EXPLANATORY STATEMENT

 

Select Legislative Instrument 2007 No. 173

 

Issued by the Authority of the Minister for Transport and Regional Services

 

Maritime Transport and Offshore Facilities Security Act 2003

 

Maritime Transport and Offshore Facilities Security Amendment

Regulations 2007 (No. 2)

 

Subsection 209(1) of the Maritime Transport and Offshore Facilities Security Act 2003 (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 to safeguard against unlawful interference with maritime transport and offshore 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.

 

In particular, paragraphs 105(2)(a), 109(2)(a), 113(2)(a) and113D(2)(a) of the Act provide that regulations may, for the purpose of safeguarding against unlawful interference with maritime transport or offshore facilities, deal with access to port, ship, on-board and offshore security zones including the issue and use of security passes and other identification systems..

 

The Maritime Transport and Offshore Facilities Security Regulations 2003 (the Principal Regulations) set out the details regarding the Maritime Security Identification Card (MSIC) scheme for maritime industry and offshore participants.

 

The purpose of the Regulations is to:

·         describe AusCheck, the new division of the Attorney-General’s Department, as the coordinating and assessment body for background checking of MSIC applicants;

·         provide for a staged transition of the background checking process from the Department of Transport and Regional Services to AusCheck;

·         clarify the use of unique identification numbers on replacement MSICs; and

·         permit the reissue of an MSIC if a holder’s working visa has been renewed.

 

Attachment A outlines the scope of the Regulations.

 

Details of the Regulations are set out in Attachment B.

 

During the preparation of the amendments, the Government consulted with maritime transport and offshore facilities industries.

 

Regulations 1 to 3 of and Schedule 1 to the Regulations will commence on 1 July 2007. Schedule 2 to the Regulations will commence on 3 September 2007.

 

ATTACHMENT A

 

Scope of the Maritime Transport and Offshore Facilities Security Amendment Regulations 2007 (No. 2)

 

The Regulations amend the Maritime Transport and Offshore Facilities Security Regulations 2003 (the Principal Regulations) to specify that:

 

·        between 1 July 2007 and 3 September 2007 a transitional period allows both the Secretary of the Department of Transport and Regional Services (Secretary DOTARS) and the Secretary of the Attorney-General’s Department (Secretary AGD) to assess background checks for Maritime Security Identification Cards (MSIC) applicants;

·        from 3 September 2007, all new MSIC applicants’ background checks will be coordinated by the Secretary AGD under the AusCheck Scheme. Applications that are received by the Australian Federal Police before this date will be assessed by the Secretary DOTARS until their completion;

·        the definition of background check is consistent with the AusCheck Act 2007 definition of background check. Other additional definition amendments have been included to assist in the interpretation of the Principal Regulations;

·        for persons with a qualified security assessment, the Secretary DOTARS will still be required to determine if that person is a threat to maritime transport and offshore facility security. The Secretary DOTARS will notify the issuing body, applicant and the Secretary AGD of the decision.

·        MSIC issuing bodies may apply for a background check for a person who is either applying for an MSIC or for a person who is hired by the issuing body to issue MSICs. The person hired to issue MSICs must be background checked before they commence issuing MSICs and every five years thereafter;

·        when a replacement MSIC is issued to a person, for example if a card is lost or stolen, the new MSIC must be given a new number, unique to that issuing body; and

·        under certain conditions, an issuing body may reissue an MSIC to a holder whose card has expired due to the expiry of their working visa if their visa has been renewed within 12 months.

MSIC applicants are currently assessed by the Secretary DOTARS against specified criteria outlined in the Principal Regulations.

On 1 July 2007, a new division within the Attorney-General’s Department (AGD), AusCheck, will commence coordinating the background checks for applicants of MSICs. AusCheck will notify issuing bodies and applicants of the outcomes of assessments and maintain an up-to-date database of all MSIC applicants and cardholders. A transition period between 1 July 2007 and 3 September 2007 will allow both AusCheck and the Secretary DOTARS to assess background checks until AusCheck is fully operational on 3 September 2007. AusCheck will assess background checks under the AusCheck Scheme against the criteria outlined in the Principal Regulations. The Secretary DOTARS will continue to assess background checks until the end of the transition period.

ATTACHMENT B

 

Details of the Maritime Transport and Offshore Facilities Security Amendment Regulations 2007 (No. 2)

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the Maritime Transport and Offshore Facilities Security Amendment Regulations 2007 (No. 2).

 

Regulation 2 – Commencement

 

This regulation provides for regulations 1 to 3 of and Schedule 1 to the Regulations to commence on 1 July 2007 and provides for the transition period leading up to the full operation of AusCheck on 3 September 2007. The transition period allows both the Secretary of the Department of Transport and Regional Services (Secretary DOTARS) and the Secretary of the Attorney-General’s Department (Secretary AGD) to conduct background checks to satisfy Maritime Security Identification Card (MSIC) applicant eligibility requirements. Schedule 1 also contains other minor amendments to the Maritime Transport and Offshore Facilities Security Regulations 2003 (the Principal Regulations) that are not related to the operation of the AusCheck scheme.

 

This regulation also provides that Schedule 2 commences on 3 September 2007. This marks the end of the transition period when AusCheck will be fully operational and responsible for all new MSIC applicants’ background checks.

 

Regulation 3 – Amendment of Maritime Transport and Offshore Facilities Security Regulations 2003

 

This regulation provides that Schedules 1 and 2 amend the Maritime Transport and Offshore Facilities Security Regulations 2003.

 

Schedule 1 – Amendments commencing on 1 July 2007

 

Item [1] – Regulation 6.07B, after definition of ASIO

 

The amendment inserts a new definition for the purposes of Part 6, that provides that references to the ‘AusCheck Scheme’ are references to the scheme prescribed in section 8 of the AusCheck Act 2007.

 

Item [2] – Regulation 6.07B, definition of background check

 

The amendment to the definition of ‘background check’ in regulation 6.07B provides that during the transition period background checks include criminal records checks, security assessments and an assessment under the AusCheck Scheme.

 

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

 

The amendment to the definition of ‘conviction’ clarifies that spent convictions within the meaning of the Crimes Act 1914 are applicable under Part 6 of the Principal Regulations. The intention is to make it clear that, when a background check is conducted, a conviction which would otherwise be spent may be taken into account if there has been another conviction during the waiting period.

 

Item [4] – Regulation 6.07B, after definition of conviction

 

The amendment to regulation 6.07B provides notes to aid in the interpretation of the definition of ‘conviction’.

 

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

 

This amendment inserts a definition for the term ‘Secretary AGD’ for the purposes of Part 6 of the Principal Regulations to refer to the Secretary AGD who is responsible for administering the AusCheck Scheme.

 

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

 

The amendment to regulation 6.07B omits notes 1-4 relating to the definition of ‘conviction, which are to be more appropriately inserted after that term.

Item [7] Regulation 6.07K, heading

 

The amendment to the heading of regulation 6.07K is to correct a drafting error.

 

Item [8] – Subregulation 6.07K (1)

 

The amendment to subregulation 6.07K (1) provides that in the transition period disqualifying notices may be given to a person by either the Secretary DOTARS or the Secretary AGD.

 

Item [9] – Subregulation 6.08B (2)

 

The amendment to subregulation 6.08B (2) ensures that this provision only applies to those MSIC applicants whose background checks are being assessed by the Secretary DOTARS and not through the AusCheck scheme.

 

Item [10] – After regulation 6.08B

 

The amendment inserts new regulation 6.08BA to provide issuing bodies with the ability to apply for a background check through the AusCheck Scheme.

 

Subregulation 6.08BA (1) lists the triggers that may require an issuing body to apply the Secretary AGD for a background check. These triggers are when an issue body proposes to issue an MSIC to an applicant or when a person is employed by the issuing body to issue MSICs.

 

Subregulation 6.08BA (2) provides that a person employed to issue MSICs must have had a background check before they begin to issue MSICs and at least every five years after their last background check.

Item [11] – Subregulation 6.08C (2)

 

The amendment to subregulation 6.08C (2) ensures that this provision only applies to those MSIC applicants whose criminal record is being assessed by the Secretary DOTARS and not through the AusCheck Scheme.

 

Item [12] – Subregulation 6.08D (2)

 

New subregulation 6.08D (2A) provides that if the background check conducted under the AusCheck Scheme reveals that a person has been convicted of a disqualifying offence, the Secretary AGD is to notify the MSIC applicant and the Secretary DOTARS.

 

Item [13] – Before subregulation 6.08H (1)

 

The new subregulation 6.08H (1A) ensures that subregulation 6.08H (1) only applies to those MSIC applicants whose criminal record is being assessed by the Secretary DOTARS and not through the AusCheck Scheme.

 

Item [14] – Subregulation 6.08I (1)

 

The amendment to subregulation 6.08I (1) removes the reference to the AFP to ensure that the five year period of expiry for an MSIC is relevant to a background check assessed by either the Secretary DOTARS or the Secretary AGD.

 

Item [15] – Paragraph 6.08I (2) (a)

 

The amendment to the paragraph 6.08I (2) (a) is to correct a drafting error.

 

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

 

The amendment to paragraph 6.08K (1) (a) includes a reference to new subregulation 6.08K (2A).

 

Item [17] – After subregulation 6.08K (2)

 

The amendment inserts new subregulation 6.08K (2A) which enables a maritime industry participant to issue a temporary MSIC to a person who has been approved for an MSIC but has not yet received their card from their issuing body. The amendment permits a person who experiences a delay in the issue/receipt of their MSIC due to remote localities or administrative delays to be able to use a temporary MSIC to access maritime security zones.

Item [18] – Paragraph 6.08K (5) (b)

 

The amendment to subregulation 6.08K (5) (b) means that either the Secretary DOTARS or the Secretary AGD may determine if a person has an adverse criminal record.

 

Item [19] – After subregulation 6.08K (5)

 

This amendment inserts new subregulation 6.08K (6) to provide expiry conditions for a temporary MSIC issued under new subregulation 6.08K (2A). These temporary MSICs will expire within two months from the date of issue or the day the holder receives his or her MSIC, whichever is the earlier.

 

Item [20] – After subregulation 6.08L (5)

 

The amendment inserts new subregulation 6.08L (6) to provide that replacement MSICs must have a new unique identifying number. This is to clarify beyond doubt that a replacement MSIC must not bear the same number as the initial MSIC issued to the MSIC holder.

 

Item [21] – After regulation 6.08L

 

The new regulation 6.08LA allows an issuing body, upon the expiry of an old MSIC, to issue a new MSIC to a person who was has had their working visa renewed, providing the new visa is issued within 12 months of the expiry of the old visa, the person has an operation need for an MSIC and none of the information provided to obtain the old MSIC has changed..

 

The person is required to complete a statutory declaration stating there has been no change to the information that was given in relation to the application for the original MSIC before a new MSIC may be issued.

 

Schedule 2 – Amendments commencing on 3 September 2007

 

Item [1] – Regulation 6.07B, definition of background check

 

The amendment to the definition of ‘background check’ omits the paragraphs that were relevant to when the Secretary DOTARS was assessing background checks. The amendment defines ‘background check’ as being an assessment of any of the matters specified in section 5 of the AusCheck Act 2007.

 

Item [2] – Regulation 6.08B

 

The amendment inserts new regulation 6.08B to provide that a person with an operational need for an MSIC may apply to an issuing body for an MSIC. The amendment removes the requirement for an MSIC applicant to send a signed consent form to the AFP requesting a background check.

 

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

 

Regulation 6.08C prescribes issue requirements that must be satisfied before an issuing body can issue an MSIC.

 

The amendment to paragraph 6.08C (1) (d) ensures that the issuing body has received positive notification relating to the security assessment of an applicant before they issue an MSIC. The issuing body must have received notification that the applicant does not have an adverse security assessment or that the Secretary DOTARS has determined that although the applicant has a qualified security assessment the person is not a threat to the security of maritime transport or an offshore facility.

 

The amendment to paragraph 6.08C (e) ensures that an issuing body does not issue an MSIC to a person unless they have received a notice that the person does not have an adverse criminal record. However, an MSIC may be issued to a person that has an adverse criminal record if an application for approval to issue an MSIC has been approved by the Secretary DOTARS under paragraph 6.08F (3) (a) or under subregulation 6.08X (3).

 

Item [4] – Subregulation 6.08C (2)

 

The amendment omits subregulation 6.08C (2). The effect of other amendments renders this regulation redundant.

 

Item [5] – After regulation 6.08C

 

The amendment inserts new regulation 6.08CA which provides transitional arrangements for applicants that applied to the AFP for a background check prior to 3 September 2007. The Secretary DOTARS will continue to process these applications under the regulations that were in place prior to 3 September 2007. Under these circumstances, if applicable, the Secretary DOTARS will also be responsible for sending disqualifying notices.

 

Item [6] – Subregulation 6.08D (2)

 

The amendment to subregulation 6.08D (2) gives effect to the role of the Secretary AGD in sending disqualifying notices to people that have committed disqualifying offences.

 

Item [7] – Subregulation 6.08D (2A)

 

The amendment replaces subregulation 6.08D (2A) with the requirement for the Secretary AGD to provide the Secretary DOTARS with a copy of a disqualifying notice sent under subregulation 6.08D(2).

 

Item [8] – Subregulation 6.08F (5)

 

The amendment to 6.08F (5) omits the words ‘under paragraph 6.08C (1) (e)’. Other amendments render this reference redundant due to role changes from the Secretary DOTARS to the Secretary AGD. The amendment ensures that irrespective of who made the decision that a person had an adverse criminal record, the Secretary DOTARS must consider the specified criteria in deciding whether the person constitutes a threat to the security of maritime transport or an offshore facility.

 

Item [9] – Regulation 6.08H

 

This item would amend current regulation 6.08H and insert a new regulation 6.08HA. The amendment inserts new regulation 6.08H and omits the process involved in notifying people with adverse security assessments, as this becomes the responsibility of the Secretary AGD, under the AusCheck Scheme.

 

The amendment provides that if a person has a qualified security assessment the Secretary DOTARS must determine if the person is a threat to the security of maritime transport or an offshore facility and give the issuing body a notice stating an MSIC may be issued or a direction not to issue an MSIC. The MSIC applicant is also to be advised of the outcome of the Secretary DOTARS decision.

 

Regulation 6.08HA requires the Secretary DOTARS to inform the Secretary AGD, if a decision has been made to approve the issue or non issue of an MSIC to a person who has an adverse criminal record or if a decision has been made that a person with a qualified security assessment is or is not considered a threat to the security of maritime transport or an offshore facility.

 

Item [10] – Paragraph 6.08K (5) (b)

 

The amendment to subregulation 6.08K (5) (b) gives effect to the role of the Secretary AGD in deciding that a person with a temporary MSIC has an adverse criminal records. Following this decision the Secretary DOTARS may direct that the maritime industry participant that issued a temporary MSIC under regulation 6.08K (2) cancel the temporary MSIC.