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Transport Security Legislation Amendment Bill 2016

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2016

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

TRANSPORT SECURITY LEGISLATION AMENDMENT BILL 2016

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

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

the Hon Darren Chester MP)

 

 

 

 

 

 

 

 

 

 

 

 

TRANSPORT SECURITY LEGISLATION AMENDMENT BILL 2016

 

OUTLINE

The Transport Security Legislation Amendment Bill 2016 (the Bill) will amend the Aviation Transport Security Act 2004 (the Aviation Act) to allow people, vehicles and goods to undergo aviation security screening within an area or zone at a security controlled airport.  The Bill will also amend the Aviation Act and the Maritime Transport and Offshore Facilities Security Act 2003 (the Maritime Act) to allow the Secretary of the Department of Infrastructure and Regional Development (the Department) to delegate his powers in the Acts to lower level Australian Public Service (APS) employees.

 

The purpose of the Aviation and Maritime Acts is to safeguard against unlawful interference with aviation, maritime transport and offshore oil and gas facilities.

 

The Aviation Act assists Australia to meet its obligations under Annex 17 (Security) to the Convention on International Civil Aviation (the Chicago Convention) by establishing a framework for the Aviation Transport Security Regulations 2005 (the Regulations) to require certain security measures to be applied at security controlled airports. 

 

The Bill will introduce regulation making powers in the Aviation Act that will enable aviation security screening to be undertaken on people, vehicles and goods operating within a restricted area or zone at a security controlled airport (in-zone screening).  This complements existing provisions in the Aviation Act that provide regulation making powers for aviation security screening to be applied to people, vehicles and goods before they enter an airside area or zone.  

 

Specifically, the Bill will amend the screening provisions in the Aviation Act to:

1.                   extend the purpose of screening to permit a person, vehicle or good to remain within an area or zone at a security controlled airport, in addition to the extant purpose of permitting them to enter the area or zone;

2.                   provide for the Secretary of the Department to specify (via a notice) details of the locations where screening is conducted.  This complements existing powers in the Aviation Act that allow such notices to specify persons authorised or required to conduct screening, the persons or things that must not pass through a screening point and the methods, techniques and equipment used for screening;

3.                   create a head of power for the Regulations to specify requirements for how in-zone screening should be conducted; and

4.                   enable a screening officer to direct a person to leave an area or zone at a security controlled airport, and/or remove their vehicle or goods from the area or zone, if screening is refused or if an unauthorised weapon is detected.

 

The Bill will also amend the delegations in both the Aviation and Maritime Acts to allow the Secretary to delegate his powers in these Acts to lower level APS employees.   This will give the Department greater administrative flexibility and capacity to process increased numbers of regulatory submissions from industry participants within statutory timeframes and to adapt administrative practices to changes in the security environment.



 

Financial impact statement

 

The Bill itself does not place any cost impact or regulatory burden on industry.  The amendments to the screening provisions in the Aviation Act are being made to provide a head of power for Regulation amendments in support of the introduction of strengthened airside security arrangements for Australia’s nine major international airports. 

 

While the strengthened airside security measures are anticipated to have a high cost impact on industry, the Aviation Act amendments will provide industry with greater flexibility in how the new measures are implemented and consequently reduce implementation costs.        

 

No additional Government funding has been sought.  Activities are to be resourced from within current funding.

 

Regulation impact statement

 

A Regulation Impact Statement will be prepared for the amendments to the Regulations supporting the introduction of strengthened airside security arrangements.

 

 

 

 

 

 

 

 

 

 



 

Statement of Compatibility with Human Rights

 

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

 

Transport Security Legislation Amendment Bill 2016

 

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

 

The Bill will introduce regulation making powers in the Aviation Act that will enable aviation security screening to be undertaken on people, vehicles and goods operating within a restricted area or zone at a security controlled airport (in-zone screening).  This complements existing provisions in the Aviation Act that provide regulation making powers for aviation security screening to be applied to people, vehicles and goods before they enter an airside area or zone.  

 

The purpose of the Bill is to amend the Aviation Act to:

1.                   extend the purpose of screening to permit a person, vehicle or good to remain within an area or zone at a security controlled airport, in addition to the extant purpose of permitting them to enter the area or zone;

2.                   provide for the Secretary of the Department to specify (via a notice) details of the locations where screening is conducted;

3.                   create a head of power for the Regulations to specify requirements for how in-zone screening should be conducted; and

4.                   enable a screening officer to direct a person to leave an area or zone at a security controlled airport, and/or remove their vehicle or goods from the area or zone, if screening is refused or if an unauthorised weapon is detected.

 

The Bill will also amend the delegations in both the Aviation Act and the Maritime Act to allow the Secretary of the Department to delegate his powers in these Acts to lower level APS employees.  This will give the Department greater administrative flexibility and capacity to process increased numbers of regulatory submissions from industry participants within statutory timeframes and to adapt administrative practices to changes in the security environment.

 

Human rights implications

 

The Bill engages the following human rights:

 

Privacy and reputation

 

The protection of an individual’s privacy engages Article 17 of the International Covenant on Civil and Political Rights.  The Government has carefully considered how the introduction of in-zone screening will impact the privacy of people working in restricted airport areas or zones, and has ensured privacy safeguards are in place.

 

The screening techniques being applied are non-invasive, including explosive trace detection and metal detection.  Frisk searches may occasionally be used to resolve alarms or when a technological equivalent is not available.  In cases where a frisk search is necessary the individual may request that

procedure to occur in a private room or within a screened area.  A frisk search will always be undertaken by someone of the same gender as the person being searched.

All screening procedures will be undertaken by trained screening officers in accordance with requirements established by a notice issued under the Aviation Transport Security Regulations 2005.

 

Rights of Equality and Non-discrimination

 

The right of equality and non-discrimination is protected by Articles 2, 16, and 26 of the International Covenant on Civil and Political Rights.  All people have the right to be treated equally. In keeping with Australia’s egalitarian screening regime applied to aviation passengers, selection of airport and airline workers, visitors and contractors for screening inside the security restricted areas (SRAs) of airports will be conducted on a purely random basis.  Individuals will not be selected according to their race, religion, gender, or any other personal characteristic.

 

Rights to work

 

The right to work and rights in work is protected by the International Covenant of Economic, Social and Cultural Rights (ICESCR).  Article 6 of ICESCR requires that State Parties must recognise the right to work, including the right of everyone to have the opportunity to gain their living by work which they freely choose or accept and take appropriate steps to safeguard this right.  

 

The introduction of requirements to screen airport and airline workers, visitors and contractors operating within the SRAs of certain airports will mean that, if a person refuses to be screened, or if they are found to have a prohibited weapon in their possession, they will be required to leave the area immediately.  This may mean that they are unable to fulfil their employment obligations for a period of time.  This risk will be partially mitigated by a new requirement for airport and airline employees and their contractors who regularly work within airport SRAs to undergo security awareness training that informs their obligations while working in an SRA and the security reasons behind why those obligations are imposed.     

 

Conclusion

                                                                

The Bill is compatible with human rights because it provides measures to further strengthen Australia’s aviation security and where it may limit human rights, those limitations are reasonable, necessary and proportionate.

 

 

Minister for Infrastructure and Transport , the Hon Darren Chester MP

 



 

NOTES ON CLAUSES

 

Clause 1: Short Title

 

Clause 1 provides that this Act is the Transport Security Legislation Amendment Act 2016 .

 

Clause 2: Commencement

 

Clause 2 provides that the whole of the Act commences the day after it receives Royal Assent.  Clause 2 also allows information about the date of the Royal Assent and commencement to be added to the commencement table, but this information does not form a part of the Act.

 

Clause 3: Schedules

 

Clause 3 outlines the effect of the Schedules to the Bill.  The Aviation Act and the Maritime Act are amended as set out in the Schedule to the Bill.  Any other item in the Schedule has effect according to its terms.

 

Schedule 1 - Amendments

 

Aviation Transport Security Act 2004

 

Item 1 - Paragraphs 35(2)(f), 36(2)(f) and 36A(2)(f)

 

Item 1 amends paragraphs 35(2)(f), 36(2)(f) and 36A(2)(f) by inserting new regulation making provisions to deal with the screening of people, vehicles or goods (other than cargo) that are in an airside area, airside security zone or airside event zone respectively.  The provisions are intended to allow aviation security screening to be applied to people, vehicles and goods within these areas and zones, not just on entry to them.

 

Item 2 - Subsection 41(1)

 

Item 2 amends subsection 41(1) by inserting an additional purpose for screening people within a security controlled airport.  Under the amended provision, a person may be screened in order to permit them to remain in an area or zone within a security controlled airport.  This is in addition to the existing purpose for screening in order to permit entry to an area or zone within a security controlled airport or in preparation for boarding an aircraft.  The person is required to undergo screening in accordance with regulations made under section 44 of the Aviation Act.

 

Item 3 - Subparagraph 41A(1)(b)(ii)

 

Item 3 amends subparagraph 41A(1)(b)(ii) by providing that a person who is at a screening point within an area or a zone at a security controlled airport and is required to undergo screening in order to be permitted to remain within the area or zone is taken to consent to each screening procedure that may be conducted, with the exception of a frisk search.  If a frisk search is to be applied, the screening officer must seek the express consent of the person.  If the person refuses to undergo screening, they must not be permitted to remain in the area or zone.



 

Item 4 - Subsection 42(1)

 

Item 4 amends subsection 42(1) by inserting an additional purpose for screening goods within a security controlled airport.  Under the amended provision, goods may be screened in order to permit them to remain in an area or zone within a security controlled airport.  This is in addition to the existing purpose for screening in order to permit entry to an area or zone within a security controlled airport or in preparation for boarding an aircraft.  Goods are required to undergo screening in accordance with regulations made under section 44 of the Aviation Act.

 

Item 5 - Subsection 43(1)

 

Item 5 amends subsection 43(1) by inserting an additional purpose for screening vehicles within a security controlled airport.  Under the amended provision, vehicles may be screened in order to permit them to remain in an area or zone within a security controlled airport.  This is in addition to the existing purpose for screening in order to permit entry to an area or zone within a security controlled airport or in preparation for boarding an aircraft.  Vehicles are required to undergo screening in accordance with regulations made under section 44 of the Aviation Act.

 

Item 6 - Subsection 44(3)

 

Item 6 inserts a new provision in subsection 44(3) in which some or all of the matters relating to the places where screening is conducted can be specified in written notices made by the Secretary of the Department. 

 

Item 7 - Subsection 127(2)

 

Item 7 removes the reference to a person “who holds, or is acting in, an Executive Level 2, or equivalent position”.  The purpose of this amendment is to allow the Secretary to, by writing, delegate all or any of his or her powers and functions, other than powers or functions under subsection 71(1) and Division 3 and 3A of Part 8 of the Aviation Act, to any APS employee in the Department.

 

Maritime Transport and Offshore Facilities Security Act 2003

 

Item 8 - Subsection 202(2)

 

Item 8 removes the reference to a person “who holds, or is acting in, an Executive Level 2, or equivalent position”.  The purpose of this amendment is to allow the Secretary to, by writing, delegate all or any of his or her powers and functions, other than powers or functions under Division 3 of Part 11 of the Maritime Act, to any APS employee in the Department.