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. 2)

 

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 reduce the administrative burden on issuing bodies, without significantly increasing the burden on Maritime Security Identification Card (MSIC) holders, by removing the requirement for an issuing body to apply to the Secretary of the Attorney-General's Department for a 'second background check' on or after 22 to 24 months after the day the criminal history check on the holder for the issue of the MSIC was completed.

The legislative instrument introduces obligations supported by offence provisions for:

*                the holder of an MSIC issued for more than two years to report all the changes to the holder's name or residential address since the holder applied for the MSIC; and

*                an issuing body to update the AusCheck facility with the changed name or address within seven days of being notified of the change.

 

Human rights implications

The MSIC is a nationally consistent identification card which shows that the holder has met the minimum security requirements to remain unmonitored within a maritime security zone.  The MSIC is issued by issuing bodies, which can include maritime industry participants, bodies representing participants, bodies representing employees of participants, and Commonwealth authorities.

 

While the MSIC is not itself an access card, it allows the holder to remain unmonitored within a maritime security zone, and as a matter of practice is required by port, port facility and port service workers, stevedores, transport operators such as train and truck drivers, seafarers on Australian security regulated ships, and people who work on and/or supply offshore oil and gas facilities.

When persons apply for an MSIC, they consent to their personal information being collected, used and disclosed to conduct background checks in relation to their identity, citizenship status, security assessment, and criminal history.

 

In 2010, an MSIC with a validity of four years was introduced.  A particular feature of the four-year MSIC is that the holder is required to undergo a 'second background check' around two years after the original card is issued.

 

The legislative instrument creates obligations relating to the collection, use and disclosure of personal information relating to MSIC holders by their issuing bodies, the AusCheck facility, and background checking partners.  These obligations are reasonable, necessary and proportionate to ensure that 'second background checks' on card holders issued with an MSIC for more than two years are based on up-to-date information.

 

Conclusion

The Legislative Instrument is compatible with human rights because, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

 

 

 

 

 

ANTHONY ALBANESE

Minister for Infrastructure and Transport

 

 

 

 

 

 

 

 

 

 

 

Details of the Maritime Transport and Offshore Facilities Security Amendment Regulation 2012 (No. 2)

 

Section 1 - Name of Regulation

 

Section 1 provides that the Regulation is referred to as the Maritime Transport and Offshore Facilities Security Amendment Regulation 2012 (No. 2).

 

Section 2 - Commencement

 

Section 2 sets out the commencement date for the Regulation as the day after it is registered.

 

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

 

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

 

Schedule 1 - Amendments

 

Item [1] - Regulation 6.08LBA

 

Item [1] substitutes regulation 6.08LBA with regulation 6.08LBA.

 

Regulation 6.08LBA states that an issuing body for a Maritime Security Identification Card commits an offence:

*         if the holder of a Maritime Security Identification Card notifies the issuing body of the matters mentioned in subregulation 6.08LB(2); and

*         if the issuing body fails to apply to the Secretary of the Attorney-General's Department for a background check on the holder within two working days after the holder:

o   notifies of his or her consent under paragraph 6.08LB(2)(e), or

o   if any information is requested under subregulation 6.08LB(3) - provides that information.

 

Regulation 6.08LBA has a maximum penalty of 100 penalty units.

 

This clarifies the requirements for issuing bodies to apply for a background check if a Maritime Security Identification Card holder is convicted of, and sentenced for, a maritime-security-relevant offence.  Due to the seriousness of not initiating a subsequent background check, a maximum penalty of 100 penalty units continues to be attached to this obligation.

 

Item [2] - Regulation 6.08LD

 

Item [2] substitutes regulation 6.08LD with regulation 6.08LD and regulation 6.08LDA.

 

Previous regulation 6.08LD

The amendment removes the existing requirement at subregulations 6.08LD(1) and  (2) that an issuing body must apply to the Secretary of the Attorney-General's Department for a background check on the holder if the issuing body has issued a Maritime Security Identification Card to a holder for four years; or the issuing body has issued a new card for the remainder of a period of a card issued under paragraph (a) and that remainder is more than 22 months; and a second background check has not already been conducted since the card was issued.

 

In order to remove this significant administrative burden on issuing bodies, AusCheck will conduct a background check in these circumstances without a further application from an issuing body.  AusCheck is empowered to conduct this check under related amendments to the AusCheck Regulations 2007.

 

The amendment also omits the existing offence provision at subregulation 6.08LD(3).  This is consequential to the amendment at item [1] substituting the offence provision at regulation 6.08LBA.

 

Subregulation 6.08LD(1)

Subregulation 6.08LD(1) provides that a holder of a Maritime Security Identification Card commits an offence if:

*         the holder's Maritime Security Identification Card was issued for more than two years; and

*         the holder's name or residential address has changed since the holder applied for the Maritime Security Identification Card; and

*         the holder fails to notify the issuing body that issued the Maritime Security Identification Card of all the changes to the holder's name or residential address since the holder applied for the Maritime Security Identification Card; and

*         the notification is not made in the manner mentioned in subregulation 6.08LD(2) and by the time mentioned in subregulation 6.08LD(3).

 

Subregulation 6.08LD(1) has a maximum penalty of five penalty units.  The offence is not an offence of strict liability.

 

The offence provision imposes an obligation on the holder of a Maritime Security Identification Card issued for more than two years to notify the issuing body of any change in their name or residential address.  This requirement and associated offence provision ensures the background check is based on up-to-date personal information.

 

The reporting obligation applies in addition to the existing mechanism under subregulation 6.08L(2), which provides that if the holder of a Maritime Security Identification Card changes his or her name, an issuing body may issue a replacement Maritime Security Identification Card to the holder after the holder provides written evidence of the change; and the issuing body notifies the Australian Security Intelligence Organisation (ASIO) of the change of name and the ASIO acknowledges receipt of the notification.  A replacement card is generally required as, under subregulation 6.07D(2), a card or a temporary card issued to a person who changes his or her name ceases to be valid one month after the day on which the change is made unless the card or temporary card ceases to be valid before that day.  Both subregulation 6.07D(2) and subregulation 6.08L(2) apply to all Maritime Security Identification Card holders and not just the holders of a Maritime Security Identification Card issued for more than two years.

 

Subregulation 6.08LD(2)

Subregulation 6.08LD(2) provides that for paragraph 6.08LD(1)(d), the notification must be made in the following manner:

*         if the holder is notifying the issuing body of a change in name:

o   by providing, in person, to the issuing body an original certificate issued by a State or Territory authority that recognised the change of name; or

o   by statutory declaration;

*          if the holder is notifying the issuing body of a change in residential address in writing.

 

In relation to notifying the issuing body of a change in name by certificate under subparagraph 6.08LDA(2)(a)(i), this is an original certificate issued by a State or Territory authority that recognises the change of name, such as issued by the Registry of Births, Deaths and Marriages of that State or Territory.

 

In relation to notifying the issuing body of a change in name by statutory declaration, under section 11 of the Statutory Declarations Act 1959, a person must not intentionally make a false statement in a statutory declaration, and breach of this offence provision has a penalty of imprisonment for four years.  This is appropriate given the potentially serious consequences of a card being issued on the basis of a false statement.

 

In relation to notifying the issuing body of a change in residential address in writing, this lesser standard of proof acknowledges the frequency of such changes and the practical difficulty for some holders to report such changes in the form of a statutory declaration, for example card holders working on an offshore oil and gas facility.

 

Subregulation 6.08LD(3)

Subregulation 6.08LD(3) provides that for paragraph 6.08LD(1)(d), the time is no later than two years and 30 days before the day of expiry mentioned on the front of the holder's Maritime Security Identification Card.

 

Regulation 6.08LDA

Regulation 6.08LDA provides that an issuing body for a Maritime Security Identification Card commits an offence if the holder of a Maritime Security Identification Card notifies the issuing body of the change of his or her name or residential address in accordance with regulation 6.08LD; and the issuing body fails, within seven days of being notified of the change, to update the AusCheck facility with the changed name or address.

 

Regulation 6.08LD has a maximum penalty of 50 penalty units.

 

This requirement and associated offence provision is intended to support the amendment to regulation 6.08LD to require Maritime Security Identification Card holders to report changes of name or residential address, and ensures the background check is based on up-to-date personal information.

 

Item [3] - Paragraph 6.08M(1)(eb)

 

Item [3] substitutes paragraph 6.08M(1)(eb) with paragraph 6.08M(1)(eb).

 

Paragraph 6.08M(1)(eb) states as a ground for cancellation that the holder of a Maritime Security Identification Card that is issued for more than two years withdraws consent for a background check before an application for the check is taken to be made under subregulation 5(5) of the AusCheck Regulations 2007.

 

Item [3] removes the requirement for issuing bodies to cancel a Maritime Security Identification Card if an issuing body does not apply to the Secretary of the Attorney-General's Department for a 'second background check' on or after 22 to 24 months after the day the criminal history check on the holder of the Maritime Security Identification Card was completed.  This is consequential to the amendment at item [2].

 

Paragraph 6.08M(1)(eb) inserts a new cancellation provision that requires an issuing body to cancel a Maritime Security Identification Card if a holder of a Maritime Security Identification Card that is in force for more than two years has notified an issuing body of their withdrawal of consent for the second background check required under subregulation 5(5) of the AusCheck Regulations 2007.