Commonwealth Numbered Regulations - Explanatory Statements

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MARITIME TRANSPORT AND OFFSHORE FACILITIES SECURITY AMENDMENT REGULATION 2012 (NO. 1) (SLI NO 136 OF 2012)

EXPLANATORY STATEMENT

 

Select Legislative Instrument 2012 No. 136

 

Subject -              Maritime Transport and Offshore Facilities Security Act 2003

 

                            Maritime Transport and Offshore Facilities Security Amendment Regulation 2012 (No. 1)

 

The Maritime Transport and Offshore Facilities Security Act 2003 (the Act) establishes a regulatory framework to safeguard against unlawful interference with maritime transport and offshore oil and gas facilities.  To achieve this purpose, the Act establishes minimum security requirements for the Australian maritime industry by imposing obligations on persons engaged in maritime activities.

 

Subsection 209(1) of the 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 Maritime Transport and Offshore Facilities Security Regulations 2003 (the Principal Regulations) set out the requirements for maritime, ship and offshore security plans to ensure that these plans achieve the maritime security outcomes specified in the Act.  In addition, the Principal Regulations establish the regulatory framework for the Maritime Security Identification Card (MSIC).

 

The purpose of the regulation is to amend the Principal Regulations to allow an issuing body, which is a person or body authorised to issue a MSIC, to issue a MSIC that is valid for up to two years to a person who is a crew member of a regulated Australian ship registered in the Australian International Shipping Register.

 

Details of the regulation are set out in the Attachment.

 

The Act specifies no conditions that need to be satisfied before the power to make the regulation may be exercised.

 

The regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The Office of Best Practice Regulation in the Department of Finance and Deregulation has been consulted and advises that the regulation is not likely to have a direct, or substantial indirect effect on business, and is not likely to restrict competition (ID 13878).

 

Maritime industry participants, issuing bodies, industry representative bodies, and employee representative bodies were consulted in the development of the regulation.  Significant stakeholder consultation was also conducted in relation to the amendments to the Shipping Registration Act 1981 that created the Australian International Shipping Register.

 

The regulation commences on 1 July 2012.

                                                              Authority:  Subsection 209(1) of the Maritime Transport and Offshore Facilities Security Act 2003


ATTACHMENT

Statement of Compatibility with Human Rights

 

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

Maritime Transport and Offshore Facilities Security Amendment Regulation 2012 (No. 1)

 

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the Legislative Instrument

The Legislative Instrument amends the Maritime Transport and Offshore Facilities Security Regulations 2003 to allow an issuing body to issue a Maritime Security Identification Card that is valid for up to two years to a person who is a crew member of a regulated Australian ship registered in the Australian International Shipping Register under the Shipping Registration Act 1981.

 

Human rights implications

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

 

Conclusion

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

 

 

 

 

 

ANTHONY ALBANESE

Minister for Infrastructure and Transport

 


 

Details of the Maritime Transport and Offshore Facilities Security Amendment Regulation 2012 (No. 1)

 

Section 1 - Name of Regulation

 

Regulation 1 provides that the regulation is referred to as the Maritime Transport and Offshore Facilities Security Amendment Regulation 2012 (No. 1).

 

Section 2 - Commencement

 

Regulation 2 sets out the commencement date for the Regulation to be 1 July 2012.

 

Section 3 - Amendment of Maritime Transport and Offshore Facilities Security Regulations 2003

 

Regulation 3 provides that Schedule 1 amends the Maritime Transport and Offshore Facilities Security Regulations 2003 (the Principal Regulations).

 

Schedule 1 - Amendments

 

Item [1] - After subregulation 6.08B (2), at the foot

 

Item 1 inserts a note that states that if a person is issued a Maritime Security Identification Card on the basis of being a person mentioned in subparagraph 6.08C (1) (c) (iii), the person may be issued a Maritime Security Identification Card for a maximum of two years.

 

A person mentioned in subparagraph 6.08C (1) (c) (iii) is a crew member of a regulated Australian ship that is registered in the Australian International Shipping Register under the Shipping Registration Act 1981, other than a crew member who is also an Australian citizen, or a person who holds a visa entitling him or her to work in Australia.

 

Item [2] - Subregulation 6.08C (1)

 

Item 2 substitutes subregulation 6.08C (1) with subregulations 6.08C (1) and (2).

 

This brings subregulation 6.08C (1), paragraph 6.08C (1) (b) and subparagraph 6.08C (1) (c) (ii) in line with current drafting conventions.  Paragraph 6.08C (1) (a), subparagraph 6.08C (1) (c) (i), paragraph 6.08C (1) (d), and paragraph 6.08C (1) (e) are substantially unchanged.

 

Subparagraph 6.08C (1) (c) (iii) is amended to insert a criterion that the issuing body must be satisfied that the person is a crew member of a regulated Australian ship that is registered in the Australian International Shipping Register.

 

Subparagraph 6.08C (1) (c) (iii) enables an issuing body to issue a Maritime Security Identification Card to a crew member of a regulated Australian ship that is registered in the Australian International Shipping Register in circumstances where that crew member does not otherwise satisfy the criteria in either subparagraph 6.08C (1) (c) (i) or subparagraph 6.08C (1) (c) (ii).

 

A crew member of a regulated Australian ship registered in the Australian International Shipping Register is subject to the same eligibility criteria as any other Maritime Security Identification Card applicant, such as a background check and identity confirmation, and is also required to demonstrate that they have an operational need to hold a Maritime Security Identification Card as a crew member of a regulated Australian ship that is registered in the Australian International Shipping Register.

 

This also brings subregulation 6.08C (2) in line with current drafting conventions for offence provisions.

 

Item [3] - Subregulation 6.08C (3)

 

Item 3 omits the reference to subregulation 6.08C (1) in subregulation 6.08C (3) and substitutes it with the reference to subregulation 6.08C (2).  This is consequential to the amendment at item [2].

 

Item [4] - Subregulation 6.08C (4), including the note

 

Item 4 substitutes subregulation 6.08C (4), including the note.  Subregulation 6.08C (4) states that if a person is younger than 18, the issuing body may issue a Maritime Security Identification Card to the person if the criteria mentioned in paragraphs 6.08C (1) (a), (b) and (c) are satisfied.  This brings subregulation 6.08C (4) in line with current drafting conventions.

 

The note refers to paragraph 6.08I (2) (a) for when a Maritime Security Identification Card issued under subregulation 6.08C (4) ceases to be valid.

 

Item [5] - Subregulation 6.08C (5)

 

Item 5 omits the reference in subregulation 6.08C (5) to subregulation (1) and inserts a reference to subregulation (2).  This is consequential to the amendment at item [2], specifically subregulation (2).

 

Item [6] - After subregulation 6.08C (5)

 

Item 6 inserts after subregulation 6.08C (5) subregulations 6.08C (6) and (7).

 

Subregulation 6.08C (6) states that an issuing body may issue a Maritime Security Identification Card subject to a condition, but must notify the holder in writing what the condition is.

 

Subregulation 6.08C (7) states that an issuing body may issue a Maritime Security Identification Card only in accordance with its Maritime Security Identification Card plan.

 

Item 6 rectifies a drafting error, and is consequential to the amendment at item [7].

 

 

Item [7] - Subregulation 6.08CA (6) and (7)

 

Item 7 omits subregulations 6.08CA (6) and (7).  This rectifies a drafting error and omits the example following subregulations 6.08CA (6).

 

Item [8] - Subregulation 6.08F (6), example

 

Item 8 omits the example following subregulation 6.08F (6).

 

Item [9] - Subregulation 6.08F (7)

 

Item 9 substitutes subregulation 6.08F (7) with subregulation 6.08F (7).  Subregulation 6.08F (7) states that subregulation (8) applies if the Secretary of the Department of Infrastructure and Transport, under paragraph (3) (b), notifies the body or applicant that he or she has refused to approve the issuing of a Maritime Security Identification Card.

 

Paragraph 6.08F (7) (a) is omitted, as the Secretary of the Department of Infrastructure and Transport no longer has the power to determine whether an applicant has an adverse criminal record.  This power lies with the Secretary of the Attorney-General's Department and this process occurs through the AusCheck Act 2007 and AusCheck Regulations 2007.  Paragraph 6.08F (7) (b) is also omitted.

 

Subregulation 6.08F (7) thus reflects the current policy and administrative arrangements of the Department of Infrastructure and Transport and the Attorney-General's Department.

 

Item [10] Paragraph 6.08I (2) (c)

 

Item 10 makes a minor technical amendment consequential to the amendment at item [11].

 

Item [11] - After paragraph 6.08I (2) (c)

 

Item 11 inserts paragraph 6.08I (2) (d).  Paragraph 6.08I (2) (d) states that a Maritime Security Identification Card issued to a person on the basis of being a person mentioned in subparagraph 6.08C (1) (c) (iii) must expire no later than two years after the day the criminal history check on the person for the issue of the Maritime Security Identification Card is completed.

 

Paragraph 6.08I (2) (d) applies in relation to a Maritime Security Identification Card issued to a crew member of a regulated Australian ship that is registered in the Australian International Shipping Register in circumstances where that crew member does not otherwise satisfy the criteria in either subparagraph 6.08C (1) (c) (i) or subparagraph 6.08C (1) (c) (ii).

 

Item [12] Paragraph 6.08M (1) (d)

 

Item 12 omits the phrase "Australia; or" and inserts the phrase "Australia, and the holder is not a person mentioned in subparagraph 6.08C (1) (c) (iii); or".

This clarifies the cancellation provision at regulation 6.08M and provides that an issuing body should not immediately cancel a Maritime Security Identification Card in relation to a person who does not hold a visa entitling him or her to work in Australia, if the Maritime Security Identification Card was issued on the basis that the person is a crew member of a regulated Australian ship registered in the Australian International Shipping Register.

 


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