TRANSPORT SECURITY LEGISLATION AMENDMENT (ASIC AND MSIC MEASURES) REGULATIONS 2018 (F2018L01603) EXPLANATORY STATEMENT

Commonwealth Numbered Regulations - Explanatory Statements

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TRANSPORT SECURITY LEGISLATION AMENDMENT (ASIC AND MSIC MEASURES) REGULATIONS 2018 (F2018L01603)

EXPLANATORY STATEMENT

Issued by the Authority of the Assistant Minister for Home Affairs

Aviation Transport Security Act 2004

Maritime Transport and Offshore Facilities Security Act 2003

Transport Security Legislation Amendment (ASIC and MSIC Measures) Regulations 2018

The Aviation Transport Security Act 2004 (the Aviation Act) establishes a regulatory framework to safeguard against unlawful interference with civil aviation in Australia. The Aviation Act establishes minimum security requirements for civil aviation in Australia by imposing obligations on persons engaged in civil aviation-related activities. This includes providing for the establishment of secure areas and zones at security controlled airports for the purpose of subjecting those areas and zones to additional security requirements.

Subsection 133(1) of the Aviation 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 Aviation Act.

The Maritime Transport and Offshore Facilities Security Act 2003 (the Maritime Act) establishes a regulatory framework to safeguard against unlawful interference with maritime transport and offshore oil and gas facilities. The Maritime Act establishes minimum security requirements for the Australian maritime industry by imposing obligations on persons engaged in maritime activities. This includes providing for the establishment of maritime security zones within ports, on and around ships, and on and around offshore facilities, for the purpose of subjecting those zones to additional security requirements.

Subsection 209(1) of the Maritime 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 Maritime Act.

The Aviation Transport Security Regulations 2005 (the Aviation Regulations) and the Maritime Transport and Offshore Facilities Security Regulations 2003 (the Maritime Regulations) provide for additional security requirements and address matters such as controlling the movement of people and things; restricting access to areas and zones, including conditions of entry; and the issue and use of security passes and other identification systems. The Aviation and Maritime Regulations also establish the regulatory framework for the aviation security identification card (ASIC) and the maritime security identification card (MSIC) schemes.

ASICs and MSICs are cards, which show that the holder has been background checked and met the minimum security requirements to remain unmonitored within an aviation or maritime security zone. As a matter of practice, ASICs and MSICs are required by airport and airline workers; port, port facility and port service workers; stevedores; transport operators such as truck drivers; seafarers on Australian security regulated ships; and people who work on and/or supply offshore oil and gas facilities. The Aviation and Maritime Regulations also provide that persons carrying out certain security sensitive roles, such as security guards and screening officers, must hold an ASIC and/or MSIC (subject to whether they are working in an aviation or maritime environment).

ASICs and MSICs are issued by issuing bodies, which can include aviation and maritime industry participants, bodies representing participants, bodies representing the employees of participants, and Commonwealth authorities or agencies. ASICs and MSICs are not access cards, however a person cannot be given unmonitored access to a secure aviation or maritime area or zone unless they hold a valid ASIC or MSIC. While they are in a secure area or zone they must also display their card so that others are aware that they have a valid background check.

The Transport Security Legislation Amendment (ASIC and MSIC Measures) Regulations 2018 (the Regulations) amend the Aviation and Maritime Regulations to:

* improve the security of ASICs and MSICs;

* remove the ASIC and MSIC specifications from the Aviation and Maritime Regulations and instead allow the Secretary to issue a notice directly to issuing bodies outlining these specifications. This is intended to limit the number of people who know the exact specifications and therefore make it more difficult to fraudulently reproduce ASICs and MSICs; and

* extend the validity period of MSICs to the last day of the month in which the applicant's background check was completed (as is the case with ASICs).

A new ASIC and MSIC design has been developed in close consultation with industry. An exposure draft of the Regulations and the proposed approved forms of the ASICs and MSICs were shared with issuing bodies. Industry was broadly comfortable with the final design for the cards and the Regulations.

The Office of Best Practice Regulation (OBPR) was consulted in relation to the amendments made by the Regulations. OBPR advised that a Regulatory Impact Statement is not required as the amendments do not impose any additional regulatory burden on industry and the impact on individuals is minor (OBPR ID: 20484).

A Statement of Compatibility with Human Rights (the Statement) has been completed in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011. The overall assessment is that the Regulations are compatible with human rights. A copy of the Statement is at Attachment A.

The Aviation and Maritime Acts did not specify any conditions that needed to be satisfied before the power to make the Regulations could be exercised.

Details of the Regulations are set out in Attachment B.

The Regulations are a legislative instrument for the purposes of the Legislation Act 2003.

The Regulations commenced the day after registration.

Authority: Subsection 133(1) of the

Aviation Transport Security Act 2004

Subsection 209(1) of the

Maritime Transport and Offshore Facilities Security Act 2003

Attachment A

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Transport Security Legislation Amendment (ASIC and MSIC Measures) Regulations 2018

The Transport Security Legislation Amendment (ASIC and MSIC Measures) Regulations 2018 (the Regulations) are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Regulations

The Aviation Transport Security Regulations 2005 (the Aviation Regulations) and the Maritime Transport and Offshore Facilities Security Regulations 2003 (the Maritime Regulations) establish the regulatory framework for the aviation security identification card (ASIC) and maritime security identification card (MSIC) schemes.

ASICs and MSICs are identification cards, which show that the holder has met the minimum security requirements to remain unmonitored within an aviation or maritime security zone. As a matter of practice, ASICs and MSICs are required by airport and airline workers; port, port facility and port service workers; stevedores; transport operators such as truck drivers; seafarers on Australian security regulated ships; and people who work on and/or supply offshore oil and gas facilities. The Aviation and Maritime Regulations also provide that persons carrying out certain security sensitive roles, such security guards and screening officers, must hold an ASIC and/or MSIC (subject to whether they are working in an aviation or maritime environment).

The purpose of the Regulations are to amend the Aviation and Maritime Regulations to:

remove the ASIC and MSIC specifications from the Aviation and Maritime Regulations and instead allow the Secretary to issue a notice directly to issuing bodies outlining these specifications. This is intended to limit the number of people who know the specifications and therefore make it more difficult to counterfeit ASICs and MSICs;
improve the security of ASICs and MSICs; and
extend the validity period of MSICs to the last day of the month in which the applicant's background check was completed (as is the case with ASICs).

Human rights implications

The Regulations engage Article 14(2) of the International Covenant on Civil and Political Rights (the presumption of innocence).

Article 14(2) protects the right for individuals charged with a criminal offence to be presumed innocent until proven guilty according to law. The presumption of innocence imposes on the prosecution the burden of proving the charge and guarantees that no guilt can be presumed until the charge has been proved beyond a reasonable doubt.

Strict liability offences engage and limit the presumption of innocence as they allow for the imposition of criminal liability without the need to prove fault for any of the physical elements of the offence.

The Regulations are seeking to impose strict liability offences in both the Aviation and Maritime Regulations for:

an issuing body who has been given a copy of a form for an ASIC or MSIC and issues an ASIC or MSIC that does not comply in a particular respect with the form approved by the Secretary;
an issuing body who discloses the details of an approved form for an ASIC or MSIC to a person who has not been granted permission by the Secretary to receive the details of the form; and
a person who has been granted permission by the Secretary to receive the details of the approved form of an ASIC or MSIC, and who then discloses the details to another person without the written approval of the Secretary.

The Regulations make consequential amendments to the current strict liability offences contained in the Aviation and Maritime Regulations to take into account the new form and process of distributing the card specifications. Issuing bodies will now directly receive specifications for cards from the Secretary via a notice, which cannot be shared with anyone else without the Secretary's written approval. The Regulations also introduce new strict liability offences regarding the disclosure, by an issuing body or another person, of the details of the approved form for an ASIC and MSIC to an unapproved person without the written approval of the Secretary.

The amendments aim to promote greater national security by removing detailed technical specifications from the public domain of how to produce ASICs and MSICs under the Aviation and Maritime Regulations. This will reduce the risk of ASICs and MSICs being counterfeited to commit acts of unlawful interference against civil aviation, maritime transport or offshore oil and gas facilities or to facilitate criminal acts.

The strict liability offence provisions are considered reasonable and proportionate to achieve the legitimate objective of maintaining national security by serving as a strong deterrent to issuing bodies to ensure they produce cards to the correct specifications and do not disclose ASIC or MSIC specifications to unapproved persons. The provisions also act as a strong deterrent to people who have approved access to the specifications to not disclose details to unapproved persons.

The Australian Government (the Government) does not have day-to-day involvement in the production of ASICs and MSICs (although it does approve issuing body programs and plans, conduct background checks, and carry out regular audits on issuing bodies to ensure compliance with their regulatory obligations). Therefore, it is necessary to have a strong deterrent under the Aviation and Maritime Regulations so that the integrity of the schemes are maintained without daily oversight.

The failure to produce ASICs or MSICs that comply with the correct specifications, or the disclosure of ASIC and MSIC specifications, would constitute a serious breach of trust and pose a significant impact to the protection of the aviation and maritime environment by increasing the risk of counterfeiting and unlawful interference. Therefore, it is considered reasonable and appropriate to impose a penalty of 50 penalty units for each of the above offences. The penalty is consistent with the maximum penalty that may be prescribed for corresponding offence provisions under the Aviation and Maritime Regulations.

Given the importance of maintaining the security of this information and the potential seriousness of a breach, it is appropriate to impose strict liability offences in order to place issuing bodies or approved persons on notice to guard against the possibility of inadvertently contravening these requirements.

Sufficient safeguards remain in place with the general defence of an honest and reasonable mistake of fact being available to a defendant who is found to have committed an offence. Further, a person continues to have a right of appeal through the court system if the person is found to have breached provisions under the Aviation and Maritime Regulations.

Conclusion

The Regulations are compatible with human rights because it provides measures to further strengthen Australia's aviation and maritime security and to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

Senator the Hon. Linda Reynolds CSC

Assistant Minister for Home Affairs

ATTACHMENT B

Details of the Transport Security Legislation Amendment (ASIC and MSIC Measures) Regulations 2018

Section 1 - Name

This section provides that the title of the Regulations is the Transport Security Legislation Amendment (ASIC and MSIC Measures) Regulations 2018.

Section 2 - Commencement

This section provides that the Regulations commence the day after registration.

Section 3 - Authority

This section provides that the Regulations are made under the Aviation Transport Security Act 2004 (the Aviation Act) and the Maritime Transport and Offshore Facilities Security Act 2003 (the Maritime Act).

Section 4 - Schedules

This section provides for the Aviation Transport Security Regulations 2005 (the Principal Aviation Regulations) and the Maritime Transport and Offshore Facilities Security Regulations 2003 (the Principal Maritime Regulations) to be amended as set out in the Schedules to the Regulations.

Schedule 1 - Aviation transport security

Aviation Transport Security Regulations 2005

Item [1] - Regulation 1.03 (definitions of grey ASIC, red ASIC and white ASIC)

This item repeals the definitions for a grey ASIC, red ASIC and white ASIC and replaces them with new definitions. The new definitions state that a permanent grey, red or white ASIC means an ASIC in a form approved under subregulations 6.33(2), (1) and (3) respectively.

The amendments also include new definitions for temporary red and grey ASICs. The new definitions state that a temporary ASIC means an ASIC in a form approved under subregulations 6.37(1) and 6.37(2) respectively.

Item [2] - Subregulations 6.33(1) to (5)

This item repeals subregulations 6.33(1)-(5) and replaces them with the following requirements:

Subregulations 6.33(1) to (3) - Form of permanent red, grey and white ASICs

These subregulations address the risks arising from the previous practice of publishing the form of permanent red, grey and white ASICs in the Principal Aviation Regulations by removing the specifications for these permanent ASICs out of the public domain. The subregulations instead require a permanent ASIC to be in a form approved by the Secretary. These amendments reduce the risk of permanent ASICs being unlawfully manufactured or counterfeited to unlawfully obtain access to secure areas and zones at security controlled airports. Issuing bodies will now directly receive the specifications for cards from the Secretary in a notice which cannot be shared with anyone without the Secretary's written approval.

Subregulation 6.33(4) - Kinds of matters a form may cover

Subregulation 6.33(4) sets out matters the Secretary may specify relating to the form of a permanent red, grey or white ASIC. The approved form may include specifications relating to: the dimensions of a permanent ASIC and each of its parts; the information that must be included on the front or back of the ASIC; security features that must be incorporated into a permanent ASIC; and the photograph of the holder.

However, this is not an exhaustive list of specifications that may be included, allowing the form of a permanent ASIC approved by the Secretary to include any other matter that is considered relevant. This ensures the form of the approved card can remain fit for purpose and address new matters that may be appropriate in the future.

Subregulation 6.33(5) - Approval of form by Secretary

Subregulation 6.33(5) provides that the Secretary may only approve the form of a permanent red, grey or white ASIC if reasonably satisfied that it is necessary for the purposes of safeguarding against unlawful interference with aviation. This limits the use of the Secretary's power under regulation 6.33 to align with the general purpose of the Aviation Act (refer to section 4 of the Aviation Act).

Item [3] - Subregulation 6.33(7)

This item makes a consequential amendment to subregulation 6.33(7) of the Principal Aviation Regulations to provide that a person commits an offence if the person is an issuing body to whom the Secretary has given a copy of a form of a permanent ASIC approved for this regulation and the person issues a permanent ASIC that does not comply with that form.

The scope of this offence remains subject to subregulation 6.33(6) of the Principal Aviation Regulations, which specifies that the name of a permanent ASIC holder may be printed on the back of a card if the Secretary is satisfied that having the holder's name on the front would put the holder's personal security at risk. This recognises that there will be situations where it is necessary for an ASIC holder's name to be printed on the back of a card, and that an offence will not be committed if the Secretary has approved such a process.

The purpose of this provision is to provide a strong deterrent to issuing bodies to ensure they produce permanent ASICs to the correct specifications. Establishing a strong deterrent is important, as the Australian Government (the Government) does not have day-to-day involvement in the ASIC production process (aside from the approval of ASIC programs, conducting background checks and regular audits of issuing bodies). The failure to produce ASICs that comply with the correct specifications would constitute a serious breach of trust and pose a significant risk to aviation security outcomes.

The penalty for committing an offence under the amended regulation is 50 penalty units, which is the same penalty as previously prescribed under the corresponding offence provision. This offence is an offence of strict liability, which is also consistent with the previous offence.

Item [4] - Subregulation 6.33(9)

This item repeals subregulation 6.33(9) of the Principal Aviation Regulations. Subregulation 6.33(9) sets out the form of an ASIC, and is redundant as a result of item 2 of this regulation.

Item [5] - After regulation 6.33

Regulation 6.34 - Issuing body to be given copy of approved form of permanent ASIC

Regulation 6.34 clarifies the process and parameters under which issuing bodies are provided with an approved form for a permanent ASIC.

Subregulation 6.34(1) requires the Secretary, once the form of a permanent ASIC is approved, to provide a copy to an issuing body as soon as practicable. This places an obligation on the Secretary to provide a copy of the form to issuing bodies within a timely manner.

Subregulation 6.34(2) provides that the Secretary may, in the copy of the approved form of a permanent ASIC, direct issuing bodies to not disclose details of the approved form to another person except in the circumstances specified in a direction made under this subregulation. This ensures ASIC specifications are not generally available in the public domain, and helps safeguard against the production of counterfeit ASICs, while recognising the potential practical need to share information with, for example, contractors or agents who perform services for issuing bodies in relation to producing ASICs (such as card manufacture and/or printing). Limiting the distribution of approved forms reduces the risk of ASICs being unlawfully manufactured, which subsequently reduces the risk of persons unlawfully acquiring an ASIC to gain access to secure areas of security controlled airports.

Subregulation 6.34(3) renders the contravention of a direction made under 6.34(2) an offence with a penalty of 50 penalty units. This penalty is consistent with the maximum penalties that may be prescribed for offences relating to control of airside and landside areas and zones (see subsections 35(3), 36(3), 37(3) and 38(3) of the Aviation Act), reflecting the importance of ASICs in controlling access to such areas.

The penalty for contravening the Secretary's direction underlines the importance of ensuring that details necessary for the production of ASICs are only disclosed to persons approved by the Secretary.

Subregulation 6.34(4) makes the offence in subregulation 6.34(3) one of strict liability, removing the requirement for the Commonwealth to establish intent in prosecuting the commission of an offence. This reflects the importance of maintaining the security of information relating to the form of an ASIC, and the potential seriousness of a breach of these requirements.

Regulation 6.34A - Issuing body may disclose details of approved form to other persons

Regulation 6.34A clarifies the circumstances under which issuing bodies are able to disclose the form of a permanent ASIC to other persons and limits the circumstances in which that 'other person' can disclose the information to a third party.

Subregulation 6.34A(1) provides that an issuing body may disclose the details of the form of a permanent ASIC to another person where the Secretary, in a copy of the approved form, has stated the other person may have the details disclosed to them. The purpose of this provision is to manage who has access to the technical specifications of an ASIC. This reduces the risk of ASICs being counterfeited and of persons using a counterfeited ASIC to unlawfully gain access to secure areas of security controlled airports.

Subregulation 6.34A(2) makes it an offence, with a penalty of 50 penalty units, for a person provided with details of an approved form for a permanent ASIC by an issuing body to disclose those details to another person without the written approval of the Secretary. This penalty is consistent with the maximum penalties that may be prescribed for offences relating to control of airside and landside areas and zones (see subsections 35(3), 36(3), 37(3) and 38(3) of the Aviation Act), reflecting the importance of ASICs in controlling access to such areas.

The penalty for disclosing details necessary for the production of a permanent ASIC to an unauthorised person reflects the importance of ensuring the security of such information. Limiting the distribution of this information reduces the risk of ASICs being unlawfully manufactured, which subsequently reduces the risk of persons acquiring an unlawful permanent ASIC to gain access to secure areas of security controlled airports.

Subregulation 6.34A(3) makes the offence in subregulation 6.34A(2) one of strict liability, removing the requirement for the Commonwealth to establish intent in prosecuting the commission of an offence. This again reflects the importance of maintaining the security of information relating to the form of an ASIC, and the potential seriousness of a breach of these requirements.

Item [6] - Subregulations 6.37(1) to (4)

This item repeals and replaces subregulations 6.37(1) - (4).

Subregulations 6.37(1) and (2) - Form of temporary red and grey ASICs

These subregulations address the risks arising from the previous practice of publishing the form of temporary red and grey ASICs in the Principal Aviation Regulations by removing the specifications for these temporary ASICs out of the Principal Aviation Regulations and, as such, the public domain. The subregulations instead require temporary ASICs be in a form approved in writing by the Secretary. These amendments reduce the risk of temporary ASICs being unlawfully manufactured or counterfeited.

Subregulation 6.37(3) - Kinds of matters a form may cover

Subregulation 6.37(3) sets out matters the Secretary may specify relating to the form of a temporary ASIC. The approved form may include specifications relating to: the dimensions of a temporary ASIC and each of its parts; the information that must be included on the front or back of the ASIC; security features that must be incorporated into a temporary ASIC; and the photograph of the holder.

However, this is not an exhaustive list of specifications, allowing the approved form of a temporary ASIC approved by the Secretary to include any other matter that is considered relevant. This ensures the form of the approved card can remain fit for purpose and address new matters that may be appropriate in the future.

Subregulation 6.37(4) - Approval of form issued for more than 24 or 72 hours

Subregulation 6.37(4) is a consequential amendment to subregulation 6.37(5A) of the Principal Aviation Regulations. It provides that the Secretary must not approve a form for a temporary ASIC that is to be issued for more than 24 hours at a designated airport, or for more than 72 hours at a non-designated airport, unless the form requires the temporary ASIC holder's photograph, given name and surname, and the expiry date to be included on the temporary ASIC.

This provision works in conjunction with new regulation 6.37AC. It provides that persons who are issued with a temporary ASIC valid for more than 24 hours at a designated airport, or for more than 72 hours at a non-designated airport, do not need to be escorted in secure areas and zones at an airport. This is a result of the holder being easily identifiable due to their photograph, name and expiry date being displayed on their card.

For temporary ASICs that are issued for a period of less than 24 hours at a designated airport, or for a period of less than 72 hours at a non-designated airport, the Secretary can approve a form of the temporary ASIC that does not include the temporary ASIC holder's photograph, given name and surname, and the expiry date. This provides flexibility and reduces costs for the production of a temporary ASIC to be used for such a short period. However, a temporary ASIC holder will need to be supervised in secure areas and zones if their ASIC does not include their photograph, name and expiry date.

Subregulation 6.37(4A) - Approval of form by Secretary

Subregulation 6.37(4A) provides that the Secretary may only approve the form of a temporary red or grey ASIC if reasonably satisfied that it is necessary for the purposes of safeguarding against unlawful interference with aviation. This limits the use of the Secretary's power under regulation 6.37 to align with the general purpose of the Aviation Act (refer to section 4 of the Aviation Act).

Item [7] - Subregulations 6.37(5A), (5B) and (6)

Subregulations 6.37(5A) and (5B)

This amendment repeals subregulations 6.37(5A) and (5B). These subregulations are no longer required following amendments set out in item 6 of this Schedule.

Subregulation 6.37(6)

This provision makes a consequential amendment to subregulation 6.37(6) of the Principal Aviation Regulations to provide that a person commits an offence if the person is an issuing body to whom the Secretary has given a copy of a form of a temporary ASIC approved for this regulation and the person issues a temporary ASIC that does not comply with that form.

The scope of this offence remains subject to subregulation 6.37(5) of the Principal Aviation Regulations which specifies that the name of a temporary ASIC holder may be printed on the back of a card if the Secretary is satisfied that having the holder's name on the front would put the holder's personal security at risk. This recognises that there will be circumstances where it is necessary for a holder's name to be printed on the back of a card, and that an offence will not be committed if the Secretary has approved such a process.

The purpose of this provision is to provide a strong deterrent to issuing bodies to ensure they produce temporary ASICs to the correct specifications. Establishing a strong deterrent is important, as the Government does not have day-to-day involvement in the ASIC production process (aside from the approval of ASIC programs, conducting background checks and regular audits of issuing bodies). The failure to produce temporary ASICs that comply with the correct specifications would pose a significant risk to aviation security outcomes.

Item [8] - Subregulation 6.37(8)

This item repeals subregulation 6.37(8) of the Principal Aviation Regulations. Subregulation 6.37(8) of the Principal Aviation Regulations relates to the form of an ASIC and is now redundant following amendments set out in item 6 of this Schedule.

Item [9] - Regulation 6.37A

This item repeals 6.37A and inserts new regulations 6.37AA, 6.37AB and 6.37AC.

Regulation 6.37AA - Issuing body to be given copy of approved form of temporary ASIC

Regulation 6.37AA clarifies the process and parameters under which issuing bodies are provided with an approved form for a temporary ASIC.

Subregulation 6.37AA(1) requires the Secretary, once the form of a temporary ASIC is approved, to provide a copy to the issuing body as soon as practicable. This provision places an obligation on the Secretary to provide a copy of the form to issuing bodies within a timely manner.

Subregulation 6.37AA(2) provides that the Secretary may, in the copy of the approved form of a temporary ASIC, direct issuing bodies to not disclose details of the approved form to another person except in the circumstances specified in a direction made under this subregulation. This ensures ASIC specifications are not generally available in the public domain, and helps safeguard against the production of counterfeit ASICs, while recognising the potential practical need to share information with, for example, contractors or agents who perform services for issuing bodies in relation to producing ASICs (such as card manufacture and/or printing). Limiting the distribution of approved forms reduces the risk of ASICs being unlawfully manufactured, which subsequently reduces the risk of persons unlawfully acquiring an ASIC to gain access to secure areas of security controlled airports.

Subregulation 6.37AA(3) renders the contravention of a direction made under 6.37AA(2) an offence with a penalty of 50 penalty units. This penalty is consistent with the maximum penalties that may be prescribed for offences relating to control of airside and landside areas and zones (see subsections 35(3), 36(3), 37(3) and 38(3) of the Aviation Act), reflecting the importance of ASICs in controlling such access.

The penalty for contravening the Secretary's direction underlines the importance of ensuring that the details necessary for the production of temporary ASICs are only disclosed to persons approved by the Secretary.

Subregulation 6.37AA(4) makes the offence in subregulation 6.37AA(3) one of strict liability, removing the requirement for the Commonwealth to establish intent in prosecuting the commission of an offence. This reflects the importance of maintaining the security of information relating to the form of an ASIC, and the potential seriousness of a breach of these requirements.

Regulation 6.37AB - Issuing body may disclose details of approved form to other persons

Regulation 6.37AB clarifies the circumstances under which issuing bodies are able to disclose the form of a temporary ASIC to other persons and limits the circumstances in which that 'other person' can disclose the information to a third party.

Subregulation 6.37AB(1) provides that an issuing body may disclose the details of the form of a temporary ASIC to another person where the Secretary, in a copy of the approved form, has stated the other person may have the details disclosed to them. The purpose of this provision is to manage who has access to the technical specifications of a temporary ASIC. This reduces the risk of ASICs being counterfeited and of persons using a counterfeited ASIC to unlawfully gain access to secure areas of security controlled airports.

Subregulation 6.37AB(2) makes it an offence, with a penalty of 50 penalty units, for a person provided with details of an approved form for a temporary ASIC by an issuing body to disclose those details to another person without the written approval of the Secretary. This penalty is consistent with the maximum penalties that may be prescribed for offences relating to control of airside and landside areas and zones (see subsections 35(3), 36(3), 37(3) and 38(3) of the Aviation Act), reflecting the importance of ASICs in controlling access to such areas.

The penalty for disclosing details necessary for the production of a temporary ASIC to an unauthorised person reflects the importance of ensuring the security of such information. Limiting the distribution of this information reduces the risk of temporary ASICs being unlawfully manufactured, which subsequently reduces the risk of persons acquiring an unlawful temporary ASIC in order to gain access to secure areas of security controlled airports.

Subregulation 6.37AB(3) makes the offence in subregulation 6.37AB(2) one of strict liability, removing the requirement for the Commonwealth to establish intent in prosecuting the commission of an offence. This again reflects the importance of maintaining the security of information relating to the form of a temporary ASIC, and the potential seriousness of a breach of these requirements.

Regulation 6.37AC - Holder of a temporary ASIC to be supervised

All persons in an aviation secure area or zone must either be escorted or hold and properly display a valid ASIC, unless specific exemptions apply which are set out in Division 3.2 of the Principal Aviation Regulations.

Regulation 6.37AC is a consequential amendment to regulation 6.37A of the Principal Aviation Regulations, requiring a person who holds a temporary ASIC which does not contain the holder's photograph, given name, surname, and the expiry date of the temporary ASIC, to be supervised by another ASIC holder unless the holder of the temporary ASIC also displays a valid ASIC for a different airport.

Item [10] - In the appropriate position in Part 10

This item clarifies and facilitates the transitional arrangements for the Regulations.

Subregulation 10.31(1) clarifies that the amendments set out in Schedule 1 of the Regulations do not have any impact on the validity of permanent or temporary ASICs that were issued under the Principal Aviation Regulations and were in force prior to the commencement of the Regulations. These ASICs remain valid until either the end of the period for which they were issued, or if the cards are suspended or cancelled.

Subregulation 10.31(2) allows for the valid issue of permanent ASICs and temporary ASICs, in accordance with the Principal Aviation Regulations, during the 3 month period following the commencement of the Regulations, or up until the time the Secretary gives an issuing body an approved form of a permanent or temporary ASIC. Once the Secretary gives the issuing body an approved form under regulations 6.34 or 6.37AA, the issuing body must only issue ASICs that comply with that approved form.

Subregulation 10.31(3) provides that if, during the transitional period, a temporary ASIC is issued under the Principal Aviation Regulations, then regulation 6.37A of the Principal Aviation Regulations will apply to that ASIC during the transitional period, instead of regulation 6.37AC.

Subregulation 10.31(4) provides definitions for certain terms used in subregulations 10.31(1)-(3).

Schedule 2 - Maritime transport and offshore facilities security

Maritime Transport and Offshore Facilities Security Regulations 2003

Item [1] - Subregulation 6.07B(1) - definition of blue MSIC

This item amends the definition of a blue MSIC so that it refers to blue MSICs in the form approved by the Secretary under subregulation 6.08J(2).

Item [2] - Subregulation 6.07B(1) - definition of white MSIC

This item amends the definition of a white MSIC so that it refers to white MSICs in the form approved by the Secretary under proposed subregulation 6.08J(3).

Item [3] - Paragraphs 6.08I(1)(a) and (b)

This item extends the period of validity of MSICs to the last day of the month in which the applicant's background check was completed. This amendment extends the validity period to align the period of operational validity for MSICs with that of ASICs to create consistency across the two schemes, and to make it simpler for an MSIC holder - or person checking the validity of an MSIC - to be aware of when a card's validity expires. The amendments also alter the language from 'a criminal history check' to 'a background check', consistent with the language used elsewhere in both the Aviation and Maritime Regulations in the context of the ASIC and MSIC schemes.

Item [4] - Subparagraphs 6.08I(2)(a)(ii)

This item extends the period of validity of MSICs to the last day of the month in which the applicant's background check was completed. This aligns the period of operational validity for MSICs with that of ASICs to create consistency across the two schemes, and to make it simpler for an MSIC holder - or person checking the validity of an MSIC - to be aware of when a card's validity expires.

Item [5] - Paragraphs 6.08I(2)(d) - period of operational validity of MSICs

This item extends the period of validity of MSICs to the last day of the month in which the applicant's background check was completed. This aligns the MSICs period of operational validity with that of ASICs to create consistency across the two schemes, and to make it simpler for an MSIC holder - or person checking the validity of an MSIC - to be aware of when a card's validity expires. The amendments also alter the language from 'a criminal history check' to 'a background check', consistent with the language used elsewhere in both the Aviation and Maritime Regulations in the context of the ASIC and MSIC schemes.

Item [6] - Paragraphs 6.08J - heading

This item repeals the heading of regulation 6.08J in the Principal Maritime Regulations, and inserts the heading "Form of blue MSICs and white MSICs". This better aligns the heading with the language used for the MSICs that the regulation deals with.

Item [7] - Subregulations 6.08J(1) to (4)

This item repeals subregulations 6.08J(1)-(4) and replaces them with the following requirements:

Subregulations 6.08J(2) and (3) - Form of blue and white MSICs

These subregulations address the risks arising from the previous practice of publishing the form of blue and white MSICs in the Principal Maritime Regulations by removing the specifications for these MSICs out of the public domain. The subregulations instead require MSICs be in a form approved by the Secretary.

These amendments reduce the risk of MSICs being unlawfully manufactured or counterfeited to unlawfully obtain access to secure maritime and offshore zones. Issuing bodies will now directly receive the specifications for cards from the Secretary in a notice which cannot be shared with anyone without the Secretary's written approval.

Subregulation 6.08J(4) - Kinds of matters a form may cover

Subregulation 6.08J(4) sets out matters the Secretary may specify relating to the form of a blue or white MSIC. The approved form may include specifications relating to: the dimensions of an MSIC and each of its parts; the information that must be included on the front or back of the MSIC; security features that must be incorporated into an MSIC; and the photograph of the holder.

However, this is not an exhaustive list of specifications that may be included, allowing the form of an MSIC approved by the Secretary to include any other matter that is considered relevant. This ensures the form of the approved card can remain fit for purpose and address new matters that may be appropriate in the future.

Subregulation 6.08J(4A) - Approval of form by Secretary

Subregulation 6.08J(4A) provides that the Secretary may only approve the form of a blue or white MSIC if reasonably satisfied that it is necessary for the purposes of safeguarding against unlawful interference with maritime transport or offshore facilities. This limits the use of the Secretary's power under regulation 6.08J to align with the general purpose of the Maritime Act (refer to section 3 of the Maritime Act).

Item [8] - Subregulation 6.08J(6)

This item makes a consequential amendment to subregulation 6.08J(6) of the Principal Maritime Regulations to provide that a person commits an offence if the person is an issuing body to whom the Secretary has given a copy of a form of a blue or white MSIC approved by the Secretary for this regulation, and the person issues an MSIC that does not comply with that form.

The scope of this offence remains subject to subregulation 6.08J(5) of the Principal Maritime Regulations which specifies that the name of an MSIC holder may be printed on the back of a card if the Secretary is satisfied that having the holder's name on the front would put the holder's personal security at risk. This recognises that there are circumstances where it will be necessary for a holder's name to be printed on the back of a card, and that an offence will not be committed if the Secretary has approved such a process.

The purpose of this provision is to provide a strong deterrent to issuing bodies to ensure they produce MSICs to the correct specifications. Establishing a strong deterrent is important, as the Government does not have day-to-day involvement in the MSIC production process (aside from the approval of MSIC plans, conducting background checks and regular audits of MSIC issuing bodies). The failure to produce MSICs that comply with the correct specifications would pose a significant risk to maritime security outcomes.

Item [9] - After regulation 6.08J

This item inserts regulations 6.08JA and 6.08JB.

Regulation 6.08JA - Issuing body to be given copy of approved form of MSIC

Regulation 6.08JA clarifies the circumstances under which issuing bodies are provided with an approved form for an MSIC.

Subregulation 6.08JA(1) requires the Secretary, once the form of an MSIC is approved, to provide a copy to an issuing body as soon as practicable. This places an obligation on the Secretary to provide a copy of the form to issuing bodies within a timely manner.

Subregulation 6.08JA(2) provides that the Secretary may, in the copy of the approved form of an MSIC, direct issuing bodies to not disclose details of the approved form to another person except in the circumstances specified in the direction. This ensures MSIC specifications are not generally available in the public domain, and helps safeguard against the production of counterfeit MSICs, while recognising the potential practical need to share information with, for example, contractors or agents who perform services for issuing bodies in relation to producing MSICs (such as card manufacture and/or printing). Limiting the distribution of approved forms reduces the risk of MSICs being unlawfully manufactured, which subsequently reduces the risk of persons unlawfully acquiring an MSIC to gain access to secure areas of security regulated ports, ships, or offshore facilities.

Subregulation 6.08JA(3) renders the contravention of such a direction an offence with a penalty of 50 penalty units. This penalty is consistent with the maximum penalties that may be prescribed for offences relating to control of port, ship, on-board and offshore security zones (see subsections 105(3), 109(3), 113(3) and 113D(3) of the Maritime Act), reflecting the importance of MSICs in controlling such access.

The penalty for contravening the Secretary's direction underlines the importance of ensuring that the details necessary for the production of MSICs are only disclosed to persons approved by the Secretary.

Subregulation 6.08JA(4) makes the offence in subregulation 6.08JA(3) one of strict liability, removing the requirement for the Commonwealth to establish intent in prosecuting the commission of an offence. This reflects the importance of maintaining the security of information relating to the form of an MSIC, and the potential seriousness of a breach of these requirements.

Regulation 6.08JB - Issuing body may disclose details of approved form to other persons

Regulation 6.08JB clarifies the circumstances under which issuing bodies are able to disclose the form of an MSIC to other persons and limits the circumstances in which that 'other person' can disclose the information to a third party.

Subregulation 6.08JB(1) provides that an issuing body may disclose the details of the form of an MSIC to another person where the Secretary, in a copy of the approved form, has stated the other person may have the details disclosed to them. The purpose of this provision is to manage who has access to the technical specifications of a MSIC. This reduces the risk of MSICs being counterfeited, and of persons using counterfeited MSICs to unlawfully gain access to secure areas of security regulated ports, ships and/or offshore facilities.

Subregulation 6.08JB(2) renders it an offence, with a penalty of 50 penalty units, for a person provided with details of an approved form for an MSIC by an issuing body to disclose those details to another person without the written approval of the Secretary. This penalty is consistent with the maximum penalties that may be prescribed for offences relating to control of port, ship, on-board and offshore security zones (see subsections 105(3), 109(3), 113(3) and 113D(3) of the Maritime Act), reflecting the importance of MSICs in controlling access to such areas.

The penalty for disclosing details necessary for the production of an MSIC to an unauthorised person reflects the importance of ensuring the security of such information. Limiting the distribution of this information reduces the risk of MSICs being unlawfully manufactured, which subsequently reduces the risk of persons unlawfully acquiring an MSIC in order to gain access to port, ship, on-board and offshore security zones.

Subregulation 6.08JB(3) makes the offence in subregulation 6.08JB(2) one of strict liability, removing the requirement for the Commonwealth to establish intent in prosecuting the commission of an offence. This again reflects the importance of maintaining the security of information relating to the form of an MSIC, and the potential seriousness of a breach of these requirements.

Item [10] – Subparagraph 6.08L(3)(b)(ii)

Item [11] - In the appropriate position in Schedule 2

This item clarifies and facilitates the transitional arrangements for the Regulations .

Subregulation 108(1) clarifies that the amendments set out in Schedule 2 of the Regulations do not have any impact on the validity of MSICs that were issued under the Principal Maritime Regulations and were in force prior to the commencement of the Regulations. These MSICs remain valid until either the end of the period for which they were issued, or if the cards are suspended or cancelled.

Subregulation 108(2) allows for the valid issue of MSICs in accordance with the Principal Maritime Regulations, during the 3 month period following the commencement of the Regulations, or up until the time the Secretary gives the issuing body an approved form of a MSIC. Once the Secretary gives the issuing body an approved form under regulations 6.08JA, the issuing body may only issue MSICs that comply with that approved form.

Subregulation 108(3) provides definitions for certain terms used in subregulations 108(1) and (2).