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Securing Australian Maritime Ports: Assessing the Importance of Third Party Partnerships Russell.Brewer@anu.au PowerPoint Presentation
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Securing Australian Maritime Ports: Assessing the Importance of Third Party PartnershipsRussell.Brewer@anu.edu.au

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“I think Kevin Rudd has to consider a land-based port police and clearly the AFP is not resourced at the moment to do this task. But we do not want to see any more events like we did a couple of days ago at our airports and the scope at sea ports is much wider and of much more concern.”

“We

“We do need to seriously consider a land-based federal police presence at our ports in the same way that we would have at airports with one single line of command, not have too many jurisdictions with their fingers in the pie and a clear task ahead of them.”

Shadow Justice Minister Susan Ley

characteristics of third party liability
Non-state actors are compelled to help deter misconduct

Sanctions may be imposed for non-compliance

Little or no compensation for performing duties

Characteristics of third-party liability
current regime
Current regime
  • Maritime Transport and Offshore Facilities Security Act 2003
  • Maritime Transport and Offshore Facilities Security Regulations 2003
  • The act and regulations aim to: “Safeguard maritime transport and offshore facilities against unlawful interference” (OTS, 2008)
  • Establishes a regulatory framework to meet maritime security outcomes:
    • Fulfill treaty obligations
    • Reduce vulnerability of ships, ports and facilities to terrorist attacks
    • Reduce risk of maritime transport or facilities to be used to facilitate terrorist or other activities
    • Ensure effective communication of security information among industry and government
current regime continued
Current regime (continued)
  • The Act and Regulations outline a regime for
    • Security levels
    • Maritime security plans
    • Ship security plans
    • Maritime security zones
    • Offshore security
    • Maritime security identification cards
    • Screening and clearing of prohibited weapons
    • Reporting requirements
    • Powers and enforcement provisions
logic behind third party liability
Tensions between constitutive principals of liberal democratic states that overarch capitalist economiesLogic behind third-party liability

Populist politics

Third-party

liability

Demands

Of

business

Legal

norms

logic behind third party liability continued
Logic behind third-party liability (continued)
  • Expand limited law enforcement resources to detect deviance and ensure compliance
  • Benefit from the ability of private entities to obtain certain types of information as a condition of service or entry
  • Skills, equipment and personnel
  • Ability to withhold support for essential services for wrongdoers
  • Blameworthiness
adverse and unintended consequences
Mandatory action

Financial implications

Cost of compliance outweighs the risks of detection

Even application of legislation

Mandatory reporting

Significant compliance costs

Increases and discrepancies in reported cases

Taxing the capacity of the system

Adverse and unintended consequences
third party responses to imposed legal duties and responsibilities
“ After 2004, things really changed. A security culture has emerged, one that is certainly marked by substantial investment by the ports. I can see a shift from merely meeting the legislative requirements to a ‘good security is good business’ mentality. Everyone wants good security.”

Office of Transport Security Official, 2009

Third party responses to imposed legal duties and responsibilities
third party responses to imposed legal duties and responsibilities10
Third-party responses to imposed legal duties and responsibilities

“I see value in the current port security regime, but believe that the structure of the legislation has put undue imposition upon the industry…There is an obligation on government to ensure public safety; the burden should not rest solely on the Port of Melbourne. I think that government should play part of the role – it can’t just abdicate its responsibilities.”

Port Security Official, Port of Melbourne Corporation, 2009

third party responses to imposed legal duties and responsibilities11
Third-party responses to imposed legal duties and responsibilities

“The reality is that terrorism is not an issue in business unless you are situated in the Gaza Strip. To industry, terrorism is a perceived threat, perpetuated by the media and government. Industry accepts the security model that is legislated upon them, but feels that the federal government should do more”

Port Security Official, Port of Melbourne Corporation, 2009

third party responses to imposed legal duties and responsibilities12
Third-party responses to imposed legal duties and responsibilities

“I don’t see the government changing its policy in this sector. I actually see them pushing more responsibility onto this partnership…The future holds more of the partnership burden to be placed on industry.”

Port Security Official, Port of Melbourne Corporation, 2009

third party responses to imposed legal duties and responsibilities13
Third-party responses to imposed legal duties and responsibilities

“The reality is that the [Office of Transport Security] OTS does not want to be prescriptive and is far too vague. Private companies think that the OTS should pony up and contribute to the provision of security at ports as well. The burden should not lie solely with the private sector.”

Port Security Official, Flinders Ports, 2009

third party responses to imposed legal duties and responsibilities14
Third-party responses to imposed legal duties and responsibilities

“At the end of the day it is my property. If the government comes in and says ‘you must do X’, then I won’t necessarily do it unless it makes good business sense. I have gotten away with unmanned gates when the OTS said ‘no way’.”

Port Official, Flinders Ports, 2009

third party responses to imposed legal duties and responsibilities15
Third-party responses to imposed legal duties and responsibilities

`“We don’t respond directly to incidents. We become aware and investigate to determine why it happened. We collect information from industry and pass it on up the line [to national office in Canberra]. I actually have no idea what the OTS does with this information in Canberra”

Office of Transport Security Official, 2009

third party responses to imposed legal duties and responsibilities16
Third-party responses to imposed legal duties and responsibilities

“The analysis of incidents and events by the OTS is sub-par. We get absolutely no feedback whatsoever. We send information in, but nothing comes back. There really needs to be some reciprocation…There is no sharing and communication is completely one way. I believe that there is a total lack of willingness within the OTS to partner with industry.”

Industry representative, 2009

what does this tell us about third party liability
Issues

Financial implications

Costs of compliance outweighs risk of detection

Variation in costs/compliance

Risk to professional-client relations

Increased reporting that may tax the system

What does this tell us about third-party liability?
port police
Port police?
  • An established port police cannot be everywhere at once
  • Port employees are in a position to deter conduct at access points (as a condition of service and entry)
  • Port police cannot realistically have the same skills and expertise as those working on the waterfront.
third party liability can work
Third- party liability can work…
  • Communication
    • Openness
    • Transparency
    • Willingness to engage
  • Relationships
    • Personal relationships from core group
    • Trust
    • Respect
  • Expertise
    • Familiarity with environment / have necessary skills
    • Professionalism
    • Credibility
recognition by government and industry
Recognition by government and industry

“Third-parties? There is no ‘third’. We are all part of the same system and need to work together.”

Office of Transport Security Official, 2009