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TRANSPORT SECURITY LEGISLATION AMENDMENT (ISSUING BODY PROCESSES) REGULATION 2016 (F2016L01660)

EXPLANATORY STATEMENT

Minute No. 31 of 2016 - Minister for Infrastructure and Transport

Issued under the authority of the Minister for Infrastructure and Transport

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 various airside security zones and secure areas in the security controlled airports for the purpose of subjecting those zones and areas 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.  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 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 AusCheck Act 2007 (the AusCheck Act) and the AusCheck Regulations 2007 (the AusCheck Regulations) establish a regulatory framework for coordinating and conducting background checks. Section 5 of the AusCheck Act defines a background check as an assessment of information relating to an individual's identity, criminal history, security assessment, citizenship status, residency status or entitlements to work in Australia. AusCheck, a 'special' branch within the Attorney-General's Department, is charged with providing the aforementioned services.

Subsection 18(1) of the AusCheck 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 that 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 zones and areas, including conditions of entry; and the issue and use of security passes and other identification systems.

In addition, the Aviation and the Maritime Regulations establish the regulatory framework for the aviation security identification card (ASIC) and the maritime security identification card (MSIC) schemes. AusCheck coordinates the background checking on applicants for individuals who apply for ASICs or MSICs.

ASICs and MSICs are nationally consistent 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, security and screening officers, 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 ASICs and MSICs are issued by issuing bodies, which can include aviation and maritime industry participants, bodies representing participants, bodies representing employees of participants, and Commonwealth authorities or agencies. While the ASIC and MSIC are not access cards, they may allow the holder to remain unmonitored within an aviation security zone or area or maritime security zone respectively.

The purpose of the Transport Security Legislation Amendment (Issuing Body Processes) Regulation 2016 (the Regulation) is to amend the Aviation Regulations, the Maritime Regulations and the AusCheck Regulations to create a mechanism to ensure continuity for the cardholder in the event an issuing body's authorisation is revoked. Specifically, the amendments:

*         facilitate the transfer of cardholders and applicants, along with their personal information to a duly-authorised new issuing body;

*         facilitate appropriate interaction by a new issuing body with AusCheck's legislative framework in order to ensure continuity for existing cardholders;

*         introduce the concept of transitional issuing bodies for administration and management of MSICs; and

*         provide a 30-day period for the Secretary of the Department of Infrastructure and Regional Development to consider an application for revocation of a MSIC issuing body.

Issuing bodies were consulted over the course of a 2-year period (2015-2016), including through issuing body forums hosted by the Department. Industry has provided their broad support for this measure.

The Attorney General's Department have been consulted throughout the development of the proposed Regulation.  In addition, the Minister for Justice, who has responsibility for the AusCheck Regulations has given approval for the amendments to be made to the AusCheck Regulations.

The Office of Best Practice Regulation (OBPR) was consulted in relation to the making of the proposed Regulation.  The OBPR advised that a Regulatory Impact Statement is not required as the amendments do not impose any additional regulatory burden on industry as the impact on individuals is minor (OBPR ID: 21282).

A Statement of Compatibility with Human Rights is set out at Attachment A.

The Aviation, Maritime and AusCheck Acts do not specify any conditions that need to be satisfied before the power to make the Regulation may be exercised.

The Regulation is a legislative instrument for the purposes of the Legislation Act 2003.

The Regulation commences on the day after the regulation is registered.

Details of the Regulation are set out in the Attachment B.

Authority:                                      Subsection 133(1) of the

Aviation Transport Security Act 2004

Subsection 209(1) of the

Maritime Transport and Offshore Facilities Security Act 2003

Subsection 18(1) of the

AusCheck Act 2007

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 (Identity Security) Regulation 2016

This Legislative Instrument is 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 legislative instrument

The Legislative Instrument amends the Aviation, Maritime and AusCheck Regulations to:

*         facilitate the transfer of cardholders and applicants, along with their personal information to a duly-authorised new issuing body;

*         facilitate appropriate interaction by a new issuing body with AusCheck's legislative framework in order to ensure continuity for existing cardholders;

*         introduce the concept of transitional issuing bodies for administration and management of MSICs; and

*         provides a 30-day period for the Secretary of the Department of Infrastructure and Regional Development to consider an application for revocation of a MSIC issuing body.

Human rights implications

This Legislative Instrument does not engage any of the applicable rights or freedoms.

Conclusion

This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.

DARREN CHESTER

Minister for Infrastructure and Transport

ATTACHMENT B

Details of the Transport Security Legislation Amendment (Issuing Body Processes) Regulation 2016

Section 1 - Name of Regulation

This section provides that the name of the Regulation is the Transport Security Legislation Amendment (Issuing Body Processes) Regulation 2016.

Section 2 - Commencement

This section outlines when the Regulation commence.

Section 3 - Authority

This section provides that the Transport Security Legislation Amendment (Issuing Body Processes) Regulation 2016 is made under:

a)      the Aviation Transport Security Act 2004;

b)      the Maritime Transport and Offshore Facilities Security Act 2003;

c)      the AusCheck Act 2007.

Section 4 - Schedules

Section 4 specifies the Aviation Transport Security Regulations 2005, Maritime Transport and Offshore Facilities Security Regulations 2003 and the AusCheck Regulations 2007 are amended or repealed as set out in the schedules.

Schedule 1 - Aviation transport security

Aviation Transport Security Regulations 2005

Item [1] - Regulation 6.19 to 6.22

The amendments introduce the transfer of incomplete applications and the enabling of access to AusCheck-held relevant information by a new issuing body. In order to facilitate these and other minor administrative changes, the amendments require the repeal the existing provisions and replacement with the following:

Regulation 6.19 - Revocation of authorisation for cause

Both subregulations 6.19(1) and (2) serve to strengthen and clarify certain circumstances that require the Secretary to revoke the authorisation of an issuing body to issue ASICs. The circumstances where an issuing body's authorisation may be revoked generally relate to instances where an issuing body is unable to adequately meet the conditions of its ASIC program.

Regulation 6.19A - Secretary's discretion to revoke authorisation

Regulation 6.19A reflects and harmonises the operation of the Aviation Regulations with Regulation 6.08X of the Maritime Regulations found in Item [3] of Schedule 2 below. In particular, it enables a distinction to be drawn between revocation at the Secretary's initiative and revocation upon application by an issuing body.

Regulation 6.20 - Application by issuing body for revocation of authorisation

Regulation 6.20 reflects and harmonises the operation of the Aviation Regulations with Regulation 6.08Y of the Maritime Regulations found in Item [3] of Schedule 2 below. Regulation 6.20 introduces a note providing clarification regarding subsequent decisions to be made by the Secretary in certain circumstances.

Regulation 6.21 - Revocation does not prevent another application for authorisation

Regulation 6.21 clarifies an issuing body may apply to be re-authorised if its authorisation has been revoked under Regulation 6.19 or 6.19A.  

Regulation 6.22 - Responsibility for ASICs, applications and records if body ceases to be an issuing body

Regulation 6.22 makes administrative and consequential changes that govern the appropriate management of transferring ASICs and ASIC applications and the relevant documents created as part of that process. This regulation implements and clarifies the intended role of issuing bodies, primarily concerning their presence for existing cardholders and applications made to issuing bodies prior to revocation of their issuing body authorisation.

Regulation 6.22 further reflects an effort to facilitate the practical challenges where a body ceases to be an issuing body. Subregulation 6.22(2) draws a distinction between 'transferred ASICs' and 'transferred ASIC applications'. For example, it specifically includes this latter category in matters for reassigning to a new issuing body, which enables the making of decisions concerning partially processed applications.

Subregulation 6.22(7) in particular enables the primary objective of ensuring a new issuing body has access to necessary, relevant information held by the old issuing body and AusCheck. It further empowers access to information contained in other records and documents including an old issuing body's register of ASICs (insofar as it relates to transferred ASICs). Collectively, these enable the new issuing body to perform the full range of functions that existing cardholders, as well as those with new applications, require of their now-revoked issuing body.

Subregulation 6.22(8) also requires the transfer of records and documents to the Secretary. For clarity, in accordance with subregulation 6.24(2), this is intended to only include residual documents not required to be transferred to a new issuing body.

Item [2] - Subregulation 6.22A(2)

Subregulation 6.22A(2) repeals the existing provision and replaces it with provisions that confirm and clarify the responsibilities of transitional issuing bodies, as declared by the Secretary. In particular, in order to ensure that cardholders are able to remain compliant with their obligations, subregulation 6.22A(2) requires a transitional issuing body to continue performing their functions for existing cardholders after becoming a transitional issuing body. The subregulation 6.22A(2) confirms that the issuing body is taken to be revoked immediately following the expiry or cancellation of the last ASIC issued by the body.

Item [3] - Regulation 10.21 - Amendments made by the Transport Security Legislation Amendment (Issuing Body Processes) Regulation 2016

Regulation 10.21 is administrative in nature and confirms the circumstances where changes to Schedule 1 are applicable.

Schedule 2 - Maritime transport and offshore facilities security

Maritime Transport and Offshore Facilities Security Regulations 2003

Item [1] - subregulation 6.07B(1) (definition of issuing body)

The subregulation expands the meaning of issuing body to include a transitional issuing body, enabling a transitional issuing body to carry over their responsibility in the same manner as an issuing body. The amendment defines a body declared by the Secretary under subregulation 6.07ZB(1) to include both an issuing body and a transitional issuing body.

Item [2] - subregulation 6.07B(1)

This item introduces the definition of a transitional issuing body to the Maritime Regulations, preventing the immediate cessation of an issuing body's authorisation, and allowing for the introduction of an interim period wherein a transfer of existing applicants and existing cardholders to a new issuing body can be facilitated.

Regulations 6.07W to 6.07Z

Item [3] - regulations 6.07W to 6.07Z

The regulations enable changes to the revocation process of an issuing body's authorisation to issue MSICs, whilst introducing the transitional issuing body concept and process to the Maritime Regulations. As with the Aviation Regulations, the regulations introduce the transfer of incomplete applications and enabling the access to AusCheck-held relevant information by a new issuing body. In order to facilitate these and other minor administrative changes, the amendments include the repeal of existing provisions and their replacement as follows:

Regulation 6.07W - Revocation of authorisation for cause

Subregulation 6.07W specifies certain circumstances compelling the Secretary to revoke the authorisation of an issuing body to issue MSICs e.g. where the issuing body's MSIC plan, in the Secretary's opinion does not adequately address the criteria set out in subregulation 6.07(2) and it is unlikely that a direction to vary the plan under regulation 6.07S will adequately deal with the matter. In determining whether it is unlikely a direction to vary the plan adequately address the matter, the Secretary must act honestly and reasonably, and must further consider whether the lack of efficacy amounts to a failure or refusal to comply on the part of the relevant issuing body.

Subregulation 6.07W(2) sets out factors that the Secretary may consider before revoking the authorisation of the issuing body. Subregulation 6.07W(2) empowers the Secretary to revoke the authorisation of an issuing body if the body contravenes a condition of the body's authorisation or its MSIC plan. However, this discretion may only be applied in view of the criteria set out in subregulation 6.07W(3). In accordance with subregulation 6.07W(4), the revocation takes effect as soon as practicable after the revocation of the issuing body's authorisation. This is when the Secretary must notify the body in writing of the revocation and when the written notice of revocation is given to the body.

Regulation 6.07X - Secretary's discretion to revoke authorisation

The existing provisions are repealed and replaced with the following:

Subregulation 6.07X(1) and (2)

Subregulation 6.07X(1) provides the Secretary with discretion to revoke the authorisation of a body as an issuing body on his or her own initiative or on application by the issuing body (under regulation 6.07Y). Subregulation 6.07X(2) further prescribes the Secretary must give the issuing body 14 days' notice in writing to respond to the Secretary's revocation if the Secretary acts on his or her own initiative.

In exercising the power to revoke the authorisation of a relevant issuing body, consideration must be given to the circumstances set out in subregulation 6.07X(3), and must provide the relevant body with reasons for the revocation in writing (subregulation 6.07X(4)). Collectively, regulations clarify the nature of powers to be exercised, as well as ensure adherence to procedural fairness by the Secretary.

Subregulation 6.07X(3)

Subregulation 6.07X(3) sets out matters the Secretary must consider in determining whether an issuing body's authorisation should be revoked. The impact of such a revocation on existing MSIC cardholders here is of paramount concern, with the underlying intent that this group must always have an issuing body to facilitate their compliance with their own reporting obligations.

Whether or not the decision to revoke is at the Secretary's own initiative or upon application by the relevant body, the Secretary is required to consider the matters set out under subregulation 6.07X(3). Broadly, these relate to the effect of the revocation on the MSICs issued by the issuing body. This includes the applications for MSICs that the issuing body still has to approve or reject, whether there is another issuing body that can take over the issuing body's responsibilities and whether the Secretary should make the issuing body a transitional issuing body.

Subregulation 6.07X(4)

Should the Secretary elect to proceed with revocation of the relevant body's authorisation after considering the criteria set out in subregulation 6.07X(3), they must issue a written notice of their decision to the relevant issuing body.  The subregulation requires the Secretary to give reasons for his or her decision in the notice to the issuing body. This enables the issuing body to respond to the Secretary's revocation decision.

Subregulation 6.07X(5)

Subregulation 6.07X(5) introduces the ability for the Secretary to prescribe an issuing body as a transitional issuing body. However, this is only intended to be an option open to the Secretary for consideration where it is in the best interests of existing cardholders and where the revocation of the relevant issuing body is feasible. For example, the Secretary should not prescribe a transitional issuing body where it is unclear whether the entity concerned is capable of remaining as a going concern for the foreseeable future.

Subregulation 6.07X(6)

Subregulation 6.07X(6) is mechanical in nature. Where an issuing body has had its authorisation revoked, it requires the Secretary, in deciding on a new issuing body or a transitional issuing body for the existing cardholders and incomplete MSIC applicants, to consider a range of criteria set out in paragraphs 6.07X(3) (a), (b), (c). (d), (f), and (g).

Subregulation 6.07X(7)

This subregulation is mechanical in nature, and clarifies the point at which an issuing body's authorisation is revoked.

Subregulation 6.07X(8)

This subregulation imposes a requirement on the Secretary to notify the Secretary of the Attorney-General's Department of his or her decision to revoke an issuing body's authorisation under this regulation.  This is necessary to facilitate the proper operation of the arrangements under the AusCheck Regulations.

Subregulation 6.07Y - Application by issuing body for revocation of authorisation

Subregulation 6.07Y enables the relevant issuing body to make an application to the Secretary to revoke the issuing body's authority as an issuing body. In doing so, it also implements a consideration period for the Secretary of up to 30 days removing the current concern of immediate cancellation.  It also practically facilitates the search for an alternative issuing body. Together, this provides existing cardholders the opportunity to maintain compliance with their reporting obligations.

Subregulation 6.07Z - Revocation does not prevent another application for authorisation

Regulation 6.07Z -clarifies that the revocation of an issuing body's authorisation does not preclude it from making a fresh application under subregulation 6.07O.

Subregulation 6.07ZA - Responsibility for MSICs, applications and records if body ceases to be issuing body

Regulation 6.07ZA prescribes administrative and consequential changes that govern the appropriate management of transferring MSICs and MSIC applications and the relevant documents created as part of that process. The regulation implements and clarifies the intended role of issuing bodies, primarily concerning their presence for existing cardholders and applications made to issuing bodies prior to revocation of their issuing body authorisation.

Subregulation 6.07ZA(2) draws a distinction between 'transferred MSICs' and 'transferred MSIC applications'. For example, it specifically includes this latter category in matters for reassigning to a new issuing body, which enables the making of decisions concerning partially processed applications.

Subregulations 6.07ZA(4) to 6.07ZA(6) set out the roles and responsibilities of a new issuing body concerning transferred MSICs and MSIC applications.

Subregulation 6.07ZA(7) enables the primary objective of ensuring a new issuing body has access to necessary, relevant information held by the old issuing body and AusCheck. It further empowers access to information contained in other records and documents including an old issuing body's register of MSICs (insofar as it relates to transferred MSICs). Collectively, these enable the new issuing body to perform the full range of functions that existing cardholders, as well as those with new applications, require of their now-revoked issuing body.

Subregulation 6.07ZA(8) also requires the transfer of records and documents to the Secretary. For clarity, in accordance with subregulation 6.08U(2), this is intended to only include residual documents not required to be transferred to a new issuing body.

Subregulation 6.07ZB - Transitional Issuing Bodies

Regulation 6.07ZB confirms and clarifies the responsibilities of transitional issuing bodies, as declared by the Secretary, to ensure that cardholders are able to remain compliant with their obligations.

Subregulation 6.07ZB(4) also introduces an offence provision that specifically sanctions transitional issuing bodies for acting beyond the parameters of their authority in issuing MSICs unless replacing an existing MSIC or in respect of an application made prior to the declaration of that body as a transitional issuing body.

Item [4] - at the end of subregulation 6.08X(1)

The introduction of paragraph 6.08X(1)(h) facilitates the reconsideration of a decision concerning the revocation of an issuing body's authorisation.

Item [5] - Regulation 107 - Amendments made by the Transport Security Legislation Amendment (Issuing Body Processes) Regulation 2016

Regulation 107 is administrative in nature and confirms the circumstances wherein the changes in Schedule 2 are applicable.

Schedule 3 - Other amendments

AusCheck Regulations 2007

Item [1] - Paragraph 9(3)(a)

Item 1 amends paragraph 9(3)(a) of the AusCheck Regulations.  Subregulation 9(3) allows the Secretary of the Attorney-General's Department to give an issuing body advice about the outcome of a background check which has previously been given to a different issuing body.  This allows issuing bodies to check the validity of an existing background check for an individual when considering whether the individual should be given access to a secure area.

The amendment to paragraph 9(3)(a) will clarify that the relevant advice can be provided to the issuing body for its consideration of whether to issue a security identity card to the individual (for example, in circumstances where a different form of card is required).

Item [2] - Regulation 9A - Transfer of responsibility for ASICs and MSICs and applications for ASICs and MSICs:

Item 2 inserts new regulation 9A into the AusCheck Regulations.  Regulation 9A applies in circumstances where an issuing body (the new issuing body) becomes responsible in accordance with the Aviation Regulations or the Maritime Regulations for a security identification card which has been issued by another issuing body, or where the new issuing body becomes responsible for an application for a security card which was made by another issuing body.

In such circumstances, regulation 9A expressly enables the Secretary of the Attorney-General's Department to provide advice, documents and information (including AusCheck scheme personal information) to the new issuing body on the same bases as would have been available for the purpose of disclosures to the original issuing body.  This amendment will ensure new issuing bodies are able to perform their functions with proper access to AusCheck information once they have assumed responsibility for security cards (or applications for security cards) under the Aviation Regulations or the Maritime Regulations.

Item [3] - Regulation 17: Amendments made by the Transport Security Legislation Amendment (Issuing Body Processes) Regulation 2016

This amendment inserts new regulation 17 into the AusCheck Regulations.  Regulation 17 is an application provision which provides that regulation 9A applies in relation to specified decisions which are made, or events which occur, on or after 1 November 2016.