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This is a Bill, not an Act. For current law, see the Acts databases.
TRANSPORT SECURITY LEGISLATION AMENDMENT (2010 MEASURES NO. 1) BILL 2010
2008-2009-2010
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Transport Security Legislation
Amendment (2010 Measures No. 1) Bill
2010
No. , 2010
(Infrastructure, Transport, Regional Development and Local Government)
A Bill for an Act to amend the law relating to the
security of aviation and maritime transport and
offshore facilities, and for related purposes
i Transport Security Legislation Amendment (2010 Measures No. 1) Bill 2010 No. ,
2010
Contents
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
1
3 Schedule(s)
........................................................................................
2
Schedule 1--Amendments
3
Aviation Transport Security Act 2004
3
Maritime Transport and Offshore Facilities Security Act 2003
4
Transport Security Legislation Amendment (2010 Measures No. 1) Bill 2010 No. , 2010
1
A Bill for an Act to amend the law relating to the
1
security of aviation and maritime transport and
2
offshore facilities, and for related purposes
3
The Parliament of Australia enacts:
4
1 Short title
5
This Act may be cited as the Transport Security Legislation
6
Amendment (2010 Measures No. 1) Act 2010.
7
2 Commencement
8
This Act commences on the day after this Act receives the Royal
9
Assent.
10
2 Transport Security Legislation Amendment (2010 Measures No. 1) Bill 2010 No. ,
2010
3 Schedule(s)
1
Each Act that is specified in a Schedule to this Act is amended or
2
repealed as set out in the applicable items in the Schedule
3
concerned, and any other item in a Schedule to this Act has effect
4
according to its terms.
5
6
Amendments Schedule 1
Transport Security Legislation Amendment (2010 Measures No. 1) Bill 2010 No. , 2010
3
Schedule 1--Amendments
1
2
Aviation Transport Security Act 2004
3
1 Section 9 (paragraph (b) of the definition of prohibited item)
4
Repeal the paragraph, substitute:
5
(b) is specified in an instrument under section 9A.
6
2 At the end of Division 4 of Part 1
7
Add:
8
9A Prohibited items
9
The Minister may, by legislative instrument, specify items for the
10
purposes of paragraph (b) of the definition of prohibited item in
11
section 9.
12
3 After paragraph 127(1)(a)
13
Insert:
14
(aa) an SES employee in the Attorney-General's Department;
15
4 At the end of section 127
16
Add:
17
(4) In this section:
18
Attorney-General's Department means the Department
19
administered by the Minister who administers the Crimes Act 1914.
20
5 Saving--prohibited items
21
Despite the amendments made by items 1 and 2, regulations in force for
22
the purposes of paragraph (b) of the definition of prohibited item in
23
section 9 of the Aviation Transport Security Act 2004 immediately
24
before the commencement of this item continue in force, after that
25
commencement, until the first instrument made under section 9A of that
26
Act, as inserted by this Act, takes effect.
27
Note:
Section 12 of the Legislative Instruments Act 2003 deals with when a legislative
28
instrument takes effect.
29
Schedule 1 Amendments
4 Transport Security Legislation Amendment (2010 Measures No. 1) Bill 2010 No. ,
2010
Maritime Transport and Offshore Facilities Security Act
1
2003
2
6 Section 4
3
Omit:
4
Part 8 sets out the powers of officials under this Act. These
5
officials are maritime security inspectors, duly authorised officers,
6
law enforcement officers, maritime security guards and screening
7
officers.
8
Substitute:
9
Part 8 sets out the powers of officials under this Act. These
10
officials are maritime security inspectors, security assessment
11
inspectors, duly authorised officers, law enforcement officers,
12
maritime security guards and screening officers.
13
7 Section 10
14
Insert:
15
Agency Head has the same meaning as in the Public Service Act
16
1999.
17
8 Section 10
18
Insert:
19
national security has the same meaning as in the National Security
20
Information (Criminal and Civil Proceedings) Act 2004.
21
9 Section 10
22
Insert:
23
security assessment inspector means a person appointed under
24
subsection 145D(1).
25
10 Section 15
26
Before "Each", insert "(1)".
27
11 At the end of section 15
28
Amendments Schedule 1
Transport Security Legislation Amendment (2010 Measures No. 1) Bill 2010 No. , 2010
5
Add:
1
(2) The regulations may prescribe different categories of security
2
regulated ships.
3
Note:
Regulations under this Act may make different provision with respect
4
to different categories of security regulated ships: see subsection
5
33(3A) of the Acts Interpretation Act 1901.
6
12 After section 61
7
Insert:
8
61A Exemptions
9
(1) The ship operator for a regulated Australian ship may apply to the
10
Secretary for the ship to be exempt from the operation of this
11
Division.
12
(2) The application must be in accordance with any requirements
13
prescribed by the regulations. The regulations may prescribe
14
requirements in relation to the form and content of the application,
15
and the way in which the application is made.
16
(3) In deciding whether to grant the exemption, the Secretary must
17
consider the matters prescribed by the regulations for the purposes
18
of this subsection. The Secretary may consider any other matters
19
that the Secretary considers appropriate.
20
Secretary's decision
21
(4) If an application is made to the Secretary, the Secretary must:
22
(a) exempt the ship from the operation of this Division in the
23
circumstances specified in the exemption; or
24
(b) refuse to grant an exemption.
25
Grant of exemption
26
(5) If the Secretary grants an exemption, the Secretary must give the
27
ship operator a copy of the exemption.
28
(6) An exemption under this section has effect according to its terms.
29
Schedule 1 Amendments
6 Transport Security Legislation Amendment (2010 Measures No. 1) Bill 2010 No. ,
2010
Refusal to grant exemption
1
(7) If the Secretary refuses to grant an exemption, the Secretary must
2
give the ship operator written notice of the refusal (including the
3
reasons for the refusal).
4
Exemption is not a legislative instrument
5
(8) An exemption under this section is not a legislative instrument.
6
13 After section 79
7
Insert:
8
79A Exemptions
9
(1) The ship operator for a regulated Australian ship may apply to the
10
Secretary for the ship to be exempt from the operation of this
11
Division.
12
(2) The application must be in accordance with any requirements
13
prescribed by the regulations. The regulations may prescribe
14
requirements in relation to the form and content of the application,
15
and the way in which the application is made.
16
(3) In deciding whether to grant the exemption, the Secretary must
17
consider the matters prescribed by the regulations for the purposes
18
of this subsection. The Secretary may consider any other matters
19
that the Secretary considers appropriate.
20
Secretary's decision
21
(4) If an application is made to the Secretary, the Secretary must:
22
(a) exempt the ship from the operation of this Division in the
23
circumstances specified in the exemption; or
24
(b) refuse to grant an exemption.
25
Grant of exemption
26
(5) If the Secretary grants an exemption, the Secretary must give the
27
ship operator a copy of the exemption.
28
(6) An exemption under this section has effect according to its terms.
29
Amendments Schedule 1
Transport Security Legislation Amendment (2010 Measures No. 1) Bill 2010 No. , 2010
7
Refusal to grant exemption
1
(7) If the Secretary refuses to grant an exemption, the Secretary must
2
give the ship operator written notice of the refusal (including the
3
reasons for the refusal).
4
Exemption is not a legislative instrument
5
(8) An exemption under this section is not a legislative instrument.
6
14 At the end of section 91
7
Add:
8
(4) This section does not apply in relation to a ship of a kind
9
prescribed by the regulations for the purposes of this subsection.
10
15 Subsection 119(2)
11
Omit "The following matters may be dealt with by regulations made
12
under subsection (1)", substitute "Without limiting the matters that may
13
be dealt with by regulations made under subsection (1), the regulations
14
may deal with the following".
15
16 Section 134
16
After:
17
(a)
maritime security inspectors;
18
Insert:
19
(aa)
security assessment inspectors;
20
17 Paragraph 139(2)(b)
21
Repeal the paragraph, substitute:
22
(b) inspect equipment on the ship;
23
(ba) make any still or moving image or any recording of
24
equipment on the ship;
25
18 Paragraph 140A(2)(b)
26
Repeal the paragraph, substitute:
27
(b) inspect equipment on the facility;
28
Schedule 1 Amendments
8 Transport Security Legislation Amendment (2010 Measures No. 1) Bill 2010 No. ,
2010
(ba) make any still or moving image or any recording of
1
equipment on the facility;
2
19 After paragraph 141(2)(b)
3
Insert:
4
(ba) make any still or moving image or any recording of
5
equipment in a place, vehicle or vessel mentioned in
6
paragraph (a);
7
20 After Division 2 of Part 8
8
Insert:
9
Division 2A--Security assessment inspectors
10
145C Simplified overview of Division
11
The Secretary may appoint persons as security assessment
12
inspectors if they satisfy the criteria prescribed by the regulations.
13
Security assessment inspectors can conduct security assessments of
14
areas, facilities, buildings (other than residences), vessels and
15
vehicles under the control of maritime industry participants.
16
145D Appointment
17
(1) The Secretary may, by writing, appoint a person as a security
18
assessment inspector if the person satisfies the criteria prescribed
19
by the regulations for the purposes of this subsection.
20
(2) A security assessment inspector is appointed for the period
21
specified in the instrument of appointment.
22
145E Powers of security assessment inspectors
23
(1) For the purposes of conducting a security assessment of an area,
24
facility, building (other than a residence), vessel or vehicle under
25
the control of a maritime industry participant, a security assessment
26
inspector may do one or more of the following:
27
(a) enter and inspect the area, facility, building, vessel or
28
vehicle;
29
Amendments Schedule 1
Transport Security Legislation Amendment (2010 Measures No. 1) Bill 2010 No. , 2010
9
(b) inspect equipment in the area, facility, building, vessel or
1
vehicle;
2
(c) make any still or moving image or any recording of the area,
3
facility, building, vessel, vehicle or equipment;
4
(d) observe the operating procedures of the maritime industry
5
participant;
6
(e) discuss those procedures with an employee of the maritime
7
industry participant or with another maritime industry
8
participant.
9
(2) In exercising a power under this section, a security assessment
10
inspector may be accompanied by a maritime security inspector.
11
(3) In exercising a power under this section, a security assessment
12
inspector must not subject a person to greater indignity than is
13
necessary and reasonable for the exercise of the power.
14
(4) In exercising a power under this section within the boundaries of a
15
security regulated offshore facility, a security assessment inspector
16
must take account of occupational health and safety requirements
17
under the laws of the Commonwealth, a State or Territory applying
18
at the facility.
19
145F When powers may be exercised
20
A security assessment inspector may exercise a power mentioned
21
in section 145E:
22
(a) if the power is exercised within the boundaries of a security
23
regulated port--at any time and without notice; or
24
(b) otherwise--after giving the maritime industry participant
25
concerned reasonable notice.
26
145G Offence--hindering or obstructing a security assessment
27
inspector
28
(1) A person commits an offence if:
29
(a) the person engages in conduct; and
30
(b) the conduct hinders or obstructs a security assessment
31
inspector in the exercise of a power in accordance with this
32
Division.
33
Penalty: 50 penalty units.
34
Schedule 1 Amendments
10 Transport Security Legislation Amendment (2010 Measures No. 1) Bill 2010 No.
, 2010
(2) Subsection (1) does not apply if the person has a reasonable
1
excuse.
2
Note:
A defendant bears an evidential burden in relation to the matter in
3
subsection (2) (see subsection 13.3(3) of the Criminal Code).
4
(3) An offence against subsection (1) is an offence of strict liability.
5
Note:
For strict liability, see section 6.1 of the Criminal Code.
6
21 Section 164
7
After:
8
A screening officer may request a person to remove items of
9
clothing for screening purposes--but may not require this.
10
However, if a person refuses to comply with such a request and the
11
screening officer is unable to screen the person properly, the
12
screening officer must refuse to allow the person to pass the
13
screening point.
14
Insert:
15
A person may choose, or may be requested by a screening officer,
16
to undergo a frisk search.
17
22 After section 166
18
Insert:
19
166A Screening powers--frisk search as an alternative screening
20
procedure
21
If a person chooses to undergo a frisk search as an alternative to
22
another screening procedure, a screening officer may frisk search
23
the person to the extent necessary to screen the person properly.
24
166B Screening powers--frisk search as an additional screening
25
procedure
26
(1)
If:
27
(a) a person undergoes a screening procedure; and
28
Amendments Schedule 1
Transport Security Legislation Amendment (2010 Measures No. 1) Bill 2010 No. , 2010
11
(b) the results of that procedure indicate that additional screening
1
procedures are necessary in order to screen the person
2
properly;
3
a screening officer may request the person to undergo a frisk
4
search.
5
(2) If a screening officer conducts a frisk search following a request
6
under subsection (1), the screening officer may conduct the search
7
only to the extent necessary to complete the proper screening of the
8
person.
9
(3) A screening officer must not:
10
(a) require a person to undergo a frisk search under this section;
11
or
12
(b) conduct a frisk search of a person under this section without
13
the person's consent; or
14
(c) contravene subsection (2).
15
Penalty: 50 penalty units.
16
(4) Subsection (3) does not apply if the officer has a reasonable
17
excuse.
18
Note:
A defendant bears an evidential burden in relation to the matter in
19
subsection (4) (see subsection 13.3(3) of the Criminal Code).
20
(5) An offence against subsection (3) is an offence of strict liability.
21
Note:
For strict liability, see section 6.1 of the Criminal Code.
22
(6)
If:
23
(a) a screening officer requests a person to undergo a frisk search
24
under subsection (1); and
25
(b) the person refuses to comply with the request; and
26
(c) the person refuses:
27
(i) to be screened in a private room by a screening officer
28
of the same sex as the person; or
29
(ii) to undergo a frisk search during that screening; and
30
(d) the refusals mean that it is not possible to screen the person
31
properly;
32
the screening officer must refuse to allow the person to pass
33
through the screening point.
34
Schedule 1 Amendments
12 Transport Security Legislation Amendment (2010 Measures No. 1) Bill 2010 No.
, 2010
166C Screening powers--frisk search general power
1
(1) If a screening officer considers it necessary in order to screen a
2
person properly, the screening officer may request the person to
3
undergo a frisk search.
4
(2) If a screening officer conducts a frisk search following a request
5
under subsection (1), the screening officer may conduct the search
6
only to the extent necessary to complete the proper screening of the
7
person.
8
(3) A screening officer must not:
9
(a) require a person to undergo a frisk search under this section;
10
or
11
(b) conduct a frisk search of a person under this section without
12
the person's consent; or
13
(c) contravene subsection (2).
14
Penalty: 50 penalty units.
15
(4) Subsection (3) does not apply if the officer has a reasonable
16
excuse.
17
Note:
A defendant bears an evidential burden in relation to the matter in
18
subsection (4) (see subsection 13.3(3) of the Criminal Code).
19
(5) An offence against subsection (3) is an offence of strict liability.
20
Note:
For strict liability, see section 6.1 of the Criminal Code.
21
(6)
If:
22
(a) a screening officer requests a person to undergo a frisk search
23
under subsection (1); and
24
(b) the person refuses to comply with the request; and
25
(c) the person refuses to undergo a frisk search in a private room
26
by a screening officer of the same sex as the person; and
27
(d) the refusals mean that it is not possible to screen the person
28
properly;
29
the screening officer must refuse to allow the person to pass
30
through the screening point.
31
23 After paragraph 201(d)
32
Insert:
33
(da) to refuse to grant an exemption under section 61A or 79A; or
34
Amendments Schedule 1
Transport Security Legislation Amendment (2010 Measures No. 1) Bill 2010 No. , 2010
13
24 Subsection 202(1)
1
Repeal the subsection, substitute:
2
(1) The Secretary may, by writing, delegate all or any of his or her
3
powers and functions under this Act to a person of the following
4
kind:
5
(a) an SES employee, or acting SES employee, in the
6
Department;
7
(b) an SES employee in the Attorney-General's Department;
8
(c) the Agency Head of an Agency that carries on activities that
9
relate to national security.
10
(1A) However, a delegation under paragraph (1)(c) has no effect unless
11
the Agency Head of the Agency agrees to the delegation.
12
25 At the end of section 202
13
Add:
14
(4) In this section:
15
Attorney-General's Department means the Department
16
administered by the Minister who administers the Crimes Act 1914.
17
26 After section 202
18
Insert:
19
202A Sub-delegation
20
(1) If the Secretary delegates a power or function to the Agency Head
21
of an Agency under paragraph 202(1)(c), the Agency Head may,
22
by writing, sub-delegate the power or function to an SES Band 3
23
employee in the Agency.
24
(2) Sections 34AA, 34AB and 34A of the Acts Interpretation Act 1901
25
apply in relation to the sub-delegation in a corresponding way to
26
the way in which they apply to a delegation.
27
(3) In exercising powers or functions under a sub-delegation, the
28
delegate must comply with any directions of the Agency Head of
29
the Agency.
30
(4)
An
SES Band 3 employee is an SES employee with a classification
31
of Senior Executive Band 3, and includes an SES employee who
32
Schedule 1 Amendments
14 Transport Security Legislation Amendment (2010 Measures No. 1) Bill 2010 No.
, 2010
has been temporarily assigned duties that have been allocated a
1
classification of Senior Executive Band 3.
2
27 Saving--delegations
3
A delegation in force under subsection 202(1) of the Maritime
4
Transport and Offshore Facilities Security Act 2003 immediately before
5
the commencement of this item continues to have effect, on and after
6
that commencement, as if it were a delegation under paragraph
7
202(1)(a) of that Act.
8