.07M(6) provides that where the Secretary gives an exemption to a class the Secretary must publish a notice in the Gazette.
New subregulation 6.07N(1) provides that a maritime industry participant is not required to prevent access to a maritime security zone by members of the defence force who are responding to an event or threat to unlawful interference with maritime transport in the zone or ambulance, rescue or fire service officers responding to an emergency.
New subregulation 6.07N(2) provides that a person referred to in subregulation 6.07N(1) is not required to display an MSIC.
New subregulation 6.07O(1) provides that the following persons may apply to the Secretary for authorisation as an MSIC issuing body:
· a maritime industry participant;
· a body representing participants;
· a body representing employees of participants or
· a Commonwealth authority.
New subregulation 6.07O(2) allows a maritime participant to engage an agent to issue MSICs on their behalf.
New subregulation 6.07O(3) requires that an application for authorisation to issue MSICs must include an applicant’s proposed MSIC plan.
New subregulation 6.07O(4) requires an MSIC issuing body to have an MSIC plan approved by the Secretary before they can issue an MSIC.
New subregulation 6.07P(1) allows the Secretary to request an issuing body to provide more information to deal with a person’s application to be an MSIC issuing body.
New subregulation 6.07P(2) provides that the Secretary must make a decision on an application within 30 days (or if the Secretary asks for more information before 30 days after receiving the information). Where a decision is to refuse an application, reasons for the decision need to be provided in writing.
New subregulation 6.07P(3) provides that if the Secretary has not made a decision within 30 days the Secretary has taken to refuse the application.
New subregulation 6.07P (4) provides that the Secretary must not authorise the applicant as an issuing body unless the Secretary is satisfied that the applicant’s proposed MSIC plan is adequate and is satisfied that authorising the applicant as an issuing body would not likely be a threat to maritime security.
New subregulation 6.07P(5) provides that the Secretary may set out a condition in the instrument authorising an applicant as an issuing body.
New subregulation 6.07Q(1) prescribes the matters that are to be dealt with in an MSIC plan. These include:
· the issue and production of MSICs.
· the design, distribution and storage of sample MSICs for training purposes, if the issuing body proposes to issue such MSICs;
· the safekeeping, secure transport and disposal of MSICs and associated equipment;
· the recovery and secure destruction of issued MSICs that are no longer required;
· the security of records in relation to applicants for MSICs;
· lost, destroyed or stolen MSICs; and
· ensuring that MSICs are returned to issuing bodies when they are no longer required.
New subregulation 6.07Q(2) requires an MSIC plan to put in place procedures in the event of the MSIC issuing body ceasing to exist.
New subregulation 6.07R(1) requires an issuing body to give effect to its MSIC plan. Failure to do so will result in a penalty of 50 penalty units.
New subregulation 6.07R(2) provides that an issuing body will be taken to have failed to give effect to its MSIC plan if it fails to do something required of it in its MSIC plan; or does something contrary to its MSIC plan; or does something in a way that contravenes the MSIC plan.
New subregulation 6.07R(3) provides that a contravention against subregulation 6.07R(1) is a strict liability offence.
It should be noted that the existence of a strict liability does not make any other defence unavailable. Defences available to an accused other than those removed by making a matter one of strict liability remain available to him or her.
The text in regulation 6.07J deals in more detail with issues taken into account in relation to the imposition of strict liability offences.
New subregulation 6.07R(4) allows an issuing body to request the Secretary to grant an exemption from giving effect to their MSIC plan.
New subregulation 6.07R(5) enables the Secretary to make a request to an applicant in writing to provide more information to deal with an application.
New subregulation 6.07R (6) provides that the Secretary must make a decision on an application within 30 days (or if the Secretary asks for more information before 30 days after receiving the information). Where a decision is to refuse an application, reasons for the decision need to be provided in writing.
New subregulation 6.07R(7) provides that if the Secretary has not made a decision within 30 days the Secretary has taken to refuse the application.
New subregulation 6.07R(8) enables the Secretary on his or her own initiative to grant a written exemption.
New subregulation 6.07R(9) provides that before reaching a decision, the Secretary must consider the justification for the proposed exemption; the likely effect of the proposed exemption; the length of time of the proposed exemption and any other relevant fact that the Secretary is aware of.
New subregulation 6.07R(10) enables the Secretary to grant an exemption for a particular period and subject to a condition.
New subregulation 6.07S(1) provides that where an MSIC plan is not adequate, the Secretary may direct an issuing body to vary the plan.
New subregulation 6.07S(2) provides that the Secretary must not give a direction to an issuing body to vary its plan unless satisfied that the variation is appropriate to make the plan adequate for that purpose.
New subregulation 6.07S(3) provides that a direction must indicate the required variation and provide a time within which a varied plan needs to be submitted to the Secretary.
New subregulation 6.07S(4) requires an issuing body to comply with a direction from the Secretary.
New subregulation 6.07T(1) provides that an issuing body may review its MSIC plan at any time, and may submit a written proposed variation to the Secretary for approval.
New subregulation 6.07T(2) enables the Secretary to request an issuing body to provide more information in writing to deal with a variation of a plan.
New subregulation 6.07T(3) provides that the Secretary must make a decision on a variation submission within 30 days (or if the Secretary asks for more information before 30 days after receiving the information). Where a decision is to refuse a variation submission, reasons for the decision need to be provided in writing.
New subregulation 6.07T(4) provides that if the Secretary has not made a decision within 30 days the Secretary has taken to refuse the variation submission.
New subregulation 6.07T(5) provides that if the Secretary must approve a variation plan if the plan, as varied, will give effect to the plan purposes.
New subregulation 6.07U(2) provides that an issuing body must allow a maritime security inspector to inspect their plan and associated records on request, subject to reasonable notice.
New subregulation 6.07V(1) provides that an issuing body other than a Commonwealth authority must not allow a person to be involved in the issuing of MSICs unless he or she satisfies the security-relevant criteria for the issue of an MSIC. Failure to do so is an offence subject to a penalty of 20 penalty units.
New subregulation 6.07V(2) provides that a Commonwealth Authority must not allow a person to issue MSICs unless he or she satisfies the security-relevant criteria for the issue of an MSIC.
New subregulation 6.07V(3) enables the Secretary to approve the involvement of a person in the issue of an MSIC if the person has a qualified security assessment provided the Secretary is satisfied that the involvement of that person would not constitute a threat to maritime transport security.
New subregulation 6.07V(4) sets out the requirements when a person will be regarded to have satisfied the security-relevant criteria.
New subregulation 6.07W(1) sets out the circumstances under which the Secretary must revoke an issuing body’s authorisation. The Secretary may revoke an authorisation if the body’s plan is no longer adequate to give effect to its purpose; or allowing the body’s authorisation to continue would be likely to be a significant threat to maritime security; or if the body does not comply with a direction of the Secretary under new regulation 6.07S.
New subregulation 6.07W(2) provides that the Secretary may revoke the authorisation of an issuing body. For example where the body contravenes a condition of its authorisation or its MSIC plan.
New subregulation 6.07W(3) requires the Secretary to exercise his or her powers under subregulation 6.07W(2) and consider the kind of and seriousness of the contravention and whether the issuing body has previously contravened a condition of its authorisation before revoking its authorisation.
New subregulation 6.07W(4) requires the Secretary to notify the body in writing of a decision to revoke an authorisation and to provide reasons.
New subregulation 6.07W(5) provides that a revocation takes effect when written notice is given to the issuing body.
New subregulation 6.07X(1) requires the Secretary to revoke an issuing body’s authorisation if the body asks the Secretary in writing to do so.
New subregulation 6.07X(2) provides that a revocation takes effect when the request was made.
New regulation 6.07Y provides that an issuing body whose authorisation is revoked may apply under regulation 6.07O for a new authorisation.
New regulation 6.07Z(1) prescribes the circumstances under which regulation 6.07Y applies. These circumstances are where an authorisation of an issuing body is revoked; the body ceases to exist; or if the body no longer performs the functions of an issuing body.
New subregulation 6.07Z(2) enables the Secretary to authorise in writing another person to undertake the functions of the original issuing body.
New subregulation 6.07Z(3) provides that an MSIC issued by the original issuing body is not affected by the body ceasing to exist or a new authorisation.
New subregulation 6.07Z(4) provides that new issuing body is taken to be the issuing body for the MSIC but is not responsible for the actions of the original issuing body.
New subregulation 6.07Z(5) provides that an authorisation will only be given on the condition that all documents used to decide a persons eligibility for an MSIC are held by the Secretary and maybe subject to other specified conditions.
New subregulation 6.08B(1) provides that a person may apply to an issuing body for an MSIC if they have an operational need to hold an MSIC.
New subregulation 6.08B(2) provides that an application on or after 1 January 2007 for the issue of an MSIC to a person over 18 must include a signed form of consent to background checking.
New subregulation 6.08C(1) provides that an issuing body may issue an MSIC to a person only if;
· the person has an operational need to hold an MSIC;
· the person has verified his or her identity by showing the relevant primary, and either secondary or tertiary identification documents;
· they are either an Australian Citizen or have a right to work in Australia;
· the issuing body has been notified in writing that a security assessment is not adverse; or if the assessment is qualified the issuing body has not been directed by the Secretary not to issue the person an MSIC; and
· the issuing body has been notified in writing that a criminal records check has been made and the person does not have an adverse criminal record; or if the person has an adverse criminal record the Secretary has approved an application to issue an MSIC.
Failure to comply with the requirements of subregulation 6.08C(1) will result in a penalty of 50 penalty units.
It should be noted that the existence of a strict liability does not make any other defence unavailable. Defences available to an accused other than those removed by making a matter one of strict liability remain available to him or her.
The explanation provided in regulation 6.07J deals in more detail with issues taken into account in relation to the imposition of strict liability offences.
New subregulation 6.08C(2) requires the Secretary to decide from 1 October 2005 to the 31 December 2006 if a person has an adverse criminal record. From 1 January 2007 MSIC issuing bodies will be required to make this decision.
New subregulation 6.08C(3) provides that a contravention against subregulation 6.08C(1) is a strict liability offence.
It should be noted that the existence of a strict liability does not make any other defence unavailable. Defences available to an accused other than those removed by making a matter one of strict liability remain available to him or her.
The text in regulation 6.07J deals in more detail with issues taken into account in relation to the imposition of strict liability offences.
New subregulation 6.08C(4) provides that an issuing body may issue an MSIC to a person under the age of 18 without undertaking a criminal record check or security assessment provided they meet the requirements of paragraphs 6.08C (1)(a)(b) and (c). An MSIC issued to a person under 18 ceases to be valid 6 months after the person turns 18.
New subregulation 6.08C(5) provides the circumstances under which an issuing body at the request of the holder can reissue an MSIC cancelled within 12 months.
New subregulation 6.08C(6) provides that an issuing body may place a condition on the issue of an MSIC and that the MSIC holder must be notified in writing of this condition.
New subregulation 6.08C(7) provides that an issuing body may issue MSICs only in accordance with its MSIC plan.
New subregulation 6.08D requires that if before 1 January 2007, the background check of an applicant for an MSIC reveals that they are convicted of a disqualifying offence or to have an adverse security assessment, the Secretary must inform the person in writing, by way of a disqualifying notice the results of the background check and advise them not to enter a maritime security zone.
New subregulation 6.08F(1) provides that an issuing body or applicant may apply to the Secretary in writing to issue an MSIC if the person is not eligible to be issued an MSIC because he or she has an adverse criminal record or a disqualifying offence.
New subregulation 6.08F(2) enables the Secretary to request an issuing body or applicant in writing to provide more information to deal with the application.
New subregulation 6.08F(3) provides that the Secretary must make a decision on an application within 30 days (or if the Secretary asks for more information before 30 days after receiving the information). Where a decision is to refuse an application, reasons for the decision need to be provided in writing.
New subregulation 6.08F(4) provides that if the Secretary has not made a decision within 30 days the Secretary has taken to refuse the application.
New subregulation 6.08F(5) requires the Secretary to consider before approving or refusing to approve the issue of an MSIC to a person solely because of a persons criminal record, the nature of the offence; the length of imprisonment imposed; where their sentence was suspended, the term of the sentence imposed; their employment history since; and any other relevant information that the Secretary is aware of.
New subregulation 6.08F(6) provides that the Secretary may give an approval subject to a condition but must notify the issuing body in writing of the condition.
New subregulation 6.08G(1) requires that an issuing body notify the Secretary, in a written report within 7 days if they have refused to issue an MSIC to an applicant. The issuing body must include the applicants name, address, date of birth and the reasons for refusal.
New subregulation 6.08G(2) provides that the Secretary may pass on to other issuing bodies the name, address and date of birth of an MSIC applicant refused an MSIC if doing so will help to prevent unlawful interference with maritime transport.
New subregulation 6.08H(1) provides that the Secretary must direct an issuing body not to issue an MSIC to a person who has an adverse security assessment.
New subregulation 6.08H(2) provides that the Secretary may direct an issuing body not to issue and MSIC if the Secretary on the basis of a person receiving a qualified security assessment believes that the person would constitute a threat to maritime security.
New subregulation 6.08H(3) provides that a direction by the Secretary must be in writing.
New subregulation 6.08H(4) provides that an issuing body must not issue an MSIC contrary to a direction of the Secretary. Failure to do so renders an issuing body liable to a penalty of 20 penalty units.
New subregulation 6.08I(1) provides that an MSIC must not have an expiry date later than 5 years from the date of the criminal record check. However if an MSIC is issued:
· to a person under 18 years of age, the expiry date of the card must be no later than 6 months after the person’s 18th birthday;
· to a person entitled to remain in Australia because they hold a valid visa it must not expire later than the person’s visa expires;
· under regulation 6.08E it must expire on the same day as the ASIC.
New regulation 6.08J deals with the form of MSICs other than temporary MSICs.
New subregulation 6.08J(2) provides a detailed diagram of an MSIC.
New subregulation 6.08J(3) requires that an MSIC must comply with the prescribed requirements described in the MSIC diagram including the dimension, colour, typeface, type size, codes and identification numbers. A photograph and name of the MSIC holder must be displayed on the card, together with an expiry date.
New subregulation 6.08J(4) provides that an MSIC issued to a law enforcement officer, an officer or employee of ASIO may bear the holder’s name on the back of the MSIC.
New subregulation 6.08J(5) provides that the Secretary may approve the issue of an MSIC with the holder’s name on the back if satisfied that having the holder’s name on the front would put the person at risk.
New subregulation 6.08J(6) provides that an issuing body must not issue an MSIC that does not comply with regulation 6.08J. Failure to comply with the requirements renders a person liable for a penalty of 50 penalty units.
New subregulation 6.08J(7) provides that an offence under subregulation 6.08J(6) is an offence of strict liability.
It should be noted that the existence of a strict liability does not make any other defence unavailable. Defences available to an accused other than those removed by making a matter one of strict liability remain available to him or her.
The text in regulation 6.07J deals in more detail with issues taken into account in relation to the imposition of strict liability offences.
New subregulation 6.08K(1) provides that an issuing body or maritime industry participant may issue a temporary MSIC to the holder of an MSIC where a person has forgotten, lost, destroyed or had their MSIC stolen on confirmation of a person’s identity.
New subregulation 6.08K(2) provides that a temporary MSIC must be issued for a specified period until a replacement MSIC can be issued if required.
New subregulation 6.08L(1) provides that an issuing body may issue a replacement MSIC, to an MSIC holder if their original card has been lost, stolen or destroyed their MSIC. The holder must either provide a statutory declaration setting out the circumstances of the lost or destruction or, if the card was stolen, a statutory declaration or copy of a police report or other information issued by the police.
New subregulation 6.08L(2) provides that an issuing body may issue a replacement MSIC to a person who has changed their name after the holder has provided written evidence of their change of name. The issuing body must also notify ASIO of a change of name and ASIO must acknowledge receipt of the notification.
New subregulation 6.08L(3) provides that the replacement MSIC must expire at the same time as the original MSIC.
New subregulation 6.08M(1) requires an issuing body to cancel an MSIC it has issued if:
· they find out that the MSIC was not issued in accordance with the body’s MSIC plan;
· they are notified by the Secretary in writing that an MSIC was not issued in accordance with the issuing body’s plan;
· they are notified by the Secretary in writing that the holder has an adverse security assessment;
· they find out that the person is an unlawful non-citizen;
· they find out the person has been convicted of a disqualifying offence
· the holder no longer has an operational need for an MSIC; or
· they find out that the holder, for a continuous period of 12 months, does not have an operational need for an MSIC.
New subregulation 6.08M(2) provides that an issuing body must notify the holder in writing that his or her MSIC has been cancelled and the reasons for the cancellation as soon as practicable.
New subregulation 6.08M(3) provides that a cancellation takes effect when the holder is notified in writing.
New subregulation 6.08N(1) provides that an issuing body to must cancel an MSIC at the holders request.
New subregulation 6.08N(2) provides that a cancellation takes effect when the MSIC is returned to the issuing body.
New subregulation 6.08O(1) provides that if an issuing body cancels an MSIC due to the holder having an adverse security assessment, being an unlawful non-citizen or a conviction for a disqualifying offence they, must notify the Secretary of the cancellation within 7 days. The issuing body must provide a written report to the Secretary setting out the holder’s name, address and date of birth and the reasons for the cancellation.
New subregulation 6.08O(2) provides that the Secretary may pass on the name, address and date of birth of a cancelled MSIC holder to another issuing body if, he or she believes that it will help to prevent unlawful interference with maritime transport.
New regulation 6.08P(1) provides that a holder of an MSIC must return to an issuing body his or her MSIC if it has expired; they have been notified that it has been cancelled; if it has been damaged within 30 days. Failure to comply with the requirements renders a person liable for a penalty of 10 penalty units.
New subregulation 6.08P(2) provides that an offence under subregulation 6.08P(1) is an offence of strict liability.
It should be noted that the existence of a strict liability does not make any other defence unavailable. Defences available to an accused other than those removed by making a matter one of strict liability remain available to him or her.
The explanation provided in regulation 6.07J deals in more detail with issues taken into account in relation to the imposition of strict liability offences.
New subregulation 6.08Q(1) provides that an MSIC holder is guilty of an offence if they no longer have an operational need to hold an MSIC for 12 months and do not return it to an issuing body within 30 days. Failure to comply with the requirements renders a person liable for a penalty of 5 penalty units.
New subregulation 6.08Q(2) provides that an offence under subregulation 6.08Q(1) is an offence of strict liability.
It should be noted that the existence of a strict liability does not make any other defence unavailable. Defences available to an accused other than those removed by making a matter one of strict liability remain available to him or her.
The explanation provided in regulation 6.07J deals in more detail with issues taken into account in relation to the imposition of strict liability offences.
New subregulation 6.08R(1) provides that an MSIC holder is guilty of an offence if their MSIC is lost, stolen or destroyed and they do not notify their issuing body within 7 days. The holder must provide a statutory declaration that his or her MSIC has been lost or destroyed. Where an MSIC has been stolen the holder must provide either a statutory declaration or a copy of the police report or information provided by the police. Failure to comply with the requirements renders a person liable for a penalty of 10 penalty units.
New subregulation 6.08R(2) provides that an offence under subregulation 6.08R(1) is an offence of strict liability.
It should be noted that the existence of a strict liability does not make any other defence unavailable. Defences available to an accused other than those removed by making a matter one of strict liability remain available to him or her.
The explanation provided in regulation 6.07J deals in more detail with issues taken into account in relation to the imposition of strict liability offences.
New subregulation 6.08S(1) provides the following definitions for the purpose of division 6.1A.5
exempt person means a person under the Maritime Transport and Offshore Facilities Security Act 2003 or these regulations is not required to display an MSIC within a Maritime Security Zone; and
security officer means a law enforcement officer or maritime security inspector.
New subregulation 6.08S(2) provides that where a security officer believes that a person a maritime security zone is not properly displaying his or her MSIC, the security officer may request that person to show their valid MSIC or identification documents which establishes that they are an exempt person.
New subregulation 6.08S(3) provides that a security officer must show the person their identity card or another appropriate form of identification before giving direction under subregulation 6.08S(2).
New subregulation 6.08S(4) provides that a person must comply with a direction of a security officer. Failing to do so results in a penalty of 10 penalty units.
New regulation 6.08T(1) provides that an issuing body must keep a register of all MSICs that they have issued.
New subregulation 6.08T(2) provides that an issuing body’s MSIC register must contain the following details:
· the holders name and telephone number;
· a copy of the photograph that appears on the MSIC;
· the holders residential address;
· the holders operational need for an MSIC;
· all documents used to determine the holder’s eligibility;
· the date the person was first issued an MSIC;
· the MSIC unique card number;
· the MSIC issue date and expiry date;
· if the MSIC was cancelled it’s cancellation date; and
· if the card has been lost, stolen or destroyed the date on which it was reported
New subregulation 6.08T(3) provides that an issuing body’s MSIC register need not contain the residential address if the MSIC holder is a law enforcement officer, an officer or employee of ASIO or an employee of a Commonwealth authority.
New subregulation 6.08U(1) provides that an issuing body must have sufficient
records to demonstrate that it has complied with its MSIC plan.
New subregulation 6.08U(2) provides that an issuing body must retain records on the issue of an MSIC for 7 years.
New subregulation 6.08U(3) provides that an issuing body must keep its records in a form that can be conveniently audited..
New subregulation 6.08U(4) provides that an issuing body must keep its records at its office.
New subregulation 6.08U(5) provides that an issuing body must allow a maritime security inspector to inspect their records subject to reasonable notice.
New regulation 6.08V provides that an issuing body must report to the Secretary in writing at the end of each financial year the;
· total number of MSICs issued by the body;
· number of current MSICs issued by the body;
· number of MSICs issued by the body that have expired or been cancelled but have not been returned to the body;
· number of MSICs issued by the body that were cancelled in the financial year; and
· number of MSICs issued by the body that have expired in the financial year.
New regulation 6.08W inserts the following new definitions for subdivision 6.1A.7 (Review of Decisions);
AAT Act means the Administrative Appeals Tribunal Act 1975
decision has the same meaning as in the AAT Act
Tribunal means the Administrative Appeals Tribunal.
New regulation 6.08X(1) provides that application may be made to the Secretary for a reconsideration of a decision made in relation to issuing bodies. These decisions include:
· the refusal to authorise a person as an issuing body;
· a condition imposed on an issuing body;
· a direction to vary an issuing body’s MSIC plan;
· the refusal of a request for exemption by an issuing body from giving effect to its plan;
· a condition imposed on an issuing body for an exemption; or
· the revocation of a issuing body’s authorisation
New subregulation 6.08X(2) provides that an application may be made to the Secretary for a reconsideration of a decision in relation to a person’s adverse criminal maritime security status based on a qualified security assessment.
New subregulation 6.08X (3) provides that an application may be made to the Secretary for reconsideration of a decision in relation to the issue and cancellation of an MSIC.
New subregulation 6.08X(4) provides that an application may be made to the Secretary for a reconsideration of a decision in relation to the wearing of and use of MSICs.
New subregulation 6.08X(5) provides that an application may be made to the Secretary for a reconsideration of a decision in relation to the substituted exercise of the powers of an issuing body.
New subregulation 6.08X(6) provides that an application may be made to the Secretary for a reconsideration of a decision in relation to the issue of a disqualifying notice.
New regulation 6.08Y provides that if the Secretary has not notified a person of his or her decision under regulation 6.08X the original decision stands.
New regulation 6.08Y provides that an application may be made to the Tribunal under the AAT Act for a review of any decisions made by the Secretary under regulation 6.08W.
New regulation 6.09A provides that an issuing body may recover reasonable costs incurred in issuing an MSIC from the person who asks the issuing body to issue the MSIC.
Item 15 – Division 6.5, Offshore security zones
Item 16 – Part 9 Reporting maritime transport security incidents
This item substitutes a new heading for Part 9 ‘Reporting maritime transport security incidents’.
Item 1 – Regulation 1.03, after definition of member of the Australian Federal Police
Item 1 inserts a definition of offshore facility zone to mean a type of offshore security zone, established by the Secretary under subsection 113A(1) of the Act that comprises the space occupied by an offshore facility.
Item 2 – Regulation 1.03, after definition of offshore service provider
Item 2 inserts a definition of offshore water-side zone to mean a type of offshore security zone, established by the Secretary under subsection 113A(1) of the Act, that comprises an area of water that surrounds an offshore facility to a distance specified by the Secretary.
Item 3 – After subregulation 1.45(1), Declarations of security
Item 3 inserts a new subregulation 1.45(1A) to require that a declaration of security, involving an offshore facility and another party, must be signed and dated by the facility operator or the head security officer and if the other party is a ship, by the master of, or the ship security officer for, the ship; or if the other party is an offshore industry participant, the security officer for the participant.
Item 4 – Regulation 2.30, Requirement for consultation
Regulation 2.30 requires that where reasonable and practicable the Secretary must consult with certain people about a security direction that relates to the movement of a ship within, or in or out of, a security regulated port. Item 4 amends regulation 2.30 to provide for ships moving in or out of an offshore water-side zone.
Item 5 – Paragraph 2.30(a), Requirement for consultation
Item 5 inserts an amendment to paragraph 2.30(a) to extend the scope of the regulations to include a requirement for the Secretary to consult with offshore industry participants who are likely to be affected by a security direction.
Item 6 – After paragraph 2.35(2)(a), requirement for consultation
Paragraph 4.85(a) provides that a ship security plan must set out procedures for reporting a maritime transport security incident to the Secretary. Item 7 amends paragraph 4.85(a) to insert a reference to offshore security incidents. Information is an important tool in the maritime security regime. Requiring this information in the plan will increase awareness of reporting obligations in the Act.
New regulation 5A.15 provides that an offshore facility operator must share certain information with other offshore service providers conducting operations at the facility. This information would include the measures to inform persons of the location of any offshore security zones and the measures to confirm the identity of persons who are authorised to have access to the zones.
It is important that offshore industry participants who are required to have security plans have access to certain information about each others’ offshore security plans to ensure effective implementation of security measures and procedures.
Item 10 – After Division 6.4
Division 6.5 Offshore security zones
Subdivision 6.5.1 Preliminary
Regulation 6.125 Types of offshore security zones (Act s113B)
New regulation 6.125 identifies the different types of offshore security zones that may be established by the Secretary. These are:
(a) an offshore facility zone; and
(b) an offshore water-side zone.
Offshore facility zone is defined in regulation 1.03 to mean a type of offshore security zone, established by the Secretary under subsection 113A(1) of the Act that comprises the space occupied by an offshore facility.
Offshore water-side zone is defined in regulation 1.03 to mean a type of offshore security zone, established by the Secretary under subsection 113A(1) of the Act, that comprises an area of water that surrounds an offshore facility to a distance specified by the Secretary.
Subdivision 6.5.2 Offshore facility zones
Regulation 6.130 Identification of zones
New regulation 6.130 requires that an offshore facility zone must be clearly identifiable and persons who are in or in the vicinity of the offshore facility zone must be informed that access to the zone is controlled and any unauthorised entry into the zone is an offence.
It is important that persons in or in the vicinity of an offshore facility zone are made aware of the boundary of a zone because of the criminal penalties attached to unauthorised entry into a zone. Advising people of the penalties for unauthorised access to a zone will reduce the incidence of unauthorised entry.
Regulation 6.135 Duties of offshore facility operator
New regulation 6.135 provides that an offshore facility operator must monitor and control access to any offshore facility zone. An offence against failure to do so is an offence of strict liability and the penalty is 200 units.
The access control measures will generally be in the offshore security plan of the offshore facility operator and subject to the offence for breach of offshore security plan in the Act, however zones may also be established by the Secretary independent of offshore security plans and so a separate offence is required.
It should be noted that the existence of strict liability does not make any other defence unavailable. Defences available to an accused other than those removed by making a matter one of strict liability would remain available to him or her.
In framing the offence provisions contained in the Maritime Transport Security Amendment Act 2005, consideration was given to the principles contained in the Sixth Report of 2002 on the Application of Absolute and Strict Liability Offences in Commonwealth Legislation by the Senate Standing Committee for the Scrutiny of Bills and to matters discussed in Part 4.5 of the Guide to Framing of Commonwealth Offences, Civil Penalties and Enforcement Powers. In the development of the offence provisions extensive consultation was also undertaken by the Department of Transport and Regional Services with the offshore oil and gas industry and offshore service providers, and with the Attorney-General’s Department.
An effective security regime is crucial to ensure better security for offshore facilities against international terrorism. To complement the regulatory model governing the maritime and offshore facility industries, it is necessary to include a number of offences with serious consequences. It is necessary for this approach to be adopted due to the public harm which could result. Potential consequences of non-compliance are high and range from detrimentally affecting confidence in the offshore petroleum industry and the Australian economy, right through to the adverse consequences a terrorist attack could have on a facility operator’s assets and physical operations.
Regulation 6.140 Offences - unauthorised entry
New regulation 6.140 makes it a strict liability offence, with a penalty of 50 penalty units, for a person to enter or remain in an offshore facility zone unless authorised to do so by the offshore facility operator.
It should be noted that the existence of strict liability does not make any other defence unavailable. Defences available to an accused other than those removed by making a matter one of strict liability would remain available to him or her.
The text in relation to regulation 6.135 deals in more detail with issues taken into account in relation to the imposition of strict liability offences.
Subdivision 6.5.3 Offshore water-side zones
Regulation 6.145 Identification of zones
New regulation 6.145 requires that a water-side zone be clearly identifiable. An offshore facility operator is also required to give notice of the establishment of, and the boundaries of, the offshore waterside zone by water-based identification measures, or posting, publishing or broadcasting notices, or using any other means that have the effect of informing persons in or in the vicinity of the zone about the establishment of the zone and its boundaries.
Regulation 6.150 Duties of offshore facility operator
New regulation 6.150 requires an offshore facility operator to ensure that persons who are in or in the vicinity of the security regulated offshore facility are informed that access to the water-side zone is controlled and any unauthorised entry into the zone is an offence.
This regulation makes it a strict liability offence for an offshore port operator to fail to monitor access to a water-side zone. Failure to do so is an offence of strict liability and the penalty is 200 penalty units.
The access control measures would generally be in the offshore security plan of the offshore facility operator and subject to the offence for breach of offshore security plan in the Act, however zones may also be established by the Secretary independent of offshore security plans and so a separate offence is required.
It should be noted that the existence of strict liability does not make any other defence unavailable. Defences available to an accused other than those removed by making a matter one of strict liability would remain available to him or her.
The text in relation to regulation 6.135 deals in more detail with issues taken into account in relation to the imposition of strict liability offences.
Regulation 6.155 Offences - unauthorised entry
New regulation 6.155 makes it a strict liability offence, with a penalty of 50 penalty units, for a person to enter or remain in an offshore waterside zone unless authorised to do so.
This regulation also makes it a strict liability offence to take into or leave a vessel or thing in an offshore water-side zone unless authorised to do so by the offshore facility operator.
It should be noted that the existence of strict liability does not make any other defence unavailable. Defences available to an accused other than those removed by making a matter one of strict liability would remain available to him or her.
The text in relation to regulation 6.135 deals in more detail with issues taken into account in relation to the imposition of strict liability offences.
Item 11 – Part 9 Reporting maritime transport or offshore facility security incidents
This item repeals the current heading and substitutes a new heading “Reporting maritime transport and offshore facility security incidents”.