Transport Security Amendment (Serious Crime) Bill 2016 - Commentary on Ministerial Responses [2017] AUSStaCSBSD 208 (14 June 2017)

• Transport Security Amendment (Serious Crime) Bill 2016
• Merits Review

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Transport Security Amendment (Serious Crime) Bill 2016

Previous citation: Transport Security Amendment (Serious or Organised Crime) Bill 2016

Purpose	This bill amends various Acts in relation to transport security to: • seek to prevent the use of aviation and maritime transport or offshore facilities in connection with serious or organised crime; • establish a regulatory framework to implement harmonised eligibility criteria for the aviation security identification card (ASIC) and maritime security identification card (MSIC) schemes; • clarify and align the legislative basis for undertaking security checking of ASIC and MSIC applicants and holders; • provide for regulations to prescribe penalties for offences; and • insert an additional severability provision to provide guidance to a court as to Parliament’s intention
Portfolio	Infrastructure and Regional Development
Introduced	House of Representatives on 30 August 2016 This bill is substantively similar to a bill introduced in the previous Parliament
Bill status	Before the Senate
Scrutiny principle	Standing Order 24(1)(a)(iii)

2.231 The committee dealt with this bill in the amendment section of Scrutiny Digest No. 5 of 2017. The Minister responded to the committee's comments in a letter dated 23 May 2017. Set out below are extracts from the committee's initial scrutiny of the bill and the Minister's response followed by the committee's comments on the response. A copy of the letter is at Appendix 1.

Merits Review

Initial scrutiny – extract

2.232 Amendments 8 and 14 agreed to by the Senate, but disagreed to by the House of Representatives, seek to provide that the regulations must include provisions allowing a person, in relation to whom a security check has been carried out, to be able to seek reconsideration or merits review of a decision in relation to an aviation security identification card (ASIC) or maritime security identification card (MSIC).

2.233 On 30 March 2017 the Minister for Infrastructure and Transport presented reasons, which were subsequently adopted by the House of Representatives, for disagreeing to the Senate's amendments. The reasons note that there is currently a comprehensive appeals process in the Aviation Transport Security Regulations 2005 (Aviation Regulations) and Maritime Transport and Offshore Facilities Security Regulations 2003 (Maritime Regulations) and that these appeal processes have existed in the respective Aviation and Maritime Regulations since the inception of these schemes.

2.234 The reasons further state that the 'Office of Parliamentary Counsel has advised that introducing ASIC and MSIC appeals mechanisms into primary legislation would not create any additional practical protection against future changes to the Aviation and Maritime Regulations'.

2.235 The committee requests the Minister's advice as to how inserting a positive requirement in primary legislation that the regulations must provide for an appeals process would not create any additional protection against future changes to the Aviation and Maritime Regulations.

Minister's response

2.236 The Minister advised:

The Transport Security Amendment (Serious Crime) Bill 2016 (the Bill) introduces an additional purpose to the Aviation Transport Security Act 2004 and the Maritime Transport and Offshore Facilities Security Act 2003 (the Aviation and Maritime Acts) to reduce criminal influence at Australia's security controlled airports, security regulated ports, security regulated ships, and security regulated offshore oil and gas facilities. The additional purpose would apply solely to the aviation and maritime security identification card (ASIC and MSIC) scheme and would complement the scheme's current purpose of preventing unlawful interference.
The level of specificity with which the Aviation and Maritime Acts could refer to the ASIC and MSIC appeals mechanisms is currently limited. This is because the concepts of the ASIC and MSIC are introduced by the Aviation Transport Security Regulations 2005 and the Maritime Transport and Offshore Facilities Security Regulations 2003 (the Aviation and Maritime Regulations) and are not acknowledged by the Aviation and Maritime Acts.
In practice, because the Aviation and Maritime Acts cannot predict exactly what the Aviation and Maritime Regulations might say in the future, specific references to the ASIC and MSIC may be too specific and could become ineffective if the Aviation and Maritime Regulations change. Alternatively, if the reference is too general, it may have unintended consequences.
The practical protection provided by amendments (8) and (14) as agreed by the Senate would be limited by the fact that they refer expressly to decisions 'in relation to a security identification card'. If technological developments lead to access to areas and zones being regulated by a mechanism not involving security cards, such as the use of biometrics, then the proposed requirements in relation to reconsideration and review would not apply.
Further, the proposed provisions are drafted to apply the protections to every possible decision under the regulations relating to a security identification card. The regulations will be amended over time to respond to the changing environment and technology, and it is possible that this broad reference could require the regulations to provide for reconsideration or review of decisions where this is clearly inappropriate.
It is important to note that a comprehensive appeals process for ASIC and MSIC applicants and cardholders exists in the current Aviation and Maritime Regulations. The appeals process is essential to the administrative transparency of the schemes.
As you know, every regulatory amendment is scrutinised by the Senate Standing Committee on Regulations and Ordinances (SSCRO). The SSCRO is responsible for ensuring, among other matters, that legislative instruments do not make the rights and liberties of citizens unduly dependent on administrative decisions which are not subject to review of their merits by a judicial or other independent tribunal. On this basis, it is expected that any future amendment to the Aviation and Maritime Regulations seeking to remove or reduce appeal rights would be at the control of Parliament and would stand a high chance of disallowance.
I would also note, should the Bill be passed by the Parliament, it is the Australian Government's intention to expand aspects of review for all ASIC applicants to mirror the reconsideration mechanism currently available for all MSIC applicants.

Committee comment

2.237 The committee thanks the Minister for this response. The committee notes the Minister's advice that the level of specificity with which the Aviation Transport Security Act 2004 and the Maritime Transport and Offshore Facilities Security Act 2003 (Aviation and Maritime Acts) could refer to the aviation and maritime security identification cards is limited because the concepts of these cards are introduced by the Regulations and are 'not acknowledged by the Aviation and Maritime Acts'. The Minister also advised that specific references to the ASIC and MSIC may be too specific and become ineffective if the regulations change. The committee also notes the Minister's advice that if technological developments lead to access to areas being regulated by a mechanism not involving security cards the proposed requirements would not apply, and if the regulations are amended in the future it is possible that a right to review every decision under the regulations relating to a security identification card may provide for reconsideration or review of decisions where this is clearly inappropriate. The committee also notes and welcomes the Minister's advice that it is the government's intention to expand aspects of review for all ASIC applicants to mirror the reconsideration mechanism currently available for all MSIC applicants.

2.238 The committee considers that the main reasons given for disagreeing to the amendments passed by the Senate appear to be based on concerns as to drafting rather than objections to the policy of ensuring that the primary legislation include a requirement for reconsideration or review of relevant decisions. The committee considers that the apparent drafting concerns may be able to be addressed by re-drafting the amendments so as to require reconsideration or review of a decision in relation to the security checking of persons with access to the relevant areas or zones (without specific reference to security cards).

2.239 The committee considers that if there are concerns regarding the drafting of the amendments (rather than the policy intention of ensuring that the primary legislation includes a requirement for review of relevant decisions), this may be able to be addressed by technical amendments to the amendments already agreed to.

2.240 The committee draws this matter to the attention of the Senate Standing Committee on Regulations and Ordinances for information.

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