Bills Digest no. 23 2015–16
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WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Cat Barker
Foreign Affairs, Defence and Security Section
15 September 2015
Contents
Purpose
of the Bill
Background
Committee consideration
Policy position of non-government parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human Rights
Key issues and provisions
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.
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]
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]
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]
Non-government parties and independents did not appear to
have commented on the Bill as at the time of publication of this Bills Digest.
Key interest groups did not appear to have commented on
the Bill as at the time of publication of this Bills Digest.
The Explanatory Memorandum states the Bill will not result
in a ‘discrete financial loss or gain’ for the Commonwealth.[12]
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]
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.
[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.
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