AVIATION LEGISLATION AMENDMENT (2008 MEASURES NO. 2) BILL 2008

i Aviation Legislation Amendment (2008 Measures No. 2) Bill 2008 No. , 2008

Contents

Short title ............................................................................................ 1

Commencement .................................................................................. 1

Schedule(s) ......................................................................................... 2

Schedule 1--Amendme nts

Part 1--Amendment of the Aviation Transport Security Act

2004

Part 2--Amendment of the Civil Aviation Act 1988

Part 3--Amendment of the Transport Safety Investigation Act

2003

Part 4--Application and savings provisions

Aviation Legislation Amendment (2008 Measures No. 2) Bill 2008 No. , 2008 1

A Bill for an Act to amend legislation relating to

aviation, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Aviation Legislation Amendment

(2008 Measures No. 2) Act 2008.

2 Commence ment

(1) Each provision of this 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.

2 Aviation Legislation Amendment (2008 Measures No. 2) Bill 2008 No. , 2008

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day on which this Act receives the

Royal Assent.

2. Schedule 1,

Part 1

The day on which this Act receives the

Royal Assent.

3. Schedule 1,

Part 2

1 Ju ly 2009.

1 Ju ly 2009

4. Schedule 1,

Part 3

1 Ju ly 2009.

1 Ju ly 2009

5. Schedule 1,

Part 4

The day on which this Act receives the

Royal Assent.

Note:

This table relates only to the provisions of this Act as originally

passed by both Houses of the Parliament and assented to. It will not be

expanded to deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not

part of this Act. Information in this column may be added to or

edited in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Amend ments Schedule 1

Amend ment of the Aviation Transport Security Act 2004 Part 1

Aviation Legislation Amendment (2008 Measures No. 2) Bill 2008 No. , 2008 3

Schedule 1

Amendments

Part 1

Amendment of the Aviation Transport

Security Act 2004

1 Section 4 (seventh paragraph)

After "security compliance information", insert "and aviation security

information".

2 Section 9

Insert:

Agency Head has the same meaning as in the Public Service Act

1999.

3 Section 9

Insert:

aviation security information has the meaning given by subsection

111(1).

4 Section 9

Insert:

national security has the same meaning as in the National Security

Information (Criminal and Civil Proceedings) Act 2004.

5 Section 9

Insert:

SES Band 3 employee has the meaning given by subsection

127A(4).

6 At the end of section 108

Add:

Division 3 gives the Secretary the power to require aviation

security information but limits the use of the information in certain

proceedings.

Schedule 1 A mendments

Part 1 A mend ment of the Aviation Transport Security Act 2004

4 Aviation Legislation Amendment (2008 Measures No. 2) Bill 2008 No. , 2008

7 At the end of Part 7

Add:

Division 3--Secretary may require aviation security

information

111 Secretary may require aviation security information

(1) Information that is not security compliance information and is

prescribed by the regulations for the purposes of this section is

aviation security information.

(2) Without limiting the kinds of information that may be prescribed

by regulations made under subsection (1), the regulations may

prescribe the following kinds of information as aviation security

information:

(a) statistics relating to the screening of people, vehicles, goods

or cargo for entry to cleared areas or cleared zones;

(b) statistics relating to the people, vehicles, goods or cargo that

go through a screening process and:

(i) receive clearance as a result of going through the

screening process; or

(ii) do not receive clearance as a result of going through the

screening process and the reason or reasons for not

receiving clearance;

to ensure that people, vehicles, goods or cargo that have not

received clearance are not in cleared areas or cleared zones;

(d) information about activities undertaken, or to be undertaken,

at an airport for the purposes of safeguarding against

unlawful interferences with aviation;

(e) information about the controls that apply, or will apply, to

airside areas, airside security zones, airside event zones,

landside areas, landside security zones or landside event

zones.

(3) If the Secretary believes, on reasonable grounds, that an aviation

industry participant has aviation security information, the Secretary

may, by written notice given to the participant, require the

participant to give the information to the Secretary.

Amend ments Schedule 1

Amend ment of the Aviation Transport Security Act 2004 Part 1

Aviation Legislation Amendment (2008 Measures No. 2) Bill 2008 No. , 2008 5

(4) The information must be given within the period and in the form

and manner specified in the notice. The period must not be less

than 14 days.

(5) Without limiting subsection (4), the Secretary may specify in the

notice any one or more of the following ways for the participant to

give the information:

(a) orally;

(b) in writing;

(6) A person commits an offence if the person fails to comply with a

notice under subsection (3).

Penalty for an offence against this subsection: 45 penalty units.

112 Self-incrimination

(1) A person is not excused from giving aviation security information

under section 111 on the ground that the information might tend to

incriminate the person or expose the person to a penalty.

(2) However, if the person is a natural person:

(a) the information; and

(b) the giving of the information; and

indirect consequence of giving the information;

are not admissible in evidence against the person in a criminal

proceeding, or any other proceeding for the recovery of a penalty,

other than a proceeding under section 137.1 or 137.2 of the

Criminal Code that relates to the giving of the information.

8 Subsection 127(1)

Repeal the subsection, substitute:

(1) The Secretary may, by writing, delegate all or any of his or her

powers and functions under this Act to a person of the following

kind:

(a) an SES employee, or acting SES employee, in the

Department;

(b) the Agency Head of an Agency that carries on activities that

relate to national security.

Schedule 1 A mendments

Part 1 A mend ment of the Aviation Transport Security Act 2004

6 Aviation Legislation Amendment (2008 Measures No. 2) Bill 2008 No. , 2008

(1A) However, a delegation under paragraph (1)(b) has no effect unless

the Agency Head of the Agency agrees to the delegation.

9 After section 127

Insert:

127A Sub-delegation

(1) If the Secretary delegates a power or function to the Agency Head

of an Agency under paragraph 127(1)(b), the Agency Head may,

by writing, sub-delegate the power or function to an SES Band 3

employee in the Agency.

(2) Sections 34AA, 34AB and 34A of the Acts Interpretation Act 1901

apply in relation to the sub-delegation in a corresponding way to

the way in which they apply to a delegation.

(3) In exercising powers or functions under a sub-delegation, the

delegate must comply with any directions of the Agency Head of

the Agency.

(4) An SES Band 3 employee is an SES employee with a classification

of Senior Executive Band 3, and includes an SES employee who

has been temporarily assigned duties that have been allocated a

classification of Senior Executive Band 3.

Amend ments Schedule 1

Amend ment of the Civil Aviation Act 1988 Part 2

Aviation Legislation Amendment (2008 Measures No. 2) Bill 2008 No. , 2008 7

Part 2

Amendment of the Civil Aviation Act 1988

10 Before paragraph 32AP(3)(a)

Insert:

(aa) copying or disclosure that is necessary for the purposes of

checking whether equipment used to make a cockpit voice

recording is functioning and reliable, provided the conditions

set out in subsection (3A) are met; or

11 After subsection 32AP(3)

Insert:

(3A) The conditions that must be met for the purposes of

paragraph (3)(aa) are:

(a) the person who copies or discloses the CVR information for

the purposes of checking the equipment is authorised to do so

under the regulations; and

(b) that person honestly and reasonably believes on the

information available to him or her that:

(i) the cockpit voice recording does not relate to a

reportable matter (as defined for the purposes of the

Transport Safety Investigation Act 2003); and

(ii) the cockpit voice recording does not relate to an offence

under the law of the Commonwealth, or of a State or

Territory; and

(iii) the crew members in relation to the CVR information

were notified in writing, before the cockpit voice

recording was made, of the intention to copy or disclose

the CVR information for the purposes of checking

whether the equipment used to make the recording is

functioning and reliable.

Schedule 1 A mendments

Part 3 A mend ment of the Transport Safety Investigation Act 2003

8 Aviation Legislation Amendment (2008 Measures No. 2) Bill 2008 No. , 2008

Part 3

Amendment of the Transport Safety

Investigation Act 2003

12 Section 3

Before "In", insert "(1)".

13 At the end of section 3

Add:

(2) Regulations made for the purposes of the definition of immediately

reportable matter or routine reportable matter may prescribe the

matter by applying, adopting or incorporating, with or without

modification, any matter contained in any other instrument or

writing as in force from time to time.

14 Section 9

Repeal the section.

15 Subsection 18(1)

Omit "and by the means prescribed by the regulations", substitute ", by

the means prescribed by the regulations and including those of the

particulars prescribed by the regulations that are known to the

responsible person".

16 Subsection 18(1) (penalty)

Repeal the penalty, substitute:

Penalty: Imprisonment for 12 months.

17 Subsection 18(2)

Repeal the subsection, substitute:

(2) Subsection (1) does not apply if the person believes, on reasonable

grounds, that another responsible person has, or other responsible

persons have, already reported the matter, or will as soon as is

reasonably practicable report the matter, to a nominated official

with all the particulars prescribed by the regulations.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (2). See subsection 13.3(3) of the Criminal Code.

Amend ments Schedule 1

Amend ment of the Transport Safety Investigation Act 2003 Part 3

Aviation Legislation Amendment (2008 Measures No. 2) Bill 2008 No. , 2008 9

18 Paragraph 18(3)(b)

After "has already reported", insert ", or will as soon as is reasonably

practicable report,".

19 Subsection 19(1) (penalty)

Repeal the penalty, substitute:

Penalty: 30 penalty units.

20 At the end of section 19

Add:

(4) The Executive Director may, by notice in writing to a responsible

person, require the person to give the Executive Director a written

report in relation to an immediately reportable matter or a routine

reportable matter within the period specified in the notice, by the

means prescribed and including the particulars prescribed by the

regulations.

(5) The Executive Director must not require a responsible person to

give a report under subsection (4) unless either:

(a) the Executive Director is satisfied that:

(i) the person has knowledge of the immediately reportable

matter or routine reportable matter; but

(ii) the person is one to whom subsection (1) does not apply

because of the operation of subsection (2) or (3); or

(b) the Executive Director is satisfied that:

(i) the person is one to whom subsection (1) applies despite

the operation of subsection (2) or (3); and

(ii) the person may have information that was not

communicated in a report given under subsection (1).

(6) The responsible person must comply with the notice.

Penalty: 30 penalty units.

(7) A prosecution of a person for an offence against subsection (1)

may be commenced at any time within 6 years after the

commission of the offence.

21 Subsection 24(1) (penalty)

Schedule 1 A mendments

Part 3 A mend ment of the Transport Safety Investigation Act 2003

10 Aviation Legislation Amendment (2008 Measures No. 2) Bill 2008 No. , 2008

Repeal the penalty, substitute:

Penalty: Imprisonment for 12 months.

22 Subsections 26(2), 29(3), 32(5) and 36(5)

Omit "Maximum penalty", substitute "Penalty".

23 Section 37

Omit "Maximum penalty", substitute "Penalty".

24 Subsections 42(1), 42(4), 43(3), 44(2), 53(1), 53(2), 59(5),

60(1), 60(2) and 60(3)

Omit "Maximum penalty", substitute "Penalty".

Amend ments Schedule 1

Application and savings provisions Part 4

Aviation Legislation Amendment (2008 Measures No. 2) Bill 2008 No. , 2008 11

Part 4

Application and savings provisions

25 Application of amendments of section 127 of the Aviation

Transport Security Act 2004

A delegation to an SES employee, or acting SES employee in force,

immediately before the commencement of this item, under section 127

of the Aviation Transport Security Act 2004 (as in force immediately

before the commencement of this item) has effect after that

commencement as if it were a delegation to the SES employee, or the

acting SES employee, under that section as amended by item 8 of this

Schedule.

26 Application of Part 2 of this Schedule

The amendments made by Part 2 of this Schedule apply to copying or

disclosure that occurs on or after the commencement of that Part.

27 Application of amendments of section 18 of the Transport

Safety Investigation Act 2003

The amendments made by items 15 to 18 apply in relation to

immediately reportable matters that occur on or after the

commencement of Part 3 of this Schedule.

28 Application of amendments of section 19 of the Transport

Safety Investigation Act 2003

The amendments made by items 19 and 20 apply in relation to

immediately reportable matters and routine reportable matters that occur

on or after the commencement of Part 3 of this Schedule.

29 Application of amendment of section 24 of the Transport

Safety Investigation Act 2003

The amendment made by item 21 applies in relation to conduct engaged

in on or after the commencement of Part 3 of this Schedule.

Commonwealth of Australia Bills

AVIATION LEGISLATION AMENDMENT (2008 MEASURES NO. 2) BILL 2008