Commonwealth Numbered Regulations - Explanatory Statements
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MARITIME TRANSPORT AND OFFSHORE FACILITIES SECURITY AMENDMENT REGULATIONS 2011 (NO. 1) (SLI NO 140 OF 2011)
EXPLANATORY STATEMENT
Select Legislative Instrument 2011 No. 140
Issued by the Authority of the Minister for Infrastructure and Transport
Maritime Transport and Offshore Facilities Security Act 2003
Maritime Transport and Offshore Facilities Security Amendment
Regulations 2011 (No. 1)
The Maritime Transport and Offshore Facilities Security Act 2003 (the Act) establishes a regulatory framework to safeguard against unlawful interference with maritime transport and offshore oil and gas facilities. To achieve this purpose, the Act establishes minimum security requirements for the Australian maritime industry by imposing obligations on persons engaged in maritime activities.
Subsection 209 (1) of the Act provides that the Governor-General may make Regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Act.
The Maritime Transport and Offshore Facilities Security Regulations 2003 (the Principal Regulations) set out the requirements for maritime, ship and offshore security plans and ensure that maritime, ship and offshore security plans address specific matters to achieve maritime security outcomes as specified in the Act. In addition, the Principal Regulations outline a number of measures that must be undertaken in order to ensure the achievement of the maritime security outcomes, including requirements for access to maritime security zones and requirements for passenger security screening.
The regulations amend the Principal Regulations to more effectively security regulate the maritime transport sector.
In particular, the regulations amend the Principal Regulations to:
* update definitions for terms used in the Principal Regulations and include notes to provide guidance for certain provisions;
* remove the requirement for an issuing body to cancel a Maritime Security Identification Card (MSIC) on the basis of an adverse criminal record, in circumstances where the MSIC was issued or reinstated following a decision or an approval by the Secretary or a decision by the Administrative Appeals Tribunal;
* prescribe four discrete categories of passenger ships. This enables security arrangements to more accurately address different risk environments faced by each prescribed category of passenger ship, including passenger and vehicle ferries;
* provide for new minimum standards for the form and content of maps of security regulated ports and zones that form part of the maritime security plan submitted to the Secretary by the maritime industry participant;
* clarify the arrangements for cleared zones. In particular, the amendments align the regulatory provisions for cleared zones with those for land-side restricted zones. The regulations also amend the Principal Regulations to ensure that, if an area is a cleared zone only at certain times, the zone will be inspected for weapons and prohibited items before each occasion on which the area is a cleared zone; and
* enable the Secretary to grant exemptions from the requirement to hold a valid Ship Security Plan (SSP) or International Ship Security Certificate (ISSC) for regulated Australian ships. The regulations prescribe the form and content for applications for exemption from having a SSP or ISSC. It is intended that exemptions will only be granted in exceptional circumstances where the granting of such an exemption would not impact on maritime security outcomes.
Details of the regulations are set out in the Attachment.
The Office of Best Practice Regulation was consulted in the development of these regulations and Regulation Impact Statement exemptions were provided as follows:
* for the regulations in relation to MSIC, an exemption was granted on 25 May 2011 (reference 12676);
* for the regulations in relation to security regulated passenger ships, an exemption was granted on 7 April 2011 (reference 12230);
* for the regulations in relation to port mapping zones, an exemption was granted on 24 January 2011 (reference 12252);
* for the regulations in relation to cleared zones, an exemption was granted on 7 April 2011 (reference (12359); and
* for the regulations in relation to the circumstances for exemptions to hold SSP or ISSC for regulated Australian ships, an exemption was granted on 7 April 2011 (reference 12230).
The regulations have been settled in consultation with maritime industry participants.
The regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Regulations 1-3 and Schedule 1 commence the day after they were registered on the Federal Register of Legislative Instruments. Regulation 4 and Schedule 2, which relate to passenger ships, commence on 11 September 2011.
ATTACHMENT
Details of the Maritime Transport and Offshore Facilities Security Amendment Regulations 2011 (No. 1)
Regulation 1 - Name of Regulations
Regulation 1 provides that the regulations are referred to as the Maritime Transport and Offshore Facilities Security Amendment Regulations 2011 (No. 1).
Regulation 2 - Commencement
Regulation 2 sets out the commencement dates for the regulations.
Regulations 1 to 3 and Schedule 1 commence the day after registration.
Regulation 4 and Schedule 2 commence on 11 September 2011.
Regulation 3 - Amendment of Maritime Transport and Offshore Facilities Security Regulations 2003
Regulation 3 provides that Schedule 1 amends the Maritime Transport and Offshore Facilities Security Regulations 2003.
Regulation 4 - Amendment of Maritime Transport and Offshore Facilities Security Regulations 2003
Regulation 4 provides that Schedule 2 amends the Maritime Transport and Offshore Facilities Security Regulations 2003.
Schedule 1 - Amendments commencing on day after registration
Item [1] - Regulation 1.03, heading
Item 1 substitutes the heading Definitions with the heading Interpretation in the Principal Regulations. This brings the Principal Regulations in line with current drafting conventions.
Item [2] - Subregulation 1.03 (1), definition of airport
Item 2 clarifies the existing definition of airport.
Item [3] - Subregulation 1.03 (1), after definition of contracting government
Item 3 inserts a note to the definition of contracting government to refer the reader to section 10 of the Act for a definition of SOLAS Convention. The term "SOLAS Convention" is currently mentioned in the definition of contracting government and in a number of other provisions in the Principal Regulations (see items [6], [7], [8], [11], [14], and [18] of Schedule 1 below) without a clear definition for the term itself
Item [4] - Subregulation 1.03 (1), after definition of HSO or head security officer
Item 4 inserts a new definition to provide that IMO means International Maritime Organization. This amendment is necessary as the acronym IMO is referred to in the Principal Regulations.
Item [5] - Subregulation 1.03 (1), after definition of member of the Australian Federal Police
Item 5 inserts a new definition of official number into the Principal Regulations.
This definition ensures that the definition in the Principal Regulations is consistent with the Shipping Registration Act 1981.
Item [6] - After paragraph 1.55 (1) (s)
Item 6 inserts a new note to refer the reader to section 10 of the Act for a definition of SOLAS Convention.
Item [7] - Subregulation 1.55 (3A), note
Item 7 inserts a new note to refer the reader to section 10 of the Act for a definition of SOLAS Convention. Item 7 also clarifies the existing note about who may inspect the International Ship Security Certificate (ISSC) of a regulated Australian ship.
Item [8] - Regulation 1.56, at the foot
Item 8 inserts a new note to refer the reader to section 10 of the Act for a definition of SOLAS Convention.
Item [9] - Paragraph 4.20 (b)
Item 9 substitutes the phrase the ship's official number. The term official number is defined (see item [5]).
Item [10] - Paragraph 4.20 (c)
Item 10 makes a minor grammatical amendment.
Item [11] - Regulation 4.20, at the foot
Item 11 inserts a new note to refer the reader to section 10 of the Act for a definition of SOLAS Convention.
Item [12] - Subregulation 4.80 (1)
Item 12 makes a minor grammatical amendment.
Item [13] - Paragraph 4.95 (2) (c)
Item 13 substitutes the words International Maritime Organisation with the acronym IMO. This amendment is consequential to the insertion of the definition for 'IMO' at item [4].
Item [14] - Regulation 4.110, at the foot
Item 14 inserts a new note to refer the reader to section 10 of the Act for a definition of SOLAS Convention.
Item [15] - Subparagraph 4.140 (a) (ii)
Item 15 substitutes the term the ship's official number consequential to item [5].
Item [16] Regulation 4.140, at the foot
Item 16 amends the term official number consequential to item [5].
Item [17] - After subregulation 6.08M (1)
Item 17 inserts new subregulations 6.08M (1A) and 6.08M (1B) in the Principal Regulations.
Under paragraph 6.08M (1) (e) of the Principal Regulations, an issuing body must immediately cancel an MSIC issued by the body if the body is told by the Secretary AGD that the holder now has an adverse criminal record or has been convicted of a disqualifying offence.
Subregulation 6.08M (1A) requires that, if, as a result of an application for a background check, the issuing body is told under paragraph 6.08M (1) (e) that the holder of an MSIC now has an adverse criminal record, the issuing body must not cancel the MSIC if the person holds the MSIC because of:
a) an approval by the Secretary under regulation 6.08F; or
b) a decision by the Secretary under regulation 6.08MC; or
c) a decision by the Secretary following an application under regulation 6.08X for reconsideration of:
(i) a refusal to give approval under regulation 6.08F; or
(ii) a decision under regulation 6.08MC; or
d) a decision by the Administrative Appeals Tribunal following an application under regulation 6.08Z for review of a decision by the Secretary mentioned in paragraph (c).
Subregulation 6.08M (1A) applies if the issuing body is told that the holder of an MSIC now has an adverse criminal record. It does not apply if the issuing body is told that the holder of an MSIC now has been convicted of a disqualifying offence.
Under paragraph 6.08M (1) (ea) of the Principal Regulations, an issuing body must immediately cancel an MSIC issued by the body if the body finds out that the holder has been convicted of a maritime-security-relevant offence and sentenced to imprisonment, and the offence is not a disqualifying offence.
Subregulation 6.08M (1B) has similar effect to regulation 6.08M (1A) in relation to paragraph 6.08M (1) (ea). Subregulation 6.08M (1B) applies if, as a result of an application for a background check, the issuing body finds out that the holder of an MSIC has been convicted of a maritime-security-relevant offence, and the offence is not a disqualifying offence.
The policy intention is that, as the adverse criminal record has already been considered in approving or reinstating the MSIC, it should not be the cause for cancelling a valid MSIC whilst an applicant is undergoing a renewal process. However, if the MSIC holder has been convicted of a disqualifying offence, neither subregulation 6.08M (1A) nor subregulation 6.08M (1B) would apply, and the issuing body must immediately cancel the MSIC.
Item [18] - Regulation 13.05, at the foot
Item 18 inserts a new note to refer the reader to section 10 of the Act for a definition of SOLAS Convention.
Schedule 2 - Amendments commencing on 11 September 2011
Item [1] - Subregulation 1.03 (1), after definition of land-side restricted zone
Item 1 inserts a definition of large passenger ship. This is consequential to item [6], which provides for security arrangements to more accurately address different risk environments faced by each prescribed category of passenger ship.
Item [2] - Subregulation 1.03 (1), after definition of OSPSO or offshore service provider security officer
Item 2 inserts a definition of passenger and vehicle ferry. This is consequential to item [6], which provides for security arrangements to more accurately address different risk environments faced by each prescribed category of passenger ship.
Item [3] - Subregulation 1.03 (1), after definition of shore-based personnel
Item 3 inserts a definition of small passenger ship. This is consequential to item [6], which provides for security arrangements to more accurately address different risk environments faced by each prescribed category of passenger ship.
Item [4] -Paragraph 1.55 (1) (a)
Item 4 clarifies that a regulated Australian ship must keep a record of the approved ship security plan unless the Secretary has granted an exemption under section 61A of the Act.
Item 4 also inserts a requirement that, if the Secretary has, in accordance with section 61A of the Act, granted the ship operator an exemption from the operation of Division 2 of Part 4 of the Act, a copy of the exemption must be kept.
Item [5] - After paragraph 1.55 (1) (b)
Item 5 inserts a requirement that, if the Secretary has, in accordance with section 79A of the Act, granted the ship operator an exemption from the operation of Division 6 of Part 4 of the Act, the regulated Australian ship must keep a copy of the exemption.
Item [6] - After regulation 1.80
Item 6 inserts a new regulation 18.5 to prescribe four discrete categories of passenger ships for subsection 15 (2) of the Act. This provides for security arrangements to more accurately address different risk environments faced by each prescribed category of passenger ship.
Item [7] - Regulation 3.90
Item 7 substitutes current regulation 3.90 of the Principal Regulations.
Subregulation 3.90 (1) provides for new minimum standards for the size, format and content of maps provided to the Secretary as part of a maritime security plan. This requirement applies to a map mentioned in paragraph 49 (2) (a) or (b) or subsection 49 (3) of the Act.
Subregulation 3.90 (2) requires that each map required for a maritime security plan must be a separate map. This is intended to clarify that, if the Act requires a maritime security plan mentioned in subsection 49 (2) of the Act and a map mentioned in subsection 49 (3) of the Act, the plan must include the two maps as separate maps, each complying with proposed subregulation 3.90 (1).
Item [8] - Regulation 3.155
Item 8 substitutes current regulation 3.155 in the Principal Regulations to set out the matters to be included in a maritime security plan if a port facility operator wishes the Secretary to establish a cleared zone.
Subregulation 3.155 (2) requires that a port facility operator must set out the measures and procedures to ensure that persons and goods are screened and cleared in accordance with the Principal Regulations before they are allowed to enter and remain in any cleared zone that has been established in the port facility.
A cleared zone is defined in the Principal Regulations as:
cleared zone means a type of port security zone, established by the Secretary under subsection 102 (1) of the Act, that comprises an area of land or water, to which access is controlled, for holding persons and goods, vehicles or vessels that have been screened and cleared.
The amended regulation allows the maritime security plan of a port facility operator to stipulate conditions for the operation of cleared zones in their maritime security plan.
Item [9] - Division 4.4
Item 9 substitutes the existing heading Division 4.4 Approving, revising and cancelling ship security plans with the heading Division 4.4 Ship Security plans - exemptions, approvals, revisions and cancellations.
This allows for the heading to reflect that an exemption may be sought from the requirement to have a ship security plan (SSP).
Item 9 also inserts the following regulations in the Principal Regulations:
Regulation 4.120
Regulation 4.120 prescribes the form and content for an application for an exemption from the requirement to have an SSP.
Regulation 4.125
Regulation 4.125 prescribes the matters the Secretary must consider in deciding whether or not to grant the exemption from the requirement to hold an SSP.
The amendments provide for the Secretary to grant exemptions from the requirement to hold a valid SSP. This fulfils Australia's obligations under SOLAS, which envisages that Contracting Governments may grant such exemptions under exceptional circumstances.
Item [10] - After Regulation 4.145
Item 10 inserts the following regulations in the Principal Regulations:
Regulation 4.150
Regulation 4.150 prescribes the form and content of an application for an exemption from the requirement to hold an International Ship Security Certificate (ISSC).
Regulation 4.155
Regulation 4.155 prescribes the matters the Secretary must consider in deciding whether or not to grant the exemption from the requirement to have an ISSC.
Item 10 provides for the Secretary to grant exemptions from the requirement to hold an ISSC. This fulfils Australia's obligations under the SOLAS Convention, which envisages that contracting Governments may grant such exemptions under exceptional circumstances.
Item [11] - After subregulation 6.50 (1)
Item 11 inserts a new subregulation 6.50 (1A) to the Principal Regulations. This item ensures that, if an area is a cleared zone only at certain times, and not continuously, the port facility operator for the port facility in which the zone is established must ensure that the zone is inspected for unauthorised persons, goods (including weapons and prohibited items), vehicles and vessels before each occasion on which the area is a cleared zone.
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