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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

 

 

 

 

 

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

AND

 

CORRECTION TO THE 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 Government amendments to the Aviation Transport Security Bill 2003 (the Bill) will:

 

·         introduce a power to control the movements of an aircraft on the ground to ensure compliance with this Act;

·         introduce a power to control the movements of an aircraft in Australia, or an Australian aircraft, following an aviation security incident;

·         codify the power of an airport screening officer to request a person subject to screening to undergo a limited frisk search;

·         provide for a person subject to screening to choose to undergo a frisk search as an alternative to another screening procedure;

·         clarify the definition of Aviation Industry Participant to exclude law enforcement agencies and other prescribed Commonwealth agencies;

·         clarify that it is not the purpose of the Bill to prevent lawful advocacy, protest, dissent or industrial action that does not compromise aviation security, and that the definition of Unlawful Interference with Aviation does not include any of these activities;

·         provide for the carriage of prohibited items into airside areas that are not prescribed security zones;

·         define persons in custody as persons held in custody under any Australian law;

·         clarify the reporting responsibilities of persons likely to become aware of an aviation security incident;

·         simplify the information gathering provisions of the Bill; and

·         correct a number of drafting errors.

 

Financial impact statement

 

Existing budget allocations will not be affected by this amendment.

 

Regulation impact statement

 

The Office or Regulation Review has advised that the amendment does not require a Regulation Impact Statement.



AVIATION TRANSPORT SECURITY BILL 2003

 

 

NOTES ON CLAUSES

 

Amendment 1 relates to Clause 3, Purposes of this Act .  The amendment inserts a new subclause 3(5) which clarifies that the purpose of the Bill is not to prevent lawful advocacy, protest, dissent or industrial action that does not compromise aviation security.

 

Amendment 2 relates to Clause 4, Preliminary - Simplified overview of this Act .  The amendment provides for the inclusion of control direction s [amendment 34] in the overview.

 

Amendment 3 relates to Clause 4, Preliminary - Simplified overview of this Act .  The amendment provides for a new overview of Part 7 - Information-gathering to reflect the new Part 7 [amendment 46].

 

Amendment 4 relates to Clause 8, Preliminary - Act not to apply to state aircraft etc .  The amendment inserts a new subclause (2), which excludes the Australian Defence Force, the Australian Federal Police, the Australian Protective Service, the police force of any State or Territory, and a Commonwealth Agency prescribed in the regulations from the definition of Aviation Industry Participant .  This amendment clarifies the exclusion of these agencies from being regulated for aviation security purposes.

 

Amendment 5 relates to Clause 9, Preliminary - Definitions .  The amendment inserts a definition of Agency , being the same meaning as in the Public Service Act 1999.   This amendment facilitates the exclusion of a prescribed Commonwealth Agency from being regulated for aviation security purposes [amendment 4].

 

Amendment 6 relates to Clause 9, Preliminary - Definitions .  The amendment inserts definitions for Australian aircraft and Australian territory .  This amendment provides for the operation of the control directions amendment [amendment 34].

 

Amendment 7 relates to Clause 9, Preliminary - Definitions .  The amendment inserts a definition for aviation security incident , which has the meaning given by section 99.  This amendment provides for the operation of the control directions amendment [amendment 34].

 

Amendment 8 relates to Clause 9, Preliminary - Definitions .  The amendment inserts a definition for compliance control direction , which has the meaning given by subsection 74B(2). This amendment provides for the operation of the control directions amendment [amendment 34].

 

Amendment 9 relates to Clause 9, Preliminary - Definitions .  The amendment omits the definition of Departmental official as it is no longer required.

 

Amendment 10 relates to Clause 9, Preliminary - Definitions .  The amendment omits the definition of excepted circumstances as it is no longer required.

 

Amendment 11 relates to Clause 9, Preliminary - Definitions .  The amendment inserts a definition of incident control direction , which has the meaning given by subsection 74D(3). This amendment provides for the operation of the control directions amendment [amendment 34].

 

Amendment 12 relates to Clause 9, Preliminary - Definitions .  The amendment omits the definition of protected information as it is no longer required.

 

Amendment 13 relates to Clause 9, Preliminary - Definitions .  The amendment omits the definition of protected person as it is no longer required.

 

Amendment 14 relates to Clause 9, Preliminary - Definitions .  The amendment inserts a new definition of security compliance information , which has the meaning given by subsection 109(1).

 

Amendment 15 relates to Clause 10, Preliminary - Meaning of unlawful interference with aviation .  The amendment inserts a subclause (2) which excludes lawful advocacy, protest, dissent or industrial action from being defined as unlawful interference with aviation .

 

Amendment 16 inserts a new Clause 10A, Preliminary - Division 6 - General Defences .

 

Subclause (1) provides a general defence relating to the decision of a pilot in command of an aircraft.  The defence recognises the pilot’s responsibility for the safety and security of the aircraft, and that practical considerations for maintaining the safety and security of the aircraft may influence the pilot’s ability to comply with a control direction .  For example, failure to comply with a control direction that is physically impossibly due to a shortage of fuel would trigger this defence.

 

Subclause (2) provides a general defence for compliance with a special security direction where such compliance would cause a person to commit an offence against the Act.

 

Subclause (3) provides a general defence for compliance with a control direction where such compliance would cause a person to commit an offence against the Act.

 

Amendment 17 relates to Clause 19, Transport Security Programs - Approval .  The amendment replaces the term operator with the term participant to correct a drafting error.

 

Amendment 18 relates to Clause 19, Transport Security Programs - Approval .  The amendment replaces the term operator with the term participant to correct a drafting error.

 

Amendment 19 relates to Clause 21, Transport Security Programs - Secretary may direct participants to vary programs.   The amendment replaces the term operator with the term participant to correct a drafting error.

 

Amendment 20 relates to Clause 22, Transport Security Programs - Participants may revise programs .  The amendment omits the words “(the existing program)” as they are not necessary in this position.

 

Amendment 21 relates to Clause 31, Airport Areas and Zones - Types of airside security zones .  The amendment replaces the term control towers with the term air traffic control facilities .  This term includes all facilities for controlling air traffic, including control towers.

 

Amendment 22 relates to Clause 31, Airport Areas and Zones - Types of airside security zones .  The amendment inserts an additional subparagraph to include fire stations and other emergency service facilities as areas that may be prescribed as security zones.

 

Amendment 23 relates to Clause 33, Airport Areas and Zones - Types of landside security zones .  The amendment replaces the term control towers with the term air traffic control facilities .  This term includes all facilities for controlling air traffic, including control towers.

 

Amendment 24 relates to Clause 33, Airport Areas and Zones - Types of landside security zones.   The amendment inserts an additional subparagraph to include fire stations and other emergency service facilities as areas that may be prescribed as security zones.

 

Amendment 25 relates to Clause 39, Other Security Measures - Simplified overview of Part .  The amendment inserts an additional subclause (g) to the simplified overview to provide for the inclusion of control directions [amendment 34] in the overview of Part 4.

 

Amendment 26 relates to Clause 53, Other Security Measures - Simplified overview of Division .  The amendment replaces the word parallel with the words are similar to to correct a drafting error.

 

Amendment 27 relates to Clause 54, Other Security Measures - Prohibited items in airside areas and landside security zones .  The amendment replaces the term area in paragraph (1)(a) with the term security zone .  This corrects an error whereby the unauthorised carriage of a prohibited item into and within an airside area would be an offence, effectively prohibiting the carriage of tools of trade (eg spanners and screwdrivers) into an airside area.  The amendment provides that prohibited items be prohibited only from prescribed security zones.

 

Amendment 28 relates to Clause 54, Other Security Measures - Prohibited items in airside areas and landside security zones .  The amendment inserts an additional paragraph (1)(aa) that provides for the prescribing of an airside security zone or landside security zone in the regulations.  This amendment facilitates the exclusion of prohibited items from prescribed security zones by providing for the creation of these zones.

 

Amendment 29 relates to Clause 54, Other Security Measures - Prohibited items in airside areas and landside security zones .  The amendment replaces the term area in paragraph (1)(c)(iii) with the term security zone .  This corrects an error whereby the unauthorised carriage of a prohibited item into and within an airside area would be an offence, effectively prohibiting the carriage of tools of trade (eg spanners and screwdrivers) onto an airside area.  The amendment provides that prohibited items be prohibited only from prescribed security zones.

 

Amendment 30 relates to Clause 54, Other Security Measures - Prohibited items in airside areas and landside security zones .  The amendment replaces the term area in paragraph (3)(a) with the term security zone .  This corrects an error whereby the unauthorised carriage of a prohibited item into and within an airside area would be an offence, effectively prohibiting the carriage of tools of trade (eg spanners and screwdrivers) onto an airside area.  The amendment provides that prohibited items be prohibited only from prescribed security zones.

 

Amendment 31 relates to Clause 54, Other Security Measures - Prohibited items in airside areas and landside security zones .  The amendment inserts an additional paragraph (3)(aa) that provides for the prescribing of an airside security zone or landside security zone in the regulations.  This amendment facilitates the exclusion of prohibited items from prescribed security zones by providing for the creation of these zones.

 

Amendment 32 relates to Clause 54, Other Security Measures - Prohibited items in airside areas and landside security zones .  The amendment replaces the term area in paragraph (3)(c)(iii) with the term security zone .  This corrects an error whereby the unauthorised carriage of a prohibited item into and within an airside area would be an offence, effectively prohibiting the carriage of tools of trade (eg spanners and screwdrivers) onto an airside area.  The amendment provides that prohibited items be prohibited only from prescribed security zones.

 

Amendment 33 relates to Clause 64, Other Security Measures - Meaning of person in custody .  The amendment inserts an additional subclause (2) to amend the meaning of person in custody to include a person held in custody under a law of a State or Territory as well as a person held in custody under a Commonwealth Act.

 

Amendment 34 inserts new Clauses 74A-E, Other Security Measures - Division 8 - Control Directions .

 

Clause 74A     Simplified overview of Division

This clause provides a simplified overview of the Division.

 

Clause 74B     Compliance control directions

Subclause 74B(1) empowers an Aviation Security Inspector to direct the pilot or operator of an aircraft in Australia and not in flight to take a specified action in relation to the aircraft.

 

Subclause 74B(2) defines a direction under subclause (1) to be a compliance control direction .

 

Subclause 74B(3) provides that a compliance control direction can only be made if it is necessary to ensure compliance with the Act.

 

Subclause 74B(4) indicates the type of direction that an Aviation Security Inspector may make.  For example, if an Aviation Security Inspector has reason to suspect that a particular aircraft has not been satisfactorily security cleared, the Inspector can detain that aircraft until its security clearance can be verified.

 

Subclause 74B(5) provides for regulations relating to compliance control directions .

 

Clause 74C     Failure to comply with compliance control directions

Subclause 74C(1) provides that failure to comply with a compliance control direction is an offence, for which penalties are 200 penalty units for an aircraft operator, or 50 penalty units for a pilot in command.

 

Subclause 74C(2) provides that subclause (1) does not apply if the person has a reasonable excuse.

 

Clause 74D     Incident control directions

Subclause 74D(1) empowers the Secretary to direct the aircraft operator or pilot in command of an Australian aircraft to take a specified action in relation to the aircraft.

 

Subclause 74D(2) empowers the Secretary to direct the aircraft operator or pilot in command of a foreign aircraft to take a specified action in relation to that aircraft if it is in Australian territory.

 

Subclause 74D(3) defines a direction under subclauses (1) or (2) to be an incident control direction .

 

Subclause 74D(4) provides that an incident control direction must not be given unless the Secretary reasonably believes that it is an appropriate or necessary response to an aviation security incident.

 

Subclause 74D(5) indicates the type of direction that the Secretary may make.  For example, on becoming aware of the occurrence of an aviation security incident on board an aircraft in flight, the Secretary could direct the aircraft to land in a designated location.  In another example, in the event of the Secretary’s becoming aware, through sufficiently verified intelligence, of a plan to hijack an aircraft in flight, that flight could be required to land before the hijacker may have had time to act.  In another example, in the event of an actual terrorist attack on Australian territory, all aircraft in Australian territory could be required to land, remain grounded, or remain within or outside a particular area for a specified period.

 

Subclause 74D(6) provides for regulations relating to incident control directions .

 

Clause 74E     Failure to comply with incident control directions

Subclause 74E(1) provides that failure to comply with an incident control direction is an offence, for which penalties are 1000 penalty units for an aircraft operator, or 100 penalty units for a pilot in command.

 

Subclause 74E(2) provides that subclause (1) does not apply if the person has a reasonable excuse.

 

Amendment 35 relates to Clause 75, Powers of officials - Simplified overview of Part .  The amendment omits the words All of these matters are covered by this Part as amendment 34 introduces powers of officials elsewhere in the Bill.

 

Amendment 36 relates to Clause 80, Powers of officials - Aviation security inspectors .  The amendment inserts a note under subclause (1) to note the additional powers of aviation security inspectors provided by Clause 74B.

 

Amendment 37 relates to Clause 84, Powers of officials - Stopping and searching people.   The amendment inserts the words for an offence against this subsection to clarify that the penalty relates to that subsection.

 

Amendment 38 relates to Clause 85, Powers of officials - Stopping and searching vehicles . The amendment inserts the words for an offence against this subsection to clarify that the penalty relates to that subsection.

 

Amendment 39 relates to Clause 86, Powers of officials - Requests to leave areas or zones .  The amendment inserts the words for an offence against this subsection to clarify that the penalty relates to that subsection.

 

Amendment 40 relates to Clause 88, Powers of officials - Removing vehicles from areas or zones .  The amendment replaces the word believes with the word suspects to align the way this power is expressed with similar law enforcement powers in other Commonwealth legislation.

 

Amendment 41 relates to Clause 93, Powers of officials - Simplified overview of Division .  The amendment inserts the words or undergo a frisk search into the overview to reflect the frisk search power introduced by amendment 44.

 

Amendment 42 relates to Clause 95, Powers of officials - Screening powers .  The amendment inserts a new subclause (5)(c) which corrects an error whereby a person who had agreed to be screened in a private room by a screening officer of the same sex, but had still refused to remove a piece of clothing which had prevented the screening of the person, could not be refused passage through the screening point.

 

Amendment 43 inserts an additional Clause 95A, Powers of officials - Screening powers - frisk search as an alternative screening procedure.   The amendment provides that a person subject to screening may choose to undergo a frisk search as an alternative to another screening procedure.  This provision will cater for those persons who, for medical reasons, prefer not to be screened electronically.

 

Amendment 44 inserts an additional Clause 95B, Powers of officials - Screening powers-frisk search as an additional screening procedure.

 

Subclause 95B(1) provides for a screening officer to request a person to undergo a frisk search where the results of a screening procedure indicate that additional screening procedures are required to properly screen a person.

 

Subclause 95B(2) provides that a frisk search may be conducted only to the extent necessary to properly screen a person.

 

Subclause 95B(3) creates an offence for a screening officer requiring a person to undergo a frisk search or conducting a frisk search without consent, or conducting a frisk search to an extent greater than necessary.  A penalty of 50 penalty units applies.

 

Subclause 95B(4) provides that subclause (3) not apply if the screening officer has a reasonable excuse.

 

Subclause 95B(5) provides that an offence against subclause (3) is one of strict liability.

 

Subclause 95B(6) provides that, if a person refuses to undergo a frisk search when requested, including a frisk search in a private room and by a screening officer of the same sex, and that refusal results in the screening officer being unable to properly screen the person, the screening officer must refuse to allow the person to pass through the screening point.

 

Amendment 45 relates to Clause 102, Reporting aviation security incidents - Persons with incident reporting responsibilities.   The amendment inserts a new subclause (4).  The new subclause clarifies the inclusion, as persons with incident reporting responsibilities, of persons with an aviation security function, such as aviation security inspectors and screening officers, and the exclusion of persons whose role is distinct from aviation security, such as transport safety investigators.

 

Amendment 46 relates to Part 7, Information-gathering .  The amendment omits Part 7, replacing it with a new Part 7, which simplifies the information gathering provisions of the Bill and aligns them with similar provisions in other Commonwealth legislation.

 

PART 7 - Information-gathering

 

This Part allows the Secretary to collect security compliance information from aviation industry participants.  The collection of security compliance information is important for ensuring that appropriate security measures are implemented and maintained to safeguard against unlawful interference in aviation, and that Australia has met its international obligations.

 

Division 1 - Simplified overview of Part

 

Clause 108      Simplified overview of Part

This clause provides a simplified overview of the Part.

 

Clause 109      Secretary may require security compliance information

This clause empowers the Secretary to collect security compliance information from aviation industry participants.  This information can be used to assess a participant’s compliance or non-compliance with their transport security program or other security obligations under the Act.  This allows the Secretary to assess the status of security compliance within the aviation industry, and will enable the Secretary to recognise potential weaknesses and rectify problems before the safety of the industry and the public is compromised.

 

Subclause 109(1) defines information that relates to compliance or failure to comply with this Act as security compliance information .

 

Subclause 109(2) empowers the Secretary, on reasonable grounds and by written notice, to collect security compliance information from an aviation industry participant.

 

Subclause 109(3) provides that the information must be given within the period and in the form and manner specified in the Secretary’s written notice.  The period given must be at least 14 days.

 

Subclause 109(4) provides that the Secretary may specify the method by which the participant must provide the information.  The information may be provided orally, in writing, or by electronic submission.

 

Subclause 109(5) creates an offence for failure to comply with the Secretary’s notice under subclause (2).  The penalty for this offence is 45 penalty units.

 

 

Clause 110      Self-incrimination

Subclause 110(1) clarifies that whenever a person is required to give security compliance information, that person cannot be excused from giving the information on the grounds that it might incriminate them or expose them to a penalty.

 

Subclause 110(2) provides that the security compliance information given, the giving of that information, and any information, document or thing obtained as a result of giving the information, cannot be admitted as evidence in a criminal proceeding, or any other proceeding for the recovery of a penalty, against a natural person.  This protection does not extend to the giving of false or misleading information as provided under section 137.1 or 137.2 of the Criminal Code .

 

This clause acknowledges that a coercive information-gathering power must be accompanied by appropriate protection for the informant.  This reinforces the concept that the processes of gathering security 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 compliance information.  The provision of security compliance information should be encouraged to ensure that any security compliance concerns are addressed prior to aviation security being compromised, or the general public endangered.

 

Nothing in this Part prevents an agency from separately collecting and using security compliance information for the purpose of judicial or other proceedings.



AVIATION TRANSPORT SECURITY BILL 2003

 

CORRECTION TO THE EXPLANATORY MEMORANDUM

 

Clause 7  Act to bind Crown

 

Replace text with:

 

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