BILLS DIGEST NO. 23, 2015–16              15 September 2015

Maritime Transport and Offshore Facilities Security Amendment (Inter-State Voyages) Bill 2015

Cat Barker
Foreign Affairs, Defence and Security Section 

Date introduced: 12 August 2015

House:  House of Representatives

Portfolio: Infrastructure and Regional Development

Commencement:  Sections 1–3 will commence on Royal Assent. Schedule 1 will commence six months after Royal Assent unless an earlier date is fixed by Proclamation.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website.

Purpose of the Bill

The Maritime Transport and Offshore Facilities Security Amendment (Inter-State Voyages) Bill 2015 (the Bill) amends the Maritime Transport and Offshore Facilities Security Act 2003 (the MTOFS Act) to remove Australian ships which are engaged solely in inter-state voyages from regulation under the Act.[1]

Background

The MTOFS Act establishes a regulatory regime to ‘safeguard against unlawful interference’ with maritime transport and offshore facilities.[2] The security regime is intended to implement Australia’s obligations under the International Ship and Port Facility Security Code (the Code); reduce the vulnerability of Australian ships and ports, foreign ships within Australia and offshore facilities to terrorist attacks; and mitigate the risk of maritime transport or offshore facilities being used to facilitate terrorism or other unlawful activities.[3]

The MTOFS Act imposes a range of obligations on ‘security regulated ships’. It distinguishes between ‘regulated foreign ships’ and ‘regulated Australian ships’, the latter of which includes certain ships and mobile offshore facilities that undertake inter-state voyages.[4] Ships that only undertake intra-State voyages are not regulated by the MTOFS Act. As noted in the Explanatory Memorandum to the Maritime Transport Security Bill 2003, the Code only requires regulation of certain ships undertaking international voyages, but the then Government decided the security regime should extend to inter-state voyages ‘to ensure broader coverage and better security of Australian ships and ports’.[5]

Obligations of regulated Australian ships

A key obligation imposed on operators of regulated Australian ships under the MTOFS Act and associated regulations is the development and implementation of a ship security plan. The plan must be based on a security assessment for the ship, identify the security measures to be taken when different maritime security levels are in force, and be approved by the Secretary of the Department of Infrastructure and Regional Development.[6] Other requirements include having an International Ship Security Certificate, reporting maritime transport or offshore facility security incidents, complying with directions to implement additional security measures and keeping certain records.[7] The regulatory regime also includes compliance and enforcement powers.[8]

The Bill would remove Australian ships used for inter-state but not overseas voyages from this regulatory regime. The Minister for Infrastructure and Regional Development stated this will save the Australian shipping industry $938,000 per year.[9]

Committee consideration

The Senate Standing Committee for Selection of Bills recommended the Bill not be referred to a committee for inquiry and report.[10]

The Senate Standing Committee for the Scrutiny of Bills and the Parliamentary Joint Committee on Human Rights both considered, but had no comments on, the Bill.[11]

Policy position of non-government parties/independents

Non-government parties and independents did not appear to have commented on the Bill as at the time of publication of this Bills Digest.

Position of major interest groups

Key interest groups did not appear to have commented on the Bill as at the time of publication of this Bills Digest.

Financial implications

The Explanatory Memorandum states the Bill will not result in a ‘discrete financial loss or gain’ for the Commonwealth.[12]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible because it does not raise any human rights issues.[13]

Key issues and provisions

Within the broader category of ‘security regulated ships’ to which the MTOFS Act applies, subsection 16(1) of the Act provides that each of the following is ‘regulated Australian ship’:

(a)      a passenger ship that is used for overseas or inter-State voyages; or

(b)     a cargo ship of 500 gross tonnage or more that is used for overseas or inter-State voyages; or

(c)      a mobile offshore drilling unit that is on an overseas or inter-State voyage (other than a unit that is attached to the seabed); or

(d)     a ship of a kind prescribed in the regulations.[14]

Item 2 of the Bill would remove the references to inter-state voyages from the definition of ‘regulated Australian ship’ in section 16 of the MTOFS Act. This would mean that Australian ships used for inter-state voyages but not overseas voyages would no longer automatically be included in the security regulation regime established under the MTOFS Act. However, it would be possible to prescribe ships of certain types that undertake inter-state voyages, or prescribe ships that undertake particular inter-state voyages, using the regulation-making power in paragraph 16(1)(d). Item 3 of the Bill would insert a note at the end of section 16 clarifying that regulations may make different provisions with respect to different kinds of regulated Australian ships.

The Minister stated in his second reading speech (emphasis added):

It is in the public interest to continue the security regulation of passenger and vehicle ferries used for interstate voyages due to the nature of their operations in transporting large numbers of passengers and vehicles. Therefore, it is proposed to develop appropriate amendments to the Maritime Transport and Offshore Facilities Security Regulations 2003 to continue the security regulation of such ships.[15]

This indicates that the Government intends to prescribe Australian ships of those types in regulations made under paragraph 16(1)(d) of the MTOFS Act. It may also use the flexibility referred to in the note to be inserted by item 3 to impose less stringent requirements than apply to Australian ships used for overseas voyages. It is not clear if this is proposed on the basis of the greater number of potential casualties in the event of a terrorist incident (as compared to a cargo ship) or in light of past instances of interstate ferries being used to smuggle illicit drugs.[16]

Security implications

The security rationale for including inter-state shipping in the regulatory regime established by the MTOFS Act was not clearly explained in 2003, with the then Government simply stating it would mean ‘broader coverage and better security of Australian ships and ports’.[17] The inclusion or otherwise of inter-state shipping was not an issue that attracted attention in the Parliamentary debate on the Maritime Transport Security Bill 2003 or in the context of the Senate Rural and Regional Affairs and Transport Legislation Committee’s inquiry into the Bill.[18]

The current Minister has stated there is:

… arguably no increase in security risk as a result of crossing a domestic state border.

Australia has no obligation to security regulate interstate shipping and there is limited benefit in continuing to do so. The security risks will not change if the existing regulatory regime is removed.[19]

This appears to contradict the position of the then Government in 2003. However, again, the rationale behind the statement has not been provided. The lack of information provided in support of both the 2003 and 2015 statements makes it difficult to test the claims made in each. Parliament may wish to seek a further explanation from the Government as to how it came to the conclusion that security risks will not change as a result of the Bill.

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.

© Commonwealth of Australia

Creative Commons

With the exception of the Commonwealth Coat of Arms, and to the extent that copyright subsists in a third party, this publication, its logo and front page design are licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia licence.

In essence, you are free to copy and communicate this work in its current form for all non-commercial purposes, as long as you attribute the work to the author and abide by the other licence terms. The work cannot be adapted or modified in any way. Content from this publication should be attributed in the following way: Author(s), Title of publication, Series Name and No, Publisher, Date.

To the extent that copyright subsists in third party quotes it remains with the original owner and permission may be required to reuse the material.

Inquiries regarding the licence and any use of the publication are welcome to webmanager@aph.gov.au.

Disclaimer: Bills Digests are prepared to support the work of the Australian Parliament. They are produced under time and resource constraints and aim to be available in time for debate in the Chambers. The views expressed in Bills Digests do not reflect an official position of the Australian Parliamentary Library, nor do they constitute professional legal opinion. Bills Digests reflect the relevant legislation as introduced and do not canvass subsequent amendments or developments. Other sources should be consulted to determine the official status of the Bill.

Any concerns or complaints should be directed to the Parliamentary Librarian. Parliamentary Library staff are available to discuss the contents of publications with Senators and Members and their staff. To access this service, clients may contact the author or the Library’s Central Entry Point for referral.

[1].              Maritime Transport and Offshore Facilities Security Act 2003 (the MTOFS Act), accessed 7 September 2015.

[2].              MTOFS Act, section 3.

[3].              Ibid. See further Department of Infrastructure and Regional Development (DIRD), ‘Maritime security’, DIRD website; J Anderson, ‘Second reading speech: Maritime Transport Security Bill 2003’, House of Representatives, Debates, 18 September 2003, pp. 20,443–46; both accessed 7 September 2015.

[4].              MTOFS Act, Division 7 of Part 1.

[5].              Explanatory Memorandum, Maritime Transport Security Bill 2003, p. 15, accessed 9 September 2015.

[6].              MTOFS Act, Part 4; Maritime Transport and Offshore Facilities Security Regulations 2003 (MTOFS Regulations), Part 4, accessed 9 September 2015. For an overview, see DIRD, ‘Ship owners’ and operators’ responsibilities and obligations’, DIRD website, accessed 9 September 2015.

[7].              MTOFS Act, Division 6 of Part 4, Part 9, and Division 4 of Part 2; MTOFS Regulations, Division 4.5 of Part 4 and regulation 1.55.

[8].              MTOFS Act, Parts 8, 10 and 11; MTOFS Regulations, Parts 8 and 11.

[9].              W Truss, ‘Second reading speech: Maritime Transport and Offshore Facilities Security Amendment (Inter-State Voyages) Bill 2015’, House of Representatives, Debates, (proof), 12 August 2015, p. 1, accessed 7 September 2015.

[10].              Senate Standing Committee for Selection of Bills, Report, 11, 2015, The Senate, Canberra, 10 September 2015, accessed 11 September 2015.

[11].              Senate Standing Committee for the Scrutiny of Bills, Alert digest, 8, 2015, The Senate, Canberra, 19 August 2015, p. 6; Parliamentary Joint Committee on Human Rights, Twenty-sixth report of the 44th Parliament, The Senate, Canberra, 18 August 2015,p. 1; both accessed 2 September 2015.

[12].              Explanatory Memorandum, Maritime Transport and Offshore Facilities Security Amendment (Inter-State Voyages) Bill 2015, p. 2, accessed 2 September 2015.

[13].              The Statement of Compatibility with Human Rights can be found at page 3 of the Explanatory Memorandum to the Bill.

[14].              MTOFS Act, section 16.

[15].              W Truss, ‘Second reading speech’, op. cit.

[16].              See for example ‘TAS: Police ferry drug bust could amount to $3 million’, Australian Associated Press General News Wire, 15 May 2007, p. 1, ProQuest database; C Greisbach, ‘Man given two-year jail term for drug trafficking’, The Advocate, 8 August 2012, p. 10, ProQuest database; both accessed 9 September 2015. Note that Tasmania Police has repeatedly stated that more illicit drugs enter the state by air and post: S Bryan, ‘Tasmanian Government urged to take action over ice’, Australian Broadcasting Corporation News, 22 October 2014, accessed 9 September 2015.

[17].              Explanatory Memorandum, Maritime Transport Security Bill 2003, op. cit., p. 15.

[18].              Second reading speeches can be accessed from the Bill homepage: Parliament of Australia, ‘Maritime Transport Security Bill 2003’, Australian Parliament website, accessed 9 September 2015. An inquiry report and submissions are available from Senate Rural and Regional Affairs and Transport Legislation Committee, ‘Maritime Transport Security Bill 2003’, Australian Parliament website, accessed 9 September 2015.

[19].              W Truss, ‘Second reading speech’, op. cit.