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This is a Bill, not an Act. For current law, see the Acts databases.
2002-2003
The
Parliament of the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Maritime
Transport Security Bill 2003
No. ,
2003
(Transport and Regional
Services)
A Bill for an Act to safeguard
against unlawful interference with maritime transport, and for related
purposes
Contents
A Bill for an Act to safeguard against unlawful
interference with maritime transport, and for related
purposes
The Parliament of Australia enacts:
This Act may be cited as the Maritime Transport Security Act
2003.
(1) Each provision of this Act specified in column 1 of the table
commences, or is taken to have commenced, in accordance with column 2 of the
table. Any other statement in column 2 has effect according to its
terms.
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Commencement information |
||
|---|---|---|
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Column 1 |
Column 2 |
Column 3 |
|
Provision(s) |
Commencement |
Date/Details |
|
1. Part 1 and anything in this Act not elsewhere covered by this
table |
The day on which this Act receives the Royal Assent. |
|
|
2. Part 2 |
A single day to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 12
months beginning on the day on which this Act receives the Royal Assent, they
commence on the first day after the end of that period. |
|
|
3. Division 1 of Part 3 |
The day on which this Act receives the Royal Assent. |
|
|
4. Divisions 2 and 3 of Part 3 |
At the same time as the provision(s) covered by table
item 2. |
|
|
5. Divisions 4 and 5 of Part 3 |
The day on which this Act receives the Royal Assent. |
|
|
6. Division 1 of Part 4 |
The day on which this Act receives the Royal Assent. |
|
|
7. Divisions 2 and 3 of Part 4 |
At the same time as the provision(s) covered by table
item 2. |
|
|
8. Divisions 4 and 5 of Part 4 |
The day on which this Act receives the Royal Assent. |
|
|
9. Sections 79 and 80 |
At the same time as the provision(s) covered by table
item 2. |
|
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10. Sections 81 to 87 |
The day on which this Act receives the Royal Assent. |
|
|
11. Division 7 of Part 4 |
The day on which this Act receives the Royal Assent. |
|
|
12. Part 5 |
At the same time as the provision(s) covered by table
item 2. |
|
|
13. Sections 101 to 104 |
The day on which this Act receives the Royal Assent. |
|
|
14. Section 105 |
At the same time as the provision(s) covered by table
item 2. |
|
|
15. Sections 106 to 108 |
The day on which this Act receives the Royal Assent. |
|
|
16. Section 109 |
At the same time as the provision(s) covered by table
item 2. |
|
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17. Sections 110 to 112 |
The day on which this Act receives the Royal Assent. |
|
|
18. Section 113 |
At the same time as the provision(s) covered by table
item 2. |
|
|
19. Part 7 |
At the same time as the provision(s) covered by table
item 2. |
|
|
20. Sections 134 to 138 |
The day on which this Act receives the Royal Assent. |
|
|
21. Section 139 |
At the same time as the provision(s) covered by table
item 2. |
|
|
22. Section 140 |
The day on which this Act receives the Royal Assent. |
|
|
23. Sections 141 and 142 |
At the same time as the provision(s) covered by table
item 2. |
|
|
24. Sections 143 to 145 |
The day on which this Act receives the Royal Assent. |
|
|
25. Divisions 3 to 6 of Part 8 |
At the same time as the provision(s) covered by table
item 2. |
|
|
26. Parts 9 to 11 |
At the same time as the provision(s) covered by table
item 2. |
|
|
27. Parts 12 and 13 |
The day on which this Act receives the Royal Assent. |
|
Note: This table relates only to the provisions of this Act
as originally passed by the Parliament and assented to. It will not be expanded
to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional information that is not part
of this Act. Information in this column may be added to or edited in any
published version of this Act.
(1) The purpose of this Act is to safeguard against unlawful interference
with maritime transport.
(2) To achieve this purpose, this Act establishes a regulatory framework
centred around the development of security plans for ships and other maritime
transport operations.
(3) The implementation of a security plan should make an appropriate
contribution to the achievement of the maritime security outcomes.
(4) The maritime security outcomes are as follows:
(a) Australia’s obligations under Chapter XI-2 of the SOLAS
Convention and the ISPS Code, including those with regard to the welfare of
seafarers, are met;
(b) the vulnerability to terrorist attack of Australian ships, ports and
other ships within Australia is reduced without undue disruption to
trade;
(c) the risk that maritime transport is used to facilitate terrorist or
other unlawful activities is reduced;
(d) security information is communicated effectively among maritime
industry participants and government agencies with maritime transport security
responsibilities.
This Act establishes a scheme to safeguard against unlawful interference
with maritime transport.
Part 2 provides for maritime security levels. The security measures to
be implemented when different maritime security levels are in force are set out
in maritime security plans and ship security plans. Part 2 also provides
for the Secretary to give security directions in special
circumstances.
Part 3 deals with maritime security plans. Maritime industry
participants who are required to have plans must comply with their
plans.
Part 4 deals with ship security plans and ISSCs (International Ship
Security Certificates). Regulated Australian ships must have both a ship
security plan and an ISSC. These ships must be operated in compliance with their
ship security plans and must continue to meet ISSC standards.
Part 5 puts obligations on regulated foreign ships. The Secretary can
give control directions to regulated foreign ships to ensure that security
standards are maintained.
Part 6 provides for the establishment of maritime security zones.
Additional security requirements apply in these zones which can be established
within ports, and on and around ships.
Part 7 deals with screening, weapons and prohibited items.
Part 8 sets out the powers of officials under this Act. These
officials are maritime security inspectors, duly authorised officers, law
enforcement officers, maritime security guards and screening officers.
Part 9 sets out reporting obligations in relation to certain maritime
transport security incidents.
Part 10 allows the Secretary to require security compliance
information from maritime industry participants.
Part 11 provides a range of enforcement mechanisms. These are
infringement notices, enforcement orders, ship enforcement orders, injunctions
and a demerit points system.
Part 12 provides for review of certain decisions by the Administrative
Appeals Tribunal.
Part 13 deals with miscellaneous matters.
This Act extends to every external Territory.
Section 15.2 of the Criminal Code (extended geographical
jurisdiction—category B) applies to an offence against this Act.
(1) This Act binds the Crown in each of its capacities.
(2) This Act does not make the Crown in right of the Commonwealth liable
to be prosecuted for an offence.
This Act is not intended to exclude or limit the operation of a law of a
State or Territory to the extent that the law is capable of operating
concurrently with this Act.
(1) Unless the contrary intention appears, this Act does not apply to, or
in relation to:
(a) a warship or other ship operated for naval, military, customs or law
enforcement purposes by Australia or by a foreign state; or
(b) a ship (other than a ship covered by paragraph (a)) that
is:
(i) owned, leased or chartered by, or otherwise in the operational control
of, the Commonwealth, a State or a Territory; and
(ii) being used wholly for non-commercial activities; or
(c) a security regulated port, or a part of a port, at any time that the
port, or the part of the port, is under the exclusive control of the Australian
Defence Force.
(2) A reference in this Act to a maritime industry participant does not
include a reference to:
(a) the Australian Defence Force; or
(b) the Australian Customs Service; or
(c) an Agency of the Commonwealth prescribed in the
regulations.
In this Act, unless the contrary intention appears:
acquisition of property has the same meaning as in paragraph
51(xxxi) of the Constitution.
ADF member means a Member within the meaning of the
Defence Act 1903.
Agency has the same meaning as in the Public Service Act
1999.
AMSA surveyor means a person appointed under section 190
of the Navigation Act 1912.
approved ISSC equivalent has the meaning given by subsection
91(3).
Australian ship has the same meaning as in the Shipping
Registration Act 1981.
Australian waters means:
(a) the territorial sea of Australia; and
(b) the waters of the sea on the landward side of the territorial sea of
Australia; and
(c) the territorial sea of each external Territory; and
(d) the waters of the sea on the landward side of the territorial sea of
each external Territory; and
(e) inland waters prescribed in regulations.
baggage means:
(a) possessions of a passenger or crew member:
(i) that are carried, or intended to be carried, on board a ship;
and
(ii) to which the passenger or crew member will have general access while
on board the ship; and
(b) possessions of a visitor to a ship:
(i) that are taken, or intended to be taken, on board the ship;
and
(ii) to which the visitor will have general access while on board the
ship.
cargo means goods, other than baggage or stores, that are
transported, or intended to be transported, by ship.
cargo ship includes a tanker.
Note: A cargo ship may also be a passenger
ship.
cleared:
(a) in relation to a person, has the meaning given by subsection 115(3);
and
(b) in relation to goods, has the meaning given by subsection 116(3);
and
(c) in relation to a vehicle, has the meaning given by subsection 117(3);
and
(d) in relation to a vessel, has the meaning given by subsection
118(3).
cleared area means an area that, under regulations made under
Part 6 or 7, may be entered only by persons who have received
clearance.
confidentiality requirements has the meaning given by
subsection 34(2).
control direction has the meaning given by subsection
99(2).
crew, in relation to a ship, includes any person employed on
the ship.
critical installation has the meaning given by subsection
103(3).
customs officer means an Officer within the meaning of the
Customs Act 1901.
damage, in relation to data, includes damage by erasure of
data or addition of other data.
declaration of security means an agreement reached between a
ship and another party (a ship or person), that identifies the security
activities or measures that each party will undertake or implement in specified
circumstances.
duly authorised officer means a person appointed under
section 147.
employee, in relation to a maritime industry participant,
means an individual:
(a) employed by the maritime industry participant; or
(b) engaged under a contract for services between the individual and the
maritime industry participant.
enforcement order means an order made under
section 189.
engage in conduct has the same meaning as in the Criminal
Code.
Federal Court means the Federal Court of Australia.
foreign ship means a ship that is not an Australian
ship.
frisk search has the same meaning as in the Crimes Act
1914.
immigration officer means an officer within the meaning of
the Migration Act 1958.
inland waters means waters within Australia other than waters
of the sea.
interim ISSC means an interim ISSC given under
section 86.
inter-State voyage has the same meaning as in the
Navigation Act 1912.
ISPS Code means the International Ship and Port Facility
Security (ISPS) Code (as amended from time to time) as mentioned in Chapter XI-2
of the SOLAS Convention.
ISPS level 1 measures has the meaning given by
subsection 95(1).
ISPS level 2 measures has the meaning given by
subsection 95(2).
ISPS level 3 measures has the meaning given by subsection
95(3).
ISSC means an international ship security certificate within
the meaning of the ISPS Code.
ISSC verified has the meaning given by subsections 83(1) and
(3).
just terms has the same meaning as in paragraph 51(xxxi) of
the Constitution.
law enforcement officer has the meaning given by
section 151.
maritime industry participant means:
(a) a port operator; or
(b) a port facility operator; or
(c) the ship operator for a regulated Australian ship; or
(d) the ship operator for a regulated foreign ship; or
(e) a person (other than a maritime security inspector or a duly
authorised officer) appointed by the Secretary under this Act to perform a
maritime transport security function; or
(f) a contractor who provides services to a person mentioned in
paragraphs (a) to (d); or
(g) a person who:
(i) conducts a maritime-related enterprise; and
(ii) is prescribed in the regulations.
Note: Neither the Australian Defence Force nor the
Australian Customs Service can be a maritime industry participant. The
regulations may also exclude other Commonwealth Agencies from being maritime
industry participants: see subsection 9(2).
maritime security guard has the meaning given by subsection
162(1).
maritime security inspector means a person appointed under
subsection 136(1).
maritime security level means:
(a) maritime security level 1; or
(b) maritime security level 2; or
(c) maritime security level 3.
maritime security level 1 means the maritime security level
in force under section 21.
maritime security level 2 means maritime security level 2 as
in force under section 23.
maritime security level 3 means maritime security level 3 as
in force under section 23.
maritime security outcomes has the meaning given by
subsection 3(4).
maritime security plan means a plan prepared for the purposes
of Part 3.
maritime security zone means:
(a) a port security zone; or
(b) a ship security zone; or
(c) an on-board security zone.
maritime transport security incident has the meaning given by
subsections 170(1) and (2).
master, in relation to a ship, means the person who has
command or charge of the ship.
mobile offshore drilling unit means a ship capable of
engaging in drilling operations for the purposes of exploring or exploiting
resources beneath the seabed.
on-board security zone means an on-board security zone
established under subsection 110(1).
operational area, in relation to a ship, has the meaning
given by subsection 140(5).
ordinary search has the same meaning as in the Crimes Act
1914.
overseas voyage has the same meaning as in the Navigation
Act 1912.
passenger:
(a) means a passenger travelling by maritime transport; and
(b) includes an intending passenger.
passenger ship means a ship that carries more than 12
passengers.
Note: A passenger ship may also be a cargo
ship.
person with incident reporting responsibilities
has the meaning given by subsection 175(4).
port has the meaning given by section 12.
port facility means an area of land or water, or land and
water, within a security regulated port (including any buildings, installations
or equipment in or on the area) used either wholly or partly in connection with
the loading or unloading of ships.
port facility operator means a person who operates a port
facility.
port operator has the meaning given by subsection
14(1).
port security zone means a port security zone established
under subsection 102(1).
pre-arrival information has the meaning given by subsection
92(3).
private living area, in relation to a ship, has the meaning
given by subsection 140(4).
prohibited item means an item that:
(a) could be used for unlawful interference with maritime transport;
and
(b) is prescribed in the regulations for the purposes of this
definition.
quarantine officer means an Officer within the meaning of the
Quarantine Act 1908.
receive clearance:
(a) in relation to a person, has the meaning given by subsection 115(2);
and
(b) in relation to goods, has the meaning given by subsection 116(2);
and
(c) in relation to a vehicle, has the meaning given by subsection 117(2);
and
(d) in relation to a vessel, has the meaning given by subsection
118(2).
recognised security organisation has the meaning given by
subsection 88(2).
regulated Australian ship has the meaning given by
section 16.
regulated foreign ship has the meaning given by
section 17.
screened:
(a) in relation to a person, has the meaning given by subsection 115(1);
and
(b) in relation to goods, has the meaning given by subsection 116(1);
and
(c) in relation to a vehicle, has the meaning given by subsection 117(1);
and
(d) in relation to a vessel, has the meaning given by subsection
118(1).
screening officer has the meaning given by subsection
165(1).
screening point means a place where screening
occurs.
Secretary means the Secretary of the Department.
security compliance information has the meaning given by
subsection 184(1).
security direction has the meaning given by subsection
33(2).
security officer means a person designated by a maritime
industry participant to implement and maintain:
(a) the participant’s maritime security plan; or
(b) the ship security plan for a ship operated by the
participant.
security regulated port has the meaning given by subsection
13(1).
security regulated ship has the meaning given by
section 15.
ship means a vessel that is capable of navigating the high
seas but does not include a vessel that is not self-propelled.
ship enforcement order has the meaning given by subsection
195(2).
ship operator means:
(a) unless paragraph (b) applies—the owner of a security
regulated ship; or
(b) if, under an agreement between the owner of the security regulated
ship and another person, the other person is to be the ship operator for the
security regulated ship for the purposes of this Act—that other
person.
Note: Paragraph (b) means that a ship manager or
bareboat charterer (or any other person) who has assumed responsibility for the
operation of a ship, can, on assuming such responsibility, also agree to take
over responsibility for meeting the obligations that are imposed on the ship
operator for the ship under this Act.
ship security plan means a plan prepared for the purposes of
Part 4.
ship security record, in relation to a particular kind of
security regulated ship, means a document or information relating to maritime
security prescribed in regulations as a document or information to be kept on,
by or for a ship of that kind.
ship security zone means a ship security zone declared under
subsection 106(1).
SOLAS Convention means the International Convention for the
Safety of Life at Sea, done at London on 1 November 1974, as amended from
time to time.
Note: The text of the Convention is set out in Australian
Treaty Series 1983 No. 22. In 2003 this was available in the Australian
Treaties Library of the Department of Foreign Affairs and Trade, accessible on
the Internet through that Department’s world-wide web
site.
stores means items that are to be carried on board a ship for
use, sale or consumption on the ship.
territorial sea has the same meaning as in the Seas and
Submerged Lands Act 1973.
terrorist act has the same meaning as in Part 5.3 of the
Criminal Code.
this Act includes the regulations.
threaten: a person is taken to threaten to do
an act if the person makes a statement, or does anything else, showing, or from
which it could reasonably be inferred, that it is his or her intention to do the
act.
unlawful interference with maritime transport has the meaning
given by section 11.
valid ISSC, for a ship at a particular time, means an ISSC
for the ship that is in force at that time.
vessel means any craft or structure capable of
navigation.
weapon means:
(a) a firearm of any kind; or
(b) a thing prescribed by the regulations to be a weapon; or
(c) a device that, except for the absence of, or a defect in, a part of
the device, would be a weapon of a kind mentioned in paragraph (a) or (b);
or
(d) a device that is reasonably capable of being converted into a weapon
of a kind mentioned in paragraph (a) or (b).
Any of the following done without lawful authority is an unlawful
interference with maritime transport:
(a) committing an act, or causing any interference or damage, that puts
the safe operation of a port, or the safety of any person or property at the
port, at risk;
(b) taking control of a ship by force, or threat of force, or any other
form of intimidation;
(c) destroying a ship that is being used for maritime transport;
(d) causing damage to a ship that is being used for maritime transport
that puts the safety of the ship, or any person or property on board or off the
ship, at risk;
(e) doing anything on board a ship that is being used for maritime
transport that puts the safety of the ship, or any person or property on board
or off the ship, at risk;
(f) placing, or causing to be placed, on board a ship that is being used
for maritime transport anything that puts the safety of the ship, or any person
or property on board or off the ship, at risk;
(g) putting the safety of ships at risk by interfering with, damaging or
destroying navigational aids, communication systems or security
systems;
(h) putting the safety of ships at risk by communicating false
information.
(1) A port is an area of water, or land and water (including
any buildings, installations or equipment situated in or on that land or water)
intended for use either wholly or partly in connection with the movement,
loading, unloading, maintenance or provisioning of ships.
(2) A port includes:
(a) areas of water, between the land of the port and the open waters
outside the port, intended for use by ships to gain access to loading, unloading
or other land-based facilities; and
(b) areas of open water intended for anchoring or otherwise holding ships
before they enter areas of water described in paragraph (a); and
(c) areas of open water between the areas of water described in
paragraphs (a) and (b).
(1) The Secretary may, by notice published in the Gazette, declare
that areas of a port intended for use either wholly or partly in connection with
the movement, loading, unloading, maintenance or provisioning of security
regulated ships comprise a security regulated port.
(2) The notice must include a map of the port that shows the boundaries of
the security regulated port.
(3) An area controlled exclusively by the Australian Defence Force must
not be included as part of a security regulated port.
(1) The Secretary may, by notice published in the Gazette,
designate a person as the port operator for a security regulated
port.
(2) In designating a person as a port operator, the Secretary must take
into account:
(a) the ability of the person to undertake the functions of a port
operator; and
(b) the physical and operational features of the port; and
(c) the views of the person, or persons, responsible for managing the
operations of the port.
Each of the following is a security regulated
ship:
(a) a regulated Australian ship;
(b) a regulated foreign ship.
Note: Certain government-controlled ships (both Australian
and foreign) are exempt from the operation of this Act: see
section 9.
(1) A ship is a regulated Australian ship if the ship is an
Australian ship that is:
(a) a passenger ship that is used for overseas or inter-State voyages;
or
(b) a cargo ship of 500 or more gross tonnes that is used for overseas or
inter-State voyages; or
(c) a mobile offshore drilling unit that is on an overseas or inter-State
voyage (other than a unit that is attached to the seabed); or
(d) a ship of a kind prescribed in the regulations.
(2) However, the regulations may provide that a ship covered by
subsection (1) is not a regulated Australian ship.
(1) A ship is a regulated foreign ship if the
ship:
(a) is a foreign ship; and
(b) is one of the following:
(i) a passenger ship;
(ii) a cargo ship of 500 or more gross tonnes;
(iii) a mobile offshore drilling unit (other than a unit that is attached
to the seabed);
(iv) a ship of a kind prescribed in the regulations; and
(c) is in Australian waters; and
(d) is in, or is intending to proceed to, a port in Australia.
(2) However, the regulations may provide that a ship covered by
subsection (1) is not a regulated foreign ship.
Ship master’s decisions
(1) A person does not commit an offence against this Act if:
(a) a physical element of the offence exists (whether directly or
indirectly) because the master of a ship engaged in conduct in the operation or
control of the ship; and
(b) without the existence of that physical element the person would not
commit the offence; and
(c) the master engaged in the conduct to protect the safety or security
of:
(i) the ship; or
(ii) the ship’s cargo; or
(iii) a person (whether on board the ship or not); or
(iv) another ship; or
(v) a port, or a port facility or other installation within a port;
and
(d) the conduct was reasonable in the circumstances.
Note: A defendant bears an evidential burden in relation to
the matters in subsection (1) (see subsection 13.3(3) of the Criminal
Code).
Security directions
(2) If:
(a) a person is required to comply with a security direction;
and
(b) compliance with the direction would mean that the person commits an
offence against, or otherwise contravenes a requirement of, this Act;
the person, in complying with the security direction, is taken not to have
committed the offence or contravened the requirement.
Note: A defendant bears an evidential burden in relation to
the matters in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
Control directions
(3) If:
(a) a person is required to comply with a control direction; and
(b) compliance with the direction would mean that the person commits an
offence against, or otherwise contravenes a requirement of, this Act;
the person, in complying with the control direction, is taken not to have
committed the offence or contravened the requirement.
Note: A defendant bears an evidential burden in relation to
the matters in subsection (3) (see subsection 13.3(3) of the Criminal
Code).
For the purposes of this Act, a person may give a notice or direction to,
or otherwise communicate with, a ship operator for a ship by giving the notice
or direction to, or communicating with, the shipping agent for the
ship.
Maritime security level 1 is in force for each security regulated port,
each maritime industry participant and each regulated Australian ship unless the
Secretary declares that maritime security level 2 or 3 is in force for the port,
participant or ship.
If maritime security level 2 or 3 is in force for a port, that maritime
security level is in force for every maritime industry participant and security
regulated ship within the port.
The Secretary may also declare that maritime security level 2 or 3 is in
force for a regulated foreign ship. A regulated foreign ship may also be
directed by its flag state to operate at a higher security level.
Division 3 sets out requirements for notifying maritime security level
declarations.
In special circumstances the Secretary is able to give security directions
to maritime industry participants, employees of such participants, passengers
and persons within the boundaries of a security regulated port. Security
directions may include confidentiality requirements.
Unless a declaration under subsection 22(1) provides otherwise, maritime
security level 1 is in force for each:
(a) security regulated port; and
(b) regulated Australian ship; and
(c) area within a security regulated port; and
(d) maritime industry participant.
Note: For obligations on foreign ships, see Division 2
of Part 5.
(1) The Secretary may, by writing, declare that maritime security level 2
or maritime security level 3 is in force for one or more of the following as
specified in the declaration:
(a) a security regulated port;
(b) a regulated Australian ship;
(c) an area within a security regulated port;
(d) a maritime industry participant;
(e) operations conducted by a maritime industry participant within, or in
connection with, a security regulated port.
(2) The Secretary may also, by writing, declare that maritime security
level 2 or maritime security level 3 is in force for a regulated foreign
ship.
(3) However, the Secretary must not make a declaration under
subsection (1) or (2) unless it is appropriate for a higher level of
security to be put into place for the port, ship, area or participant concerned
because a heightened risk to maritime transport has been identified.
Note: Maritime security plans and ship security plans (see
Parts 3 and 4) will set out security activities and measures to be
undertaken or implemented when different maritime security levels are in
force.
If a declaration is made under subsection 22(1) or (2), the maritime
security level declared in the declaration is in force for the port, ship, area,
participant or operations covered by the declaration until either of the
following occurs:
(a) the period (if any) specified in the declaration expires;
(b) the declaration is revoked, in writing, by the Secretary.
If the Secretary declares that a maritime security level is in force for
a security regulated port, that maritime security level is in force
for:
(a) every area and security regulated ship; and
(b) any operations conducted by a maritime industry participant;
within the boundaries of the security regulated port.
Maritime security plans
(1) For the purposes of subsection 44(1), if:
(a) a maritime industry participant is required to comply with a maritime
security plan; and
(b) the Secretary makes a declaration under subsection 22(1);
and
(c) the effect of the declaration is that maritime security level 2 or 3
is in force for:
(i) the participant; or
(ii) an area controlled by the participant; or
(iii) particular operations of the participant;
the participant does not comply with the plan unless the participant
implements the measures set out in the plan for the participant, area or
operations, as required, for that maritime security level.
Ship security plans
(2) For the purposes of subsection 63(1), if:
(a) a ship security plan is in force for a regulated Australian ship;
and
(b) the Secretary makes a declaration under subsection 22(1);
and
(c) the effect of the declaration is that maritime security level 2 or 3
is in force for the ship;
the ship security plan for the ship is not complied with unless the
measures set out in the plan for that maritime security level are
implemented.
Note: Obligations on regulated foreign ships to comply with
security levels are set out in section 94.
To avoid doubt, if maritime security level 1, 2 or 3 (the existing
security level) is in force for:
(a) a security regulated port; or
(b) a regulated Australian ship; or
(c) an area within a security regulated port; or
(d) a maritime industry participant; or
(e) the operations of a maritime industry participant;
and a security direction is given to, or in relation to, the port, ship,
area, participant or operation, the existing security level continues in
force.
(1) If the Secretary declares that a maritime security level is in force
for a security regulated port, the Secretary must, as soon as practicable,
notify:
(a) the port operator; and
(b) each maritime industry participant who is required to have a maritime
security plan and who:
(i) controls an area within the boundaries of the security regulated port;
or
(ii) operates within the boundaries of the security regulated
port.
(2) If the Secretary gives a port operator notice of a declaration under
subsection (1), the port operator must, as soon as practicable, give notice
of the declaration to:
(a) every maritime industry participant who is covered by the port
operator’s maritime security plan and who:
(i) controls an area within the boundaries of the security regulated port;
or
(ii) operates within the boundaries of the security regulated port;
and
(b) the master of every security regulated ship that is within the port or
about to enter the port.
Penalty: 10 penalty units
(3) Subsection (2) does not apply if the port operator has a
reasonable excuse.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (3) (see subsection 13.3(3) of the Criminal
Code).
(4) Subsection (2) is an offence of strict liability.
If the Secretary declares that a maritime security level is in force for
a regulated Australian ship or a regulated foreign ship, the Secretary must, as
soon as practicable, notify:
(a) the ship operator for the ship; or
(b) the master of the ship.
If the Secretary declares that a maritime security level is in force for
an area within a security regulated port, the Secretary must, as soon as
practicable, notify:
(a) the maritime industry participant who controls the area; and
(b) if the maritime industry participant is not the port
operator—the port operator.
If the Secretary declares that a maritime security level is in force for
a maritime industry participant or for particular operations of an industry
participant, the Secretary must, as soon as practicable, notify:
(a) the maritime industry participant; and
(b) if the maritime industry participant conducts operations covered by
the declaration within a security regulated port and is not the port
operator—the port operator.
(1) If:
(a) the Secretary has notified a person under section 27, 28, 29 or
30 that a maritime security level is in force; and
(b) the Secretary revokes the declaration concerned;
the Secretary must, as soon as practicable, notify the person of the
revocation.
(2) If:
(a) a port operator has notified a person under subsection 27(2) that a
maritime security level is in force; and
(b) the Secretary revokes the declaration concerned;
the port operator must, as soon as practicable, notify the person of the
revocation.
Penalty: 50 penalty units
(3) Subsection (2) does not apply if the port operator has a
reasonable excuse.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (3) (see subsection 13.3(3) of the Criminal
Code).
(4) Subsection (2) is an offence of strict liability.
The regulations may prescribe requirements in relation to notifying
declarations, and revocations of declarations, under this
Division.
(1) The Secretary may direct that additional security measures be
implemented or complied with.
(2) A direction under subsection (1) is a security
direction.
(3) The Secretary must not give a security direction unless it is
appropriate to do so because an unlawful interference with maritime transport is
probable or imminent.
(4) A security direction has no effect until the Secretary commits the
direction to writing.
Note: This requires the Secretary to have a written record
of a direction that is given orally.
(5) The regulations may prescribe requirements for, or in relation to, the
giving of security directions.
(1) A security direction may include restrictions in relation to the
disclosure of the direction.
(2) Such restrictions are confidentiality
requirements.
(1) A security direction may be given by the Secretary to one or more of
the following:
(a) a maritime industry participant or an employee of a maritime industry
participant;
(b) passengers;
(c) persons, other than persons mentioned in paragraphs (a) and (b),
who are within the boundaries of a security regulated port.
(2) For the purposes of giving a security direction to persons mentioned
in paragraph (1)(b) or (c), the Secretary is taken to have given a
direction to the persons if the direction is clearly displayed at a place where
the direction is to be complied with by those persons.
(3) The Secretary may, in a security direction given to the port operator
for a security regulated port, require the port operator to communicate all or a
part of the direction to specified maritime industry participants who operate
within the port.
(4) If the Secretary gives a port operator a direction under
subsection (1) that requires the port operator to communicate all or a part
of the direction to specified maritime industry participants who operate within
the port, the port operator must, as soon as practicable, communicate the
direction, or the part of the direction, to the specified maritime industry
participants.
Penalty: 50 penalty units
(5) Subsection (4) does not apply if the port operator has a
reasonable excuse.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (5) (see subsection 13.3(3) of the Criminal
Code).
(6) Subsection (4) is an offence of strict liability.
(7) If a direction is given to a maritime industry participant by a port
operator as mentioned in subsection (3), the direction is taken to have
been given to the participant by the Secretary.
(1) The Secretary may give a security direction to a security regulated
ship by giving the direction to:
(a) the ship operator for the ship; or
(b) the master of the ship.
(2) If the Secretary gives a ship operator a direction under
subsection (1), the ship operator must, as soon as practicable, communicate
the direction to the master of the ship covered by the direction.
Penalty: 50 penalty units
(3) Subsection (2) does not apply if the ship operator has a
reasonable excuse.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (3) (see subsection 13.3(3) of the Criminal
Code).
(4) Subsection (2) is an offence of strict liability.
(5) If a direction is given to a master by a ship operator as mentioned in
subsection (2), the direction is taken to have been given to the master by
the Secretary.
(1) A security direction comes into force at the time specified in the
direction.
(2) However:
(a) if:
(i) there is no time specified; or
(ii) the specified time is before the time when the direction is
given;
the direction comes into force 24 hours after it is given; or
(b) if the specified time is later than the beginning of the seventh day
after the direction is given, the direction comes into force at the start of
that day.
(3) A security direction remains in force until either of the following
occurs:
(a) the direction is revoked in writing by the Secretary;
(b) the direction has been in force for a continuous period of 3
months.
(1) The Secretary must revoke a security direction if the unlawful
interference with maritime transport in relation to which the direction was
given is no longer probable or imminent.
(2) If:
(a) the Secretary gives a security direction to a person (including a
direction given to the ship operator for, or the master of, a security regulated
ship under section 36); and
(b) the Secretary revokes the direction; and
(c) the direction has not been displayed under subsection 35(2);
the Secretary must notify the person of the revocation.
(3) If the Secretary has displayed a security direction under subsection
35(2) and the Secretary revokes the direction, the Secretary must remove the
displayed direction.
(1) A person commits an offence if:
(a) a security direction is given to, or communicated to, the person;
and
(b) the direction is in force; and
(c) the person fails to comply with the direction; and
(d) the failure is not a failure to comply with confidentiality
requirements.
Penalty: For a port operator, ship operator or port facility
operator—200 penalty units.
For a maritime industry participant other than a port operator, ship
operator or port facility operator—100 penalty units.
For any other person—50 penalty units.
(2) Subsection (1) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(3) Subsection (1) is an offence of strict liability.
(1) A person (including the ship operator for, or the master of, a
security regulated ship when a direction has been given to the ship under
section 36) commits an offence if:
(a) a security direction is given to the person; and
(b) the person fails to comply with confidentiality requirements in the
direction; and
(c) the failure is not due to a disclosure made to a court or a tribunal,
or to an authority or person that has the power to require the production of
documents or the answering of questions.
Penalty: 20 penalty units.
(2) Subsection (1) is an offence of strict liability.
Maritime security plans identify security measures to be implemented when
different maritime security levels are in force.
Various maritime industry participants are required to have, and comply
with, maritime security plans. This is dealt with in Division 2.
Various other persons and ships are required to comply with maritime
security plans. This is dealt with in Division 3.
The content and form of maritime security plans is dealt with in
Division 4.
The approval of maritime security plans by the Secretary is dealt with in
Division 5. That Division also deals with the variation and revision of
plans, and with the cancellation of the approval of plans.
The following maritime industry participants are required to have a
maritime security plan:
(a) a port operator;
(b) a port facility operator;
(c) a participant of a kind prescribed in the regulations;
(d) a particular participant prescribed in the regulations.
Note: Part 4 deals with security plans for regulated
Australian ships.
(1) A maritime industry participant commits an offence if:
(a) the participant is required under section 42 to have a maritime
security plan; and
(b) the participant operates as a participant of that kind; and
(c) there is no maritime security plan in force for the
participant.
Penalty: For a port operator or port facility operator—200 penalty
units.
For any other maritime industry participant—100 penalty
units.
(2) Subsection (1) does not apply if the participant has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(3) Subsection (1) is an offence of strict liability.
(1) A maritime industry participant commits an offence if:
(a) the participant is required under section 42 to have a maritime
security plan; and
(b) there is a maritime security plan for the participant in force;
and
(c) the participant fails to comply with the plan.
Penalty: For a port operator or port facility operator—200 penalty
units.
For any other maritime industry participant—100 penalty
units.
(2) Subsection (1) does not apply if the participant has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(3) Subsection (1) is an offence of strict liability.
(1) A maritime industry participant must not engage in conduct that
hinders or obstructs compliance with the maritime security plan of another
maritime industry participant.
(2) If:
(a) a maritime security plan (the covering plan) for a
maritime industry participant covers the activities of another maritime industry
participant; and
(b) the other participant:
(i) is not required to have a maritime security plan; and
(ii) has been given the relevant parts of the covering plan;
the other maritime industry participant must take all reasonable steps to
comply with the covering plan.
(3) If:
(a) a maritime security plan (the covering plan) for a
maritime industry participant covers the activities of another maritime industry
participant; and
(b) the other participant:
(i) is required to have a maritime security plan; and
(ii) has been given the relevant parts of the covering plan; and
(iii) has agreed in writing to those activities being covered by the
covering plan;
the other maritime industry participant must take all reasonable steps to
comply with the covering plan.
(4) If a maritime industry participant contravenes subsection (1),
(2) or (3), the participant does not commit an offence but may be subject to an
enforcement order (see section 189) or an injunction under
section 197.
(1) The operations of a regulated Australian ship must not hinder or
obstruct compliance with a maritime security plan.
(2) If the operations of a regulated Australian ship hinder or obstruct
compliance with a maritime security plan, either or both of the following may be
subject to an enforcement order (see section 189) or an injunction under
section 197:
(a) the ship operator for the ship;
(b) the master of the ship.
Note: Obligations on regulated foreign ships are set out in
Division 2 of Part 5.
(1) A maritime security plan for a maritime industry participant
must:
(a) include a security assessment for the participant’s operation;
and
(b) set out the security activities or measures to be undertaken or
implemented by the participant for maritime security levels 1, 2 and 3;
and
(c) include contact details for the participant’s security officer;
and
(d) make provision for the use of declarations of security; and
(e) demonstrate that the implementation of the plan will make an
appropriate contribution towards the achievement of the maritime security
outcomes.
Note: The maritime security outcomes are set out in
subsection 3(4).
(2) The security assessment under paragraph (1)(a) must:
(a) take into account any documents required in writing by the Secretary
to be taken into account; and
(b) address any matters prescribed in the regulations.
The regulations may prescribe specific matters that are to be dealt with
in one or more of the following:
(a) each maritime security plan;
(b) each maritime security plan for a particular kind of maritime industry
participant;
(c) each maritime security plan for a particular class of a particular
kind of maritime industry participant.
(1) A maritime security plan must be:
(a) in writing; and
(b) prepared in accordance with any requirements set out in the
regulations.
(2) A maritime security plan must be accompanied by:
(a) a map that shows any port security zones established within the area
covered by the plan; and
(b) if the participant proposes changes to port security zones—a map
that shows the proposed changes.
(3) The map that accompanies a maritime security plan for a port operator
must cover the whole security regulated port.
A maritime industry participant may give the Secretary a maritime
security plan for the participant and request the Secretary to approve the
plan.
(1) If the Secretary is satisfied that the plan adequately addresses the
relevant requirements under Division 4, the Secretary must:
(a) approve the plan; and
(b) give the participant written notice of the approval.
(2) If the Secretary is not satisfied that the plan adequately addresses
the relevant requirements under Division 4, the Secretary must:
(a) refuse to approve the plan; and
(b) give the participant written notice of the refusal including reasons
for the refusal.
(3) In determining whether the plan adequately addresses the relevant
requirements under Division 4, the Secretary may take account of existing
circumstances as they relate to maritime transport security.
(4) If:
(a) a maritime industry participant gives the Secretary a maritime
security plan; and
(b) the Secretary does not approve, or refuse to approve, the plan within
the period of 90 days after the plan was given;
the Secretary is taken to have refused to approve the plan.
Note: A maritime industry participant may apply to the
Administrative Appeals Tribunal for review of a decision to refuse to approve a
maritime security plan under subsection (2) or (4): see
section 201.
(1) If the Secretary approves the maritime security plan, the plan comes
into force at the time specified in the notice of approval.
(2) However, if:
(a) the time specified in the notice is earlier than the time at which the
notice was given; or
(b) no time is specified in the notice as the time when the plan comes
into force;
the plan comes into force when the notice is given.
(3) The plan remains in force until:
(a) the plan is replaced under subsection 54(2); or
(b) the approval of the plan is cancelled under this Division.
(1) If:
(a) a maritime security plan for a maritime industry participant is in
force; and
(b) the Secretary is no longer satisfied that the plan adequately
addresses the relevant requirements under Division 4;
the Secretary may, by written notice given to the participant, direct the
participant to vary the plan.
(2) However, the Secretary must not give a direction under
subsection (1) unless the Secretary is satisfied that the plan, as varied,
would adequately address the relevant requirements under
Division 4.
(3) In the notice, the Secretary must:
(a) set out the variation; and
(b) specify the period within which the participant must give the
Secretary the plan as varied.
(4) If the participant does not give the Secretary the plan:
(a) varied in accordance with the direction; and
(b) within the specified period, or within any further period allowed by
the Secretary;
the Secretary must, by written notice given to the participant, cancel the
approval of the plan.
(1) If:
(a) a maritime industry participant has given the Secretary a maritime
security plan; and
(b) the participant gives the Secretary another maritime security plan
(the revised plan);
sections 51 and 52 apply in relation to the revised plan.
(2) If a revised plan for a maritime industry participant comes into
force, it replaces any other plan for the participant in force at that
time.
(1) If:
(a) a maritime security plan for a maritime industry participant (the
existing plan) is in force; and
(b) the Secretary is no longer satisfied that the existing plan adequately
addresses the relevant requirements under Division 4:
(i) because there is a change in the circumstances that relate to maritime
transport security; or
(ii) because there is a change in circumstances that could impact on
maritime transport security; or
(iii) for some other reason;
the Secretary may, by written notice given to the participant, direct the
participant to give the Secretary a revised plan under
section 54.
(2) The notice must specify the period within which the revised plan must
be given.
(3) If the participant does not give the Secretary the revised plan within
the specified period, or within any further period allowed by the Secretary, the
Secretary must, by written notice given to the participant, cancel the approval
of the existing plan.
If:
(a) a maritime security plan for a maritime industry participant (the
existing plan) has been in force for a period of 5 years;
and
(b) the Secretary has not approved a revised plan for the participant
under section 54 within that period;
the approval of the existing plan is cancelled by force of this
section.
If:
(a) a maritime security plan for a maritime industry participant is in
force; and
(b) the Secretary is no longer satisfied that the plan adequately
addresses the relevant requirements under Division 4; and
(c) the Secretary is satisfied that it is not appropriate to direct the
participant to:
(i) vary the plan under section 53; or
(ii) revise the plan under section 55;
the Secretary must, by written notice given to the participant, cancel the
approval of the plan.
(1) If:
(a) a maritime security plan for a maritime industry participant is in
force; and
(b) the participant has accumulated the number of demerit points
prescribed by the regulations as the number necessary for the Secretary to be
able to cancel the approval of the plan;
the Secretary may, by written notice given to the participant, cancel the
approval of the plan.
Note: For the demerit points system, see Division 6 of
Part 11.
(2) Before cancelling the approval of a plan under subsection (1),
the Secretary may, by written notice given to the participant, request the
participant to show cause why the approval of the plan should not be
cancelled.
If:
(a) a maritime security plan for a maritime industry participant is in
force; and
(b) the participant makes a written request to the Secretary for the
approval of the plan to be cancelled;
the Secretary must, by written notice given to the participant, cancel the
approval of the plan.
Ship security plans identify the security measures to be implemented by
ships when different maritime security levels are in force.
Regulated Australian ships are required to have, and comply with, ship
security plans. This is dealt with in Division 2.
Various other ships and persons are required to comply with ship security
plans. This is dealt with in Division 3.
The content and form of ship security plans is dealt with in
Division 4.
The approval of ship security plans by the Secretary is dealt with in
Division 5. That Division also deals with the variation and revision of
plans, and with the cancellation of the approval of plans.
Regulated Australian ships are also required to have an ISSC (International
Ship Security Certificate). Division 6 provides for the Secretary to issue
ISSCs and interim ISSCs for ships.
Division 7 allows the Secretary to delegate his or her powers under
this Part to registered security organisations.
A regulated Australian ship must have a ship security plan.
Note: Obligations on regulated foreign ships are set out in
Division 2 of Part 5.
(1) The ship operator for a regulated Australian ship commits an offence
if:
(a) the ship is being used for maritime transport; and
(b) there is no ship security plan in force for the ship.
Penalty: 200 penalty units.
(2) Subsection (1) does not apply if the operator has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(3) Subsection (1) is an offence of strict liability.
(1) The ship operator for a regulated Australian ship commits an offence
if:
(a) the ship is being used for maritime transport; and
(b) there is a ship security plan for the ship in force; and
(c) the ship is not operated in accordance with the plan.
Penalty: 200 penalty units.
(2) Subsection (1) does not apply if the operator has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(3) Subsection (1) is an offence of strict liability.
(1) The operations of a regulated Australian ship must not hinder or
obstruct compliance with the ship security plan of another ship.
(2) If the operations of a regulated Australian ship (the first
regulated ship) hinder or obstruct compliance with the ship security
plan of another ship, either or both of the following may be subject to an
enforcement order (see section 189) or an injunction under
section 197:
(a) the ship operator for the first regulated ship;
(b) the master of the first regulated ship.
Note: Obligations on regulated foreign ships are set out in
Division 2 of Part 5.
(1) A maritime industry participant must not engage in conduct that
hinders or obstructs compliance with the ship security plan of a ship.
(2) If a maritime industry participant contravenes subsection (1),
the participant does not commit an offence but may be subject to an enforcement
order (see section 189) or an injunction under
section 197.
(1) A ship security plan for a regulated Australian ship must:
(a) include a security assessment for the ship; and
(b) set out the security activities or measures to be undertaken or
implemented on, or in connection with, the ship for maritime security levels 1,
2 and 3; and
(c) include contact details for the ship’s security officer;
and
(d) make provision for the use of declarations of security; and
(e) demonstrate that the implementation of the plan will make an
appropriate contribution towards the achievement of the maritime security
outcomes.
Note: The maritime security outcomes are set out in
subsection 3(4).
(2) The security assessment under paragraph (1)(a) must:
(a) take into account any documents required in writing by the Secretary
to be taken into account; and
(b) address any matters prescribed in the regulations.
The regulations may prescribe specific matters that are to be dealt with
in one or more of the following:
(a) each ship security plan;
(b) each ship security plan for a particular kind of ship;
(c) each ship security plan for a particular class of a particular kind of
ship.
A ship security plan must be:
(a) in writing; and
(b) prepared in accordance with any requirements set out in the
regulations.
The ship operator for a regulated Australian ship may give the Secretary
a ship security plan for the ship and request the Secretary to approve the
plan.
(1) If the Secretary is satisfied that the plan adequately addresses the
relevant requirements under Division 4, the Secretary must:
(a) approve the plan; and
(b) give the ship operator written notice of the approval.
(2) If the Secretary is not satisfied that the plan adequately addresses
the relevant requirements under Division 4, the Secretary must:
(a) refuse to approve the plan; and
(b) give the ship operator written notice of the refusal including reasons
for the refusal.
(3) In determining whether the plan adequately addresses the relevant
requirements under Division 4, the Secretary may take account of existing
circumstances as they relate to maritime transport security.
(4) If:
(a) the ship operator for a regulated Australian ship gives the Secretary
a ship security plan for the ship; and
(b) the Secretary does not approve, or refuse to approve, the plan within
the period of 90 days after the plan was given;
the Secretary is taken to have refused to approve the plan.
Note: A ship operator may apply to the Administrative
Appeals Tribunal for review of a decision to refuse to approve a ship security
plan under subsection (2) or (4): see section 201.
(1) If the Secretary approves the ship security plan, the plan comes into
force at the time specified in the notice of approval.
(2) However, if:
(a) the time specified in the notice is earlier than the time at which the
notice was given; or
(b) no time is specified in the notice as the time when the plan comes
into force;
the plan comes into force when the notice is given.
(3) The plan remains in force until:
(a) the plan is replaced under subsection 73(2); or
(b) the approval of the plan is cancelled under this Division.
(1) If:
(a) a ship security plan for a regulated Australian ship is in force;
and
(b) the Secretary is no longer satisfied that the plan adequately
addresses the relevant requirements under Division 4;
the Secretary may, by written notice given to the ship operator for the
ship, direct the ship operator to vary the plan.
(2) However, the Secretary must not give a direction under
subsection (1) unless the Secretary is satisfied that the plan, as varied,
would adequately address the relevant requirements under
Division 4.
(3) In the notice, the Secretary must:
(a) set out the variation; and
(b) specify the period within which the ship operator must give the
Secretary the plan as varied.
(4) If the ship operator does not give the Secretary the plan:
(a) varied in accordance with the direction; and
(b) within the specified period, or within any further period allowed by
the Secretary;
the Secretary must, by written notice given to the ship operator, cancel
the approval of the plan.
(1) If:
(a) the ship operator for a regulated Australian ship has given the
Secretary a ship security plan for the ship; and
(b) the ship operator for the ship gives the Secretary another plan for
the ship (the revised plan);
sections 70 and 71 apply in relation to the revised plan.
(2) If a revised plan for a regulated Australian ship comes into force, it
replaces any other plan for the ship in force at that time.
(1) If:
(a) a ship security plan for a regulated Australian ship (the
existing plan) is in force; and
(b) the Secretary is no longer satisfied that the existing plan adequately
addresses the relevant requirements under Division 4:
(i) because there is a change in the circumstances that relate to maritime
transport security; or
(ii) because there is a change in circumstances that could impact on
maritime transport security; or
(iii) for some other reason;
the Secretary may, by written notice given to the ship operator for the
ship, direct the ship operator to give the Secretary a revised plan under
section 73.
(2) The notice must specify the period within which the revised plan must
be given.
(3) If the ship operator does not give the Secretary the revised plan
within the specified period, or within any further period allowed by the
Secretary, the Secretary must, by written notice given to the ship operator,
cancel the approval of the existing plan.
If:
(a) a ship security plan for a regulated Australian ship (the
existing plan) has been in force for a period of 5 years;
and
(b) the Secretary has not approved a revised plan for the ship under
section 73 within that period;
the approval of the existing plan is cancelled by force of this
section.
If:
(a) a ship security plan for a regulated Australian ship is in force;
and
(b) the Secretary is no longer satisfied that the plan adequately
addresses the relevant requirements under Division 4; and
(c) the Secretary is satisfied that it is not appropriate to direct the
ship operator for the ship to:
(i) vary the plan under section 72; or
(ii) revise the plan under section 74;
the Secretary must, by written notice given to the ship operator, cancel
the approval of the plan.
(1) If:
(a) a ship security plan for a regulated Australian ship is in force;
and
(b) the number of demerit points prescribed by the regulations as the
number necessary for the Secretary to be able to cancel the approval of the plan
has been accumulated in respect of the ship;
the Secretary may, by written notice given to the ship operator for the
ship, cancel the approval of the plan.
Note: For the demerit points system, see Division 6 of
Part 11.
(2) Before cancelling the approval of a plan under subsection (1),
the Secretary may, by written notice given to the ship operator, request the
ship operator to show cause why the approval of the plan should not be
cancelled.
If:
(a) a ship security plan for a regulated Australian ship is in force;
and
(b) the ship operator for the ship makes a written request to the
Secretary for the approval of the plan to be cancelled;
the Secretary must, by written notice given to the ship operator, cancel
the approval of the plan.
A regulated Australian ship must have an ISSC.
(1) The ship operator for a regulated Australian ship commits an offence
if:
(a) the ship is being used for maritime transport; and
(b) there is no ISSC or interim ISSC in force for the ship.
Penalty: 200 penalty units.
(2) Subsection (1) does not apply if the ship operator has a
reasonable excuse.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(3) Subsection (1) is an offence of strict liability.
(1) The ship operator for a regulated Australian ship may apply to the
Secretary for an ISSC for the ship.
(2) The application must be in accordance with any requirements prescribed
in the regulations. The regulations may prescribe requirements in relation to
the form and content of the application, and the way in which the application is
made.
The Secretary must give a ship operator an ISSC for a regulated
Australian ship if:
(a) the ship operator has applied for an ISSC for the ship; and
(b) there is a ship security plan in force for the ship; and
(c) the ship is ISSC verified.
(1) A regulated Australian ship is ISSC verified
if:
(a) a maritime security inspector has inspected the ship; and
(b) the maritime security inspector has verified that the ship meets the
requirements determined in writing by the Secretary; and
(c) the period, determined in writing by the Secretary, within which the
ship must be next inspected has not ended.
Note: Sections 138 and 139 set out the ship inspection
powers of maritime security inspectors.
(2) In making a determination under subsection (1), the Secretary
must have regard to the obligations set out in the ISPS Code.
(3) If:
(a) there is an ISSC in force for a regulated Australian ship;
and
(b) a maritime security inspector inspects the ship; and
(c) the inspector finds that the ship does not meet the requirements
determined under paragraph (1)(b); and
(d) the ship does not meet those requirements within any period allowed in
writing by the inspector;
the ship is no longer ISSC verified.
If the Secretary gives an ISSC to the ship operator for a regulated
Australian ship, the ISSC comes into force when it is given and remains in force
until any of the following occurs:
(a) the Secretary cancels the ISSC;
(b) the ship operator is no longer the ship operator for the
ship;
(c) the period of 5 years after the ISSC is given expires.
The Secretary must, by written notice given to the ship operator for a
regulated Australian ship, cancel the ISSC for the ship if either of the
following occurs:
(a) there is no longer a ship security plan in force for the
ship;
(b) the ship is no longer ISSC verified.
(1) If:
(a) the ship operator for a regulated Australian ship has applied to the
Secretary for an ISSC for the ship; and
(b) there is a ship security plan in force for the ship; and
(c) the ship is not ISSC verified; and
(d) the Secretary reasonably believes that, were the ship to be inspected
as mentioned in subsection 83(1), the ship would be ISSC verified;
the Secretary may give the ship operator an interim ISSC for the
ship.
(2) If:
(a) the Secretary has given a ship operator an ISSC for a regulated
Australian ship; and
(b) while the ISSC is in force, another ship operator becomes the ship
operator for the ship;
the Secretary may give the other ship operator an interim ISSC for the
ship.
(3) An interim ISSC is in force for the period, not exceeding 6 months,
specified in the interim ISSC.
(1) The master of a regulated Australian ship commits an offence
if:
(a) the master makes a statement (whether orally, in a document or in any
other way); and
(b) the master does so knowing that the statement:
(i) is false or misleading; or
(ii) omits any matter or thing without which the statement is misleading;
and
(c) the statement is made in connection with whether an ISSC or interim
ISSC is in force for the ship; and
(d) any of the following subparagraphs applies:
(i) the statement is made to a maritime industry participant;
(ii) the statement is made to a person who is authorised by a Contracting
state to the SOLAS Convention to request information about, or in connection
with, whether a valid ISSC or interim ISSC is in force for the ship;
(iii) the statement is made to a person who is exercising powers or
performing functions under, or in connection with, a law of the
Commonwealth;
(iv) the statement is made in compliance or purported compliance with a
law of the Commonwealth.
Penalty: 50 penalty units.
(2) Absolute liability applies to each of the subparagraph (1)(d)(i),
(ii), (iii) and (iv) elements of the offence.
(3) Subsection (1) does not apply as a result of
subparagraph (1)(b)(i) if the statement is not false or misleading in a
material particular.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (3) (see subsection 13.3(3) of the Criminal
Code).
(4) Subsection (1) does not apply as a result of
subparagraph (1)(b)(ii) if the statement did not omit any matter or thing
without which the statement is misleading in a material particular.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (4) (see subsection 13.3(3) of the Criminal
Code).
(1) The Secretary may, by writing, delegate all or any of his or her
powers and functions under Part 4 to a person who:
(a) satisfies the criteria prescribed in the regulations; and
(b) is engaged by a recognised security organisation.
(2) The Secretary may determine, in writing, that an organisation is a
recognised security organisation.
(3) In exercising powers or functions delegated under subsection (1),
the delegate must comply with any directions of the Secretary.
(1) The Secretary may, by writing, authorise a person to whom powers and
functions can be delegated under subsection 88(1) to conduct inspections of
ships for the purposes of verifying that ships meet the requirements necessary
for ISSC verification.
(2) If a person authorised under subsection (1) conducts a ship
inspection, the person is taken to be a maritime security inspector for the
purposes of subsection 83(1).
Division 2 sets out requirements to be met by regulated foreign ships
and requires the ship operators for, and the masters of, those ships to
acknowledge certain communications.
Division 3 provides for the Secretary to give control directions to
regulated foreign ships to ensure that security standards are
maintained.
(1) The ship operator for a regulated foreign ship must:
(a) have a valid ISSC, or an approved ISSC equivalent, for the ship;
and
(b) ensure that the ship carries the required ship security
records.
Note: A ship is only a regulated foreign ship when it is in
Australian waters: see section 17.
(2) If the ship operator for a regulated foreign ship contravenes
subsection (1), the ship operator or the master of the ship may be given a
control direction under Division 3.
(3) An approved ISSC equivalent is a kind of certification
approved in writing by the Secretary as an alternative to an ISSC.
(1) The master of a regulated foreign ship, or a ship intending to enter
Australian waters that would, once it had done so, be a regulated foreign ship,
must provide pre-arrival information in accordance with the
regulations.
(2) The regulations may prescribe:
(a) the person or persons to whom pre-arrival information must be given;
and
(b) the circumstances in which pre-arrival information must be given;
and
(c) the form and manner in which pre-arrival information must be
given.
(3) Pre-arrival information is information of a kind
prescribed in the regulations that must be provided by a ship before the ship
enters one or more of the following:
(a) Australian waters;
(b) a security regulated port;
(c) a maritime security zone within a security regulated port;
(d) a port that is not a security regulated port.
(4) The regulations may provide that different pre-arrival information is
to be provided before entering different places or areas as mentioned in
paragraphs (3)(a) to (d).
(5) If the master of a ship contravenes subsection (1), the master or
the ship operator for the ship may be given a control direction under
Division 3.
(1) The master of a regulated foreign ship must allow a maritime security
inspector to board and inspect the ship in accordance with Division 2 of
Part 8.
Note: A ship is only a regulated foreign ship when it is in
Australian waters: see section 17.
(2) The master of a regulated foreign ship must provide a maritime
security inspector with any ship security records kept on the ship when
requested by the maritime security inspector to do so.
(3) If the master of a ship contravenes subsection (1) or (2), the
master or the ship operator for the ship may be given a control direction under
Division 3.
(1) This section sets out security measures that must be implemented by a
regulated foreign ship.
Note: A ship is only a regulated foreign ship when it is in
Australian waters: see section 17.
(2) Unless subsections (3) to (7) provide otherwise, the ship must,
at all times, implement ISPS level 1 measures.
(3) If maritime security level 2 is in force for the ship because the ship
is in a security regulated port where maritime security level 2 is in force (see
section 24), the ship must implement ISPS level 2 measures.
(4) If maritime security level 3 is in force for the ship because the ship
is in a security regulated port where maritime security level 3 is in force (see
section 24), the ship must implement ISPS level 3 measures.
(5) If the Secretary declares under subsection 22(2) that maritime
security level 2 is in force for the ship, the ship must implement ISPS level 2
measures.
(6) If the Secretary declares under subsection 22(2) that maritime
security level 3 is in force for the ship, the ship must implement ISPS level 3
measures.
(7) If:
(a) the ship is registered in another country (the flag
state); and
(b) the ship is directed by the flag state to implement a higher level of
security than would otherwise apply under this section;
the ship must comply with the direction.
(8) If a regulated foreign ship does not implement security measures in
accordance with subsections (2) to (7), the ship operator for, or the
master of, the ship may be given a control direction under
Division 3.
(1) ISPS level 1 measures are the measures that should,
under the ISPS Code, be implemented when maritime security level 1 is in
force.
(2) ISPS level 2 measures are the measures that should,
under the ISPS Code, be implemented when maritime security level 2 is in
force.
(3) ISPS level 3 measures are the measures that should,
under the ISPS Code, be implemented when maritime security level 3 is in
force.
(1) If the Secretary gives a security direction to a regulated foreign
ship under section 36, the ship must comply with the direction.
Note: A ship is only a regulated foreign ship when it is in
Australian waters: see section 17.
(2) If a regulated foreign ship does not comply with a security direction,
the ship operator for, or the master of, the ship may be given a control
direction under Division 3.
Note: In addition, the ship operator for, or the master of,
a security regulated ship may commit an offence if the ship fails to comply with
a security direction: see subsection 39(1).
(1) The operations of a regulated foreign ship must not hinder or obstruct
compliance with the maritime security plan of a maritime industry participant in
a way that compromises the security of the operations of the
participant.
(2) The operations of a regulated foreign ship must not hinder or obstruct
compliance with the ship security plan of a regulated Australian ship in a way
that compromises the security of the regulated Australian ship.
(3) If the operations of a regulated foreign ship compromise the security
of:
(a) the operations of a maritime industry participant; or
(b) a ship;
as mentioned in subsection (1) or (2), the ship operator for, or the
master of, the regulated foreign ship may be given a control direction under
Division 3.
Masters of ships
(1) The master of a regulated foreign ship commits an offence
if:
(a) the master is notified by the Secretary or a port operator that
maritime security level 2 or 3 is in force for the ship; and
(b) the master fails to acknowledge the notification to the
Secretary.
Penalty: 25 penalty units.
(2) The master of a regulated foreign ship commits an offence
if:
(a) the master is given:
(i) a security direction by the Secretary that relates to the operations
of the ship; or
(ii) a control direction that relates to the ship; and
(b) the master fails to acknowledge the direction to the
Secretary.
Penalty: 25 penalty units.
Ship operators
(3) The ship operator for a regulated foreign ship commits an offence
if:
(a) the ship operator is notified by the Secretary that maritime security
level 2 or 3 is in force for the ship; and
(b) the ship operator fails to acknowledge the notification to the
Secretary.
Penalty: 100 penalty units.
(4) The ship operator for a regulated foreign ship commits an offence
if:
(a) the ship operator is given:
(i) a security direction by the Secretary that relates to the operations
of the ship; or
(ii) a control direction that relates to the ship; and
(b) the ship operator fails to acknowledge the direction to the
Secretary.
Penalty: 100 penalty units.
(5) Subsections (1) to (4) are offences of strict
liability.
(1) The Secretary may give a direction to:
(a) the ship operator for a regulated foreign ship; or
(b) the master of the ship;
requiring the ship operator or master to take specified action, or refrain
from taking specified action, in relation to the ship.
(2) A direction under subsection (1) is a control
direction.
(3) However, the Secretary must not give a control direction unless the
direction is:
(a) necessary for ensuring compliance with Division 2 of this Part;
or
(b) a direction of a kind that can be given, under Chapter XI-2 of the
SOLAS Convention or the ISPS Code, by a port state to a foreign flagged
ship.
(4) The action that a ship operator or master may be directed to take
under subsection (1) includes, but is not limited to, the
following:
(a) removing the ship from Australian waters;
(b) removing the ship from a security regulated port;
(c) moving the ship within a security regulated port;
(d) holding the ship in a particular position for a specified period or
until a specified event occurs;
(e) taking particular actions, or ensuring that particular actions are
taken, on board the ship;
(f) allowing a maritime security inspector on board the ship to inspect
the ship or ship security records carried by the ship.
(5) A control direction has no effect until the Secretary commits the
direction to writing.
Note: This requires the Secretary to have a written record
of a direction that is given orally.
(6) The direction must not require the payment of money to the Secretary
(or any other person) other than an amount of money that is already recoverable
at law.
(7) The regulations may prescribe requirements for, or in relation to, the
giving of control directions.
(1) The ship operator for a regulated foreign ship must not engage in
conduct that contravenes a control direction that relates to the ship.
(2) If a ship operator contravenes subsection (1), the ship operator
may be subject to an injunction under section 197.
(3) The master of a regulated foreign ship must not engage in conduct that
contravenes a control direction that relates to the ship.
(4) If the master of a ship contravenes subsection (3), the master
may be subject to an injunction under section 197.
Maritime security zones are used to subject areas within ports and on ships
to additional security requirements.
Division 2 allows the Secretary to establish one or more port security
zones within a security regulated port.
Division 3 allows the Secretary to declare that a ship security zone
is to operate around a security regulated ship while it is in a security
regulated port.
Division 4 allows the Secretary to establish one or more on-board
security zones on a regulated Australian ship.
The regulations may prescribe different types of port, ship and on-board
security zones and the requirements to be met in relation to each type of
zone.
(1) The Secretary may, by written notice given to the port operator for a
security regulated port, establish one or more port security zones
within the port. Each port security zone must be of a type prescribed under
section 103.
(2) The notice must include a map of the port that shows the boundaries of
the port security zones.
(3) If the Secretary establishes a port security zone under
subsection (1), the Secretary must, by writing, notify the establishment to
each maritime industry participant (other than the port operator) who controls
an area included within the zone. The notice must include a map that shows the
boundaries of the zone.
(4) The purpose of port security zones is to subject those zones to
additional security requirements.
(1) The regulations may prescribe different types of port security
zones.
(2) The purposes for which different types of port security zones may be
prescribed include, but are not limited to, the following:
(a) controlling the movement of people or ships or any other thing within
security regulated ports;
(b) restricting access to areas within security regulated ports;
(c) providing cleared areas within security regulated ports;
(d) preventing interference with ships;
(e) preventing interference with people or goods that have been, or are to
be, transported by ship;
(f) ensuring the security of the following:
(i) fuel storage areas;
(ii) cargo and baggage handling facilities;
(iii) navigational aids;
(iv) critical installations.
(3) An installation is a critical installation if
interference with, or damage to, the installation could put the operation of a
port or a ship at risk.
In establishing a port security zone, the Secretary must have regard to
the purpose of the zone, and take into account:
(a) the existing physical features of the port; and
(b) the existing operational features of the port; and
(c) the views of:
(i) the port operator; and
(ii) each person who controls an area of land (including any buildings on
the land) that is to be included within the boundaries of the zone.
(1) The regulations may, for the purposes of safeguarding against unlawful
interference with maritime transport, prescribe requirements in relation to each
type of port security zone.
(2) The following matters may be dealt with by regulations made under
subsection (1):
(a) access to port security zones (including conditions of access, the
issue and use of security passes and other identification systems);
(b) the identification or marking of port security zones;
(c) the movement, management or operation of ships and other vessels and
vehicles and other things in port security zones;
(d) the maintenance of the integrity of port security zones;
(e) the management of people and goods (including the management of
unaccompanied, unidentified or suspicious goods) in port security
zones;
(f) the management (including the sale or disposal) of ships, other
vessels, vehicles or goods abandoned in port security zones;
(g) when prescribed requirements are to be met.
(3) Regulations made under this section may prescribe penalties for
offences against those regulations. The penalties must not exceed:
(a) for an offence committed by a port operator, ship operator or port
facility operator—200 penalty units; or
(b) for an offence committed by a maritime industry participant, other
than a participant covered by paragraph (a)—100 penalty units;
or
(c) for an offence committed by any other person—50 penalty
units.
Note: If a body corporate is convicted of an offence against
regulations made under this section, subsection 4B(3) of the Crimes Act
1914 allows a court to impose fines of up to 5 times the penalties stated
above.
(1) The Secretary may, by written notice given to:
(a) the ship operator for, or the master of, a security regulated ship;
and
(b) the port operator for a security regulated port;
declare that a ship security zone is to operate around the
ship while the ship is within the port. The ship security zone must be of a type
prescribed under section 107.
(2) The purpose of ship security zones is to protect ships within those
zones from unlawful interference with maritime transport.
(3) To avoid doubt, if:
(a) a ship security zone is operating around a ship; and
(b) a person or thing is on board the ship;
the person or thing is not in the ship security zone.
Note: The Secretary may establish on-board security zones on
regulated Australian ships: see subsection 110(1).
(1) The regulations may prescribe different types of ship security
zones.
(2) The purposes for which different types of ship security zones may be
prescribed include, but are not limited to, the following:
(a) limiting contact with security regulated ships;
(b) controlling the movement of ships and other things in the vicinity of
a security regulated ship;
(c) providing cleared areas around security regulated ships;
(d) preventing interference with security regulated ships;
(e) preventing interference with people or goods that have been, or are to
be, transported by security regulated ships.
In declaring that a ship security zone is to operate around a security
regulated ship, the Secretary must have regard to the purpose of the zone, and
take into account:
(a) the operational features of the ship; and
(b) the existing physical features of the port or ports, and related port
services, to be used by the ship; and
(c) the existing operational features of the port or ports, and related
port services, to be used by the ship.
(1) The regulations may, for the purposes of safeguarding against unlawful
interference with maritime transport, prescribe requirements in relation to each
type of ship security zone.
(2) The following matters may be dealt with by regulations made under
subsection (1):
(a) access to ship security zones (including conditions of access, the
issue and use of security passes and other identification systems);
(b) the identification or marking of ship security zones;
(c) the movement, management or operation of ships and other vessels and
vehicles and other things in ship security zones;
(d) the maintenance of the integrity of ship security zones;
(e) the management of people and goods (including the management of
unaccompanied, unidentified or suspicious goods) in ship security
zones;
(f) the management (including the sale or disposal) of things abandoned in
ship security zones;
(g) when prescribed requirements are to be met.
(3) Regulations made under this section may prescribe penalties for
offences against those regulations. The penalties must not exceed:
(a) for an offence committed by a port operator, ship operator or port
facility operator—200 penalty units; or
(b) for an offence committed by a maritime industry participant, other
than a participant covered by paragraph (a)—100 penalty units;
or
(c) for an offence committed by any other person—50 penalty
units.
Note: If a body corporate is convicted of an offence against
regulations made under this section, subsection 4B(3) of the Crimes Act
1914 allows a court to impose fines of up to 5 times the penalties stated
above.
(1) The Secretary may, by written notice given to the ship operator for a
regulated Australian ship, establish one or more on-board security
zones on the ship. Each on-board security zone must be of a type
prescribed under section 111.
(2) The notice must identify the areas or parts of the ship to be covered
by the on-board security zone or zones.
(3) The purpose of on-board security zones is to subject those zones to
additional security requirements.
(1) The regulations may prescribe different types of on-board security
zones.
(2) The purposes for which different types of on-board security zones may
be prescribed include, but are not limited to, the following:
(a) controlling access to areas or parts of regulated Australian
ships;
(b) maintaining the security of areas or parts of regulated Australian
ships;
(c) providing cleared areas on regulated Australian ships;
(d) preventing interference with the operation of regulated Australian
ships;
(e) preventing interference with people or goods that are being, have
been, or are to be, transported by regulated Australian ships.
In establishing an on-board security zone on a regulated Australian ship,
the Secretary must:
(a) have regard to the purpose of the zone; and
(b) take into account:
(i) the operational features of the ship; and
(ii) the views of the ship operator for the ship.
(1) The regulations may, for the purposes of safeguarding against unlawful
interference with maritime transport, prescribe requirements in relation to each
type of on-board security zone.
(2) The following matters may be dealt with by regulations made under
subsection (1):
(a) access to on-board security zones (including conditions of access, the
issue and use of security passes and other identification systems);
(b) the identification or marking of on-board security zones;
(c) the movement, management or operation of vehicles and other things in
on-board security zones;
(d) the maintenance of the integrity of on-board security zones;
(e) the management of people and goods (including the management of
unaccompanied, unidentified or suspicious goods) in on-board security
zones;
(f) the management (including the sale or disposal) of things abandoned in
on-board security zones;
(g) when prescribed requirements are to be met.
(3) Regulations made under this section may prescribe penalties for
offences against those regulations. The penalties must not exceed:
(a) for an offence committed by a port operator, ship operator or port
facility operator—200 penalty units; or
(b) for an offence committed by a maritime industry participant, other
than a participant covered by paragraph (a)—100 penalty units;
or
(c) for an offence committed by any other person—50 penalty
units.
Note: If a body corporate is convicted of an offence against
regulations made under this section, subsection 4B(3) of the Crimes Act
1914 allows a court to impose fines of up to 5 times the penalties stated
above.
This Part imposes requirements in relation to screening and clearing,
weapons and prohibited items.
A person may be required to be receive clearance to enter certain areas,
use certain vehicles or board certain vessels. This will usually involve
screening. Vehicles, goods and vessels may also be screened. Division 2
deals with screening and clearing.
Divisions 3 and 4 impose requirements in relation to the carriage and
possession of weapons and prohibited items in maritime security zones and on
board regulated Australian ships. There are also prohibitions on carrying
weapons and prohibited items through screening points.
(1) A person is screened when the person undergoes screening
in accordance with regulations made under section 119 in preparation
for:
(a) boarding a vessel; or
(b) entering an area within a security regulated port.
Note: Division 6 of Part 8 deals with the
screening officers.
(2) A person receives clearance if:
(a) after being screened, the person is allowed, by a screening officer,
to pass through the screening point; or
(b) the person passes through the screening point and the regulations
provide, or the Secretary by written notice provides, that the person may pass
through that screening point without being screened; or
(c) the person enters a cleared area or boards a cleared vessel other than
through a screening point and the regulations provide, or the Secretary by
written notice provides, that the person may enter the area or board the vessel
that way.
(3) A person is cleared at a particular time if:
(a) the person has received clearance; and
(b) since receiving clearance, the person has at all times been in a
cleared area or on a cleared vessel.
(4) For the purposes of paragraph (3)(b), a person is taken to be in
a cleared area if the person is under the supervision or control prescribed in
the regulations.
(5) To avoid doubt:
(a) a notice under paragraph (2)(b) may provide that a class of
persons may pass through a screening point without being screened; and
(b) a notice under paragraph (2)(c) may provide that a class of
persons may enter a cleared area or board a cleared vessel other than through a
screening point.
(1) Goods are screened when the goods undergo screening in
accordance with regulations made under section 119 in preparation
for:
(a) being taken on board a vessel; or
(b) being taken into an area within a security regulated port.
(2) Goods receive clearance if:
(a) after being screened, the goods are allowed, by a screening officer,
to pass through the screening point; or
(b) the goods pass through the screening point and the regulations
provide, or the Secretary by written notice provides, that the goods may pass
through that screening point without being screened; or
(c) the goods enter a cleared area or are taken on board a cleared vessel
other than through a screening point and the regulations provide, or the
Secretary by written notice provides, that the goods may enter the area or be
taken on board the vessel that way.
(3) Goods are cleared at a particular time if:
(a) the goods have received clearance; and
(b) since receiving clearance, the goods have at all times been in a
cleared area or on a cleared vessel.
(4) For the purposes of paragraph (3)(b), goods are taken to be in a
cleared area if the goods are under the supervision or control prescribed in the
regulations.
(5) To avoid doubt:
(a) a notice under paragraph (2)(b) may provide that a class of goods
may pass through a screening point without being screened; and
(b) a notice under paragraph (2)(c) may provide that a class of goods
may enter a cleared area or be taken on board a cleared vessel other than
through a screening point.
(1) A vehicle is screened when the vehicle undergoes
screening in accordance with regulations made under section 119 in
preparation for:
(a) being taken on board a vessel; or
(b) entering an area within a security regulated port.
(2) A vehicle receives clearance if:
(a) after being screened, the vehicle is allowed, by a screening officer,
to pass through the screening point; or
(b) the vehicle passes through the screening point and the regulations
provide, or the Secretary by written notice provides, that the vehicle may pass
through that screening point without being screened; or
(c) the vehicle enters a cleared area or goes on board a cleared vessel
other than through a screening point and the regulations provide, or the
Secretary by written notice provides, that the vehicle may enter the area or be
taken on board the vessel that way.
(3) A vehicle is cleared at a particular time if:
(a) the vehicle has received clearance; and
(b) since receiving clearance, the vehicle has at all times been in a
cleared area or on a cleared vessel.
(4) For the purposes of paragraph (3)(b), a vehicle is taken to be in
a cleared area if the vehicle is under the supervision or control prescribed in
the regulations.
(5) To avoid doubt:
(a) a notice under paragraph (2)(b) may provide that a class of
vehicles may pass through a screening point without being screened;
and
(b) a notice under paragraph (2)(c) may provide that a class of
vehicles may enter a cleared area or be taken on board a cleared vessel other
than through a screening point.
(1) A vessel is screened when the vessel undergoes screening
in accordance with regulations made under section 119 in preparation
for:
(a) being taken on board another vessel; or
(b) entering an area within a security regulated port.
(2) A vessel receives clearance if:
(a) after being screened, the vessel is allowed, by a screening officer,
to pass through the screening point; or
(b) the vessel passes through the screening point and the regulations
provide, or the Secretary by written notice provides, that the vessel may pass
through that screening point without being screened; or
(c) the vessel enters a cleared area or is taken on board a cleared vessel
other than through a screening point and the regulations provide, or the
Secretary by written notice provides, that the vessel may enter the area or be
taken on board the other vessel that way.
(3) A vessel is cleared at a particular time if:
(a) the vessel has received clearance; and
(b) since receiving clearance, the vessel has at all times been in a
cleared area or on a cleared vessel.
(4) For the purposes of paragraph (3)(b), a vessel is taken to be in
a cleared area if the vessel is under the supervision or control prescribed in
the regulations.
(5) To avoid doubt:
(a) a notice under paragraph (2)(b) may provide that a class of
vessels may pass through a screening point without being screened; and
(b) a notice under paragraph (2)(c) may provide that a class of
vessels may enter a cleared area or be taken on board a cleared vessel other
than through a screening point.
(1) The regulations may, for the purposes of safeguarding against unlawful
interference with maritime transport, prescribe requirements in relation to one
or more of the following:
(a) screening;
(b) receiving clearance;
(c) the circumstances in which persons, goods, vehicles or vessels are
required to be cleared.
(2) The following matters may be dealt with by regulations made under
subsection (1):
(a) the persons who are authorised or required to conduct
screening;
(b) the things to be detected by screening;
(c) the procedures for dealing with things detected by
screening;
(d) the circumstances in which persons must be cleared in order
to:
(i) board a vessel; or
(ii) enter an area within a security regulated port;
(e) the circumstances in which stores must be cleared in order to be
taken:
(i) on board a vessel; or
(ii) into an area within a security regulated port;
(f) the circumstances in which baggage must be cleared in order to be
taken:
(i) on board a vessel; or
(ii) into an area within a security regulated port;
(g) the circumstances in which cargo must be cleared in order to be
taken:
(i) on board a vessel; or
(ii) into an area within a security regulated port;
(h) the circumstances in which vehicles must be cleared in order to be
taken:
(i) on board a vessel; or
(ii) into an area within a security regulated port;
(i) the circumstances in which vessels must be cleared in order to be
taken:
(i) on board another vessel; or
(ii) into an area within a security regulated port;
(j) the places where screening is to be conducted;
(k) the methods, techniques and equipment to be used for
screening;
(l) the notices that are to be displayed in places where screening is to
be conducted;
(m) the supervision and control measures for ensuring that persons, goods,
vehicles and vessels that have received clearance remain cleared on vessels that
are not cleared vessels or in areas that are not cleared areas.
Note: Regulations made under subsection 165(2) must
prescribe training and qualification requirements for screening officers and set
out requirements in relation to the form, issue and use of identity
cards.
(3) Regulations made under paragraph (2)(a) or (2)(k) may provide
that some or all of the matters set out in that paragraph are to be specified in
written notices made by the Secretary. Such a notice may provide that the notice
is only to be given to the persons, or classes of persons, specified in the
notice.
(4) Regulations made under this section may prescribe penalties for
offences against those regulations. The penalties must not exceed:
(a) for an offence committed by a port operator, ship operator or port
facility operator—200 penalty units; or
(b) for an offence committed by a maritime industry participant, other
than a participant covered by paragraph (a)—100 penalty units;
or
(c) for an offence committed by any other person—50 penalty
units.
Note: If a body corporate is convicted of an offence against
regulations made under this section, subsection 4B(3) of the Crimes Act
1914 allows a court to impose fines of up to 5 times the penalties stated
above.
Strict liability
(1) A person commits an offence if:
(a) the person is in a maritime security zone; and
(b) the person has a weapon in his or her possession; and
(c) the person is not:
(i) a law enforcement officer; or
(ii) a member of the Australian Defence Force who is on duty; or
(iii) authorised by the regulations, or permitted in writing by the
Secretary, to have the weapon in his or her possession in the maritime security
zone.
Penalty: 100 penalty units.
(2) Subsection (1) is an offence of strict liability.
General
(3) A person commits an offence if:
(a) the person is in a maritime security zone; and
(b) the person has a weapon in his or her possession; and
(c) the person is not:
(i) a law enforcement officer; or
(ii) a member of the Australian Defence Force who is on duty; or
(iii) authorised by the regulations, or permitted in writing by the
Secretary, to have the weapon in his or her possession in the maritime security
zone.
Penalty: Imprisonment for 7 years.
Strict liability
(1) A person commits an offence if:
(a) the person passes through a screening point; and
(b) the person has a weapon in his or her possession when he or she passes
through the screening point; and
(c) the person is not:
(i) a law enforcement officer; or
(ii) authorised by the regulations, or permitted in writing by the
Secretary, to pass through the screening point with the weapon in his or her
possession.
Penalty: 100 penalty units.
(2) Subsection (1) is an offence of strict liability.
General
(3) A person commits an offence if:
(a) the person passes through a screening point; and
(b) the person has a weapon in his or her possession when he or she passes
through the screening point; and
(c) the person is not:
(i) a law enforcement officer; or
(ii) authorised by the regulations, or permitted in writing by the
Secretary, to pass through the screening point with the weapon in his or her
possession.
Penalty: Imprisonment for 7 years.
(1) A person commits an offence if:
(a) the person is on board a regulated Australian ship; and
(b) the person:
(i) carries a weapon; or
(ii) otherwise has in his or her possession a weapon that is located at a
place that is accessible to the person; and
(c) the person is not a law enforcement officer; and
(d) the carriage or possession of the weapon is not authorised by the
regulations or permitted in writing by the Secretary; and
(e) the weapon is not under the control of the master of the
ship.
Penalty: 100 penalty units.
(2) Subsection (1) is an offence of strict liability.
A person commits an offence if:
(a) the person is on board a regulated Australian ship; and
(b) the person:
(i) carries a weapon; or
(ii) otherwise has in his or her possession a weapon that is located at a
place that is accessible to the person; and
(c) the person is not a law enforcement officer; and
(d) the carriage or possession of the weapon is not authorised by the
regulations or permitted in writing by the Secretary; and
(e) the weapon is not under the control of the master of the
ship.
Penalty: Imprisonment for 7 years.
(1) A person commits an offence if:
(a) the person is in a maritime security zone or on board a regulated
Australian ship; and
(b) the person is authorised or permitted to have a weapon in his or her
possession or under his or her control; and
(c) the person fails to comply with any conditions relating to the
authorisation or permission.
Penalty: 50 penalty units.
(2) Subsection (1) does not apply if the person has a reasonable
excuse.
(3) Subsection (1) is an offence of strict liability.
To avoid doubt, for the purposes of this Division, the Secretary may give
permission in relation to particular conduct by giving permission to a class of
persons.
(1) The regulations may, for the purposes of safeguarding against unlawful
interference with maritime transport, prescribe requirements in relation to the
carriage and use of weapons in a maritime security zone or on board a regulated
Australian ship.
(2) The following matters may be dealt with by regulations made under
subsection (1):
(a) authorising the carriage of weapons in a maritime security zone or on
board a regulated Australian ship;
(b) dealing with a person in a maritime security zone or on board a
regulated Australian ship who carries or uses a weapon, or is suspected of
carrying or using a weapon, unlawfully;
(c) dealing with a weapon surrendered by a person in a maritime security
zone or on board a regulated Australian ship.
(3) Regulations made under this section may prescribe penalties for
offences against those regulations. The penalties must not exceed:
(a) for an offence committed by a port operator, ship operator or port
facility operator—200 penalty units; or
(b) for an offence committed by a maritime industry participant, other
than a participant covered by paragraph (a)—100 penalty units;
or
(c) for an offence committed by any other person—50 penalty
units.
Note: If a body corporate is convicted of an offence against
regulations made under this section, subsection 4B(3) of the Crimes Act
1914 allows a court to impose fines of up to 5 times the penalties stated
above.
Strict liability
(1) A person commits an offence if:
(a) the person is in a maritime security zone; and
(b) the maritime security zone is of a kind prescribed in the regulations
for the purposes of this paragraph; and
(c) the person has a prohibited item in his or her possession;
and
(d) the person is not:
(i) a law enforcement officer, a maritime security guard or a maritime
security inspector; or
(ii) a member of the Australian Defence Force who is on duty; or
(iii) authorised by the regulations, or permitted in writing by the
Secretary, to have the prohibited item in his or her possession in the maritime
security zone.
Penalty: 20 penalty units.
(2) Subsection (1) is an offence of strict liability.
General
(3) A person commits an offence if:
(a) the person is in a maritime security zone; and
(b) the maritime security zone is of a kind prescribed in the regulations
for the purposes of this paragraph; and
(c) the person has a prohibited item in his or her possession;
and
(d) the person is not:
(i) a law enforcement officer, a maritime security guard or a maritime
security inspector; or
(ii) a member of the Australian Defence Force who is on duty; or
(iii) authorised by the regulations, or permitted in writing by the
Secretary, to have the prohibited item in his or her possession in the maritime
security zone.
Penalty: Imprisonment for 2 years.
Strict liability
(1) A person commits an offence if:
(a) the person passes through a screening point; and
(b) the person has a prohibited item in his or her possession when he or
she passes through the screening point; and
(c) the person is not:
(i) a law enforcement officer, a maritime security guard or a maritime
security inspector; or
(ii) authorised by the regulations, or permitted in writing by the
Secretary, to pass through the screening point with the prohibited item in his
or her possession.
Penalty: 20 penalty units.
(2) Subsection (1) is an offence of strict liability.
General
(3) A person commits an offence if:
(a) the person passes through a screening point; and
(b) the person has a prohibited item in his or her possession when he or
she passes through the screening point; and
(c) the person is not:
(i) a law enforcement officer, a maritime security guard or a maritime
security inspector; or
(ii) authorised by the regulations, or permitted in writing by the
Secretary, to pass through the screening point with the prohibited item in his
or her possession.
Penalty: Imprisonment for 2 years.
(1) A person commits an offence if:
(a) the person is on board a regulated Australian ship; and
(b) the person:
(i) carries a prohibited item; or
(ii) otherwise has in his or her possession a prohibited item that is
located at a place that is accessible to the person; and
(c) the person is not a law enforcement officer, a maritime security guard
or a maritime security inspector; and
(d) the carriage or possession of the prohibited item is not authorised by
the regulations or permitted in writing by the Secretary; and
(e) the prohibited item is not under the control of the master of the
ship.
Penalty: 20 penalty units.
(2) Subsection (1) is an offence of strict liability.
A person commits an offence if:
(a) the person is on board a regulated Australian ship; and
(b) the person:
(i) carries a prohibited item; or
(ii) otherwise has in his or her possession a prohibited item that is
located at a place that is accessible to the person; and
(c) the person is not a law enforcement officer, a maritime security guard
or a maritime security inspector; and
(d) the carriage or possession of the prohibited item is not authorised by
the regulations or permitted in writing by the Secretary; and
(e) the prohibited item is not under the control of the master of the
ship.
Penalty: Imprisonment for 2 years.
(1) A person commits an offence if:
(a) the person is in a maritime security zone or on board a regulated
Australian ship; and
(b) the person is authorised or permitted to have a prohibited item in his
or her possession or under his or her control; and
(c) the person fails to comply with any conditions relating to the
authorisation or permission.
Penalty: 50 penalty units.
(2) Subsection (1) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(3) Subsection (1) is an offence of strict liability.
To avoid doubt, for the purposes of this Division, the Secretary may give
permission in relation to particular conduct by giving permission to a class of
persons.
(1) The regulations may, for the purposes of safeguarding against unlawful
interference with maritime transport, prescribe requirements in relation to the
carriage and use of prohibited items in a maritime security zone or on board a
regulated Australian ship.
(2) The following matters may be dealt with by regulations made under
subsection (1):
(a) authorising the carriage of prohibited items in a maritime security
zone or on board a regulated Australian ship;
(b) dealing with a person in a maritime security zone or on board a
regulated Australian ship who carries or uses a prohibited item, or is suspected
of carrying or using a prohibited item, unlawfully;
(c) dealing with a prohibited item surrendered by a person in a maritime
security zone or on board a regulated Australian ship.
(3) Regulations made under this section may prescribe penalties for
offences against those regulations. The penalties must not exceed:
(a) for an offence committed by a port operator, ship operator or port
facility operator—200 penalty units; or
(b) for an offence committed by a maritime industry participant, other
than a participant covered by paragraph (a)—100 penalty units;
or
(c) for an offence committed by any other person—50 penalty
units.
Note: If a body corporate is convicted of an offence against
regulations made under this section, subsection 4B(3) of the Crimes Act
1914 allows a court to impose fines of up to 5 times the penalties stated
above.
This Part sets out the powers of the following:
(a) maritime security inspectors;
(b) duly authorised officers;
(c) law enforcement officers;
(d) maritime security guards;
(e) screening officers.
Employees in the Department and law enforcement officers can be appointed
as maritime security inspectors. Other persons who meet criteria prescribed in
the regulations may also be appointed as maritime security inspectors.
Maritime security inspectors are able to conduct ISSC inspections. They can
also inspect ships, and the premises and operations of maritime industry
participants, to ensure compliance with this Act.
There are special rules for some kinds of inspections. In particular, a
maritime security inspector must have a ship inspection warrant to inspect
private living areas on a ship.
(1) The Secretary may appoint:
(a) an APS employee in the Department; or
(b) a law enforcement officer; or
(c) a person who satisfies the criteria prescribed in the
regulations;
to be a maritime security inspector.
(2) The appointment must be in writing.
(1) The Secretary must issue each maritime security inspector with an
identity card.
(2) The regulations may set out requirements in relation to the form,
issue and use of identity cards.
(3) The regulations may provide that the identity card may be
combined with another identity card.
(1) A maritime security inspector may inspect:
(a) a regulated Australian ship; and
(b) the ship security records for the ship; and
(c) any other document relating to the security of the ship;
for the purposes of determining whether the ship meets the requirements
necessary for ISSC verification.
Note: See subsections 83(1) and (3) for the meaning of
ISSC verified.
(2) In exercising a power under this section, a maritime security
inspector must not subject a person to greater indignity than is necessary and
reasonable for the exercise of the power.
(1) A maritime security inspector may exercise the powers set out in
subsection (2) for the following purposes:
(a) determining whether a person or a ship is complying with this
Act;
(b) investigating a possible contravention of this Act.
(2) For the purposes set out in subsection (1), a maritime security
inspector may do one or more of the following:
(a) board and inspect a security regulated ship (including any restricted
access area on the ship);
(b) inspect and photograph equipment on the ship;
(c) observe and record operating procedures for the ship (whether carried
out by the crew or some other person);
(d) discuss those procedures with a person carrying them out or with
another maritime industry participant;
(e) inspect, photograph or copy one or more of the following:
(i) the ship’s ISSC;
(ii) a ship security record for the ship;
(iii) a document or record held on the ship that relates to a passenger or
an item of cargo;
(iv) in the case of a regulated Australian ship—any document that
relates to the security of the ship;
(f) operate equipment on a security regulated ship for the purposes of
gaining access to a document or record relating to the ship.
(3) In exercising a power under this section, a maritime security
inspector must not subject a person to greater indignity than is necessary and
reasonable for the exercise of the power.
Operational areas
(1) A maritime security inspector may exercise a power mentioned in
section 138 or 139 in an operational area of a ship:
(a) if the power is exercised within the boundaries of a security
regulated port—at any time and without notice; or
(b) otherwise—after giving the ship operator for, or the master of,
the ship concerned reasonable notice.
Private living areas
(2) A maritime security inspector may exercise a power mentioned in
section 138 or 139 in a private living area of a ship if:
(a) both the master and any person or persons who occupy the private
living area consent to the inspection; or
(b) the inspector has a warrant, issued under section 144, to search
the private living area.
(3) In addition, a maritime security inspector may only exercise a power
mentioned in section 138 or 139 in a private living area of a ship if the
inspector is accompanied by the master of the ship or a person nominated by the
master.
Definitions
(4) A private living area on a ship is an area:
(a) used for the purposes of providing accommodation for passengers or
crew of the ship; and
(b) to which neither all passengers nor all crew have general
access.
(5) An operational area on a ship is an area that is not a
private living area.
(1) A maritime security inspector may exercise the powers set out in
subsection (2) for the following purposes:
(a) determining whether a person or a ship is complying with this
Act;
(b) investigating a possible contravention of this Act.
(2) For the purposes set out in subsection (1), a maritime security
inspector may do one or more of the following:
(a) enter and inspect:
(i) any area, building (other than a residence), vehicle or vessel under
the control of a maritime industry participant; or
(ii) if a maritime industry participant operates from a residence or a
part of a residence—the residence or the part of the residence from which
the participant operates;
(b) inspect equipment in a place, vehicle or vessel mentioned in
paragraph (a);
(c) observe the operating procedures of a maritime industry
participant;
(d) discuss those procedures with an employee of the maritime industry
participant or with another maritime industry participant;
(e) inspect, photograph or copy a document or record made or kept by a
maritime industry participant;
(f) operate equipment at a place mentioned in paragraph (a) for the
purposes of gaining access to a document or record made or kept by a maritime
industry participant.
(3) However, in exercising a power under this section, a maritime security
inspector must not subject a person to greater indignity than is necessary and
reasonable for the exercise of the power.
A maritime security inspector may exercise a power mentioned in
section 141:
(a) if the power is exercised within the boundaries of a security
regulated port—at any time and without notice; or
(b) otherwise—after giving the maritime industry participant
concerned reasonable notice.
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct hinders or obstructs a maritime security inspector in the
exercise of a power in accordance with this Division.
Penalty: 50 penalty units.
(2) Subsection (1) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(3) Subsection (1) is an offence of strict liability.
Application for warrant
(1) A maritime security inspector may apply to a magistrate for a warrant
to inspect a private living area on a ship.
Issue of warrant
(2) The magistrate may issue the warrant if the magistrate is satisfied,
by information on oath or affirmation, that it is necessary to inspect the
private living area for one or more of the following purposes:
(a) determining whether the ship meets the requirements necessary for ISSC
verification;
(b) determining whether a person or a ship is complying with this
Act;
(c) investigating a possible contravention of this Act.
(3) However, the magistrate must not issue the warrant unless the maritime
security inspector or some other person has given to the magistrate, either
orally or by affidavit, such further information (if any) as the magistrate
requires concerning the grounds on which the issue of the warrant is being
sought.
Content of warrant
(4) The warrant must:
(a) authorise the maritime security inspector to inspect the private
living area, using such assistance and such force to enter the area as is
necessary and reasonable; and
(b) state whether the inspection is authorised to be made at any time of
the day or night or during specified hours of the day or night; and
(c) specify the day (not more than one week after the issue of the
warrant) on which the warrant ceases to have effect; and
(d) state the purpose for which the warrant is issued.
Application for warrant
(1) If, in an urgent case, a maritime security inspector considers it
necessary to do so, the maritime security inspector may apply to a magistrate by
telephone, fax or other electronic means for a warrant under
section 144.
(2) The magistrate may:
(a) require communication by voice to the extent that it is practicable in
the circumstances; and
(b) make a recording of the whole or any part of any such communication by
voice.
(3) Before applying for the warrant, the maritime security inspector must
prepare an information of the kind mentioned in subsection 144(2) that sets out
the grounds on which the warrant is sought.
(4) If it is necessary to do so, the maritime security inspector may apply
for the warrant before the information is sworn or affirmed.
Issue of warrant
(5) If the magistrate is satisfied:
(a) after having considered the terms of the information; and
(b) after having received such further information (if any) as the
magistrate requires concerning the grounds on which the issue of the warrant is
being sought;
that there are reasonable grounds for issuing the warrant, the magistrate
may complete and sign the same warrant that the magistrate would issue under
section 144 if the application had been made under that section.
Obligations of magistrate and maritime security inspector once warrant
issued
(6) If the magistrate completes and signs the warrant:
(a) the magistrate must:
(i) tell the maritime security inspector what the terms of the warrant
are; and
(ii) tell the maritime security inspector the day on which and the time at
which the warrant was signed; and
(iii) tell the maritime security inspector the day (not more than one week
after the magistrate completes and signs the warrant) on which the warrant
ceases to have effect; and
(iv) record on the warrant the reasons for issuing the warrant;
and
(b) the maritime security inspector must:
(i) complete a form of warrant in the same terms as the warrant completed
and signed by the magistrate; and
(ii) write on the form the name of the magistrate and the day on which and
the time at which the warrant was signed.
(7) The maritime security inspector must also, not later than the day
after the day of expiry or execution of the warrant, whichever is the earlier,
send to the magistrate:
(a) the form of warrant completed by the maritime security inspector;
and
(b) the information referred to in subsection (3), which must have
been duly sworn or affirmed.
(8) When the magistrate receives those documents, the magistrate
must:
(a) attach them to the warrant that the magistrate completed and signed;
and
(b) deal with them in the way in which the magistrate would have dealt
with the information if the application had been made under
section 144.
Authority of warrant
(9) A form of warrant duly completed under subsection (6) is
authority for the same powers as are authorised by the warrant signed by the
magistrate.
(10) If:
(a) it is material, in any proceedings, for a court to be satisfied that
an exercise of a power was authorised by this section; and
(b) the warrant signed by the magistrate authorising the exercise of the
power is not produced in evidence;
the court must assume, unless the contrary is proved, that the exercise of
the power was not authorised by such a warrant.
The powers of duly authorised officers extend only to inspecting the
operational areas of a ship.
The following may be appointed as duly authorised officers:
(a) customs officers;
(b) members of the Australian Defence Force;
(c) immigration officers;
(d) AMSA surveyors;
(e) quarantine officers.
(1) The Secretary may appoint a person who is:
(a) a customs officer; or
(b) an ADF member; or
(c) an immigration officer; or
(d) an AMSA surveyor; or
(e) a quarantine officer;
to be a duly authorised officer.
(2) The appointment must be in writing.
(1) A duly authorised officer may exercise the powers set out in
subsection (2) in an operational area of a ship for the purposes of
determining whether a person or a ship is complying with this Act.
(2) For the purposes set out in subsection (1), a duly authorised
officer may do one or more of the following:
(a) board a security regulated ship and inspect its operational areas
(including any restricted access area in the operational area of the
ship);
(b) observe and record operating procedures for the ship (whether carried
out by the crew or some other person);
(c) inspect, photograph or copy one or more of the following:
(i) the ship’s ISSC;
(ii) a ship security record for the ship;
(d) operate equipment in the operational area of a security regulated ship
for the purposes of gaining access to a document or record relating to the
ship.
(3) A duly authorised officer may exercise a power mentioned in
subsection (2):
(a) if the power is exercised within the boundaries of a security
regulated port—at any time and without notice; or
(b) otherwise—after giving the ship operator for, or the master of,
the ship concerned reasonable notice.
(4) However, in exercising a power under this section, a duly authorised
officer must not subject a person to greater indignity than is necessary and
reasonable for the exercise of the power.
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct hinders or obstructs a duly authorised officer in the
exercise of a power in accordance with this Division.
Penalty: 50 penalty units.
(2) Subsection (1) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(3) Subsection (1) is an offence of strict liability.
This Division provides police and certain customs officers with special
authority to:
(a) stop and search people, vehicles and vessels in maritime security
zones and to stop and search people on security regulated ships;
(b) remove people from ships or maritime security zones if they do not
leave when requested to do so;
(c) remove vehicles and vessels from maritime security zones if an officer
is unable to have the vehicles or vessels removed by persons in control of
them.
The Division establishes restrictions on this authority, such as requiring
an officer to explain why a search is to be made and limiting the amount of
force that may be used.
A person who does not leave when requested to do so by a law enforcement
officer commits an offence, as does a person who hinders or obstructs an officer
exercising powers under this Division.
Each of the following who is on duty at a security regulated port is a
law enforcement officer:
(a) a member of the Australian Federal Police;
(b) a member of the police force of a State or a Territory;
(c) a customs officer who is prescribed in the regulations.
(1) A law enforcement officer may enter, and remain in, any part of a
security regulated port at any time.
(2) However, before entering a part of a security regulated port that is
under the control of a maritime industry participant, the law enforcement
officer must:
(a) identify himself or herself as a law enforcement officer to the
participant; and
(b) tell the participant why the officer is entering that part of the
security regulated port.
(1) If a law enforcement officer reasonably believes that it is necessary
to do so for the purposes of safeguarding against unlawful interference with
maritime transport, the law enforcement officer may stop a person who is within
a maritime security zone or on a security regulated ship and conduct an ordinary
search or a frisk search of the person.
(2) If a law enforcement officer stops a person under subsection (1),
the officer must:
(a) identify himself or herself as a law enforcement officer to the
person; and
(b) tell the person why the person has been stopped; and
(c) if the person is to be searched—tell the person why the person
is to be searched.
(3) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct hinders or obstructs a law enforcement officer in the
exercise of a power under subsection (1).
Penalty for an offence against this subsection: Imprisonment for 2
years.
(1) If a law enforcement officer reasonably believes that it is necessary
to do so for the purposes of safeguarding against unlawful interference with
maritime transport, the law enforcement officer may do either or both of the
following within a maritime security zone:
(a) require the driver of a vehicle to stop the vehicle;
(b) search the vehicle.
(2) If a law enforcement officer stops a vehicle under
subsection (1), the law enforcement officer must:
(a) identify himself or herself as a law enforcement officer to the driver
of the vehicle; and
(b) tell the driver why the vehicle has been stopped; and
(c) if the vehicle is to be searched—tell the driver why the vehicle
is to be searched.
(3) Before a law enforcement officer searches a vehicle under
subsection (1) that was not stopped by the officer, the officer must, if
there is a driver or person in control of the vehicle present:
(a) identify himself or herself as a law enforcement officer to the driver
or person; and
(b) tell the driver or person why the vehicle is to be searched.
(4) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct hinders or obstructs a law enforcement officer in the
exercise of a power under subsection (1).
Penalty for an offence against this subsection: Imprisonment for 2
years.
(1) If a law enforcement officer reasonably believes that it is necessary
to do so for the purposes of safeguarding against unlawful interference with
maritime transport, the law enforcement officer may do either or both of the
following within a maritime security zone:
(a) require the person in control of a vessel to stop the
vessel;
(b) search the vessel.
(2) If a law enforcement officer stops a vessel under subsection (1),
the law enforcement officer must:
(a) identify himself or herself as a law enforcement officer to the person
in control of the vessel; and
(b) tell the person in control of the vessel why the vessel has been
stopped; and
(c) if the vessel is to be searched—tell the person in control of
the vessel why the vessel is to be searched.
(3) Before a law enforcement officer searches a vessel under
subsection (1) that was not stopped by the officer, the officer must, if
there is a person in control of the vessel present:
(a) identify himself or herself as a law enforcement officer to the
person; and
(b) tell the person why the vessel is to be searched.
(4) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct hinders or obstructs a law enforcement officer in the
exercise of a power under subsection (1).
Penalty for an offence against this subsection: Imprisonment for 2
years.
(1) If a law enforcement officer reasonably suspects that a person on a
security regulated ship is committing, or has committed, an offence against this
Act, the officer may request the person to leave:
(a) the ship; or
(b) if the ship is within a maritime security zone—the
zone.
(2) If a law enforcement officer reasonably suspects that a person within
a maritime security zone is committing, or has committed, an offence against
this Act, the officer may request the person to leave the zone.
(3) A person commits an offence if:
(a) a request has been made to the person under subsection (1) or
(2); and
(b) the person fails to comply with the request.
Penalty: 50 penalty units.
(4) Subsection (3) is an offence of strict liability.
(1) If:
(a) a request to leave a ship or a zone has been made to a person under
section 156; and
(b) the person fails to comply with the request;
a law enforcement officer may remove the person from the ship or
zone.
(2) A law enforcement officer must not use more force, or subject the
person to greater indignity, than is necessary and reasonable to remove the
person from the ship or zone.
(1) If a law enforcement officer reasonably suspects that:
(a) a vehicle in or near a maritime security zone presents a risk to
maritime transport security; or
(b) a vehicle is in a maritime security zone without proper
authorisation;
the law enforcement officer may remove the vehicle.
(2) However, the law enforcement officer must not remove the vehicle
without making reasonable efforts to have the person in control of the vehicle
remove the vehicle.
(3) The law enforcement officer:
(a) must not use more force, or subject a person to greater indignity,
than is necessary and reasonable to remove the vehicle; and
(b) must make reasonable efforts to avoid damaging the vehicle.
(1) If a law enforcement officer reasonably suspects that:
(a) a vessel in or near a maritime security zone presents a risk to
maritime transport security; or
(b) a vessel is in a maritime security zone without proper
authorisation;
the law enforcement officer may remove the vessel.
(2) However, the law enforcement officer must not remove the vessel
without making reasonable efforts to have the person in control of the vessel
remove the vessel.
(3) The law enforcement officer:
(a) must not use more force, or subject a person to greater indignity,
than is necessary and reasonable to remove the vessel; and
(b) must make reasonable efforts to avoid damaging the vessel.
This Act does not, by implication, limit the exercise of the powers a law
enforcement officer has apart from this Act.
This Division gives maritime security guards a limited power to restrain
and detain persons. Maritime security guards may only detain a person until the
person can be dealt with by a law enforcement officer. A maritime security
guard’s ability to use force is restricted.
Regulations must establish requirements to be met before a person can
become a maritime security guard.
(1) A maritime security guard is a person who:
(a) satisfies the training and qualification requirements and any other
requirements prescribed in the regulations for maritime security guards;
and
(b) is on duty at a security regulated port or on a security regulated
ship; and
(c) is not a law enforcement officer.
(2) The regulations must prescribe the following for maritime security
guards:
(a) training and qualification requirements;
(b) requirements in relation to the form, issue and use of identity
cards.
(3) The regulations may prescribe the following for maritime security
guards:
(a) requirements in relation to uniforms;
(b) any other requirements.
(1) A maritime security guard may physically restrain a person
if:
(a) the maritime security guard reasonably suspects that the person is
committing, or has committed, an offence against this Act; and
(b) the maritime security guard reasonably believes it is necessary to do
so in order to:
(i) ensure that a person who is not cleared is not in a cleared area;
or
(ii) maintain the integrity of a maritime security zone.
(2) If a person is restrained under subsection (1), the maritime
security guard may detain the person until the person can be dealt with by a law
enforcement officer.
(3) In exercising a power under subsection (1) or (2), a maritime
security guard must not use more force, or subject a person to greater
indignity, than is necessary and reasonable.
A screening officer may request a person to remove items of clothing for
screening purposes—but may not require this. However, if a person refuses
to comply with such a request and the screening officer is unable to screen the
person properly, the screening officer must refuse to allow the person to pass
the screening point.
To protect the integrity of screening processes, screening officers are
provided with similar restraint and detention powers to those of maritime
security guards.
(1) A person who is authorised or required to conduct screening is a
screening officer.
(2) The regulations must prescribe the following for screening
officers:
(a) training and qualification requirements;
(b) requirements in relation to the form, issue and use of identity
cards.
(3) The regulations may prescribe the following for screening
officers:
(a) requirements in relation to uniforms;
(b) any other requirements.
(1) If a screening officer considers it necessary in order to screen a
person properly, the screening officer may request the person to remove any item
of the person’s clothing.
(2) The screening officer must not:
(a) require the person to remove any clothing; or
(b) remove or cause the removal of any of the person’s
clothing.
Penalty: 50 penalty units.
(3) Subsection (2) does not apply if the officer has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (3) (see subsection 13.3(3) of the Criminal
Code).
(4) Subsection (2) is an offence of strict liability.
(5) If:
(a) a screening officer requests a person to remove an item of clothing
under subsection (1); and
(b) the person refuses to comply with the request; and
(c) the person refuses to be screened in a private room by a screening
officer of the same sex as the person; and
(d) the refusals mean that it is not possible to screen the person
properly;
the screening officer must refuse to allow the person to pass through the
screening point.
(1) A screening officer may physically restrain a person if:
(a) the screening officer reasonably suspects that the person is
committing, or has committed, an offence against this Act; and
(b) the screening officer reasonably believes it is necessary to do so in
order to:
(i) ensure that a person who is not cleared is not in a cleared area;
or
(ii) maintain the integrity of a cleared area.
(2) If a person is restrained under subsection (1), the screening
officer may detain the person until the person can be dealt with by a law
enforcement officer.
In exercising a power under this Division, a screening officer must not
use more force, or subject a person to greater indignity, than is necessary and
reasonable.
It is important, for maritime transport security, to ensure that all
maritime transport security incidents are appropriately reported.
This Part establishes requirements to report maritime transport security
incidents and provides for the form and content of such reports.
(1) If a threat of unlawful interference with maritime transport is made
and the threat is, or is likely to be, a terrorist act, the threat is a
maritime transport security incident.
(2) If an unlawful interference with maritime transport is, or is likely
to be, a terrorist act, the unlawful interference is a maritime transport
security incident.
(1) A port operator commits an offence if:
(a) the port operator becomes aware of a maritime transport security
incident; and
(b) the port operator fails to report the incident as required by
section 177 as soon as possible.
Penalty: 200 penalty units.
(2) Subsection (1) does not apply in relation to a report that must
be made to a particular person if:
(a) the port operator believes, on reasonable grounds, that the person is
already aware of the incident; or
(b) the port operator has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to
the matters in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(3) Subsection (1) is an offence of strict liability.
(1) The master of a security regulated ship commits an offence
if:
(a) the master becomes aware of a maritime transport security incident;
and
(b) the master fails to report the incident as required by
section 178 as soon as possible.
Penalty: 50 penalty units.
(2) Subsection (1) does not apply in relation to a report that must
be made to a particular person if:
(a) the master believes, on reasonable grounds, that the person is already
aware of the incident; or
(b) the master has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to
the matters in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(3) Subsection (1) is an offence of strict liability.
(1) A ship operator for a security regulated ship commits an offence
if:
(a) the ship operator becomes aware of a maritime transport security
incident; and
(b) the ship operator fails to report the incident as required by
section 179 as soon as possible.
Penalty: 200 penalty units.
(2) Subsection (1) does not apply in relation to a report that must
be made to a particular person if:
(a) the ship operator believes, on reasonable grounds, that the person is
already aware of the incident; or
(b) the ship operator has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to
the matters in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(3) Subsection (1) is an offence of strict liability.
(1) A port facility operator commits an offence if:
(a) the port facility operator becomes aware of a maritime transport
security incident; and
(b) the port facility operator fails to report the incident as required by
section 180 as soon as possible.
Penalty: 200 penalty units.
(2) Subsection (1) does not apply in relation to a report that must
be made to a particular person if:
(a) the port facility operator believes, on reasonable grounds, that the
person is already aware of the incident; or
(b) the port facility operator has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to
the matters in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(3) Subsection (1) is an offence of strict liability.
(1) A person with incident reporting responsibilities commits an offence
if:
(a) the person becomes aware of a maritime transport security incident;
and
(b) the person fails to report the incident as required by
section 181 as soon as possible.
Penalty: For a person with incident reporting responsibilities who is a
maritime industry participant—100 penalty units.
For any other person with incident reporting responsibilities—50
penalty units.
(2) Subsection (1) does not apply in relation to a report that must
be made to a particular person (the person to be notified)
if:
(a) the person with incident reporting responsibilities believes, on
reasonable grounds, that the person to be notified is already aware of the
incident; or
(b) the person with incident reporting responsibilities has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to
the matters in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(3) Subsection (1) is an offence of strict liability.
(4) Each of the following is a person with incident
reporting responsibilities:
(a) a maritime security inspector;
(b) a duly authorised officer;
(c) a maritime security guard;
(d) a screening officer;
(e) a maritime industry participant other than a participant who
is:
(i) a port operator; or
(ii) a port facility operator; or
(iii) a ship operator; or
(iv) an employee (within the definition of employee in
section 10) of a maritime industry participant.
(1) An employee of a maritime industry participant commits an offence
if:
(a) the employee becomes aware of a maritime transport security incident;
and
(b) the employee fails to report the incident to the maritime industry
participant as soon as possible.
Penalty: 50 penalty units.
(2) Subsection (1) does not apply if the employee has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(3) Subsection (1) is an offence of strict liability.
(1) A port operator must report maritime transport security incidents in
accordance with this section.
(2) An incident that relates to the port of the port operator must be
reported to:
(a) the Secretary; and
(b) the Australian Federal Police or the police force of a State or a
Territory; and
(c) if it relates to a part of the port that is controlled by another
person—that other person; and
(d) if it relates to operations conducted within the port (other than
those conducted by the port operator)—the person who conducts those
operations; and
(e) if it relates to a security regulated ship within the port—the
ship operator for, or the master of, the ship.
(3) However, the port operator is not required to report under
paragraph (2)(c), (d) or (e) if the incident:
(a) relates to the port in general; and
(b) is not specifically directed at:
(i) in the case of an incident covered by paragraph (2)(c)—the
part of the port controlled by that other person; or
(ii) in the case of an incident covered by
paragraph (2)(d)—those operations; or
(iii) in the case of an incident covered by
paragraph (2)(e)—that ship.
(4) An incident that relates to the port of another port operator must be
reported to that other port operator.
(5) An incident that relates to a security regulated ship must be reported
to:
(a) the ship operator for the ship; or
(b) the master of the ship.
(1) The master of a security regulated ship must report maritime transport
security incidents in accordance with this section.
(2) An incident that relates to the master’s ship must be reported
to:
(a) the Secretary; and
(b) the Australian Federal Police or the police force of a State or a
Territory; and
(c) if the ship is within a security regulated port—the port
operator for the port; and
(d) if the ship is using a port facility within a security regulated
port—the port facility operator for the port facility.
(3) An incident that relates to a security regulated port (including a
port facility within the port) must be reported to the port operator for the
port.
(4) An incident that relates to another security regulated ship must be
reported to:
(a) the ship operator for the ship; or
(b) the master of the ship.
(1) The ship operator for a security regulated ship must report maritime
transport security incidents in accordance with this section.
(2) An incident that relates to a security regulated ship of the ship
operator must be reported to:
(a) the Secretary; and
(b) the Australian Federal Police or the police force of a State or a
Territory; and
(c) if the ship is within a security regulated port—the port
operator for the port; and
(d) if the ship is using a port facility within a security regulated
port—the port facility operator for the port facility.
(3) An incident that relates to a port must be reported to the port
operator for the port.
(4) An incident that relates to another security regulated ship must be
reported to:
(a) the ship operator for the ship; or
(b) the master of the ship.
(1) A port facility operator for a port facility within a security
regulated port must report maritime transport security incidents in accordance
with this section.
(2) An incident that relates to the port facility operator’s port
facility must be reported to:
(a) the Secretary; and
(b) the Australian Federal Police or the police force of a State or a
Territory; and
(c) the port operator.
(3) An incident that relates to the port (apart from the port facility of
the port facility operator) must be reported to the port operator.
(4) An incident that relates to another port must be reported to the port
operator for that other port.
(5) An incident that relates to a security regulated ship must be reported
to:
(a) the ship operator for the ship; or
(b) the master of the ship.
(1) A person with incident reporting responsibilities must
report maritime transport security incidents in accordance with this
section.
(2) Each incident must be reported to the Secretary.
(3) An incident that relates to a security regulated port must be reported
to the port operator for the port.
(4) An incident that relates to a security regulated ship must be reported
to:
(a) the ship operator for the ship; or
(b) the master of the ship.
(1) The Secretary may publish a notice in the Gazette setting out
either or both of the following:
(a) information that must be included in a report required by this
Part;
(b) the way in which the report must be made.
(2) A notice under subsection (1) is a disallowable instrument for
the purposes of section 46A of the Acts Interpretation Act
1901.
(3) If:
(a) a person reports a maritime transport security incident; and
(b) the report does not comply with any requirements that are in force
under subsection (1) when the report is made;
the report is taken, for the purposes of this Part, not to have been
made.
It is important, for maritime transport security, for the Secretary to be
able to collect certain information.
Division 2 gives the Secretary the power to require security
compliance information but limits the use of the information in certain
proceedings.
(1) Information that relates to compliance, or failure to comply, with
this Act is security compliance information.
(2) If the Secretary believes, on reasonable grounds, that a maritime
industry participant has security compliance information, the Secretary may, by
written notice given to the participant, require the participant to give the
information to the Secretary.
(3) The information must be given within the period and in the form and
manner specified in the notice. The period must not be less than 14
days.
(4) Without limiting subsection (3), the Secretary may specify in the
notice any one or more of the following ways for the participant to give the
information:
(a) orally;
(b) in writing;
(c) by electronic transmission.
(5) A person commits an offence if the person fails to comply with a
notice under subsection (2).
Penalty: 45 penalty units.
(6) Subsection (5) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (6) (see subsection 13.3(3) of the Criminal
Code).
(7) Subsection (5) is an offence of strict liability.
(1) A person is not excused from giving security compliance information
under section 184 on the ground that the information might tend to
incriminate the person or expose the person to a penalty.
(2) However, if the person is a natural person:
(a) the information; and
(b) the giving of the information; and
(c) any information, document or thing obtained as a direct or indirect
consequence of giving the information;
are not admissible in evidence against the person in a criminal proceeding,
or any other proceeding for the recovery of a penalty, other than a proceeding
under section 137.1 or 137.2 of the Criminal Code that relates to
the giving of the information.
To ensure that persons comply with their obligations under this Act, many
provisions throughout the Act provide for criminal offences. To provide
flexibility in enforcing this Act, there is also a range of enforcement options
that can be used as an alternative to, or in addition to, criminal prosecution.
These enforcement options are covered by this Part.
The enforcement options (and the relevant Divisions) are as
follows:
(a) infringement notices (Division 2);
(b) enforcement orders (Division 3);
(c) ship enforcement orders for regulated Australian ships
(Division 4);
(d) injunctions (Division 5);
(e) demerit points system (Division 6).
(1) The regulations may make provision enabling a person who is alleged to
have committed an offence against this Act, other than an offence against
subsection 43(1), 62(1), 120(3), 121(3), 127(3), 128(3), 153(3), 154(4) or
155(4), or section 123 or 130, to pay a penalty to the Commonwealth as an
alternative to prosecution.
(2) The penalty must not exceed one-fifth of the maximum fine that a court
could impose on the person as a penalty for that offence.
The Secretary may make enforcement orders requiring a specified person to
take specified actions, where the Secretary is of the opinion that the person
has contravened this Act.
A person who contravenes an enforcement order may be subject to an
injunction.
(1) The Secretary may make a written order (an enforcement
order) under this section:
(a) prohibiting or restricting specified activities by the maritime
industry participant named in the enforcement order; or
(b) requiring the maritime industry participant named in the enforcement
order to take specified action.
(2) The Secretary may only make an enforcement order under this section if
he or she reasonably believes that:
(a) the maritime industry participant named in the enforcement order has
contravened this Act; and
(b) it is necessary to make the order to safeguard against unlawful
interference with maritime transport.
(3) The enforcement order must:
(a) bear a clear and direct relationship to the contravention;
and
(b) be proportionate to the contravention.
(4) The enforcement order must not require the payment of money to the
Secretary (or any other person) other than an amount of money that is already
recoverable at law.
(1) An enforcement order comes into force:
(a) if a commencement time that is after the day on which the order is
given to the maritime industry participant concerned is specified in the
order—at that time; or
(b) otherwise—at the beginning of the seventh day after it is given
to the maritime industry participant concerned.
(2) The order remains in force:
(a) for the period (if any) specified in the order; or
(b) until it is revoked by the Secretary.
(1) The Secretary must:
(a) at intervals of not more than 3 months, review the enforcement order;
and
(b) after each review, confirm, vary or revoke the order by instrument in
writing.
(2) The Secretary must revoke the order unless he or she is satisfied that
the order is still needed to safeguard against unlawful interference with
maritime transport.
(3) The Secretary must not vary the order unless he or she is satisfied
that the order as varied:
(a) adequately safeguards against unlawful interference with maritime
transport; and
(b) meets the requirements set out in subsections 189(3) and
(4).
(4) If an order is varied, the order continues in force as
varied.
(1) As soon as practicable after making or reviewing an enforcement order,
the Secretary must cause the maritime industry participant named in the order to
be informed of the making of the order, or the decision on the review, as the
case requires.
(2) Failure to comply with this section does not affect the validity of
the order.
(1) A person must not engage in conduct that contravenes an enforcement
order.
(2) If a person contravenes subsection (1), the person does not
commit an offence but may be subject to an injunction under
section 197.
The Secretary may give a ship enforcement order to the ship operator for,
or the master of, a regulated Australian ship, where the Secretary is of the
opinion that the ship has operated in contravention of this Act.
A ship operator or master who contravenes an enforcement order may be
subject to an injunction.
(1) The Secretary may give a direction to:
(a) the ship operator for a regulated Australian ship; or
(b) the master of the ship;
requiring the ship operator or master to take specified action, or refrain
from taking specified action, in relation to the ship.
(2) A direction under subsection (1) is a ship enforcement
order.
(3) The Secretary may only give a ship enforcement order if he or she
reasonably believes that:
(a) the regulated Australian ship named in the ship enforcement order has
operated in contravention of this Act; and
(b) the ship enforcement order is necessary to safeguard against unlawful
interference with maritime transport.
(4) The ship enforcement order must:
(a) bear a clear and direct relationship to the contravention;
and
(b) be proportionate to the contravention.
(5) The action that a ship operator or master may be directed to take
under subsection (1) includes, but is not limited to, the
following:
(a) removing the ship from specified waters;
(b) removing the ship from a security regulated port;
(c) moving the ship within a security regulated port;
(d) holding the ship in a particular position for a specified period or
until a specified event occurs;
(e) taking particular actions, or ensuring that particular actions are
taken, on board the ship;
(f) allowing a maritime security inspector on board the ship to inspect
the ship or ship security records carried by the ship.
(6) A ship enforcement order has no effect unless the Secretary commits
the direction to writing before giving it.
(1) The ship operator for a regulated Australian ship must not engage in
conduct that contravenes a ship enforcement order that relates to the
ship.
(2) If a ship operator contravenes subsection (1), the ship operator
may be subject to an injunction under section 197.
(3) The master of a regulated Australian ship must not engage in conduct
that contravenes a ship enforcement order that relates to the ship.
(4) If the master of a ship contravenes subsection (3), the master
may be subject to an injunction under section 197.
(1) If a person has engaged, is engaging or is proposing to engage in any
conduct in contravention of this Act, the Federal Court may, on the application
of the Secretary, grant an injunction:
(a) restraining the person from engaging in the conduct; or
(b) requiring the person to do an act or thing.
(2) On an application, the court may, if it thinks it appropriate, grant
an injunction by consent of all parties to the proceedings, whether or not the
court is satisfied that the person has engaged, is engaging or is proposing to
engage in any conduct in contravention of this Act.
(3) The court may, if it thinks it desirable, grant an interim injunction
pending its determination of an application.
(4) The court is not to require the Secretary or anyone else, as a
condition of granting an interim injunction, to give an undertaking as to
damages.
(5) The court may discharge or vary an injunction it has
granted.
(6) The power to grant or vary an injunction restraining a person from
engaging in conduct may be exercised:
(a) whether or not it appears to the court that the person intends to
engage again, or to continue to engage, in such conduct; and
(b) whether or not the person has previously engaged in such
conduct.
(7) The power to grant or vary an injunction requiring a person to do an
act or thing may be exercised:
(a) whether or not it appears to the court that the person intends to
refuse or fail again, or to continue to refuse or fail, to do that act or thing;
and
(b) whether or not the person has previously refused or failed to do that
act or thing and whether or not there is an imminent danger of substantial
damage to any person if the person refuses or fails to do that act or
thing.
The regulations may, in accordance with this Division, establish a system
(the demerit points system) under which the approval of a maritime
security plan or a ship security plan may be cancelled.
(1) The demerit points system may provide that the approval of the
maritime security plan of a maritime industry participant may be cancelled if
the maritime industry participant accrues a prescribed number of demerit
points.
Note: Section 58 deals with the cancellation of the
approval of maritime security plans under the demerit points
system.
(2) Demerit points must only be accrued if the maritime industry
participant:
(a) is convicted or found guilty of an offence against this Act;
or
(b) under a scheme established under regulations made under
section 187, pays a penalty to the Commonwealth as an alternative to
prosecution.
(3) Without limiting the scheme that may be established under
section 198, the scheme may provide that different provisions apply to
different kinds of maritime industry participants or to different classes of
participants within a kind of maritime industry participant.
(1) The demerit points system may provide that the approval of a ship
security plan may be cancelled if the number of demerit points prescribed by the
regulations is accumulated in respect of the ship.
Note: Section 77 deals with the cancellation of the
approval of ship security plans under the demerit points
system.
(2) The demerit points system must only allow demerit points to be
accumulated in respect of the ship if a ship operator:
(a) is convicted or found guilty of an offence against section 62 or
63 in respect of the ship; or
(b) under a scheme established under regulations made under
section 187, pays a penalty to the Commonwealth as an alternative to
prosecution for an offence against section 63 in respect of the
ship.
(3) Without limiting the scheme that may be established under
section 198, the scheme may provide that different provisions apply to
different kinds of ships or to different classes of ships within a kind of
ship.
Application may be made to the Administrative Appeals Tribunal for a
review of a decision by the Secretary:
(a) to refuse to approve a maritime security plan under subsection 51(2)
or (4) or a ship security plan under subsection 70(2) or (4); or
(b) to direct a maritime industry participant or ship operator to vary a
plan under section 53 or 72; or
(c) to direct a maritime industry participant or ship operator to revise a
plan under section 55 or 74; or
(d) to cancel a maritime security plan or a ship security plan under
section 57, 58, 76 or 77; or
(e) to refuse an interim ISSC under section 86; or
(f) to declare that a particular port, or a part of a particular port, is
a security regulated port under subsection 13(1); or
(g) to designate a person as a port operator under section 14;
or
(h) to establish a port security zone under section 102; or
(i) to declare, under section 106, that a ship security zone is to
operate around a security regulated ship; or
(j) to establish an on-board security zone under
section 110.
Note: Section 27A of the Administrative Appeals
Tribunal Act 1975 requires the decision-maker to notify persons whose
interests are affected by the decision of the making of the decision and their
right to have the decision reviewed. In so notifying, the decision-maker must
have regard to the Code of Practice determined under section 27B of that
Act.
(1) The Secretary may, by writing, delegate all or any of his or her
powers and functions under this Act to an SES employee, or acting SES employee,
in the Department.
(2) The Secretary may, by writing, delegate all or any of his or her
powers and functions under this Act, other than powers or functions under
Division 3 of Part 11, to an APS employee who holds, or is acting in,
an Executive Level 2, or equivalent, position in the Department.
Note: The Secretary may delegate his or her powers and
functions under Part 4 to a person engaged by a recognised security
organisation: see section 88.
(3) In exercising powers or functions under a delegation, the delegate
must comply with any directions of the Secretary.
(1) This section applies if:
(a) as a result of electronic equipment being operated as mentioned in
section 139, 141 or 148:
(i) damage is caused to the equipment; or
(ii) the data recorded on the equipment is damaged; or
(iii) programs associated with the use of the equipment, or with the use
of the data, are damaged or corrupted; and
(b) the damage or corruption occurs because:
(i) insufficient care was exercised in selecting the person who was to
operate the equipment; or
(ii) insufficient care was exercised by the person operating the
equipment.
(2) The Commonwealth is liable to pay the owner of the equipment, or the
user of the data or programs, compensation of a reasonable amount to the person
in respect of the damage or corruption.
(3) If the Commonwealth and the person do not agree on the amount of the
compensation, the person may take proceedings in the Federal Court for the
recovery from the Commonwealth of such reasonable amount of compensation as the
Court determines.
(4) In determining the amount of compensation payable, regard is to be had
to whether the occupier of the premises, or the occupier’s employees and
agents, if they were available at the time, provided any appropriate warning or
guidance on the operation of the equipment.
(5) Compensation is payable out of money appropriated by the
Parliament.
(1) If:
(a) apart from this section, the operation of this Act would result in the
acquisition of property from a person otherwise than on just terms;
and
(b) the acquisition would be invalid because of paragraph 51(xxxi) of the
Constitution;
then the Commonwealth is liable to pay compensation of a reasonable amount
to the person in respect of the acquisition.
(2) If the Commonwealth and the person do not agree on the amount of the
compensation, the person may take proceedings in the Federal Court for the
recovery from the Commonwealth of such reasonable amount of compensation as the
Court determines.
(3) Compensation is payable out of money appropriated by the
Parliament.
(1) If:
(a) the Secretary gives:
(i) a control direction to a regulated foreign ship (see Division 3
of Part 5); or
(ii) a ship enforcement order to a regulated Australian ship (see
Division 4 of Part 11); and
(b) the ship is delayed because the ship complies with the direction or
order; and
(c) the delay is unreasonable in the circumstances;
the Commonwealth is liable to pay compensation of a reasonable amount to
the ship operator for the ship in respect of the delay.
(2) If the Commonwealth and the ship operator do not agree on the amount
of the compensation, the ship operator may take proceedings in the Federal Court
for the recovery from the Commonwealth of such reasonable amount of compensation
as the Court determines.
(3) Compensation is payable out of money appropriated by the
Parliament.
(1) If:
(a) a person fails to comply with this Act; and
(b) because of that failure a ship is detained or inspected; and
(c) the detention or inspection is reasonable in the circumstances;
and
(d) the Commonwealth incurs costs in connection with the detention or
inspection;
the person is liable to pay compensation of a reasonable amount to the
Commonwealth in respect of the detention or inspection.
(2) If the Commonwealth and the person do not agree on the amount of the
compensation, the Commonwealth may take proceedings in the Federal Court for the
recovery from the person of such reasonable amount of compensation as the Court
determines.
(3) If:
(a) a security regulated ship (the non-complying ship) fails
to comply with this Act; and
(b) because of that failure, the non-complying ship or another ship is
detained or inspected; and
(c) the detention or inspection is reasonable in the circumstances;
and
(d) the Commonwealth incurs costs in connection with the detention or
inspection;
the ship operator for the non-complying ship is liable to pay compensation
of a reasonable amount to the Commonwealth in respect of the detention or
inspection.
(4) If the Commonwealth and the ship operator do not agree on the amount
of the compensation, the Commonwealth may take proceedings in the Federal Court
for the recovery from the ship operator of such reasonable amount of
compensation as the Court determines.
This Act does not affect an immunity or privilege that is conferred by or
under the Consular Privileges and Immunities Act 1972, the Defence
(Visiting Forces) Act 1963, the Diplomatic Privileges and Immunities Act
1967, the Foreign States Immunities Act 1985 or any other
Act.
(1) Without limiting its effect apart from this section, this Act also has
effect as provided by this section.
(2) This Act also has the effect that it would have if its operation were
expressly confined to acts or omissions of corporations to which paragraph
51(xx) of the Constitution applies.
(3) This Act also has the effect that it would have if its operation were
expressly confined to acts or omissions that occur at Commonwealth
places.
(4) This Act also has the effect that it would have if its operation were
expressly confined to acts or omissions taking place in the course of, or in
relation to, trade or commerce:
(a) between Australia and places outside Australia; or
(b) among the States; or
(c) within a Territory, between a State and a Territory or between 2
Territories.
(5) This Act also has the effect that it would have if its operation were
expressly confined to acts or omissions taking place in a Territory.
(6) This Act also has the effect that it would have if its operation were
expressly confined to acts or omissions taking place outside
Australia.
(7) This Act also has the effect that it would have if its operation were
expressly confined to matters:
(a) in relation to which the Commonwealth is under an obligation under an
international agreement; or
(b) that are of international concern.
(1) The Governor-General may make regulations prescribing
matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act.
(2) Without limiting subsection (1), the regulations may:
(a) prescribe fees in respect of matters under this Act (including the
regulations); and
(b) prescribe penalties of not more than 50 penalty units for offences
against the regulations.
(3) Paragraph (2)(b) does not limit any provision in this Act that
provides for the regulations to prescribe penalties higher than 50 penalty
units.