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On 28 November 2019 the Senate referred the provisions of the Transport Security Amendment (Serious Crime) Bill 2019 (the bill) to the Legal and Constitutional Affairs Legislation Committee (the committee) for inquiry and report by 21 February 2020. On 10 February 2020 the Senate extended the committee's reporting date to 25 March 2020.
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The referral followed a recommendation of the Selection of Bills Committee. The report of the Selection of Bills Committee included reasons for recommending the referral:
To ensure that the Bill sufficiently achieves its intent of addressing criminal activity at Australia's security controlled airports, security regulated seaports, and security regulated offshore oil and gas facilities.
Conduct of this inquiry
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Details of the inquiry were advertised on the committee's webpage. The committee also invited a number of organisations and individuals to submit to the inquiry. The committee received 9 submissions, two of which were accepted in confidence. The submissions are listed at Appendix 1.
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The committee held a public hearing in Canberra on 26 February 2020. The witnesses who appeared at that hearing are listed at Appendix 2.
Acknowledgements
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The committee thanks all submitters and witnesses for their contribution to this inquiry.
Structure of this report
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This report consists of two chapters:
This chapter outlines the key provisions of the bill and provides administrative details relating to the inquiry.
Chapter 2 examines the key issues raised in evidence and provides the committee's view.
Purpose of the bill
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The bill was introduced into the House of Representatives on 23 October 2019 by the Minister for Home Affairs, the Hon Peter Dutton MP. When introducing the bill into the Parliament, the minister stated:
Serious and organised crime is a major threat to the Australian way of life. It causes enormous human suffering and is estimated by the Australian Criminal Intelligence Commission to cost the Australian economy more than $47 billion per annum.
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The minister further outlined the purpose of the bill in relation to the existing aviation and maritime security identification card schemes (ASIC and MSIC schemes):
The ASIC and MSIC schemes are essential in ensuring security within Australia's transport network. Persons who hold an ASIC or MSIC card are able to access the most secure areas of Australia's airports and seaports. To attain an ASIC or MSIC card, a background check is required. However, at present, the background check only determines whether a person may be a threat to aviation or maritime security. It does not consider whether the person has a history of involvement in serious crime. This leaves our airports and seaports vulnerable to exploitation by serious criminals. The Australian Criminal Intelligence Commission (ACIC) has identified that almost 300 ASIC or MSIC card holders have known criminal links to organised motorcycle gangs and other serious and organised crime groups on the ACIC's National Criminal Target List.
…
The bill will address such criminality at our airports and seaports by broadening the Aviation Transport Security Act 2004 and the Maritime Transport and Offshore Facilities Security Act 2003 beyond their present focus on security to include provisions aimed at addressing crime.
Key provisions of the bill
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The bill would amend the Aviation Transport Security Act 2004 (the Aviation Act) and the Maritime Transport and Offshore Facilities Security Act 2003 (the Maritime Act). There is one schedule in the bill.
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The explanatory memorandum states that the bill would:
create an additional purpose for the Aviation and Maritime Acts, to prevent the use of aviation and maritime transport or offshore oil and gas facilities in connection with serious crime
provide for the making of regulations for this additional purpose, which will support strengthening of the eligibility criteria under the aviation and maritime security identification card (ASIC and MSIC) schemes to target serious criminal offences
allow for regulations made for the additional purpose to prescribe penalties for offences against the regulations of up to 200 penalty units, consistent with penalty provisions across the ASIC and MSIC schemes
clarify and align the legislative basis for undertaking background checks of individuals under the Aviation and Maritime Acts, and
make technical amendments to improve the operation of the Aviation and Maritime Acts.
Creating an additional purpose for the legislation
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The bill would create an additional purpose in the Aviation Act to prevent the use of aviation in connection with serious crime. This would be given effect by various amendments to the Aviation Act. Notably, the bill would insert new division 4A into part 3 of the Aviation Act. Proposed section 38AA in that division provides that '[t]he purpose of this Division is to prevent the use of aviation in connection with serious crime.'
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The explanatory memorandum states that this purpose:
…is different to the general purposes of the Aviation Act, to prevent unlawful interference with aviation and to meet Australia's obligations under the Convention on International Civil Aviation, as outlined in section 3 [of the Aviation Act].
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The bill would create an additional purpose in the Maritime Act to prevent the use of maritime transport or offshore facilities in connection with serious crime. This would be given effect by various amendments to the Maritime Act. Notably, the bill would insert a new division 6 into part 6 of the Maritime Act. Proposed section 113E in that division provides that '[t]he purpose of this Division is to prevent the use of maritime transport or offshore facilities in connection with serious crime.'
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The explanatory memorandum states that this purpose:
…is different to the general purpose of the Maritime Act, to prevent unlawful interference with maritime transport or offshore facilities, as outlined in subsection 3(1).
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The explanatory memorandum states that the new divisions proposed for each Act are intended to facilitate new eligibility criteria for the ASIC and MSIC schemes. These criteria would mean that a person is not eligible for an ASIC or MSIC if they have been convicted of certain serious crimes, and are to be harmonised across both the ASIC and MSIC schemes.
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The explanatory memorandum states that the additional purpose would be limited to specific regulation-making powers in the Acts that enable the ASIC and MSIC schemes, and would not apply generally to all provisions in those Acts.
Providing for regulations for the additional purpose
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The bill would provide for the making of regulations in relation to the proposed purposes of the Aviation Act and the Maritime Act. The relevant regulations are the Aviation Transport Security Regulations 2005 (the aviation regulations) and the Maritime Transport and Offshore Facilities Regulations 2003 (the maritime regulations).
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The explanatory memorandum states that regulations made under the proposed provisions would 'support strengthening of the eligibility criteria under the aviation and maritime security identification card…schemes to target serious criminal offences'. The explanatory memorandum further states that the new eligibility criteria, to be specified in regulations, would:
…introduce new offence categories such as offences relating to: anti-gang or criminal organisation legislation; illegal importation of goods; interfering with goods under customs control; and foreign incursion and recruitment. It is intended that Commonwealth, State and Territory offences will be captured.
Regulations to prescribe penalties for offences against the regulations
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The bill provides for regulations to prescribe penalties for offences against those regulations. Under the bill, the maximum penalty that may be prescribed by regulations depends on the person committing the offence, and range from 50 penalty units to 200 penalty units.
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In relation to the proposed maximum penalty provisions in the Aviation Act, the explanatory memorandum states:
By prescribing maximum penalties, new subsection 38AB(3) provides for discretion to be applied in making regulations imposing penalties. It also takes into consideration the need to provide an appropriate level of deterrence for the relevant classes of offenders. The penalty limits under subsection 38AB(3) are consistent with existing penalties that may be prescribed in relation to offences concerning access to secure aviation areas and zones that already exist in other provisions of Part 3 of the Aviation Act.
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The explanatory memorandum acknowledges that the maximum penalties of 100 and 200 penalty units exceed the maximum recommended to be imposed by regulations under the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, but states:
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.
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The explanatory memorandum also notes 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.
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The explanatory memorandum makes similar comments regarding the maximum penalty provisions proposed for the Maritime Act.
Severability provisions
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The bill includes severability provisions in relation to both the Aviation Act and the Maritime Act. In relation to the Aviation Act, the explanatory memorandum states that the bill would insert a severability provision:
…to indicate that the Aviation Act has effect as if its operation were expressly confined to matters incidental to the execution of any of the legislative powers of the Parliament in section 51 of the Constitution or the executive power of the Commonwealth in section 61 of the Constitution.
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The explanatory memorandum makes similar comments regarding the severability provisions proposed for the Maritime Act.
Background
The existing ASIC and MSIC schemes
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The Department of Home Affairs (the department) explained that ASICs and MSICs are:
…nationally consistent identification cards that show the holder has met the minimum security requirements to remain unmonitored within a secure area or security zone area at airports, seaports and offshore facilities respectively.
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To be eligible for an ASIC or MSIC, a person must:
…have an operational need to access these secure areas and zones or work in a security sensitive position (e.g. screening officers, check-in staff, baggage handlers, stevedores, port and dock workers, truck drivers and seafarers on Australian regulated ships), and successfully pass a background check every two years.
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As at 10 December 2019, there were approximately 148,727 validly issued ASICs and 105,503 validly issued MSICs.
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AusCheck undertakes a background check for each person who applies for an ASIC or MSIC. A background check includes:
…a national security assessment by the Australian Security Intelligence Organisation (ASIO), a criminal history check by the Australian Criminal Intelligence Commission (ACIC) to determine if an applicant has an unfavourable criminal history (such as an adverse criminal record) and, if required, an immigration check by the Department to assess the applicant's right to work.
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An applicant is considered to have an adverse criminal record if they have been convicted and sentenced to imprisonment for an aviation-security-related-offence or a maritime-security-related-offence.
Previous iterations of the bill
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There have been two previous iterations of this bill, both called the Transport Security Amendment (Serious or Organised Crime) Bill 2016 when introduced:
One bill in the 44th Parliament (the first 2016 bill).
One bill in the 45th Parliament (the second 2016 bill).
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On introduction, the first and second 2016 bills were identical to each other (but had different commencement provisions, second reading speeches, and explanatory memoranda).
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The first 2016 bill was introduced into the House of Representatives on 11 February 2016 and was passed by that House on 16 March 2016. It subsequently lapsed at prorogation of the 44th Parliament.
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The second 2016 bill was introduced into the House of Representatives on 31 August 2016 and was passed by that House on 13 February 2017. The Senate passed the bill with amendments on 27 March 2017. The House of Representatives disagreed with those amendments on 30 March 2017, but made further amendments—which replaced references to 'serious or organised crime' with 'serious crime'—in place of some of the Senate's amendments. The second 2016 bill lapsed at the end of the 45th Parliament on 1 July 2019.
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The current bill is substantially the same as the second 2016 bill, as amended by the House of Representatives. However, the department has stated that current bill has been amended to:
'to capture new classes of ASICs and MSICs (white ASICs and white MSICs) that have been introduced into the Aviation and the Maritime Regulations'; and
to 'align the regulation-making powers supporting the MSIC scheme in the [maritime regulations] with correlating powers supporting the ASIC scheme in the [aviation regulations]'.
Previous inquiries regarding aviation and maritime security
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A number of parliamentary and other inquiries have considered the security of the aviation and maritime industries, including the following.
Parliamentary Joint Committee on Law Enforcement
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The Parliamentary Joint Committee on Law Enforcement (PJCLE) held an inquiry from 2009 to 2011 titled Inquiry into the adequacy of aviation and maritime security measures to combat serious and organised crime. The PJCLE recommended that:
…the Attorney-General's Department, in consultation with the Australian Crime Commission, reviews the list of relevant security offences under the ASIC and MSIC schemes to assess whether any further offences are required in order to effectively extend those schemes to protect the aviation and maritime sectors against the threat of infiltration by serious and organised criminal networks.
National Ice Taskforce
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The National Ice Taskforce was established in April 2015 'to advise the Government on the development of a National Ice Action Strategy'. The taskforce recommended:
The Commonwealth Government should continue to protect the aviation and maritime environments against organised crime by strengthening the eligibility criteria for holders of Aviation Security Identification Cards and Maritime Security Identification Cards; and establishing a legal mechanism to enable compelling criminal intelligence to be used in determining suitability of workers to hold such a card.
Rural and Regional Affairs and Transport Legislation Committee
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In May 2016 the Rural and Regional Affairs and Transport Legislation Committee reported on the first 2016 bill.
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The majority of the committee recommended that the bill be passed. Senator Glenn Sterle and Senator Alex Gallacher presented additional comments stating that Labor was considering amendments to the bill. The Australian Greens presented a dissenting report which recommended that the bill not be supported in its then current form and that the government consult further with the sector to develop alternative solutions.
Rural and Regional Affairs and Transport References Committee
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In March 2017 the Rural and Regional Affairs and Transport References Committee reported on an inquiry into airport and aviation security. This report included consideration of the second 2016 bill.
Consideration by other parliamentary committees
Senate Standing Committee for the Scrutiny of Bills
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The Senate Standing Committee for the Scrutiny of Bills (the scrutiny committee) commented on earlier iterations of the bill in previous parliaments.
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Regarding the current bill, the scrutiny committee raised concerns about the bill providing for significant matters and penalties to be in delegated legislation. At the scrutiny committee's request, the minister provided advice regarding the appropriateness of the approach taken by the bill. This advice included the following points:
the current ASIC and MSIC eligibility criteria, for offences relating to unlawful interference, are prescribed in the Aviation and Maritime Regulations, and it would be incongruous for guidance about eligibility criteria to be included in the principal Acts for some offences (relating to serious crime) and not for others (relating to unlawful interference)
maintaining the detail of the ASIC and MSIC schemes, including the eligibility criteria, in the Aviation and Maritime Regulations means that the reader of the legislation is able to review the schemes in a single piece of legislation and enhances the readability and understanding of the legislative schemes
any amendment to provide high level guidance for the eligibility criteria in the primary legislation would trigger significant consequential amendments to the Aviation and Maritime Acts for other provisions enabling the prescription of the ASIC and MSIC schemes, which would unnecessarily delay the passage of the 2019 Bill.
making these amendments would also be contrary to the intended purposes of the Bill and the consultation already undertaken in relation to the Bill and the eligibility criteria, and
the prescription of the eligibility criteria in the Aviation and Maritime Regulations would provide suitable flexibility to respond to changes in the threat environment at security controlled airports, seaports and offshore facilities. For example, this may include the creation of State or Territory criminal laws that are considered appropriate for inclusion in the eligibility criteria.
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The scrutiny committee reiterated its view 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. While noting the minister's advice, the committee emphasises that it does not generally consider that flexibility, or consistency with an existing regulatory regime, to be sufficient justification for including significant matters in delegated legislation.
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The scrutiny committee further reiterated its view that 'serious offences and penalties should be contained in primary legislation to allow for appropriate levels of parliamentary scrutiny'.
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The scrutiny committee drew its concerns to the attention of senators, and left to the Senate as a whole:
…the appropriateness of leaving significant matters, such as such as the requirements relating to access to relevant aviation and maritime transport zones and offence provisions prescribing penalties up to 200 penalty units, to delegated legislation.
Parliamentary Joint Committee on Human Rights
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The Parliamentary Joint Committee on Human Rights (the human rights committee) considered earlier iterations of the bill and stated that they did not raise human rights concerns.
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The human rights committee commented on the current bill for 'advice only'. Its comments related to the right to work, and it stated:
The [human rights] committee notes the legal advice that altering the eligibility criteria for persons to gain access to areas or zones relating to aviation, maritime transport or offshore facilities may engage and limit the right to work (as persons denied access would be unable to be employed in such areas or zones), which has not been considered in the statement of compatibility. However, the committee considers that the limitation appears to pursue a legitimate objective, is rationally connected to that objective and a proportionate means of achieving that objective.
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The human rights committee also stated that if the bill is passed, then it will assess subsequent regulations for compatibility with human rights.
Note on references
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In this report, references to Committee Hansard are to proof transcripts. Page numbers may vary between proof and official transcripts.