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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
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Purpose
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The Transport Security Amendment (Security of Australia’s Transport
Sector) Bill 2024 seeks to introduce amendments to the Aviation Transport
Security Act 2004 (ATSA) and the Maritime Transport and Offshore
Facilities Security Act 2003 (MTOFSA) in order to safeguard against unlawful
interference with aviation and maritime transport, and offshore
facilities.
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Portfolio
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Home Affairs
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Introduced
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House of Representatives on 28 November 2024
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Bill status
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Before the House of Representatives
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2.51 This bill seeks to create a number of additional offences in relation to cyber, aviation and maritime security incidents applicable to airport and port operators, aviation and maritime industry participants, and other persons with incident reporting responsibilities. The offences would be committed where an individual has an incident reporting responsibility, becomes aware of a security incident with a relevant impact on an asset (for example, an aircraft), and fails to report the incident to the relevant authorities after the person becomes aware. The maximum penalties applicable to each offence vary between 100 and 200 penalty units. A number of these specific offences, as listed in the footnote below, are stated to be offences of strict liability.
2.52 In Scrutiny Digest 1 of 2025 the committee drew its scrutiny concerns to the attention of senators and left to the Senate the appropriateness of strict liability offences carrying 100 and 200 penalty units, which is inconsistent with the Guide to Framing Commonwealth Offences.[106]
2.53 Additionally, the committee requested an addendum to the explanatory memorandum to the bill to clarify whether personal information may be disclosed as part of the reporting obligations provided for by the bill and what privacy protections would apply.
2.54 The minister advised that the proposed penalty for a failure to report a cyber-security incident aligns with the penalties for failure to report other kinds of security incidents within the transport security legal frameworks, and as such, the penalties are intended to maintain consistency across legislation and recognise the significance of cyber security incidents.
2.55 The minister noted that personal information provided to the Department of Home Affairs as part of reporting obligations under the bill is likely to relate to the name, email address, phone number and employer of the person making the report. The minister advised that such information would be subject to protections under the Privacy Act 1988 (the Privacy Act). Personal information provided to the Australian Signals Directorate as part of these reporting obligations would not be subject to protections under the Privacy Act but must be used in compliance with the Intelligence Services Act 2001 and the Rules to Protect the Privacy of Australians 2021.
2.56 The minister confirmed that an addendum to the bill’s explanatory memorandum would be prepared in line with the committee’s request.
2.57 The committee thanks the minister for this response. The committee notes the minister’s advice regarding the penalties for the strict liability offences and the need to maintain consistency with other like offences. However, the committee reiterates that the imposition of strict liability undermines fundamental common law principles. As previously noted, under general principles of the common law, fault is required to be proven before a person can be found guilty of a criminal offence. This ensures that criminal liability is imposed only on persons who are sufficiently aware of what they are doing and the consequences it may have. When a bill states that an offence is one of strict liability, this removes the requirement for the prosecution to prove the defendant’s fault. In such cases, an offence will be made out if it can be proven that the defendant engaged in certain conduct, without the prosecution having to prove that the defendant had the intention to engage in the relevant conduct or was reckless or negligent while doing so.
2.58 The committee reiterates that the Guide to Framing Commonwealth Offences[108] states that the application of strict liability is only considered appropriate where the offence is not punishable by imprisonment and only punishable by a fine of up to 60 penalty units for an individual.[109] The committee agrees with this approach and does not consider penalties above this amount to be appropriate where strict liability is applied. If higher penalties are considered appropriate the committee considers it would be possible to provide for a tiered approach with a lower penalty when strict liability applies and a higher penalty applicable if fault has been established. The committee also does not consider consistency across the statute book to be a reason to depart from these principles, noting that consistency could be achieved by amending other legislation to ensure all failures to report other kinds of security incidents are subject to no more than 60 penalty units when strict liability is imposed.
2.59 The committee reiterates its scrutiny concerns and leaves to the Senate as a whole the appropriateness of the strict liability offences in this bill carrying maximum penalties of 100 and 200 penalty units (which are inconsistent with the Guide to Framing Commonwealth Offences).
2.60 In relation to the protection of personal information, the committee welcomes the minister’s advice that an addendum to the explanatory memorandum will be prepared in line with the committee’s request and makes no further comment in relation to this matter.
2.61 The bill provides an immunity from civil or criminal liability to the maritime security inspector in relation to the power to test a security system. The immunity is only applicable where the power is exercised in good faith, does not seriously endanger the health or safety of any person and does not result in significant loss of or serious damage to property.
2.62 In Scrutiny Digest 1 of 2025 the committee requested the minister’s advice as to:
• what recourse is available for affected individuals, other than by demonstrating a lack of good faith by the entity; and
• whether affected individuals will be able to seek recourse from the Commonwealth or whether it is intended that the immunity from civil liability will extend to the Commonwealth as a whole.[111]
2.63 The minister advised that the onus for establishing ‘good faith’ rests with the person seeking to rely on the immunity. As such, there is no positive burden on an affected individual seeking recourse to establish that an action was not in good faith. Instead, it would rest with the defendant to satisfy the court that an action was taken in accordance with legislation, related policy and procedural instructions.
2.64 The minister pointed to current subsections[113] of the Maritime Transport and Offshore Facilities Security Act 2003 (MTOFS Act) which limit the powers to be provided to maritime security inspectors under paragraphs proposed by the bill[114] (such as, that a maritime security inspector must not subject a person to greater indignity than is necessary and reasonable for the exercise of the power and must take account of occupational health and safety requirements).
2.65 In relation to whether the civil immunity provided by the bill would extend to the Commonwealth as a whole, the minister advised:
The immunity provisions extend only to Maritime Security Inspectors. It Is not intended that this immunity extend to the Commonwealth at large. As such, the immunity provisions do not operate to restrict the liability of the Commonwealth, nor to limit recourse otherwise available against the Commonwealth.
2.66 The minister also advised that section 203 of the MTOFS Act expressly provides an avenue for recourse against the Commonwealth, including where the exercise of the new powers result in damage to electronic equipment.
2.67 The committee thanks the minister for this response. The committee notes that it appears that courts have generally taken the view that, in the absence of any express provision to the contrary, the intention of Parliament is for immunities applicable to officers to extend to the Commonwealth as a whole.[115] However, the committee appreciates the minister’s advice that it is not intended that the immunity applicable to inspectors will extend to the Commonwealth at large. In particular, the committee appreciates the advice that section 203 of the MTOFS Act expressly provides an avenue for recourse against the Commonwealth. The committee notes that this provision provides that the Commonwealth is liable to pay reasonable compensation to the owner of equipment or the user of data or programs for any damage or corruption.
2.68 The committee notes that had this information been included in the explanatory memorandum the committee may not have needed to correspond with the minister on this matter.
2.69 The committee requests that an addendum to the explanatory memorandum containing the key information provided by the minister be tabled in the Parliament as soon as practicable, noting the importance of these explanatory materials as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation.[116]
2.70 Noting the limited nature of the immunity, the advice that it is not intended that the Commonwealth be immune from liability, and the express provision in section 203 of the MTOFS Act regarding Commonwealth liability, the committee considers its concerns have been addressed and makes no further comment in relation to this matter.
2.71 Currently, the Aviation Transport Security Act 2004 (ATS Act) provides that the Secretary may give special security directions in specified circumstances.[118] This bill seeks to amend the ATS Act to include that the Secretary may make a special security direction where a general threat of unlawful interference with aviation is made or exists. This bill also seeks to amend the MTOFS Act to specify the circumstances in which the Secretary may make a security direction, which includes where a general threat of unlawful interference with maritime transport or offshore facilities is made or exists.
2.72 In Scrutiny Digest 1 of 2025 the committee requested the minister’s advice as to:
• whether guidance and examples can be provided in relation to the exercise of the power to give a special security direction, such as what directions or additional security measures the Secretary may require a person to comply with; and
• whether there are any limits or constraints on the power, and if so, where any constraints on the exercise of the power are located.[119]
2.73 The minister advised that special security directions under ATS Act or security directions under MTOFS Act, in practice, relate to actions aimed at better securing infrastructure, personnel and operations at airports and ports in the face of a significant threat. As such, examples of additional measures that may be directed could include:
• additional screening measures identifying certain inbound or outbound cargo;
• requiring specific type of passenger screening techniques, such as baggage searches or explosive trace detection tests for some or all passengers.
2.74 The minister stated that, to date, these types of directions have only been issued in the aviation sector and never in the maritime sector. In the aviation sector these have been issued on four occasions, namely:
• in 2006, to implement immediate restrictions on the amount of liquids, aerosols and gels to be taken as carry-on luggage on board an aircraft, to align with international action until a longer-term solution could be implemented;
• in 2017, where two separate directions were issued in response to a terrorist plot at Sydney Airport requiring additional security screening measures, and restrictions on the amount of inorganic powder able to be taken as carry-on luggage on board an aircraft until a longer-term solution could be implemented; and
• in 2024, implementing additional security measures for cargo entering Australia in response to a global air cargo supply chain threat.
2.75 The minister advised that, in practice, these directions ‘would be used very much as a “last resort” power, in exceptional circumstances when the measures under a current security program are deemed or assessed to be insufficient to adequately respond to a threat of unlawful interference’.
2.76 The minister set out the legislative requirements under the ATS Act prior to such directions being issued, including that, under the ATS Act, the Secretary must not issue a direction unless satisfied a specific or general threat of unlawful interference is made or exists, there is a change in the nature or risk on existing threat of unlawful interference, or a national emergency declaration is in force and the direction supports this.
2.77 Additionally, the minister noted that under both ATS Act and MTOFS Act, such a direction may only remain valid for three months and must be revoked once the specific or general threat no longer exists. Under ATS Act, the Secretary may extend a direction for a further three months, following a mandatory industry consultation and a written notice. Further, the ATS Act specifically notes that a direction in force for six months cannot be re-issued, or a similar direction issued, by the Secretary for a six-month period.
2.78 Finally, the minister advised that these directions powers are designed with in-built review and sunset mechanisms which require the government address the issue through a long-term solution, such as regulation change, if needed.
2.79 The committee thanks the minister for this response. The committee appreciates the advice as to how these powers have previously been used, noting that these powers have previously been used to impose additional screening requirements (on both passengers and cargo), restrictions on carry-on luggage and security measures. The committee also notes the minister’s advice that these powers are intended to be used only as a ‘last resort’ in exceptional circumstances when measures under a current security program are insufficient.
2.80 However, the committee notes that there is no legislative requirement that these powers only be used as a last resort. Under the ATS Act and the MTOFS Act, and as proposed to be amended by this bill,[121] the Secretary may direct that ‘additional security measures be implemented or complied with’ whenever the Secretary is satisfied of a number of broad matters, such as if there is a ‘change in the nature of an existing general threat’. There is no requirement that the Secretary only make these directions if existing security measures are insufficient. The committee also notes that while the MTOFS Act provides that the regulations may prescribe requirements in relation to the giving of security directions.[122] The current regulations do not confine the circumstances in which the direction may be given, rather it only sets out the means by which the Secretary must give a direction (e.g. orally or in writing).[123]
2.81 While the committee appreciates that this power has been used sparingly in the past, it remains concerned that these provisions provide for relatively ill-defined and wide-ranging powers. The committee notes that there is nothing in the legislation preventing the use of these powers for coercive purposes, such as requiring passengers to be subject to invasive screening measures or examinations. The committee is concerned that the minister’s response did not refer, at the least, to some internal guidance that confines the exercise of these powers.
2.82 As such, the committee reiterates that at a minimum, some guidance should be provided as to the exercise of the broad power to give a security direction, such as what actions the Secretary can require a person to do, and whether this includes the exercise of coercive powers and whether it may trespass on an individual’s privacy.
2.83 The committee recommends that consideration be given to amending the bill to set out further detail in the ATS Act and MTOFS Act as to the circumstances in which the Secretary may issue a security direction, including that the direction may only be given as a last resort when current security measures are considered insufficient to adequately respond to a threat of unlawful interference.
2.84 The committee requests that an addendum to the explanatory memorandum containing the key information provided by the minister be tabled in the Parliament as soon as practicable, noting the importance of these explanatory materials as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation.[124]
2.85 The committee otherwise draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of expanding the circumstances in which the departmental secretary can issue security directions.
2.86 A number of provisions in the bill seek to include matters in delegated legislation. Examples of these include that the regulations may prescribe:
• matters for the purpose of safeguarding against unlawful interference with aviation[126] or maritime transport or offshore facilities;[127]
• matters in relation to the contents of transport security programs;[128]
• matters to be included in the statement of compliance for a ship security plan;[129]
• minimum requirements for security assessments for maritime industry participants for the purpose of safeguarding against unlawful or operational interference with maritime transport or offshore facilities;[130]
• how matters relating to unlawful or operational interference with maritime transport or offshore facilities must be dealt with in maritime security plans;[131]
• matters in relation to security assessments for particular kinds or classes of ships[132] and minimum requirements for particular kinds or classes of regulated ships for the purposes of safeguarding against unlawful or operational interference with maritime transport or offshore facilities.[133]
2.87 In Scrutiny Digest 1 of 2025 the committee requested an addendum to the explanatory memorandum containing a justification for the use of delegated legislation be tabled in Parliament as soon as practicable.[134]
2.88 The minister confirmed that an addendum to the bill’s explanatory memorandum will be prepared, in line with the committee’s request.
2.89 The minister also noted that the amendments to the relevant regulations will generally comprise more detailed, technical obligations for aviation and maritime industry participants, thereby necessitating their inclusion in delegated legislation. The minister noted this will also provide the government with the ability to appropriately respond to rapidly evolving and challenging threat environment to mitigate threats.
2.90 The committee thanks the minister for the additional information provided.
2.91 The committee welcomes the minister’s advice that an addendum to the explanatory memorandum will be prepared in line with the committee’s request and makes no further comment in relation to this matter.
[104] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Transport Security Amendment (Security of Australia’s Transport Sector) Bill 2024, Scrutiny Digest 3 of 2025; [2025] AUSStaCSBSD 38.
[105] Schedule 1, item 5, proposed subsections 100(3), 100(5) and 100; Schedule 1, item 7, proposed subsections 101(4), 101(5) and 101(6); Schedule 1, item 9, proposed subsections 102(3A), 102(3B) and 102(3C); Schedule 1, item 28, proposed subsections 171(4), 171(5), 172(4), 172(5), 173(4), 173(5), 174(4), 174(5), 175(3A), 175(3B) and 175(3C); Schedule 1, item 59, proposed section 26AC; Schedule 1, item 86, proposed subsections 78B(1) and 78B(2); Schedule 1, item 93, proposed subsections 100TB(1) and 100TB(2). The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(i).
[106] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 1 of 2025 (5 February 2025) pp. 21–24.
[107] The minister responded to the committee’s comments in a letter dated 4 March 2025. A copy of the letter is available on the committee’s webpage (see correspondence included with the committee’s assessment of this bill).
[108] Attorney-General’s Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, May 2024, pp. 25–26.
[109] Attorney-General’s Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, May 2024, pp. 25–26.
[110] Schedule 1, item 120, proposed subsection 139(4); schedule 1, item 124, proposed subsection 140A(5); schedule 1, item 129, proposed subsection 141(4). The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i).
[111] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 1 of 2025 (5 February 2025) pp. 24–25.
[112] The minister responded to the committee’s comments in a letter dated 4 March 2025. A copy of the letter is available on the committee’s webpage (see correspondence included with the committee’s assessment of this bill).
[113] Subsections 139(3), 140A(3), 140A(4), and 141(3).
[114] Proposed paragraphs 139(2)(g), 140A(2)(g) and 141(2)(g).
[115] See, for example, Dunstan v Orr (No. 2) [2023] FCA 1536 at [113]; Commonwealth of Australia v Griffiths & Anor [2007] NSWCA 370 at [115]; Bell v State of Western Australia [2004] WASCA 205 [34].
[116] See section 15AB of the Acts Interpretation Act 1901.
[117] Schedule 3, item 24, proposed paragraph 67(1)(a); schedule 3, item 28, proposed subsection 33(1). The committee draws senators’ attention to this provision pursuant to Senate standing orders 24(1)(a)(i) and (ii).
[118] Aviation Transport Security Act 2004, section 67.
[119] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 1 of 2025 (5 February 2025) pp. 25–26.
[120] The minister responded to the committee’s comments in a letter dated 4 March 2025. A copy of the letter is available on the committee’s webpage (see correspondence included with the committee’s assessment of this bill).
[121] See Aviation Transport Security Act 2004, section 67 and Maritime Transport and Offshore Facilities Security Act 2003, section 33 as amended by this bill, see Schedule 3, item 24, proposed paragraph 67(1)(a); Schedule 3, item 28, proposed subsection 33(1).
[122] Maritime Transport and Offshore Facilities Security Act 2003, subsection 33(5).
[123] See Maritime Transport and Offshore Facilities Security Regulations 2003, section 2.35
[124] See section 15AB of the Acts Interpretation Act 1901.
[125] Schedule 1, item 55, proposed subsection 16(2D); Schedule 1, item 56, proposed subsection 16(4); Schedule 1, item 75, proposed subsection 47(4); schedule 1, item 77, proposed subsection 48(2); Schedule 1, item 82, proposed subsection 66(3); Schedule 1, item 82, proposed subsection 66(4); Schedule 1, item 86, proposed paragraph 78A(3)(c); Schedule 1, item 90, proposed subsection 100H(2). The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(iv).
[126] Schedule 1, item 55, proposed subsection 16(2D).
[127] Schedule 1, item 90, proposed subsection 100H(2).
[128] Schedule 1, item 56, proposed subsection 16(4).
[129] Schedule 1, item 86, proposed paragraph 78A(3)(c).
[130] Schedule 1, item 75, proposed subsection 47(4).
[131] Schedule 1, item 77, proposed subsection 48(2).
[132] Schedule 1, item 82, proposed subsection 66(3).
[133] Schedule 1, item 82, proposed subsection 66(4).
[134] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 1 of 2025 (5 February 2025) pp. 26–28.
[135] The minister responded to the committee’s comments in a letter dated 4 March 2025. A copy of the letter is available on the committee’s webpage (see correspondence included with the committee’s assessment of this bill).
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