Transport Security Amendment (Serious Crime) Bill 2019 [2019] AUSStaCSBSD 137 (13 November 2019)

• Transport Security Amendment (Serious Crime) Bill 2019
• Significant matters in delegated legislation
• Penalties in delegated legislation 44

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Transport Security Amendment (Serious Crime)
Bill 2019

Purpose	This bill seeks to amend the Aviation Transport Security Act 2004 and the Maritime Transport and Offshore Facilities Security Act 2003 to: • establish a regulatory framework for introducing new eligibility criteria under the aviation and maritime security identification card schemes; • allow regulations to prescribe penalties for offences; • clarify the legislative basis for undertaking background checks of individuals; and • make technical amendments
Portfolio	Home Affairs
Introduced	House of Representatives on 23 October 2019

Significant matters in delegated legislation
Penalties in delegated legislation ^[44]

1.80 Proposed subsection 38AB(1) provides that the regulations may, for the purposes of preventing the use of aviation in connection with serious crime, prescribe requirements in relation to areas and zones established under Part 3 of the Aviation Transport Security Act 2004. Proposed subsection 38AB(3) provides that the regulations made under this section may prescribe penalties for offences against those regulations. The subsection provides that for an offence committed by an airport or aircraft operator the maximum penalty is 200 penalty units; for an aviation industry participant, 100 penalty units; and for an accredited air cargo agent or any other person, 50 penalty units. The bill also seeks to insert new section 113F, which replicates these provisions in the Maritime Transport and Offshore Facilities Security Act 2003.

1.81 The committee has consistently raised concerns about framework bills, which contain only the broad principles of a legislative scheme and rely heavily on delegated legislation to determine the scope and operation of the scheme. As the detail of the delegated legislation is generally not publicly available when Parliament is considering the bill, this considerably limits the ability of Parliament to have appropriate oversight over new legislative schemes. Consequently, the committee's view is that significant matters, such as the requirements relating to access to relevant aviation and maritime transport zones, should be included in the primary legislation unless a sound justification for the use of delegated legislation is provided. In this case the explanatory materials do not provide an explanation as to why the relevant matters cannot be included in primary legislation. The committee notes that delegated legislation, made by the executive, is not subject to the full range of parliamentary scrutiny inherent in bringing proposed changes in the form of an amending bill.

1.82 It is unclear to the committee why at least high level guidance about the eligibility criteria for access to relevant zones cannot be included on the face of the bill. For example, the committee notes that the explanatory memorandum lists the offence categories that will make up the new eligibility criteria, including offences relating to anti-gang or criminal organisation legislation and the illegal importation of goods.^[45] It is unclear to the committee why these criteria cannot be provided for on the face of the primary legislation.

1.83 In addition, the Guide to Framing Commonwealth Offences suggests that penalties that exceed 50 penalty units should not normally be imposed by regulations.^[46] In relation to this, the explanatory memorandum states that:

Such a strong deterrent is appropriate to enact in delegated legislation:
• because of the security-sensitive nature of the aviation environment, which may be targeted by criminal enterprises to facilitate the movement of illicit goods, and
• to align with other regulation-making provisions of the Aviation Act.
It is also noted that the higher maximum penalties would apply to a limited number of persons, being selected aviation industry participants, and not to the general public. This means that the enhanced deterrence is tailored specifically to an appropriate cohort of persons, and not the public at large.^[47]

1.84 While the committee notes this explanation, the committee's longstanding view is that serious offences and penalties should be contained in the primary legislation to allow for appropriate levels of Parliamentary scrutiny.

1.85 The committee's view is that significant matters, such as the requirements relating to access to relevant aviation and maritime transport zones, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. In this instance, the committee's scrutiny concerns are heightened by the fact that the bill allows for the regulations to contain offences with maximum penalties above what is recommended in the Guide to Framing Commonwealth Offences. The committee therefore requests the minister's advice as to:

• why it is considered necessary and appropriate to leave the new eligibility criteria for access to relevant aviation and maritime transport zones to delegated legislation, and the appropriateness of amending the bill to provide at least high level guidance in this regard; and

• the appropriateness of amending the bill to either include all relevant penalties and offences in the primary legislation or for the maximum penalties to be reduced to be consistent with the Guide to Framing Commonwealth Offences.

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[44] Schedule 1, items 4 and 17, proposed sections 38AB and 113F. The committee draws senators' attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv).

[45] Explanatory memorandum, p. 2.

[46] Attorney-General's Department, Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp. 44-45.

[47] Explanatory memorandum, pp. 5-6.