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Transport Security Amendment (Testing and Training) Bill 2020

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2019

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

THE SENATE

TRANSPORT SECURITY AMENDMENT (TESTING AND TRAINING) BILL 2019

EXPLANATORY MEMORANDUM

(Circulated by authority of the Minister for Home Affairs,

the Hon. Peter Dutton MP)



Transport Security Amendment (Testing and Training) Bill 2019

OUTLINE

The Transport Security Amendment (Testing and Training) Bill 2019 (the Bill) introduces explicit powers in the Aviation Transport Security Act 2004 (the Aviation Act) for aviation security inspectors to conduct covert security systems testing to assess compliance of aviation industry participants with their security obligations under the Aviation Act.

The Bill introduces measures to clarify the ability of aviation security inspectors to undertake compliance activities in all regulated locations. In particular, aviation security inspectors will be able to conduct systems tests at locations beyond screening points in an airport terminal, without the risk of committing an offence against other laws.

The Bill also introduces measures into the Aviation Act and the Maritime Transport and Offshore Facilities Security Act 2003 (the Maritime Act) to provide for the implementation of a new requirement that screening officers must have completed relevant training and hold qualifications specified in a legislative instrument before they exercise powers or perform screening functions at security controlled airports and security regulated maritime ports. The Bill will enable the introduction of a screening officer training and accreditation scheme to strengthen training requirements for screeners at airports and seaports. The scheme will establish a national standard of competency for the screening workforce, thereby strengthening a key part of Australia’s transport security framework.

The requirements introduced by the Bill aim to expand the testing of security systems used by aviation industry participants to ensure compliance with the Aviation Act, and improve the effectiveness of screening conducted at Australia’s security controlled airports and security regulated ports, by standardising and harmonising the competency levels of screening officers.

Specifically, the Bill will:

·          create powers for aviation security inspectors to conduct covert testing of aviation industry participants’ aviation security systems to assess compliance with the Aviation Act at all regulated locations

·          exempt aviation security inspectors from civil or criminal liability in certain circumstances where they are covertly testing aviation industry participants’ aviation security systems, including where they are using items that resemble or mimic weapons to test these systems

·          clarify and align the legislative basis for requiring screening officers to have completed relevant training and to hold relevant qualifications prior to exercising powers or performing screening functions

·          allow for legislative instruments to be made determining training, qualifications and other requirements for specified screening officers relating to the exercise of powers or performance of screening functions, and to determine requirements relating to the use of identity cards and uniforms, and

·          make technical amendments to improve the operation of the Aviation Act and Maritime Act

Covert security systems testing

The Bill amends the Aviation Act to establish an explicit legislative basis for aviation security inspectors to conduct covert tests of aviation security systems at all regulated locations under the Aviation Act.  The ability for inspectors to conduct system tests in more locations for a wider range of security measures will provide opportunities to make aviation security systems more robust and resilient against acts of unlawful interference, including terrorism.

The Bill also enables the Australian Government to meet recommendations accepted from the Inspector of Transport Security and the International Civil Aviation Organization to expand the scope of system tests to a wider range of security measures.

As part of their duties, aviation security inspectors conduct compliance activities to assess if security obligations set out in the Aviation Act are being met by aviation industry participants. System tests mimic possible terrorist attack pathways and probe for potential weak points in aviation security arrangements. To ensure tests are as realistic as possible, inspectors use ‘test pieces’ which simulate weapons and other objects that are prohibited from being taken on board screened air services. Test pieces are designed to be inert and not cause harm. Test activities utilising these simulated weapons are coordinated by the Department of Home Affairs with local law enforcement agencies.

In order to permit an aviation security inspector to perform the full complement of their duties, the Bill amends the Aviation Act to provide:

·          an express authority for aviation security inspectors to undertake systems tests at security controlled airports and at the premises of aviation industry participants located outside the boundary of a security controlled airport.

·          an express authority for aviation security inspectors to conduct systems tests on aircraft at security controlled airports, after giving reasonable notice to an aircraft operator. Tests will not be conducted when passengers are on board, boarding or disembarking from an aircraft, and

·          aviation security inspectors with immunity from civil or criminal liability under a Commonwealth, State, or Territory law when they are conducting a system test in good faith, and the test does not seriously endanger the health or safety of any person and result in significant loss of, or damage to, property. The intention is to enable inspectors to conduct system tests in the knowledge that they are not at risk of breaching other laws, such as those relating to bomb hoaxes.

Screening officer training

The screening officer training amendments in this Bill are in response to the Inspector of Transport Security’s inquiry into aviation and maritime transport security education and training in Australia (the Inquiry). The Inquiry highlighted a need for standardised qualifications, the introduction of national accreditation tests, on-the-job training, and continuing professional development requirements for screening officers.

The Bill amends the Aviation Act and the Maritime Act to provide the Secretary of the Department of Home Affairs (the Secretary) may, by legislative instrument, determine the qualifications, accreditation and training for screening officers across Australia. The Bill introduces a power for the Secretary to exempt a class of screening officers from compliance with one or more of the requirements, where satisfied exceptional circumstances exist.

The Bill will provide that screening officers may only exercise screening officer powers, or perform screening functions, if the officer has complied with the training, qualification and other requirements determined by the Secretary, unless in class of screening officers that is exempt from those requirements.

These measures will establi sh a national standard of competency for the screening workforce, which will strengthen the performance of security screening activities undertaken at Australia’s security controlled airports and security regulated ports, and help ensure all screeners in Australia are equipped to respond to current and emerging threats.

FINANCIAL impact statement

The financial impact of the Bill is low. Any costs associated with the implementation of the proposed amendments will be met from within existing resources of the Department of Home Affairs.

statement OF COMPATIBILITY with Human rights

A Statement of Compatibility with Human Rights has been completed in relation to the amendments in this Bill and assesses that the amendments are compatible with Australia’s human rights obligations. A copy of the Statement of Compatibility with Human Rights is at Attachment A which follows the clause by clause explanations.



 

Transport Security Amendment (Testing and Training) Bill 2019

NOTES ON PROVISIONS

Part 1—Preliminary

Section 1         Short title

1.         Section 1 of the Bill provides for the short title of the Act to be the Transport Security Amendment (Testing and Training) Act 2019 .

Section 2         Commencement

2.         Section 2 of the Bill sets out the times at which the Act commences. Subsection 2(1) provides that each provision of the Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

3.         The effect of subsection 2(1), and Item 1 of the associated table, is that sections 1 to 3 of the Bill commence on the day the Act receives Royal Assent.

4.         The effect of subsection 2(1), and Item 2 of the associated table, is that Schedule 1 to the Bill commences on the day after the Act receives Royal Assent.

5.         The effect of subsection 2(1), and Item 3 of the associated table, is that Schedule 2 to the Bill commences on a single day to be fixed by Proclamation.  This will permit arrangements to be put in place to give effect to the amendments in Schedule 2. If the provisions do not commence within the period of 6 months beginning on the day the Act receives the Royal Assent, they will commence on the day after the end of that period.

6.         The note in subsection 2(1) makes it clear that the table relates only to the provisions of the Act as originally enacted. The table will not be amended to deal with any later amendments to the Act.

7.         Subsection 2(2) provides that any information in column 3 of the table is not part of the Act. Information may be inserted in this column, or information in it may be edited, in any published version of the Act. There is currently no information in column 3 of the table.

Section 3         Schedules

8.         Section 3 of the Bill provides that legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned. In addition, this clause provides that any other item in a Schedule to this Act has effect according to its terms.

9.         There are two Schedules to the Bill.  Schedule 1 to the Bill makes amendments to the Aviation Transport Security Act 2004 (the Aviation Act). Schedule 2 to the Bill makes amendments to the Aviation Act (items 1 to 10) and the Maritime Transport and Offshore Facilities Security Act 2003 (the Maritime Act) (items 11 to 20).

Schedule 1—Security systems testing

Aviation Transport Security Act 2004

10.       Division 2 of Part 5 of the Aviation Act establishes the legislative framework for aviation security inspectors and describes the range of powers that they can exercise to determine an aviation industry participant’s compliance with the Aviation Act. An aviation security inspector may be an Australian Public Service employee of the Department, or a law enforcement officer, who has been appointed as an aviation security inspector.

11.       Aviation security inspectors play a pivotal role in ensuring Australia’s aviation security systems remain resilient against terrorist attacks. As part of their duties, aviation security inspectors conduct compliance activities to assess if security obligations set out in the Aviation Act are being met by the aviation industry. Covert testing of an aviation industry participant’s security system using items and methods that may be used in a terrorist attack allows the Department and industry to probe for potential weak points in aviation security arrangements, which a person intent on causing harm may wish to exploit.

Item 1             Before subsection 79(1)

12.       Section 79 of Division 2 of Part 5 of the Aviation Act deals with the general powers of aviation security inspectors.

13.       Item 1 inserts a new subheading, General powers , before subsection 79(1) to make clear that the subsection deals exclusively with the general powers that may be exercised by aviation security inspectors in the course of the performance of their duties for the purposes of determining whether a person is complying with the Aviation Act or investigating a possible contravention of the Aviation Act. This amendment supports, and is consequential to, the amendment made by Item 2 below.

Item 2             At the end of subsection 79(2)

14.       Item 2 inserts a new paragraph (h) into subsection 79(2) of Division 2 of Part 5 of the Aviation Act to expressly permit an aviation security inspector to test an aviation industry participant’s security system.  An aviation security inspector’s testing of a security system may be conducted in an overt or covert manner.  The chapeau to new paragraph 79(2)(h) provides that an aviation security inspector may test a security system including by using an item, weapon or vehicle.

15.       Subparagraphs (i), (ii) and (iii) provide that the places that aviation security inspectors may test a security system are security controlled airports; and any area, building or vehicle under the control of an aviation industry participant (as defined by section 9 of the Aviation Act), including a residence, or part of a residence, if the aviation industry participant operates from a residence or part of a residence.

16.       Security system tests are conducted by aviation security inspectors to assess whether the aviation industry is complying with security obligations established in the Act.  A security systems test is designed to mimic possible terrorist attack pathways and to probe for potential weak points in aviation security arrangements, which an adversary may wish to exploit.  The purpose of security screening is to prevent weapons, such as firearms and explosives, from being placed on board an aircraft - in the passenger cabin or the cargo hold - ensuring that air travel in Australia remains safe and secure, and responsive to possible risks posed by those who intend to cause harm.

17.       To ensure that the tests of security systems are as realistic as possible, aviation security inspectors use test pieces which represent items that may be used to conduct unlawful interference with aviation, including weapons (e.g. imitation firearms and simulated improvised explosive devices). Test pieces are designed to be inert and to not cause harm.

18.       The ability for aviation security inspectors to conduct system tests in more locations for a wider range of security measures will provide new opportunities to identify and respond to any unaddressed gaps in aviation security systems so that these systems become more robust and resilient to safeguard against acts of unlawful interference with aviation, including acts of terrorism.

19.       The effect of this amendment is an express permission for security system testing to be conducted in security controlled airports and any area, building or vehicle under the control of an aviation industry participant (as defined by section 9 of the Aviation Act), including a residence, or part of a residence, if the aviation industry participant operates from a residence or part of a residence. For example, these locations include air cargo examination facilities where cargo is screened and cleared for uploading onto an aircraft.

20.       In addition, this amendment will also enable requirements to be prescribed for the purposes of paragraph 79(2)(h) in the Aviation Transport Security Regulations 2005 .

Item 3             Before subsection 79(3)

21.       Item 3 inserts a new subheading “ When notice required for exercise of powers ”before subsection 79(3) of Division 2 of Part 5 of the Aviation Act.  This amendment supports, and is consequential to, the amendment made by Item 2 above.

22.       The effect of this amendment is to make clear that the subsection deals exclusively with when notice is, or is not, required to be given to an aviation industry participant prior to an aviation security inspector exercising one or more of the general powers in section 79 of the Aviation Act in the course of the performance of their duties.

Item 4             At the end of subsection 79(3A)

23.       Item 4 inserts a new paragraph (f) into subsection 79(3A) of Division 2 of Part 5 of the Aviation Act to include a reference to new subparagraph 79(2)(h)(ii), inserted by Item 2, above.

24.       The purpose of this amendment is to include an aviation security inspector’s testing of security systems, in an area outside the boundaries of a security controlled airport, within the application of subsection 79(3A).

25.       The effect of this amendment is to clarify that an aviation security inspector’s power to test security systems at any time and without notice applies to conducting testing in any area, building or vehicle under the control of an aviation industry participant that is outside the bounds of a security controlled airport. For example, this would include an examination facility operated by a Regulated Air Cargo Agent.

Item 5             Subsection 79(4)

26.       Item 5 repeals subsection 79(4). This amendment is consequential to the amendment made by Item 10, below, which replicates and relocates the content of the repealed subsection 79(4).

Item 6             Before subsection 79(5)

27.       Item 6 inserts a new subheading “Offence” before subsection 79(5) of Division 2 of Part 5 of the Aviation Act. This amendment supports, and is consequential to, the amendment made by Item 2 above.

28.       The purpose of this amendment is to assist in the readability of the Aviation Act and to make it clear that the subsection is an offence provision in relation to a person engaging in conduct that hinders or obstructs an aviation security inspector in the exercise of a power under section 79 of the Aviation Act.

Item 7               Paragraph 79(5)(b)  

29.       Item 7 amends paragraph 79(5)(b) of Division 2 of Part 5 of the Aviation Act to insert the words “(other than paragraph (2)(h))” after the words “under this section”. Subsection 79(5) is an offence provision that sets out circumstances when a person may be committing an offence in relation to engaging in conduct which hinders or obstructs an aviation security inspector in the exercise of a power under section 79.

30.       The purpose of this amendment is to expressly exclude the circumstances described in paragraph 79(2)(h) (inserted by the amendment in Item 2, above) from the offence provision, where a person engages in conduct which hinders or obstructs an aviation security inspector in the exercise of a power under section 79 .

31.       The effect of this amendment is to make clear that a person would not be committing an offence where they engage in conduct that hinders or obstructs an aviation security inspector in certain circumstances when conducting system tests.

Item 8             Subsection 79(6)(note)

32.       Item 8 omits the word “Note” and substitutes the words “Note 1” with respect to the note following subsection 79(6).  This Item makes a technical amendment which reflects the inclusion of an additional note following subsection 79(6), made by Item 9 below.

Item 9             At the end of subsection 79(6)

33.       Item 9 inserts an additional note following subsection 79(6).  New note 2 refers to the possible application of the offence of obstructing a Commonwealth public official set out in section 149.1 of the Criminal Code .

34.       Currently, all persons who have been appointed as aviation security inspectors are Australian Public Service employees in the Department of Home Affairs.  They are Commonwealth public servants and as such are Commonwealth public officials. 

Item 10           At the end of section 79

35.       Item 10 inserts new subsections (8), (9), (10) and (11) into section 79 of Division 2 of Part 5 of the Aviation Act.  These new subsections deal with restrictions on the exercise of an aviation security inspector’s powers and provide an aviation security inspector with an immunity from civil or criminal liability under a law of the Commonwealth, a State or Territory in limited circumstances.

Restrictions on the exercise of powers and immunity

Subsection 79(8)

36.       New subsection 79(8) provides that in exercising a power under section 79 of the Aviation Act, an aviation security inspector must not subject a person to greater indignity than is necessary and reasonable for the exercise of the power.  The effect of this amendment is to replicate the detail of former subsection 79(4), repealed by Item 5 above.

37.       The purpose of this amendment is to acknowledge that the exercise of an aviation security inspector’s powers may result in an amount of indignity for an aviation industry participant, in the sense that in testing the effectiveness of a security system to assess compliance with the Aviation Act, a person’s proficiency at performing their security role is also under scrutiny.  The tests are not intended to cause a person any embarrassment. Their purpose is to ensure and maintain aviation security.

Subsection 79(9)

38.       New subsection 79(9) provides that an aviation security inspector is not subject to civil or criminal liability under the law of the Commonwealth, a State or Territory, in relation to the exercise of a power under new paragraph 79(2)(h), to the extent that the exercise of the power is in good faith, and does not seriously endanger the health or safety of any person and does not result in significant loss of, or serious damage to, property.

39.       The purpose of this amendment is to permit an aviation security inspector to perform the full range of their duties, including covert systems testing using a weapon a vehicle or other item, at a regulated location. An aviation security inspector would not be subject to civil or criminal liability under another Commonwealth, State or Territory law if they can raise the possibility of the defence in paragraphs 79(9)(a), (b) and (c).

40.       The effect of this amendment is to expressly enable an aviation security inspector to conduct a test and provide a defence which, if proved to the relevant standard, would provide them with immunity from civil or criminal liability.

Evidential burden - reversal of the burden of proof

41.       The guiding note following new subsection 79(9) provides that a defendant bears an evidential burden in relation the subsection 79(9) matter for a criminal proceeding.

Subsection 79(10)

42.       New subsection 79(10) provides that a person who wishes to rely on subsection 79(9) in relation to a civil proceeding bears an evidential burden in relation to that matter.

Subsection 79(11)

43.       New subsection 79(11) provides that in section 79, in relation to a matter, evidential burden means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.

44.       The amendments made in subsections 79 (9), (10) and (11) indicate a reversal of the evidential burden in relation to making out a defence of a matter contained in subsection 79(9), which is unusual, but not without precedent. In criminal matters the defendant would ordinarily be entitled to the presumption of innocence and it would be for the prosecution to adduce evidence of a matter. Similarly, generally in civil matters the evidential burden would lie on the plaintiff with respect to all essential elements of the matter. These amendments are a reversal of both the civil and criminal evidential burdens.

45.       The reversal of the evidential burden is appropriate in this instance as the information to raise the possibility of one or more of the elements of the defence would be, if not peculiarly within the knowledge of the defendant, at least better known to the defendant than to the prosecution or to any individual third party. Consequently it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.

 

46.       As an example, this becomes apparent when one considers the defence at paragraph 79(9)(a) that the defendant has exercised the power under paragraph 79(2)(h) in good faith. Were this cast as an offence element and not as a defence, then the Crown would need to raise evidence negativing the possibility that the defendant was exercising the paragraph 79(2)(h) power in good faith.  This goes both to the defendant’s state of mind and whether the defendant was exercising the power in paragraph 79(2)(h) in the performance of their duties. The performance of an aviation security inspector’s duty must be in accordance with general or specific directions from their superiors, and in accordance with standard operating procedures for conducting security system testing. 

 

47.       Raising evidence negativing the possibility would be a very onerous process. In this instance, it is prudent and sensible for a defence to require the defendant to raise evidence indicating a good faith use of power before the Crown would need to disprove the same beyond reasonable doubt.

 

48.       The Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers notes that an evidential burden does not completely displace the prosecutor's burden, but only defers that burden. The defendant must point to evidence establishing a reasonable possibility that these defences are made out.

Item 11           Before subsection 80 (1)

49.       Section 80 of Division 2 of Part 5 of the Aviation Act deals with the powers of an aviation security inspector with respect to aircraft. This amendment supports, and is consequential to, the amendment made to subsection 80(2) by Item 12, below.

50.       Item 11 inserts a new subheading, Powers relating to aircraft , before subsection 80(1) to make clear that the subsection deals exclusively with an aviation inspector’s powers relating to an aircraft.

51.       This amendment intends to make clear that the powers set out in subsection 80(2) may be exercised by aviation security inspectors in the course of the performance of their duty for the purposes of determining whether a person is complying with the Aviation Act, or investigating a possible contravention of the Aviation Act.

Item 12           At the end of subsection 80(2)

52.       Subsection 80(2) of Division 2 of Part 5 of the Aviation Act sets out the powers that an aviation security inspector may exercise in an aircraft. An aviation security inspector’s testing of an aircraft operator’s security system may be conducted in an overt or covert manner. 

53.       Item 12 inserts a new paragraph (f) into subsection 80(2) of the Aviation Act. New paragraph 80(2)(f) provides a clear and express discretionary power for an aviation security inspector to test an aircraft operator’s security system including by using an item or weapon, to test for the detection of the item or weapon, in an aircraft if the test is conducted while passengers are not on board the aircraft, are not in the process of boarding the aircraft, and are not in the process of disembarking from the aircraft. Security systems testing of an aircraft involves prior notification to the aircraft operator.

54.       The purpose of this amendment is to expressly permit an aviation security inspector to test an aircraft operator’s security systems in relation to an aircraft. 

55.       This amendment will also enable requirements to be prescribed for the purposes of paragraph 80(2)(f) in the Aviation Transport Security Regulations 2005 .

56.       Similarly to the purposes of the amendment made by item 2 above, this amendment permits an aviation security inspector to use test pieces to test the effectiveness of aircraft crews’ pre-flight checking of an aircraft prior to clearance for boarding, and to assess compliance with security obligations under the Aviation Act .  Areas checked by cabin and ground crew include, but are not limited to, the passenger cabin, galleys, and cargo hold of an aircraft.

57.       Where a test piece is used to conduct the security systems test, it would only be placed on an aircraft when crew and passengers are not on board. A test piece used in this manner would be discreetly removed from the aircraft at the conclusion of the test, and before any passengers are permitted to board the aircraft. 

Item 13           Before subsection 80(3)

58.       Item 13 inserts a new subheading, Notice requirement , before subsection 80(3) of Division 2 of Part 5 of the Aviation Act to clarify the purpose of the subsection.

59.       Subsection 80(3) of Division 2 of Part 5 of the Aviation Act provides that an aviation security inspector may exercise a power mentioned in subsection 80(2) after giving the aircraft operator reasonable notice. This amendment supports, and is consequential to, the amendment made by Items 11 and 12 above

Item 14           Before subsection 80(4)

60.       Item 14 inserts a new subheading, Offence , before subsection 80(4) of Division 2 of Part 5 of the Aviation Act to support the amendment made by Items 11 to 13 above.

61.       The purpose of this amendment is to make clear that the subsection is an offence provision in relation to a person engaging in conduct that hinders or obstructs an aviation security inspector in the exercise of a power under section 80 of the Aviation Act.

Item 15           Paragraph 80(4)(b)

62.       Item 15 amends paragraph 80(4)(b) of Division 2 of Part 5 of the Aviation Act to insert the words “(other than paragraph (2)(f))” after the words “under this section”.

63.       The purpose of this amendment is to confirm that a person would not be committing an offence, where they engage in conduct that hinders or obstructs an aviation security inspector in certain circumstances.

64.       The effect of this amendment is to ensure that a person who is unaware that an aviation security inspector is conducting a test of a security system, and for example alerts cabin crew that a person was seen to leave an item on an aircraft, would not be committing an offence.

Item 16           Subsection 80(5)(note)

65.       Item 16 omits the word “Note” and substitutes the words “Note 1” with respect to the note following subsection 80(5) in Division 2 of Part 5 of the Aviation Act. 

66.       This Item makes a technical amendment which reflects the inclusion of an additional note following subsection 80(5), made by Item 17 below.

Item 17           At the end of subsection 80(5)

67.       Item 17 inserts an additional note following subsection 80(5) in Division 2 of Part 5 of the Aviation Act. 

68.       New note 2 offers guidance to a reader by referring to the possible application of the offence of obstructing a Commonwealth public official set out in section 149.1 of the Criminal Code .

69.       As indicated in Item 9 above, currently all persons who have been appointed as aviation security inspectors are Australian Public Service employees in the Department of Home Affairs. They are Commonwealth public servants and as such are Commonwealth public officials. 

Item 18           At the end of section 80

70.       This item inserts new subsections 80(7), (8) and (9) in Division 2 of Part 5 of the Aviation Act.  The amendments made by Item 18 provide aviation security inspectors with immunity from civil and criminal liability under the law of the Commonwealth, a State or Territory in relation to the exercise of a power under new paragraph 80(2)(f), introduced by Item 12 above.

Subsection 80(7) - Immunity

71.       New subsection 80(7) provides that an aviation security inspector is not subject to civil or criminal liability under the law of the Commonwealth, a State or Territory, in relation the exercise of a power under paragraph 80(2)(f) to the extent that the exercise of the power is in good faith and does not seriously endanger the health or safety of any person and does not result in significant loss of, or serious damage to, property.

72.       The purpose of this amendment is to permit an aviation security inspector to perform the full range of their duties, including covert systems testing using an item or weapon, in an aircraft.  An aviation security inspector would not be subject to civil or criminal liability under another Commonwealth, State or Territory law if they can raise the possibility of the defence in paragraphs 80(7)(a), (b) and (c).

73.       As noted in relation to Item 12 above, the testing of a security system in an aircraft takes place before any passengers board the aircraft, in the full knowledge of the aircraft operator.

74.       The effect of this amendment is to expressly enable an aviation security inspector to conduct a test and provide a defence which, if proved to the relevant standard, would provide them with immunity from civil or criminal liability.

75.       The guiding note following new subsection 80(7) provides that a defendant bears an evidential burden in relation to the subsection 80(7) matter for a criminal proceeding.

Subsection 80(8)

76.       New subsection 80(8) provides that a person who wishes to rely on subsection 80(7) in relation to a civil proceeding bears an evidential burden in relation to that matter.

Subsection 80(9)

77.       New subsection 80(9) provides that in section 80, in relation to a matter, evidential burden means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.

78.       Similarly to the amendments made in Item 10 above, the purpose of the amendments made by new subsections 80(8) and (9), and the guidance offered in the note following subsection 80(7), is to indicate a reversal of both the civil and criminal evidential burdens in relation to making out a defence of a matter contained in subsection 80(7) .

79.       The reversal of the evidential burden is appropriate in this instance as the information to raise the possibility of the existence of one or more of the elements of the defence would be, if not peculiarly within the knowledge of the defendant, at least better known to the defendant than to the prosecution or to any individual third party. 

 

80.       Testing the security system in place in an aircraft can only be conducted in the course of an aviation security inspectors’ duties, and therefore the good faith element goes to both the inspectors’ state of mind and the operational support for, and direction to, conduct the test.  As the test would be conducted in the absence of passengers and cargo there could be little to no danger to the health or safety of any person, and the test should not place any property at risk of damage or loss. It is simpler for an aviation security inspector to raise evidence to support the existence of the defence, than it would be for the prosecution or plaintiff, in a criminal or civil matter, respectively.

 

81.       The Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers notes that an evidential burden does not completely displace the prosecutor's burden, but only defers that burden. The defendant must point to evidence establishing a reasonable possibility that these defences are made out.

Schedule 2—Screening officer training

Aviation Transport Security Act 2004

Item 1             Section 9

82.       Item 1 inserts a new definition in section 9 of Division 4 of Part 1 of the Aviation Act, to describe and define the concept of a screening function. Screening function is defined to mean a function that a screening officer is authorised or required to perform under the Aviation Act or an instrument made under the Aviation Act.

83.       Security screening is conducted by screening officers, who exercise screening powers and perform screening functions, at screening points at security controlled airports to clear people and their personal effects to enter into a secure or sterile area.

84.       For example, a screening function is performed where a person passes through a walk through metal detector at the direction of a screening officer, or where a person’s carry-on baggage is placed on a conveyer belt to be x-rayed and the x-ray image is examined by a screening officer.

Item 2             Section 9 (definition of screening officer )

85.       Item 2 amends the definition of screening officer in section 9 of Division 4 of Part 1 of the Aviation Act to omit the words “subsection 94(1)” and substitute the words “section 94”.

86.       This is a technical amendment, consequential to the amendment made by Item 5 below, which repeals subsections 94(1) to (3).

Item 3             After paragraph 44(2)(a)

87.       Subsection 44(2) of the Aviation Act sets out in a non-exhaustive list, the matters that may be dealt with by regulations made under subsection 44(1) of the Aviation Act. 

88.       Item 3 inserts a new paragraph (aaa) in subsection 44(2) of Division 2 of Part 4 of the Aviation Act.

89.       The effect of this amendment is to include requirements in relation to the form and issue of identity cards for screening officers as matters that may be dealt with by the Aviation Transport Security Regulations 2005.

Item 4             Subsection 44(2) (note)

90.       Item 4 repeals the note following subsection 44(2) of Division 2 of Part 4 of the Aviation Act, and substitutes a new note. The repealed note provided that Regulations made under subsection 94(2) must prescribe training and qualification requirements for screening officers and set out requirements in relation to the form, issue and use of identity cards .

91.       The new note provides that a determination made under section 94A, may specify training and other qualification requirements for screening officers. Section 94A is inserted into the Act by the amendment in Item 8 below which provides the authority for the Secretary, by legislative instrument, to determine training, qualification, and other requirements for screening officers.

92.       This amendment is consequential to the amendment made by Item 8 below.

Item 5             Subsection 44(3)

93.       Currently, subsection 44(3) of Division 2 of Part 4 of the Aviation Act provides that regulations made under paragraphs (2)(a), (2)(aa), (2)(i) or (2)(j) may provide that some or all of the matters set out in that paragraph are to be specified in written notices made by the Secretary.

94.       Item 5 inserts a reference to new paragraph 44(2)(aaa) made by Item 3 above, in subsection 44(3). This amendment has the effect of permitting the Secretary to specify requirements in relation to the form and issue of identity cards for screening officers in written notices.

Item 6             Section 93

95.       Item 6 amends the simplified overview of Division 5 of Part 5 of the Aviation Act which deals with the powers and functions of screening officers .

96.       The purpose of this amendment is to describe the circumstances that must exist before a screening officer may exercise screening officer powers or perform screening functions. The simplified overview now signposts a condition precedent to a screening officer exercising screening officer powers or performing a screening function. Screening officers must have met training, qualification, and other requirements determined by the Secretary, unless the officer is exempt from complying with the requirements.

97.       This amendment is consequential to the amendment made by Item 8, below.

Item 7             Subsections 94(1) to (3)

98.       Item 7 repeals subsections 94(1) to (3) of Division 5 of Part 5 of the Aviation Act, and substitutes a simplified and brief statement.

99.       This amendment establishes the framework for the exercise of screening officer powers and the performance of screening functions.

100.     Previously, section 94 of the Aviation Act dealt with a number of matters relating to screening officers, including setting out who is a screening officer, and where certain requirements relating to screening officers may be set out. These requirements included training and qualifications, identity cards, uniforms and other requirements.

101.     The substituted words provide that a person who is authorised or required to conduct screening is a screening officer. The guidance in the note following the substituted words provides that persons are authorised or required to conduct screening under the Aviation Transport Security Regulations 2005 , and refers the reader to paragraph 44(2)(a) of the Aviation Act.

Item 8             After section 94

102.     Item 8 inserts new section 94A, in Division 5 of Part 5 of the Aviation Act, which deals with requirements relating to screening officers.

New section 94A Requirements relating to screening officers

103.     New section 94A provides the authority for the Secretary to make a determination by legislative instrument. The determination may set training and qualification requirements, and requirements in relation to the use of identity cards, uniforms and other requirements, for screening officers relating to the exercise or performance of a specified power under Division 5 of the Aviation Act or a specified screening function. The guidance in the note following new section 94A refers the reader to subsection 13(3) of the Legislation Act 2003 for specification of screening officers by class.

104.     The purpose of this amendment is to provide a legislative basis for setting the training and qualification requirements screening officers must meet in a legislative instrument made by the Secretary.

105.     The purpose of this amendment is to allow for unified requirements, ongoing learning and standardised competency levels which must be met by all screening officers.

106.     An effect of this amendment is that the flexibility to determine new training requirements (as training modules become available) in a legislative instrument will enable the screening workforce to keep up to date with new ways to identify and manage emerging risks to aviation security, and new equipment developed to address those risks. It will assist the screening workforce to be adaptive and responsive to changes in the security screening environment.

107.     An additional effect of this amendment is that a the Secretary may determine the screening officers who may perform particular screening functions or exercise particular screening officer powers according to the qualification they hold, or the training they have completed.

New section 94B Exemption from requirements relating to screening officers

108.     New subsection 94B(1) provides the authority for the Secretary, by writing, to exempt a class of  screening officers from one or more of the requirements determined under section 94A, if the Secretary is satisfied that exceptional circumstances exist.

109.     New subsection 94B(2) provides that an exemption made under subsection 94B(1) may be subject to specified conditions. For example, a condition may be that a particular class of screening officers is only exempt from one of the requirements determined under section 94A, or that the exemption is only in force at a particular airport, or that the exemption is only in force until a specified date or time, or that the exemption is only in force until an event occurs.

110.     An exemption made by the Secretary in writing for section 94B is not a legislative instrument in accordance with paragraph (a) of Item 5 of the table in section 7 of the Legislation (Exemptions and Other Matters) Regulation 2015 .  

111.     The purpose of this amendment is to permit limited exemptions from meeting one or more of the requirements determined under section 94A to a small group or groups of screening officers in circumstances that the Secretary is satisfied are exceptional.

112.     These exemptions may be of a sensitive nature, and may indicate a situation that may be subject to exploitation by persons intent on causing an unlawful interference with aviation, or aviation infrastructure, as a consequence it is imperative to restrict details of exemptions.

113.     For example, there may be an exemption in place in relation to training or qualification requirements for a class of screening officer operating from a particular airport. This may expose that airport, or aircraft departing from that airport, to vulnerability to an attack. In order to reduce the risk of information of this type being exploited by an adversary, an exemption made in writing by the Secretary would not be a legislative instrument and therefore would not be published.

New section 94C Exercise of powers and performance of screening functions by screening officers

114.     New subsection 94C(1) provides that a screening officer may only exercise a power under Division 5 of Part 5 of the Aviation Act or perform a screening function if the screening officer has met requirements determined for paragraph 94A(a) that relates to the exercise or performance of the power or functions, and for which the screening officer is not exempt under section 94B.

115.     The purpose of this amendment is to preclude or limit the exercise of screening officer powers (under Division 5 of the Aviation Act), or limit the performance of screening functions, at a security controlled airport to a screening officer who has completed the relevant training and holds the relevant qualifications or meets other requirements determined by the Secretary, unless the Secretary has exempted that screening officer from meeting those requirements. 

116.     New subsection 94C(2) provides that in exercising a power under Division 5 of the Aviation Act, or performing a screening function, a screening officer must not use more force, or subject a person to greater indignity, than is necessary and reasonable.

117.     The purpose of this amendment is to acknowledge that some screening powers and functions require a level of force or an amount of indignity for the person being screened.

118.     For example where a frisk search is conducted on a person after triggering the walk-through metal detector alarm, or where a request is made that a person remove an outer garment so that they can be checked by an explosive trace device, a screening officer is not permitted to use more force than necessary or subject a person to a greater level of indignity than is required to conduct the search or perform the check.

119.     The amendment made by subsection 94C(2) also mirrors the content of former section 97, which is being repealed by Item 9 below. 

120.     The effect of new section 94C is to combine provisions that preclude or limit the exercise of screening officer powers (under Division 5 of the Aviation Act), or the performance of screening functions, at a security controlled airport. 

121.     The amendments made by Item 8 allow for the harmonisation of education and training requirements for screening officers.

Item 9             Section 97

122.     Item 9 repeals section 97 in Division 5 of Part 5 of the Aviation Act. Prior to this amendment, section 97 provided that in exercising a power under this Division, a screening officer must not use more force, or subject a person to greater indignity, than is necessary and reasonable.

123.     This amendment is consequential to the amendment in Item 8 above, which mirrors the content of former section 97in new subsection 94C(2).

Item 10           After paragraph 127(2)(a)

124.     The Secretary of the Department of Home Affairs has a number of powers and functions under the Aviation Act. Section 127 of Part 10 of the Aviation Act deals with the delegation of the Secretary’s delegable powers and functions under the Act.

125.     Subsection 127(1) permits the delegation of any or all of the Secretary’s powers to SES employees and acting SES employees in the Department, and SES employees in the Attorney-General’s Department, or to an Agency Head of an Agency that carries on activities that relate to national security.

126.     Item 10 inserts a new paragraph (aa) into subsection 127(2) to include a reference to new sections 94A and 94B.

127.     The purpose of this amendment is so that, should the Secretary decide to delegate the power to determine the training, qualifications and other requirements for screening officers, or to make exemptions to those requirements, out of administrative necessity the power may only be delegated to a person described in subsection 127(1).

128.     The effect of this amendment is to provide that the powers may be delegated to a suitably high level employee or a relevant Agency head and to expressly exclude the powers in sections 94A and 94B from those that may be delegated to APS employees in the Department.

Maritime Transport and Offshore Facilities Security Act 2003

Item 11           Section 10

129.     Item 11 inserts a new definition in section 10 of the Maritime Act, to describe and define the concept of screening function. Screening function is defined to mean a function that a screening officer is authorised or required to perform under the Maritime Act, or an instrument made under the Maritime Act.

130.     Security screening is conducted by screening officers, who exercise screening powers and perform screening functions, at screening points at security regulated maritime ports to clear people and their personal effects to enter into a secure or sterile area.

Item 12           Section 10 (definition of screening officer )

131.     Item 12 amends the definition of screening officer in section 10 of Division 4 of Part 1 of the Maritime Act to omit the words “subsection 165(1)” and substitute the words “section 165”

132.     This is a technical amendment, consequential to the amendment made by Item 17 below, which repeals subsections 165(1) to (3).

Item 13           After paragraph 119(2)(a)

133.     Subsection 119(2) of Division 2 of Part 7 of the Maritime Act sets out in a non-exhaustive list, the matters that may be dealt with by regulations made under subsection 119(1) of the Maritime Act. 

134.     Item 13 inserts a new paragraph (aa) in subsection 119(2).

135.     The purpose and effect of this amendment is to include requirements in relation to the form and issue of identity cards for screening officers as matters that may be dealt with by the Maritime Transport and Offshore Facility Security Regulations 2003.

Item 14           Subsection 119(2) (note)

136.     Item 14 repeals the note following subsection 119(2) of Division 2 of Part 7 of the Maritime Act, and substitutes a new note. The repealed note provided that Regulations made under subsection 119(2) must prescribe training and qualification requirements for screening officers and set out requirements in relation to the form, issue and use of identity cards.

137.     The new note provides that a determination made under section 165A, may specify training and other qualification requirements for screening officers. This amendment is consequential to the amendment made by Item 18 below.

138.     Section 165A (inserted into the Act by the amendment in Item 18 below) provides the authority for the Secretary, by legislative instrument, to determine training, qualification, and other requirements for screening officers.

Item 15           Subsection 119(3)

139.     Currently, subsection 119(3) of Division 2 of Part 7 of the Maritime Act provides that regulations made under paragraphs 119(2)(a) or (2)(k) may provide that some or all of the matters set out in that paragraph are to be specified in written notices made by the Secretary.

140.     Item 5 inserts a reference to new paragraph 119(2)(aa) made by Item 13 above, in subsection 119(3). This amendment has the effect of permitting the Secretary to specify requirements in relation to the form and issue of identity cards for screening officers in written notices.         

Item 16           Section 164

141.     Item 16 amends the simplified overview of Division 6 of Part 8 of the Maritime Act which deals with the powers and functions of screening officers .

142.     This amendment deals with the circumstances that must exist before a screening officer may exercise screening officer powers or perform screening functions. The simplified overview now signposts a condition precedent to a screening officer exercising screening officer powers or performing a screening function, to screening officers who have met training, qualification, and other requirements determined by the Secretary, unless the officer is exempt from complying with the requirements.

143.     This amendment is consequential to the amendment made by Item 18, below.

Item 17           Subsections 165(1) to (3)

144.     Item 17 repeals subsections 165(1) to (3) of Division 6 of Part 8 of the Maritime Act, and substitutes the simplified and brief statement, that a person who is authorised or required to conduct screening is a screening officer.

145.     Previously, section 165 of the Maritime Act dealt with a number of matters relating to screening officers, including setting out who is a screening officer, and where certain requirements relating to screening officers may be prescribed.  These requirements included training and qualifications, identity cards, uniforms and other requirements.

146.     The purpose of the substituted words is to provide that a person who is authorised or required to conduct screening, is a screening officer.

147.     The guidance in the note following the substituted words provides that persons are authorised or required to conduct screening under the Maritime Transport and Offshore Facility Security Regulations 2003 , and refers the reader to paragraph 119(2)(a) of the Maritime Act.

Item 18           After section 165

148.     Item 18 inserts a new section 165A in Division 6 of Part 8 of the Maritime Act, which deals with requirements relating to screening officers.

149.     The purpose of this amendment is to combine provisions that limit or preclude the exercise of screening officer powers or the performance of screening functions, at a security regulated port. 

New section 165A Requirements relating to screening officers

150.     New section 165A provides the authority for the Secretary to make a determination by legislative instrument. The determination may set training and qualification requirements, and requirements in relation to the use of identity cards, uniforms and other requirements, for screening officers relating to the exercise or performance of a specified power under Division 6 of Part 8 of the Maritime Act or a specified screening function. The guidance in the note following new section 165A refers the reader to subsection 13(3) of the Legislation Act 2003 for specification of screening officers by class.

151.     This amendment has the effect that the determination may also specify screening officers who may perform particular screening functions or exercise particular screening officer powers according to the qualification they hold, or the training they have completed.

152.     The purpose of this amendment is to provide a legislative basis for updating the training and qualification requirements of screening officers, to raise the standard for qualification, ongoing education and competency levels required of screening officers.

New section 165B Exemption from requirements relating to screening officers

153.     New subsection 165B(1) provides the authority for the Secretary, by writing, to exempt a class of screening officers from one or more of the requirements determined under section 165A, if the Secretary is satisfied that exceptional circumstances exist.

154.     New subsection 165B(2) provides that an exemption made under subsection 165B(1) may be subject to certain conditions. For example, a condition may be that a particular class of screening officer is only exempt from one of the requirements determined for section 165A, or that the exemption is only in force at a particular maritime port, or that the exemption is only in force until a specified date or time, or that the exemption is only in force until an event occurs.

155.     An exemption made by the Secretary in writing for section 165B is not a legislative instrument in accordance with paragraph (a) of Item 21 of the table in section 7 of the Legislation (Exemptions and Other Matters) Regulation 2015 .  

156.     The purpose of this amendment is to permit limited exemptions from meeting one or more of the requirements determined under section 165A to a small group or groups of screening officers in circumstances that the Secretary is satisfied are exceptional. These exemptions may be of a sensitive nature, and may indicate a situation that may be subject to exploitation by persons intent on causing an unlawful interference with maritime transport, or maritime infrastructure or offshore facilities , as a consequence it is imperative to restrict details of exemptions. For example, there may be an exemption in place in relation to training or qualification requirements for a class of screening officers operating from a particular maritime port. This may expose that port, or vessels departing from that port, to vulnerability to an attack.  In order to reduce the risk of information of this type being exploited by an adversary, an exemption made in writing by the Secretary would not be a legislative instrument and therefore would not be published.

New section 165C Exercise of powers and performance of screening functions by screening officers

157.     New subsection 165C(1) provides that a screening officer may only exercise a power under Division 6 of Part 8 of the Maritime Act or perform a screening function if the screening officer has met the requirements determined for paragraph 165A(a) that relates to the exercise or performance of the power or functions, and for which the screening officer is not exempt under section 165B.

158.     The purpose of this amendment is to preclude or limit the exercise of screening officer powers (under Division 6 of the Maritime Act), or the performance of screening functions, at a security regulated maritime port to a screening officer who has completed the relevant training and holds the relevant qualifications or meets other requirements determined by the Secretary, unless the Secretary has exempted that screening officer from meeting those requirements. 

159.     New subsection 165C(2) provides that in exercising a power under Division 6 of the Maritime Act, or performing a screening function, a screening officer must not use more force, or subject a person to greater indignity, than is necessary and reasonable.

160.     The purpose of this amendment is to acknowledge that some screening powers and functions require a level of force or an amount of indignity for the person being screened. For example where a frisk search is conducted on a person after triggering the walk-through metal detector alarm, or where a person undergoes explosive trace detection, a screening officer is not permitted to use more force than necessary or subject a person to a greater level of indignity than is required to conduct the search or perform the check.

161.     The amendment made by subsection 165C(2) also mirrors the content of former section 168, which is being repealed by Item 19 below. 

162.     The effect of new section 165C is to combine provisions that preclude or limit the exercise of screening officer powers (under Division 6 of the Maritime Act), or the performance of screening functions, at a security regulated maritime port. 

163.     The amendments made by Item 18 allow for the harmonisation of the education, training and accreditation requirements for screening officers.

Item 19           Section 168

164.     Item 19 repeals section 168. This amendment is consequential to the amendment made by new subsection 165A(2), in item 18 above.

Item 20           Subsection 202(2)

165.     The Secretary of the Department of Home Affairs has a number of powers and functions under the Maritime Act. Section 202 of Part 13 of the Maritime Act deals with the delegation of the Secretary’s delegable powers and functions under the Act. Subsection 202(1) permits the delegation of all or any of the Secretary’s powers to SES employees and acting SES employees in the Department, or to an Agency Head of an Agency that carries on activities that relate to national security.

166.     Subsection 202(2) deals with the powers and functions that the Secretary may, and may not, delegate to APS employees in the Department.

167.     Item 20 amends subsection 202(2) to insert the words “sections 165A or 165B or” before the words “Division 3 of Part 11”. 

168.     The effect of this amendment is to provide that the powers may be delegated to a suitably high level employee or a relevant Agency head and to expressly exclude the powers in sections 165A and 165B from those that may be delegated to APS employees in the Department.

169.     The purpose of this amendment is so that, if the Secretary decides to delegate the power to determine the training, qualifications and other requirements for screening officers, or to make exemptions to those requirements, out of administrative necessity the power may be delegated to a person described in subsection 202(1).



ATTACHMENT

Statement of Compatibility with Human Rights

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

 

Transport Security Amendment (Testing and Training) Bill 2019

1.         The Transport Security Amendment (Testing and Training) Bill 2019 (the 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

2.         The Bill amends the Maritime Transport and Offshore Facilities Security Act 2003 (Maritime Act) and the Aviation Transport Security Act 2004 (Aviation Act).

3.         The amendments clarify the ability of aviation security inspectors to undertake their regulatory compliance activities. The amendments also introduce legislative settings needed to support the implementation of a strengthened education, training and accreditation program for aviation and maritime screening officers.

Schedule 1: Security systems testing

4.         As a party to the Convention on International Civil Aviation (Chicago Convention) (Annex 17 - Safeguarding International Civil Aviation Against Acts of Unlawful Interference) and for compliance with Australia’s national civil aviation security program, Australia is required to arrange for security audits, tests, surveys and inspections to be conducted on a regular basis. The Bill introduces provisions to the Aviation Act, intended to protect aviation security inspectors who conduct system test activities in compliance with this Convention. Such provisions are necessary because in operating such activities, inspectors may breach some Federal, State and Territory laws. For example, they may breach offences in relation to bomb hoaxes or the concealment of weapons. The intention is to protect inspectors from the possibility of liability for civil or criminal prosecution when they are conducting their duties in good faith and where that conduct does not seriously endanger the health or safety of any person, and does not result in significant loss of, or serious damage to, property.

5.         The amendments also clarify that in exercising these powers, aviation security inspectors must not subject a person to greater indignity than necessary and reasonable for the exercise of the power.

Schedule 2: Screening officer training

6.         The Bill will insert new provisions into the Maritime Act and Aviation Act that allow the Secretary of the Department of Home Affairs (the Secretary) to prescribe screening officer requirements by legislative instrument. The requirements, including measures relating to qualifications, training, uniforms and identification, are currently outlined in regulations. This change will allow updates to be made more efficiently in response to changes in the security environment.

7.         The Bill also inserts new provisions into the Maritime Act and Aviation Act, so the Acts specify that only screening officers who have completed the relevant training and/or accreditation will be authorised to exercise specific powers and conduct screening functions. Currently, an individual is automatically conferred legislated powers upon being authorised as a screening officer.

8.         Finally, the Bill amends the Maritime Act and Aviation Act, so that the Secretary will be able to vary or exempt an individual or classes of people from one or more training or accreditation requirements in exceptional circumstances, and apply specific conditions to such requirements if necessary. For example, the Secretary may need to exempt screening officers when transitioning new equipment and the officers are awaiting the next scheduled training.

Human rights implications

9.         The Bill engages the following human rights:

Right to equality and non-discrimination

10.       Article 26 of the International Covenant to Civil and Political Rights (ICCPR) states:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Schedule 1: Security systems testing

11.       These new provisions to the Aviation Act engage with article 26 of the ICCPR because they allow for differential treatment of aviation security inspectors by excluding them from being prosecuted for certain civil and criminal offences during the course of their duties. Derogation from the obligation under article 26 of the ICCPR is permissible under international law where such derogation is reasonable, justifiable and proportionate to achieving a legitimate State objective. The differential treatment, as introduced by these new provisions, allow aviation security inspectors to conduct system testing in good faith and without fear of prosecution. Without such provisions, aviation security inspectors could not conduct such system testing for fear of prosecution, and this would be to the detriment of Australia’s aviation security environment. These provisions are important because they not only allow Australia to abide by our obligations under the Chicago Convention, but also ensure the maintenance of the integrity of Australia’s aviation security environment. The differential treatment under these new provisions is therefore consistent with article 26 of the ICCPR as the new provisions are reasonable, proportionate and justifiable to ensure the maintenance of the integrity of Australia’s aviation security environment.

Schedule 2: Screening officer training

12.       These new provisions create the power in the Aviation Act and Maritime Act for the Secretary to vary or exempt classes of people from elements of the accreditation, training and qualification requirements. These engage with article 26 of the ICCPR because the provisions potentially allow for differential treatment of screening officers. This differential treatment is required to allow flexibility based on circumstances and to ensure there are no gaps within the Australian maritime and aviation security environment. As such, the differential treatment under these provisions is reasonable, proportionate and justifiable to ensure the integrity of screening can be maintained across Australia with sufficient flexibility to adapt to changes to the aviation and maritime security environment.

Conclusion

13.       The Bill is compatible with human rights because it will assist to maintain the integrity of Australia’s aviation and maritime security. To the extent that the Bill may limit human rights, those limitations are reasonable, necessary and proportionate.

 

Hon Peter Dutton MP, Minister for Immigration and Border Protection