TRANSPORT SECURITY LEGISLATION AMENDMENT (SECURITY ASSESSMENTS) REGULATION 2016 (F2016L01659) EXPLANATORY STATEMENT

Commonwealth Numbered Regulations - Explanatory Statements

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TRANSPORT SECURITY LEGISLATION AMENDMENT (SECURITY ASSESSMENTS) REGULATION 2016 (F2016L01659)

EXPLANATORY STATEMENT

 

Minute No. 29 of 2016 - Minister for Infrastructure and Transport

 

Subject -

Aviation Transport Security Act 2004

 

Maritime Transport and Offshore Facilities Security Act 2003

 

 

Transport Security Legislation Amendment (Security Assessments) Regulation 2016

The Aviation Transport Security Act 2004 (the Aviation Act) establishes a regulatory framework to safeguard against unlawful interference with civil aviation in Australia.  The Aviation Act establishes minimum security requirements for civil aviation in Australia by imposing obligations on persons engaged in civil aviation related activities.  This includes providing for the establishment of various secure areas in the security controlled airports for the purpose of subjecting those zones and areas to additional security requirements.

Subsection 133(1) of the Aviation 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 Aviation Act.

The Maritime Transport and Offshore Facilities Security Act 2003 (the Maritime 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-related activities.

 

Subsection 209(1) of the Maritime 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 Maritime Act.

 

The Aviation Transport Security Regulations 2005 (the Aviation Regulations) and the Maritime Transport and Offshore Facilities Security Regulations 2003 (the Maritime Regulations) provide for additional security requirements and address matters such as controlling the movement of people and things; restricting access to zones and areas, including conditions of entry; and the issue and use of security passes and other identification systems.

 

In addition, the Aviation and the Maritime Regulations establish the regulatory framework for the aviation security identification card (ASIC) and the maritime security identification card (MSIC) schemes.

 

ASICs and MSICs are nationally consistent identification cards which show that the holder has met the minimum security requirements to remain unmonitored within an aviation, maritime or offshore security zone.  As a matter of practice ASICs and MSICs are required by airport and airline workers, security and screening officers, port, port facility and port service workers; stevedores, transport operators such as truck drivers, seafarers on Australian security regulated ships; and people who work on and/or supply offshore oil and gas facilities.

 

A person who is over the age of 18 cannot be issued with an ASIC or MSIC unless they have undergone a background check.  AusCheck, a branch within the Commonwealth Attorney-General's Department (AGD), is responsible for coordinating the background checking for the ASIC and MSIC schemes.  A background check is defined by the AusCheck Act 2007 as an assessment of information relating to one or more of the following:  the person's criminal history, matters relevant to a security assessment by the Australian Security Intelligence Organisation (ASIO), and the individual's citizenship or residency status or their right to work in Australia. 

 

Currently there is no requirement under the Aviation or Maritime Regulations for a person who is under 18 to undertake a background check if they apply for an ASIC or MSIC.

 

The ASICs and MSICs are issued by issuing bodies, which can include aviation and maritime industry participants, bodies representing participants, bodies representing employees of participants, and Commonwealth authorities or agencies.  While the ASIC and MSIC are not access cards, they allow the holder to remain, with lawful reason, unmonitored within an aviation security zone or area or maritime security zone respectively.

 

The purpose of the proposed Transport Security Legislation Amendment (Security Assessments) Regulation 2016 (the proposed Regulation) is to amend the Aviation Regulations and the Maritime Regulations to introduce the requirement that all ASIC and MSIC applicants, under the age of 18 (minors), undergo a background check (national security assessment component only).  This proposal is in response to the changing global security environment, the increasing involvement of minors in terrorist offences and concerns regarding the radicalisation of young people.   

 

Extensive consultation has occurred with the Attorney-General's Department (AusCheck Branch) and the Australian Security Intelligence Organisation.  Industry was consulted between April and June 2016 through direct one-on-one meetings with ASIC and MSIC issuing bodies and presentations at Issuing Body Forums.  Industry has broadly supported the changes.

 

The Office of Best Practice Regulation (OBPR) has been consulted in relation to the amendments to the Aviation Regulations and the Maritime Regulations.  The OBPR has advised that a Regulatory Impact Statement is not required (OBPR ID: 20338)

 

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

 

The Aviation and Maritime Acts 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 Legislative Instruments Act 2003.

 

Schedules 1 and 2 of the Regulation commence on 1 November 2016.

 

Details of the Regulation are set out in the Attachment B.

 

Authority:

 

Subsection 133(1) of the

Aviation Transport Security Act 2004

 

Subsection 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

 

Transport Security Legislation Amendment (Security Assessments) Regulation 2016

The Transport Security Legislation Amendment (Security Assessments) Regulation 2016 (the Regulation) 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 regulatory instrument

The Regulation amends the Aviation Transport Security Regulations 2005 (the Aviation Regulations) and the Maritime Transport and Offshore Facilities Security Regulations 2003 (the Maritime Regulations) to:

*                require a national security assessment of persons under 18 years of age (minors), who are applying for an aviation security identification card (ASIC) or a maritime security identification card (MSIC);

*                require that issuing bodies obtain written consent from the applicant if they are over 14 years of age;

*                require that issuing bodies obtain written consent from a parent or guardian for applicants under 14 years of age; and

*                enable the refusal or cancellation of cards if the security assessment is adverse or qualified.

Human rights implications

The Transport Security Legislation Amendment (Security Assessments) Regulation 2016 (the Regulation) engages the right of privacy for children, from article 16 of the United Nations Convention on the Rights of the Child 1989 (CRC). This right states:

*         no child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation; and

*         the child has the right to the protection of the law against such interference or attacks.

It also engages the Privacy Act 1988 (the Privacy Act), which sets no minimum age at which an individual can make decisions regarding his or her personal information. Although guidelines to the National Privacy Principles suggest that each case must be considered individually, and gives guidance as to when a young person may have the capacity to make a decision on his or her own behalf, the decision has been made that individuals over the age of 14 years may give consent for a national security assessment.

At present, there is no structure in the Privacy Act for making decisions on behalf of an individual unable to make a decision concerning the privacy of his or her personal information. It is assumed that parents or guardians are responsible for making decisions on behalf of children or young people incapable of making the decision themselves. It is with this reference that the decision was made that parents or guardians of applicants under the age of 14 years must give consent on behalf of the applicant.

Information collected about an individual for the purposes of a background check is protected by information handling provisions in the AusCheck Act 2007 and the AusCheck Regulations.  A breach of these provisions is an offence punishable by up to two years' imprisonment, providing additional protection for the information obtained and held by AusCheck.

Conclusion

The Regulation is compatible with the human rights and freedoms recognised or declared in the instruments listed in section 4 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

 

DARREN CHESTER

Minister for Infrastructure and Transport


 

ATTACHMENT B

 

Details of the Transport Security Legislation Amendment (Security Assessments) Regulation 2016

 

Section 1 - Name

 

This section provides that the name of the Regulation is the Transport Security Legislation Amendment (Security Assessments) Regulation 2016.

 

Section 2 - Commencement

 

This section provides for the commencement of the Regulation.

 

Schedule 1 of the Regulation commence immediately after the commencement of Part 1 of Schedule 1 to the Transport Security Legislation Amendment (Identity Security) Regulation 2016.  Part 1 of Schedule 1 to the Transport Security Legislation Amendment (Identity Security) Regulation 2016 commence on 1 November 2016.

 

Schedule 2 of the Regulation commence immediately after the commencement of Part 1 of Schedule 2 to the Transport Security Legislation Amendment (Identity Security) Regulation 2016.  Part 1 of Schedule 2 to the Transport Security Legislation Amendment (Identity Security) Regulation 2016 commence on 1 November 2016.

 

Sections 1 to 4 and anything else in the Regulation not covered by the above paragraph commence the day after this instrument is registered.

 

This section also provides that information about the date of commencement may be inserted into column 3 of the commencement table at any time (but the information does not form a part of the instrument).

 

Section 3 - Authority

 

This section provides that the Transport Security Legislation Amendment (Security Assessments) Regulation 2016 is made under the Aviation Transport Security Act 2004 and the Maritime Transport and Offshore Facilities Security Act 2003.

 

Section 4 - Schedules

 

This section provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

 

 

 

 

 

 

 

 

Schedule 1 - Aviation transport security

 

Aviation Transport Security Regulations 2005

 

Item [1] - Regulation 1.03

 

Regulation 1.03 of the Aviation Regulations contains definitions.

 

Item 1 inserts a definition of a 'parent'.  The insertion of the definition is consequential due to reference to a parent in item 2.

 

Item [2] - Subregulation 6.28(3)

 

Subregulation 6.28(3) of the Aviation Regulations does not require an ASIC applicant of under 18 years of age to undergo a background check before being issued an ASIC.

 

Item 2 amends subregulation 6.28(3) to require an ASIC applicant of under 18 years of age to undergo the national security assessment component of a background check.

 

Paragraph 6.28(3)(b) provides that if a person applying for an ASIC is under 14 years of age, the issuing body must obtain written consent from the applicant's parent or guardian, for the application (including the background check) to progress.

 

Item [3] - Subregulation 6.32(3)

 

Subregulation 6.32(3) of the Aviation Regulations specifies that an ASIC issued to a person under 18 years of age must have an expiry date that is no later than six months after the person's 18th birthday.

 

Item 3 amends subregulation 6.32(3) to clarify that an ASIC issued to a person under 18 has an expiry date which is the earlier of either six months after the persons 18th birthday, or two years after the last day of the month in which the ASIC holder's background check was completed.  

 

Item [4] - Paragraph 6.38C(3)(b)

 

Paragraph 6.38C(3)(b) of the Aviation Regulations provides that a person who is under the age of 18 may be issued with a visitor identification card (VIC) without first confirming his or her identity.

 

Item 4 repeals this paragraph to require that persons under the age of 18 have their identity confirmed before they are issued a VIC.  The amendment improves identity verification for VICs, and delivers a better security outcome.

 

Item [5] - Subregulation 6.43(3)

 

Subregulation 6.43(3) of the Aviation Regulations provides that an ASIC issued to a person under 18 years of age, must be cancelled if signed consent to complete a criminal record check and a security assessment has not been received within 3 months of the card holder's 18th birthday.

 

Item 5 repeals subregulation 6.43(3), as item 2 introduces the requirement for applicants under the age of 18 to undergo a background check before being issued with an ASIC; and item 3 clarifies that the maximum validity of an ASIC issued to an applicant under 18 years of age.

 

Item 5 is consequential to items 2 and 3.

 

Item [6] - Subregulation 6.43(3A)

 

Subregulation 6.43(3A) stipulates that an issuing body has committed an offence if it fails to cancel an ASIC under subregulation 6.43(3).

 

Item 6 is consequential to item 5.

 

Item [7] - Subregulation 6.43(6) and (7)

 

Subregulation 6.43(6) stipulates that after an issuing body cancels an ASIC under subregulation 6.43(3), they must inform the cardholder in writing that the card has been cancelled and the reason for the cancellation, as well as tell the Secretary AGD about the cancellation.

 

Subregulation 6.43(7) stipulates that a cancellation under subregulation 6.43(3) takes effect once the cardholder is notified of the cancellation in writing.

 

Item 7 is consequential to item 5.

 

Item [8] - In the appropriate position in Part 10

 

Clause 10.20 Amendments made by the Transport Security Legislation Amendment (Security Assessments) Regulation 2016

 

Clause 10.20 provides that Schedule 1 of the Regulation commences on 1 November 2016 and applies in relation to applications for ASICs and VICs made on or after 1 November 2016.

 


 

Schedule 2 - Maritime transport and offshore facilities security

 

Maritime Transport and Offshore Facilities Security Regulations 2003

 

Item [1] - Subregulation 1.03(1)

 

Regulation 1.03(1) of the Maritime Regulations contains definitions.

 

Item 1 inserts the definition of a parent. The insertion of the definition is consequential due to reference to a parent in item 2.

 

Item [2] - Subregulation 6.08C(4)

 

Subregulation 6.08C(4) of the Maritime Regulations does not require an MSIC applicant of under 18 years of age to undergo a security assessment, before being issued an MSIC.

 

Item 2 amends subparagraph 6.08C(4) to require that a security assessment component of a background check be completed for applicants under 18 years of age.

 

Item 2 clarifies when an application is received from a person under 14 years of age, the issuing body must obtain written consent from the applicant's parent or guardian for the application (including the background check) to progress.

 

Item [3] - Subregulation 6.08I(2)(a)

 

Subregulation 6.08I(2)(a) of the Maritime Regulations specifies that an MSIC issued to a person under the age of 18 must have an expiry date that is no later than six months after the person's 18th birthday.

 

Item 3 amends subregulation 6.08I(2)(a) to clarify that an MSIC issued to a person who is under 18 has an expiry date which is either the earlier of six months after the persons 18th birthday, or, two years after the date the person's background check was completed.

 

Item [4] - In the appropriate position in Schedule 2

 

Clause 106 Amendments made by the Transport Security Legislation Amendment (Security Assessments) Regulation 2016

 

Clause 106 provides that Schedule 2 of the Regulation commences on 1 November 2016 and applies in relation to applications for MSICs made on or after 1 November 2016.

 

 


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