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Transport Security Amendment (Testing and Training) Bill 2020

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2019 - 2020

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

SENATE

 

TRANSPORT SECURITY AMENDMENT (TESTING AND TRAINING) BILL 2019

(Amendments to be moved on behalf of the Government)

 

supplementary

explanatory memorandum

 

 

 

(Circulated by authority of the Minister for Home Affairs,

 the Honourable Peter Dutton MP)

 







 

Transport Security Amendment (Testing and Training) Bill 2019

OUTLINE

The government amendments described in this supplementary explanatory memorandum respond to concerns raised by the Senate Standing Committee for the Scrutiny of Bills in Scrutiny Digest No. 1 , dated 5 February 2020, and to concerns raised by three members of the Senate Standing Committee on Legal and Constitutional Affairs in its Report on the Transport Security Amendment (Testing and Training) Bill 2019, dated 19 February 2020.

 

Specifically, the government amendments to the Transport Security Amendment (Testing and Training) Bill 2019 (the Bill) will:

·          introduce the term ‘test weapon’ and provide a clear meaning by defining the term;

·          substitute the term ‘test weapon’ for the word ‘weapon’ in Item 2 and Item 12 of Schedule 1 to the Bill; and

·          insert new guiding notes that make clear that aviation security inspectors must ensure that the exercise of the power under paragraph 79(2)(h) or 80(2)(f) (inserted by Items 2 and 12 of Schedule 1 to the Bill) does not seriously endanger the health or safety of any person, or the inspector will not be immune from civil or criminal liability; and

·          insert new reporting requirements to provide Parliamentary oversight of the use of the Secretarial powers to exempt a class of screening officers from one or more training or qualification requirements.

Test Weapons

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 weapons’ which replicate or imitate other weapons that are prohibited from being taken on board screened air services. Test weapons, by design, are non-functional or not operational and do not cause harm. Test activities using test weapons are coordinated by the Department of Home Affairs with local law enforcement agencies.

Parliamentary oversight

 

The power to exempt a class of screening officers from training or qualification requirements is intended to meet unanticipated and unavoidable needs. The exemptions are explicitly not intended for use in any circumstance other than the exceptional.

 

To address concerns regarding Parliamentary oversight of the use of the Secretarial power to exempt a class of screening officers from one or more training or qualification requirements (set out in Items 8 and 18 of Schedule 2 to the Bill),   the number of exemptions issued by the Secretary for these purposes are to be included in the Department of Home Affairs' annual report.

FINANCIAL impact statement

The government amendments to the Bill have no revenue impact over the forward estimates period.

 

Statement of Compatibility with Human Rights

The government amendments to the Bill are 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

The government amendments to the Bill include amendments to the Aviation Transport Security Act 2004 (Aviation Act).

The government amendments are the addition of a clarifying definition, substitutions of the new defined term and guiding notes, and reporting obligations.

Human rights implications

The amendments do not alter the engagement of the human rights and freedoms set out in the Statement of Compatibility with Human Rights in the explanatory memorandum to the Bill.

Conclusion

These amendments are compatible with human rights because they will assist to maintain the integrity of Australia’s aviation and maritime security.



 

Notes on amendments to Schedule 1

Amendment (1)

Item 1A                      Section 9

1.                   This amendment adds new Item 1A to Schedule 1 to the Transport Security Amendment (Testing and Training) Bill 2019.

 

2.                   New Item 1A is an interpretive provision that inserts a new definition in section 9 of Division 4 of Part 1 of the Aviation Transport Security Act 2004 (the Aviation Act) in relation to the term ‘test weapon’. 

 

3.                   Test weapon is defined to mean a weapon of a kind that is a replica or an imitation of another weapon. The term ‘weapon’ is defined elsewhere in section 9 of the Aviation Act.  Both definitions may be read together.

4.                   To safeguard against an unlawful interference with aviation, weapons are prohibited from being taken on-board, or loaded onto, an aircraft. Aviation industry participants have security systems in place to, among other things, identify and locate concealed weapons. The efficacy of these security systems are tested by aviation security inspectors in the course of their duties.

5.                   The Department issues aviation security inspectors with a variety of objects to conduct testing of security systems. Security system testing mimics possible terrorist attack pathways. The use of the Department issued objects probes for potential weak points in aviation security arrangements, so that any weak points can be addressed and any gaps identified by the security system tests may be closed to maintain aviation security.

6.                   To ensure security systems tests are as realistic as possible, use a variety of objects to conduct testing of security systems. These objects can be ordinary, everyday objects or ‘test weapons’. Aviation security inspectors use ‘test weapons’ to test a security system for its ability to detect weapons. Test weapons are issued to aviation security inspectors by the Department and, by design, test weapons are non-functional or not operational as the weapon they are intended to replicate or imitate in order to avoid causing harm or injury. 

7.                   The purpose and effect of this amendment is to clarify that an object used to test a security system is not a functional weapon but is a replica or imitation.

 

Amendment (2)

8.                      This amendment omits the word “weapon” and substitutes the words “test weapon” in Item 2 of Schedule 1 to the Bill, which adds new paragraph 79(2)(h). This amendment is consequential to Amendment (1).

9.                      The purpose of this amendment is include the term defined by new Item 1A above.

 

10.                  The effect of this amendment is provide that an aviation security inspector may test a security system including by using an item, test weapon, or vehicle. 

 

Amendment (3)

11.                  This amendment inserts a new Note after new paragraph 79(2)(h) ( Item 2 of Schedule 1 to the Transport Security Amendment (Testing and Training) Bill 2019).

12.                  The new Note provides that an aviation security inspector must ensure that the exercise of the power under paragraph 79(2)(h) does not seriously endanger the health or safety of any person, or the inspector will not be immune from civil or criminal liability (see subsection 79(9)).

13.                  Subsection 79(9) operates to provide aviation security inspectors with a limited immunity from prosecution. That immunity would not be available to an aviation security inspector if the defence was not made out. As an example, this would be the case if a ‘real’ weapon was used to conduct a security systems test.

14.                  The purpose and effect of this amendment is to make clear that if an aviation security inspector were to seriously endanger the health or safety of any person, for example by sourcing and using an item that was a functional weapon to test a security system, they may be charged with an offence under another law of the Commonwealth, the States or Territories.

 

Amendment (4)

15.               This amendment omits the word “weapon” and substitutes the words “test weapon” in Item 12 of Schedule 1 to the Bill, which adds new paragraph 80(2)(f) . This amendment is consequential to Amendment (1).

 

16.               The purpose of this amendment is include the term defined by new Item 1A above.

 

17.               The effect of this amendment is that new paragraph 80(2)(f) provides that an aviation security inspector may test a security system including by using an item, or a test weapon

 

Amendment (5)

18.               This amendment inserts a new Note after new paragraph 80(2)(f) ( Item 12 of Schedule 1 to the Bill).

19.               The new Note provides that an aviation security inspector must ensure that the exercise of the power under paragraph 80(2)(f) does not seriously endanger the health or safety of any person, or the inspector will not be immune from civil or criminal liability (see subsection 80(7)).

20.               Subsection 80(7) operates to provide aviation security inspectors with a limited immunity from prosecution. That immunity would not be available to an aviation security inspector if the defence was not made out. As an example, this would be the case if a ‘real’ weapon was used to conduct a security systems test.

21.               The purpose and effect of this amendment is to make clear that if an aviation security inspector were to seriously endanger the health or safety of any person, for example by sourcing and using an item that was a functional weapon to test a security system, they may be charged with an offence under another law of the Commonwealth, the States or Territories.

 

 

Notes on amendments to Schedule 2

Amendment (6)

 

22.               This amendment inserts new section 94D - Report on number of exemptions.  New section 94D provides that the annual report pre pared by the Secretary and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 for a period must include the number of exemptions given by the Secretary under subsection 94B(1) in that period.

 

23.               This amendment would provide Parliamentary oversight of the use of the Secretarial power to exempt a class of screening officers from one or more training or qualification requirements set out in section 94B of the Aviation Act.

 

24.               The power to exempt a person from training or qualification requirements is intended to meet unanticipated and unavoidable needs, for example, where a training course cannot be offered in a particular locality for a short period of time, or in an emergency situation so that a port can continue to operate. The exemptions are explicitly not intended for use in any circumstance other than the exceptional.

 

25.               As the powers are only to be exercised in exceptional circumstances, large numbers of exemptions are not anticipated.

 

26.               The effect of this amendment is that Parliament would have some oversight of

the exercise of the exemption, to the extent that the number of exemptions issued by the Secretary for these purposes are to be included in the Department of Home Affairs' annual report.

 

Amendment (7)

 

27.               This amendment inserts new section 165D - Report on number of exemptions.  New section 165D provides that the annual report pre pared by the Secretary and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 for a period must include the number of exemptions given by the Secretary under subsection 165B(1) in that period.

 

28.               This amendment would provide Parliamentary oversight of the use of the Secretarial power to exempt a class of screening officers from one or more training or qualification requirements set out in section 165B of the Maritime Transport and Offshore Facilities Security Act 2003 ( Maritime Act).

 

29.               The power to exempt a person from training or qualification requirements is intended to meet unanticipated and unavoidable needs, for example, where a training course cannot be offered in a particular locality for a short period of time, or in an emergency situation so that a port can continue to operate. The exemptions are explicitly not intended for use in any circumstance other than the exceptional.

 

30.               As the powers are only to be exercised in exceptional circumstances, large numbers of exemptions are not anticipated.

 

31.               The effect of this amendment is that Parliament would have some oversight of

the exercise of the exemption, to the extent that the number of exemptions issued by the Secretary for these purposes are to be included in the Department of Home Affairs' annual report.