Commonwealth Numbered Regulations - Explanatory Statements

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MARITIME TRANSPORT AND OFFSHORE FACILITIES SECURITY AMENDMENT (INTER-STATE VOYAGES) REGULATION 2016 (F2016L01309)

EXPLANATORY STATEMENT

(Issued by the Authority of the Minister for Infrastructure and Transport)

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

Subsection 119(1) of the Act provides that regulations may be made, for the purposes of safeguarding against unlawful interference with maritime transport or offshore facilities, in respect to screening and clearing.

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 Act was recently amended to remove Australian ships used solely for inter-State voyages from the definition of 'regulated Australian ship' in section 16 of the Act. A regulated Australian ship is a 'security regulated ship' for the purposes of section 15 of the Act, and must comply with the terms of the Act and the Maritime Transport and Offshore Facilities Security Regulations 2003 (the Principal Regulations).

The purpose of the Maritime Transport and Offshore Facilities Security Amendment
(Inter-State Voyages) Regulation 2016 (the Regulation) is to amend the Principal Regulations to:

*         align the Principal Regulations with recent amendments to the Act;

*         remove the requirement for port facility operators' maritime security plans to specify measures and procedures for screening and clearing passengers and baggage boarding an Australian ship used on inter-State voyages in a low risk environment; and

*         make minor corrections to clarify certain provisions in the Principal Regulations.

The Regulation ensures that Australian ships used to carry passenger and vehicles on inter-State voyages continue to be security regulated by prescribing them as regulated Australian ships. It is in the public interest to continue the security regulation of these ships due to the nature of their operations in transporting large numbers of passengers and vehicles.

The Regulation also removes the obligation for port facility operators to set out procedures for screening and clearing passengers and baggage boarding an Australian ship used to carry passengers and vehicles on inter-State voyages in low risk environments in their maritime security plans. While procedures for detecting weapons and prohibited items are still required, the amendment eases the regulatory burden without increasing the risk of unlawful interference with maritime transport.

Allowing for alternatives to screening and clearing where there is no reduction in security outcomes is consistent with the overall legislative framework, which requires operators to assess their risk and determine the best method for addressing that risk in the context of their operating environment.

If a cleared zone is established at a port facility in the future, for example in response to an imminent or probable threat to the ship operator docking at that port facility, the port facility operator will be required to conduct screening and clearing of passengers and their baggage boarding Australian ships used to carry passengers and vehicles on inter-State voyages.

Various subregulations in the Principal Regulations refer to 'security regulated passenger ships'. This phrase is not defined in either the Act or the Principal Regulations and is potentially confusing. The Regulation replaces this phrase with 'security regulated ships that are passenger ships' to clarify to which ships these provisions apply.

The Department of Infrastructure and Regional Development (the Department) has had ongoing consultations with operators of Australian ships used to carry passengers and vehicles on inter-State voyages about the continuing security regulation of these ships. Operators acknowledge the Government's objectives retaining these ships within the security regulated framework and have assisted the Government in developing its policy in this area.

The Department's Maritime Industry Security Consultative Forum (MISCF) was consulted on the proposals regarding screening and clearing of passengers and baggage boarding Australian inter-State passenger and vehicle ferries. MISCF comprises peak maritime industry bodies from the port, shipping and maritime transport sectors. These industry participants support the proposed measures.

The Office of Best Practice Regulation (OBPR) has been consulted on the amendments to the Principal Regulations. The OBPR has advised that a Regulatory Impact Statement is not required as the amendments do not impose any additional regulatory burden on industry as the impact on individuals is minor (OBPR ID: 19866).

A Statement of Compatibility with Human Rights is set out at Attachment A.

The Principal Regulations do not specify any 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 Legislation Act 2003.

The Regulation commences the day after it is registered on the Federal Register of Legislation.

Details of the Regulation are set out in Attachment B.

Authority:
Subsections 119(1) and 209(1) of the

Maritime Transport and Offshore Facilities Security Act 2003

ATTACHMENT A

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 (Inter-State Voyages) Regulation 2016

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 purpose of the Maritime Transport and Offshore Facilities Security Amendment (Inter-State Voyages) Regulation 2016 is to amend the Maritime Transport and Offshore Facilities Security Regulations 2003 (the Principal Regulations) to:

*         make consequential amendments to the Principal Regulations in line with the amendments to the Maritime Transport and Offshore Facilities Security Act 2003 made by the Maritime Transport and Offshore Facilities Security Amendment (Inter-State Voyages) Act 2016;

*         remove the requirement for port facility operators to set out measures and procedures for screening and clearing passengers and baggage boarding an Australian ship used to carry passenger and vehicles on inter-State voyages in a low risk environment in their maritime security plans; and

*         make minor corrections to certain provisions in the Principal Regulations.

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.

DARREN CHESTER

Minister for Infrastructure and Transport

ATTACHMENT B

Details of the Maritime Transport and Offshore Facilities Security Amendment (Inter-State Voyages) Regulation 2016

Section 1 - Name

This section provides that the name of the Regulation is the Maritime Transport and Offshore Facilities Security Amendment (Inter-State Voyages) Regulation 2016 (the Regulation).

Section 2 - Commencement

This section provides that the Regulation commences the day after the instrument is registered.

Section 3 - Authority

This section provides that the Regulation is made under the Maritime Transport and Offshore Facilities Security Act 2003 (the Act).

Section 4 - Schedules

This section provides that the Maritime Transport and Offshore Facilities Security Regulations 2003 (the Principal Regulations) are to be amended as set out in the Schedules to the Regulation.

Schedule 1 - Amendments

Item [1] - Subregulation 1.03(1)

The Maritime Transport and Offshore Facilities Security Amendment (Inter-State Voyages) Act 2016 (the Amending Act) removed the definition of 'inter-State voyage' from the Act, along with all references to the phrase 'inter-State voyage'. However, the Principal Regulations still refer to inter-State voyages in the context of certain ships carrying passengers and vehicles. To ensure this phrase continues to be interpreted consistently (i.e. in the same way it was under the Act), Item 1 inserts the definition used previously in the Act into the Principal Regulations.

Item [2] - Subregulation 1.03(1) (definition of large passenger ship)

Item 2 defines 'large passenger ship' as either a regulated Australian ship of a kind mentioned in paragraph 16(1)(a) of the Act, or a regulated foreign ship of a kind mentioned in subparagraph 17(1)(b)(i) of the Act, with a maximum capacity of 151 or more passengers. This reflects the changes made by the Amending Act.

With the repeal of regulation 1.85 (see Item 7), the definition of 'large passenger ship' in the Principal Regulations now only applies to notices made under regulation 7.30 (see Item 14).

Item [3] - Subregulation 1.03(1) (definition of passenger and vehicle ferry)

Item 5 prescribes a kind of Australian ship that is capable of carrying both passengers and vehicles and is used to carry both passengers and vehicles on inter-State voyages as a 'regulated Australian ship'. In light of this, the definition for 'passenger and vehicle ferry' in regulation 1.03 is no longer necessary and Item 3 repeals it.

Item [4] - Subregulation 1.03(1) (definition of small passenger ship)

Item 4 defines 'small passenger ship' as either a regulated Australian ship of a kind mentioned in paragraph 16(1)(a) of the Act, or a regulated foreign ship of a kind mentioned in subparagraph 17(1)(b)(i) of the Act, with a maximum capacity of more than 12 but no more than 150 passengers. This reflects the changes made by the Amending Act.

With the repeal of regulation 1.85 (see Item 7), the definition of 'small passenger ship' in the Principal Regulations now only applies to notices made under regulation 7.30 (see Item 14).

Item [5] - After regulation 1.70

Item 5 inserts new regulation 1.72 into the Principal Regulations to prescribe an Australian ship that is capable of being used to carry both passengers and vehicles on inter-State voyages, and is used to carry passengers and vehicles on inter-State voyages, as a regulated Australian ship. This amendment is necessary to ensure that domestic ferries used to carry passengers and vehicles on inter-State voyages continue to be regulated as security regulated ships under the Act. These kinds of ships will continue to be security regulated due to the nature of their operations in transporting large numbers of passengers and vehicles.

Item 5 does not alter the circumstances where a foreign ferry is capable of carrying passengers and vehicles, and is used to carry passengers and vehicles on overseas or inter-State voyages, is security regulated. Such ferries are security regulated ships if they meet the definition of 'regulated foreign ship' under section 17 of the Act. Item 5 also does not alter the circumstances where an Australian ferry is capable of carrying passengers and vehicles and is used to carry passengers and vehicles on overseas voyages, is security regulated.

Item [6] - Regulation 1.75

Item 6 removes the reference to 'inter-State' in regulation 1.75 of the Principal Regulations. This amendment is consequential to the Amending Act removing references to 'inter-State' from the definition of 'regulated Australian ship' under section 16 of the Act.

Item [7] - Regulation 1.85

Item 7 repeals regulation 1.85 of the Principal Regulations. Regulation 1.85 is no longer required as the Regulation links the definitions of small and large passenger ships and passenger and vehicle ferries to the definitions of 'regulated Australian ship' and 'regulated foreign ship' (which are security regulated ships) in the Act (see Items 2, 4 and 5 above).

Item [8] - Subregulation 3.160(1)

Item 8 replaces the reference to 'security regulated passenger ships' (an undefined term) in subregulation 3.160(1) of the Principal Regulations with the phrase of 'security regulated ships that are passenger ships'. This Item clarifies the kind of ships that the subregulation applies to, consistent with the language of the Act and Principal Regulations.

Item [9] - After subregulation 3.160(1)

Item 9 provides that port facility operators are required to set out in their maritime security plans procedures for screening and clearing persons and their baggage boarding passenger ships which are regulated foreign ships, or regulated Australian ships on overseas voyages. Port facility operators will not be required to set out these procedures for passengers and their baggage boarding other kinds of passenger ships, such as Australian ships that are capable of carrying, and are used to carry, passengers and vehicles on inter-State voyages.

Port facility operators will be required to conduct screening and clearing of passengers and their baggage boarding any type of passenger ship that is security regulated (including ships that are capable of carrying and are used to carry passengers and vehicles) if a cleared zone is established at the port facility in the future. An example of where this could occur is in response to an imminent or probable threat in relation to a ship docking at the port facility.

Item 9 does not affect the existing requirement for a port facility operator to set out in their maritime security plan procedures for detecting and dealing with weapons and prohibited items in connection with the loading or unloading of ships that are capable of carrying, and are used to carry, passengers and vehicles.

Item [10] - Paragraph 7.20(a)

Item 10 replaces the reference to 'security regulated passenger ships' (an undefined term) in paragraph 7.20(a) of the Principal Regulations with the phrase of 'security regulated ships that are passenger ships'. This Item clarifies the kind of ships that the paragraph applies to, consistent with the language of the Act and Principal Regulations.

Item [11] - Subregulation 7.25(1)

Item 11 replaces the reference to 'security regulated passenger ships' (an undefined term) in subregulation 7.25(1) of the Principal Regulations with the phrase of 'security regulated ships that are passenger ships'. This Item clarifies the kind of ships that the subregulation applies to, consistent with the language of the Act and Principal Regulations.

Item [12] - Paragraph 7.25(3)(a)

Item 12 replaces the reference to 'security regulated passenger ships' (an undefined term) in paragraph 7.25(3)(a) of the Principal Regulations with the phrase of 'security regulated ships that are passenger ships'. This Item clarifies the kind of ships that the paragraph applies to, consistent with the language of the Act and Principal Regulations.

Item [13] - Subregulations 7.25(4), 7.27(1), 7.28(1) and 7.29(1)

Item 13 replaces the reference to 'security regulated passenger ships' (an undefined term) in subregulations 7.25(4), 7.27(1), 7.28(1) and 7.29(1) of the Principal Regulations with the phrase of 'security regulated ships that are passenger ships'. This Item clarifies the kind of ships that these subregulations apply to, consistent with the language of the Act and Principal Regulations.

Item [14] - After subregulation 7.30(1)

This Item clarifies that notices issued under subregulation 7.30(1) of the Principal Regulations may apply to small and large passenger ships as defined under regulation 1.03 (see Items 2 and 4 above). This Item does not limit the kinds of security regulated ships a notice issued under subregulation 7.30(1) may apply to.

Item [15] - Subregulations 7.35(3), (4), (5) and (6)

Item 13 replaces the reference to 'security regulated passenger ships' (an undefined term) in subregulations 7.35(3), 7.35(4), 7.35(5) and 7.35(6) of the Principal Regulations with the phrase of 'security regulated ships that are passenger ships'. This Item clarifies the kind of ships that these subregulations apply to, consistent with the language of the Act and Principal Regulations.