This paper

This paper provides an outline of the maritime transport security regime that commenced on 1 July 2004, and how the regime might impact on the work of the Court’s Marshals under the Admiralty Act 1988 (Cth).

This is the third version of the paper, which will continue to be updated as further information becomes available.

The legislation

The maritime transport security regime is governed by the Maritime Transport Security Act 2003 (Cth) (“the Act”) and the Maritime Transport Security Regulations 2003 (Cth) ) (“the Regulations”).

The purpose of the Act is to enhance maritime transport security by:

·               establishing a maritime transport security regulatory framework, and providing for adequate flexibility within this framework to reflect a changing threat environment;

·               implementing the mandatory requirements in Chapter XI-2 and the International Ship and Port Facility (ISPS) Code of the Safety of Life at Sea (SOLAS) Convention, 1974, to ensure that Australia is aligned with the international maritime transport security regime;

·               ensuring that identified Australian ports, port facilities within them, and other maritime industry participants operate with approved maritime security plans;

·               ensuring that certain types of Australian ships operate with approved ship security plans;

·               issuing International Ship Security Certificates (ISSCs) to Australian ships which have been security verified so that these ships will be able to enter ports in other SOLAS Contracting Countries; and

·               undertaking control mechanisms to impose control directions on foreign ships that are not compliant with the relevant maritime security requirements in this Act.

The Act has thirteen parts:

·               Part 1 - Preliminary: This Part includes the objects of the Act, its application, both inside and outside Australia, and definitions.

·               Part 2 - Maritime security levels: This Part outlines the application of maritime security levels, security directions, and a system for notification.

·               Part 3 - Maritime security plans: This Part requires certain maritime industry participants to have maritime security plans in force which must include security measures and activities to be undertaken at security levels 1, 2 and 3.

·               Part 4 - Ship security plans and ISSCs: This Part requires certain Australian ships to have ship security plans in force which must include security measures and activities to be undertaken at security levels 1, 2 and 3.

·               Part 5 - Regulated foreign ships: This Part requires certain foreign ships to provide pre-arrival information and their ISSCs to demonstrate their compliance with the Act. Foreign ships are also obliged to comply with the existing security levels.

·               Part 6 - Maritime security zones: Under this Part, the Secretary may establish port security zones within a security regulated port, declare ship security zones around a security regulated ship, and establish on board security zones on board a security regulated ship. The purpose of such zones is to subject these areas to access control measures for the prevention of unlawful interference with maritime transport.

·               Part 7 - Other security measures: This Part establishes security requirements in relation to screening and clearing, weapons and prohibited items. The Part creates a number of offences relating to carriage of weapons and other items that, while not strictly weapons, could be used to threaten or cause injury (ie. prohibited items).

·               Part 8 - Powers of officials: This Part deals with five classes of persons who may exercise powers for the purposes of checking compliance with this Act and/or preventing unlawful interference with maritime security. It sets out eligibility criteria for each class of person, grants specific powers to each class and places limits upon the exercise of those powers.

·               Part 9 - Reporting maritime transport security incidents: This Part formalises a communications system to ensure that adequate information is reported to relevant persons, including industry organisations and the Australian Government, in the event of a maritime transport security incident.

·               Part 10 - Information-gathering: This Part enables the Secretary to collect security compliance information from maritime industry participants.

·               Part 11 - Enforcement: This Part provides for a number of different enforcement options in circumstances where contraventions of the Act have occurred or are suspected to have occurred.

·               Part 12 - Review of decisions: This Part sets out the decisions which can be made under this Act, which are reviewable by the Administrative Appeals Tribunal (AAT).

·               Part 13 - Miscellaneous: This Part contains technical information about the operation of this Act and its intended effect on the application of existing legislation such as the Consular Privileges and Immunities Act 1972, Defence (Visiting Forces) Act 1963, the Diplomatic Privileges and Immunities Act 1967. It allows for delegation of certain powers and functions of the Act. This Part also includes provisions relating to compensation for damage to a maritime industry participant’s equipment or data and compensation for acquisition of property.

A copy of this legislation can be downloaded from the ScalePlus web site at http://scaletext.law.gov.au/.

Impact on the Marshal

Notification of an arrest

Prior to an arrest warrant being executed against a ship that is covered by the maritime transport security regime, the Marshal should notify the Operations Centre of the Office of Transport Security (“OTS Operations Centre”).

Ships covered by the maritime transport security regime

The regime applies to a security regulated ship, being either:

·               a regulated Australian ship; or

·               a regulated foreign ship.

However, the regime does not apply to, or in relation to:

(a)     a warship or other ship operated for naval, military, customs or law enforcement purposes by Australia or by a foreign state; or

(b)     a ship (other than a ship covered by paragraph (a)) that is:

(i) owned, leased or chartered by, or otherwise in the operational control of, the Commonwealth, a State or a Territory; and

(ii)     being used wholly for non‑commercial activities

A ship is a regulated Australian ship if the ship is an Australian ship (as defined in the Shipping Registration Act 1981 (Cth)) that is:

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

(b)     a cargo ship of 500 or more gross tonnes 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.

A ship is a regulated foreign ship if the ship:

(a)     is a foreign ship (being a ship that is not an Australian ship); and

(b)     is one of the following:

(i)      a passenger ship;

(ii)      a cargo ship of 500 or more gross tonnes;

(iii)     a mobile offshore drilling unit (other than a unit that is attached to the seabed);

(iv)     a ship of a kind prescribed in the regulations; and

(c)     is in Australian waters; and

(d)     is in, or is intending to proceed to, a port in Australia.

Entry by the Marshal to a port, ship or on-shore security zone

The Marshal will be able to rely on paragraphs 6.05(c) and 7.05(c) of the Regulations to enter a port, ship or on-shore security zone in the course of the Marshal’s duties (such as executing an arrest warrant or retaining safe custody of a ship or property under arrest).

In practice, this will mean a Marshal must be able to produce photo identification when required to do so, particularly when not accompanied by a law enforcement officer (such as a member of the water police), and be able to explain the reason for entry.

Given that many of the people responsible for the security of ports, ships or on-shore security zones may not be familiar with the Marshal and his or her role, the Court will be providing information on these matters to the Port Security Committees, State Security Directors and others.

As currently drafted, regulation 7.25 does not exempt a Marshal from having to be screened when seeking to enter a port, ship or on-shore security zone. At this stage the Regulations require screening to be undertaken only when a person intends to board a passenger ship (including a ferry). The Department is considering a request that the Marshal be exempt from screening pursuant to a notice from the Secretary under subsection 115(2) of the Act.

Bringing an arrested ship into a port

In addition to having to have the usual approvals and clearances, a regulated foreign ship may not enter an Australian port unless:

·               the ship has:

Ø             an International Ship Security Certificate (or approved International Ship Security Certificate equivalent) (‘ISSC’); and

Ø             the ship has provided pre-arrival information in accordance with the regulations; or

·               the Secretary has issued a control direction to the ship operator or the master of the ship allowing the ship to enter the port.

The Marshal should be able to ascertain whether a regulated foreign ship is able to enter a port by contacting the relevant port authority. If the ship is not able to enter the port because it does not have an ISSC, has not provided the required pre-arrival information or is not subject to an appropriate control direction, the Marshal should contact the OTS Operations Centre or the relevant State Security Director.

While it is an offence for a regulated Australian ship that is being used for maritime transport to:

·               not have a ship security plan;

·               not have an ISSC; or

·               fail to comply with its ship security plan;

it seems that none of these matters will prevent a ship from entering an Australian port subject to the ship having the other necessary approvals and clearances. Nor is it clear from the legislation whether failure by a regulated Australian ship to provide pre-entry information will preclude it from entering an Australian port.

The Marshal should be able to ascertain whether a regulated Australian ship is able to enter a port by contacting the relevant port authority.

Ensuring compliance with ship security plans, security directions etc

The Act imposes a number of obligations upon ship operators and masters of security regulated ships. These obligations remain in force while the ship is in the custody of the Marshal.

For example, the ship operator and master of a regulated Australian ship are responsible for ensuring that:

·               there is compliance with a direction to implement or comply with additional security measures (section 33);

·               the ship is operated in accordance with the ship’s security plan (section 63);

·               operation of the ship does not hinder or obstruct compliance with the ship security plan of another ship (section 64);

·               any maritime transport security incident is reported to the relevant authorities as soon as possible (sections 178 and 179);

·               there is compliance with a ship enforcement order (section 195).

This list is not exhaustive.

Where the master and/or crew of an arrested Australian ship have been repatriated, the ship operator continues to be responsible for the ship security plan and must provide any caretaker master and crew with a copy of the plan and any other information and resources needed to implement it.

The ship operator and master of a regulated foreign ship are responsible for ensuring that:

·               the ship implements applicable ISPS measures (section 94);

·               the operations of the ship do not hinder or obstruct compliance with the maritime security plan of a maritime industry participant or the ship security plan of a regulated Australian ship in a way that compromises the security of the operations of the participant or the regulated Australian ship (section 97);

·               there is compliance with a control direction requiring the ship operator or master to take specified action, or refrain from taking specified action, in relation to the ship (section 99);

·               any maritime transport security incident is reported to the relevant authorities as soon as possible (sections 178 and 179).

This list is not exhaustive.

The information sheet ‘Continuing Obligations of Ship Operators and Masters of Arrested Vessels under the Maritime Security Act 2003’ may be provided to relevant personnel. A copy of the information sheet is attachment A and is also available from the Court’s web site.

Provision of security information to the Marshal

It will be important that the Marshal responsible for a ship is informed of such matters as changes to security levels, declarations of maritime security zones and the issuing of security directions.

The most effective mechanism for ensuring the Marshal receives this information in relation to a particular matter is for arrangements to be made between the Marshal and the OTS Operations Centre or the relevant State Security Director on a case by case basis.

Reporting maritime transport security incidents

As the Marshal is not a person described in sections 171, 172, 173 or 174 of the Act, the statutory obligation to report maritime transport security incidents does not apply to the Marshal. However, a Marshal should bring any maritime transport security incidents to the attention of the OTS Operations Centre or the relevant State Security Director.

Some information is available from the web site for the Department of Transport and Regional Services.

In the meantime, any questions may be directed to the Deputy Registrar, Principal Registry (phone 02 9230 8336, email Philip.Kellow@fedcourt.gov.au).