Commonwealth: Transport Security Legislation Amendment (2010 Measures No. 1) Act 2010 (Cth)

Transport Security Legislation Amendment (2010 Measures No. 1) Act 2010 No. 81, 2010 An Act to amend the law relating to the security of aviation and maritime transport and offshore facilities, and for related purposes Contents 1 Short title 2 Commencement 3 Schedule(s) Schedule 1—Amendments Aviation Transport Security Act 2004 Maritime Transport and Offshore Facilities Security Act 2003 Transport Security Legislation Amendment (2010 Measures No. 1) Act 2010 No. 81, 2010 An Act to amend the law relating to the security of aviation and maritime transport and offshore facilities, and for related purposes [Assented to 29 June 2010] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Transport Security Legislation Amendment (2010 Measures No. 1) Act 2010. 2 Commencement This Act commences on the day after this Act receives the Royal Assent. 3 Schedule(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Amendments Aviation Transport Security Act 2004 1 Section 9 (paragraph (b) of the definition of prohibited item) Repeal the paragraph, substitute: (b) is specified in an instrument under section 9A. 2 At the end of Division 4 of Part 1 Add: 9A Prohibited items The Minister may, by legislative instrument, specify items for the purposes of paragraph (b) of the definition of prohibited item in section 9. 3 After paragraph 127(1)(a) Insert: (aa) an SES employee in the Attorney‑General's Department; 4 At the end of section 127 Add: (4) In this section: Attorney‑General's Department means the Department administered by the Minister who administers the Crimes Act 1914. 5 Saving—prohibited items Despite the amendments made by items 1 and 2, regulations in force for the purposes of paragraph (b) of the definition of prohibited item in section 9 of the Aviation Transport Security Act 2004 immediately before the commencement of this item continue in force, after that commencement, until the first instrument made under section 9A of that Act, as inserted by this Act, takes effect. Note: Section 12 of the Legislative Instruments Act 2003 deals with when a legislative instrument takes effect. Maritime Transport and Offshore Facilities Security Act 2003 6 Section 4 Omit: Part 8 sets out the powers of officials under this Act. These officials are maritime security inspectors, duly authorised officers, law enforcement officers, maritime security guards and screening officers. Substitute: Part 8 sets out the powers of officials under this Act. These officials are maritime security inspectors, security assessment inspectors, duly authorised officers, law enforcement officers, maritime security guards and screening officers. 7 Section 10 Insert: Agency Head has the same meaning as in the Public Service Act 1999. 8 Section 10 Insert: national security has the same meaning as in the National Security Information (Criminal and Civil Proceedings) Act 2004. 9 Section 10 Insert: security assessment inspector means a person appointed under subsection 145D(1). 10 Section 15 Before "Each", insert "(1)". 11 At the end of section 15 Add: (2) The regulations may prescribe different categories of security regulated ships. Note: Regulations under this Act may make different provision with respect to different categories of security regulated ships: see subsection 33(3A) of the Acts Interpretation Act 1901. 12 After section 61 Insert: 61A Exemptions (1) The ship operator for a regulated Australian ship may apply to the Secretary for the ship to be exempt from the operation of this Division. (2) The application must be in accordance with any requirements prescribed by the regulations. The regulations may prescribe requirements in relation to the form and content of the application, and the way in which the application is made. (3) In deciding whether to grant the exemption, the Secretary must consider the matters prescribed by the regulations for the purposes of this subsection. The Secretary may consider any other matters that the Secretary considers appropriate. Secretary's decision (4) If an application is made to the Secretary, the Secretary must: (a) exempt the ship from the operation of this Division in the circumstances specified in the exemption; or (b) refuse to grant an exemption. Grant of exemption (5) If the Secretary grants an exemption, the Secretary must give the ship operator a copy of the exemption. (6) An exemption under this section has effect according to its terms. Refusal to grant exemption (7) If the Secretary refuses to grant an exemption, the Secretary must give the ship operator written notice of the refusal (including the reasons for the refusal). Exemption is not a legislative instrument (8) An exemption under this section is not a legislative instrument. 13 After section 79 Insert: 79A Exemptions (1) The ship operator for a regulated Australian ship may apply to the Secretary for the ship to be exempt from the operation of this Division. (2) The application must be in accordance with any requirements prescribed by the regulations. The regulations may prescribe requirements in relation to the form and content of the application, and the way in which the application is made. (3) In deciding whether to grant the exemption, the Secretary must consider the matters prescribed by the regulations for the purposes of this subsection. The Secretary may consider any other matters that the Secretary considers appropriate. Secretary's decision (4) If an application is made to the Secretary, the Secretary must: (a) exempt the ship from the operation of this Division in the circumstances specified in the exemption; or (b) refuse to grant an exemption. Grant of exemption (5) If the Secretary grants an exemption, the Secretary must give the ship operator a copy of the exemption. (6) An exemption under this section has effect according to its terms. Refusal to grant exemption (7) If the Secretary refuses to grant an exemption, the Secretary must give the ship operator written notice of the refusal (including the reasons for the refusal). Exemption is not a legislative instrument (8) An exemption under this section is not a legislative instrument. 14 At the end of section 91 Add: (4) This section does not apply in relation to a ship of a kind prescribed by the regulations for the purposes of this subsection. 15 Subsection 119(2) Omit "The following matters may be dealt with by regulations made under subsection (1)", substitute "Without limiting the matters that may be dealt with by regulations made under subsection (1), the regulations may deal with the following". 16 Section 134 After: (a) maritime security inspectors; Insert: (aa) security assessment inspectors; 17 Paragraph 139(2)(b) Repeal the paragraph, substitute: (b) inspect equipment on the ship; (ba) make any still or moving image or any recording of equipment on the ship; 18 Paragraph 140A(2)(b) Repeal the paragraph, substitute: (b) inspect equipment on the facility; (ba) make any still or moving image or any recording of equipment on the facility; 19 After paragraph 141(2)(b) Insert: (ba) make any still or moving image or any recording of equipment in a place, vehicle or vessel mentioned in paragraph (a); 20 After Division 2 of Part 8 Insert: Division 2A—Security assessment inspectors 145C Simplified overview of Division The Secretary may appoint persons as security assessment inspectors if they satisfy the criteria prescribed by the regulations. Security assessment inspectors can conduct security assessments of areas, facilities, buildings (other than residences), vessels and vehicles under the control of maritime industry participants. 145D Appointment (1) The Secretary may, by writing, appoint a person as a security assessment inspector if the person satisfies the criteria prescribed by the regulations for the purposes of this subsection. (2) A security assessment inspector is appointed for the period specified in the instrument of appointment. 145E Powers of security assessment inspectors (1) For the purposes of conducting a security assessment of an area, facility, building (other than a residence), vessel or vehicle under the control of a maritime industry participant, a security assessment inspector may do one or more of the following: (a) enter and inspect the area, facility, building, vessel or vehicle; (b) inspect equipment in the area, facility, building, vessel or vehicle; (c) make any still or moving image or any recording of the area, facility, building, vessel, vehicle or equipment; (d) observe the operating procedures of the maritime industry participant; (e) discuss those procedures with an employee of the maritime industry participant or with another maritime industry participant. (2) In exercising a power under this section, a security assessment inspector may be accompanied by a maritime security inspector. (3) In exercising a power under this section, a security assessment inspector must not subject a person to greater indignity than is necessary and reasonable for the exercise of the power. (4) In exercising a power under this section within the boundaries of a security regulated offshore facility, a security assessment inspector must take account of occupational health and safety requirements under the laws of the Commonwealth, a State or Territory applying at the facility. 145F When powers may be exercised A security assessment inspector may exercise a power mentioned in section 145E: (a) if the power is exercised within the boundaries of a security regulated port—at any time and without notice; or (b) otherwise—after giving the maritime industry participant concerned reasonable notice. 145G Offence—hindering or obstructing a security assessment inspector (1) A person commits an offence if: (a) the person engages in conduct; and (b) the conduct hinders or obstructs a security assessment inspector in the exercise of a power in accordance with this Division. Penalty: 50 penalty units. (2) Subsection (1) does not apply if the person has a reasonable excuse. Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code). (3) An offence against subsection (1) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. 21 Section 164 After: A screening officer may request a person to remove items of clothing for screening purposes—but may not require this. However, if a person refuses to comply with such a request and the screening officer is unable to screen the person properly, the screening officer must refuse to allow the person to pass the screening point. Insert: A person may choose, or may be requested by a screening officer, to undergo a frisk search. 22 After section 166 Insert: 166A Screening powers—frisk search as an alternative screening procedure If a person chooses to undergo a frisk search as an alternative to another screening procedure, a screening officer may frisk search the person to the extent necessary to screen the person properly. 166B Screening powers—frisk search as an additional screening procedure (1) If: (a) a person undergoes a screening procedure; and (b) the results of that procedure indicate that additional screening procedures are necessary in order to screen the person properly; a screening officer may request the person to undergo a frisk search. (2) If a screening officer conducts a frisk search following a request under subsection (1), the screening officer may conduct the search only to the extent necessary to complete the proper screening of the person. (3) A screening officer must not: (a) require a person to undergo a frisk search under this section; or (b) conduct a frisk search of a person under this section without the person's consent; or (c) contravene subsection (2). Penalty: 50 penalty units. (4) Subsection (3) does not apply if the officer has a reasonable excuse. Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code). (5) An offence against subsection (3) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. (6) If: (a) a screening officer requests a person to undergo a frisk search under subsection (1); and (b) the person refuses to comply with the request; and (c) the person refuses: (i) to be screened in a private room by a screening officer of the same sex as the person; or (ii) to undergo a frisk search during that screening; and (d) the refusals mean that it is not possible to screen the person properly; the screening officer must refuse to allow the person to pass through the screening point. 166C Screening powers—frisk search general power (1) If a screening officer considers it necessary in order to screen a person properly, the screening officer may request the person to undergo a frisk search. (2) If a screening officer conducts a frisk search following a request under subsection (1), the screening officer may conduct the search only to the extent necessary to complete the proper screening of the person. (3) A screening officer must not: (a) require a person to undergo a frisk search under this section; or (b) conduct a frisk search of a person under this section without the person's consent; or (c) contravene subsection (2). Penalty: 50 penalty units. (4) Subsection (3) does not apply if the officer has a reasonable excuse. Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code). (5) An offence against subsection (3) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. (6) If: (a) a screening officer requests a person to undergo a frisk search under subsection (1); and (b) the person refuses to comply with the request; and (c) the person refuses to undergo a frisk search in a private room by a screening officer of the same sex as the person; and (d) the refusals mean that it is not possible to screen the person properly; the screening officer must refuse to allow the person to pass through the screening point. 23 After paragraph 201(d) Insert: (da) to refuse to grant an exemption under section 61A or 79A; or 24 Subsection 202(1) Repeal the subsection, substitute: (1) The Secretary may, by writing, delegate all or any of his or her powers and functions under this Act to a person of the following kind: (a) an SES employee, or acting SES employee, in the Department; (b) an SES employee in the Attorney‑General's Department; (c) the Agency Head of an Agency that carries on activities that relate to national security. (1A) However, a delegation under paragraph (1)(c) has no effect unless the Agency Head of the Agency agrees to the delegation. 25 At the end of section 202 Add: (4) In this section: Attorney‑General's Department means the Department administered by the Minister who administers the Crimes Act 1914. 26 After section 202 Insert: 202A Sub‑delegation (1) If the Secretary delegates a power or function to the Agency Head of an Agency under paragraph 202(1)(c), the Agency Head may, by writing, sub‑delegate the power or function to an SES Band 3 employee in the Agency. (2) Sections 34AA, 34AB and 34A of the Acts Interpretation Act 1901 apply in relation to the sub‑delegation in a corresponding way to the way in which they apply to a delegation. (3) In exercising powers or functions under a sub‑delegation, the delegate must comply with any directions of the Agency Head of the Agency. (4) An SES Band 3 employee is an SES employee with a classification of Senior Executive Band 3, and includes an SES employee who has been temporarily assigned duties that have been allocated a classification of Senior Executive Band 3. 27 Saving—delegations A delegation in force under subsection 202(1) of the Maritime Transport and Offshore Facilities Security Act 2003 immediately before the commencement of this item continues to have effect, on and after that commencement, as if it were a delegation under paragraph 202(1)(a) of that Act. [Minister's second reading speech made in— House of Representatives on 11 March 2010 Senate on 13 May 2010] (48/10)