TRANSPORT SECURITY LEGISLATION AMENDMENT (FOREIGN OFFICIALS) REGULATIONS 2021 (F2021L00971) EXPLANATORY STATEMENT

Commonwealth Numbered Regulations - Explanatory Statements

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TRANSPORT SECURITY LEGISLATION AMENDMENT (FOREIGN OFFICIALS) REGULATIONS 2021 (F2021L00971)

EXPLANATORY STATEMENT

Issued by authority of the Minister for Home Affairs

Aviation Transport Security Act 2004

Maritime Transport and Offshore Facilities Security Act 2003

Transport Security Legislation Amendment (Foreign Officials) Regulations 2021

The Aviation Transport Security Act 2004 (the Aviation Act) and the Aviation Transport Security Regulations 2005 (the Aviation Regulations) operate to safeguard against unlawful interference with aviation. The Maritime Transport and Offshore Facilities Security Act 2003 (the Maritime Act) and the Maritime Transport and Offshore Facilities Security Regulations 2003 (the Maritime Regulations) operate to safeguard against unlawful interference with maritime transport and offshore oil and gas facilities.

To achieve this purpose, the Aviation Act and the Maritime Act each establish a regulatory framework and set, or provide for another instrument to set, minimum security requirements for the Australian aviation and maritime industries by imposing obligations on persons engaged in certain aviation and maritime-related activities.

Legislative authority

Subsection 133(1) of the Aviation Act and subsection 209(1) of the Maritime Act each provide 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.

Purpose

The purpose of the Transport Security Legislation Amendment (Foreign Officials) Regulations 2021 (the Regulations) is to amend the Aviation Regulations and the Maritime Regulations to introduce measures that would provide for foreign officials who require access to aviation or maritime secure areas of airports, seaports and offshore facilities to be issued a specific type of security identification card to be able to carry out their official functions. They will be required to be escorted at all times when in a secure area.

Individuals need to hold an aviation security identification card (ASIC) or maritime security identification card (MSIC) in specified circumstances, including where they have access to aviation or maritime secure areas or zones or perform a security sensitive role. An ASIC or MSIC confirms the holder has a valid background check and is not a threat to aviation or maritime security.

Foreign officials are generally issued visitor identification cards (VICs) and are escorted by Australian Border Force officers while conducting official duties in the secure areas of security-controlled airports. While VICs can be issued for a single period of up to 28 days, they are usually issued for a 24 hour period and must be reissued with each visit. VIC holders are limited to holding a VIC for a maximum total period of 28 days within any 12-month period per facility.

In particular, the Regulations amend the Aviation Regulations and the Maritime Regulations to introduce measures that:

* define the term foreign official for the purposes of the relevant Parts of the Aviation Regulations and the Maritime Regulations;

* expand the definition of operational need to provide that a foreign official has an operational need to hold an ASIC or MSIC if they are required to have access to a secure area in order to perform activities related to the foreign official's duties. Having an operational need is one of the criteria for being issued an ASIC or MSIC;

* provide that a foreign official who satisfies the relevant criteria for an ASIC or MSIC may only be issued a white ASIC or white MSIC;

* provide that a foreign official is exempt from displaying a valid ASIC while in a secure area if they display a white ASIC and are escorted by someone displaying a valid ASIC ('valid ASIC' is a defined term in the Aviation Regulations);

* introduce a new penalty for persons escorting a foreign official, who holds a white ASIC, for failing to supervise the foreign official;

* introduce a new penalty for foreign officials holding a white ASIC for entering, or staying in, a secure area other than for a lawful purpose; and

* make supporting technical amendments.

Consultation

The Department of Home Affairs (the Department), Australian Border Force (ABF) and the Department of Foreign Affairs and Trade (DFAT) conducted a trial for issuing grey ASICs to foreign diplomats and consular officials from a small number of countries from January 2017 to April 2018. Grey ASICs permit the holder to remain unescorted in landside secure areas of a security-controlled airport.

During the trial, ASIC-holding officials (and in some cases, their foreign visitors) were escorted to the international departure lounge by an ABF officer and permitted to stay there unsupervised until their visitor's flight arrived/departed. The official was then escorted back to the public area of the airport.

The trial received a low participation rate, with feedback being that holding an ASIC provided limited benefit, so the trial was not extended. Despite this response, after the trial ceased, officials from a number of countries, including those that did not participate, applied for and received cards from a number of external issuing bodies.

Bearing in mind the reciprocal arrangements in place for Australian officials performing similar roles overseas, it is considered beneficial for foreign officials to be able to continue to apply for, and where approved, to be issued an ASIC or an MSIC.

However, in the view of all agencies involved in the original trial and those canvassed afterwards, it is appropriate for foreign officials to only hold white ASICs or MSICs that will permit escorted and supervised access to secure areas of airports or seaports and offshores facilities. Guidance material has been provided to foreign missions via DFAT in relation to these amendments.

Regulation Impact Statement

The Office of Best Practice Regulation (OBPR) was consulted prior to making the Regulations and has advised that a Regulatory Impact Statement is not required (OBPR Reference 43053).

Financial Impact Statement

The financial impact of the regulations on the Department is minor, and any costs associated with the implementation of the amendments will be met from within existing resources.

Statement of Compatibility with Human Rights

A Statement of Compatibility with Human Rights has been completed in relation to the amendments to the regulations and assesses that the amendments are compatible with Australia's human rights obligations. A copy of the Statement of Compatibility with Human Rights is at Attachment A.

Details of the Regulations are set out in Attachment B.

The Regulations are a legislative instrument for the purposes of the Legislation Act 2003.

The Regulations commence on the day after they are registered.

Statement of Compatibility with Human Rights

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

Transport Security Legislation Amendment (Foreign Officials) Regulations 2021

This Disallowable 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 Disallowable Legislative Instrument

The Transport Security Legislation Amendment (Foreign Officials) Regulations 2021 (the Regulations) amend the Aviation Regulations and the Maritime Regulations to provide for foreign diplomats and consular officials to be issued with white aviation and maritime security identification cards (ASICs and MSICs).

Individuals need to hold an ASIC or MSIC in specified circumstances, including where they have access to aviation or maritime secure areas or zones or perform a security sensitive role. An ASIC or MSIC confirms the holder has a valid background check and is not a threat to aviation or maritime security.

The Regulations define the term foreign official and make changes to the definition of 'operational need' in the Aviation and Maritime Regulations to explicitly include a foreign official as a person who has an operational need for a white ASIC or MSIC.

Foreign officials are generally issued visitor identification cards (VICs) and are escorted by Australian Border Force (ABF) officers while conducting official duties in the secure areas of security-controlled airports. While VICs can be issued for a single period of up to 28 days, they are usually issued for a 24 hour period and must be reissued with each visit. VIC holders are limited to holding a VIC for a maximum total period of 28 days within any 12-month period per facility.

The Regulations allow foreign officials to apply for a white ASIC valid for two years, which allows the holder to avoid the VIC application process for each visit and the ability to use the card for more than 28 days in a year. Foreign officials will also be able to apply for a white MSIC. As white ASIC/MSICs do not provide unescorted access, foreign officials will continue to be escorted by a person with an appropriate ASIC or MSIC (normally an ABF officer) while in secure areas of security controlled airports, seaports or offshore facilities.

The Aviation Regulations provide that a person escorting someone with a VIC or a temporary aircrew card (TAC) is obliged to ensure the person is supervised at all times. A failure to meet that obligation results in a penalty on the person escorting. The Regulations include a similar penalty for a person escorting a foreign official with a white ASIC. This is a strict liability offence. The Regulations also include an obligation for foreign officials to leave the secure area immediately, if they notice they are no longer being supervised. There is no penalty associated with this obligation.

Foreign officials can continue to use VICs issued by facility operators rather than applying for a white ASIC/MSIC.

Previously, foreign officials did not meet the operational need requirements to hold an ASIC or an MSIC. Despite this, a small number of foreign officials were issued grey or red ASICs and blue MSICs by some issuing bodies, which allow the holder to legally remain unescorted in secure areas of security-controlled airports, seaports or offshore facilities. The Regulations clarify access arrangements for foreign officials and provide a consistent approach to issuing cards.

Some countries place a symbolic value on their diplomatic or consular officials holding ASICs or MSICs. Other countries also provide reciprocal cards to Australian Government officials posted to the location, which is valued by those officials and the Australian Government more generally. Providing foreign officials with the option to apply for a white ASIC or MSIC seeks to address these needs.

The Aviation Regulations include a provision requiring that persons with a red ASIC, grey ASIC, VIC or TAC must not enter or stay in a secure area other than for a lawful purpose. Contravention of that provision can encounter a maximum of 5 penalty units. The Regulations include foreign officials that hold a white ASIC in that provision.

Human rights implications

The Regulations engage the right to the presumption of innocence under Article 14(2) of the International Covenant on Civil and Political Rights (ICCPR).

Right to presumption of innocence

The Regulations introduce a strict liability offence for failure to properly supervise, while in a secure area, a foreign official that holds a white ASIC. The offence engages Article 14(2) of the ICCPR, which provides that everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to the law. The presumption of innocence imposes on the prosecution the burden of proving the charge and guarantees that no guilt can be presumed until the charge has been proved beyond a reasonable doubt.

Strict liability offences engage and limit the presumption of innocence as they allow for the imposition of criminal liability without the need to prove fault for any of the physical elements of the offence

Importantly however, a strict liability offence will not violate the presumption of innocence if it pursues a legitimate objective and is reasonable, necessary and proportionate to that objective. The offence introduced by the Regulations aims to achieve the legitimate objective of safeguarding against unlawful interference with aviation by ensuring that persons in secure areas, that have not been cleared for unescorted access, are appropriately supervised at all times.

The offence achieves this legitimate objective by serving as a deterrent to persons required to escort and supervise foreign officials who have not been cleared for unescorted access in secure areas. An individual who is not properly escorted in a secure area of a security controlled airport may have an opportunity to interfere with aircraft or security systems which could pose a risk to national security. Therefore, establishing this deterrent is important to reduce the risk of unlawful interference with aviation, thereby maintaining the integrity of Australia's aviation security.

The penalty imposed is a consistent penalty with those imposed for failing to display as ASIC in other parts of the Aviation Regulations (for example the penalty for failing to display an ASIC when checking in bags) and is proportionately low when compared to other penalties imposed by the Aviation Regulations.

As a safeguard, an accused will always have the defence of honest and reasonable mistake of fact. If relied upon, this is an evidential burden on the defence to prove, on the balance of probabilities, that the accused had an honest and reasonable mistaken belief of fact, which, if those facts existed, would not have constituted an offence.

Conclusion

This Disallowable Legislative Instrument is compatible with human rights because, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate to maintaining the integrity of Australia's aviation and maritime security.

Hon Karen Andrews MP, Minister for Home Affairs

Details of the Transport Security Legislation Amendment (Foreign Officials) Regulations 2021

Section 1 - Name

This section provides that the title of the Regulations is the Transport Security Legislation Amendment (Foreign Officials) Regulations 2021 (the Regulations).

Section 2 - Commencement

This section provides for the commencement of the Regulations, as set out in the table in subsection 2(1).

Table Item 1 of subsection 2(1) provides for the whole of the Regulations to commence on the day after registration.

Subsection 2(2) clarifies that information in column 3 of the table in subsection (1) is not part of the instrument, and that information may be inserted there, or edited, in any published version of the instrument.

Section 3 - Authority

This section provides that the Regulations are made under the Aviation Transport Security Act 2004 (the Aviation Act) and under the Maritime Transport and Offshore Facilities Security Act 2003 (the Maritime Act).

Section 4 - Schedules

This section provides for the Aviation Transport Security Regulations 2005 (the Aviation Regulations) and the Maritime Transport and Offshore Facilities Security Regulations 2003 (the Maritime Regulations) to be amended as set out in the Schedule to the Regulations.

Schedule 1--Amendments

Aviation Transport Security Regulations 2005

Items 1 to 7 of Schedule 1 to the Regulations amend the Aviation Regulations to define the term foreign official, make provision for certain foreign officials to be included in the definition of operational need in relation to being issued a white aviation security identification card (ASIC), outline the display and escorting arrangements for a foreign official who holds a white ASIC while visiting secure areas, introduce new penalties and to make clear the application of Items 1 to 6. The amendments have the effect that foreign officials may only be issued a white ASIC and must be escorted while in a secure area.

Item [1] - Regulation 1.03

Regulation 1.03 of Part 1 of the Aviation Regulations deals with definitions for the Aviation Regulations.

This amendment introduces the term foreign official, and provides meaning in relation to that term for the purposes of the Aviation Regulations.

The definition provides that foreign official means any of the following:

* a member of the diplomatic staff (including the head) of a diplomatic mission established in Australia;

* a member of the consular staff (including the head) of a consular post established in Australia;

* any other member of the staff of such a diplomatic mission or consular post.

The purpose and effect of the new definition is to make clear that a person who fits one of the descriptions above, is a foreign official for the purposes of the Aviation Regulations. This includes both foreign nationals and Australian citizens.

Item [2] - After regulation 3.08

Subdivision 3.2.1 of Division 3.2 of Part 3 deals with the display and use of ASICs, visitor identification cards (VICs) and temporary aircrew cards (TACs) in secure areas.

The amendment introduces new regulation 3.08A and provides, under subregulation 3.08A(1), that a foreign official does not need to display a valid ASIC while in a secure area if they are displaying a white ASIC and are escorted by someone displaying a valid ASIC. 'Valid ASIC' is defined in the Aviation Regulations.

The purpose of the new amendment is to make clear that a foreign official displaying a white ASIC would not need to display a valid ASIC or a VIC while in a secure area.

New subregulations 3.08A(2) and (3) provide that a person escorting a foreign official who holds a white ASIC must ensure they are supervised at all times and introduces a penalty on the person escorting if they do not meet this requirement. In considering the application of this penalty to persons escorting foreign officials, the Commonwealth Guide to Framing Offences, Infringement Notices and Enforcement Powers (the Guide) was consulted. This is a strict liability offence.

The penalty for contravention of subregulation 3.08A(2) is 5 penalty units. This is considered appropriate as:

* in relation to requirements for airside areas, the maximum penalty for an offence permitted to be prescribed in the Aviation Regulations for an accredited air cargo agent or any other person is 50 penalty units (see paragraph 35(3)(c) of the Aviation Act);

* in relation to requirements for landside areas, the maximum penalty for an offence permitted to be prescribed in the Aviation Regulations for an accredited air cargo agent or any other person is 50 penalty units (see paragraph 37(3)(c) of the Aviation Act);

* the offence serves as a deterrent to persons required to escort and supervise foreign officials who have not been cleared for unescorted access in secure areas;

* establishing this deterrent is important to reduce the risk of unlawful interference with aviation, thereby maintaining the integrity of Australia's aviation security; and

* the penalty imposed is a consistent penalty with those imposed for failing to display an ASIC in other parts of the Aviation Regulations (for example the penalty for failing to display an ASIC when checking in bags) and is proportionately low when compared to other penalties imposed by the Aviation Regulations.

New subregulation 3.08A(4) places an obligation on foreign officials to leave the secure area immediately, if they notice they are no longer being supervised. There is no penalty associated with this obligation.

The effect of this new regulation is that a foreign official who holds a white ASIC will be able to access a secure area while escorted, and the person escorting the foreign official will be obligated to ensure the foreign official was not left unsupervised, or will be subject to a penalty.

Item [3] - Regulation 3.11

Regulation 3.11 provides that the holder of a red ASIC, grey ASIC, VIC or TAC must not enter, or stay in, a secure area other than for a lawful purpose. Failure to meet this requirement attracts a penalty.

The amendment inserts (1) before the existing regulation. This amendment is consequential to the amendment in Item 4.

Item [4] - At the end of regulation 3.11 (after the penalty)

The amendment introduces new subregulation 3.11(2) providing that a foreign official who is the holder of a white ASIC must not enter, or stay in, a secure area other than for a lawful purpose. Consistent with subregulation 3.11(1), failure to meet this requirement attracts a penalty of 5 penalty units.

Based on the relevant parts of the Guide, this penalty is considered appropriate as:

* the offence serves as a deterrent to foreign officials who may enter secure areas of an airport for unlawful purposes;

* establishing this deterrent is important to reduce the risk of unlawful interference with aviation, thereby maintaining the integrity of Australia's aviation security; and

* the penalty imposed is consistent with the penalty in subsection 3.11(1) (previously section 3.11) for holders of a red ASIC, grey ASIC, VIC or TAC who enter or remain in a secure area other than for a lawful purpose.

The purpose of this amendment is to ensure that persons in secure areas, including foreign officials, are there for a lawful purpose.

Item [5] - Subregulation 6.01(1) (at the end of the definition of operational need)

A criterion that must be satisfied for the issue of an ASIC is that the person has an operational need to hold an ASIC.

Operational need is defined in subregulation 6.01(1) of Division 6.1 of Part 6 of the Aviation Regulations, for the purposes of Part 6.

Previously, paragraphs (a) to (h) of the definition listed a variety of circumstances in which a person would have an operational need to hold an ASIC.

This amendment inserts new paragraph (i) at the end of this definition.

New paragraph (i) operates to provide that operational need means a requirement for a foreign official to have access to a secure area of an airport in order to perform activities related to the foreign official's official duties.

As an example, a foreign official may require such access to meet or farewell visiting heads of state or other foreign dignitaries, to collect or dispatch diplomatic bags or to perform other activities that relate to their official duties.

The purpose and effect of this amendment is to make clear that, in addition to the classes of person already covered by paragraphs (a) to (h) of the definition, a foreign official who has a requirement to have access to a secure area of an airport in order to perform activities related to the foreign official's official duties has an operational need.

Item [6] - Subregulations 6.03(7) and (9)

Regulation 6.03 of Division 6.1 of Part 6 of the Aviation Regulations deals with kinds of ASICs: red, grey and white.

Previously, subregulation 6.03(7) provided that a red ASIC, grey ASIC or white ASIC has effect, for the purposes of carrying out an activity referred to in paragraph (c), (d), (e), (f), (g) or (h) of the definition of operational need in subregulation 6.01(1), in any place.

Further, previous subregulation 6.03(9) provided that an ASIC issued to a person because he or she has an operational need referred to in paragraph (c), (d), (e), (f), (g) or (h) of the definition of operational need in subregulation 6.01(1) must be a white ASIC.

This amendment repeals "or (h)" and substitutes ", (h) or (i)" in subregulations 6.03(7) and 6.03(9).

This amendment is consequential to the amendment made by Item 5 above.

The purpose and effect of this amendment is to include a reference, in subregulations 6.03(7) and 6.03(9), to new paragraph (i) of the definition of operational need made by Item 5 to this Instrument.

Item [7] - In the appropriate position in Part 10

This amendment inserts new Division 17 into Part 10 of the Aviation Regulations.

New Division 17, which deals with amendments made by the Transport Security Legislation Amendment (Foreign Officials) Regulations 2021, inserts new regulation 10.41.

New regulation 10.41

New regulation 10.41 provides that the amendments made by Items 1 to 7 of Schedule 1 to the Transport Security Legislation Amendment (Foreign Officials) Regulations 2021 do not apply in relation to an ASIC that is in force immediately before the commencement of Schedule 1 to this Instrument.

The purpose of this regulation is to make clear that amendments made by Schedule 1 to this Instrument do not apply to a foreign official who held an ASIC before Schedule 1 to the Transport Security Legislation Amendment (Foreign Officials) Regulations 2021 commences, in relation to that ASIC.

The effect of this regulation is that the amendments made by this Instrument do not apply to a foreign official who is held an ASIC before Schedule 1 to the Transport Security Legislation Amendment (Foreign Officials) Regulations 2021 commences.

Maritime Transport and Offshore Facilities Security Regulations 2003

Items 8 to 10 of Schedule 1 to the Regulations amend the Maritime Regulations to define the term foreign official, make provision for certain foreign officials to be included in the definition of operational need in relation to being issued a white maritime security identification card (MSIC), and to make clear the application of Items 8 and 9 clear. The amendments have the effect that foreign officials may only be issued a white MSIC and have escorted access to secure zones for the purposes of the foreign official's official duties.

Item [8] - Subregulation 6.07B(1)

Subregulation 6.07B(1) of Division 6.1A of Part 6 of the Maritime Regulations deals with definitions for Part 6 of the Maritime Regulations.

This amendment introduces the term foreign official, and provides meaning in relation to that term for the purposes of Part 6 of the Maritime Regulations.

The definition provides that foreign official means any of the following:

* a member of the diplomatic staff (including the head) of a diplomatic mission established in Australia;

* a member of the consular staff (including the head) of a consular post established in Australia;

* any other member of the staff of such a diplomatic mission or consular post.

The primary purpose and effect of the new definition is to make clear that a person who meets one of the descriptions above would be a foreign official for the purposes for the purposes of Part 6 of the Maritime Regulations. An additional purpose and effect of the new definition is to create consistency in the Maritime Regulations in relation to MSICs with the terms defined and requirements set out in the Aviation Regulations in relation to ASICs.

Item [9] - At the end of subregulation 6.07F(2)

This amendment inserts new paragraph (c) in subregulation 6.07F(2) of Division 6.1A of Part 6 of the Maritime Regulations, which deals with the meaning of operational need for the purposes of Division 6.1A.

Previously, paragraphs 6.07F(2)(a) and (b) provided that, for the purposes of Division 6.1A of Part 6 of the Maritime Regulations, a person has an operational need to hold a white MSIC if the person is required to be directly involved in the issue of MSICs for an issuing body; or the person is an employee of a Commonwealth agency who is required to be directly involved in making decisions relating to the issuing of MSICs.

A person who holds a white MSIC must be escorted, or continuously monitored, by another person with a valid MSIC (either a blue MSIC or temporary MSIC) while in a maritime security zone. 'Valid blue MSIC' and 'valid temporary MSIC' are defined terms in the Maritime Regulations.

The amendment to subregulation 6.07F(2) introduces the concept of a foreign official as a person who has an operational need to hold a white MSIC.

New paragraph 6.07F(2)(c) operates to provide that, for the purposes of Division 6.1A of Part 6 of the Maritime Regulations, a person has an operational need to hold a white MSIC if the person is a foreign official who requires access to a maritime security zone for the purposes of the foreign official's official duties.

The purpose and effect of new paragraph 6.07F(2)(c) is to make clear that, in addition to the classes of person already catered for by paragraphs 6.07F(2)(a) and (b), a foreign official has an operational need to hold a white MSIC in order to have escorted access to a maritime security zone for the purposes of the foreign official's official duties.

Item [10] - In the appropriate position in Schedule 2

This amendment inserts new Part 10 into Schedule 2 to the Maritime Regulations.

New Part 10, which deals with amendments made by the Transport Security Legislation Amendment (Foreign Officials) Regulations 2021, inserts new clause 111.

New clause 111

New clause 111 provides that the amendments made by Schedule 1 to the Transport Security Legislation Amendment (Foreign Officials) Regulations 2021 do not apply in relation to an MSIC that is in force immediately before the commencement of Schedule 1 to this Instrument.

The purpose of this clause is to make clear that amendments made by Schedule 1 to this Instrument do not apply to a foreign official who held an MSIC before Schedule 1 to the Transport Security Legislation Amendment (Foreign Officials) Regulations 2021 commences, in relation to that MSIC.

The effect of this clause is that the amendments made by this Instrument apply to a foreign official who makes an application for an MSIC on or after the commencement of Schedule 1 to the Transport Security Legislation Amendment (Foreign Officials) Regulations 2021.