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Aviation Transport Security Bill 2004

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2002-2003

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

AVIATION TRANSPORT SECURITY BILL 2003

 

 

 

 

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Transport and Regional Services,

the Honourable John Anderson, MP)



 

AVIATION TRANSPORT SECURITY BILL 2003

 

 

OUTLINE

 

The purpose of the Aviation Transport Security Bill (ATS Bill) is to maintain and improve transport security in civil aviation by:

 

·          enhancing the structure of the aviation security regulatory framework and providing for adequate flexibility in order to reflect the rapidly changing threat environment;

·          aligning Australian aviation security with the revised International Civil Aviation Organisation (ICAO) standards;

·          introducing graduated penalties for a more appropriate or equitable enforcement regime;

·          satisfying recommendations of the ANAO Report tabled 16 January 2003;

·          providing a separate piece of legislation that will allow for future amendments that may be extended to other transport sectors; and

·          implementing recent policy reviews and decisions made in response to the elevation of risk to aviation consequent to aviation terrorist attacks in the USA on September 11 2001.

 

The Bill will replace Parts 3 and 3A of the Air Navigation Act 1920 and will redevelop the regulatory framework such that the Bill and supporting regulations are more readily understood and applied by government and the aviation industry. 

 

The Bill allows for significant degree of flexibility by providing a broad and robust framework and extensive regulation making powers.  The aviation security environment is necessarily responsive to the increased focus on terrorist activity and new threats of unlawful interference with aviation.  As the nature of these threats changes, the regulator of aviation security may need to move quickly to implement new security measures or modify existing measures.  By providing for much of the detail to be set out in regulations, this Bill will allow the Government to respond to the evolving security situation in a timely fashion, while preserving the necessary parliamentary oversight.

 

Having a separate piece of legislation will clarify the roles and responsibilities of different industry members and the Australian public in relation to aviation security.  It will also provide enhanced capacity for the Department to monitor or improve compliance with industry standards.  Overall, its provisions reflect the aviation industry’s primary role in delivering security outcomes and the Commonwealth’s role in regulating the industry to monitor compliance and encourage the achievement of those outcomes.

 

The Bill has ten parts:

 

Part 1 - Preliminary: This Part includes the objects of the Bill, its application, both inside and outside Australia, and definitions.  A detailed definition of the meaning of ‘unlawful interference with aviation’ is included to clarify the application of the Bill.  The Bill is intended to prevail over other Commonwealth and State laws to the extent of any inconsistency when necessary to meet the objects of the Bill.  It will not apply to state aircraft or military facilities. 

 

It should also be noted that by virtue of Section 2.2(2) of the Criminal Code Act 1995 , Chapter 2 of the Criminal Code (which is found at the Schedule to that Act) applies to all offences against this Bill.  Chapter 2 of the Criminal Code contains all the general principles of criminal responsibility that apply to any offence, irrespective of how the offence is created.  Chapter 2 covers elements of an offence, circumstances in which there is no criminal responsibility, extensions of criminal responsibility, corporate criminal responsibility and proof of criminal responsibility.  Where no element is specified, the default elements under Chapter 2 of the Code apply.

 

Part 2 - Transport Security Programs: This Part requires various aviation industry participants to develop and comply with a transport security program.  These programs will regulate the operation of all persons performing a security function on behalf of the program holder.  Regulations will provide additional detail on the content and form of the transport security programs.  The programs will be approved by the Secretary if adequate, may be cancelled by the Secretary in certain circumstances, and will be reviewed over time to maintain relevance.

 

Part 3 - Airport Areas and Zones: Under this Part, the Secretary may declare an airport or part of an airport to be a security controlled airport.  The more sensitive areas of an airport can then be determined and delineated.  Airside and landside areas, and security zones within those areas, are described and may be established under this Part.  This enables appropriate security measures to be applied to different parts of the airport.  These provisions reflect that different parts of an airport represent different risks to aviation security.  Regulations will identify the requirements that apply to each area or security zone and the consequences for contravening those requirements.

 

Part 4 - Other Security Measures: This Part establishes fundamental security requirements that go beyond the concept of Area-based security controls in Part 3.  A key requirement is that passengers and other persons are screened and cleared prior to entering certain areas and/or boarding an aircraft.  The Part also 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).  In addition, regulations may prescribe detailed measures to deal with security on-board aircraft.  In the event of a specific threat or a change in the nature of threat to aviation, the Secretary can direct relevant industry or government authorities to implement measures in order to reduce the risk of unlawful interference with aviation in the immediate period.

 

Part 5 - Powers of officials: This Part deals with four classes of persons who may exercise powers for the purposes of preventing unlawful interference with aviation.  The four classes of person are:

1.       Aviation Security Inspectors (Division 2);

2.       Law Enforcement Officers (Division 3);

3.       Airport Security Guards (Division 4); and

4.       Screening Officers (Division 5)

 

This Part sets out eligibility criteria for each class of person, grants specific powers to each class and places limits upon the exercise of those powers.  Powers given to law enforcement officers under this Part are in addition to powers conferred upon them under other State, Territory or Commonwealth legislation.

 

Part 6 - Reporting aviation security incidents: This Part establishes mechanisms, including offences, which aim to ensure adequate information is reported to relevant persons, including industry organisations and the Government, in the event of an aviation security incident.  This Part details the form, content and manner of reporting, clarifying the roles of all persons with incident reporting responsibilities in the event of any incident that relates to aircraft or airport security.

 

Part 7 - Information-gathering: This Part allows the Secretary to collect and disseminate information prescribed in regulations, provides for controls on the use and disclosure of that information and protects the providers of information.  The aim is to encourage a dialogue between the aviation industry and Government and to ensure all critical compliance information is gathered in a timely and efficient manner.  The collection of information is essential for the Secretary to deal with, and to resolve, compliance concerns before they become serious and compromise aviation security.  This Part provides a balance by preventing the prosecution of those participants who readily and appropriately report information relevant to aviation security under this Part.

 

Part 8 - Enforcement: This part provides for a number of different enforcement options in circumstances where contraventions of the Bill have occurred or are suspected to have occurred.  

 

These enforcement tools are:

·          Infringement notices;

·          Enforcement orders;

·          Injunctions; and

·          Demerit points systems.

 

This Part is structured so that the regulator has a range of options to enforce compliance with the Bill, instead of or in addition to referring matters to the Director of Public Prosecutions for the purposes of prosecuting. Prosecutions are resource intensive and while prosecution is an appropriate tool for serious breaches of aviation security, the fundamental purpose of aviation security regulation is to encourage and effect compliance.

 

Part 9 - Review of decisions: This Part sets out the decisions which can be made under this Bill which are reviewable by the Administrative Appeals Tribunal (AAT).  Whilst the AAT is limited in undertaking merits review to the decisions list in this clause, this does not limit the scope for judicial review to occur under the Administrative Decisions (Judicial Review) Act 1976 , or at common law.

 

Part 10 - Miscellaneous: This Part contains technical information about the operation of this Bill and its intended effect on the application of existing legislation such as the Airports Act 1996, Consular Privileges and Immunities Act 1972, Defence (Visiting Forces) Act 1963, the Diplomatic Privileges and Immunities Act 1967.  It also allows for delegation of certain powers and functions of the Bill. This Part also includes provisions relating to compensation for damage to an aviation industry participant’s equipment or data and compensation for acquisition of property.  Finally, this Part allows further regulations to be made as required to give effect to this Bill.

 

Financial impact statement

Existing Budget allocations will be unaffected by this Bill.

 

Regulation impact statement

A Regulation Impact Statement (RIS) has been prepared for this Bill. 

 

Part 1         Problem

 

1.1       Background

 

The Australian community relies on a high level of confidence in the security of its civil aviation sector.  Commercially, transport forms an integral part of Australia’s infrastructure, providing essential input into a variety of business sectors. As a result, the security and reliability of Australian civil aviation are important to the continued growth and output of the Australian business community and of the Australian economy in general.

 

Since the aviation incidents in the USA of September 11 2001, the aviation sector has been under pressure to demonstrate its ability to effectively prevent further terrorist attacks using aviation related infrastructure.  Governments around the world have been working with the aviation industry sector to look at ways of making security controls more effective.  Australia’s focus on protection of such key infrastructure was heightened after the Bali Bombings in October 2002 when it became evident that Australia and Australians are also in the terrorists’ sights.

 

A secure aviation environment requires regulations that prevent incidents of unlawful interference, such as hijack or sabotage.  As a result, the aim of aviation security legislation is the deterrence, detection, and prevention of attempted acts of unlawful interference.  This regulation must be based on sound risk assessment and risk management practices, and respond to an increased threat assessment for Australia’s aviation sector.

 

The Department or Transport and Regional Services (The Department) currently has broad policy approval to reform aviation security legislation, and to align Australian aviation security with the revised International Civil Aviation Organisation (ICAO) standards.  Further, the Federal Government has tasked the Department with implementing the recommendations of recent decisions covering checked baggage screening, passenger screening, and new arrangements for access control at Australian airports.  In addition to these, the Prime Minister has granted broad policy approval to improve and modernise aviation security provisions contained in the Act and related regulations.

 

1.2       What is the problem being addressed?

 

The aviation security problem is threefold:

1.       The current aviation security regulatory framework is spread across a number of legislative tools.  This has resulted in unnecessary complications in the administration of laws and difficulty in ensuring compliance.  Moreover, current complexities inhibit full accountability and transparency of security providers (including airlines and airports).  A recent Australian National Audit Office (ANAO) report (Report No. 26, tabled 16 January 2003) clearly states that Government action is needed to consolidate and simplify aviation security.  The report makes recommendations in relation to air cargo, industry monitoring and compliance, the security management information system, and aviation security performance indicators.

 

2.       In the context of the Cornall Inquiry into Counter-Terrorism Arrangements in Australia (see Attorney General’s Media Release, 18 December 2001), in December 2001 and February 2002 the National Security Committee directed the Department to consult with industry in undertaking a review of passenger and baggage screening arrangements at Australian airports.  The Department was also required to review access control and Aviation Security Identification Card arrangements.  The outcome of these reviews was the preparation of advice to the Government.  The resultant Submissions were considered in December 2002.  The recommendations of these Submissions are to be implemented in the new legislative framework.

 

3.       The international standards for aviation security are framed in terms of the Convention on International Civil Aviation (the Chicago convention).  Australia is a founding member of the Chicago convention, signing on 7 December 1944.  One of the Chicago Convention’s primary functions is standardisation through the establishment of international standards and recommended practices (SARPS).  Aviation security SARPS are outlined under Annex 17 to the convention, which is administered by ICAO.  These pertain to general aviation security principles, organisation and delegation, preventative security measures, and the management of each Contracting State’s response to acts of unlawful interference.



Since the elevation of risk to aviation following the incidents in the USA of 11 September 2001, ICAO has made amendments to Annex 17 of the Chicago Convention.  The amendments identify additional areas of concern, clarify aviation security objectives in a changing environment, and recommend changes to authority delegation, information sharing, and response mechanisms.  As a signatory to this convention, Australia’s aviation security legislation needs to be updated accordingly.



Amendment 10 to Annex 17 was adopted on 7 December 2001.  The changes it contained arose from the proposals of the tenth, eleventh, and twelfth meetings of the Aviation Security panel (held in April 2000 and April 2001, and November 2001).  The Standards outlined under Annex 17 are mandatory for all Contracting States.  ICAO clearly states that these standards are to be implemented by appropriate legislative provisions.

 

The proposed restructure of Aviation Security legislation will have minimal resource implications for the aviation industry, being largely administrative in nature.  In fact, the new regulatory environment will not be substantially different to the current aviation security legislation.

 

1.3       Why is government action needed to correct the problem?

 

The general public is particularly sensitive to security issues.  There is considerable pressure on the industry and Government to continue to provide a secure environment for aviation into the future.  The consequences of failure are far more serious than in other environments.

Government action is needed to regulate aviation security because:

 

(a) the problem is one of market failure

 

In fundamental terms, aviation security is valued by customers but costly to provide.  Customers cannot observe the efforts made by individual carriers to ensure a secure environment, and consequently, for those businesses that provide the aviation service, security represents a substantial cost for limited return.  The potential for externalities in aviation security is also extremely high. An aviation incident which occurs, perhaps as a result of inadequate security measures, has negative effects on innocent third parties.  Medical and other costs (such as lost productivity) are borne by the entire community.  The consequence of failure and the effect on the community as a whole is too great for the market to operate independently and at the same time produce the optimal level of security.

 

(b) the problem requires international cooperation

 

As a signatory to Annex 17 of the Chicago convention, Australia acknowledges that aviation security is an international responsibility.  Government intervention will ensure that Australian aviation security standards are compatible with internationally accepted standards as outlined by ICAO.  Furthermore, in obtaining these standards, a legislative response will ensure that competition and trade are not impeded, and that multilateral requirements are met.

 

(c) the magnitude of the problem and solutions require government intervention

 

The relationship between Australia’s aviation industry bodies is highly interdependent.  In the event that even a small minority of operators fail to adopt industry-agreed minimum standards, the remaining operators would be required to adopt duplicated, more rigorous, and therefore significantly more costly, measures in order to counter the increased potential for a security breach.  For this reason the Government must adopt a consistent, enforceable framework.

 

In the longer term, the loss of Australia’s status as a secure provider of aviation would impose a significant cost on the Australian community.  A loss of confidence in Australian civil aviation would negatively affect patronage.  The cancellation or diversion in passenger air travel would result in significant loss of income to the Australian economy, particularly in relation to international tourism.  Cancellation or diversion of airfreight would result in additional costs of a similar magnitude.

 

In the event of an act of unlawful interference, consumers would demand immediate enhanced security before being willing to travel.  If industry was responsible for introducing measures to this effect on an emergency basis, it would result in inconveniences and costs substantially exceeding those incurred under planned regulation.

 

Airlines and airports may react by voluntarily introducing additional security measures in relation to their own activities.  However, in the absence of an established aviation security legislation framework, the lack of clear responsibilities may result in duplication and overlap of measures implemented.  Importantly, industry would have no common standard of minimum security measures, and hence no means of ensuring universal compliance.

 

Part 2         Objectives

 

2.1       What are the objectives of Government action?

 

The regulatory proposal is designed to achieve resolution of the fundamental problems identified under Part 1.  As such, the objectives of this legislative reform process are:

Q   to ensure a consolidated, consistent, modern, and transparent framework for aviation security;

Q   to implement the recommendations of policy reviews relating to Australia’s counter-terrorism arrangements, as demanded by the Government;

Q   to ensure that Australia’s international aviation responsibilities are met in accordance with the standards framed by the Convention on International Civil Aviation; and thereby

Q   to maintain Australia’s status as a secure provider of aviation transport infrastructure, thus avoiding the social and economic costs potentially associated with implementing inappropriate security measures for Australia’s civil aviation operations.

 

2.2       Is there regulation currently in place?

 

The Department currently administers the aviation security regulatory framework, set out under the Air Navigation Act 1920 and the Air Navigation Regulations 1947.  The current regulations adopt the approach of direct regulation, set minimum standards for the achievement of aviation security outcomes, and cover industry practices and procedures.

 

Part 3         Options

 

In discussing the options available for regulation of the Australian aviation security environment, it is important to emphasise a consolidated, consistent, and transparent approach.  Additional issues for consideration include consumer protection, national interest, and international commitments.  In considering the degree of self-regulation that may be appropriate, there are a number of options that must be examined.  Generally, maintaining the status-quo is considered as an option under Regulation Impact Statements.  However, given the deficiencies in the current regulation relating to ANAO criticism, recent policy reviews, and international requirements (as identified under Part 1), maintaining the status quo is not deemed an acceptable response by the Government, and has thus not been elaborated on.

 

ICAO requires specific and direct legislative implementation of the aviation security standards outlined under Annex 17.  For this reason a direct government response is required.  As such, maintaining the status quo leaves Australia in breach of its international obligations and is thus not acceptable, and our analysis of such options as self-regulation, quasi-regulation, and

co-regulation is brief.

 

3.1       Self-regulation

 

Self-regulation refers to the circumstance where industry formulates the rules for its own operation and where industry is solely responsible for the enforcement of these rules.  An example of this would be a code of conduct developed by a peak industry body.

 

One factor supporting the use of self-regulation is that the major participants of Australia’s aviation industry currently comprise a cohesive group committed to achieving the goal of a secure aviation network.  In addition, the industry has viable associations and peak bodies including the industry consultative group, hosted by the Department, which provide a regular forum for all major industry participants.

 

The general public is particularly sensitive to aviation security issues.  Allowing industry to set security standards would not assuage public concern over aviation security.  As such, aviation security is an area where the level of risk, and appropriate response to that risk, is better determined by government.  Intelligence information granted by the Australian Security Intelligence Organisation (ASIO) indicates that there is a real and continuing risk of interference to Australian aviation, and that an incident of this nature has the potential for extreme impact on the Australian community.  Market failure in the transport security sector dictates that these potential risks are unable to be satisfactorily resolved via self-regulation.

 

An ongoing problem lies in ensuring universal compliance and coverage by all industry participants, including new entrants and minor firms.  It would be extremely difficult for self-regulation to produce nationwide, enforceable standards.

 

As a result, the option of self-regulation is not recommended.

 

3.2       Quasi-regulation or Co-regulation

 

Quasi-regulation or co-regulation refers to the arrangement whereby standards are designed by industry, but enforced by government.  Enforcement may take the form of non-regulatory means (eg, official government endorsement) - this is quasi-regulation.  Alternatively, enforcement may be via direct legislative backing (eg, prescribing an industry code) - this is co-regulation.  However, a common theme of both quasi-regulation and co-regulation is that they provide a specific industry solution rather than a scheme of general application.

 

Quasi-regulation and co-regulation fail to provide universal sanctions for non-compliance.  Public interest in aviation security dictates that the intervention of government necessarily creates a public (and consumer) expectation of full compliance by all members of industry, regardless of whether they are part of an industry peak body or association.  To be effective, any aviation security regulatory framework needs to apply to the whole of Australia’s aviation industry.

 

As such, the options of quasi-regulation or co-regulation are not recommended.

 

3.3       Explicit government regulation

 

Australia has a long history of regulation with respect to aviation security.  The current legislative framework establishes minimum security standards for aviation industry participants, ensuring that national security outcomes are achieved, and consumers’ interests recognised.  Industry members must demonstrate that they meet these security requirements in order to lawfully operate.  The Department also has responsibility for monitoring and ensuring compliance.  A government-regulated aviation security environment ensures that Australia’s multi-lateral obligations under the Chicago Convention are met.

 

For an explicit government regulation framework to be effective in the aviation context, a key pre-requisite is an environment which fosters information sharing.  In general terms, the Department wishes to promote the full and frank exchange of information, between government and industry, on security matters.  An information-handling component has been introduced to cover information provided to the Department relating to compliance with aviation security standards.

 

In addition to this, the Aviation Security Branch maintains a number of formal consultative channels for communicating information about regulation.  First, the Branch hosts a longstanding industry-Department forum, the ‘Aviation Security Consultative Group’.  This forum is consulted when working through security regulation issues and their impact upon Australia’s aviation industry.  The group meets approximately once every three months though, in recent times, a number of additional ‘out of session’ meetings have been called in relation to specific and urgent aviation security issues. Representatives at these meetings include the major Australian airlines, airport owners/operators, peak industry bodies, and relevant Commonwealth agencies.

 

The Department recommends that explicit government regulation continue to be implemented for Australia’s aviation security environment because this approach provides universal standards and the certainty of legal sanction, should compliance action become necessary.

 

In addressing the identified problems, the proposed Aviation Transport Security Bill includes the eight substantive changes listed below.  These are the subject of this Regulation Impact Statement (RIS). In addition, the Bill contains a number of other proposals that reflect recent government decisions which are not covered by this RIS for security reasons (see below):

 

1.         Requiring persons other than airport and airline operators to have aviation security programs.

 

Proposed measures will extend the requirement to have a security program from the current arrangements that only require airlines and airports to do so.  Under the proposed reform, this requirement will be extended to cover a participant of a kind prescribed in the regulations.  The regulations will allow for programs to cover aviation industry participants such as cargo agents, airport tenants, or key security contractors.  This approach addresses a key concern of the ANAO relating to the accountability and responsibility of all aviation industry participants, not just airline and airport operators.  It is not proposed at this stage to require additional participants other than regulated cargo agents to have a program, but the legislation will have the flexibility to extend this at a later date if necessary.  A requirement for additional participants to develop and maintain a security program would be done through regulation and would be subject to parliamentary scrutiny.  The Department will undertake a full impact analysis of such regulation.

 

2.         Requirement to comply with, and not obstruct, another person’s program.

 

This measure was developed in light of ANAO concerns that airlines and airports are currently dependent on security contractors to meet the obligations of their programs, and that the regulatory structure needed a mechanism to ensure that contractors were aware of their responsibilities under a program and were obliged not to obstruct or hinder commitments made in that program.  Aviation security requires a team effort from the many participants operating at an airport.

 

3.         The introduction of a range of enforcement options.

 

The regulatory structure provides a menu of options targeted at promoting and encouraging compliance.  These include a demerit point scheme, enforceable orders, and injunctions.  Proposed options are graduated and seek to provide the Government with the power to directly target breaches.  For example, the use of an enforcement order to ensure that a door to an airside security zone is closed is a means of ensuring compliance rather than simply prosecuting offenders.  Such options are not currently available under legislation.

 

 

4.         Allowing the regulations to set different penalties for different classes of persons.

 

The ANAO report noted that the penalty structure was rigid and did not recognise the differing levels of responsibility for delivering aviation security outcomes.  The proposed penalty structure recognises this and provides a graded penalty system based on responsibility and accountability.  For example, a breach of screening would see the screening officer receive an appropriate penalty for a breach by an individual, but the screening authority - which has the broader responsibility for screening at a particular airport or area - would gain a higher penalty.

 

5.         A reduction in the penalty for screening operatives acting improperly.

 

This penalty is to be reduced because, as it stands, individuals themselves are subject to extremely high penalties.  The existing high penalty is inconsistent with a systems- approach based (as recommended by the ANAO) that seeks to penalise breaches at an organisational level, with reduced penalties for the individual.  The current penalty is also inconsistent with Attorney General’s Criminal Law policy on maximum penalties for individuals.  The proposed changes rectify this.

 

6.         The division of ‘weapon’ into ‘weapons’ and ‘prohibited items’ and various changes to the offences, and related penalties for improper possession of weapons.

 

The policy approach has been to clarify the difference between weapons and other items which may be prohibited in a cleared area or within an aircraft cabin (such as scissors) and to make the penalties for possession of these reflect this.  Prohibited items are those that while not strictly weapons (such as scissors) could be used to threaten or injure a person.  Penalties for intentional offences related to weapons have been increased whereas those for prohibited items are lower.  This reflects the differing threat to aviation security presented by different items.

 

7.         Clarification and expansion of the provisions related to the Additional Security Measures (now known as Special Security Directions).

 

There is a question as to the effectiveness of the current additional security measure power.  This power has been clarified and expanded.  While Additional Security Measures as they currently exist can be made and promulgated with no time limits or consultation mechanisms, the new Special Security Directions (SSDs) will be only made for a period of 3 months, with a possible extension of 3 months in consultation with industry.  After 6 months, the SSDs will expire.  This recognises the SSD as a specific response to a threat change or increase and requires the Government to examine and review the measures in the broader regulatory context.  The new provisions serve to retain the Department’s response power, as demanded by SARP 3.1.3 (each Contracting State shall establish an organisation and develop and implement regulations, practices and procedures, which together provide the security necessary for the operation of aircraft in normal operating conditions and capable of responding rapidly to meet any increased security threat), and address industry criticisms of the way this power is currently administered.

 

 

 

8.         Providing screening officers and airport security guards with a limited power to restrain persons.

 

This change seeks to address a growing problem where a cleared area may be intentionally breached by an unscreened person, especially by means of force, and a power is needed for that person to be held while the police or APS are called to attend.  It is necessary to ensure that Australia’s obligations under Annex 17 are met.  Each Contracting State must ensure that there is no possibility for mixing or contact between passengers subjected to security control and other persons not subjected to such control after the security screening points at airports serving international civil aviation have been passed.  If mixing or contact take place, the passengers concerned and their cabin baggage must be re-screened before boarding an aircraft.

 

In addition to the above changes, recent Government decisions will have significant cost implications.  These relate to the implementation of Passenger and Checked Bag Screening, and Access Control and ASICs measures, both of which were subject to review in December 2002.  Additional costs resulting from these decisions will be met by the aviation industry. At the Industry Consultative Group Meeting of 29 May 2002, industry representatives agreed that the cost of measures agreed to Government would be costly but not prohibitive.  Both of these reviews were exempted from Regulation Impact Statement requirements on the basis of national security.

 

3.4       Government regulation and control

 

A final option considered is that of Government regulation, administration and physical control over the security function at airports.  This would replace the current industry roles, for example, in screening passengers, baggage and security patrolling.

 

This approach could reduce the responsibility for monitoring compliance by industry with respect to ensuring adequate security and may provide more consistently applied standards.  This service delivery model would however be an approach inconsistent with established Government policy on devolution of responsibility.  There is significant financial benefit for Government in the current Australian model where the owners of the infrastructure hold responsibility for security and where the costs associated with physical aviation security are borne by the consumer.

 

There would still need to be a high level of industry involvement in the security function due to the nature of the aviation industry.  For example, in flight security and passenger baggage reconciliation would still need to be performed by the airlines.

 

The financial cost to Government would be prohibitively high for Government to assume security roles at all categorised airports. Cost recovery measures directed at getting consumers to bear some of the cost would be difficult to implement without damaging passenger numbers and politically challenging for Government.  Further, the balance between security and facilitation of passengers may be adversely affected were Government to assume the service provider role for aviation security.

 

 

 

Part 4         Impact Analysis

 

The proposed regulative reform to aviation security legislation has not been subject to detailed quantitative or scientific impact analysis due to the Government urgency for change.  During the review process however, it has been established that the greatest impact of the change will be on improving the processes that support existing systems.  A broad qualitative assessment of all of the anticipated effects of each option serves to provide further evidence of the need for regulatory action, and assist in reaching a conclusion as to which option is most appropriate.

 

Any impact analysis for aviation security is atypical in that the primary benefit is the avoidance of further costs.  Indirect benefits, in the avoidance of indirect costs, also play a substantial role.  Direct and indirect costs, if not avoided, are potentially large enough to cancel out the overall product revenues of Australian aviation.  Subsequently, the objective of aviation security regulation is to minimise the risks of such incidents.

 

Option 1         Self Regulation

 

Impact on Consumers

The impact of self-regulation on consumers would vary according to their location.  The real impact comes from an increased aviation security risk.  Market forces dictate that there is a clear need for government to counter the aviation security threat.  The economic incentive is not strong enough for industry to meet the costs of minimising the potential risk of unlawful interference.

 

Under such an arrangement, any costs to airlines and airports relating to security measures would most likely be passed on to consumers to the extent that consumers would tolerate additional costs.  Plus, the level of public confidence in aviation might decrease without government monitoring and involvement in maintaining security standards.

 

Impact on Industry

In the event of an aviation security incident, it is likely that the Australian travelling public would demand immediate enhanced security measures.  Airlines would also react by introducing measures in relation to their own activities.  However, in the absence of credible, secure and industry-wide infrastructure, such a company-specific security response may be more costly overall, and less effective due to the effects of duplication and lack of harmonisation.

 

Without the advantage of a nationally consistent, industry-wide framework, the immediate introduction of minimum security standards may necessarily be improvised and unscientific in attempting to rapidly determine appropriate standards.  However, this option would grant industry the ability to determine what security arrangements are appropriate.

 

Under a self-regulated environment it is also possible that not all operators will implement optimal security measures, further increasing the risk of unlawful interference.

 

Impact on Government

The administrative and compliance assurance work associated with monitoring aviation security compliance would be removed from the Department.  These costs would be transferred from the Department to industry.

 

Under a self-regulation regime, the Government would lose any legislative power for ensuring that its policy objectives are met.  Since the September 11 attacks, there has been a strong emphasis on improving aviation security in Australia.  Provision of an additional $1.3 billion over five years (in the 2002-03 Budget process) to upgrade domestic security demonstrates this.  This additional funding targets improved aviation security, identification of possible security threats, and increased capacity to respond to security incidents.  These improvements could not be guaranteed under self-regulation.

 

The aviation industry is such that a whole variety of different organisations are required to effect the different functions of air travel, like passenger ticketing, cargo handling, and terminal operation.  The Government monitors each of the relevant organisations and physical locations to ensure each is aware of its security obligations.  Removing an independent governing body could result in a loss of integrity of the system.  There would be no real incentive to disclose a security breach by an organisation working as part of the chain as it would have implications for all the other organisations.  For example, an airline may discover a passenger on an aircraft with a weapon they have managed to carry through a screening point undetected.  For the airline to report the incident would decrease public confidence in aviation security which would negatively impact on their business.

 

Benefits

The voluntaristic nature of self-regulation means that aviation security initiatives might only be implemented where strictly needed, at the discretion of industry.  This would represent a decrease in the overall cost of security, and potentially result in savings to industry, consumers, and the community at large.  This may only be of short-term benefit as any incident involving a threat to security would have a negative financial impact on the industry.

 

Costs

The most significant cost associated with the adoption of a self-regulation approach is that, without suitable legislative enforcement tools, the Government’s aviation security reform objectives would not be met.  This would mean an increased risk of unlawful interference, and possibly unprecedented costs for both the aviation industry and Australian community. In the absence of government involvement or control in a regulatory capacity, the Australia’s obligations under international treaties would not be guaranteed.

 

Option 2         Quasi-regulation or Co-regulation

 

Impact on Consumers

The use of either a quasi-regulation or co-regulation approach would have little visible impact on consumers.

 

Impact on Industry

In a co-regulation environment, industry would be granted definite, codified enforcement powers, sufficient to ensure compliance with security standards within the airport community.  For example, common law trespass could be codified (to enhance legal certainty) at airports.  A quasi-regulation approach would see responsibility for the design of aviation security standards transferred to industry members.  Under either arrangement, it is plausible that inequitable influence within the industry could occur, thus contravening the Trade Practices Act and the Government’s Competition policy.  For example, a major airline negotiating standards with a small regional carrier.

 

Under a co-regulation arrangement, the Government’s role would be significantly diminished.  Most of the administration and monitoring costs associated with enforcement would be transferred to industry.  However, this also detracts from the Department’s ability to influence Australia’s aviation security environment, and its ability to report on national security objectives.

 

A quasi-regulated environment would remove the Government’s ability to dictate the regulations, while still leaving the costs of administration and compliance with the Department.  This would clearly impact upon the Departments ability to ensure aviation security objectives are being met.

 

Benefits

The benefits of adopting a quasi-regulation or co-regulation solution include financial savings in terms of costly initiatives.  Economic reality dictates that standards introduced by industry are unlikely to be as pervasive as those designed by a Government agency.  For this reason, the immediate financial cost to industry would probably be significantly lower.

 

Costs

One cost associated with both co-regulation and quasi-regulation approaches is that they limit the Department’s ability to ensure the best possible response to aviation security risk, either by restricting Departmental influence over the content of aviation standards, or restricting the Department’s compliance and enforcement options.  The potential for unlawful interference resulting from sub-standard regulation is also present.

 

In the event that co-regulation failed or if global political events changed the status of aviation risk, the Government would incur significant costs in resuming a regulatory role and would have to do so without current knowledge.  Under a quasi or co-regulation approach, government would lose the significant knowledge it does have of security issues, making it more difficult to take on direct regulation in the future.

 

Option 3         Explicit Government Regulation

 

Impact on Consumers

No significant changes to current facilitation or travel arrangements, from the point of view of travelling passengers or of members of the general public, are anticipated to arise from the regulatory proposal. That is, the proposed measures will have no impact on airfares, or cause any additional delays or inconvenience for consumers.

 

Impact on Industry

The regulatory proposal will only impact upon those members of Australia’s aviation industry upon whom the Government imposes security standards. In practice, this comprises the operators of Australia’s categorised airports (see attachment 1), Australia’s major airlines, and foreign airlines serving Australia.  The cost of improved security measures will be met by industry.

 

Explicit government regulation in this area will impact upon these groups in a number of ways.  Clarity of regulatory requirements under the revised structure will better allow industry to assess its performance against aviation security requirements.  This, coupled with the new enforcement framework will ensure improved compliance with aviation security standards.  This will further ensure that all industry members maintain a minimum security level, allowing for increased confidence in the integrity of Australian aviation security environment.  Increased confidence for foreign carriers in the integrity of Australian security standards will also result from the implementation of international standards.

 

Under the proposed reform, industry will have greater flexibility in meeting prescribed standards.  The new framework will involve broad outcome statements, with new security program arrangements giving industry discretion as to how these outcomes are achieved.  The onus will remain on industry to prove that they are able to meet the prescribed standards, but they will have the flexibility to do so in the most cost-effective manner.

 

Impact on Government

Many of the current aviation security rules are not permanent in nature.  In extreme cases, rules are prepared on an individual flight basis.  This means that, under the current system, there is a lack of certainty and transparency in the ongoing status of rules.  The revised government solution aim to provide this certainty to both government (as regulator) and industry members.  Outcomes will be codified in the regulations.

 

While it is anticipated that the Department’s inspection and compliance budget will remain at current levels, the range of enforcement tools provided under the new legislation will improve compliance and enhance the Department’s ability to prosecute offenders.  This will address recent concerns of the Australian National Audit Office (Report No. 26, tabled 16 January 2003) in relation to action taken by the Department to correct non-compliance with aviation security standards.

 

As a result of the Access Control and ASICs Decisions, Politically Motivated Violence checks will now become a key part of background checking for all ASIC applicants and holders.  These checks will have financial implications for the Australian Federal Police (AFP) and ASIO, and these would be considered in the context of the 2003-2004 Budget.

 

Benefits

The new framework will enhance certainty and transparency and will support an effective industry compliance program.  In addition, the reform of aviation security legislation will address issues such as cargo security, public safeguards when transporting persons in custody, current legislative loopholes, ambiguity in the weapons schedule, graduated penalties, airport categorisation, current Instruments issued under the legislation (with a view to incorporating several of these into regulations to improve transparency and accountability), and issues raised in the Australian National Audit Office Report into Aviation Security.

 

These measures will minimise the risk of a significant aviation security incident occurring and strengthen confidence in the security of Australian civil aviation.  Dependent industries (such as tourism) will also be able to place greater confidence in the security of Australian civil aviation.  The positive effects of a secure aviation infrastructure for Australia benefit the whole of the Australian community.  However, these benefits are difficult to accurately quantify in dollar terms.

 

An aviation security breach, occurring within Australia would impose a substantial cost on all parties directly affected.  These are the direct costs to be avoided and hence the direct aviation security benefit of an effective aviation security environment.

 

 

Costs

The introduction of new aviation security legislation will impact upon the following classes of people:

 

1. impact on members of the Australian community

A revision of Australia’s aviation security legislation will ensure the continued application of global aviation security practices.  It will also clarify the responsibilities of the travelling public in relation to aviation security.  The threat of a catastrophic and costly event occurring within Australian aviation will be minimised and confidence in the security of Australian civil aviation will be strengthened.

 

2. impact on business

Non-aviation business will be able to place strengthened confidence in the security of Australian civil aviation.  The new security program provisions will place responsibility on additional aviation participants to produce a program, and will require current program holders to periodically revise their programs.  Under the current system, it takes airline or airport operators an estimated 20 person hours to develop a new security program that meets the regulatory requirements.  However, the nature of security programs means that larger operators (such as Qantas or Sydney Kingsford Smith Airport) will voluntarily take longer to develop their programs, far exceeding regulatory impositions.  The new programs will be more complex, and the Department estimates that it will take approximately 60 person hours to develop a new program meeting the regulatory standards.  However, large operators may voluntarily invest significantly more time as a matter of internal policy.  There is to be a mandatory review period of five years placed on security programs, however industry participants would usually review their program more frequently in response to changing conditions.  If conditions have not changed significantly in the five year period, the review will be cursory and the existing program will simply be resubmitted for approval by the Secretary.

 

3. impact on government

Government expenditure will not be affected.

 

Part 5         Consultation

 

In relation to the regulatory proposal, the Department has utilised two separate consultative processes.  First, the Department consulted widely with industry in reviewing current aviation security policy.  Consultative documents were circulated in instalments relating to a variety of issues.  The parties consulted in this process included Australia’s categorised airports (see attachment 1), the major Australian airlines, foreign international airlines serving Australia, and peak industry bodies.

 

The instalments comprised:

Instalment 1                 Preliminary matters;

Instalment 2                 Airport access control;

Instalment 3                 Passenger and checked bag screening;

Instalment 4                 Airport measures; and

Instalments 5 & 6        Airline measures and the powers of the Department.

 

The Department welcomed formal comment from industry when circulating these instalments, and substantial comment was received.  These consultative papers formed the basis of the Passenger and Checked Baggage, and Access Control and ASICs decisions.  The outcomes of these Submissions underpin the most significant changes to the current legislation.

 

Second, the proposed changes were presented at the most recent Aviation Security Industry Consultative Group meeting (19 to 21 February 2003).  This forum promotes consultation widely within Australia’s aviation industry on issues surrounding aviation security regulation in Australia.  In attendance at this meeting were representatives from the Department, other government agencies, the major Australian airlines, the major airport operators, and peak industry bodies (see attachment 2).

 

Consultative statement

Industry members raised a number of concerns with the proposed reforms.

Industry members were concerned that the new structure did not contain specific provisions for the prevention of aviation security hoaxes, and the prosecution of people who provide false or misleading aviation security information.  Consideration was given to this issue, including the possibility of adding specific hoax provisions to the Bill.  However, legal advice on the matter stated that sufficient hoax protection is afforded by other legislation.

 

Another concern raised was that airline and airport operators, as screening authorities, are accountable for breaches of the screening point.  Consequently they need greater authority to prevent people from entering or remaining in a sterile area if the person has not been both screened and cleared.  As leaseholder, airports can already do this (in a similar way to nightclub bouncers), however, the Department agreed to provide screening officers and airport security guards with a limited power of detention to strengthen their position.

 

Industry members also expressed concern with existing persons in custody provisions.  There have been instances where airline operators have had difficulty in obtaining persons in custody information from the relevant enforcement body.  Such information is necessary for the airline operator to make an informed decision about whether they can transport the person and maintain adequate security.  This concern has been rectified under the proposed changes.

 

Some members of industry also expressed concern over the proposed use of demerit points.  However, the Department sees this as an integral part of the new compliance regime.

 

Aside from these concerns, the Department has received favourable comment from industry on the overall direction of the proposed aviation security regulatory framework.

 

Part 6         Conclusion

 

Self-regulation is not appropriate in the current aviation security environment for a number of reasons.  A lack of legislative enforcement options for ensuring universal compliance would seriously compromise security.  Also, despite the presence of consultative arrangements between industry players, power differentials could adversely affect parity to the detriment of minor players.  A self-regulation approach also hinders the Government’s ability to ensure that its international obligations are met.  The relative cost of aviation security measures indicates that, under self-regulation, security standards would not be comparable to those imposed under explicit government regulation, a result which is not acceptable to the Government.

 

Under quasi-regulation or co-regulation, it is difficult to ensure consistent sanctions for non-compliance.  For an area of strong public interest concern, such as aviation security, the intervention of government necessarily creates a public (and consumer) expectation of full compliance by all members of industry, regardless of whether they are part of an industry peak body or association.  Again, the nature of the aviation industry (with a small number of key organisations with a great deal of power) means that it is not appropriate for industry to be either setting or enforcing standards.  In the current security environment, transparent and consistent standards are necessary, meaning that co-regulation and quasi-regulation options are not suitable.

 

The Department recommends that explicit government regulation continue to be implemented for Australia’s aviation security environment for a number of reasons.

 

The first element of the aviation security problem is that aviation security is spread across a number of legislative tools.  A recent ANAO report (Report No. 26, tabled 16 January 2003) clearly states that Government action is needed to consolidate and simplify the existing legislation, which is an integral part of the proposed changes.  In this regard, explicit government regulation is the best way of ensuring clear and consistent standards and the necessary enforcement options to ensure compliance.

 

As part of this regulatory package, the Department will be implementing the recommendations of Government in relation to passenger and checked bag screening, and Access Control and ASICs.  In particular, the Department recommends the extension of passenger screening at regional categorised ports to ensure that the deployment of passenger screening more accurately matches the emerging role of regional airlines (in tandem with Australia’s major airlines) in carrying high volumes of jet airline passengers.  Changes to the ASIC regime will impose stricter controls upon those with access to security sensitive areas at an airport.  There is a legal responsibility for the Department to recommend these measures to the standard required by Government.  The most effective vehicle for achieving this is explicit Government regulation.

 

As a signatory to the Chicago convention, Australia must comply with the aviation security standards outlined under Annex 17.  Under self-regulation, quasi-regulation, and co-regulation, it would be difficult to ensure that these obligations were adhered to.  As such, explicit government regulation of aviation security is necessary in meeting Australia’s international obligations.

 

In preparing this regulatory proposal, the Department has identified and assessed a number of options to ensure the most effective delivery of aviation security outcomes.  While the Department recommends explicit government regulation in relation to aviation security, this is to be implemented in full consultation with industry.  Moreover, by adopting a less prescriptive approach, through flexible security programs, this approach ensures that government objectives are achieved while allowing allows industry to influence practical aspects of how this can be done.

 

 

Part 7         Implementation

 

The revised aviation security regulatory framework is to be implemented through the Aviation Transport Security Bill 2003 which is due to be tabled in Parliament on 24 March 2003.  It will consist of a new, discrete Act and Regulations, as opposed to the current situation whereby aviation security is regulated under the Air Navigation Act 1920 and the subordinate Air Navigation Regulations.  The Department will administer the new regulations and continue in its current compliance role.  The future effect and operation of the regulatory framework will be reviewed in partnership with industry.  The Department proposes the use of a policy feedback loop. This approach will enable government and industry to collate an accurate, up-to-date view of Australia's aviation security health - and to consider future amendments to the regulatory framework as appropriate.

 

This legislative package will be evaluated in detail as part of the overall policy feedback process.  Aspects that have already been highlighted by industry - such as the use of demerit points - will be assessed in particular, as well as the overall effectiveness of this legislation in achieving aviation security outcomes. The Department will engage in continuing consultation with industry, through such vehicles as the regular and ongoing meetings of the Aviation Security Industry Consultative Group, in which any operational issues can be raised with the Department.

 

In order to meet the requirements of Government (relating to revised passenger and checked baggage, and access control and ASICs measures), the new Act and Regulations will apply upon proclamation, or no later than 1 July 2004 where transitional arrangements exist.

 

Attachment 1 - Airport Categorisation

 

Airport categorisation is an administrative process, performed by the Department, assessing the underlying potential (or risk) of an act of unlawful interference being committed at an airport.  The risk of unlawful interference is not spread evenly across the whole of Australia.  Rather, it is more concentrated at Australia’s major airports and major centres of population.  This represents one of the reasons why Sydney airport - being Australia’s single largest hub airport and serving Australia’s largest population centre - represents the airport with the highest assessed risk within Australia.

 

The practical effect of categorising an airport is to trigger a requirement for the operator of the airport to implement specific aviation security measures.  These measures cascade, with category 1 providing the most robust and comprehensive mix of measures and resources for Australia’s highest risk airports, tapering down to a more appropriate mix at the lower risk category 5 airports.  Not every Australian airport is categorised.  Rather, only those airports assessed to be subject to an aviation security risk, and hence assessed as needing to implement security measures, are categorised.  By apportioning measures based on relative risk assessment, a more consistent level of security is achieved Australia-wide.

 

At present, the Department uses a variety of information including jet passenger traffic for the airport to determine the aviation security risk presented by each airport.  A list of Australia’s categorised airports is set out in the following table:

 

Category        Airport

Category 1     Adelaide Airport

Sydney (Kingsford Smith) Airport

Brisbane Airport

Perth Airport  

Melbourne Airport

Category 2     Cairns Airport

Canberra Airport        

Coolangatta Airport   

Darwin Airport

Category 3     Hobart Airport

Alice Springs Airport

Townsville Airport

Newcastle (Williamtown) Airport     

Broome Airport

Launceston Airport

Norfolk Island Airport

Hamilton Island Airport        

Port Hedland Airport

Ayers Rock Airport

Christmas Island Airport

Category 4     Ballina Airport

Coffs Harbour Airport

Maroochydore Airport

Proserpine Airport      

Devonport Airport

Kalgoorlie Airport

Kununurra Airport

Rockhampton Airport

Gove Airport

Karratha Airport

Mackay Airport

Mount Isa Airport

Category 5     Burnie Airport

Groote Eylandt Airport

Mildura Airport

Newman Airport

Paraburdoo Airport

Weipa Airport

 

Attachment 2 - Industry Consultative Group Meeting, 19th to 21st February 2003 - Industry Representatives

 

Airlines

Qantas Geoff Askew, Trevor Jones

Virgin Blue Phil Scanlon

National Jet Systems Jonathon Jackson

 

Airports

Sydney Airport Corporation Limited Peter Stephens, Ron Elliott

Brisbane Airport Stephen Goodwin, Ted McPheat

Australia Pacific Airports (Melbourne) Pam Graham, Les Kirby

Westralia Airport Corporation Richard Gates

Adelaide Airport John McArdle

Cairns Port Authority John Milton, Phil Warwick

Gold Coast Airport Limited Graham Eather

Northern Territory Airports Andrew Liepa

Canberra Airport Richard Doyle

Hobart Airport John Langford

 

Industry Bodies

Regional Aviation Association of Australia Bob Mason

Board of Airline Representatives Australia John Roach, Warren Bennett

Australian Airports Association John McArdle

 

 



AVIATION TRANSPORT SECURITY BILL 2003

 

 

NOTES ON CLAUSES

 

Part 1 - Preliminary

 

Division 1 - Short title and commencement

 

Clause 1 Short Title

 

This clause provides that the Bill will be called the Aviation Transport Security Act 2003 once enacted .

 

Clause 2 Commencement

This clause provides that the Bill will commence on the date of proclamation but not later than 12 months after Royal assent.  Commencement by proclamation will allow time for numerous systems to be developed and in place and it will allow for completion of the drafting of the regulations, which will need to commence at the same time as the Bill.

 

Division 2 - Purposes and simplified overview of this Act

 

Clause 3 Purposes of this Act

This clause outlines the purposes of this Bill.  In this context, a general aim of the Bill is also to convey the message that aviation security is everyone’s responsibility .  That is, everyone has an obligation to comply with security measures so that aviation security is not compromised.  In particular, persons engaged in aviation-related activities have additional responsibilities as set out in this Bill.  The Secretary’s role is to regulate the security outcomes of the aviation industry.

 

This clause specifically states the main purpose of this Bill is to establish a regulatory framework to safeguard against unlawful interference with aviation.  To achieve this purpose, this Bill establishes minimum security requirements for civil aviation in Australia by imposing obligations on person engaged in civil aviation related activities.  In particular, it obliges certain aviation industry participants to develop, and comply with, aviation security programs.  The role of the Secretary under this Bill is to regulate those aviation industry participants.  Another purpose of this Act is to meet Australia’s obligations under the Convention on International Civil Aviation (also known as the Chicago Convention).

 

Clause 4 Simplified overview of Act

This clause provides a simplified outline of this Bill. 

 

Division 3 - Application

 

Clause 5 Extension to Territories

This clause provides that the Bill applies in all external Territories, eg. Christmas Island, Norfolk Island etc.

 



Clause 6 Geographical jurisdiction

This clause means that the Bill may apply outside Australia through application of section 15.2 of the Criminal Code (extended geographical jurisdiction - category B).  The extended geographical (or extraterritorial) jurisdiction under that section requires the offending conduct to have a connection with Australia.  This may be because the conduct occurs within Australia or on an Australian aircraft or because the offence is committed by an Australian citizen, Australian resident or Australian company.  It may also apply where the conduct occurs outside of Australia and a result of that conduct occurs in Australia or on an Australian aircraft.  The fact that the conduct is not a crime under the law of the foreign country where the conduct occurred may be used as a defence for persons who are not Australian citizens or Australian companies.  The practical application of the extended geographical jurisdiction will further be confined by the definition of prescribed air service in the regulations.

 

Generally speaking, parties to the Convention on International Civil Aviation (Chicago Convention) are responsible for aviation security within, and over, their own territory.  Australia requires all international airlines to operate under an Australian security program when operating within Australia.  Nonetheless, there will be occasions when a person should be liable under Australian law for conduct that incurred outside Australia due to the impact that conduct might have on our aviation security system. Australia accepts passengers, baggage and cargo into its international terminals without the need for additional screening.  Were an airline to deliver unscreened passengers or baggage, it could compromise security at those terminals, possibly requiring disruptive and expensive remediation. If, for example, an explosive device or weapon were found in an aircraft that had just arrived in Australia, the international airline may need to be held responsible for a failure to adequately screen the aircraft before departure from the overseas airport.  Another example could be failure to comply with a special security direction that imposes special security procedures for air transport services between Australia and a particular foreign country.

 

Due to the definition of this Act, any regulations made under the Bill will also have extended geographical jurisdiction. 

 

Clause 7 Act to bind Crown

This clause provides that the Crown in right of the Commonwealth and all the States and Territories is subject to the Bill, but it cannot be prosecuted for an offence under the Bill. 

 

Clause 8 Act not to apply to state aircraft

The Bill does not apply to a state aircraft, a term defined in clause 9.  In addition it will not apply to civil aircraft that the Australian Defence Force leases, charters or otherwise operationally controls.  Subclause 8(2) also clarifies that the Australian Defence Force is not an aviation industry participant under this Bill.

 

It should be noted that by virtue of the savings provisions in clause 131 many provisions of the Bill will not apply to the representatives or defence forces of foreign States.

 

Division 4 - Definitions

 

Clause 9 Definitions

This clause defines certain terms used in the Bill.  The definitions appear in alphabetical order in the Bill.  However, for the purposes of the explanatory memorandum, the definitions have been grouped together where that may aid interpretation.  Only select definitions are explained here:

 

Aircraft has the same meaning as in the Civil Aviation Act 1988, that is, any machine or craft that can derive support in the atmosphere from the reactions of air, other than the reactions of the air against the earth’s surface.  This excludes hovercraft.

 

Airside area means an area established under subclause 29(1).  Subclause 29(1) requires the Secretary to make public, by way of a notice in the Gazette , the physical location of the airside area within the boundary of a security controlled airport. 

 

An airside security zone means an area within the airside that may present a different level of security risk to the airside generally and would therefore potentially require different security treatment.

 

A landside area means an area under subclause 29(3) as the area remaining within the boundaries of a security controlled airport once the airside areas have been determined.  A map of the airport, its boundaries, its landside and its airside would be made public by way of a notice in the Gazette

 

A landside security zone means an area within the designated landside of a security controlled airport that is established under subclause 28(2).  The purpose of designating a landside security zone within the landside area is that areas that require stricter or more specialised controls can be treated accordingly.   

 

Aviation industry participant is defined to include persons who must have regard to aviation security matters as part of their business.  An aviation industry participant includes:

·          an airport operator;

·          an aircraft operator;

·          a regulated air cargo agent;

·          a person who occupies or controls an area of an airport (whether under a lease, sublease or other arrangement);

·          a person (other than an aviation security inspector) appointed by the Secretary under this Bill to perform a security function; or

·          a contractor who provides services to a person mentioned above.

 

Employee is defined in relation to an aviation industry participant, and includes:

·          employed by an aviation industry participant; or

·          engaged under a contract for services between the person and the aviation industry participant.

 

Baggage means any article or possession of a passenger of an aircraft, or crew member of an aircraft, that is to be carried on-board aircraft. The key concept in this definition is to only include items that are on-board an aircraft as the article or possession of a person travelling on that same aircraft, whether in the cabin or bellyhold of the aircraft.  For example, if a person intended to take an item of baggage with them on a particular aircraft, and it was subsequently decided that the item would reach the same destination on a different aircraft, the item would not fall within this definition of baggage.  Unaccompanied baggage travels as cargo and therefore is not captured by this definition because this type of baggage may be subject to different security controls.

 

Cargo means goods, other than baggage, carry-on baggage or stores, that are transported, or intended to be transported, by aircraft.    

 

Stores means items that are to be carried on-board an aircraft for use, sale or consumption on the aircraft.

 

Cleared aircraft means an aircraft where the regulations require all passengers to be cleared before they board that aircraft.

 

A cleared area is an area that can only be entered by persons who have received clearance.  A cleared area is considered a secure environment, as all persons within that area have been screened for weapons and other prohibited items or otherwise deemed cleared.  A cleared area can no longer be considered secure, and ceases to be a cleared area, if uncleared persons or goods move into the area.     

 

A cleared zone is a zone that can only be entered by persons who have received clearance.  A cleared zone is considered a secure environment, as all persons within that zone have been screened for weapons and other prohibited items or otherwise deemed cleared.  A cleared zone can no longer be considered secure, and ceases to be a cleared zone, if uncleared persons or goods move into the zone. This is an example of an airside or landside security zone that may be established under Part 3 of the Bill.

 

Engage in conduct is defined in this Bill to have the same meaning as that provided in the Criminal Code Act 1995 , to mean:

·          to do an act;

·          omit to perform an act.

For example, paragraph 79(5) uses the term engage in conduct .  If a person fails to perform an act, and that failure itself hinders or obstructs an aviation security inspector in the exercise of his or her powers, the person has engaged in conduct for the purposes of that offence provision.

 

Excepted circumstances in relation to protected information has the meaning given by subclause 113(2).  This subclause limits the disclosure of protected information to those persons who have legitimate need of the information.

 

In service in relation to an aircraft is defined as having the same meaning as in Article 2 of the Montreal Convention:

“an aircraft is considered to be in service from the beginning of the pre-flight preparation of the aircraft by ground personnel or by the crew for a specific flight until twenty-four hours after any landing.  The period of service shall, in any event, extend for the entire period during which the aircraft is in flight as defined in paragraph (a) of this Article.”

     Paragraph (a) states:

“an aircraft is considered to be in flight at any time from the moment when all its external doors are closed following embarkation until the moment when any such door is opened for disembarkation.  In the case of a forced landing, the flight shall be deemed to continue until the competent authorities take over the responsibility for the aircraft and for persons and property on-board.”

 

Montreal Convention has the same meaning as that given in the Crimes (Aviation) Act 1991.   The full title of the Montreal Convention is the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation 1971 done at Montreal on 23 September 1971 .

 

Prescribed air service is defined to apply to air services prescribed in the regulations for the purpose of this definition and is necessarily limited by the definition for air service

 

Prohibited item means an item that :

·          could be used for unlawful interference with aviation; and

·          is prescribed in the regulations for the purposes of this definition.

This definition recognises that many items, which are not strictly considered to be weapons, could be used to threaten, injure or in any way commit an act of unlawful interference with aviation.  The penalties that pertain to prohibited items are significantly lower than those for weapons to reflect the relative seriousness of the offences. The reference to unlawful interference with aviation appropriately limits the regulation making power given there are serious offences attached to the definition.  Examples of prohibited items are discussed in the explanatory material for Part 4 Division 4 below.

 

Weapon is defined to mean:

a)       a firearm of any kind; or

b)       a thing prescribed by the regulations as a weapon; or

c)       a device that, except for the absence of, or defect in, a part of the device, would be a weapon of a kind mentioned in paragraph (a) or (b); or

d)      a device that is reasonably capable of being converted into a weapon of a kind mentioned in paragraph (a) or (b). 

 

It is essential to allow the regulations to prescribe what a weapon is because new weapons may be developed and new threats may arise.  Amendments in response to these situations may need to be inserted into the regulatory framework quickly, which is not achievable by having to amend an Act.

 

Receive clearance is the decision made, after a person, vehicle or good has been screened, to allow that person, vehicle or good to proceed into a cleared area, cleared zone or cleared aircraft.  There are also some situations where a person, vehicle or good are deemed to have received clearance.  For example, some persons, such as Heads of State, are exempt from the screening requirements and are deemed to have received clearance in order to board aircraft. 

 

Regulated cargo agent means a person designated as a regulated cargo agent in accordance with regulations made under clause 44.  Regulated cargo agents undertake responsibility for screening air cargo. Regulations will prescribe requirements for regulated cargo agents.

 

Security compliance information means information that relates to compliance, or a failure to comply, with this Bill the regulations or an instrument made under this Bill or the regulations.   The purpose of security compliance information is to allow the Department of Transport and Regional Services (the Australian regulator of aviation security) to obtain information to address security compliance issues.

 

A security controlled airport is established under clause 28(2) when the Secretary publishes a map in the Gazette showing the physical layout and boundaries of that airport .   

 

State aircraft is defined with the same meaning as the Air Navigation Act 1920 , which currently states:

a)       aircraft of any part of the Defence Force (including any aircraft that is commanded by a member of that Force in the course of his or her duties as such a member), other than any aircraft that by virtue of registration under the regulations is an Australian aircraft ; and

b)       aircraft used in the military, customs or police services of a country other than Australia.

 

It should be noted that it is proposed to amend this definition in the Civil Aviation Legislation Amendment Bill 2003 by deleting the underlined text.  

 

Transport security program is defined as a program prepared for the purposes of Part 2 of the Bill.  The program is a fundamental tool for ensuring aviation industry participants understand and effect their role in delivering aviation security outcomes. 

 

Division 5 - Unlawful interference with aviation

 

Clause 10 Meaning of unlawful interference with aviation

This clause defines the term unlawful interference with aviation .  The definition is integral to the understanding and application of the Bill.  It determines the parameters of what unlawful interference with aviation is, how it may occur and thus the harm or threat that this Bill safeguards against.  It covers conduct that threatens the safe operation of aircraft and airports, and thus, behaviour which may cause harm to passengers, crew, ground personnel and the general public or damage to property. 

 

The term is based upon guidance from the International Civil Aviation Organisation (ICAO) that is contained in Doc 9713 Parts 1 and 2 ICAO Vocabulary 2001 - act of unlawful interference A53. 

 

The term is defined through paragraphs 10(a) to (h), listing the circumstances in which unlawful interference with aviation can occur, namely:

·          where control of an aircraft is taken by force, or threat of force, or by any other form of intimidation.  This subclause covers a hijacking;

·          where an aircraft is destroyed when it is in service.  “In service” is taken to mean when the aircraft is operating as an aircraft and can include when it is being maintained and serviced as well as when it operating as a transport conveyance.  This subclause covers a bomb attack;

·          where damage is done to an aircraft that is in service that puts the safety of the aircraft or any person on-board or outside the aircraft at risk.  This subclause covers sabotage such as mechanical interference with the intention of damaging the aircraft such as may occur when the aircraft were being maintained;

·          when doing anything on-board an aircraft that is in service that puts the safety of the aircraft or any person on-board or outside the aircraft at risk.  This clause envisages acts that would take place within the aircraft cabin;

·          when something is placed, or caused to be placed, on an aircraft that is in service that puts the safety of that aircraft or any person on-board or outside that aircraft at risk.  This clause covers placement of bombs or such devices in aircraft, both in the passenger cabin, or in the bellyhold;

·          when the safety of aircraft is put at risk by damage or destroying of air navigation facilities.  This would cover damage to or interference with air navigation aids such as control towers, beacons and signals interference;

·          where the safety of an aircraft is put at risk by communication of false information.  This would cover threats, hoaxing, or other provision of information that would cause an aircraft to take such action that would put it at risk; and

·          where a person commits an act at an airport, or causes interference or damage that puts the safe operation of an airport or the safety of any person at the airport at risk.  This subclause would cover destruction of key facilities or infrastructure.

 

PART 2 - Transport Security Programs

 

Transport security programs allow regulation of aviation security according to the different physical and operational characteristics of aviation industry participants.  The key organisations are required to develop a transport security program to demonstrate an understanding of their roles and responsibilities in managing aviation security and its ability to meet obligations. 

 

Division 1 - Simplified overview of Part

 

Clause 11 Simplified overview of Part

This clause provides an overview of each Division in this Part. 

 

Division 2 - Aviation industry participants required to have programs

 

Clause 12 Who must have a program

Certain aviation industry participants must have a transport security program in order to operate their business, including an operator of a security controlled airport and an operator of a prescribed air service.  Paragraph 12(c) allows regulations to be made which require other aviation industry participants to have a program. 

 

Not all airport and aircraft operators currently fall under the auspices of aviation security regulation.  For example, by limiting paragraphs 12(a) and (b) to security controlled airports and prescribed air services, the regulations need not include private aircraft operators in the requirement to have a program according to current policy.  On the other hand, the entire provision provides flexibility if the future aviation security environment warrants heavier regulation of participants such as very small airport operators, or contractors who provide a specific security service.

 

Clause 13 Participants required to have programs to operate

If an aviation industry participant is required to have a program, it is an offence punishable by 200 penalty units for that participant to operate without a program. Under section 4AA of the Crimes Act 1914, 1 penalty unit means $110.  Section 4B(3) of that Act allows the court to impose a penalty upon a body corporate up to 5 times the amount of the maximum that could be imposed on a natural person (ie. an individual) convicted of the same offence. [1]   For the offence to apply, the participant must operate as a participant of that kind under subclause 13(1)(b).  This subclause was inserted so that an organisation must actually be operating a relevant business for the offence to apply.  This clause is not intended to capture participants who are not in operation as a participant of that kind (for example, a recently established airline without a program can only commit an offence under this provision once it begins operating its airline business).  The offence is one of strict liability and does not apply if the participant has a reasonable excuse.

 

Clause 14 Participants must comply with programs

Participants will be guilty of an offence punishable by 200 penalty units if they do not comply with the program that is in force for an aircraft or airport operator and 100 penalty units for other aviation industry participants.  The offence is one of strict liability, however subclause 14(2) provides that it does not apply if the participant has a reasonable excuse. Reasonable excuse is a very limited legal defence that applies in addition to the usual defence of mistake of fact for strict liability offences as set out in the Criminal Code .    In this context, a reasonable excuse may be unforseen infrastructure damage caused by extreme weather.

 

Division 3 - Complying with programs of other participants

 

Clause 15 Complying with transport security programs of other participants

This clause is aimed at encouraging the many participants, who operate a business at an airport or with respect to an airline, to comply with transport security programs.  Aviation security requires a team effort from all participants that potentially impact upon aviation security.   

 

Subclause 15(1) provides that an aviation industry participant must not engage in conduct that hinders or obstructs compliance with the program of another participant.  This clause imposes obligations on any participant.

 

Under subclause 15(2), participants also have a positive obligation, and must take all reasonable steps, to comply with another’s program if they operate underneath that program and they have been given the relevant parts.  It is common for airport and aircraft operators to contract certain activities or lease land or buildings to another organisation.  This subclause imposes obligations on aviation industry participants who have a contractual relationship with the program holder and who are identified in the transport security program.  It should be noted that due to paragraph 16(2)(g) these participants will have been consulted in the development of the program. 

 

Subclause 15(3) provides that contravening this obligation does not constitute an offence.  Instead, a participant may be subject to an enforcement order under clause 119 or an injunction under clause 124.  Airport and aircraft operators are expected to have adequate contractual arrangements in place so that contractors, tenants and the like are held to account for actions or omissions which impact on aviation security.  However, this provision recognises there may be some cases where it is more appropriate for the regulator to go directly to the source of the problem that is potentially compromising aviation security.  This may be required where there is a commercial dispute between the parties.  This subclause aims to encourage compliance across the entire chain of authority, without undermining the principle that ultimate responsibility for program compliance rests with the owner of the program.  This clause responds specifically to a recommendation made by the ANAO Report on Aviation Security.

 



Division 4 - Content and form of programs

 

Clause 16 Content of programs

The transport security program is a key aspect of aviation security regulation.  It is the guiding document that coordinates all security activities with respect to the participant’s operation.  The program does not provide an interpretation of the obligations set out in the Bill and regulations.  Rather, it contains material relevant to the management of security by the participant that is not prescribed anywhere else in the regulatory framework.  It also requires the program holder to demonstrate its ability and dedication to implement aviation security outcomes.  The content of the program has three elements:

 

To meet the requirements set out in subclause 16(1), the participant must demonstrate that the participant:

·           is aware of its general responsibility to contribute to the maintenance of aviation security;

·           has developed an integrated, responsible and proactive approach to managing aviation security;

·           is aware of, and has the capacity to meet, the specific obligations imposed on the participant under this Act; and

·           has taken into account relevant features of the participant’s operation in developing activities and strategies for managing aviation security.

The purpose of this subclause is to require the participant to demonstrate to the regulator through its program that it is a dependable organisation with the capacity and desire to deliver security outcomes.

 

Subclause 16(2) requires a program to set out certain specific information:

·           how the participant will manage and coordinate aviation security activities within the participant’s operation.  For example, this may include outlining the role, structure, membership and protocol of the person or body responsible for security within the organisation;

·           how the participant will coordinate the management of aviation security with other parties (including Commonwealth agencies) who have responsibilities for, or are connected with, aviation.  This may include identifying links with other relevant authorities and the communication systems or existence of contractual arrangements in place to support these relationships;

·           the technology, equipment and procedures to be used by the participant to maintain aviation security.  The matters contemplated by this paragraph include, but are not limited to, the type and model of screening equipment used, the frequency and standard of patrolling by law enforcement officers and airport security guards and the lighting, fencing and barriers used, some of which may need to meet internationally accepted standards;

·           how the participant will respond to aviation security incidents.  This would include contingency plans and how those plans are to be exercised to ensure the participant is prepared to deal with an aviation incident;

·           the practices and procedures to be used by the participant to protect security compliance information.  This may involve setting out how the participant ensures its employees recognise and treat sensitive information as confidential, the consequences of not complying with those internal procedures and the equipment used to store sensitive material;

·           the other aviation industry participants who are covered by, or operating under, the program.  For example, the program would set out the identity and services provided by all organisations operating under the program (such as agents, contractors, tenants and like organisations).  It would also provide the way in which the program holder ensures those organisations comply with security obligations;

·           the consultation that was undertaken, in preparing the program, by the participant with the other aviation industry participants who are covered by, or operating under, the program.

The preparation of an effective program requires a thorough appreciation of the physical, operational and contractual characteristics of the individual participant.  

 

This type of specific information is contained in the programs, rather than in regulations, for a number of reasons.  Firstly, the program completes the regulatory framework by setting out operation-specific measures over and above those required in the Act and regulations.  Secondly, much of this information is not and should not be publicly available.  Disclosing some of the matters set out in programs could reduce the effectiveness of those matters and in some cases may compromise security.  Thirdly, programs allow different participants to match their program to their individual risk and operational profile.  For example, the operator of Sydney Kingsford Smith Airport would need to set out more comprehensive measures in relation to patrolling of the airside area in its program than the operator of Kalgoorlie Airport before the Secretary would approve the program.

 

Subclause (3) provides that the regulations may also set out requirements for:

·           each program.  That is, where the requirement needs to apply to all programs;

·           the programs of a particular kind of participant.  That is, different matters may be set out for different kinds of participants.  For example, an aircraft operator’s program would contain slightly different information to an airport operator’s program; or

·           each program for a particular class of a particular kind of participant.  For example, each kind of participant may be categorised or grouped administratively to allow a different level of requirements to be applied according to risk profile.  For example, this means that large operators can be subject to different requirements to smaller operators.

 

Clause 17 Form of programs

Programs are required to be writing.  Regulations can also set out requirements for the form of programs.  Subclause 17(2) requires a further requirement for an airport operator to include detailed maps (and proposed changes) that show the boundaries of landside and airside areas and zones of the airport.  It is envisaged these maps may also show access points around the airport.  The maps which include security zones are not suitable for public disclosure in the interests of security, but are very important in determining the obligations of participants and therefore they impact on the offences in relation to controlling access to these areas and zones.

 

Division 5 - Approving, revising and cancelling programs

 

Clauses 18 and 19 Providing programs for approval

Clause 18 allows a participant to prepare a program and request the Secretary to approve that program.  Clause 19 controls the way in which the Secretary makes a decision to approve or refuse to approve a program.

 

If the Secretary is satisfied the program adequately addresses the relevant requirements, the Secretary has no choice but to approve the program (subclause 19(1)).  Alternatively, if the Secretary is not satisfied he or she has no choice but to refuse to approve the program (subclause 19(2)).  The Secretary must give the participant written notice of the decision to approve or refuse. 

 

In making the decision to approve or refuse to approve, subclause 19(3) allows the Secretary to take account of existing circumstances as they relate to aviation security.  That is, the Secretary may have regard to the current aviation environment to determine whether the participant should have a program.  For example, if the nature of the threat level changed significantly, the participant may need to set out the relevant requirements in more detail and possibly commit to a greater level of measures, for example, more security personnel or more frequent patrolling.

 

Subclause 19(4) imposes a time limit of 60 days on the approval of programs.  This is to ensure an outcome is reached within a period known to both parties.  If the time period lapses with no decision made, a participant would be able to seek review of the deemed refusal in the AAT.

 

Clause 20 When a program is in force

The written notice of approval should specify the time the program comes into force (subclause 20(1)).  However, where no time is specified, the program comes into force when the notice is given (subclause 20(2)).  Subclause 20(2) also prevents retrospective approvals.  The earliest time a program can come into force is when the notice is given.

 

A program remains in force under subclause 20(3) until the program is replaced or cancelled.   A program can be replaced under subsection 22(2) via three circumstances; where the Secretary approves a revised program, which has been revised by the participant either:

  • voluntarily under clause 22; or
  • as directed by the Secretary under clause 23; and
  • at least every 5 years as required by clause 24.

 

Clause 21 Secretary may direct participants to vary programs

Subclause 21(1) allows the Secretary to, by written notice, direct a participant to vary a program where the Secretary is no longer satisfied the program adequately addresses the relevant requirements under Division 4.  Subclause 21(2) prohibits the Secretary from making a direction to vary unless the Secretary is satisfied the variation is appropriate to adequately address the relevant requirements.  It should be noted that clause 25 provides for cancellation in situations where the Secretary is not satisfied that the problem can be remedied through a variation.  The purpose of this clause is to address specific problems or inadequacies in a participant’s program that can be resolved by varying the program.  An example of a direction to vary is where a Special Security Direction is issued to implement a particular measure in response to an immediate threat and that threat evolves into an ongoing one.  A direction to vary would then incorporate that measure into the relevant participants’ program(s).

 

Subclause 21(3) aims to ensure certainty by requiring the Secretary to provide a notice setting out the variation and the period within which the participant must submit the varied program.

 

If the participant does not comply with a direction to vary, the Secretary must cancel the program under subclause 21(4).  However, the Secretary may allow extra time for the participant to comply, reducing the likelihood that a program will be cancelled for failing to meet this deadline.

 

Clause 22 Participants may revise programs

This clause allows the participant to voluntarily revise its own program.  A participant may consider that its program could be improved to fit changed circumstances.  The participant can then take positive steps to revise its program and submit it to the Secretary for approval.

 

Subclause 22(2) provides for the revised program to replace the existing one.  A new program effectively comes into force when approved and the five year period starts again for the purposes of the mandatory review requirement under clause 24.  The participant should clearly indicate the changes made by the revised program to allow the Secretary to assess the adequacy of the changes. 

 

Clause 23 Secretary may direct participants to revise programs

The Secretary may under subclause 23(1) direct a particular program holder or all program holders to revise their programs and submit them for approval in accordance with clause 22.  Once approved, the revised program replaces the existing one.  The purpose of this clause is to compel program holders to reconsider the existing aviation environment and relevant operation-specific factors to determine whether their program remains adequate.  Circumstances where this direction power may be used include, but are not limited to, the following:

·          intelligence is obtained which indicates an increase in the threat of unlawful interference with aviation;

·          a general increase in the likelihood of terrorism that could possibly impact on aviation security, for example, as a result of the Bali bombings of 12 October 2002; or

·          systematic issues identified through the audit process. 

 

Subclause 23(2) requires the Secretary to provide a notice specifying the period within which the revised program must be given.  The participant should clearly indicate the changes made by the revised program to allow the Secretary to assess the adequacy of the changes. 

 

Again, the Secretary must cancel the program under subclause 23(3) if the participant fails to comply with the direction. However, the Secretary may allow extra time for the participant to comply, reducing the likelihood that a program will be cancelled for failing to meet this deadline.

 

Clause 24 Programs must be revised every 5 years

The purpose of this clause is to ensure programs are revisited over time so that they remain living and relevant documents to the participants’ business.  Participants must therefore revise their programs at least once every 5 years in accordance with clause 22.  Once approved, the revised program replaces the existing one.  Where this does not occur, this clause requires the Secretary to cancel the program, that is, where the program has been in force for a period of 5 years and the Secretary has not approved a revised program for the participant within that period.  The level and nature of threats and acts of unlawful interference with aviation have changed dramatically in the past 5 years. This trend is expected to continue.  Effective regulation of aviation security requires flexibility, continuous improvement and adaptation to existing circumstances. 

 

Clauses 25 and 26 Cancelling programs

Clauses 25 and 26 require or allow the Secretary to cancel a program in certain circumstances.  A participant who is no longer capable of meeting its obligations as an organisation in relation to aviation security will not be allowed to operate its business.  The Secretary’s role is to regulate aviation industry participants to ensure they deliver security outcomes.  Where it is clear they are no longer able to do so, these provisions are essential to protect the general public by enabling the programs to be cancelled.

 

Inadequate programs

Clause 25 addresses the case where the Secretary is no longer satisfied the program meets the relevant requirements, and variation or revision of the program would not resolve the problem.  The Secretary must cancel the program under this clause.

 

Failure to comply

Clause 26 addresses the case where the program itself does meet the relevant requirements, but the participant is not complying with that program.  The Secretary may cancel the program under this clause. 

 

Cancellation of a program effectively means the participant can no longer operate its business.  Subclause 26(1)(b) appropriately controls the Secretary’s discretion to cancel a program under this clause.  It requires the participant to have accumulated a prescribed number of demerit points before the Secretary may cancel the program.  Therefore, a participant’s program may be cancelled only where systematic breaches have occurred or a persistent disregard for compliance is displayed.  Subclause 26(2) allows the Secretary to give the participant an opportunity to show cause why a program should not be cancelled.

 

PART 3 - Airport areas and zones

 

This Part allows the Secretary to establish a security controlled airport.  The establishment of a security controlled airport brings that particular airport under the regulatory framework for aviation security.  Many provisions in the Bill apply only to security controlled airports.  The decision to establish a security controlled airport has a significant effect on the business of an airport operator and is therefore merits reviewable under clause 126.  This approach also allows an appropriate balance to be achieved between a) preventing unlawful interference with aviation, b) maximising the efficiency of trade and commerce; and

c) providing cost effective services to regional Australia.

 

Maintaining the integrity of the boundaries of the landside and the airside is an essential component in achieving aviation security outcomes.  The airside area, and security zones that may be established within the airside and landside areas, will have tighter or more specialised access control arrangements than other parts of the airport to reflect the particular risk to aviation security presented by that part of the airport.  Procedures and arrangements will be put in place in the regulations.  These will include restricting entry only to authorised persons, preventing unauthorised access and deterring and detecting premeditated access.

 

Division 1 - Simplified overview of Part

 

Clause 27 Simplified overview of Part

This clause provides a simplified outline of this Part.

 

Division 2 - Establishment of areas and zones

 

Clause 28 Airports and security controlled airports

Subclause 28(1) defines an airport to mean an area of land or water intended for use either wholly or in part in connection with the arrival, departure or movement of aircraft.  It also includes any area that is controlled by an airport operator that is contiguous with such an area of land and water.  This definition recognises that Australian airports differ greatly from one another and include such features as business parks, wetlands and sea frontage. For example, wetlands would not be used for the movement, arrival or departure of aircraft, but still fall within the boundaries of some airports and therefore form part of the airport for the purposes of the definition.

 

Subclause 28(2) provides for the Secretary to publish a notice in the Gazette, so that the establishment of an airport, or part of an airport, as a security controlled airport is made public. 

 

Subclause 28(3) provides that the notice the Secretary publishes under subclause 28(2) will be accompanied by a map that shows the boundaries of the airport.  This will ensure people are able to find out where the boundaries are. 

 

Subclause 28(4) excludes any areas controlled exclusively by the Australian Defence Force from being included within the boundaries of a security controlled airport.  The Secretary may include a joint user area within the boundaries with the agreement of the Secretary of the Department of Defence.

 

Subclause 28(5) defines a joint user area as one controlled jointly by the Australian Defence Force or one or more aviation industry participants.

 

Clause 29 Airport areas - airside and landside

Subclause 29(1) provides that the notice issued in the Gazette by the Secretary under 28(2) will establish an airside area for a security controlled airport and show the boundaries of the airside area.  This will ensure people are able to find out where the boundaries are. This is particularly important as some offences, for example possession of a weapon in an airside area, rely on these boundaries.  While it is envisaged that the regulations will provide for appropriate signage to be displayed in these areas, this notice requirement provides an extra method for clarifying obligations placed upon individuals.

 

Subclause 29(2) specifies that the purpose of the establishment of an airside area is so that access to the operational areas of a security controlled airport can be controlled.  Control of airside access is essential to the achievement of aviation security outcomes.

 

Once an airside area is established for a security controlled airport, the remaining area within the boundaries of that security controlled airport is the landside area under subclause 29(3).  The purpose of this subclause is to establish a landside area and all parts of an airport will be either landside or airside areas.  The terms airside and landside are used in this Bill to reflect their common usage among aviation industry participants.

 

Clause 30 Airside security zones

Having established an airside area on a security controlled airport, the Secretary may then establish security zones within that airside.  This system is designed to promote flexibility within and across airports to focus on getting the right security measures operating in the right areas.

 

Subclause 30(1) provides for the Secretary, by written notice given to the operator of a security controlled airport, to establish one or more airside security zones within the airside area of the airport.  The types of zones are described in clause 31.

 

Subclause 30(2) provides that in establishing airside security zones, the notice must include a map of the airport that shows the boundaries of the zones. Unlike the notice and map of an airside area, this notice and map will not be gazetted and should not be publicly available for security reasons.  The maps will only be distributed to those whose obligations are dependant on the boundaries of these security zones.  It is also envisaged that the regulations will provide for appropriate signage to be displayed in these zones. 

 

Subclause 30(3) explains that the purpose of the airside security zones is to allow for stricter or more specific controls to be effected in those zones.  In general, access to the airside area will have conditions attached, such as screening, identification and supervision, having a lawful reason to enter, depending on the level of security required in that zone.  The security zones that may be designated may include areas for cleared persons, for cleared baggage, for loading and unloading aircraft or to protect traffic control towers and fuel facilities.

 

Clause 31 Types of airside security zones

Subclause 31(1) provides for regulations to be made that may prescribe different types of airside security zones. 

 

Different types of security zones will enable specific security issues to be addressed in a targeted manner.

 

Subclause 31(2) outlines the purposes for which different types of airside security zones may be prescribed and include:

·          controlling the movement of people, vehicles and goods within airside areas;

·          restricting access to zones within airside areas;

·          providing cleared zones;

·          preventing interference with aircraft (including unattended aircraft); and

·          ensuring the security of control towers, fuel storage areas, general aviation areas, cargo and baggage handling facilities, navigational aids, and critical facilities and critical structures.

 

Subclauses 31(3) and (4) note that a facility or a structure is a critical facility or structure if interference with them could put the safe operation of an airport or an aircraft at risk.  For example, a critical facility may be a building that is used to store screened catering goods immediately before being loaded onto aircraft.  A zone may be set up in order to apply security controls to this building, to reduce the likelihood of interference with those goods and support the safe operation of the relevant airport or aircraft.

 

The diagram below at Figure 1.0 helps to explain the concept of dividing a security controlled airport into areas and zones for the purposes of this Part of the Bill.



Figure 1.0: Airport Areas and Zones

 

 

 

 

 

 

 

 

 

 

 





Clause 32 Landside security zones

Subclause 32(1) allows for the Secretary, by written notice to the airport operator, to establish a landside security zone within the landside area of a security controlled airport.  Such a zone may be established to apply particular measures through regulation.

 

While landside areas have traditionally been considered freely accessible to the general public, provision has been made in this clause to designate a landside security zone should the need arise.  For example, in the future, it may be necessary to act quickly to restrict entry into the terminal building to include passengers and aviation industry participants only.  The establishment of a landside security zone would allow this to occur without having to amend the Act.  Other examples include ensuring unattended vehicles are not permitted or situated in the drop off zone directly outside the front of the terminal, or screening people before entry to the terminal.

 

Subclause 32(2) provides that the notice establishing landside must include a map of the airport that shows the boundaries of the landside security zones.  Unlike the notice and map of the airside area, the notice and map of landside security zones will not be gazetted and should not be publicly available for security reasons.  However, it is envisaged that the regulations will provide for appropriate signage to be displayed in these zones so that people are able to determine their obligations.

 

Subclause 32(3) establishes that the purpose of the landside security zones is to allow for stricter or more specific controls to be effected.  

 

Clause 33 Types of landside security zones

Subclause 33(1) allows for regulations to prescribe the different types of landside security zones.

 

Subclause 33(2) outlines the purposes for which the types of landside security zones may be prescribed.  These purposes include:

·          controlling the movement of people, vehicles and goods within landside areas;

·          restricting access to zones within landside areas;

·          providing cleared zones;

·          preventing interference with aircraft (including unattended aircraft); and

·          ensuring the security of control towers, fuel storage areas, general aviation areas, cargo and baggage handling facilities, navigational aids, and critical facilities and critical structures.

 

These purposes mirror the purposes in subclause 31(2) that apply to the airside area.

 

Clause 34 Secretary must consult etc

This clause provides that in establishing an airport area, an airside security zone, or a landside security zone at a security controlled airport, the Secretary must have regard to the purpose of the area or zone and take into account the views of the airport operator, the physical features of the airport and the operational features of the airport.  This clause is necessary to ensure that the zones or areas are established with regard to the differing needs and features that exist at Australian airports and recognises that unique circumstances need to be considered in establishing physical access control systems.

 



Division 3 - Control of airside areas and zones

 

Clause 35 Requirements for airside areas

Subclause 35(1) allows regulations to be made for the purposes of safeguarding against unlawful interference with aviation that prescribe requirements in relation to the airside area of a security controlled airport.  The reference to unlawful interference with aviation appropriately limits the extent of requirements that can be prescribed by regulations made under this clause. 

 

Subclause 35(2) outlines the matters that may be dealt with by regulations made under subclause 35(1) and include:

·          access to the airside area;

·          patrolling of the airside area;

·          the provision of lighting, fencing and storage facilities;

·          the identification or marking of the airside area (for example, through compulsory signage);

·          the approval of building works within, or adjacent to, the airside area;

·          the screening of people, vehicles or goods for entry to the airside area;

·          the security checking (including background checking) of persons who have access to the airside area.  This category will allow for the establishment of the Aviation Security Identification Card (ASIC) scheme that provides background checking for ASIC card holders.  The ASIC is the key identification measure for aviation personnel who have access to security restricted areas at airports;

·          the movement, management or operation of aircraft, vehicles and other machinery in the airside area;

·          the maintenance and the integrity of the airside area;

·          access to aircraft (including unattended aircraft) from the airside area;

·          the management of people and goods (including the management of unaccompanied, unidentified or suspicious goods) in the airside area; and

·          the management (including the sale or disposal) of vehicles or goods abandoned in the airside area.

This list gives an indication of the matters that may be contemplated for regulations made under this clause.

 

Subclause 35(3) provides that regulations made under subclause 35(2) may prescribe penalties.  The penalties for an offence committed by an airport operator or an aircraft operator must not exceed 200 penalty units.  The penalties for an offence committed by an aviation industry participant (other than an aircraft operator or airport operator) may not exceed 100 penalty units.  An offence committed by any other person may not exceed 50 penalty units.  This graduated penalty range reflects the different levels of responsibility for aviation security for aircraft and airline operators, other aviation participants and individuals.

 

Clause 36 Requirements for airside zones

Subclause 36(1) provides that regulations may be made, for the purposes of safeguarding against unlawful interference with aviation, prescribing requirements in relation to the different types of airside security zones at security controlled airports. The reference to unlawful interference with aviation appropriately limits the extent of requirements that can be prescribed by regulations made under this clause. 

 

Subclause 36(2) outlines the matters that may be dealt with by regulations made under subclause 36(1) and include:

·          access to airside zones;

·          patrolling of airside zones;

·          the provision of lighting, fencing and storage facilities;

·          the identification or marking of airside zones (for example, through compulsory signage);

·          the approval of building works within, or adjacent to, airside zones;

·          the screening of people, vehicles or goods for entry to airside zones;

·          the security checking (including background checking) of persons who have access to airside zones;

·          the movement, management or operation of aircraft, vehicles and other machinery in airside zones;

·          the maintenance and the integrity of airside zones;

·          access to aircraft (including unattended aircraft) from airside zones;

·          the management of people and goods (including the management of unaccompanied, unidentified or suspicious goods) in airside zones; and

·          the management (including the sale or disposal) of vehicles or goods abandoned in airside zones.

This list gives an indication of the matters that may be contemplated for regulations made under this clause.

 

Subclause 36(3) works in the same way as subclause 35(3) and provides a graduated penalty system to be effected in the regulations.  The penalties are limited in the same way as in subclause 35(3).

 

Division 4 - Control of landside areas and zones

 

Clause 37 Requirements for landside areas

Subclause 37(1) provides for regulations to be made for the purposes of safeguarding against unlawful interference with aviation that prescribe requirements in relation to the landside area of a security controlled airport. The reference to unlawful interference with aviation appropriately limits the extent of requirements that can be prescribed by regulations made under this clause. 

 

Subclause 37(2) outlines the matters that may be dealt with by regulations made under the subclause 37(1) and include:

·          access to the landside area;

·          patrolling of the landside area;

·          the provision of lighting, fencing and storage facilities;

·          the identification or marking of the landside area (for example, through compulsory signage);

·          the approval of building works within, or adjacent to, the landside area;

·          the screening of people, vehicles or goods for entry to the landside area;

·          the security checking (including background checking) of persons who have access to the landside area;

·          the movement, management or operation of aircraft, vehicles and other machinery in the landside area;

·          the maintenance and the integrity of the landside area;

·          access to aircraft (including unattended aircraft) from the landside area;

·          the management of people and goods (including the management of unaccompanied, unidentified or suspicious goods) in the landside area; and

·          the management (including the sale or disposal) of vehicles or goods abandoned in the landside area.

This list gives an indication of the matters that may be contemplated for regulations made under this clause.

 

Subclause 37(3) allows regulations to be made on the matters prescribed above may prescribe penalties.  The penalties for an offence committed by an airport operator or an aircraft operator may not exceed 200 penalty units.  The penalties for an offence committed by an aviation industry participant (other than an aircraft operator or airport operator) may not exceed 100 penalty units.  An offence committed by any other person may not exceed 50 penalty units.  This graduated penalty range reflects the different levels of responsibility for aviation security for aircraft and airline operators, other aviation participants and individuals.

 

Clause 38 Requirements for landside zones

Subclause 38(1) provides that regulations may be made, for the purposes of safeguarding against unlawful interference with aviation, prescribing requirements in relation to the different landside security zones of a security controlled airport. The reference to unlawful interference with aviation appropriately limits the extent of requirements that can be prescribed by regulations made under this clause. 

 

Subclause 38(2) outlines the matters that may be dealt with by regulations made under subclause 38(1) and include:

·          access to landside security zones;

·          patrolling of landside security zones;

·          the provision of lighting, fencing and storage facilities;

·          the identification or marking of landside security zones (for example, through compulsory signage);

·          the approval of building works within, or adjacent to, landside security zones;

·          the screening of people, vehicles or goods for entry to landside security zones;

·          the security checking (including background checking) of persons who have access to landside security zones;

·          the movement, management or operation of aircraft, vehicles and other machinery in landside security zones;

·          the maintenance and the integrity of landside security zones;

·          access to aircraft (including unattended aircraft) from landside security zones;

·          the management of people and goods (including the management of unaccompanied, unidentified or suspicious goods) in landside security zones; and

·          the management (including the sale or disposal) of vehicles or goods abandoned in landside security zones.

This list gives an indication of the matters that may be contemplated for regulations made under this clause.

 

Subclause 38(3) works in the same way as subclause 37(3) and provides a graduated penalty system to be effected in the regulations.  The penalties are limited in the same way as in subclause 37(3).

 

PART 4 - Other Security Measures

 

Division 1 - Simplified overview of Part

 

Clause 39 Simplified overview of Part

This part deals with a range of matters not dealt with elsewhere such as screening and clearing, weapons, prohibited items, on-board security, persons in custody and special security directions.

 

Division 2 - Screening and clearing

 

The principle purpose of screening is to prevent weapons and prohibited items from entering the cabin of an aircraft and to prevent explosive devices from entering the bellyhold of an aircraft.  This is done by screening persons, goods, and vehicles so that persons and goods that ultimately board or are carried on an aircraft are segregated or kept secure for the purposes of boarding or being carried on an aircraft.

 

The process of screening essentially contains three elements:

 

1.                   the process to be undertaken (screening);

2.                   the decision made (ie cleared or not cleared); and

3.                   if cleared, the maintenance of the cleared state.

 

The Bill separates the screening and clearing provisions for people, goods and vehicles.  This is to allow regulations to be made that specifically deal with each of these separately because the screening treatments needed for effective outcomes are different for each.  For example, goods being loaded onto an aircraft would be screened and cleared in a different way to passengers.

 

This Part also contemplates persons and classes of persons that will not need to be screened or who can enter a cleared area or zone other than through a screening point.  Only a very small minority of persons will be exempted in this way.  Screening is intended to be non-intrusive and consensual.  Screening is essential to ensuring aviation security outcomes.  It also promotes public confidence in the system aimed at preventing unlawful interference with aviation.

 

Clause 40 Simplified overview of Division

This clause provides a simplified overview of the Division and notes that access to aircraft, areas and zones at an airport may be restricted to persons good and vehicles that have received clearance. 

 

Clause 41 Screening and clearing people

Subclause 41(1) provides that a person is screened when the person undergoes screening in accordance with regulations made under clause 44 in preparation for boarding an aircraft or entering an area or zone within an airport.  “Screened” is the procedure.  This subclause does not preclude screening occurring off airport, for example, at a designated place such as a hotel.

 

Subclause 41(2) outlines how a person receives clearance.  The primary manner in which a person receives clearance is through a decision being made by the screening officer.  After being screened, the person receives clearance if they are allowed to proceed through a screening point.  It is envisaged the regulations will authorise or the Secretary will permit that some people, or classes of people, do not need to be screened (such as members of the police force who are on duty).  This subclause allows for those people to have received clearance, even though they have not been screened as described above.  Another way persons or classes of persons can receive clearance is where the regulations authorise or the Secretary permits those persons enter a cleared area, cleared zone or cleared aircraft other than through a screening point.  Therefore, paragraphs 41(2)(b) and (c) allow a determination to be made that persons who are in a cleared area, zone or aircraft are ‘deemed’ to have received clearance, either by virtue of being screened or having an exemption. 

 

Subclause 41(3) describes the term cleared, that is, the way in which someone, after receiving clearance, retains that particular status.  It provides that a person is cleared at a moment in time if they have received clearance and they have at all times been in a cleared area, a cleared zone or a cleared aircraft.  This clause is necessary to ensure that the person who has received clearance, only remains cleared if he or she has not had an opportunity to come into contact with any weapons or prohibited items, for example, either from other persons or from goods that have not been cleared.  If such an opportunity occurs, they would cease to be cleared.

 

Subclause 41(4) allows for regulations to be made to provide that a person is taken to be in a cleared area or cleared zone if the person is under the supervision or control prescribed in those regulations.  This recognises that supervision or control is taken to provide the same outcome as being in a cleared area or zone in limited circumstances prescribed in regulations, the outcome being, keeping persons segregated and cleared.  Subclause 41(4) is therefore a deeming provision and envisages a situation where, for example, an off airport screening procedure is permitted, such as at a hotel, for the purpose of boarding an aircraft, without passing through a cleared area or cleared zone.  The regulations may prescribe, for example, that transporting those people in a cleared vehicle along the normal road system is adequate supervision or control for the purpose of this subclause.  The regulations may also stipulate that the vehicle must be cleared and that the persons must be supervised at all times to ensure that they do not come into contact with uncleared persons or goods before they either enter a cleared area or cleared zone or board an aircraft.

 

Subclause 41(5) clarifies that the Secretary may issue a notice that will provide that a class of persons may pass through a screening point without being screened and further that a class of persons may enter a cleared area, cleared zone or cleared aircraft other than through a screening point.  An example of a class of person contemplated here is a small number of Customs officials who need access to these areas for covert operations and who may need to be able to observe and enter different parts of the airport quickly and by different routes. 

 

Clause 42 Screening and clearing goods

Subclause 42(1) provides that goods are to be screened in a way consistent with regulations under section 44 prior to being taken on-board an aircraft, or being taken into an area or zone within an airport.  The term “goods”, in this Bill, has its natural meaning and can be cargo, checked bags, or items for use or sale in a cleared area or zone.  This subclause does not preclude screening of goods to occur off airport, for example, at a Customs bond store.

 

Subclause 42(2) outlines how goods receive clearance.  A good can receive clearance if it has been screened and allowed to pass through a screening point, or if it is in a class of goods that have been exempted from screening by the regulations or the Secretary, whether or not it enters the cleared area, cleared zone or cleared aircraft through a screening point.  This subclause is flexible to recognise the many ways in which goods may be taken to have been screened and received clearance.

 

Subclause 42(3) provides that goods are cleared at a moment in time if they have received clearance and they have at all times been in a cleared area, a cleared zone or a cleared aircraft.  This clause is necessary to ensure that after goods receive clearance, they only remain cleared if they do not have the opportunity to come into contact with non cleared persons.  For example, it guards against the possibility that a non-cleared person with an explosive device could plant that device in a package of goods.  If such an opportunity occurs, the goods would cease to be cleared.

 

Subclauses 42(4) and 42(5) relate to goods and mirror the effect of subclauses 41(4) and 41(5) that apply to persons.  For example, goods may be screened in a freight collection facility or warehouse off the airport and transported to the airport for loading onto an aircraft.  The regulations may prescribe the way in which those goods must be supervised or controlled, for the purposes of being transported after receiving clearance. 

 

Clause 43 Screening and clearing vehicles

This clause relates to vehicles and mirrors clauses 41 and 42 that apply to persons and goods.  The vehicles envisaged in this clause are the numerous vehicles that operate on the airside everyday.  This would include vehicles used to transport cleared persons and goods to and around the airport.

 

Clause 44 Requirements for screening and clearing

This clause sets up the framework for regulations to be made to provide for the details of who can conduct screening, how they are to do it and when they are to do it in relation to people, goods and vehicles.

 

Subclause 44(1) states that the regulations may prescribe requirements in relation to screening, receiving clearance and when persons, goods or vehicles are required to be cleared.  It also allows for the establishment of a scheme for the regulation of air cargo agents.

 

Subclause 44(2) outlines all the things that can be dealt with by regulations in relation to subclause 44(1).  It is envisaged that the regulations will contain the full detail of how screening is to occur, where it may occur and by whom it is to be undertaken. 

 

Regulations can be made that authorise who is required to conduct screening, what screening should be trying to detect, what to do with the detected items, and circumstances in which a person must be cleared to enter a cleared airside area or zone or board an aircraft. 

 

Regulations can be also made that detail the circumstances in which persons, goods, baggage and cargo must be cleared to enter a landside security zone, airside area or airside zone or board or are taken onto an aircraft.  For example, a regulation could be made to require goods such as stores and catering to be screened and cleared in all circumstances where they are to be taken onto a charter operation which involves a jet-based aircraft.  This subclause further allows for regulations to be made to specify the circumstances in which vehicles must be cleared to be taken into a landside security zone, an airside area or an airside security zone.

 

This subclause further allows regulations to be made about:

·       the places screening can occur.  It is envisaged this can happen off and on an airport for persons, vehicles and goods;

·       what equipment can be used and how that equipment may be deployed;

·       what supervision and control measures can be used to ensure that persons, vehicles and goods that have received clearance remain cleared in uncleared areas and zones;

·       how the screening of cargo by regulated air cargo agents can occur and the procedures for dealing with screened cargo;

·       the requirements that a person must satisfy to be designated as a regulated cargo agent;

·       the method of applying for designation as a regulated air cargo agent and how those applications are to be dealt with; and

·       conditions that must be complied with by regulated air cargo agents.

 

Subclause 44(3) allows the regulations to provide an instrument power for the Secretary for a number of screening requirements, so that the Secretary can by written notice outline the requirements for:

·       the methods, techniques and equipment to be used for screening.  Such a notice may also provide that the notice only be given to the persons, or classes of person specified in the notice.  If made public, details about how screening is to occur may compromise aviation security.  Therefore, this subclause allows details to be promulgated to those who need to apply the techniques or procedures;

·       appoint those authorised or required to conduct screening.  For example, this would allow the Secretary to appoint specific persons as screening authorities; and

·       the procedures for screening cargo by regulated air cargo agents and for dealing with screened cargo.  Again, if made public, details about how screening is to occur may compromise aviation security.  Therefore, this subclause allows details to be promulgated to those who need to apply the techniques or procedures.

 

Subclause 44(4) provides a penalty structure for offences against the regulations made above and once again reflects the graduated responsibility structure.  Penalties made in the regulations must not exceed 200 penalty units for an airport operator or aircraft operator, 100 penalty units for an offence committed by an aviation industry participant (other than an aircraft operator or airline operator), or 50 penalty units for an offence committed by any other person.

 

Division 3 - Weapons

 

The control of weapons in certain security sensitive areas of airports and on-board aircraft is an important aspect of preventing unlawful interference with aviation.  It may ordinarily be lawful to possess a weapon (such as a large chef’s knife or a licensed firearm) in a public place, but this possession should be prohibited in certain areas for the purpose of preventing unlawful interference with aviation.

 

Clause 45 Simplified overview of this Division

This clause provides a simplified outline of this Division. 

 

Clause 46 Weapons in airside areas and landside security zones

Paragraphs 46(1)(a) and (b) provide that a person commits an offence if the person has a weapon in his or her possession in an airside area or a landside security zone.  Reference to areas and zones, which are established under this Act, effectively limits the application of this clause to security controlled airports.  Therefore, the offence only applies to persons at airports which fall under the regulatory cloak of this Bill.

 

Paragraph 46(1)(c) provides for circumstances where a person is permitted to have a weapon in these areas or zones.  Certain persons or classes of persons need to be able to carry weapons in the course of their duties.  Law enforcement officers and members of the Australian Defence Force on duty are therefore permitted under paragraphs 46(1)(c)(i) and (ii).  Paragraph 46(1)(c)(iii) allows a person to have a weapon if authorised by the regulations or permitted in writing by the Secretary.  For example, the regulations or the Secretary may allow the carriage of a weapon by a particular class of workers on the airside that require knives to perform their duties.  Conditions could also be placed upon this permission under clause 50.

 

Subclause 46(2) provides that subclause 46(1) is a strict liability offence.  A person who has a weapon in contravention of subclause 46(1) faces a maximum of 100 penalty units. 

 

The general offence under subclause 46(3) has a penalty of imprisonment because a fault element must also be proved.  That is, a person who is intentionally possesses a weapon and is reckless as to the fact that he or she is in an airside area or landside security zone faces a maximum of 7 years imprisonment.  The higher penalty recognises that intentional conduct of this type warrants more serious punishment than inadvertent breaches of the offence provisions.

 

Clause 47 Carrying weapons through a screening point

Paragraphs 47(1)(a) and (b) provide that a person commits an offence if the person has a weapon in his or her possession when he or she passes through a screening point.  A purpose of screening is to ensure passengers do not have access to weapons in the cabin to effect unlawful interference with aviation (for example, hijacking or acts of sabotage).  Weapons are therefore prohibited once a person passes through a screening point.

 

Paragraph 47(1)(c) provides for circumstances where a person is permitted to have a weapon when passing through a screening point.  Such circumstances are extremely limited, more so than in the airside area or landside security zone.   This is because passing through a screening point is the penultimate security control applied before passengers board an aircraft.  Certain persons or classes of persons need to be able to carry weapons in the course of their duties.  Law enforcement officers are therefore permitted under paragraph 47(1)(c)(i) (note a member of the Australian Defence Force who is on duty is not permitted here as in clause 46).  Paragraph 47(1)(c)(ii) allows persons to have a weapon if authorised by the regulations or permitted in writing by the Secretary. 

 

Subclause 47(2) provides that subclause 47(1) is a strict liability offence.  A person who has a weapon in contravention of subclause 47(1) faces a maximum of 100 penalty units. 

 

The general offence under subclause 47(3) has a penalty of imprisonment because a fault element must also be proved.  A person who has a weapon in contravention of subclause 47(1) faces a maximum of 7 years imprisonment.  The higher penalty recognises that intentional conduct of this type warrants more serious punishment than inadvertent breaches of the offence provisions.

 



Clause 48 and 49 Weapons on-board aircraft

Paragraphs 48(1)(a) and (b) provide that a person commits an offence if the person carries or otherwise has in his or her possession a weapon that is located at a place that is accessible to the person on-board a prescribed aircraft. The term prescribed aircraft allows certain aircraft such as charter operations for the purpose of hunting by air to be excluded from the auspices of this offence.

 

Paragraph 48(1)(b)(ii) refers to accessibility of a weapon.  This reference recognises that it is generally acceptable for weapons, other than explosive devices, to be carried in the bellyhold of an aircraft if the bellyhold is secure and not accessible by passengers for the duration of the flight.  The aim is to prevent persons from possessing weapons that are accessible to them during flight so they cannot be used to commit an act of unlawful interference with aviation.  

 

Paragraphs 48(1)(c), (d) and (e) provide for circumstances where a person is permitted to have a weapon on-board an aircraft, that is, where:

·          the person is a law enforcement officer;

·          carriage of the weapon is authorised by the regulations or permitted in writing by the Secretary; or

·           the weapon is under the control of the pilot in command, because:

-           it forms part of the equipment of the aircraft in accordance with the operation manual; or

-           an animal is being carried on-board that could endanger the safety of the aircraft or the people on-board. 

 

Subclause 48(2) provides that subclause 48(1) is a strict liability offence.  A person who has a weapon in contravention of subclause 48(1) faces a maximum of 100 penalty units. 

 

The note in this clause points to the Civil Aviation Act 1988 and the Crimes (Aviation) Act 1991 which also contain provisions regarding the carriage of weapons on aircraft.

 

The only difference between clauses 48 and 49 is clause 49 constitutes a general offence rather than a strict liability offence.  It has a penalty of imprisonment because a fault element must also be proved.  A person who has a weapon in contravention of subclause 49(1) faces a maximum of 7 years imprisonment.  The higher penalty recognises that intentional conduct of this type warrants more serious punishment than inadvertent breaches of the offence provisions.

 

Clause 50 Failure to comply with conditions

In permitting the possession or control of weapons, clause 50 allows the regulations or Secretary to impose conditions upon such permissions.  Where a person is authorised by regulations permitted in writing by the Secretary to have a weapon in his or possession or under his or her control, the person commits an offence if he or she fails to comply with conditions relating to that authorisation or permission.  This clause reinforces the undermining principle that weapons are generally prohibited in certain areas at airports and on-board aircraft.  Authorisation or permission to carry a weapon is a concession given in limited circumstances.  Absence of the ability to enforce compliance with conditions would undermine the ability to make those concessions.

 

The offence is a strict liability offence.  A person that contravenes conditions imposed faces a maximum 50 penalty units unless he or she has a reasonable excuse , which is a defence with an accepted legal meaning.

 

Clause 51 Secretary may permit by class

This clause clarifies that the Secretary, in giving permissions in relation to particular conduct under this Division, may give such permissions to a class of persons in addition to specific individuals.

 

Clause 52 Other weapons requirements

This clause allows the regulations to prescribe other matters in relation to the carriage and use of weapons for the purposes of safeguarding against unlawful interference with aviation.  The Bill appropriately sets out the serious offences regarding weapons at airports and on-board aircraft in clauses 46 to 50.  However, some detail can be outlined in regulations.  For example, the authorisation of carriage under clauses 46 to 51, dealing with a person who carries or uses a weapon or is suspected of carrying or using a weapon, or dealing with a surrendered weapon. 

 

Subclause 52(3) restricts the maximum penalties that may be imposed by regulations made under this clause.  The penalties reflect the relative roles and responsibilities of various persons in delivering aviation security outcomes.  They must not exceed:

·           200 penalty units for an offence committed by an airport operator or an aircraft operator;

·           100 penalty units for an offence committed by any other aviation industry participant;

·           50 penalty units for an offence committed by any other person.

 

Division 4 - Prohibited Items

 

This Division sets out similar offences for prohibited items to those in Division 3 in relation to weapons.  This Division recognises that many items, which are not strictly considered to be weapons, could be used to commit an act of unlawful interference with aviation even though they were not manufactured for that purpose.  It may be ordinarily lawful to possess a prohibited item (such as a stainless steel knitting needle, a razor blade or a baseball bat) in a public place, but these items should be prohibited in certain airport areas and on-board aircraft for the purpose of preventing unlawful interference with aviation.

 

Accordingly, the clauses in this Division aim to control prohibited items in certain security sensitive areas of airports and on-board aircraft.  The penalties that pertain to prohibited items are much lower than those for weapons to reflect the relative seriousness of the offences. 

 

Clause 53 Simplified overview of this Division

This clause provides a simplified outline of this Division. 

 

Clause 54 Prohibited items in airside areas and landside security zones

Paragraphs 54(1)(a) and (b) provide that a person commits an offence if the person has a prohibited item in his or her possession in an airside area or a landside security zone. 

 

Paragraph 54(1)(c) provides for circumstances where a person is permitted to have a prohibited item.  Certain persons or classes of persons need to be able to carry prohibited items in the course of their duties.  Law enforcement officers, airport security guards, aviation security inspectors and members of the Australian Defence Force on duty are therefore permitted under paragraphs 54(1)(c)(i) and (ii).  Paragraph 54(1)(c)(iii) allows persons to have a prohibited item if authorised by the regulations or permitted in writing by the Secretary.  Regulations to permit the carriage of prohibited items will be much broader than for weapons.  This is because many individuals working at an airport need prohibited items such as scissors, Stanley knives, and other common tools to perform their duties.

 

Subclause 54(2) provides for a strict liability offence.  A person that has a prohibited item in contravention of subclause 54(1) faces a maximum of 20 penalty units unless he or she has a reasonable excuse.  Reasonable excuse is a defence with an accepted legal meaning.  This penalty is much smaller than the corresponding penalty of 2 years imprisonment for weapons.  Whilst many persons may innocently carry such items in security sensitive areas without authorisation, this conduct is serious enough to warrant punishment in order to encourage strict compliance.  This clause aims to prevent these items from falling into the hands of a person intending to commit an act of unlawful interference.

 

The general offence under subclause 54(3) has a significantly higher penalty because a fault element must also be proved.  A person who has a prohibited item in contravention of this clause faces a maximum of 2 years imprisonment.  A maximum penalty involving imprisonment is inappropriate for a passenger who enters an area before boarding and isn’t aware there was a pair of scissors in his or her bag.  In such circumstances, the person may be subject to an on the spot fine for a contravention of subclause 54(1). 

 

Clause 55 Carrying prohibited items through a screening point

Paragraphs 55(1)(a) and (b) provides that a person commits an offence if the person has a prohibited item in his or her possession when he or she passes through a screening point.  A purpose of screening is to ensure passengers do not have access to weapons or items that can be used as weapons in the cabin to effect unlawful interference with aviation (for example, hijacking or acts of sabotage).  Such items are therefore prohibited once a person passes through a screening point.

 

Paragraph 55(1)(c) provides for circumstances where a person is permitted to have a prohibited item when passing through a screening point.  Such circumstances are limited, more so than in the airside area or landside security zone.   The paragraph allows prohibited items to be carried if the person is a law enforcement officer, airport security guard or aviation industry inspector, or if the person is authorised by the regulations or permitted by the Secretary.  These permissions are intended to be more limited than those in the airside area or landside security zone.   Whilst it may be necessary for workers at the airport to carry prohibited items in the airside area, passing through a screening point is the penultimate security control applied before passengers board an aircraft, so prohibited items should be more strictly controlled. 

 

Subclause 55(2) provides for a strict liability offence.  A person that has a prohibited item in contravention of subclause 55(1) faces a maximum of 20 penalty units.  This penalty is much smaller than the corresponding penalty of 2 years imprisonment for weapons.  However, many persons innocently carry such items through screening points and this conduct is serious enough to warrant punishment in order to encourage strict compliance.  This clause aims to encourage compliance and prevent these items from falling into the hands of a person intending to commit an act of unlawful interference.

 

The general offence under subclause 55(3) has a significantly higher penalty because a fault element must also be proved.  A person who intentionally has a prohibited item in contravention of this clause faces a maximum of 2 years imprisonment.

 

Clauses 56 and 57 Prohibited items on-board aircraft

Paragraphs 56(1)(a) and (b) provide that a person commits an offence if the person carries or otherwise has in his or her possession a weapon that is located at a place that is accessible to the person on-board a prescribed aircraft. The term prescribed aircraft allows certain aircraft such as private aircraft to be excluded from the auspices of this offence.

 

Paragraph 56(1)(b)(ii) refers to accessibility of a prohibited item.  This reference aims to prevent persons from possessing prohibited items that are accessible to them during flight so they cannot be used to commit an act of unlawful interference with aviation.  

 

Paragraphs 56(1)(c), (d) and (e) provide for circumstances where a person is permitted to have a prohibited item on-board an aircraft, that is, where:

·          the person is a law enforcement officer, airport security guard or an aviation security inspector;

·          carriage of the prohibited item is authorised by the regulations or permitted in writing by the Secretary; or

·           the prohibited is under the control of the pilot in command, because:

-           it forms part of the equipment of the aircraft in accordance with the operation manual; or

-           an animal is being carried on-board that could endanger the safety of the aircraft or the people on-board. 

 

Subclause 56(2) provides that subclause 56(1) is a strict liability offence.  A person who has a prohibited item in contravention of subclause 56(1) faces a maximum of 20 penalty units. .  Whilst many persons may innocently carry such items on-board aircraft, this conduct is serious enough to warrant punishment, for example, by an on the spot fine, in order to encourage strict compliance.

 

The only difference between clauses 56 and 57 is clause 57 constitutes a general offence rather than a strict liability offence.  It has a penalty of imprisonment because a fault element must also be proved.  A person who has a prohibited item in contravention of subclause 57(1) faces a maximum of 2 years imprisonment.  The higher penalty recognises that intentional conduct of this type warrants more serious punishment than inadvertent breaches of the offence provisions.

 

Clause 58 Failure to comply with conditions

In permitting the possession or control of prohibited items, clause 58 allows the regulations or Secretary to impose conditions upon such permissions.  Where a person is authorised by regulations permitted in writing by the Secretary to have a weapon in his or possession or under his or her control, the person commits an offence if he or she fails to comply with conditions relating to that authorisation or permission. This clause reinforces the undermining principle that the existence of prohibited items should be restricted in certain areas at airports and on-board aircraft and conditions placed upon authorised or permitted carriage or possession should be respected. 

 

The offence is a strict liability offence.  A person that contravenes conditions imposed faces a maximum 50 penalty units unless he or she has a reasonable excuse.

 

Clause 59 Secretary may permit by class

This clause clarifies that the Secretary, in giving permissions in relation to particular conduct under this Division, may give such permissions to a class of persons in addition to specific individuals.

 

Clause 60 Other prohibited items requirements

This clause allows the regulations to prescribe other matters in relation to the carriage and use of prohibited items for the purposes of safeguarding against unlawful interference with aviation.  The Bill appropriately sets out the serious offences regarding prohibited items at airports and on-board aircraft in clauses 54 to 59.  However, some detail can be outlined in regulations.  For example, the authorisation of carriage under clauses 54 to 59, dealing with a person who carries or uses a prohibited item or is suspected of carrying or using a prohibited item, or dealing with a surrendered prohibited item. 

 

Subclause 60(3) restricts the maximum penalties that may be imposed by regulations made under this clause.  The penalties reflect the relative roles and responsibilities of various persons in delivering aviation security outcomes.  They must not exceed:

·           200 penalty units for an offence committed by an airport operator or an aircraft operator;

·           100 penalty units for an offence committed by any other aviation industry participant;

·           50 penalty units for an offence committed by any other person.

 

Division 5 - On-board security

 

This Division provides regulation making powers to deal with security on-board aircraft and a graduated penalty system for offences against those regulations.  The matters dealt with in this Division are specific to aircraft measures where they are not covered under other Parts of the Bill.

 

Clause 61 Simplified overview of this Division

This clause provides a simplified outline of the Division. 

 

Clause 62 On-board security

This clause allows regulations to prescribe requirements in relation to:

·          the management and control of passengers (including persons in custody) on-board an aircraft;

·          pre-flight checks of aircraft cabins and other parts of an aircraft.  Regulations may provide, for example, parameters for the way in which a pre-flight check is conducted;

·          procedures to be used and measures to be taken in relation to baggage that is loaded, or is intended to be loaded, onto a prescribed aircraft.  Regulations dealing with the screening of baggage will be made under Part 4, Division 2.  However, other security controls for baggage that do not involve screening need to be made under this Division.  For example, this may include reconciliation of baggage with a passenger and ensuring that passenger is on-board with their baggage when the aircraft departs;

·          unattended aircraft.  Regulations may set out requirements for unattended aircraft that are parked on the tarmac overnight.  For example, a range of possible measures include 24 hour TV monitoring, patrolling and the provision of sufficient lighting.

 

Division 6 - Persons in custody
 
Aircraft operators are from time to time asked by other Government authorities to transport persons in custody.  This Division aims to ensure the safe carriage of these persons and reduce the risks of unlawful interference with aviation.

 

Clause 63 Simplified overview of Division
This clause provides a simplified outline of this Division. 

 

Clause 64 The meaning of person in custody

This clause states that a person on a prescribed aircraft or at a security controlled airport is a person in custody if he or she is in custody under another Act.  An example would include deportation of person under the Migration Act where the person has overstayed their visa.

 

Clause 65 Requirements relating to persons in custody

This clause allows regulations to be made about the transport of persons in custody on certain aircraft or through security controlled airports.  This clause recognises the fact that aircraft operators or pilots in command need adequate information about a person so they can prepare a risk assessment to determine whether he or she can be carried without compromising the safety of the aircraft or other persons on-board, and require the implementation of appropriate security controls.
 

These include:

·          the circumstances in which persons in custody may be on a prescribed aircraft or at a security controlled airport.  This may include the process that must be followed by the requesting agency;

·          the security arrangements, including escort arrangements, that must be implemented in relation to persons in custody on a prescribed aircraft or at a security controlled airport and the persons who must implement those arrangements.  For example, certain categories of persons in custody may require 2 escorts at all time, whereas others may pose a lower risk and not require any escorts;

·          information about a person in custody that must be provided to the operator of the relevant prescribed aircraft or security controlled airport.  This may cover information about their identity, the reasons for custody and the behaviour of the person while in custody;

·          information about a person in custody who is to be on a prescribed aircraft that must be provided to the pilot in command of the aircraft.  This recognises that, notwithstanding the views of the operator or the requesting agency, the pilot in command has final responsibility for the safe operation of the aircraft; 

·          the circumstances in which the aircraft operator or pilot in command of a prescribed aircraft may refuse to allow a person in custody to be on the aircraft.  This recognises that the operator and pilot are the best placed people to make an assessment, based upon the above information and security controls, as to whether or not to carry the person;

·          the circumstances in which the operator of a security controlled airport may refuse to allow a person in custody to be at the airport.  This recognises the risk posed by some persons in custody to the general public and the role of the airport operator in protecting the airport from unlawful interference with aviation; and

·          the number of persons in custody that may be on a prescribed aircraft, or at a security controlled airport, at any one time.  Security resources are finite and there may need to be such restrictions to ensure public safety.

 

Subclause 65(3) provides a penalty structure for offences against the regulations made above and once again reflects the graduated responsibility structure.  Penalties made in the regulations must not exceed 200 penalty units for an airport operator or aircraft operator, 100 penalty units for an offence committed by an aviation industry participant (other than an aircraft operator or airline operator), or 50 penalty units for an offence committed by any other person.

 

Division 7 - Special security directions

Special security directions are designed to allow the Government to respond quickly to threats of unlawful interference with aviation where the current standards or measures are insufficient, inappropriate or do not adequately address an emerging situation or technology.

 

The provisions are designed with in-built review and sunset mechanisms so that the Government has to address the issue of standards or measures that become ongoing by the use of other regulatory tools, for example, by making regulations or including measures in transport security programs by variation.

 

Clause 66 Simplified overview of Division

This clause provides a simplified outline of this division.

 

Clause 67 Secretary may give special security directions

Paragraph 67(1)(a) provides that in the case that a specific threat of unlawful interference is made or exists, the Secretary may, in writing, direct that additional security measures be taken or complied with.  It is envisaged that these directions would be used where the Government is made aware of a specific threat and can take direct, specific action which will address that threat.  For example, where the Government became aware that a particular flight or flights to a particular destination may be targeted for interference, the special security directions would allow the Secretary to direct an airline or airport to take specific measures or take specific actions to address that threat.

 

Paragraph 67(1)(b) details that the Secretary may give special security directions where there is a change in the nature of an existing general threat of unlawful interference with aviation.  It is envisaged that these directions would be used where information or advice is received about an increased or changed threat environment and the Government would seek to protect aviation as a key industry sector, such as after the Bali Bombings in October 2002.  It would also cover the situation where intelligence reveals new methods of terrorist attack and specific counter-measures would be required.

 

In both the cases of a special security directions made under paragraphs 67(1)(a) and (b), the directions must be made by the Secretary in writing.

 

Clause 68 Confidentiality requirements

This clause allows some special security directions to be confidential.  Where a person does not follow the restrictions in relation to the disclosure of a confidential direction, they may commit an offence under clause 74. 

 

Clause 69 Persons to whom special security directions may be given

Subclause 69(1) details the persons to whom special security directions may be given.  These include employees of the Department of Transport and Regional Services, members of the staff of the Civil Aviation Safety Authority or Airservices Australia, an aviation industry participant, or employee of an aviation industry participant, a passenger or intending passenger, and a person who is on the airport.  Special security directions can be given to this wide class of persons so that they may affect the operations of both airlines and airports and can extend to the travelling public and the public at airports.  It is necessary that this scope exists so that the Government can direct specialised measures to be put in place at airports or for particular flights.

 

Subclause 69(2) provides that special security directions may be given to a passenger or a person at the airport by erecting and clearly displaying a sign in the relevant place.  An example may be where screening for a particular flight is being done in a particular way, such as not allowing jackets to be carried in the cabin.  A sign at the check-in counter would ensure that members of the travelling public have adequate notice to comply with the direction, such as checking their jackets into their checked baggage for carriage in the bellyhold.

 

Clause 70 When a special security direction is in force

In general, it is envisaged these directions would need to be in place as soon as practicable because of the time pressured circumstances in which they are generally given.  In practice, the Secretary recognises that the aviation industry may often need time to put in place the people or mechanisms to effect a special security direction and the provisions allow for the Secretary to effect a delayed start to a special security direction where this may be the case.  The Secretary’s objective is for the aviation industry to be able to quickly and effectively respond to increased or changing threat environments.

 

Under subclause 70(1), the written direction may specify the time it comes into force, for example 10:00am on a particular day.  However, where no time is specified, the direction comes into force 24 hours after it is given.   This paragraph, 70(2)(a), also prevents retrospective directions.  The earliest time a direction can come into force 24 hours after it is given.   This is a practical approach to ensure that on receipt of a direction, when no other time is specified, industry has at least 24 hours to give effect to that direction.

 

Paragraph 70(2)(b) allows for a delay in the special security direction of not more than 7 days.  This would be of use where a special security direction required action that would take more than 24 hours to put in place and it recognises that industry may need a lead time to make appropriate arrangements.  However, it also prevents the Secretary from using this direction power other than for immediate threats.

 

Subclause 70(3) provides that a special security direction will remain in force until it is revoked in writing by the Secretary, after 3 months (sunset clause) or after 6 months where it’s extended under subclause 71(1).  The sunset provisions are to ensure that special security directions are used for their intended purpose and not as a means of easy regulation.  Where measures are required beyond this time, the regulator will have to seek to amend the Act, the Regulations or provide for extra measures in the aviation transport security programs.

 

Subclause 70(4) requires a sign to be removed where the Secretary revokes the direction or it ceases under subclause 69(2).  This will ensure that there is no confusion about what directions are in force.

 

Subclause 70(5) provides that a special security direction must be revoked when a specific threat no longer exists.  This will protect industry and the travelling public against having measures in place when a specific threat no longer exists.

 

Subclause 70(6) provides a sunset for a special security direction after 3 months.  After that, clause 71 allows for a one-off extension of 3 months.  The expiration of a special security direction will ensure that the regulator takes steps to use more permanent regulatory tools where a measure needs to be on going.

 

Clause 71 Secretary may extend direction for further 3 months

The intention of this clause is to allow the Secretary to extend special security directions beyond the original 3 months period once only.  This envisages a situation where a special security direction is been issued in response to a threat and after 3 months that threat is undiminished.  The Secretary must consult with industry in order to extend the direction, by a notice in writing.  However, the clause also ensures that after a 6 month period the special security direction must sunset and cannot be extended.  Where a threat level still remains after the sunset, the Government must use more permanent regulatory tools to put preventative security measures in place with industry.  This ensures a stop gap and emergency measure cannot be relied upon for a long period of time.

 

Clause 72 Certain directions not to be re-made for 6 months

The purpose of this clause to ensure that the Government does not seek to use the special security directions power on an ongoing basis instead of referring to more appropriate regulatory measures to apply to industry.

 

Paragraphs 72(a) and (b) provide that if a direction has been in place for a continuous period of 6 months, the Secretary must not make the same direction, or a direction that is substantially similar to, the original direction for a period of 6 months after the original direction is revoked or expires.  This clause has a similar intent to section 49 of the Acts Interpretation Act 1901 which prevents regulations from being re-made within a 6 month period after they have been disallowed, unless the Parliament otherwise approves.

 

Clause 73 Failure to comply with special security direction

It is an offence of strict liability for a person to fail to comply with the special security direction unless they have a reasonable excuse.  The penalties are graduated and reflect the level of responsibility for complying with a special security direction.  The penalty is 200 penalty units for an airport or aircraft operator, 100 penalty units for another aviation industry participant and 50 units for an individual.

 

Clause 74 Failure to comply with confidentiality requirements

It is an offence of strict liability to disclose a direction which has confidentiality requirements under clause 68 unless that disclosure is to a court or tribunal or to an authority or other person who can compel disclosure.  This would include disclosure to a Coroner.

 

PART 5 - Powers of officials

 

This Part gives certain persons powers and responsibilities under this Bill.  These categories of person are granted certain powers because they have a particular role to play in preventing unlawful interference with aviation.

 

Division 1 - Simplified Overview of Part

 

Clause 75 Simplified overview of Part

This clause provides a simplified outline of this Part. 

 
Division 2 - Aviation Security Inspectors

 

The Division sets out who can be an aviation security inspector, what their powers are, and the limits on their powers.  The primary role of aviation security inspectors is to audit and investigate the compliance of aviation industry participants and other persons with the Bill.  In order to do this effectively, they require a number of powers, including to enter premises and inspect documents.

 

Clause 76 Simplified overview of Division

This clause provides a simplified outline of this Division.

 

Clause 77 Appointment

This clause allows the Secretary to appoint APS employees in the Department or law enforcement officers to be aviation security inspectors.  The appointments must be in writing.

 

Clause 78 Identity cards

The Secretary must issue aviation security inspectors with identity cards.  Identity cards need to be carried by aviation security inspectors, and must be produced where they are exercising their powers under the Bill (including the regulations).

 

The regulations may set out requirements in relation to the form, issue and use of identity cards.  Subclause 78(3) allows for an identity card to be incorporated into another form of identification, for example an Aviation Security Identification Card (ASIC).  This is simply a measure to minimise the number of forms of identification required to be worn.

 

Clause 79 Powers of aviation security inspectors - general

Subclause 79(1) gives aviation security inspectors a number of powers for the purposes of determining whether a person is complying with the Act or Regulations.  These powers are essential to the ability of the Secretary to audit and/or investigate compliance with the regulatory scheme, and therefore fulfil his or her role as regulator.  This clause gives Aviation Security Inspectors the ability to enter and inspect a security controlled airport or an area, building or vehicle under the control of an aviation industry participant or the place of business of an aviation industry participant, which is also a residence. This clause also includes the powers to:

·          inspect equipment in a place or vehicle which they enter.  This may include the testing of screening equipment;

·          observe the operating procedures of an aviation industry participant.  This may include observing the boarding procedures of a particular flight;

·          discuss those procedures with an employee of the aviation industry participant or with another aviation industry participant;

·          inspect, photograph or copy a document or record made or kept by an aviation industry participant; and

·          operate equipment at a place which they enter for the purposes of gaining access to a document or record made or kept by an aviation industry participant [clause 128 allows for compensation to be paid where damage is caused to electronic equipment in the exercise of these powers].

 

Subclause 79(3) allows an aviation security inspector to exercise the powers in subclause 79(2) at any time and without notice.  Continuous monitoring is an important aspect of the aviation security audit function.  Inspectors will also be able to use this power in off-airport locations provided they give reasonable notice.

 

Subclause 79(4) is intended to ensure these powers are exercised in a professional manner.  This clause is intended to cover the situation where an inspector enters a person’s place of business, which is also their residence, so that the audit must be conducted with regard to the co-location of private and business premises. 

 

It is an offence of strict liability, punishable by a maximum fine of 50 penalty units, if a person engages in conduct which hinders or obstructs an aviation security inspector in the exercise of their powers under subclause 79(2).  It is not an offence if the person has a reasonable excuse.  The phrase ‘engages in conduct’ covers omissions as well as acts, so hindering or obstructing may include a person failing to provide timely access to a place where an aviation security inspector is permitted to enter.

 

Clause 80 Powers of aviation security inspectors - aircraft

This clause provides aviation security inspectors essentially the same powers in relation to aircraft as clause 79 grants in relation to areas.  Subclause 80(1) gives aviation security inspectors a number of powers for the purposes of determining whether a person is complying with the Act or Regulations.  These powers are essential to the ability of the Secretary to audit and/or investigate compliance with the regulatory scheme, and therefore fulfil his or her role as regulator.  This clause gives Aviation Security Inspectors powers to:

·          enter and inspect an aircraft operator’s aircraft at a security controlled airport;

·          inspect equipment in the aircraft;

·          observe operating procedures for the aircraft (whether operated by the crew or some other person);

·          discuss those procedures with a person carrying them out or with another aviation industry participant; and

·          inspect, photograph or copy a document or record held in the aircraft that relates to a passenger or an item of cargo.

 

Subclause 80(3) allows an aviation security inspector to exercise the powers in subclause 80(2) provided they give reasonable notice.

 

It is an offence of strict liability, punishable by a maximum fine of 50 penalty units, if a person engages in conduct which hinders or obstructs an aviation security inspector in the exercise of their powers under subclause 80(2).  It is not an offence if the person has a reasonable excuse. 

 

Division 3 - Law Enforcement Officers

 

Law enforcement officers are granted relatively extensive powers because it is recognised that there are circumstances where coercive powers are necessary in order to safeguard against unlawful interference with aviation.  Police and Australian Protective Services Officers, due to the nature and level of their training and expertise, are seen as the most appropriate people to exercise coercive powers at and around airports.

 

Clauses 82-88 set out the powers of law enforcement officers.  These powers are in addition to any powers that a law enforcement officer may have apart from this Bill.  They are not intended to in any way to limit those other powers.

 

 

Clause 81 Simplified overview of Division

This clause provides a simplified outline of this Division. 

 

 

Clause 82 Law enforcement officers

This clause creates a definition of a law enforcement officer.  A person who is on duty at a security controlled airport is a law enforcement officer if he or she is:

·          a member of the Australian Federal Police or the police force of a state or territory; or

·          a protective services officer within the meaning of the Australian Protective Services Act - whether he or she is an ordinary protective services officer or a special protective services officer, provided that person has the powers of an ordinary protective services officer.

 

Clause 83 Access to airports by law enforcement officers

This clause provides that a law enforcement officer may enter and remain in any part of a security controlled airport at any time.  This provision enables law enforcement officers to be unimpeded in their movements in and around airports.

 

Clause 84 Stopping and searching people

Subclause 84(1) provides that a law enforcement officer may stop and search any person who is in an airside area if that officer reasonably believes it is necessary for the purposes of safeguarding against unlawful interference with aviation.  The power is limited to ordinary and frisk searches, which have the same meaning as in the Crimes Act 1914. This power is required because these areas are high risk in terms of potential unlawful interference with aviation. 

 

Subclause 84(2) outlines how a law enforcement officer exercises this power.  It provides that a law enforcement officer must:

·          identify himself as a law enforcement officer to the person;

·          tell the person why the person has been stopped;

·          if the person is to be searched - explain to the person why the search is necessary.

 

A person commits an offence, punishable by a maximum penalty of 2 years imprisonment, if that person engages in conduct which hinders or obstructs a law enforcement officer in the exercise of their powers under 84(1).  Due to the application of Chapter 2 of the Criminal Code, a prosecution would need to prove the conduct was intentional.  An example of such conduct would be a person who refuses to stop when directed to do so by a law enforcement officer.

 

Clause 85 Stopping and searching vehicles

Subclause 85(1) empowers a law enforcement officer to stop a vehicle and/or search a vehicle in an airside area.  This includes the power to search an already parked and possibly unattended vehicle.

 

Subclause 85(2) provides that when a law enforcement officer stops a vehicle under subclause 85(1), they must identify themselves as a law enforcement officer; tell the driver why the vehicle has been stopped; and if the vehicle is to be searched, explain to the driver why the search is necessary.

 

Subclause 85(3) requires a law enforcement officer, who intends to search a stationary vehicle to tell the driver or person in control why the vehicle is to be searched and identify him or herself as a law enforcement officer to the driver or person in control, where such a person is present. 

 

A person commits an offence, punishable by a maximum penalty of 2 years imprisonment, if that person engages in conduct which hinders or obstructs a law enforcement officer in the exercise of their powers under subclause 85(4). Due to the application of Chapter 2 of the Criminal Code, a prosecution would need to prove the conduct was intentional.  An example of such conduct would be the driver of a vehicle in an airside security zone who refuses to stop the vehicle after being requested to in accordance with subclause 85(1).

 

Clause 86 Requests to leave areas or zones

A person commits an offence, punishable by a maximum penalty of 50 penalty units, if that person fails to comply with a request by a law enforcement officer to leave an airport area, airport zone, airport or aircraft.  A law enforcement officer may make such a request if he or she reasonably suspects that the person is committing, or has committed an offence against the Act.

 

Clause 87 Removing people from aircraft, airports, areas or zones

Subclause 87(1) empowers a law enforcement officer to remove a person from an airport area, airport zone, airport or aircraft where a request has been made under clause 86, and the person fails to comply with the request.  This could include a requirement to leave a vehicle which was located within an area or zone.

 

Subclause 87(2) recognises the balance that must be struck between the legitimate use of force to protect aviation security and the civil liberties of individuals.  It provides that the law enforcement officer must not use more force or subject the person to greater indignity than is necessary or reasonable in removing the person from an airport area, airport zone, airport or aircraft. 

 

Clause 88 Removing vehicles from areas or zones

Motor vehicles have the potential to be used as a means of concealing explosive devices, therefore it is important that their presence on the airside of an airport is strictly controlled.  Consequently, law enforcement officers are given powers under subclause 88(1) to remove a vehicle from an airport area or zone where the officer believes that the vehicle may present a risk.  Under this clause, law enforcement officers, in the first instance, must endeavour to have the driver or person in control of the vehicle remove the vehicle.  Where this is not practicable, they may take other reasonable measures to have the vehicle removed.

 

Subclause 88(3) provides that in exercising his or her power under 88(1), a law enforcement officer must not subject a person to greater indignity than is necessary and reasonable to remove the vehicle, and make all reasonable efforts to avoid damaging the vehicle.  As discussed in the explanatory material on subclause 87(2), this provision is included in an attempt to balance legitimate security concerns and civil liberties.

 

Clause 89 Other law enforcement powers not affected

The Bill does not limit the powers of law enforcement officers under other law such as the common law powers, the Australian Protective Services Act 1987, Australian Federal Police Act 1979, Crimes Act 1914 and the various State and Territory Police legislation. 

 

Division 4 - Airport Security Guards

 

The Division provides a framework for determining who is an airport security guard, as well as granting airport security guards limited powers.

 

Clause 90 Simplified overview Division

This clause provides a simplified outline of this Division. 

 

Clause 91 Airport security guards

This clause provides a definition for an airport security guard.

 

Subclause 91(1) provides that an airport security guard is a person who satisfies the requirements prescribed in the regulations for an airport security guard, is on duty at a security controlled airport, and is not a law enforcement officer. Regulations will provide requirements that limit who may be classified as an ‘airport security guard’ for the purposes of this Bill.

 

Subclause 91(2) requires the regulations to prescribe the training and qualification requirements.  The regulations may also prescribe requirements in relation to identity cards.

 

Subclause 91(3) allows regulations to be made in relation to uniforms and any other requirements.

 

Clause 92 Airport security guards’ power to physically restrain persons

This clause grants an airport security guard a limited power of physical restraint.  This power has been included in recognition of the fact that while law enforcement officers are the most appropriate people to exercise powers of restraint, there are circumstances where law enforcement officers will not be available to attend to breaches of security arrangements, and in these circumstances it is appropriate for airport security guard’s to exercise limited powers.

 

This clause provides that an airport security guard may use reasonable force to physically restrain a person if the airport security guard reasonably suspects the person is committing or has committed an offence against this Bill and reasonably believes that it is necessary to do so in order to:

·       ensure that a person who is not cleared, is held until they can be removed from a cleared area or a cleared zone; or

·       maintain the integrity of a landside security zone, an airside area or airside security zone. 

 

The power of restraint may only be exercised until the person can be dealt with by a law enforcement officer.

 

An example of when such a power may be exercised is where a person runs through a screening point without being screened.  In such a case the airport security guard would be empowered to use reasonable force in the circumstances to restrain the person until a law enforcement officer can attend and make a decision as to what action needs to be taken in relation to that person.  It would also cover the detention of an intruder on the airside.

 

Division 5 - Screening Officers

 

This Division sets the outer parameters of what is acceptable behaviour from a person who is conducting screening.  These provisions complement those in Division 2 of Part 4 and the regulations and instruments which will be created under that Division.

 

Clause 93 Simplified overview of Division

This clause provides a simplified outline of this Division. 

 

Clause 94 Screening officers

This clause provides a definition of a screening officer as a person who is authorised or required to conduct screening.  Regulations made under clause 43 may prescribe the requirements that must be met for a person to be a screening officer.  The primary function of a screening officer is to ensure that no person can carry any item onto an aircraft, or into an area in the vicinity of an aircraft that may be used to commit an act of unlawful interference with aviation.

 

Clause 95 Screening powers

This clause sets out the primary powers of a screening officer.  These are non-coercive powers which assist a screening officer in their task of screening people going through a screening point.  This clause reflects the policy that in general, screening officers are not the appropriate people to exercise coercive powers, and provides an offence for screening officers who go outside their stated powers.

 

A screening officer may use a variety of measures to effect screening, for example, persons may be required to place carry on items onto an x-ray machine conveyor belt and then pass through a metal detector to establish that they are not carrying weapons or prohibited items.  In order to be assured that an intending passenger or other person moving into a cleared zone is doing so free of weapons or prohibited items, in addition to other requirements for screening set out in Division 2 of Part 4 screening officers may have cause to request a person to remove any item of the person’s clothing if the screening officer considers it is necessary in order to screen that person properly.  To protect people who are subject to screening, screening officers cannot require a person to remove clothing.  The Bill distinguishes between ‘requesting’ and ‘requiring’.  It is an offence for a screening officer to require or cause the removal of a person’s clothing, unless the screening officer has a reasonable excuse.  A reasonable excuse would be where a senior citizen asks for assistance in removing his or her overcoat.  However, where a person will not remove an item of clothing as requested, and the screening officer as a result is not able to screen the person properly, a screening officer must not allow the person to pass through the screening point. 

 

Subclause 95(5) clarifies that where a person is not willing to remove clothing to allow adequate screening to occur, even if given the opportunity to do so in a private room with the same sex, the screener must refuse to allow the person to pass through the screening point.  This is intended to strike a balance between the detection of weapons and prohibited items and civil liberties.  Such a situation would be where a person passes through a screening point and metal is detected on his or her body.  

 

Clause 96 Screening officers’ power to physically restrain persons

This clause gives the same powers, and places the same limitations upon, a screening officer as clause 92 provides to and places upon airport security guard’s. The main difference is that the screening officers power only applies in relation to cleared areas. This power has been included in recognition of the fact that while law enforcement officers are the most appropriate people to exercise powers of restraint, there are circumstances where law enforcement officers will not be available to attend to breaches of security arrangements, and in these circumstances it is appropriate for a screening officer to exercise limited powers.

 

97 Exercise of powers by screening officers

A screening officer must not use more force or subject a person to greater indignity than is necessary and reasonable.  This clause is intended to ensure screening officers treat the public with appropriate respect in carrying out their screening duties. 

 

PART 6 - Reporting aviation security incidents

 

This Part establishes mechanisms, including offences, relating to the provision of aviation security information to the Secretary and the Department. This ensures that the Secretary, as aviation security regulator, has adequate information in the event of an aviation security incident. This Part details the form, content and manner of reporting, clarifying the aviation sector information reporting responsibilities for industry and government personnel, especially in the event of any incident that relates to aircraft or airport security.

 

Division 1 - Simplified overview of Part

 

Clause 98 Simplified overview of Part

This clause provides a simplified outline of this Part.

 

Division 2 - Meaning of aviation security incident

 

Clause 99 Meaning of aviation security incident

This clause defines aviation security incident as a threat of unlawful interference with aviation (for example, a bomb threat), or an act of unlawful interference with aviation (for example, a hijack).

 

Division 3 - Offences

 

Clause 100 Airport Operators

Subclause 100(1) states that an airport operator is committing an offence punishable by a maximum fine of 200 penalty units if that operator becomes aware of an aviation security incident and fails to report this incident in accordance with clause 104 as soon as possible.  For the purposes of the Criminal Code both of these would be considered the physical elements.  This does not apply in relation to a report that must be made to a particular person if the airport operator believes, on reasonable grounds, that the particular person is already aware of the incident.  This subclause is intended to remove duplication of reporting obligations.  This is a strict liability offence and does not apply if the operator has a reasonable excuse. 

 

Clause 101 Aircraft Operators

This clause mirrors the offence in clause 100 and applies to aircraft operators.

 

Clause 102 Other persons with incident reporting responsibilities

This clause mirrors the offence in clause 100 and applies to other persons with incident reporting responsibilities. 

 

Subclause 102(4) identifies each of the following as a person with incident reporting responsibilities:

(a)                 an employee of the Department;

(b)                a member of the staff of CASA;

(c)                 a member of the staff of Airservices Australia;

(d)                an aviation industry participant;

(e)                 a law enforcement officer;

(f)                 an airport security guard.

 

This list ensures that all persons with a professional function relating to aviation security have incident reporting responsibilities.  The penalties for contravening this clause are consistent with the hierarchy throughout the Bill, namely, 200 penalty units for aircraft and airport operators, 100 penalty units for aviation industry participants and 50 penalty units for other persons or individuals.

 

Clause 103 Employees

This clause mirrors the offence in clause 100 and applies to employees.  This clause reflects the fact that, while the organisation has overall responsibility for aviation security, individual employees also have an important role in ensuring the security of Australia’s civil aviation environment.  The penalty is 50 penalty units, commensurate with those imposed on individuals throughout the Bill.

 

Division 4 - Reporting requirements

 

Clause 104 Reporting by airport operators

Subclause 104(1) states that airport operators must report aviation security incidents in accordance with this clause.  Subclause 104(2) states that an incident that relates to the operator of another airport must be reported to that other operator. Subclause 104(3) states that an incident that relates to the aircraft of an aircraft operator must be reported to that aircraft operator.  Subclause 104(4) states that an incident that relates to the airport of the airport operator must be reported to

(a)                 the Secretary (this will generally be done through a Departmental duty officer);

(b)                the Australian Federal Police or the police force of a State or Territory, and,

(c)                 if it relates to a part of an airport of the operator for which a lease or licence has been granted to another person, that other person.

This clause ensures that the relevant organisation is aware of any incident which has security implications for them, their business, or their property.  Subclause 104(5) states that the airport operator is not required to report an incident to a lessee or licensee if the incident relates to the airport in general, and is not specifically directed at the part of the airport for which the lease or licence has been granted.

 

Clause 105 Reporting by aircraft operators

This clause requires that aircraft operators must report aviation security incidents in accordance with this clause.  Subclause 105(2) states that an incident that relates to the operator of an airport must be reported to that operator. Subclause 105(3) states that an incident that relates to the aircraft of another aircraft operator must be reported to that other aircraft operator.  Subclause 105(4) states that an incident that relates to the aircraft of the aircraft operator must be reported to

(a)                 the Secretary (this will generally be done through a Departmental duty officer) ; and

(b)                the Australian Federal Police or the police force of a State or Territory.

Subclause 105(5) states that an incident that relates to an aircraft of the aircraft operator and is an unlawful interference with aviation, a threat of unlawful interference with aviation that is assessed by the operator as credible, or a threat of unlawful interference with aviation that the operator is unable to assess, that incident must be reported to Airservices Australia (if the aircraft is in flight), or the operator of the airport (if the aircraft is at an airport).  This will ensure the impact of the threat on other potentially affected parties can be managed. 

 

Clause 106 Reporting by persons with incident reporting responsibilities

Subclause 106(1) states that a person with incident reporting responsibilities must report aviation security incidents in accordance with this section. Subclause 106(2) states that each incident must be reported to the Secretary.  Subclause 106(3) states that an incident that relates to the operator of an airport must be reported to that operator.  Subclause 106(4) states that an incident that relates to the aircraft of an aircraft operator must be reported to that aircraft operator.  The intention is to ensure that all incidents reported by these persons are reported to the Secretary as well as to the relevant operator.  This obligation will be satisfied by reporting to the departmental duty officer.

 

Division 5 - Form and content of reports

 

Clause 107 How reports are to be made

This clause allows a notice to be made by the Secretary that sets out what information is to be included in a report and how the report is to be made.  Such a notice must be published in the Gazette and may be disallowed after tabling in Parliament.   Subclause 107(3) states that if a person reports an aviation security incident, and the report does not comply with any requirements that are in force under subsection (1) when the report is made, the report is taken (for the purposes of this Part) not to have been made.  Therefore the person may be committing an offence under clauses 100 - 103.

 

It should be noted sections 137.1 and 137.2 of the Criminal Code contain offences for providing false or misleading information.

 

PART 7 - Information-gathering for aviation security purposes

 

This Part allows the Secretary to collect security compliance information and controls the subsequent use and disclosure of that information.  The intent is to establish a scheme similar to the safety information gathering regime currently in the Air Navigation Act 1920 and proposed in the Transport Safety Investigation Bill 2002.

 

Division 1 - Simplified overview of Part

 

Clause 108 Simplified overview of Part

This provides a simplified overview of this Part.

 

Division 2 - Secretary may require security compliance information

 

Clause 109 Secretary may require security compliance information

The purpose of this clause is to allow the Secretary to gather compliance information, mainly to establish statistical information indicating the health of the aviation industry with respect to particular aspects of compliance.  Where compliance issues are identified from gathering the information, the Secretary will be able to address possible weaknesses in our aviation security system and rectify the problems before the safety of the general public is potentially compromised.

 

This clause allows the regulations to prescribe kinds of security compliance information.  Subclause 109(2) allows the Secretary to require prescribed information from an aviation industry participant by written notice where the Secretary believes on reasonable grounds that the participant has the prescribed information under subclause 109(1).  A person commits an offence, punishable by a maximum of 45 penalty units, if the person fails to provide the information in accordance with the notice issued under subclause (2).  Subclause 109(3) requires the participant to provide the information within the period and in the way specified in the notice.  However, the period must not be less than 14 days. 

 

Subclause 109(4) allows the Secretary to require the information in one or more forms, either orally, in writing or by electronic transmission (ie. E-mail).

 

Clause 110 Self-incrimination

This clause clarifies that whenever a person is obliged to give security compliance information (such as under clause 109) that person cannot be excused from giving that information on the grounds that it might incriminate them or expose them to a penalty. 

 

Clauses 111 to 115 in Division 3, acknowledge that such coercive information-gathering powers, particularly where a common law privilege is removed, must be accompanied by appropriate protections for that information.  Notwithstanding, this clause does not prevent agencies from separately collecting the same information that may then be admitted as evidence.

 

Division 3 - Protection and use of security compliance information

 

Clause 111 Meaning of protected information and protected person

This clause defines the meaning of protected information and protected person.  To fall within the definition of protected information, security compliance information (defined in clause 9 as information that relates to compliance or failure to comply with this Act) must be given to a Departmental official.  The information can be given as required by the Secretary under clause 109, or it can be given voluntarily.  The person who gives the security compliance information to the Departmental official is the protected person.  Once the information becomes protected, Division 3 applies to control its use and disclosure and to protect the person who provided the information.

 

Clause 112 Use or disclosure by Departmental officials

Clause 112(1) sets out the elements of the offence relating to the use or disclosure of protected information by a Departmental official.  A Departmental official commits an offence if he or she uses or discloses protected information, the use or disclosure is not for the purposes of this Bill (as outlined in clause 3) and the official is reckless as to whether the information is protected information. 

 

The purposes of this Bill include establishing a framework to safeguard against unlawful interference with aviation and setting minimum standards by imposing obligations on aviation industry participants.

 

Subclause 112(2) allows the protected information to be used or disclosed for the purposes of a prosecution, or defending a prosecution of an offence, against subclause 112(1) or an offence against section 137.1 or 137.2 of the Criminal Code.  The Criminal Code offences relate to the provision of false or misleading information.

 

Clause 113 Disclosure other than in excepted circumstances

Clause 113(1) sets out the elements of the offence of disclosure other than in excepted circumstances .  A person commits an offence if he or she discloses protected information other than in excepted circumstances (in subclause 113(2)) and the person is reckless as to whether the information is protected information. 

 

This offence applies to all persons, so any person who comes across protected information must only release the information in accordance with clause 113.  For example, where protected information is disclosed in accordance with clause 113, it continues to be protected information.  The receiver of the information will therefore commit an offence if the elements in clause 113(1) are present. 

 

The offence also applies to Departmental officials, so the restricted way in which Departmental officials are permitted to disclose protected information for the purposes of this Bill under clause 112 is further limited by the excepted circumstances in this clause.

 

Subclause 113(2) lists the excepted circumstances in which protected information can be disclosed.  It can be disclosed to:

·           A Departmental official; or

·           A Commonwealth Minister; or

·           A member of the staff of a Commonwealth Minister who is nominated by the Minister to receive protected information on the Minister’s behalf. For example, an acting Minister; or

·           A person acting in the course of his or her duties as a member of the Parliament of the Commonwealth;

·           A Coroner

·           Either:

o    An aviation industry participant; or

o    A person (other than a Departmental official) acting in the course of his or her duties in an Agency (within the meaning of the Public Service Act 1999 ).  For example, information may be disclosed to Commonwealth regulatory authorities such as the Protective Security Coordination Committee of the Attorney-General’s Department (the body responsible for addressing Counter-Terrorism First Response role across the Commonwealth).

Where the protected information is disclosed to the one of the last two persons on the list, the disclosure must not identify, and must not be reasonably capable of being used to identify, the protected person.  Paragraph 113(2)(e) aims to strike a fair balance between improving security compliance, achieving the purposes of this Bill and protecting the privacy rights of the protected person.

 

Subclause 113(2) recognises that certain persons have the capacity to address aviation security issues and therefore must have this information made available to them.  In addition, the Government and the travelling public expect an open and transparent process regarding the communication of and actions to address, aviation security issues. This is important in order to achieve public confidence in the safety and security of aviation.

 

Subclause 113(3) allows protected information to be disclosed in other than excepted circumstances with the consent of the protected person, or where the disclosure is for the purpose of a prosecution, or defending a prosecution, of an offence against subclause 113(1) or an offence against section 137.1 or 137.2 of the Criminal Code .  The Criminal Code offences relate to the provision of false or misleading information.

 

Clause 114 Disclosure to a court or tribunal

This clause clarifies that a court or tribunal cannot compel a person to provide protected information except in a prosecution of an offence against clause 114(1) for use or disclosure by a Departmental official or against clause 102(3)(b) for disclosure other than in excepted circumstances or against 137.1 or 137.2 of the Criminal Code .  This includes Coronial proceedings.

 

It is intended that the disclosure of protected information includes documents or records that contain protected information.  Therefore, in addition to disclosing the protected information orally, a person cannot be compelled to produce documents that contain that protected information, having the same effect.

 

Clause 115 Protection for person who gives information

This clause provides that giving protected information, or any information, document or thing obtained directly or indirectly as a result of giving protected information cannot be admitted as evidence in criminal proceeding, or any other proceeding for the recovery of a penalty, against the person who provided the information or material, the protected person, other than a proceeding under section 137.1 or 137.2 of the Criminal Code .  In this context, a person would include a body corporate.

 

This clause reinforces the notion that the processes of gathering compliance information to improve aviation security and those relating to judicial proceedings, particularly criminal proceedings, should be separate to ensure a continued free flow of security information.  Giving security compliance information should be encouraged so that problems regarding compliance can be addressed before they compromise aviation security or put the general public in serious danger. 

 

Note that nothing in Division 3 of this Part prevents agencies separately collecting and using protected information for the purposes of judicial and other proceedings.

 

Part 8 - Enforcement
 

This part provides a range of enforcement options which are available to the Secretary as an alternative to, or in addition to, prosecution.  By giving a range of enforcement options, it is more likely that the enforcement measures will be appropriate and adapted to the nature and scope of a particular contravention.  These enforcement options are in part designed to address concerns identified in the ANAO Report on Aviation Security.

 

Division 1 - Simplified overview of Part

 

Clause 116 Simplified overview of Part

This clause provides a simplified outline of this Part. 

 

Division 2 - Infringement Notices

 

Clause 117 Infringement notices

This clause enables regulations to be made which allow infringement notices, commonly known as ‘on the spot fines’, to be issued as an alternative to prosecution where it is alleged that an offence provision in the act or regulations has been breached. 

 

Subclause 117(1) provides that the regulations may make provisions enabling a person who is alleged to have committed an offence against this Bill, other than an offence against subclauses 13(1), 46(3) or 47(3) or clause 49, to pay a penalty to the Commonwealth as an alternative to prosecution.  It is not appropriate to allow a penalty to be paid as an alternative to prosecution for these four listed offences (that is, operating without a program and intentional weapons’ offences) because they are considered serious acts that should only be punishable by criminal sanctions.  Reference to offences against this Bill includes offences against the regulations made under this Bill by virtue of the definition of ‘this Act’ in clause 9, which includes the regulations.

 

Subclause 117(2) provides that the infringement notice fine must not exceed one-fifth of the maximum fine that a court could impose on the person as a penalty for that offence. This reflects current Commonwealth criminal law policy guidelines.  However, this provision does not restrict infringement notices from setting out penalties for an alleged contravention which are lower than one -fifth of the maximum penalty payable under the penalty provision.

 

Division 3 - Enforcement Orders

 

Enforcement orders are a regulatory tool which will be used when the Secretary is of the opinion that there has been a breach of the Act and specific actions need to be taken in order to prevent unlawful interference with aviation.  The orders reflect the policy that it is better to fix problems with, and minimise risks to, aviation security when they are identified rather than simply seek to prosecute when breaches of the Act or regulations occur.  However, where the orders themselves are contravened, an injunction may be sought.

 

Clause 118 Simplified overview of Division

This clause provides a simplified outline of this Division. 

 

Clause 119 Secretary may make enforcement orders

This clause allows the Secretary to make enforcement orders requiring, prohibiting or restricting action by a person if he or she reasonably believes that the person has committed an offence against the Act and it is necessary to make the order to safeguard against unlawful interference with aviation.  As this is a civil enforcement tool, the Secretary will only need to be satisfied of these matters on the balance of probabilities rather than the criminal standard of beyond reasonable doubt.

 

The clause also provides that the enforcement order must bear a clear and direct relationship to the contravention and be proportionate to the contravention.  In addition, the Secretary cannot require payment of money.

 

An example where an enforcement order may be issued is where an airport tenant, which does not have its own program, is preventing an airport operator from complying with its program by allowing people to pass through its property onto the airside area of an airport without proper authorisation.  In such circumstances, the Secretary may consider issuing an enforcement order to require the tenant to prevent unauthorised access through its facility.

 

Subclause 119(1) provides that the Secretary may make a written order prohibiting or restricting specified activities by the person named in the enforcement order or requiring the person named in the enforcement order to take specified action. Failure to comply with such an order may result in injunctive relief being sought (see clause 123). (o;

 

Clause 120 Commencement and duration of enforcement orders

Subclause 120(1) provides that an enforcement order comes into force at the time specified in the order, for example 1:00am on a particular day, or if there is no specified time, at the beginning of the 7 th day after the order is made.  The provision for a shorter period will allow for orders to be given in emergency situations.

 

Subclause 120(2) provides that an enforcement order remains in force either for the period specified in the order, or if a period is not specified, until the order is revoked by the Secretary.

 

Clause 121 Reviews of enforcement orders

To ensure enforcement orders remain current and relevant, this clause provides for their regular review.  Under this clause, the Secretary must review enforcement orders at least every 3 months, and after each review, confirm, vary or revoke the order by instrument in writing.  This reflects the fact that enforcement orders are aimed at remediation for a particular problem and should be monitored to ensure they continue to address that particular compliance problem.  The Secretary must revoke the order unless he or she is satisfied that the order is still needed to ensure compliance and safeguard against unlawful interference with aviation. 

 

The Secretary must not vary the order unless he or she is satisfied that the order as varied adequately safeguards against unlawful interference with aviation.  An order continues in force as varied immediately after the order is varied, and will require a further review after an additional 3 months.

 

Clause 122 Notice of enforcement orders

This clause deals with notice requirements when enforcement orders are issued or reviewed.

 

Subclause 122(1) provides that the Secretary must, as soon as is practicable after making or reviewing an enforcement order, cause the person named in the order to be informed of the making of the order, or the decision on the review, as the case requires.

 

Subclause 122(2) provides that failure by the Secretary to comply with subclause 122(1) does not affect the validity of an order.

 

Clause 123 Complying with enforcement orders

A person must not engage in conduct that contravenes an enforcement order.  While this is not an offence, it may be enforced through injunctive relief.

 

An example of conduct which contravenes an enforcement order would be when an enforcement order stated that an airport operator must ensure that an entry point at the airside perimeter of an airport is guarded by an airport security guard 24 hours a day, and the entry point was only guarded for 12 hours a day.

 

It should be noted that this will enable enforcement orders to be reviewed before a court.

 

Division 4 - Injunctions

 

Clause 124 Injunctions

The Federal Court may grant an injunction, to restrain persons from taking actions which contravene this Act, or to require a person to do an act or thing.  Such a power allows action to be taken before a breach occurs, rather than waiting until a breach has occurred and then prosecuting.  The phrase engage in conduct, in this context, would cover both acts or omissions.

 

An example of where such an injunction power may be used is when an aircraft operator was operating without an approved program.  An injunction could stop the operation immediately.  In addition to being subject to a penalty of up to 200 penalty units for committing an offence under clause 13, the granting of an injunction in such circumstances could mean that individual directors of such an operation would be in contempt of court if they breached the injunction, and would face the usual penalties associated with such a breach. 

 

This injunction power is in no way intended to limit any other powers the Federal Court may have which could impact upon aviation security.

 

Subclause 124(1) provides that such an injunction may only be ordered on application from the Secretary.

 

Subclause 124(2) empowers the Federal Court to grant an injunction where consent is given by all parties to the proceedings, regardless of whether the Court is satisfied that the circumstances necessary to grant an injunction under 124(1) are satisfied.

 

Subclause 124(3) allows the court to grant an interim injunction.

 

Subclause 124(4) provides that the court is not to require the Secretary, or anyone else, as a condition of granting an interim injunction to give an undertaking as to damages.  This clause therefore limits the court’s usual discretion to require undertakings as to damages.  This recognises that the Commonwealth, as represented by the Secretary, does not represent a risk in relation to its ability to pay damages.

 

Subclause 124(5) allows the court to discharge or vary an injunction it has granted.

 

Subclauses 124 (6) and 124(7) clarify that neither the previous conduct of a person, nor their intention in present and future circumstances, is conclusive in relation to whether to grant or vary an injunction in relation to that person.  The subclause provides that the power to grant or vary an injunction from restraining a person from engaging in conduct may be exercised:

·          whether or not it appears to the court that the person intends to engage again, or to continue to engage, in such conduct, which may be a refusal or failure to do an act or thing; and

·          whether or not the person has previously engaged in such conduct.

 

Division 5 - Demerit Points Systems

 

Clause 125 Demerit points

This clause allows regulations to establish a demerit points system, which attaches to a transport security program.  The purpose of this provision is to allow for a system in the regulatory framework that builds a security profile and records (and ultimately may punish) systemic breaches of the Act and/or regulations by program holders. 

 

By making provision for a demerit points system, the Bill responds to one of the key recommendations of the ANAO Report on Aviation Security, which suggested that the penalty regime in previous aviation security legislation was too rigid, and didn’t give the regulator sufficient flexibility in its enforcement measures.

 

In addition to providing flexibility, a demerit points system builds increased fairness into the system by making program holders, to whom the system applies, aware of how their organisation is performing from a compliance perspective.  It therefore encourages an aviation industry participant to make the necessary changes to avoid putting their operation in jeopardy.

 

Subclause 125(1) provides that the regulations may establish a demerit points system under which the approval of a transport security program of a person who accrues a prescribed number of demerit points may be cancelled.  The demerit points system is also referred to in clause 26, which deals with cancelling approval of transport security programs.

 

Subclause 125(2) provides that demerit point may only be allowed to accrue to a person if that person is found guilty of an offence against this Act or regulations, or the person pays an infringement notice or other alternative to prosecution set out in the regulations.

 

Subclause 125(3) allows the demerit points scheme to differentiate between types of aviation industry participants, as well as between different classes of a particular kind of aviation industry participant.  For example, the regulations may make provision for each aircraft operator to have a different number of demerit points, depending on the size and nature of their operation, as well as making provision for different demerit point schemes to apply to aircraft operators as opposed to airport operators or other aviation industry participants.

 

Part 9 - Review of decisions

 

Clause 126 Review of decisions by Administrative Appeals Tribunal

This clause sets out the decisions which can be made under this Act which are reviewable by the Administrative Appeals Tribunal (AAT).  Whilst the AAT is limited in undertaking merits review to the decisions list in this clause, this does not limit the scope for judicial review to occur under the Administrative Decisions (Judicial Review) Act 1976 , or at common law.

 

Clause 126 provides that the AAT may review decisions which can be made under this Bill by the Secretary:

·          to refuse to approve a transport security program under clause 19; or

·          to direct a participant to vary a program under clause 21; or

·          to direct a participant to revise a program under clause 23; or

·          to cancel a transport security program under clause 25 or 26; or

·          to declare a particular airport or part of an airport as a security controlled airport under subclause 28(2).

 

Part 10 - Miscellaneous

 

Clause 127 Delegation

Through its Secretary, the Department of Transport and Regional Services will be the administering authority of this Bill.  Clause 127(1) permits the Secretary to delegate all or any of his or her powers under the Bill to any SES employee, or person acting as an SES employee within the Department.  Subclause 127(2) provides that the majority of the Secretary's powers may also be delegated to an APS employee within the Department who holds an Executive Level 2 position (whether on an ongoing basis or for a fixed term).  The terms SES employee, and APS employee are defined in the Public Service Act 1999 .

 

Two powers have been reserved for delegates who are SES employees.  They are the power to extend a special security direction (issued under Division 7 of Part 4) for a further three months under subclause 71(1); and the power to issue an enforcement order (under Division 3 of Part 8).  These powers are significant and exercise of them has been restricted to senior managers to promote consistency and accountability. 

 

All delegates will have to comply with directions from the Secretary under subclause 127(3). 

 

Clause 128 Compensation for damage to electronic equipment

This clause provides detail on the circumstances in which compensation for damage

to electronic equipment must be made when such equipment has been operated by aviation security inspectors in exercise of their powers under clause 79. This is a common provision in other legislation which permits operation of electronic equipment on premises.

 

Clause 129 Compensation for acquisition of property

This clause provides for compensation for acquisition of property where compensation is required for constitutional reasons.

 

Clause 130 Part 11 of the Airports Act 1996

The Airports Act 1996 regulates a number of matters at airports, some of which overlap with those that will be regulated under this Bill.  The principal area of overlap relates to airport vehicle movements.  It is intended that the two regulatory regimes should complement each other, nonetheless, if a conflict between the two does arise, the policy is that aviation security concerns should prevail.   In the event of an unintended inconsistency, this clause will ensure that the provisions of this Bill, and regulations made under this Bill, will have primacy over the provisions of the Airports Act 1996 , and the regulations made under that act.  At airports that are not regulated by the Airports Act 1996 , this Bill will generally have priority due to the operation of section 109 of The Constitution .

 

Clause 131 Saving of other laws

Under international law, representatives of foreign governments, such as diplomats, consular officials and heads of state, are immune from many Australian laws.  An example relevant to aviation security is that an embassy’s diplomatic bag may not be opened or detained by the government which is hosting the diplomatic mission.  Additionally, visiting foreign defence forces also have a number of immunities from our domestic laws.   These immunities have been recognised in several existing Commonwealth Acts that are listed in this clause.  This clause ensures that this Bill does not affect those existing immunities.

 

Clause 132 Severability - additional effect of Act

This clause provides for continued operation of the Bill (or provisions of the Bill) in the event of a successful constitutional challenge.  It sets out the various constitutional heads of power upon which the Bill can draw if its operation is expressly confined to acts or omissions under those constitutional powers. 

 

Clause 133 Regulations

Subclause 133(1) allows regulations to be made where required or permitted by this Bill, or

where necessary or convenient for the purposes of the Bill.

 

Regulation making powers are spread throughout the Bill.  In particular Parts 3 and 4 provide extensive regulation making powers for airport areas and zones, screening, control of weapons and prohibited items, on-board security and persons in custody.  The Bill provides a significant degree of flexibility by providing a broad and robust framework and extensive regulation making powers.  The aviation security environment is necessarily responsive to the increased focus on terrorist activity and new threats of unlawful interference with aviation.  As the nature of these threats changes, the Government may need to move quickly to implement new security measures or modify existing measures.  By providing for much of the detail to be set out in regulations, this Bill will allow the Government to respond to the evolving security situation in a timely fashion, while preserving the necessary parliamentary oversight.

 

In addition to the regulation making powers specified elsewhere in the act, subclause 133(2) allows regulations to prescribe fees and prescribe penalties not exceeding 50 penalty units for offences in the regulations.  It should be noted, however, that there is provision for higher penalties for aviation industry participants in many other clauses of the Bill.  Subclause 133(3) clarifies that those higher penalties apply to regulations made under those other clauses.




[1] This explanation of penalty units and the corporate multiplier applies throughout the entire Bill.