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This is a Bill, not an Act. For current law, see the Acts databases.
2002-2003
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Aviation
Transport Security Bill 2003
No. ,
2003
(Transport and Regional
Services)
A Bill for an Act to safeguard
against unlawful interference with aviation, and for related
purposes
Contents
A Bill for an Act to safeguard against unlawful
interference with aviation, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Aviation Transport Security Act
2003.
(1) Each provision of this Act specified in column 1 of the table
commences, or is taken to have commenced, on the day or at the time specified in
column 2 of the table.
|
Commencement information |
||
|---|---|---|
|
Column 1 |
Column 2 |
Column 3 |
|
Provision(s) |
Commencement |
Date/Details |
|
1. Sections 1 and 2 and anything in this Act not elsewhere covered by
this table |
The day on which this Act receives the Royal Assent |
|
|
2. Sections 3 to 133 |
A single day to be fixed by Proclamation, subject to
subsection (3) |
|
Note: This table relates only to the provisions of this Act
as originally passed by 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 is for additional information that is not part
of this Act. This information may be included in any published version of this
Act.
(3) If a provision covered by item 2 of the table does not commence
within the period of 12 months beginning on the day on which this Act receives
the Royal Assent, it commences on the first day after the end of that
period.
(1) The main purpose of this Act is to establish a regulatory framework to
safeguard against unlawful interference with aviation.
(2) To achieve this purpose, this Act establishes minimum security
requirements for civil aviation in Australia by imposing obligations on persons
engaged in civil aviation related activities. In particular, it obliges certain
aviation industry participants to develop, and comply with, aviation security
programs.
(3) The role of the Secretary under this Act is to regulate those aviation
industry participants.
(4) Another purpose of this Act is to meet Australia’s obligations
under the Convention on International Aviation (also known as the Chicago
Convention).
Note: The Chicago Convention is set out in the Air
Navigation Act 1920.
This Act establishes a number of mechanisms to safeguard against unlawful
interference with aviation.
Part 2 requires aviation industry participants to have in place
approved transport security programs. Such programs must detail how the
participants will manage security for their operations.
Part 3 allows the Secretary to designate airports as security
controlled airports and to establish airside and landside areas and security
zones for those airports. Once established, the areas and zones are subject to
requirements directed at safeguarding against unlawful interference with
aviation.
Part 4 deals with a number of specific security measures, including
screening, on-board security, persons in custody and offences in relation to
weapons and prohibited items. It also allows the Secretary to give special
directions in circumstances that require security measures beyond those
otherwise provided.
Part 5 establishes the powers of officials acting under the Act. These
officials are aviation security inspectors, law enforcement officers, airport
security guards and screening officers.
Part 6 establishes reporting obligations in relation to aviation
security incidents.
Part 7 provides the Secretary with access to information for security
purposes and establishes controls on the use of that information.
Part 8 provides a range of enforcement mechanisms. These are
infringement notices, enforcement orders, injunctions and a demerit points
system.
Part 9 provides for the review of certain decisions by the
Administrative Appeals Tribunal.
Part 10 deals with miscellaneous matters.
This Act extends to every external Territory.
Section 15.2 of the Criminal Code (extended geographical
jurisdiction—category B) applies to an offence against this Act.
(1) This Act binds the Crown in each of its capacities.
(2) This Act does not make the Crown liable to be prosecuted for an
offence.
(1) Unless the contrary intention appears, this Act does not apply to, or
in relation to:
(a) a state aircraft; or
(b) an aircraft that is leased to or chartered by, or is otherwise under
the operational control of, the Australian Defence Force.
(2) A reference in this Act to an aviation industry participant does not
include a reference to the Australian Defence Force.
In this Act, unless the contrary intention appears:
acquisition of property has the same meaning as in paragraph
51(xxxi) of the Constitution.
aircraft has the same meaning as in the Civil Aviation Act
1988.
aircraft operator means a person who conducts, or offers to
conduct, an air service.
airport has the meaning given by subsection 28(1).
airport operator means the operator of an airport.
airport security guard has the meaning given by subsection
91(1).
air service means a service of providing air transportation
of people or goods, or both people and goods.
Airservices Australia means the body established by
subsection 7(1) of the Air Services Act 1995.
airside area means an airside area established under
subsection 29(1) and includes any airside security zone established within the
airside area.
airside security zone means an airside security zone
established under subsection 30(1).
aviation industry participant means:
(a) an airport operator; or
(b) an aircraft operator; or
(c) a regulated air cargo agent; or
(d) a person who occupies or controls an area of an airport (whether under
a lease, sublease or other arrangement); or
(e) a person (other than an aviation security inspector) appointed by the
Secretary under this Act to perform a security function; or
(f) a contractor who provides services to a person mentioned in
paragraphs (a) to (e).
Note: The Australian Defence Force cannot be an aviation
industry participant: see subsection 8(2).
aviation security inspector means a person appointed under
subsection 77(1).
baggage means any article or possession of a passenger of an
aircraft, or crew member of an aircraft, that is to be carried on board that
aircraft.
cargo means goods, other than baggage or stores, that are
transported, or intended to be transported, by aircraft.
CASA has the same meaning as in the Civil Aviation Act
1988.
cleared:
(a) in relation to a person, has the meaning given by subsection 41(3);
and
(b) in relation to goods, has the meaning given by subsection 42(3);
and
(c) in relation to a vehicle, has the meaning given by subsection
43(3).
cleared aircraft: an aircraft is a cleared
aircraft if, under regulations made under Division 2 of
Part 4, the only passengers who are allowed to board the aircraft are
passengers who are cleared.
cleared area means an area that, under regulations made under
Part 3 or 4, may be entered only by persons who have received
clearance.
cleared zone means a zone that, under regulations made under
Part 3 or 4, may be entered only by persons who have received
clearance.
confidentiality requirements has the meaning given by
subsection 68(2).
critical facility has the meaning given by subsection
31(3).
critical structure has the meaning given by subsection
31(4).
damage, in relation to data, includes damage by erasure of
data or addition of other data.
Departmental official means a person acting in the course of
his or her duties as:
(a) the Secretary; or
(b) an APS employee in the Department.
employee, in relation to an aviation industry participant,
means an individual:
(a) employed by the aviation industry participant; or
(b) engaged under a contract for services between the individual and the
aviation industry participant.
enforcement order means an order made under
section 119.
engage in conduct has the same meaning as in the Criminal
Code.
excepted circumstances, in relation to protected information,
has the meaning given by subsection 113(2).
Federal Court means the Federal Court of Australia.
frisk search has the same meaning as in the Crimes Act
1914.
in flight has the same meaning as in the Crimes (Aviation)
Act 1991.
in service, in relation to an aircraft, has the same meaning
as in Article 2 of the Montreal Convention.
joint-user area has the meaning given by subsection
28(5).
just terms has the same meaning as in paragraph 51(xxxi) of
the Constitution.
landside area has the meaning given by subsection 29(3) and
includes any landside security zone established within the landside
area.
landside security zone means a landside security zone
established under subsection 32(1).
law enforcement officer has the meaning given by
section 82.
Montreal Convention has the same meaning as in the Crimes
(Aviation) Act 1991.
ordinary search has the same meaning as in the Crimes Act
1914.
passenger includes an intending passenger.
person in custody has the meaning given by
section 64.
person with incident reporting responsibilities
has the meaning given by subsection 102(4).
pilot in command, in relation to an aircraft, means the pilot
responsible for the operation and safety of the aircraft during the flight of
the aircraft.
prescribed aircraft means an aircraft that:
(a) is being used for a prescribed air service; or
(b) is regularly used for prescribed air services.
prescribed air service means an air service prescribed in the
regulations for the purposes of this definition.
prohibited item means an item that:
(a) could be used for unlawful interference with aviation; and
(b) is prescribed in the regulations for the purposes of this
definition.
protected information has the meaning given by subsection
111(1).
protected person has the meaning given by subsection
111(1).
receive clearance:
(a) in relation to a person, has the meaning given by subsection 41(2);
and
(b) in relation to goods, has the meaning given by subsection 42(2);
and
(c) in relation to a vehicle, has the meaning given by subsection
43(2).
regulated air cargo agent means a person designated as a
regulated air cargo agent in accordance with regulations made under
section 44.
screened:
(a) in relation to a person, has the meaning given by subsection 41(1);
and
(b) in relation to goods, has the meaning given by subsection 42(1);
and
(c) in relation to a vehicle, has the meaning given by subsection
43(1).
screening officer has the meaning given by subsection
94(1).
screening point means a place where screening
occurs.
Secretary means the Secretary of the Department.
security compliance information means information that
relates to compliance, or a failure to comply, with this Act.
security controlled airport has the meaning given by
subsection 28(2).
special security direction has the meaning given by
subsection 67(2).
state aircraft has the same meaning as in the Air
Navigation Act 1920.
stores means items that are to be carried on board an
aircraft for use, sale or consumption on the aircraft.
this Act includes the regulations.
threaten: a person is taken to threaten to do
an act if the person makes a statement, or does anything else, showing, or from
which it could reasonably be inferred, that it is his or her intention to do the
act.
transport security program means a program prepared for the
purposes of Part 2.
unlawful interference with aviation has the meaning given by
section 10.
vehicle does not include an aircraft.
weapon means:
(a) a firearm of any kind; or
(b) a thing prescribed by the regulations to be a weapon; or
(c) a device that, except for the absence of, or a defect in, a part of
the device, would be a weapon of a kind mentioned in paragraph (a) or (b);
or
(d) a device that is reasonably capable of being converted into a weapon
of a kind mentioned in paragraph (a) or (b).
Any of the following done without lawful authority is an unlawful
interference with aviation:
(a) taking control of an aircraft by force, or threat of force, or any
other form of intimidation;
(b) destroying an aircraft that is in service;
(c) causing damage to an aircraft that is in service that puts the safety
of the aircraft, or any person on board or outside the aircraft, at
risk;
(d) doing anything on board an aircraft that is in service that puts the
safety of the aircraft, or any person on board or outside the aircraft, at
risk;
(e) placing, or causing to be placed, on board an aircraft that is in
service anything that puts the safety of the aircraft, or any person on board or
outside the aircraft, at risk;
(f) putting the safety of aircraft at risk by interfering with, damaging
or destroying air navigation facilities;
(g) putting the safety of an aircraft at risk by communicating false
information;
(h) committing an act at an airport, or causing any interference or
damage, that puts the safe operation of the airport, or the safety of any person
at the airport, at risk.
Various aviation industry participants are required to have, and comply
with, transport security programs. This is dealt with in
Division 2.
Various other persons are required to comply with the transport security
programs of aviation industry participants. This is dealt with in
Division 3.
The content and form of transport security programs is dealt with in
Division 4.
The approval of transport security programs by the Secretary is dealt with
in Division 5. That Division also deals with the variation and revision of
programs, and with the cancellation of the approval of programs.
The following aviation industry participants are required to have a
transport security program:
(a) an operator of a security controlled airport;
(b) an operator of a prescribed air service;
(c) a participant of a kind prescribed in the regulations.
(1) An aviation industry participant commits an offence if:
(a) the participant is required under section 12 to have a transport
security program; and
(b) the participant operates as a participant of that kind; and
(c) there is no transport security program in force for the
participant.
Penalty: For an airport operator or an aircraft operator—200 penalty
units.
For an aviation industry participant, other than an airport operator or an
aircraft operator—100 penalty units.
(2) Subsection (1) does not apply if the participant has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(3) Subsection (1) is an offence of strict liability.
(1) An aviation industry participant commits an offence if:
(a) there is a transport security program for the participant in force;
and
(b) the participant fails to comply with the program.
Penalty: For an airport operator or an aircraft operator—200 penalty
units.
For an aviation industry participant, other than an airport operator or an
aircraft operator—100 penalty units.
(2) Subsection (1) does not apply if the participant has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(3) Subsection (1) is an offence of strict liability.
(1) An aviation industry participant must not engage in conduct that
hinders or obstructs compliance with the transport security program of another
aviation industry participant.
(2) If:
(a) a transport security program for an aviation industry participant
covers the activities of another aviation industry participant; and
(b) the other participant has been given the relevant parts of the
program;
the other aviation industry participant must take all reasonable steps to
comply with the program.
(3) If an aviation industry participant contravenes subsection (1) or
(2), the participant does not commit an offence but may be subject to an
enforcement order (see section 119) or an injunction under
section 124.
(1) A transport security program for an aviation industry participant must
demonstrate that the participant:
(a) is aware of the participant’s general responsibility to
contribute to the maintenance of aviation security; and
(b) has developed an integrated, responsible and proactive approach to
managing aviation security; and
(c) is aware of, and has the capacity to meet, the specific obligations
imposed on the participant under this Act; and
(d) has taken into account relevant features of the participant’s
operation in developing activities and strategies for managing aviation
security.
(2) A transport security program for an aviation industry participant must
set out the following:
(a) how the participant will manage and co-ordinate aviation security
activities within the participant’s operation;
(b) how the participant will co-ordinate the management of aviation
security with other parties (including Commonwealth agencies) who have
responsibilities for, or are connected with, aviation;
(c) the technology, equipment and procedures to be used by the participant
to maintain aviation security;
(d) how the participant will respond to aviation security
incidents;
(e) the practices and procedures to be used by the participant to protect
security compliance information;
(f) the other aviation industry participants who are covered by, or
operating under, the program;
(g) the consultation that was undertaken, in preparing the program, by the
participant with the other aviation industry participants who are covered by, or
operating under, the program.
(3) The regulations may prescribe other matters that are to be dealt with
in one or more of the following:
(a) each transport security program;
(b) each transport security program for a particular kind of aviation
industry participant;
(c) each transport security program for a particular class of a particular
kind of aviation industry participant.
(1) A transport security program must be:
(a) in writing; and
(b) prepared in accordance with any requirements set out in the
regulations.
(2) A transport security program for an airport operator must be
accompanied by:
(a) a map that shows the airside and landside areas, and any airside
security zones and landside security zones, for the airport; and
(b) if the operator proposes changes to the areas or zones for the
airport—a map that shows the proposed changes.
An aviation industry participant may give the Secretary a transport
security program for the participant and request the Secretary to approve the
program.
(1) If the Secretary is satisfied that the program adequately addresses
the relevant requirements under Division 4, the Secretary must:
(a) approve the program; and
(b) give the operator written notice of the approval.
(2) If the Secretary is not satisfied that the program adequately
addresses the relevant requirements under Division 4, the Secretary
must:
(a) refuse to approve the program; and
(b) give the operator written notice of the refusal.
(3) In determining whether the program adequately addresses the relevant
requirements under Division 4, the Secretary may take account of existing
circumstances as they relate to aviation security.
(4) If:
(a) an aviation industry participant gives the Secretary a transport
security program; and
(b) the Secretary does not approve, or refuse to approve, the program
within the period of 60 days after the program was given;
the Secretary is taken to have refused to approve the program.
(1) If the Secretary approves the transport security program, the program
comes into force at the time specified in the notice of approval.
(2) However, if:
(a) the time specified in the notice is earlier than the time at which the
notice was given; or
(b) no time is specified in the notice as the time when the program comes
into force;
the program comes into force when the notice is given.
(3) The program remains in force until:
(a) the program is replaced under subsection 22(2); or
(b) the approval of the program is cancelled under this
Division.
(1) If:
(a) a transport security program for an aviation industry participant is
in force; and
(b) the Secretary is no longer satisfied that the program adequately
addresses the relevant requirements under Division 4;
the Secretary may, by written notice given to the participant, direct the
participant to vary the program.
(2) However, the Secretary must not give a direction under
subsection (1) unless the Secretary is satisfied that the program, as
varied, would adequately address the relevant requirements under
Division 4.
(3) In the notice, the Secretary must:
(a) set out the variation; and
(b) specify the period within which the participant must give the
Secretary the program as varied.
(4) If the operator does not give the Secretary the program:
(a) varied in accordance with the direction; and
(b) within the specified period, or within any further period allowed by
the Secretary;
the Secretary must, by written notice given to the participant, cancel the
approval of the program.
(1) If:
(a) an aviation industry participant has given the Secretary a transport
security program (the existing program); and
(b) the participant gives the Secretary another transport security program
(the revised program);
sections 19 and 20 apply in relation to the revised program.
(2) If a revised program for an aviation industry participant comes into
force, it replaces any other program for the participant in force at that
time.
(1) If:
(a) a transport security program for an aviation industry participant (the
existing program) is in force; and
(b) the Secretary is no longer satisfied that the program adequately
addresses the relevant requirements under Division 4:
(i) because there is a change in the circumstances that relate to aviation
security; or
(ii) because there is a change in circumstances that could impact on
aviation security; or
(iii) for some other reason;
the Secretary may, by written notice given to the participant, direct the
participant to give the Secretary a revised program under
section 22.
(2) The notice must specify the period within which the revised program
must be given.
(3) If the participant does not give the Secretary the revised program
within the specified period, or within any further period allowed by the
Secretary, the Secretary must, by written notice given to the participant,
cancel the approval of the existing program.
If:
(a) a transport security program for an aviation industry participant (the
existing program) has been in force for a period of 5 years;
and
(b) the Secretary has not approved a revised program for the participant
under section 22 within that period;
the Secretary must, by written notice given to the participant, cancel the
approval of the existing program.
If:
(a) a transport security program for an aviation industry participant is
in force; and
(b) the Secretary is no longer satisfied that the program adequately
addresses the relevant requirements under Division 4; and
(c) the Secretary is satisfied that it is not appropriate to direct the
participant to:
(i) vary the program under section 21; or
(ii) revise the program under section 23;
the Secretary must, by written notice given to the participant, cancel the
approval of the program.
(1) If:
(a) a transport security program for an aviation industry participant is
in force; and
(b) the participant has accumulated the number of demerit points
prescribed by the regulations as the number necessary for the Secretary to be
able to cancel the approval of the program;
the Secretary may, by written notice given to the participant, cancel the
approval of the program.
Note: For the demerit points system, see Division 5 of
Part 8.
(2) Before cancelling the approval of a program under subsection (1),
the Secretary may, by written notice given to the participant, request the
participant to show cause why the approval of the program should not be
cancelled.
The Secretary may designate an airport as a security controlled airport. A
security controlled airport has an airside area and a landside area.
Airside security zones may be established within an airside area, and
landside security zones within a landside area.
Regulations under Division 3 will detail the requirements applying to
airside areas and airside security zones.
Regulations under Division 4 will detail the requirements applying to
landside areas and landside security zones.
(1) An airport is an area of land or water (including any
buildings, installations or equipment situated in the area) intended for use
either wholly or partly in connection with the arrival, departure or movement of
aircraft. It also includes any area that is controlled by the airport operator
that is contiguous with such an area of land or water.
(2) The Secretary may, by notice published in the Gazette, declare
that a particular airport, or a part of a particular airport, is a
security controlled airport.
(3) The notice must include a map of the airport that shows the boundaries
of the security controlled airport.
(4) However, the Secretary must not:
(a) include any area that is controlled exclusively by the Australian
Defence Force within the boundaries of a security controlled airport;
or
(b) include a joint-user area within the boundaries of a security
controlled airport without the agreement of the Secretary of the Department of
Defence.
(5) A joint-user area is an area that is controlled jointly
by the Australian Defence Force and one or more aviation industry
participants.
Airside
(1) A notice published in the Gazette under section 28 must
establish an airside area for the security controlled airport and
show the boundaries of the airside area.
(2) The purpose of an airside area is to control access to operational
areas of a security controlled airport.
Landside
(3) Any other area within the boundaries of the security controlled
airport (as shown on the map published under subsection 28(3)) is the
landside area of the security controlled airport.
(1) The Secretary may, by written notice given to the operator of a
security controlled airport, establish one or more airside security
zones within the airside area of the airport. Each zone must be of a
type prescribed under section 31.
(2) The notice must include a map of the airport that shows the boundaries
of the airside security zones.
(3) The purpose of airside security zones is to subject those zones,
within the airside area of a security controlled airport, to stricter or more
specialised controls than those applying generally to the airside
area.
(1) The regulations may prescribe different types of airside security
zones.
(2) The purposes for which different types of airside security zones may
be prescribed include, but are not limited to, the following:
(a) controlling the movement of people, vehicles and goods within airside
areas;
(b) restricting access to zones within airside areas;
(c) providing cleared zones;
(d) preventing interference with aircraft (including unattended
aircraft);
(e) ensuring the security of the following:
(i) control towers;
(ii) fuel storage areas;
(iii) general aviation areas;
(iv) cargo and baggage handling facilities;
(v) navigational aids;
(vi) critical facilities and critical structures.
(3) A facility is a critical facility if interference with,
or damage to, the facility could put the safe operation of an airport or an
aircraft at risk.
(4) A structure is a critical structure if interference
with, or damage to, the structure could put the safe operation of an airport or
an aircraft at risk.
(1) The Secretary may, by written notice given to the operator of a
security controlled airport, establish one or more landside security
zones within the landside area of the airport. Each zone must be of a
type prescribed under section 33.
(2) The notice must include a map of the airport that shows the boundaries
of the landside security zones.
(3) The purpose of landside security zones is to subject those zones,
within the landside area of a security controlled airport, to stricter or more
specialised controls than those applying generally to the landside
area.
(1) The regulations may prescribe different types of landside security
zones.
(2) The purposes for which different types of landside security zones may
be prescribed include, but are not limited to, the following:
(a) controlling the movement of people, vehicles and goods within landside
areas;
(b) restricting access to zones within landside areas;
(c) providing cleared zones;
(d) preventing interference with aircraft (including unattended
aircraft);
(e) ensuring the security of the following:
(i) control towers;
(ii) fuel storage areas;
(iii) general aviation areas;
(iv) cargo and baggage handling facilities;
(v) navigational aids;
(vi) critical facilities and critical structures.
In establishing an airside area, an airside security zone or a landside
security zone within a security controlled airport, the Secretary must have
regard to the purpose of the area or zone, and take into account:
(a) the views of the airport operator; and
(b) the existing physical features of the airport (including buildings);
and
(c) the existing operational features of the airport.
(1) The regulations may, for the purposes of safeguarding against unlawful
interference with aviation, prescribe requirements in relation to the airside
area of a security controlled airport.
(2) The following matters may be dealt with by regulations made under
subsection (1):
(a) access to the airside area (including conditions of entry, the issue
and use of security passes and other identification systems);
(b) the patrolling of the airside area;
(c) the provision of lighting, fencing and storage facilities;
(d) the identification or marking of the airside area;
(e) the approval of building works within, or adjacent to, the airside
area;
(f) the screening of people, vehicles or goods for entry to the airside
area;
(g) the security checking (including background checking) of persons who
have access to the airside area;
(h) the movement, management or operation of aircraft, vehicles and other
machinery in the airside area;
(i) the maintenance of the integrity of the airside area;
(j) access to aircraft (including unattended aircraft) from the airside
area;
(k) the management of people and goods (including the management of
unaccompanied, unidentified or suspicious goods) in the airside area;
(l) the management (including the sale or disposal) of vehicles or goods
abandoned in the airside area.
(3) Regulations made under this section may prescribe penalties for
offences against those regulations. The penalties must not exceed:
(a) for an offence committed by an airport operator or an aircraft
operator—200 penalty units; or
(b) for an offence committed by an aviation industry participant, other
than a participant covered by paragraph (a)—100 penalty units;
or
(c) for an offence committed by any other person—50 penalty
units.
(1) The regulations may, for the purposes of safeguarding against unlawful
interference with aviation, prescribe requirements in relation to each type of
airside security zone.
(2) The following matters may be dealt with by regulations made under
subsection (1):
(a) access to airside security zones (including conditions of entry, the
issue and use of security passes and other identification systems);
(b) the patrolling of airside security zones;
(c) the provision of lighting, fencing and storage facilities;
(d) the identification or marking of airside security zones;
(e) the approval of building works within, or adjacent to, airside
security zones;
(f) the screening of people, vehicles or goods for entry to airside
security zones;
(g) the security checking (including background checking) of persons who
have access to airside security zones;
(h) the movement, management or operation of aircraft, vehicles and other
machinery in airside security zones;
(i) the maintenance of the integrity of airside security zones;
(j) access to aircraft (including unattended aircraft) from airside
security zones;
(k) the management of people and goods (including the management of
unaccompanied, unidentified or suspicious goods) in airside security
zones;
(l) the management (including the sale or disposal) of vehicles or goods
abandoned in airside security zones.
(3) Regulations made under this section may prescribe penalties for
offences against those regulations. The penalties must not exceed:
(a) for an offence committed by an airport operator or an aircraft
operator—200 penalty units; or
(b) for an offence committed by an aviation industry participant, other
than a participant covered by paragraph (a)—100 penalty units;
or
(c) for an offence committed by any other person—50 penalty
units.
Note: If a body corporate is convicted of an offence against
regulations made under this section, subsection 4B(3) of the Crimes Act
1914 allows a court to impose fines of up to 5 times the penalties stated
above.
(1) The regulations may, for the purposes of safeguarding against unlawful
interference with aviation, prescribe requirements in relation to the landside
area of a security controlled airport.
(2) The following matters may be dealt with by regulations made under
subsection (1):
(a) access to the landside area (including conditions of entry, the issue
and use of security passes and other identification systems);
(b) the patrolling of the landside area;
(c) the provision of lighting, fencing and storage facilities;
(d) the identification or marking of the landside area;
(e) the approval of building works within, or adjacent to, the landside
area;
(f) the screening of people, vehicles or goods for entry to the landside
area;
(g) the security checking (including background checking) of persons who
have access to the landside area;
(h) the movement, management or operation of aircraft, vehicles and other
machinery in the landside area;
(i) the maintenance of the integrity of the landside area;
(j) access to aircraft (including unattended aircraft) from the landside
area;
(k) the management of people and goods (including the management of
unaccompanied, unidentified or suspicious goods) in the landside area;
(l) the management (including the sale or disposal) of vehicles or goods
abandoned in the landside area.
(3) Regulations made under this section may prescribe penalties for
offences against those regulations. The penalties must not exceed:
(a) for an offence committed by an airport operator or an aircraft
operator—200 penalty units; or
(b) for an offence committed by an aviation industry participant, other
than a participant covered by paragraph (a)—100 penalty units;
or
(c) for an offence committed by any other person—50 penalty
units.
Note: If a body corporate is convicted of an offence against
regulations made under this section, subsection 4B(3) of the Crimes Act
1914 allows a court to impose fines of up to 5 times the penalties stated
above.
(1) The regulations may, for the purposes of safeguarding against unlawful
interference with aviation, prescribe requirements in relation to each type of
landside security zone.
(2) The following matters may be dealt with by regulations made under
subsection (1):
(a) access to landside security zones (including conditions of entry, the
issue and use of security passes and other identification systems);
(b) the patrolling of landside security zones;
(c) the provision of lighting, fencing and storage facilities;
(d) the identification or marking of landside security zones;
(e) the approval of building works within, or adjacent to, landside
security zones;
(f) the screening of people, vehicles or goods for entry to landside
security zones;
(g) the security checking (including background checking) of persons who
have access to landside security zones;
(h) the movement, management or operation of aircraft, vehicles and other
machinery in landside security zones;
(i) the maintenance of the integrity of landside security zones;
(j) access to aircraft (including unattended aircraft) from landside
security zones;
(k) the management of people and goods (including the management of
unaccompanied, unidentified or suspicious goods) in landside security
zones;
(l) the management (including the sale or disposal) of vehicles or goods
abandoned in landside security zones.
(3) Regulations made under this section may prescribe penalties for
offences against those regulations. The penalties must not exceed:
(a) for an offence committed by an airport operator or an aircraft
operator—200 penalty units; or
(b) for an offence committed by an aviation industry participant, other
than a participant covered by paragraph (a)—100 penalty units;
or
(c) for an offence committed by any other person—50 penalty
units.
Note: If a body corporate is convicted of an offence against
regulations made under this section, subsection 4B(3) of the Crimes Act
1914 allows a court to impose fines of up to 5 times the penalties stated
above.
In addition to the requirements relating to areas and zones covered in
Part 3, specific requirements are imposed in relation to a range of other
matters. These are covered by this Part.
The matters (and the relevant Divisions) are as follows:
(a) screening and clearing (Division 2);
(b) weapons (Division 3);
(c) prohibited items (Division 4);
(d) on-board security (Division 5);
(e) persons in custody (Division 6);
(f) special security directions (Division 7).
Access to aircraft, areas and zones at an airport may be restricted to
persons, goods and vehicles that have received clearance. Where access is
restricted in this way, the aircraft, area or zone is said to be
cleared.
In most cases, receiving clearance will require going through a screening
process.
The regulations may provide for cargo to be screened by regulated air cargo
agents.
This Division deals with:
(a) requirements for receiving clearance;
(b) requirements and procedures for screening;
(c) requirements in relation to regulated air cargo agents.
(1) A person is screened when the person undergoes screening
in accordance with regulations made under section 44 in preparation
for:
(a) boarding an aircraft; or
(b) entering an area or zone within a security controlled
airport.
(2) A person receives clearance if:
(a) after being screened, the person is allowed, by a screening officer,
to pass through the screening point; or
(b) the person passes through the screening point and the regulations
provide, or the Secretary by written notice provides, that the person may pass
through that screening point without being screened; or
(c) the person enters a cleared area, a cleared zone or a cleared aircraft
other than through a screening point and the regulations provide, or the
Secretary by written notice provides, that the person may enter the area, zone
or aircraft that way.
(3) A person is cleared at a particular time if:
(a) the person has received clearance; and
(b) since receiving clearance, the person has at all times been in a
cleared area, a cleared zone or a cleared aircraft.
(4) For the purposes of paragraph (3)(b), a person is taken to be in
a cleared area or cleared zone if the person is under the supervision or control
prescribed in the regulations.
(5) To avoid doubt:
(a) a notice under paragraph (2)(b) may provide that a class of
persons may pass through a screening point without being screened; and
(b) a notice under paragraph (2)(c) may provide that a class of
persons may enter a cleared area, a cleared zone or a cleared aircraft other
than through a screening point.
(1) Goods (including baggage and cargo) are screened when
the goods undergo screening in accordance with regulations made under
section 44 in preparation for:
(a) being taken on board an aircraft; or
(b) being taken into an area or zone within a security controlled
airport.
(2) Goods receive clearance if:
(a) after being screened, the goods are allowed, by a screening officer,
to pass through the screening point; or
(b) the goods pass through the screening point and the regulations
provide, or the Secretary by written notice provides, that the goods may pass
through that screening point without being screened; or
(c) the goods enter a cleared area, a cleared zone or a cleared aircraft
other than through a screening point and the regulations provide, or the
Secretary by written notice provides, that the goods may enter the area, zone or
aircraft that way.
(3) Goods are cleared at a particular time if:
(a) the goods have received clearance; and
(b) since receiving clearance, the goods have at all times been in a
cleared area, a cleared zone or a cleared aircraft.
(4) For the purposes of paragraph (3)(b), goods are taken to be in a
cleared area or cleared zone if the goods are under the supervision or control
prescribed in the regulations.
(5) To avoid doubt:
(a) a notice under paragraph (2)(b) may provide that a class of goods
may pass through a screening point without being screened; and
(b) a notice under paragraph (2)(c) may provide that a class of goods
may enter a cleared area, a cleared zone or a cleared aircraft other than
through a screening point.
(1) A vehicle is screened when the vehicle undergoes
screening in accordance with regulations made under section 44 in
preparation for:
(a) being taken on board an aircraft; or
(b) entering an area or zone within a security controlled
airport.
(2) A vehicle receives clearance if:
(a) after being screened, the vehicle is allowed, by a screening officer,
to pass through the screening point; or
(b) the vehicle passes through the screening point and the regulations
provide, or the Secretary by written notice provides, that the vehicle may pass
through that screening point without being screened; or
(c) the vehicle enters a cleared area, a cleared zone or a cleared
aircraft other than through a screening point and the regulations provide, or
the Secretary by written notice provides, that the vehicle may enter the area,
zone or aircraft that way.
(3) A vehicle is cleared at a particular time if:
(a) the vehicle has received clearance; and
(b) since receiving clearance, the vehicle has at all times been in a
cleared area, a cleared zone or a cleared aircraft.
(4) For the purposes of paragraph (3)(b), a vehicle is taken to be in
a cleared area or cleared zone if the vehicle is under the supervision or
control prescribed in the regulations.
(5) To avoid doubt:
(a) a notice under paragraph (2)(b) may provide that a class of
vehicles may pass through a screening point without being screened;
and
(b) a notice under paragraph (2)(c) may provide that a class of
vehicles may enter a cleared area, a cleared zone or a cleared aircraft other
than through a screening point.
(1) The regulations may, for the purposes of safeguarding against unlawful
interference with aviation, prescribe requirements in relation to one or more of
the following:
(a) screening;
(b) receiving clearance;
(c) the circumstances in which persons, goods or vehicles are required to
be cleared;
(d) establishing a scheme under which certain persons are designated as
regulated air cargo agents.
(2) The following matters may be dealt with by regulations made under
subsection (1):
(a) the persons who are authorised or required to conduct
screening;
(b) the things to be detected by screening;
(c) the procedures for dealing with things detected by
screening;
(d) the circumstances in which persons must be cleared in order
to:
(i) board an aircraft; or
(ii) enter a landside security zone, an airside area or an airside
security zone;
(e) the circumstances in which goods, other than baggage and cargo, must
be cleared in order to be taken:
(i) onto an aircraft; or
(ii) into a landside security zone, an airside area or an airside security
zone;
(f) the circumstances in which baggage must be cleared in order to be
taken:
(i) onto an aircraft; or
(ii) into a landside security zone, an airside area or an airside security
zone;
(g) the circumstances in which cargo must be cleared in order to be
taken:
(i) onto an aircraft; or
(ii) into a landside security zone, an airside area or an airside security
zone;
(h) the circumstances in which vehicles must be cleared in order to be
taken;
(i) onto an aircraft; or
(ii) into a landside security zone, an airside area or an airside security
zone;
(i) the places where screening is to be conducted;
(j) the methods, techniques and equipment to be used for
screening;
(k) the notices that are to be displayed in places where screening is to
be conducted;
(l) the supervision and control measures for ensuring that persons, goods
and vehicles that have received clearance remain cleared in areas or zones that
are not cleared areas or cleared zones;
(m) the screening of cargo by regulated air cargo agents and the
procedures for dealing with cargo so screened;
(n) the requirements that a person must satisfy to be designated as a
regulated air cargo agent;
(o) the method of applying for designation as a regulated air cargo agent
and how such applications are to be dealt with;
(p) conditions that must be complied with by regulated air cargo
agents.
Note: 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.
(3) Regulations made under paragraph (2)(a), (2)(j) or (2)(m) 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. Such a notice may provide
that the notice is only to be given to the persons, or classes of persons,
specified in the notice.
(4) Regulations made under this section may prescribe penalties for
offences against those regulations. The penalties must not exceed:
(a) for an offence committed by an airport operator or an aircraft
operator—200 penalty units; or
(b) for an offence committed by an aviation industry participant, other
than a participant covered by paragraph (a)—100 penalty units;
or
(c) for an offence committed by any other person—50 penalty
units.
Note: If a body corporate is convicted of an offence against
regulations made under this section, subsection 4B(3) of the Crimes Act
1914 allows a court to impose fines of up to 5 times the penalties stated
above.
The control of weapons is an important aspect of preventing unlawful
interference with aviation.
The possession or carriage of weapons is controlled:
(a) in airside areas and landside security zones;
(b) through screening points;
(c) on aircraft.
A person who has been authorised or permitted to have a weapon in his or
her possession or under his or her control must comply with any conditions that
have been imposed.
The regulations can also prescribe requirements in relation to the carriage
and use of weapons.
Strict liability
(1) A person commits an offence if:
(a) the person is in an airside area or a landside security zone;
and
(b) the person has a weapon in his or her possession; and
(c) the person is not:
(i) a law enforcement officer; or
(ii) a member of the Australian Defence Force who is on duty; or
(iii) authorised by the regulations, or permitted in writing by the
Secretary, to have the weapon in his or her possession in the airside area or
landside security zone.
Penalty: 100 penalty units.
(2) Subsection (1) is an offence of strict liability.
General
(3) A person commits an offence if:
(a) the person is in an airside area or a landside security zone;
and
(b) the person has a weapon in his or her possession; and
(c) the person is not:
(i) a law enforcement officer; or
(ii) a member of the Australian Defence Force who is on duty; or
(iii) authorised by the regulations, or permitted in writing by the
Secretary, to have the weapon in his or her possession in the airside area or
landside security zone.
Penalty: Imprisonment for 7 years.
Strict liability
(1) A person commits an offence if:
(a) the person passes through a screening point; and
(b) the person has a weapon in his or her possession when he or she passes
through the screening point; and
(c) the person is not:
(i) a law enforcement officer; or
(ii) authorised by the regulations, or permitted in writing by the
Secretary, to pass through the screening point with the weapon in his or her
possession.
Penalty: 100 penalty units.
(2) Subsection (1) is an offence of strict liability.
General
(3) A person commits an offence if:
(a) the person passes through a screening point; and
(b) the person has a weapon in his or her possession when he or she passes
through the screening point; and
(c) the person is not:
(i) a law enforcement officer; or
(ii) authorised by the regulations, or permitted in writing by the
Secretary, to pass through the screening point with the weapon in his or her
possession.
Penalty: Imprisonment for 7 years.
(1) A person commits an offence if:
(a) the person is on board a prescribed aircraft; and
(b) the person:
(i) carries a weapon; or
(ii) otherwise has in his or her possession a weapon that is located at a
place that is accessible to the person; and
(c) the person is not a law enforcement officer; and
(d) the carriage or possession of the weapon is not authorised by the
regulations or permitted in writing by the Secretary; and
(e) neither of the following apply:
(i) the weapon is under the control of the pilot in command of the
aircraft because the weapon forms part of the equipment of the aircraft in
accordance with the operations manual for the aircraft;
(ii) the weapon is under the control of the pilot in command of the
aircraft because an animal that could endanger the safety of the aircraft, or
the safety of people on board the aircraft, is being carried on board the
aircraft.
Penalty: 100 penalty units.
(2) Subsection (1) is an offence of strict liability.
Note: Carriage of weapons on an aircraft is also subject to
provisions in the Civil Aviation Act 1988 and the Crimes (Aviation)
Act 1991.
A person commits an offence if:
(a) the person is on board a prescribed aircraft; and
(b) the person:
(i) carries a weapon; or
(ii) otherwise has in his or her possession a weapon that is located at a
place that is accessible to the person; and
(c) the person is not a law enforcement officer; and
(d) the carriage or possession of the weapon is not authorised by the
regulations or permitted in writing by the Secretary; and
(e) neither of the following apply:
(i) the weapon is under the control of the pilot in command of the
aircraft because the weapon forms part of the equipment of the aircraft in
accordance with the operations manual for the aircraft;
(ii) the weapon is under the control of the pilot in command of the
aircraft because an animal that could endanger the safety of the aircraft, or
the safety of people on board the aircraft, is being carried on board the
aircraft.
Penalty: Imprisonment for 7 years.
Note: Carriage of weapons on an aircraft is also subject to
provisions in the Civil Aviation Act 1988 and the Crimes (Aviation)
Act 1991.
(1) A person commits an offence if:
(a) the person is on a prescribed aircraft or at a security controlled
airport; and
(b) the person is authorised or permitted to have a weapon in his or her
possession or under his or her control; and
(c) the person fails to comply with any conditions relating to the
authorisation or permission.
Penalty: 50 penalty units.
(2) Subsection (1) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(3) Subsection (1) is an offence of strict liability.
To avoid doubt, for the purposes of this Division, the Secretary may give
permission in relation to particular conduct by giving permission to a class of
persons.
(1) The regulations may, for the purposes of safeguarding against unlawful
interference with aviation, prescribe requirements in relation to the carriage
and use of weapons on a prescribed aircraft or at a security controlled
airport.
(2) The following matters may be dealt with by regulations made under
subsection (1):
(a) authorising the carriage of weapons on board a prescribed aircraft or
in an airside security zone or a landside security zone;
(b) dealing with a person on a prescribed aircraft or at a security
controlled airport who carries or uses a weapon, or is suspected of carrying or
using a weapon, unlawfully;
(c) dealing with a weapon surrendered by a person on a prescribed aircraft
or at a security controlled airport.
(3) Regulations made under this section may prescribe penalties for
offences against those regulations. The penalties must not exceed:
(a) for an offence committed by an airport operator or an aircraft
operator—200 penalty units; or
(b) for an offence committed by an aviation industry participant, other
than a participant covered by paragraph (a)—100 penalty units;
or
(c) for an offence committed by any other person—50 penalty
units.
Note: If a body corporate is convicted of an offence against
regulations made under this section, subsection 4B(3) of the Crimes Act
1914 allows a court to impose fines of up to 5 times the penalties stated
above.
Things other than weapons may be used to interfere with aviation
unlawfully.
This Division:
(a) allows regulations to prescribe such things as prohibited items;
and
(b) establishes restrictions in relation to prohibited items that parallel
the restrictions which apply to weapons under Division 3 of this
Part.
Strict liability
(1) A person commits an offence if:
(a) the person is in an airside area or a landside security zone;
and
(b) the person has a prohibited item in his or her possession;
and
(c) the person is not:
(i) a law enforcement officer, an airport security guard or an aviation
security inspector; or
(ii) a member of the Australian Defence Force who is on duty; or
(iii) authorised by the regulations, or permitted in writing by the
Secretary, to have the prohibited item in his or her possession in the airside
area or landside security zone.
Penalty: 20 penalty units.
(2) Subsection (1) is an offence of strict liability.
General
(3) A person commits an offence if:
(a) the person is in an airside area or a landside security zone;
and
(b) the person has a prohibited item in his or her possession;
and
(c) the person is not:
(i) a law enforcement officer, an airport security guard or an aviation
security inspector; or
(ii) a member of the Australian Defence Force who is on duty; or
(iii) authorised by the regulations, or permitted in writing by the
Secretary, to have the prohibited item in his or her possession in the airside
area or landside security zone.
Penalty: Imprisonment for 2 years.
Strict liability
(1) A person commits an offence if:
(a) the person passes through a screening point; and
(b) the person has a prohibited item in his or her possession when he or
she passes through the screening point; and
(c) the person is not;
(i) a law enforcement officer, an airport security guard or an aviation
security inspector; or
(ii) authorised by the regulations, or permitted in writing by the
Secretary, to pass through the screening point with the prohibited item in his
or her possession.
Penalty: 20 penalty units.
(2) Subsection (1) is an offence of strict liability.
General
(3) A person commits an offence if:
(a) the person passes through a screening point; and
(b) the person has a prohibited item in his or her possession when he or
she passes through the screening point; and
(c) the person is not;
(i) a law enforcement officer, an airport security guard or an aviation
security inspector; or
(ii) authorised by the regulations, or permitted in writing by the
Secretary, to pass through the screening point with the prohibited item in his
or her possession.
Penalty: Imprisonment for 2 years.
(1) A person commits an offence if:
(a) the person is on board a prescribed aircraft; and
(b) the person:
(i) carries a prohibited item; or
(ii) otherwise has in his or her possession a prohibited item that is
located at a place that is accessible to the person; and
(c) the person is not a law enforcement officer, an airport security guard
or an aviation security inspector; and
(d) the carriage or possession of the prohibited item is not authorised by
the regulations or permitted in writing by the Secretary; and
(e) neither of the following apply:
(i) the prohibited item is under the control of the pilot in command of
the aircraft because the prohibited item forms part of the equipment of the
aircraft in accordance with the operations manual for the aircraft;
(ii) the prohibited item is under the control of the pilot in command of
the aircraft because an animal that could endanger the safety of the aircraft,
or the safety of people on board the aircraft, is being carried on board the
aircraft.
Penalty: 20 penalty units.
(2) Subsection (1) is an offence of strict liability.
A person commits an offence if:
(a) the person is on board a prescribed aircraft; and
(b) the person:
(i) carries a prohibited item; or
(ii) otherwise has in his or her possession a prohibited item that is
located at a place that is accessible to the person; and
(c) the person is not a law enforcement officer, an airport security guard
or an aviation security inspector; and
(d) the carriage or possession of the prohibited item is not authorised by
the regulations or permitted in writing by the Secretary; and
(e) neither of the following apply:
(i) the prohibited item is under the control of the pilot in command of
the aircraft because the prohibited item forms part of the equipment of the
aircraft in accordance with the operations manual for the aircraft;
(ii) the prohibited item is under the control of the pilot in command of
the aircraft because an animal that could endanger the safety of the aircraft,
or the safety of people on board the aircraft, is being carried on board the
aircraft.
Penalty: Imprisonment for 2 years.
(1) A person commits an offence if:
(a) the person is on a prescribed aircraft or at a security controlled
airport; and
(b) the person is authorised or permitted to have a prohibited item in his
or her possession or under his or her control; and
(c) the person fails to comply with any conditions relating to the
authorisation or permission.
Penalty: 50 penalty units.
(2) Subsection (1) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(3) Subsection (1) is an offence of strict liability.
To avoid doubt, for the purposes of this Division, the Secretary may give
permission in relation to particular conduct by giving permission to a class of
persons.
(1) The regulations may, for the purposes of safeguarding against unlawful
interference with aviation, prescribe requirements in relation to the carriage
and use of prohibited items on a prescribed aircraft or at a security controlled
airport.
(2) The following matters may be dealt with by regulations made under
subsection (1):
(a) authorising the carriage of prohibited items on a prescribed aircraft
or in an airside security zone or a landside security zone;
(b) dealing with a person on a prescribed aircraft or at a security
controlled airport who carries or uses a prohibited item, or is suspected of
carrying or using a prohibited item, unlawfully;
(c) dealing with a prohibited item surrendered by a person on a prescribed
aircraft or at a security controlled airport.
(3) Regulations made under this section may prescribe penalties for
offences against those regulations. The penalties must not exceed:
(a) for an offence committed by an airport operator or an aircraft
operator—200 penalty units; or
(b) for an offence committed by an aviation industry participant, other
than a participant covered by paragraph (a)—100 penalty units;
or
(c) for an offence committed by any other person—50 penalty
units.
Note: If a body corporate is convicted of an offence against
regulations made under this section, subsection 4B(3) of the Crimes Act
1914 allows a court to impose fines of up to 5 times the penalties stated
above.
This Division provides for regulations dealing with aircraft security,
including control of passengers on board aircraft and management of
baggage.
(1) The regulations may, for the purposes of safeguarding against unlawful
interference with aviation, prescribe requirements in relation to the
following:
(a) the management and control of passengers (including persons in
custody) on board an aircraft;
(b) pre-flight checks of aircraft cabins and other parts of an
aircraft;
(c) procedures to be used and measures to be taken in relation to baggage
that is loaded, or is intended to be loaded, onto a prescribed
aircraft;
(d) unattended aircraft.
(2) Regulations made under this section may prescribe penalties for
offences against those regulations. The penalties must not exceed:
(a) for an offence committed by an airport operator or an aircraft
operator—200 penalty units; or
(b) for an offence committed by an aviation industry participant, other
than a participant covered by paragraph (a)—100 penalty units;
or
(c) for an offence committed by any other person—50 penalty
units.
Note: If a body corporate is convicted of an offence against
regulations made under this section, subsection 4B(3) of the Crimes Act
1914 allows a court to impose fines of up to 5 times the penalties stated
above.
This Division provides for regulations dealing with persons who are in
custody under another Act and who are at airports or on aircraft. The
regulations may include security arrangements in relation to such persons and
the circumstances in which the pilot in command of an aircraft may refuse to
allow such persons on board.
A person on a prescribed aircraft or at a security controlled airport is
a person in custody if he or she is in custody under another
Act.
(1) The regulations may, for the purposes of safeguarding against unlawful
interference with aviation, prescribe requirements in relation to persons in
custody on a prescribed aircraft or at a security controlled airport.
(2) Without limiting the matters that may be dealt with by regulations
made under subsection (1), the regulations may deal with the
following:
(a) the circumstances in which a person who is in custody may be on a
prescribed aircraft or at a security controlled airport;
(b) the security arrangements, including escort arrangements, that must be
implemented in relation to persons in custody on a prescribed aircraft, or at a
security controlled airport, and the persons who must implement those
arrangements;
(c) information about a person in custody that must be provided to the
operator of the relevant prescribed aircraft or security controlled
airport;
(d) information about a person in custody who is to be on a prescribed
aircraft that must be provided to the pilot in command of the
aircraft;
(e) the circumstances in which the operator of a prescribed aircraft, or
the pilot in command of a prescribed aircraft, may refuse to allow a person in
custody to be on the aircraft;
(f) the circumstances in which the operator of a security controlled
airport may refuse to allow a person in custody to be at the airport;
(g) the number of persons in custody that may be on a prescribed aircraft,
or at a security controlled airport, at any one time.
(3) Regulations made under this section may prescribe penalties for
offences against those regulations. The penalties must not exceed:
(a) for an offence committed by an airport operator or an aircraft
operator—200 penalty units; or
(b) for an offence committed by an aviation industry participant, other
than a participant covered by paragraph (a)—100 penalty units;
or
(c) for an offence committed by any other person—50 penalty
units.
Special circumstances may arise that require additional security measures
beyond those otherwise required under this Act.
This Division allows the Secretary to address such circumstances by issuing
special security directions. The Division establishes time limits for such
special security directions. As a general rule, a special security direction
ceases to have effect after it has been in force for 3 months.
Failing to comply with a special security direction is an
offence.
In addition, disclosing such a direction in certain circumstances is also
an offence.
(1) If:
(a) a specific threat of unlawful interference with aviation is made or
exists; or
(b) there is a change in the nature of an existing general threat of
unlawful interference with aviation;
the Secretary may, in writing, direct that additional security measures be
taken or complied with.
(2) A direction under subsection (1) is a special security
direction.
(1) A special security direction may set out restrictions in relation to
the disclosure of the direction.
(2) Such restrictions are confidentiality
requirements.
(1) A special security direction may be given to one or more of the
following:
(a) an APS employee in the Department;
(b) a member of the staff of CASA;
(c) a member of the staff of Airservices Australia;
(d) an aviation industry participant or an employee of an aviation
industry participant;
(e) passengers;
(f) persons, other than persons mentioned in paragraphs (a) to (e),
who are within the boundaries of a security controlled airport.
(2) For the purposes of giving a special security direction to persons
mentioned in paragraph (1)(e) or (f), the Secretary is taken to have given
a written direction to the persons if the direction is clearly displayed at a
place where the direction is to be complied with by those persons.
(1) A special security direction comes into force at the time specified in
the direction.
(2) However:
(a) if:
(i) there is no time specified; or
(ii) the specified time is before the time when the direction is
given;
the direction comes into force 24 hours after it is given; or
(b) if the specified time is later than the beginning of the seventh day
after the direction is given, the direction comes into force at the start of
that day.
(3) A special security direction remains in force until:
(a) it is revoked in writing by the Secretary; or
(b) it ceases to have effect under subsection (6) of this section or
subsection 71(2).
(4) If the Secretary has displayed a special security direction under
subsection 69(2) and either:
(a) the Secretary revokes the direction; or
(b) the direction ceases to have effect under subsection (6) of this
section or subsection 71(2);
the Secretary must remove the displayed direction.
(5) A special security direction made under paragraph 67(1)(a) must be
revoked when the specific threat no longer exists.
(6) If not revoked earlier, a special security direction ceases to be in
force when it has been in force for a continuous period of 3 months.
(1) Despite subsection 70(6), a special security direction that has been
in force for a continuous period of 3 months does not cease to be in force if,
before the period ends, the Secretary:
(a) consults with the person to whom the direction has been given;
and
(b) gives the person written notice that the direction is to remain in
force.
(2) If not revoked earlier, a special security direction that remains in
force under subsection (1) ceases to be in force when it has been in force
for a continuous period of 6 months.
(3) Paragraph (1)(a) of this section does not apply in relation to a
direction that has been given to a person covered by paragraph 69(1)(e) or
(f).
If:
(a) a special security direction (the original direction)
has been given to a person; and
(b) the original direction ceases to be in force because it has been in
force for a continuous period of 6 months (see subsection 71(2));
the Secretary must not give a special security direction to the person that
is the same as, or substantially similar to, the original direction during the
period of 6 months after the original direction ceases to be in force.
(1) A person commits an offence if:
(a) a special security direction is given to the person; and
(b) the direction is in force; and
(c) the person fails to comply with the direction; and
(d) the failure is not a failure to comply with confidentiality
requirements.
Penalty: For an airport operator or an aircraft operator—200 penalty
units.
For an aviation industry participant, other than an airport operator or an
aircraft operator—100 penalty units.
For any other person—50 penalty units.
(2) Subsection (1) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(3) Subsection (1) is an offence of strict liability.
(1) A person commits an offence if:
(a) a special security direction is given to the person; and
(b) the direction is in force; and
(c) the person fails to comply with confidentiality requirements in the
direction; and
(d) the failure is not due to a disclosure made to a court or a tribunal,
or to an authority or person that has the power to require the production of
documents or the answering of questions.
Penalty: 20 penalty units.
(2) Subsection (1) is an offence of strict liability.
Certain persons are given particular powers and responsibilities under this
Act. Some of these people are required to have specific qualifications and meet
other requirements. This is to ensure that only appropriate people have these
powers. All of these matters are covered by this Part.
The types of persons (and the relevant Divisions) are as follows:
(a) aviation security inspectors (Division 2);
(b) law enforcement officers (Division 3);
(c) airport security guards (Division 4);
(d) screening officers (Division 5).
Employees in the Department and law enforcement officers can be appointed
as aviation security inspectors.
Aviation security inspectors are given a range of powers that they can
exercise to determine whether a person is complying with this Act.
Each aviation security inspector is to be issued with an identity card. The
regulations may provide for the form, issue and use of those cards.
(1) The Secretary may appoint an APS employee in the Department or a law
enforcement officer to be an aviation security inspector.
(2) The appointment must be in writing.
(1) The Secretary must issue each aviation security inspector with an
identity card.
(2) The regulations may set out requirements in relation to the form,
issue and use of identity cards.
(3) The regulations may provide that the identity card may be
combined with another identity card.
(1) An aviation security inspector may exercise the powers set out in
subsection (2) for the following purposes:
(a) determining whether a person is complying with this Act;
(b) investigating a possible contravention of this Act.
(2) For the purposes set out in subsection (1), an aviation security
inspector may:
(a) enter and inspect:
(i) a security controlled airport; or
(ii) any area, building (other than a residence) or vehicle under the
control of an aviation industry participant; or
(iii) if an aviation industry participant operates from a residence or a
part of a residence—the residence or the part of the residence from which
the participant operates; or
(b) inspect equipment in a place or vehicle mentioned in
paragraph (a); or
(c) observe the operating procedures of an aviation industry participant;
or
(d) discuss those procedures with an employee of the aviation industry
participant or with another aviation industry participant; or
(e) inspect, photograph or copy a document or record made or kept by an
aviation industry participant; or
(f) operate equipment at a place mentioned in paragraph (a) for the
purposes of gaining access to a document or record made or kept by an aviation
industry participant.
(3) An aviation security inspector may exercise a power mentioned in
subsection (2):
(a) if the power is exercised within the boundaries of a security
controlled airport—at any time and without notice; or
(b) otherwise—after giving the aviation industry participant
concerned reasonable notice.
(4) However, in exercising a power under this section, an aviation
security inspector must not subject a person to greater indignity than is
necessary and reasonable for the exercise of the power.
(5) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct hinders or obstructs an aviation security inspector in the
exercise of a power under this section.
Penalty: 50 penalty units.
(6) Subsection (5) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (6) (see subsection 13.3(3) of the Criminal
Code).
(7) Subsection (5) is an offence of strict liability.
(1) An aviation security inspector may exercise the powers set out in
subsection (2) for the following purposes:
(a) determining whether a person is complying with this Act;
(b) investigating a possible contravention of this Act.
(2) For the purposes set out in subsection (1), an aviation security
inspector may:
(a) enter and inspect an aircraft operator’s aircraft at a security
controlled airport; or
(b) inspect equipment in the aircraft; or
(c) observe operating procedures for the aircraft (whether carried out by
the crew or some other person); or
(d) discuss those procedures with a person carrying them out or with
another aviation industry participant; or
(e) inspect, photograph or copy a document or record held in the aircraft
that relates to a passenger or an item of cargo.
(3) An aviation security inspector may exercise a power mentioned in
subsection (2) after giving the aircraft operator reasonable
notice.
(4) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct hinders or obstructs an aviation security inspector in the
exercise of a power under this section.
Penalty: 50 penalty units.
(5) Subsection (4) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (5) (see subsection 13.3(3) of the Criminal
Code).
(6) Subsection (4) is an offence of strict liability.
This Division provides police and protective service officers with special
authority to:
(a) stop and search people and vehicles at airports;
(b) remove people from an aircraft or an airport, or from an area or zone
of an airport, if they do not leave when requested to do so;
(c) remove vehicles from an airport, or from an area or zone of an
airport, if the officer is unable to have the vehicle removed by the person in
control of it.
The Division establishes restrictions on this authority, such as requiring
the officer to explain why a search is to be made and limiting the amount of
force that may be used.
A person who does not leave when requested to do so by a law enforcement
officer commits an offence, as does a person who hinders or obstructs an officer
exercising powers under this Division.
Each of the following who is on duty at a security controlled airport is
a law enforcement officer:
(a) a member of:
(i) the Australian Federal Police; or
(ii) the police force of a State or a Territory;
(b) a protective service officer (within the meaning of the Australian
Protective Service Act 1987);
(c) a special protective service officer (within the meaning of the
Australian Protective Service Act 1987) who has the same powers as a
protective service officer.
A law enforcement officer may enter, and remain in, any part of a
security controlled airport at any time.
(1) If a law enforcement officer reasonably believes that it is necessary
to do so for the purposes of safeguarding against unlawful interference with
aviation, the law enforcement officer may stop a person who is in an airside
area and conduct an ordinary search or a frisk search of the person.
(2) If a law enforcement officer stops a person under subsection (1),
the officer must:
(a) identify himself or herself as a law enforcement officer to the
person; and
(b) tell the person why the person has been stopped; and
(c) if the person is to be searched—tell the person why the person
is to be searched.
(3) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct hinders or obstructs a law enforcement officer in the
exercise of a power under subsection (1).
Penalty: Imprisonment for 2 years.
(1) If a law enforcement officer reasonably believes that it is necessary
to do so for the purposes of safeguarding against unlawful interference with
aviation, the law enforcement officer may do either or both of the following in
an airside area:
(a) require the driver of a vehicle to stop the vehicle;
(b) search the vehicle.
(2) If a law enforcement officer stops a vehicle under
subsection (1), the law enforcement officer must:
(a) identify himself or herself as a law enforcement officer to the driver
of the vehicle; and
(b) tell the driver why the vehicle has been stopped; and
(c) if the vehicle is to be searched—tell the driver why the vehicle
is to be searched.
(3) Before a law enforcement officer searches a vehicle under
subsection (1) that was not stopped by the officer, the officer must, if
there is a driver or person in control of the vehicle present:
(a) identify himself or herself as a law enforcement officer to the driver
or person; and
(b) tell the driver or person why the vehicle is to be searched.
(4) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct hinders or obstructs a law enforcement officer in the
exercise of a power under subsection (1).
Penalty: Imprisonment for 2 years.
(1) If a law enforcement officer reasonably suspects that a person on a
prescribed aircraft, or in an area or zone of a security controlled airport, is
committing, or has committed, an offence against this Act, the officer may
request the person to leave:
(a) the aircraft; or
(b) the area or zone; or
(c) the airport.
(2) A person commits an offence if:
(a) a request has been made to the person under subsection (1);
and
(b) the person fails to comply with the request.
Penalty: 50 penalty units.
(1) If:
(a) a request to leave an aircraft, an airport or an area or zone has been
made to a person under section 86; and
(b) the person fails to comply with the request;
a law enforcement officer may remove the person from the aircraft, the
airport or the area or zone.
(2) A law enforcement officer must not use more force, or subject the
person to greater indignity, than is necessary and reasonable to remove the
person from the aircraft, the airport or the area or zone.
(1) If a law enforcement officer reasonably believes that:
(a) a vehicle in or near an area or zone of a security controlled airport
presents a risk to aviation security; or
(b) a vehicle is in an area or zone of a security controlled airport
without proper authorisation;
the law enforcement officer may remove the vehicle.
(2) However, the law enforcement officer must not remove the vehicle
without making reasonable efforts to have the person in control of the vehicle
remove the vehicle.
(3) The law enforcement officer:
(a) must not use more force, or subject a person to greater indignity,
than is necessary and reasonable to remove the vehicle from the area or zone;
and
(b) must make reasonable efforts to avoid damaging the vehicle.
This Act does not, by implication, limit the exercise of the powers a law
enforcement officer has apart from this Act.
This Division gives airport security guards a limited power to restrain and
detain persons. Airport security guards may only detain a person until the
person can be dealt with by a law enforcement officer and their ability to use
force is restricted.
Regulations must establish requirements to be met before a person can
become an airport security guard.
(1) An airport security guard is a person who:
(a) satisfies the training and qualification requirements and any other
requirements prescribed in the regulations for airport security guards;
and
(b) is on duty at a security controlled airport; and
(c) is not a law enforcement officer.
(2) The regulations must prescribe the following for airport security
guards:
(a) training and qualification requirements;
(b) requirements in relation to the form, issue and use of identity
cards.
(3) The regulations may prescribe the following for airport security
guards:
(a) requirements in relation to uniforms;
(b) any other requirements.
(1) An airport security guard may physically restrain a person
if:
(a) the airport security guard reasonably suspects that the person is
committing, or has committed, an offence against this Act; and
(b) the airport security guard reasonably believes it is necessary to do
so in order to:
(i) ensure that a person who is not cleared is not in a cleared area or a
cleared zone; or
(ii) maintain the integrity of a landside security zone, an airside area
or an airside security zone.
(2) If a person is restrained under subsection (1), the airport
security guard may detain the person until the person can be dealt with by a law
enforcement officer.
(3) In exercising a power under subsection (1) or (2), an airport
security guard must not use more force, or subject a person to greater
indignity, than is necessary and reasonable.
A screening officer may request a person to remove items of clothing for
screening purposes—but may not require this. However, if a person refuses
to comply with such a request and the screening officer is unable to screen the
person properly, the screening officer must refuse to allow the person to pass
the screening point.
To protect the integrity of cleared areas and zones, screening officers are
provided with similar restraint and detention powers to those of airport
security guards.
(1) A person who is authorised or required to conduct screening is a
screening officer.
(2) The regulations must prescribe the following for screening
officers:
(a) training and qualification requirements;
(b) requirements in relation to the form, issue and use of identity
cards.
(3) The regulations may prescribe the following for screening
officers:
(a) requirements in relation to uniforms;
(b) any other requirements.
(1) If a screening officer considers it necessary in order to screen a
person properly, the screening officer may request the person to remove any item
of the person’s clothing.
(2) The screening officer must not:
(a) require the person to remove any clothing; or
(b) remove or cause the removal of any of the person’s
clothing.
Penalty: 50 penalty units.
(3) Subsection (2) does not apply if the officer has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (3) (see subsection 13.3(3) of the Criminal
Code).
(4) Subsection (2) is an offence of strict liability.
(5) If:
(a) a screening officer requests a person to remove an item clothing under
subsection (1); and
(b) the person refuses to comply with the request; and
(c) the person refuses to be screened in a private room by a screening
officer of the same sex as the person; and
(d) the refusals mean that it is not possible to screen the person
properly;
the screening officer must refuse to allow the person to pass through the
screening point.
(1) A screening officer may physically restrain a person if:
(a) the screening officer reasonably suspects that the person is
committing, or has committed, an offence against this Act; and
(b) the screening officer reasonably believes it is necessary to do so in
order to:
(i) ensure that a person who is not cleared is not in a cleared area or a
cleared zone; or
(ii) maintain the integrity of a cleared area or a cleared zone.
(2) If a person is restrained under subsection (1), the screening
officer may detain the person until the person can be dealt with by a law
enforcement officer.
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.
It is important, for aviation security, to ensure that all aviation
security incidents are appropriately reported.
This Part establishes requirements to report aviation security incidents
and provides for the form and content of such reports.
Each of the following is an aviation security
incident:
(a) a threat of unlawful interference with aviation;
(b) an unlawful interference with aviation.
(1) An aviation industry participant who is an airport operator commits an
offence if:
(a) the participant becomes aware of an aviation security incident;
and
(b) the participant fails to report the incident as required by
section 104 as soon as possible.
Penalty: 200 penalty units.
(2) Subsection (1) does not apply in relation to a report that must
be made to a particular person if:
(a) the participant believes, on reasonable grounds, that the person is
already aware of the incident; or
(b) the participant has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to
the matters in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(3) Subsection (1) is an offence of strict liability.
(1) An aviation industry participant who is an aircraft operator commits
an offence if:
(a) the participant becomes aware of an aviation security incident;
and
(b) the participant fails to report the incident as required by
section 105 as soon as possible.
Penalty: 200 penalty units.
(2) Subsection (1) does not apply in relation to a report that must
be made to a particular person if:
(a) the participant believes, on reasonable grounds, that the person is
already aware of the incident; or
(b) the participant has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to
the matters in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(3) Subsection (1) is an offence of strict liability.
(1) A person with incident reporting responsibilities commits an offence
if:
(a) the person becomes aware of an aviation security incident;
and
(b) the person fails to report the incident as required by
section 106 as soon as possible.
Penalty: For a person with incident reporting responsibilities who is an
aviation industry participant—100 penalty units.
For any other person with incident reporting responsibilities—50
penalty units.
(2) Subsection (1) does not apply in relation to a report that must
be made to a particular person (the person to be notified)
if:
(a) the person with incident reporting responsibilities believes, on
reasonable grounds, that the person to be notified is already aware of the
incident; or
(b) the person with incident reporting responsibilities has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to
the matters in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(3) Subsection (1) is an offence of strict liability.
(4) Each of the following is a person with incident
reporting responsibilities:
(a) an employee of the Department;
(b) a member of the staff of CASA;
(c) a member of the staff of Airservices Australia;
(d) an aviation industry participant other than a participant who
is:
(i) an airport operator; or
(ii) an aircraft operator; or
(ii) an employee (under the definition of employee in
section 9) of another aviation industry participant;
(e) a law enforcement officer;
(f) an airport security guard.
(1) An employee of an aviation industry participant commits an offence
if:
(a) the employee becomes aware of an aviation security incident;
and
(b) the employee fails to report the incident to the aviation industry
participant as soon as possible.
Penalty: 50 penalty units.
(2) Subsection (1) does not apply if the employee has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(3) Subsection (1) is an offence of strict liability.
(1) Aviation industry participants who are airport operators must report
aviation security incidents in accordance with this section.
(2) An incident that relates to the airport of another operator must be
reported to that other operator.
(3) An incident that relates to the aircraft of an aircraft operator must
be reported to the aircraft operator.
(4) An incident that relates to the airport of the airport operator must
be reported to:
(a) the Secretary; and
(b) the Australian Federal Police or the police force of a State or a
Territory; and
(c) if it relates to a part of an airport of the operator for which a
lease or licence has been granted to another person—that other
person.
(5) However, the operator is not required to report under
paragraph (4)(c) if the incident:
(a) relates to the airport in general; and
(b) is not specifically directed at the part of the airport for which the
lease or licence has been granted.
(1) Aviation industry participants who are aircraft operators must report
aviation security incidents in accordance with this section.
(2) An incident that relates to an airport must be reported to the
operator of the airport.
(3) An incident that relates to the aircraft of another aircraft operator
must be reported to that other operator.
(4) An incident that relates to an aircraft of the aircraft operator must
be reported to:
(a) the Secretary; and
(b) the Australian Federal Police or the police force of a State or a
Territory.
(5) An incident that relates to an aircraft of the aircraft operator and
is:
(a) an unlawful interference with aviation; or
(b) a threat of unlawful interference with aviation that is assessed by
the operator as credible; or
(c) a threat of unlawful interference with aviation that the operator is
unable to assess;
must be reported to:
(d) if the aircraft is in flight—Airservices Australia; or
(e) if the aircraft is at an airport—the operator of the
airport.
(1) A person with incident reporting responsibilities must
report aviation security incidents in accordance with this section.
(2) Each incident must be reported to the Secretary.
(3) An incident that relates to the airport of an airport operator must be
reported to the airport operator.
(4) An incident that relates to the aircraft of an aircraft operator must
be reported to the aircraft operator.
(1) The Secretary may publish a notice in the Gazette setting out
either or both of the following:
(a) information that must be included in a report required by this
Part;
(b) the way in which the report must be made.
(2) A notice under subsection (1) is a disallowable instrument for
the purposes of section 46A of the Acts Interpretation Act
1901.
(3) If:
(a) a person reports an aviation security incident; and
(b) the report does not comply with any requirements that are in force
under subsection (1) when the report is made;
the report is taken, for the purposes of this Part, not to have been
made.
It is important, for aviation security, for the Secretary to be able to
collect certain information. It is also important that appropriate information
is not improperly released.
Division 2 gives the Secretary the power to require security
compliance information.
Division 3 controls the use of that information.
(1) This section applies if the Secretary believes on reasonable grounds
that an aviation industry participant has security compliance information of a
kind prescribed in the regulations for the purposes of this section.
(2) The Secretary may give the aviation industry participant written
notice requiring the participant to give the information to the
Secretary.
(3) The information must be given within the period and in the way
specified in the notice. The period must not be less than 14 days.
(4) Without limiting subsection (3), 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;
(c) by electronic transmission.
(5) A person commits an offence if the person fails to comply with a
notice under subsection (2).
Penalty: 45 penalty units.
A person is not excused from giving security compliance information under
section 109 on the ground that the information might tend to incriminate
the person or expose the person to a penalty.
Note: Division 3 limits the use of information given to
the Secretary under this Division and provides protection for the person who
gives the information.
(1) If a person gives a Departmental official security compliance
information (whether in compliance with a notice under section 109 or
otherwise), the information is protected information and the
person is the protected person in relation to the
information.
(2) Subsection (1) does not apply if:
(a) the information is given to the Departmental official in the course of
an investigation by the official that relates to compliance with this Act;
and
(b) the information is not given in compliance with a notice under
section 109.
(1) A Departmental official commits an offence if:
(a) the Departmental official uses or discloses protected information;
and
(b) that use or disclosure is not for the purposes of this Act;
and
(c) the Departmental official is reckless as to whether the information is
protected information.
Penalty: 45 penalty units.
(2) Subsection (1) does not apply if:
(a) the protected information is used or disclosed for the purposes of a
prosecution, or defending a prosecution, of:
(i) an offence against that subsection; or
(ii) an offence against section 137.1 or 137.2 of the Criminal
Code; or
(b) the protected information is disclosed to a coroner for the purposes
of an inquest or an inquiry conducted under a law of the Commonwealth or a State
or a Territory.
Note: A defendant bears an evidential burden in relation to
the matters in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(1) A person (whether or not a Departmental official) commits an offence
if:
(a) the person discloses protected information to another person;
and
(b) the person does not disclose the information in excepted
circumstances; and
(c) the person is reckless as to whether the information is protected
information.
Penalty: 45 penalty units.
(2) Protected information is disclosed in excepted
circumstances if it is disclosed to:
(a) a Departmental official; or
(b) a Commonwealth Minister; or
(c) a member of the staff of a Commonwealth Minister who is nominated by
the Minister to receive protected information on the Minister’s behalf;
or
(d) a person acting in the course of his or her duties as a member of the
Parliament of the Commonwealth; or
(e) either:
(i) an aviation industry participant; or
(ii) a person (other than a Departmental official) acting in the course of
his or her duties in an Agency (within the meaning of the Public Service Act
1999);
in a form that does not identify, and is not reasonably capable of being
used to identify, the protected person; or
(f) a coroner for the purposes of an inquest or an inquiry conducted under
a law of the Commonwealth or a State or a Territory.
(3) Subsection (1) does not apply if:
(a) the person discloses the protected information with the consent of the
protected person; or
(b) the protected information is disclosed for the purposes of a
prosecution, or defending a prosecution, of:
(i) an offence against that subsection; or
(ii) an offence against section 137.1 or 137.2 of the Criminal
Code.
Note: A defendant bears an evidential burden in relation to
the matters in subsection (3) (see subsection 13.3(3) of the Criminal
Code).
(1) A person is not to be required to disclose protected information to a
court or tribunal except in a prosecution of an offence mentioned in subsection
112(2) or paragraph 113(3)(b).
(2) Subsection (1) does not apply in relation to an inquest or an
inquiry conducted by a coroner under a law of the Commonwealth or a State or a
Territory.
Neither:
(a) giving protected information; nor
(b) any information, document or thing obtained as a direct or indirect
consequence of giving protected information;
is admissible in evidence against the protected 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.
To ensure that persons comply with their obligations under this Act, many
provisions throughout the Act provide for criminal offences. To provide
flexibility in enforcing this Act, there is also a range of enforcement options
that can be used as an alternative to, or in addition to, criminal prosecution.
These enforcement options are covered by this Part.
The enforcement options (and the relevant Divisions) are as
follows:
(a) infringement notices (Division 2);
(b) enforcement orders (Division 3);
(c) injunctions (Division 4);
(d) demerit points system (Division 5).
(1) The regulations may make provision enabling a person who is alleged to
have committed an offence against this Act, other than an offence against
subsection 13(1), 46(3) or 47(3) or section 49, to pay a penalty to the
Commonwealth as an alternative to prosecution.
(2) The penalty must not exceed one-fifth of the maximum fine that a court
could impose on the person as a penalty for that offence.
The Secretary may make enforcement orders requiring specified people to
take specified actions, where the Secretary is of the opinion that the person
has contravened this Act.
A person who contravenes an enforcement order may be subject to an
injunction.
(1) The Secretary may make a written order (an enforcement
order):
(a) prohibiting or restricting specified activities by the aviation
industry participant named in the enforcement order; or
(b) requiring the aviation industry participant named in the enforcement
order to take specified action.
(2) The Secretary may only make an enforcement order if he or she
reasonably believes that:
(a) the aviation industry participant named in the enforcement order has
contravened this Act; and
(b) it is necessary to make the order to safeguard against unlawful
interference with aviation.
(3) The enforcement order must:
(a) bear a clear and direct relationship to the contravention;
and
(b) be proportionate to the contravention.
(4) The enforcement order must not require the payment of money to the
Secretary (or any other person) other than an amount of money that is already
recoverable at law.
(1) An enforcement order comes into force:
(a) if a commencement time that is after the day on which the order is
given to the aviation industry participant concerned is specified in the
order—at that time; or
(b) otherwise—at the beginning of the seventh day after it is given
to the aviation industry participant concerned.
(2) The order remains in force:
(a) for the period (if any) specified in the order; or
(b) until it is revoked by the Secretary.
(1) The Secretary must:
(a) at intervals of not more than 3 months, review the enforcement order;
and
(b) after each review, confirm, vary or revoke the order by instrument in
writing.
(2) The Secretary must revoke the order unless he or she is satisfied that
the order is still needed to safeguard against unlawful interference with
aviation.
(3) The Secretary must not vary the order unless he or she is satisfied
that the order as varied:
(a) adequately safeguards against unlawful interference with aviation;
and
(b) meets the requirements set out in subsections 119(3) and
(4).
(4) If an order is varied, the order continues in force as
varied.
(1) As soon as practicable after making or reviewing an enforcement order,
the Secretary must cause the aviation industry participant named in the order to
be informed of the making of the order, or the decision on the review, as the
case requires.
(2) Failure to comply with this section does not affect the validity of
the order.
(1) A person must not engage in conduct that contravenes an enforcement
order.
(2) If a person contravenes subsection (1), the person does not
commit an offence but may be subject to an injunction under
section 124.
(1) If a person has engaged, is engaging or is proposing to engage in any
conduct in contravention of this Act, the Federal Court may, on the application
of the Secretary, grant an injunction:
(a) restraining the person from engaging in the conduct; or
(b) requiring the person to do an act or thing.
(2) On an application, the court may, if it thinks it appropriate, grant
an injunction by consent of all parties to the proceedings, whether or not the
court is satisfied that the person has engaged, is engaging or is proposing to
engage in any conduct in contravention of this Act.
(3) The court may, if it thinks it desirable, grant an interim injunction
pending its determination of an application.
(4) The court is not to require the Secretary or anyone else, as a
condition of granting an interim injunction, to give an undertaking as to
damages.
(5) The court may discharge or vary an injunction it has
granted.
(6) The power to grant or vary an injunction restraining a person from
engaging in conduct may be exercised:
(a) whether or not it appears to the court that the person intends to
engage again, or to continue to engage, in such conduct; and
(b) whether or not the person has previously engaged in such
conduct.
(7) The power to grant or vary an injunction requiring a person to do an
act or thing may be exercised:
(a) whether or not it appears to the court that the person intends to
refuse or fail again, or to continue to refuse or fail, to do that act or thing;
and
(b) whether or not the person has previously refused or failed to do that
act or thing and whether or not there is an imminent danger of substantial
damage to any person if the person refuses or fails to do that act or
thing.
(1) The regulations may establish a system (the demerit points
system) under which the approval of the transport security program of an
aviation industry participant who accrues a prescribed number of demerit points
may be cancelled.
Note: Section 26 deals with the cancellation of the
approval of programs under the demerit points system.
(2) The demerit points system must only allow demerit points to be accrued
if an aviation industry participant:
(a) is convicted or found guilty of an offence against this Act;
or
(b) under a scheme established under regulations made under
section 117, pays a penalty to the Commonwealth as an alternative to
prosecution.
(3) Without limiting the scheme that may be established under
subsection (1), the scheme may provide that different provisions apply to
different kinds of aviation industry participants or to different classes of
participants within a kind of aviation industry participant.
Application may be made to the Administrative Appeals Tribunal for a
review of a decision by the Secretary:
(a) to refuse to approve a transport security program under
section 19; or
(b) to direct a participant to vary a program under section 21;
or
(c) to direct a participant to revise a program under section 23;
or
(d) to cancel a transport security program under section 25 or 26;
or
(e) to declare that a particular airport, or a part of a particular
airport, is a security controlled airport under subsection 28(2).
Note: Section 27A of the Administrative Appeals
Tribunal Act 1975 requires the decision-maker to notify persons whose
interests are affected by the decision of the making of the decision and their
right to have the decision reviewed. In so notifying, the decision-maker must
have regard to the Code of Practice determined under section 27B of that
Act.
(1) The Secretary may, by writing, delegate all or any of his or her
powers and functions under this Act to an SES employee, or acting SES employee,
in the Department.
(2) The Secretary may, by writing, delegate all or any of his or her
powers and functions under this Act, other than powers or functions
under:
(a) subsection 71(1); or
(b) Division 3 of Part 8;
to an APS employee who holds, or is acting in, an Executive Level 2, or
equivalent, position in the Department.
(3) In exercising powers or functions under a delegation, the delegate
must comply with any directions of the Secretary.
(1) This section applies if:
(a) as a result of electronic equipment being operated as mentioned in
section 79:
(i) damage is caused to the equipment; or
(ii) the data recorded on the equipment is damaged; or
(iii) programs associated with the use of the equipment, or with the use
of the data, are damaged or corrupted; and
(b) the damage or corruption occurs because:
(i) insufficient care was exercised in selecting the person who was to
operate the equipment; or
(ii) insufficient care was exercised by the person operating the
equipment.
(2) The Commonwealth must pay the owner of the equipment, or the user of
the data or programs, such reasonable compensation for the damage or corruption
as the Commonwealth and the owner or user agree on.
(3) However, if the owner or user and the Commonwealth fail to agree, the
owner or user may institute proceedings in the Federal Court of Australia for
such reasonable amount of compensation as the Court determines.
(4) In determining the amount of compensation payable, regard is to be had
to whether the occupier of the premises, or the occupier’s employees and
agents, if they were available at the time, provided any appropriate warning or
guidance on the operation of the equipment.
(5) Compensation is payable out of money appropriated by the
Parliament.
(1) If:
(a) apart from this section, the operation of this Act would result in the
acquisition of property from a person otherwise than on just terms;
and
(b) the acquisition would be invalid because of paragraph 51(xxxi) of the
Constitution;
then the Commonwealth is liable to pay compensation of a reasonable amount
to the person in respect of the acquisition.
(2) If the Commonwealth and the person do not agree on the amount of the
compensation, the person may take proceedings in the Federal Court for the
recovery from the Commonwealth of such reasonable amount of compensation as the
Court determines.
(3) Compensation is payable out of money appropriated by the
Parliament.
Part 11 of the Airports Act 1996 has no effect to the extent
to which it is inconsistent with this Act (including regulations under this
Act).
This Act does not affect an immunity or privilege that is conferred by or
under the Consular Privileges and Immunities Act 1972, the Defence
(Visiting Forces) Act 1963, the Diplomatic Privileges and Immunities Act
1967, the Foreign States Immunities Act 1985 or any other
Act.
(1) Without limiting its effect apart from this section, this Act also has
effect as provided by this section.
(2) This Act also has the effect that it would have if its operation were
expressly confined to acts or omissions of corporations to which paragraph
51(xx) of the Constitution applies.
(3) This Act also has the effect that it would have if its operation were
expressly confined to acts or omissions that occur at Commonwealth
places.
(4) This Act also has the effect that it would have if its operation were
expressly confined to acts or omissions taking place in the course of, or in
relation to, trade or commerce:
(a) between Australia and places outside Australia; or
(b) among the States; or
(c) within a Territory, between a State and a Territory or between 2
Territories.
(5) This Act also has the effect that it would have if its operation were
expressly confined to acts or omissions taking place in a Territory.
(6) This Act also has the effect that it would have if its operation were
expressly confined to acts or omissions taking place outside
Australia.
(7) This Act also has the effect that it would have if its operation were
expressly confined to matters:
(a) in relation to which the Commonwealth is under an obligation under an
international agreement; or
(b) that are of international concern.
(1) The Governor-General may make regulations prescribing
matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act.
(2) Without limiting subsection (1), the regulations may:
(a) prescribe fees in respect of matters under this Act (including the
regulations); and
(b) prescribe penalties of not more than 50 penalty units for offences
against the regulations.
(3) Paragraph (2)(b) does not limit any provision in this Act that
provides for the regulations to prescribe penalties higher than 50 penalty
units.