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MARITIME TRANSPORT AND OFFSHORE FACILITIES SECURITY AMENDMENT REGULATIONS 2009 (NO. 1) (SLI NO 11 OF 2009)

EXPLANATORY STATEMENT

 

Select Legislative Instrument 2009 No. 11

 

Issued by the Authority of the Minister for Infrastructure, Transport, Regional Development and Local Government

 

 

Maritime Transport and Offshore Facilities Security Act 2003

 

Maritime Transport and Offshore Facilities Security Amendment

Regulations 2009 (No. 1)

 

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.

 

Section 100I of the Act provides an express power to make regulations with regard to offshore security plans. Section 105 provides that the regulations may prescribe specific requirements in relation to port security zones, while subsection 105 (3) provides for regulations to be made to prescribe penalties for offences against those regulations.

 

Section 109 provides an express power to make regulations with regard to ship security zones, while subsection 109 (3) provides for regulations to be made to prescribe penalties for offences against those regulations. Section 113D provides that regulations may prescribe specific requirements in relation to offshore security zones.

 

The Maritime Transport and Offshore Facilities Security Regulations 2003 (the Principal Regulations) set out the requirements for maritime, ship and offshore security plans and ensures that maritime, ship and offshore security plans address specific matters to achieve maritime security outcomes as specified in the Act.

 

In 2007 a taskforce was established within the Office of Transport Security (OTS), a business division of the Department of Infrastructure, Transport, Regional Development and Local Government (the Department), to consider ways in which the maritime security regime under the Act and Principal Regulations could be enhanced to continue to deliver effective security outcomes into the future.

 

The outcomes of the review formed the basis for the development of a series of legislative, regulatory and policy proposals. The regulatory proposals form the basis of these amendments. Although arising through the review process, the amendments are minor and more related to ongoing administration and maintenance of the Principal Regulations than to the introduction of new security initiatives; they do not substantially alter existing arrangements. As such their impact on industry is minimal.

 

The amendments also address recent developments at an international level regarding training standards for ship security officers.

 

Specifically, the amendments:

 

  1. reinstate the requirement for 24 hour contact details, inadvertently removed in a previous regulation process, to be provided for all security officers;
  2. allow offshore facility operators to request the declaration of ship security zones around ships when in the vicinity of an offshore facility;
  3. correct anomalies such as incorrect references to penalties; and
  4. require all ship security officers on Australian security regulated ships hold certificates of proficiency as ship security officers.

 

Key stakeholders in the maritime industry were briefed on the amendments via an OTS administered industry consultative forum; the forum met twice in 2008 and provided broad support for the amendments.

 

Details of the Regulations are set out in the Attachment.

 

The Regulations are a legislative instrument for the purpose of the Legislative Instruments Act 2003.


ATTACHMENT

 

Details of the Maritime Transport and Offshore Facilities Security Amendment Regulations 2009 (No. 1)

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the Maritime Transport and Offshore Facilities Security Amendment Regulations 2009 (No. 1).

 

Regulation 2 – Commencement

 

This regulation provides for the Regulations to commence on the day after they are registered on the Federal Register of Legislative Instruments.

 

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

 

This regulation provides that Schedule 1 amends the Maritime Transport and Offshore Facilities Security Regulations 2003 (the Principal Regulations).

 

Schedule 1 - Amendments

 

Item [1] – Subregulation 1.03 (1) definition of contact details

 

This amendment substitutes the definition of contact details at subregulation 1.03 (1) with a revised definition which expands on the current definition. The revised definition inserts the requirement for contact details to include certain types of communication methods on a 24-hour basis.

 

24-hour contact details for security officers were originally required by the Act to be included in each maritime, ship and offshore security plan required to be prepared under the Act. This requirement was removed by the Maritime Transport and Offshore Facilities Security Amendment (Security Plans and Other Measures) Act 2006.

 

Maritime Transport and Offshore Facilities Security Amendment Regulations 2006 (No. 3) instead created the requirement for such information to be provided in a document accompanying the security plan. This meant that where an industry participant needed to update their contact details they could do so without having to go through the formal security plan variation process as would otherwise have been required.

 

In the process of amending the Principal Regulations however the requirement to provide 24-hour contact details was inadvertently removed; although the majority of security plans still provide 24-hour contact details, this amendment formally reinstates the requirement.

 

To avoid disruption for industry participants, the same 24-hour requirements and methods of communication, specified prior to their removal, have been used. The only difference is that, where previously the requirements had been specified within each regulation that referred to security officers providing contact details (regulations 3.35, 3.100, 3.185, 4.30, 5A.30, 5A.120), the new amendment brings the requirement for 24-hour contact details under a single definition and then differentiates different types of communication methods within that definition.

 

Item [2] – Subregulation 1.03 (1) definition of exclusion zone

 

This amendment substitutes the definition of exclusion zone at subregulation 1.03 (1) with a revised definition; it is related to the amendment at item 11. Previously, the definition of exclusion zone referred only to those ship security zones declared under subsection 106 (1) of the Act. For clarity the amendment expands this definition to include those ship security zones declared under subsection 106 (1A).

 

Item [3] – Paragraph 1.15 (4) (a)

 

This amendment substitutes a new paragraph 1.15 (4) (a) to require all ship security officers to hold certificates of proficiency as ship security officers.

 

From 1 January 2008 new mandatory minimum training standards applied at international law for persons to be designated as ship security officers (SSOs). These new standards resulted from amendments to the International Convention on Standards of Training Certification and Watchkeeping for Seafarers 1978 and the Seafarers’ Training, Certification and Watchkeeping Code, promulgated by the International Maritime Organization (IMO). Details of these amendments are contained in IMO Resolutions MSC.203(81) and MSC.209(81).

 

The substitution of paragraph 1.15 (4) (a) reflects these new minimum training and certification requirements. Certification process and specific eligibility requirements for certificates of proficiency as ship security officers are administered by the Australian Maritime Safety Authority (AMSA). Eligibility requirements are set out in the Marine Orders, Part 3 (Seagoing Qualifications). A transitional provision (provided for in the Marine Orders) applies from 1 January 2008 to 1 July 2009 allowing for ship personnel who can demonstrate they meet the requirements needed to be issued a certificate of proficiency, to be recognised as ship security officers.

 

The AMSA administered certification process has been in place since January 2008 and operates independently of this amendment.

 

Item [4] – Subregulation 1.45 (2), note

 

This amendment replaces the note at subregulation 1.45 (2) and has two purposes. Firstly, it removes the reference to ‘www.dotars.gov.au’ and replaces it with ‘www.infrastructrure.gov.au’, reflecting the Department’s change in name following the 2007 Federal election; secondly it changes the tense of the text to indicate that a sample form of a declaration of security is available on the Department’s web site (as opposed to the previous text which indicated that such a form would be placed on the web site in the future).

 

 

Item [5] – Paragraph 5A.60 (1) (b)

 

The amendment is consequential to the amendment at item 9. Previously regulation 5A.60 required that offshore facility operators addressed certain matters in their security plans, in addition to the matters required under regulation 5A.15 covering security plan audits and reviews.

 

The substituted paragraph 5A.60 (1) (b) requires an offshore security plan for an offshore facility operator to address, in addition to those matters already identified above, measures to prevent unauthorised access to a ship security zone declared to operate around a security regulated ship while the ship is in the vicinity of a security regulated offshore facility and is engaged in any activity in relation to facility.

 

Item [6] – Regulation 5A.90

 

This amendment inserts a new regulation 5A.92 after regulation 5A.90 and is consequential to the amendment at item 9. It requires offshore facility operators to set out in their security plans security measures and procedures to monitor and control access to ship security zones, including measures to deter and detect unauthorised access to those zones.

 

Item [7] – Subregulation 6.40 (1), penalty

 

The amendment at subregulation 6.40 (1) corrects an anomaly in the Principal Regulations. Regulation 6.40 provides that port service providers must monitor and control access to any port security zone within the control of the provider. Previously, subregulation 6.40 (1) provided for a penalty of 200 penalty units if the provider failed to fulfil this duty. The penalty provided for however was inconsistent with the scale of penalties provided for at section 105(3) of the Act. Item 7 amends subregulation 6.40 (1) to provide for a penalty of 100 penalty units, being the correct amount permitted under the Act.

 

Item [8] – Subregulation 6.85 (1)

 

The amendment at subregulation 6.85 (1) omits ‘A port operator’ and inserts ‘The port operator’. This amendment is for clarity only and reflects the underlying policy intent of the Act and Principal Regulations that there can only be one operator for a security regulated port. This amendment ensures consistency with the new subregulation 6.85 (1A) and regulation 6.96 at items 9 and 17 respectively.

 

Item [9] – After subregulation 6.85 (1)

 

The amendment inserts subregulation 6.85 (1A) after subregulation 6.85 (1). The effect of the inserted subregulation 6.85 (1A) is to allow offshore facility operators for security regulated offshore facilities to request the Secretary of the Department to declare that a ship security zone is to operate around a security regulated ship while the ship is in the vicinity of the offshore facility and is engaged in any activity in relation to that facility.

 

Under subsection 106(1A) of the Act, the Secretary has the authority to make such a declaration however until this time, there has been no provision to allow an offshore facility operator to request the establishment of a ship security zone.

 

The effect of the amendment provides offshore facility operators with the same ability to request ship security zones in relation to their facilities as port operators have in relation to the ports they operate. Port operators have always been able to make such requests under regulation 6.85 and the Secretary has always been able to declare the operation of the ship security zones within a port under subsection 106 (1) of the Act. The omission of this ability for offshore facility operators appears to be an oversight dating back to when the maritime security regime was extended to cover offshore oil and gas facilities in 2005.

 

This amendment gives offshore facility operators the mechanism to request the establishment of ship security zones and provides for consistency across the maritime and offshore security regimes.

 

Item [10] – After subregulation 6.85 (2)

 

The amendment inserts new subregulations 6.85 (3) and (4) after subregulation 6.85 (2); it is consequential to the amendment at item 9 and related to the amendment at item 20. The amendment provides that where an offshore facility operator for a security regulated offshore facility requests the Secretary to declare that a ship security zone is to operate around a security regulated ship while the ship is in the vicinity of the offshore facility and is engaged in any activity in relation to that facility, the Secretary must make a decision and include written reasons to the facility operator is the request is refused.

 

This amendment is consistent with other areas of the Act and Principal Regulations where the Secretary is required to make a decision. See for example subsection 51 (2) of the Act.

 

Item [11] – Subregulation 6.90 (2)

 

The amendment at subregulation 6.90 (2) is consequential to the amendment at item 9. It omits ‘The port operator for the security regulated port in which the ship security zone is established’ and inserts ‘The relevant operator’. A definition for ‘relevant operator’ is provided for at item 13 and is explained below.

 

Item [12] – Paragraph 6.90 (2) (d)

 

The amendment at paragraph 6.90 (2) (d) is consequential to the amendment at item 9 and inserts ‘or security regulated offshore facility’ after ‘security regulated port’.

 

Item [13] – After subregulation 6.90 (2)

 

The amendment after subregulation 6.90 (2) relates to the amendment at item 11 and inserts a definition of ‘relevant operator’. The definition now reflects that both port operators and offshore facility operators may have responsibilities regarding ship security zones established at their operations as a result of the amendment at item 9.

Item [14] – Subregulation 6.95 (1)

 

The purpose of the amendment at subregulation 6.95 (1) is to enhance clarity of drafting and comprehensibility. It does this by restructuring the sentence to reduce the amount of words used while retaining the same meaning as it had previously.

Item [15] – Subregulation 6.95 (3)

 

The amendment at subregulation 6.95 (3) omits ‘A port operator’ and inserts ‘The port operator’. This amendment is for clarity only and reflects the underlying policy intent of the Act and Principal Regulations that there can only be one operator for a security regulated port. This amendment ensures consistency with the new subregulation 6.85 (1A) and regulation 6.96 at items 9 and 17 respectively.

 

Item [16] – Subregulation 6.95 (5)

 

The amendment at subregulation 6.95 (5) omits ‘A port operator’ and inserts ‘The port operator for a security regulated port’. This amendment is for clarity only and reflects the underlying policy intent of the Act and Principal Regulations that there can only be one operator for a security regulated port. This amendment ensures consistency with the new subregulation 6.85 (1A) and regulation 6.96 at items 9 and 17 respectively.

 

Item [17] – After regulation 6.95

 

The amendment after regulation 6.95 is consequential to the amendment at item 9 and creates duties for offshore facility operators in relation to ship security zones. The new regulation 6.96 provides that if the Secretary gives notice of the establishment of a ship security zone in the vicinity of a security regulated offshore facility, the offshore facility operator must ensure that persons who are in, or in the vicinity of, the facility are informed that access to the zone is controlled and any unauthorised entry into the zone is an offence. Methods for informing such persons must be in accordance with the operator’s offshore security plan.

 

Subregulation 6.96 (3) provides for a penalty of 200 penalty units if an offshore facility operator for a security regulated offshore facility does not monitor access to a ship security zone established in the vicinity of the facility. This is an offence of strict liability, reflecting the seriousness of the offence; it also ensures consistency with similar offence provisions already in place in the Principal Regulations.

Although in effect, this item extends criminal liability to offshore facility operators, this amendment is a consequence of correcting the oversight from 2005, identified at item 9, when the offshore regulations were introduced. From this perspective its purpose is to correct the oversight, not introduce a new criminal liability framework for the offshore area.

 

The penalty listed at subregulation 6.96 (3) is consistent with the scale of penalties provided for at subsection 109 (3) of the Act.

 

Regulation 6.96 is modelled on regulation 6.95, which provides for the duties of port operators with regard to ship security zones established in security regulated ports and operates in a similar way. This provides for greater consistency across the maritime and offshore security regimes.

 

Item [18] – Regulation 6.100

 

The amendment at regulation 6.100 is related to the amendment at item 9 and item 17. Whereas the amendment at item 17 creates for duties for offshore facility operators in relation to ship security zones established in the vicinity of their facilities, this item creates offences for persons in relation to unauthorised entry into such zones.

 

Previously regulation 6.100 provided only for offences for unauthorised entry into ship security zones established within a security regulated port. As a result of item 9 and amendments consequential to that item, the offences listed in regulation 6.100 have been expanded to apply also to unauthorised entries of people into ship security zones established around security regulated ships the vicinity of a security regulated offshore facility. The offences listed are all offences of strict liability, reflecting the seriousness of the offences; this also ensures consistency with similar offence provisions already in place in the Principal Regulations.

 

Although in effect, this item extends criminal liability to people entering ship security zones in the vicinity of offshore facilities, this item is a consequence of correcting the oversight from 2005, identified at item 9, when the offshore regulations were introduced. From this perspective its purpose is to correct the oversight, not introduce a new criminal liability framework for the offshore area.

 

The penalties listed at regulation 6.100 are consistent with the scale of penalties provided for at subsection 109 (3) of the Act.

 

Item [19] – Subregulation 6.150 (3)

 

The amendment to subregulation 6.150 (3) inserts ‘subregulation (2)’ and omits ‘subregulation (1)’. The amendment corrects an anomaly in the original drafting of the Principal Regulations.

 

Item [20] – Part 12

 

The amendment at Part 12 inserts a new regulation 12.01 titled ‘Review of decisions by Administrative Appeals Tribunal’. The amendment is consequential to the amendment at item 10.

 

This new regulation is required because, prior to this amendment, a port operator or offshore facility operator could only seek administrative review (under paragraph 201 (i) of the Act) of a decision by the Secretary to declare a ship security zone under section 106 of the Act.

 

That paragraph did not provide for administrative review of a decision not to declare a ship security zone once a person had requested (under regulation 6.85, prior to its amendment at item 10) that a declaration be made. The amendment rectifies this problem and provides port and offshore facility operators a mechanism to pursue review of such decisions.


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