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Aviation Transport Security Amendment (Inbound Cargo Security Enhancement) Bill 2013

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2010-2011-2012-2013

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

AVIATION TRANSPORT SECURITY AMENDMENT (INBOUND CARGO SECURITY ENHANCEMENT) BILL 2013

 

 

 

 

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Infrastructure and Transport,

the Honourable Anthony Albanese, MP)

AVIATION TRANSPORT SECURITY AMENDMENT (INBOUND CARGO SECURITY ENHANCEMENT) BILL 2013

 

OUTLINE

 

The Aviation Transport Security Amendment (Inbound Cargo Security Enhancement) Bill 2013 will amend the Aviation Transport Security Act 2004 (the Act).

 

The Bill:

 

1.       amends the Act to enable the Minister to prohibit the carriage of certain cargo into Australian territory on an aircraft through the use of a disallowable instrument.  This will ensure the Commonwealth Government has a more robust and transparent mechanism to prohibit carriage of inbound air cargo in the longer term should the need arise; and

2.       makes a technical amendment to the Act to correct an error.

 

Financial impact statement

 

The amendments would have no significant financial impact on Government expenditure,

therefore a Financial Impact Statement is not required.

 

Background

 

The discovery of two improvised explosive devices concealed within printers in air cargo consignments in the United Arab Emirates and the United Kingdom on 29 October 2010 highlighted the prevailing terrorist threat to the aviation sector. The devices were consigned in Yemen and were destined for transport on aircraft to the United States. The incident prompted an immediate and ongoing response from the Government to protect Australian interests by prohibiting air cargo from entering Australian territory where it had originated in Yemen. This prohibition was later extended to cargo originating in Somalia as well.

 

Initially, the Government exercised existing provisions under the under the Act and the Aviation Transport Security Regulations 2005 by issuing a Special Security Direction (SSD). To enable an ongoing prohibition, all aircraft operators were later required to amend their Transport Security Programs.

 

The use of an SSD provided an immediate response capacity, however the limited period of validity (six months) does not make them an appropriate mitigation to threats which remain in place beyond the short term.

 

While amendment of Transport Security Programs provides a longer duration of effect than an SSD, the mechanism is cumbersome in nature and not suited to a timely response in the interests of national security. It requires each aircraft operator to manually amend its security documentation and for the Government to individually approve each amendment. This requires significant resources and time to accomplish and creates a significant administrative burden for both Government and industry.

 

The Aviation Transport Security Amendment (Inbound Cargo Security Enhancement) Bill 2013 will provide the Government with a more timely, effective and transparent mechanism to respond to aviation security threats involving inbound air cargo.



Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Aviation Transport Security Amendment (Inbound Cargo Security Enhancement) Bill 2013

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

 

Schedule 1 will amend the Act to enable the Minister (responsible for the Act) to prohibit the carriage of certain cargo into Australian territory on an aircraft, through the issuance of a disallowable instrument.

 

Schedule 2 will correct a technical error contained in the Act. Item 1 and 2 amends paragraph 65(3)(b) and paragraph 65(3)(c) of the Act.  

 

Human rights implications

 

The Bill engages the following human right:

 

Presumption of innocence

There is one offence created in this Bill which is a strict liability offence. This strict liability offence engages the right to the presumption of innocence, which is a fundamental principle of the common law and is contained in article 14(2) of the International Covenant on Civil and Political Rights.  

 

While this offence engages the right to the presumption of innocence there are several elements that demonstrate the imposition on this right is reasonable and proportionate.

 

This Bill puts a framework in place that will be a necessary requirement for the Minister to prohibit certain types of inbound cargo through the issuance of a disallowable instrument. The objective of the Bill is to provide an effective response mechanism, increase transparency of government decision-making and ensure compliance from aircraft operators and other aviation industry participants.

 

The threat of improvised explosive devices concealed in air cargo is real and the consequence of such a plot succeeding would be catastrophic. As such, a strict liability offence is an appropriate deterrent against acts or omissions committed by aviation industry participants that may contribute to the success of an attack. The lack of fault creates a strict framework in which aircraft operators and other industry participants are placed on guard to ensure that they comply with the Act. The seriousness of the threat and the need for the Government to reduce the risk of prohibited cargo from entering Australian territory warrants the creation of this strict liability offence. Including a provable fault element would likely undermine this deterrent, as it would be difficult to prove fault in most instances. Furthermore, the offence arises in a regulatory context where participants can be reasonably expected to know their duties and obligations under the Act.

The strict liability offence ensures that it is an effective deterrent to contravention of the framework created in this Bill. Furthermore, as the offence relates to a disallowable instrument made by the Minister, there will be additional parliamentary oversight in considering the reasonableness and proportionality of this offence in relation to the creation of such an instrument.

 

The strict liability offence does not include imprisonment. The penalty for the offence (200 penalty units for an aircraft operator and 100 penalty units for any other aviation industry participant) would apply in most instances to a business rather than an individual. Aviation industry participants involved in the importation of inbound air cargo rarely operate as individual persons. Notwithstanding this, it is appropriate that a higher level of strict liability penalty (greater than 60 penalty units) be applied, regardless of whether the offender is operating as an individual person or a business. The penalty amount is intended to discourage non-compliance as well as ensure that industry and their personnel do everything that they can reasonably do to prevent the entry of prohibited cargo. Given the serious implications unlawful interference with aviation may have for Australia and Australian interests it is important that non-compliance with an instrument made under this framework be treated as a significant offence. The penalty of 200 or 100 penalty units is consistent with similar existing penalties for strict liability offences committed by aircraft operators or any other aviation industry participants under the Act. 

 

Conclusion

                                                                

The strict liability offence created in this Bill imposes reasonable, necessary and proportionate limitations on the presumption of innocence.

 

 

Minister for Infrastructure and Transport, the Honourable Anthony Albanese, MP



 

NOTES ON CLAUSES

 

Clause 1: Short Title

 

1.       This clause provides that the Bill will be cited as the Aviation Transport Security Amendment (Inbound Cargo Security Enhancement) Act 2013 .

 

Clause 2: Commencement

 

2.       This clause specifies when the various provisions of the Bill commence. This clause provides that Schedules 1 and 2 of the Bill will commence on the twenty-eighth day after receiving royal assent.

 

Clause 3: Schedule(s)

 

3.       This clause provides that the Aviation Transport Security Act 2004 (the Act) will be amended as set out in Schedule 1 and 2.

 

 

SCHEDULE 1 - AMENDMENTS

 

Schedule 1 amends the Act to enable the Minister (responsible for the Act) to prohibit the carriage of certain cargo into Australian territory on an aircraft, through the issuance of a disallowable instrument.

 

Item 1 - Section 4

 

This item expands the overview of Part 4 by way of reference to the Minister’s power to make a disallowable instrument prohibiting the entry of specified kinds of cargo into Australian territory.

 

Item 2 - Section 9

 

This item inserts the definition of the ‘Foreign Affairs Minister’ to mean the Minister administering the Diplomatic Privileges and Immunities Act 1967

 

Item 3 - Section 9

 

This item inserts the definition of the ‘Trade Minister’ to mean the Minister administering Section 1 of the Export Market Development Grants Act 1997

 

Item 4 - Section 39 (after paragraph 39(e))

 

This item expands the scope of Part 4 (Other security measures), to include reference to Division 6A- prohibition entry of specified kinds of cargo.  



 

Item 5 - Division 6A- prohibition entry of certain cargo into Australian territory

 

The Act will be amended to enable the Minister (responsible for the Act) to prohibit the carriage of certain cargo into Australian territory on an aircraft through the use of a disallowable instrument.  The effect of this amendment will be to provide the Australian Government with a mechanism to mitigate the threat posed by international inbound air cargo when necessary.  The amendment provides a mechanism that would (if exercised) create greater certainty and transparency than the current framework in force.

 

In addition to parliamentary scrutiny, the creation of this instrument is dependent upon consultation with the Foreign Affairs Minister and the Trade Minister.

 

The fault element of the offence under Section 65C is to be strict liability. An offence of strict liability is an offence for which there are no fault elements for any of the physical elements of the offence and the defence of mistake of fact is available (section 6.1 of the Criminal Code Act 1995 ).

 

The offence set out in this Bill will maintain the integrity of the disallowable instrument by ensuring there is an effective deterrent to contraventions. There are legitimate grounds for penalising an aircraft operator or an aviation industry participant lacking fault:

·          there is a real risk of terrorists using the air cargo supply chain to stage attacks against Australia and Australian interests. The consequences of a successful attack using cargo would be catastrophic. It is important to ensure that prohibited cargo do not enter Australian territory whether that entry resulted from careless, negligent or intentional acts by aviation industry participants;

·          it would be particularly difficult to prove fault in these circumstances as extensive documentation regarding examination, handling and treatment of cargo is required to establish the fault elements of the applicable business;

·          measures are to be put in place to ensure that applicable businesses are placed on notice to guard against the possibility of a contravention. Industry is also familiar with the regulatory landscape to know their compliance requirements; and

·          if fault is required for this offence, significant resources would be needed for enforcement and this will significantly impact on the resources available to ensure the security of the air cargo supply chain.

 

The penalty for the offence (200 penalty units for an aircraft operator and 100 penalty units for any other aviation industry participant) reflects the different levels of responsibility for aviation security for aircraft operators and other aviation industry participants. Although the penalty is set a higher level than that recommended for strict liability offences for individuals (60 penalty units), the penalty would most likely apply to businesses instead of individual persons. Nevertheless, it is appropriate that the penalty is set high for individuals as well as businesses as this will strongly discourage careless non-compliance as well as intentional or reckless breaches of the Act. Given the real threat posed by attacks using air cargo and the serious damage they may inflict upon Australia and Australian interests, there is a need for significant penalties in order to deter aircraft operators and other aviation industry participants from non-compliance. The penalty of 200 or 100 penalty units is consistent with similar existing penalties for strict liability offences committed by aircraft operators or any other aviation industry participants under the Act. (For example, see section 73 for a failure to comply with a special security direction.)  

SCHEDULE 2- AMENDMENTS

 

Schedule 2 contains technical amendments to the Act.

 

Item 1 and 2 - Section 65

 

These two items work in conjunction to correct a technical error contained in the Act which arose out of the Aviation Transport Security Amendment (Air Cargo) Act 2011 (the amending Act), given Royal Assent on 5 December 2011.

 

Item 26 of the amending Act amended paragraph 65(3)(b) of the Aviation Transport Security Act 2004 , when it should instead have amended paragraph 65(3)(c). As a result, subsection 65(3) currently reads as follows:     

 

(3) Regulations made under this section may prescribe penalties for offences against those regulations. The penalties must not exceed:

(a) for an offence committed by an airport operator or an aircraft operator—200 penalty units; or

(b) for an offence committed by an accredited air cargo agent or an aviation industry participant, other than an accredited air cargo agent or a participant covered by paragraph (a)—100 penalty units; or

(c) for an offence committed by any other person—50 penalty units.

 

This subsection will be amended to correctly read:

 

(3) Regulations made under this section may prescribe penalties for offences against those regulations. The penalties must not exceed:

(a) for an offence committed by an airport operator or an aircraft operator—200 penalty units; or

(b) for an offence committed by an accredited air cargo agent or an aviation industry participant, other than an accredited air cargo agent or a participant covered by paragraph (a)—100 penalty units; or

(c) for an offence committed by an accredited air cargo agent or any other person—50 penalty units.