EXPLANATORY STATEMENT

 

Select Legislative Instrument 2006 No. 372

 

Issued by the Authority of the Minster for Transport and Regional Services

 

 

Maritime Transport and Offshore Facilities Security Act 2003

 

Maritime Transport and Offshore Facilities Security Amendment

Regulations 2006 (No. 3)

 

Subsection 209(1) of the Maritime Transport and Offshore Facilities Security Act 2003 (the Act) provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

The Act establishes a regulatory framework to safeguard against unlawful interference with maritime transport and offshore facilities. To achieve this purpose, the Act establishes minimum security requirements for the Australian maritime industry by imposing obligations on persons engaged in maritime activities.

 

In particular, section 48 of the Act provides that regulations may prescribe specific matters that are to be dealt with in maritime security plans; section 67 of the Act provides that the regulations may prescribe specific matters that are to be dealt with in ship security plans; and section 100H of the Act provides that the regulations may prescribe specific matters that are to be dealt with in offshore security plans.

 

The Maritime Transport and Offshore Facilities Security Regulations 2003 (the Principal Regulations) set out the details regarding the introduction of the Maritime Security Identification Card (MSIC) scheme (the scheme) for maritime industry and offshore participants.

 

The purpose of the Regulations is to:

 

1. amend the Principal Regulations to provide for a series of minor, technical amendments, to ensure that the scheme commences smoothly on 1 January 2007; and
2. require security officer contact information to be provided to the Secretary of the Department of Transport and Regional Services in a document accompanying the security plan.

 

Attachment A outlines the scope of the Regulations

 

Details of the Regulations are set out in Attachment B.

 

The Regulations are a legislative instrument for the purpose of the Legislative Instruments Act 2003.

 

ATTACHMENT A

 

In 2005, the Parliament passed legislation for the introduction of a Maritime Security Identification Card (MSIC) scheme to come into effect on 1 January 2007. The scheme will require those persons who require unescorted or unmonitored access to maritime security zones to be issued with an MSIC and undergo background checks by the Australian Federal Police (AFP) and Australian Security Intelligence Organisation (ASIO).

 

The MSIC scheme marks the first time that around 65,000 individuals who work in or with the maritime and offshore industries will be required by the Australian Government to undergo background checking.

 

In preparation for the commencement of the scheme on 1 January 2007, several minor issues were identified in the Maritime Transport and Offshore Facilities Security Regulations 2003 requiring resolution so the scheme could commence smoothly.

 

The Regulations amend the Maritime Transport and Offshore Facilities Security Regulations 2003 so that:

 

• armbands can be used to satisfy proper display requirements for MSICs;
• law enforcement officers are included in the list of emergency personnel that can access a maritime security zone without an MSIC during an emergency;
• at all times an applicant’s background checking form goes to the AFP;
• at all times the Secretary of DOTARS will decide whether an MSIC applicant has an adverse criminal record;
• at all times the Secretary will be responsible for sending disqualifying notices;
• the Secretary can notify an applicant’s employer or affected maritime industry participant about a disqualifying notice;
• the Secretary can notify an MSIC holder’s employer or affected maritime industry participant regarding an MSIC replacement, cancellation or refusal;
• issuing bodies inform the Secretary in all instances of MSIC cancellations and replacements;
• names longer than currently specified in the Principal Regulations can be ‘shrunk to fit’ to be printed on MSICs; and
• a temporary MSIC scheme can be implemented by maritime industry participants.

 

During the preparation of these Regulations, the Government consulted widely with the maritime and offshore facilities industries.

 

The amendments to the Principal Regulations also require security officer contact information to be provided to the Secretary of the Department of Transport and Regional Services in a document accompanying a security plan. This change is necessary to give effect to the Maritime Transport and Offshore Facilities Security Amendment (Security Plans and other Measures) Bill 2006.

 

 

ATTACHMENT B

 

Details of the Maritime Transport and Offshore Facilities Security Amendment Regulations 2006 (No. 3)

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the Maritime Transport and Offshore Facilities Security Amendment Regulations 2006 (No. 3).

 

Regulation 2 – Commencement

 

This regulation provides for the Regulations to commence on 1 January 2007.

 

Regulation 3 – Amendment of Maritime Transport and Offshore Facilities Security Regulations 2003

 

This regulation provides that Schedule 1 amends the Maritime Transport and Offshore Facilities Security Regulations 2003 (‘the Principal Regulations’).

 

Schedule 1 - Amendments

 

Item [1] – Paragraph 3.35 (1) (h)

 

The amendment substitutes paragraph 3.35 (1) (h) to prescribe ‘the contact details for the PSO’. The amendment gives effect to recent amendments to the Maritime Transport and Offshore Facilities Security Regulations 2003 (the Act), which replace the references to ‘contact details’ within the Act, with a requirement to designate, by name or by reference to a position, all security officers responsible for implementing and maintaining a security plan.

 

Item [2] – Subregulation 3.35 (1), note

 

The amendment omits the note at subregulation 3.35 (1). The amendment gives effect to recent amendments to the Act, which replace the references to ‘contact details’ within the Act, with a requirement to designate, by name or by reference to a position, all security officers responsible for implementing and maintaining a security plan.

 

Item [3] – Paragraph 3.100 (g)

 

The amendment substitutes paragraph 3.100 (g) to prescribe ‘the contact details for the PFSO’. The amendment gives effect to recent amendments to the Act, which replace the references to ‘contact details’ within the Act, with a requirement to designate, by name or by reference to a position, all security officers responsible for implementing and maintaining a security plan.

 

Item [4] – Regulation 3.100, note

 

The amendment omits the note at regulation 3.100. The amendment gives effect to recent amendments to the Act, which replace the references to ‘contact details’ within the Act, with a requirement to designate, by name or by reference to a position, all security officers responsible for implementing and maintaining a security plan.

 

Item [5] – Paragraph 3.185 (f)

 

The amendment substitutes paragraph 3.185 (f) to prescribe ‘the contact details for the PSPSO’. The amendment gives effect to recent amendments to the Act, which replace the references to ‘contact details’ within the Act, with a requirement to designate, by name or by reference to a position, all security officers responsible for implementing and maintaining a security plan.

 

Item [6] – Regulation 3.185, note

 

The amendment omits the note at regulation 3.185. The amendment gives effect to recent amendments to the Act, which replace the references to ‘contact details’ within the Act, with a requirement to designate, by name or by reference to a position, all security officers responsible for implementing and maintaining a security plan.

 

Item [7] – Paragraphs 4.30 (1) (d) and (e)

 

Paragraph 4.30 (1) (d)

 

The amendment substitutes paragraph 4.30 (1) (d) to prescribe ‘the contact details for the CSO’. The amendment gives effect to recent amendments to the Act, which replace the references to ‘contact details’ within the Act, with a requirement to designate, by name or by reference to a position, all security officers responsible for implementing and maintaining a security plan.

 

Paragraph 4.30 (1) (e)

 

The amendment substitutes paragraph 4.30 (1) (e) to prescribe ‘the name and contact details for the SSO’. The amendment gives effect to recent amendments to the Act, which replace the references to ‘contact details’ within the Act, with a requirement to designate, by name or by reference to a position, all security officers responsible for implementing and maintaining a security plan.

 

Item [8] – Subregulation 4.30 (1), note

 

The amendment omits the note at subregulation 4.30 (1). The amendment gives effect to recent amendments to the Act, which replace the references to ‘contact details’ within the Act, with a requirement to designate, by name or by reference to a position, all security officers responsible for implementing and maintaining a security plan.

 

Item [9] – Paragraph 5A.30 (f)

 

The amendment substitutes paragraph 5A.30 (f) to prescribe ‘the contact details for the OFSO operator’. The amendment gives effect to recent amendments to the Act, which replace the references to ‘contact details’ within the Act, with a requirement to designate, by name or by reference to a position, all security officers responsible for implementing and maintaining a security plan.

 

 

Item [10] – Regulation 5A.30, note

 

The amendment omits the note at regulation 5A.30. The amendment gives effect to recent amendments to the Act, which replace the references to ‘contact details’ within the Act, with a requirement to designate, by name or by reference to a position, all security officers responsible for implementing and maintaining a security plan.

Item [11] – Paragraph 5A.120 (f)

 

The amendment substitutes paragraph 5A.120 (f) to prescribe ‘the contact details of the OSPSO of the service provider’. The amendment gives effect to recent amendments to the Act, which replace the references to ‘contact details’ within the Act, with a requirement to designate, by name or by reference to a position, all security officers responsible for implementing and maintaining a security plan.

 

Item [12] – Regulation 5A.120, note

 

The amendment omits the note at regulation 5A.120. The amendment gives effect to recent amendments to the Act, which replace the references to ‘contact details’ within the Act, with a requirement to designate, by name or by reference to a position, all security officers responsible for implementing and maintaining a security plan.

 

Item [13] – Subparagraphs 6.07A (1) (c) (i) and (ii)

 

The amendment to subparagraph 6.07A (1) (c) (i) inserts ‘or temporary MSIC’ after ‘a valid MSIC’. The amendment gives effect to regulation 6.08K and regulation 6.08KA, both of which deal with temporary MSICs.

 

The amendment to subparagraph 6.07A (1) (c) (ii) inserts ‘or a temporary MSIC’ after ‘MSIC’. The amendment gives effect to regulation 6.08K and regulation 6.08KA, both of which deal with temporary MSICs.

 

Item [14] – Paragraph 6.07A (2) (d)

 

The amendment to paragraph 6.07A (2) (d) substitutes ‘MSICs.’ with ‘MSICs; and’. This is a technical amendment to give effect to the amendment after paragraph 6.07A (2) (d).

 

Item [15] – After paragraph 6.07A (2) (d)

 

After paragraph 6.07A (2) (d) a new subparagraph (e) is added, inserting ‘the issuing and display of temporary MSICs’. The amendment gives effect to regulation 6.08K and regulation 6.08KA, both of which deal with temporary MSICs.

 

Item [16] – Regulation 6.07B, definition of holder

 

This amendment inserts ‘or a temporary MSIC’, after ‘of an MSIC’. The amendment gives effect to regulation 6.08K and regulation 6.08KA, both of which deal with temporary MSICs.

 

Item [17] – Regulation 6.07B, definition of MSIC

 

This amendment inserts ‘issued under regulation 6.08C’ after ‘card’. The purpose of this amendment is to distinguish between the definition of an MSIC and a temporary MSIC.

 

Item [18] – Regulation 6.07B, after definition of sentence, including the notes

 

This amendment inserts the definition of temporary MSIC into regulation 6.07B, being ‘an identity document issued under regulation 6.08K’.

 

Item [19] – Regulations 6.07D and 6.07E

 

Regulation 6.07D

 

Regulation 6.07D provides for a meaning of both a valid MSIC and a valid temporary MSIC. Given that they are not the same, it is necessary to distinguish them in this manner.

 

Regulation 6.07E

 

Regulation 6.07E provides for the ways in which proper display requirements for the wearing and displaying of MSICs can be satisfied. The regulations allow the use of an arm band worn on a person’s upper arm, to properly display an MSIC.

 

Furthermore, the regulation also provides proper display requirements for temporary MSICs.

 

Item [20] – Paragraph 6.07G (2) (b)

 

Paragraph 6.07G (2) (b) corrects an earlier drafting error by rearranging the order of the words in the paragraph to enhance clarity and understanding.

 

Item [21] – Regulation 6.07I, definition of escort, note

 

This amendment inserts ‘or valid temporary MSIC’ after ‘valid MSIC’. The amendment gives effect to regulation 6.08K and regulation 6.08KA, both of which deal with temporary MSICs.

 

Item [22] – Paragraph 6.07J (1) (b)

 

This amendment substitutes ‘valid MSIC.’ with ‘valid MSIC or valid temporary MSIC’. The amendment gives effect to regulation 6.08K and regulation 6.08KA, both of which deal with temporary MSICs.

 

Item [23] – Subparagraph 6.07J (2) (a) (i)

 

This amendment substitutes ‘valid MSIC; or’ with ‘valid MSIC or valid temporary MSIC; or’. The amendment gives effect to regulation 6.08K and regulation 6.08KA, both of which deal with temporary MSICs.

 

Item [24] – Paragraph 6.07J (2) (c)

 

Paragraph 6.07J (2) (c) has been amended to insert ‘or’ after ‘offshore facility’ in order to give effect to the newly added paragraph 6.07J (2) (c) (item [25]).

 

Item [25] – After paragraph 6.07J (2) (c)

 

This amendment recognises that there will be certain situations where people who are not able to be issued an MSIC, due to, for example requirements under subparagraph 6.08C (1) (c) (i), still require access to Australian security regulated ports.

 

The amendment means that a general exemption from the requirement to hold, carry or display an MSIC is created for people who, with the permission of the ship’s master, are on board a security regulated ship that is in a water-side restricted zone.

 

The amendment also means that a general exemption from the requirement to hold, carry or display an MSIC is created for people who conduct ship operations (for example observing draught marks or performing occupational health and safety duties) in land side restricted zones immediately adjacent to the vessel he or she crews. This exemption is conditional on the landside restricted zone being accessed from the vessel that he or she crews.

 

The exemption is limited to the land side restricted zone immediately adjacent to the vessel being crewed. Any person who moves outside this will be required to have an MSIC or be continuously monitored or escorted.

 

Item [26] – After subregulation 6.07M (6)

 

This amendment, at (7) inserts ‘In this regulation, MSIC includes a temporary MSIC’. The amendment gives effect to regulation 6.08K and regulation 6.08KA, both of which deal with temporary MSICs.

 

Item [27] – Paragraph 6.07N (1) (b)

 

Paragraph 6.07N (1) (b) provides for access to maritime security zones by emergency personnel during an emergency situation. The amendment adds law enforcement personnel, as a class of people, who can access a maritime security zone during an emergency, without an MSIC.

 

This amendment also means that all such emergency personnel accessing a maritime security zone during an emergency are exempt from the requirement to display, carry or hold an MSIC. This amendment resolves uncertainty with the previous wording of the regulation which refers only to the requirement to display.

 

Item [28] – Subregulation 6.07N(2)

 

The amendment gives effect to the issue and operation of temporary MSICs (as described at regulation 6.08K and regulation 6.08KA) by inserting ‘or a temporary MSIC’ after ‘display an MSIC’. The amendment gives effect to regulation 6.08K and regulation 6.08KA, both of which deal with temporary MSICs.

 

Item [29] - Subregulation 6.08B (2)

 

Subregulation 6.08B (2) provides that an applicant who is aged eighteen or over will send their background checking consent form to the Australian Federal Police at all times. The purpose of this amendment is to provide consistency prior to, and after, the commencement of the MSIC scheme.

 

Item [30] - Subparagraph 6.08C (1) (c) (i)

 

Subparagraph 6.08C (1) (c) (i) corrects an earlier drafting error, by inserting ‘the person’ at the start of the subparagraph and replacing the next instance of ‘the person’ with ‘he or she’.

 

Item [31] - Subregulation 6.08C (2)

 

Subregulation 6.08C (2) provides that, for subparagraphs (1) (e) (i) and (ii), the Secretary will decide at all times whether an applicant’s criminal records check shows that the person has an adverse criminal record. The purpose of this amendment is to provide consistency prior to, and after, the commencement of the MSIC scheme.

 

Item [32] - Subregulation 6.08D (1)

 

Subregulation 6.08D (1) omits the reference to ‘1 January 2007’, meaning that at all times it will be the Secretary who issues a disqualifying offence notice, regardless of the date. The purpose of this amendment is to provide consistency prior to, and after, the commencement of the MSIC scheme.

 

Item [33] - After subregulation 6.08D (2)

 

Subregulation 6.08D (3) allows the Secretary to request certain information from an issuing body about an MSIC applicant who has been issued a disqualifying notice, for the purposes of informing that applicant’s employer or affected maritime industry participant (where for example, the applicant is a contractor or self employed).

 

The request to the issuing body for information must be made by the Secretary in writing and is confined to obtaining the name of the person’s employer, and the kind of business that the employer is engaged in. As per subparagraphs (3) (b) (i) and (ii), the Secretary may then notify the person’s employer or affected maritime industry participant, in writing to inform them that following a background check, a disqualifying notice has been sent to the applicant.

 

Item [34] - After subregulation 6.08F (6), including the note

 

The amendment to subregulation 6.08F (7), means that an MSIC applicant who has an adverse criminal record as decided by the Secretary under subparagraph 6.08 (C) (e) (ii), will have 30 days in which to make an application to the Secretary for approval under 6.08F. If the 30 days lapse and the applicant has not made such an application under 6.08F, the Secretary will be able to notify the applicant’s employer or any affected maritime industry participant that the applicant is ineligible to be issued an MSIC. This 30 day period does not prevent the applicant from applying for approval under 6.08F after the period has expired; the timing only relates to notification to the applicant’s employer or affected industry participant.

 

If the applicant applies for approval under 6.08F within the 30 day period, and is refused the issue of an MSIC, the Secretary can notify the applicant’s employer or affected maritime industry participant immediately.

 

In both instances, the Secretary can only do this if he or she thinks it is necessary to do so to prevent unlawful interference with maritime transport or an offshore facility.

 

Item [35] - Regulation 6.08G

 

This amendment removes regulation 6.08G from the Principal Regulations. The effect of other amendments renders this regulation invalid.

 

Regulation 6.08G (1) states that should an issuing body refuse to issue an MSIC due to either citizenship, visa provisions or a criminal records check, the issuing body must notify the Secretary.

 

Amendments to regulation 6.08C render part of this regulation invalid. As per those amendments the Secretary will, at all times, decide whether an applicant’s criminal records check is adverse. Therefore there will be no circumstances where the issuing body will need to notify the Secretary that they have refused an MSIC due to a criminal records check – the Secretary will already know this having made the decision.

 

This then means that the only reason the Secretary will be notified by an issuing body regarding an MSIC refusal, is where such a refusal is based on citizenship / visa grounds. This requirement alone does not warrant notification to the Secretary and has thus been removed from the Principal Regulations.

 

Subregulation (2) has also been removed. The intention of this regulation has been reflected in other amendments, allowing the Secretary to notify an applicant’s employer or affected maritime industry participant (as opposed to an issuing body) where an MISC applicant has been refused, disqualified, or a holder’s card has been replaced or cancelled.

 

Item [36] – Subregulation 6.08J (3A)

 

This amendment inserts new guidelines for printing names on MSICs. If the name will not fit within the space shown on the diagram when reproduced in accordance with paragraph (a), it must appear in Arial bold of the largest size between 12 and 20 point that results in the name being reproduced at a width of no more than 48mm.

 

Item [37] – Subregulation 6.08J (6)

 

Subregulation 6.08J (6) corrects an earlier drafting error, by inserting ‘(3A)’ after ‘(3)’.

 

Item [38] - Regulation 6.08K

 

6.08K Temporary MSICs

 

Regulation 6.08K provides for guidelines for issuing temporary MSICs. Temporary MSICs can only be issued to a person by a maritime industry participant. This means that issuing bodies can no longer issue temporary MSICs. The issuing of temporary cards is not compulsory – it is up to each facility to make this decision.

 

This will enable a person who has forgotten their MSIC, or where it has been lost, stolen or destroyed, to be able to access maritime security zones in the course of their employment, for the period of validity specified by the temporary card.

 

Regulation 6.08K will also allow a person who has applied for an MSIC, but had the application delayed due to administrative delays and thus has not received an MSIC by 1 January 2007, to be able to temporarily access maritime security zones in the course the applicant’s employment until his or her MSIC application is finalised.

 

6.08KA Form of temporary MSICs

 

Regulation 6.08KA provides for the form of a temporary MSIC. Temporary MSICs must be orange in colour, and no smaller than 54mm by 86mm (the current size of a normal MSIC), with a black capital letter ‘T’ in Arial of at least 125 point font on the front.

 

Certain information must be recorded on the card, whether by handwriting, printing, or encoded into the card. This information is: the holders name as it appears on his or her MSIC; the unique identifying number on the holder’s MSIC; a description of the document used to verify the holder’s identity; the name of industry participant that issued the card; and the expiry date of the temporary MSIC.

 

Should an industry participant wish to use a different form of temporary MSIC than that specified in subregulation 6.08KA (1) or (2), application can be made to the Secretary for approval of this different form.

 

Item [39] - After subregulation 6.08L (3)

 

This amendment will mean that if an issuing body issues a replacement MSIC to the holder of an MSIC, the body must notify the Secretary in writing about the replacement within 7 days.

 

Subregulation (5) allows the Secretary to request certain information from an issuing body about an MSIC holder who has been issued a replacement MSIC, for the purposes of informing that applicant’s employer or affected maritime industry participant (where for example, the applicant is a contractor or self employed) about the replacement.

 

The request to the issuing body for information must be made by the Secretary in writing and is confined to obtaining the name of the person’s employer, and the kind of business that the employer is engaged in. As per subparagraphs (5) (b) (i) and (ii), the Secretary may then notify the person’s employer or affected maritime industry participant, in writing, informing them that a replacement MSIC has been issued to the applicant.

 

Item [40] – After subregulation 6.08M (3)

 

Subregulation (4) and Subregulation (5) mean that any temporary MSIC issued to the holder is cancelled when the cancellation of the holder’s MSIC takes effect. This recognises the fact that temporary MSICs can only be issued to holders of MSICs; when an MSIC is cancelled, so therefore is a temporary MSIC relating to that MSIC.

 

Item [41] - Regulation 6.08O

 

The amendment to regulation 6.08O will result in the Secretary being informed by an issuing body of an MSIC cancellation within seven days of the cancellation. The information which will be notified to the Secretary will be the holder’s name, address and date of birth, and the reason for the cancellation.

 

Subregulation (2) allows the Secretary to notify the employer of the former holder of the MSIC or an affected maritime industry participant that the MSIC has been cancelled, if the cancellation is for a reason mentioned in a paragraph of subregulation 6.08M(1).

 

The Secretary can do this only if he or she thinks that doing so may help to prevent unlawful interference with maritime transport or an offshore facility.

 

Item [42] – Subdivision 6.1A.5 heading

 

This amendment inserts the words ‘and temporary MSICs’ into the heading of Subdivision 6.1A.5 to give effect to operation of temporary MSICs (as described at regulation 6.08K and 6.08KA).

 

Item [43] – Regulation 6.08S, heading

 

This amendment inserts the words ‘temporary MSICs’ into the heading of regulation 6.08S to give effect to operation of temporary MSICs (as described at regulation 6.08K and regulation 6.08KA).

 

Item [44] – Subregulation 6.08S (2)

 

This amendment allows a security officer to direct a person to show him or her a valid MSIC or temporary MSIC, or identification that establishes that the person is an exempt person, if a person is in a maritime security zone and apparently not properly displaying a valid MSIC or valid temporary MSIC.

 

Item [45] – Subregulation 6.08X (6)

 

This amendment corrects an earlier drafting error by substituting ‘6.07K’ with ‘6.08D’.

 

Item [46] – Regulation 6.09A

 

The amendments to regulation 6.09A will allow maritime industry participants who choose to issue temporary MSICs, to recover costs and expenses reasonably incurred by the participant in relation to the issue of a temporary MSIC from the person who asks the participant to issue to temporary MSIC.