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2002-2003
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF
REPRESENTATIVES
AVIATION TRANSPORT SECURITY BILL
2003
EXPLANATORY MEMORANDUM
(Circulated by
authority of the Minister for Transport and Regional Services,
the
Honourable John Anderson, MP)
The purpose of the Aviation Transport Security Bill (ATS Bill) is to
maintain and improve transport security in civil aviation
by:
• enhancing the structure of the aviation security regulatory
framework and providing for adequate flexibility in order to reflect the rapidly
changing threat environment;
• aligning Australian aviation security
with the revised International Civil Aviation Organisation (ICAO)
standards;
• introducing graduated penalties for a more appropriate or
equitable enforcement regime;
• satisfying recommendations of the ANAO
Report tabled 16 January 2003;
• providing a separate piece of
legislation that will allow for future amendments that may be extended to other
transport sectors; and
• implementing recent policy reviews and
decisions made in response to the elevation of risk to aviation consequent to
aviation terrorist attacks in the USA on September 11 2001.
The Bill
will replace Parts 3 and 3A of the Air Navigation Act 1920 and
will redevelop the regulatory framework such that the Bill and supporting
regulations are more readily understood and applied by government and the
aviation industry.
The Bill allows for significant degree of
flexibility by providing a broad and robust framework and extensive regulation
making powers. The aviation security environment is necessarily responsive to
the increased focus on terrorist activity and new threats of unlawful
interference with aviation. As the nature of these threats changes, the
regulator of aviation security may need to move quickly to implement new
security measures or modify existing measures. By providing for much of the
detail to be set out in regulations, this Bill will allow the Government to
respond to the evolving security situation in a timely fashion, while preserving
the necessary parliamentary oversight.
Having a separate piece of
legislation will clarify the roles and responsibilities of different industry
members and the Australian public in relation to aviation security. It will
also provide enhanced capacity for the Department to monitor or improve
compliance with industry standards. Overall, its provisions reflect the
aviation industry’s primary role in delivering security outcomes and the
Commonwealth’s role in regulating the industry to monitor compliance and
encourage the achievement of those outcomes.
The Bill has ten
parts:
Part 1 – Preliminary: This Part includes the
objects of the Bill, its application, both inside and outside Australia, and
definitions. A detailed definition of the meaning of ‘unlawful
interference with aviation’ is included to clarify the application of the
Bill. The Bill is intended to prevail over other Commonwealth and State laws to
the extent of any inconsistency when necessary to meet the objects of the Bill.
It will not apply to state aircraft or military facilities.
It should
also be noted that by virtue of Section 2.2(2) of the Criminal Code Act
1995, Chapter 2 of the Criminal Code (which is found at the Schedule
to that Act) applies to all offences against this Bill. Chapter 2 of the
Criminal Code contains all the general principles of criminal
responsibility that apply to any offence, irrespective of how the offence is
created. Chapter 2 covers elements of an offence, circumstances in which there
is no criminal responsibility, extensions of criminal responsibility, corporate
criminal responsibility and proof of criminal responsibility. Where no element
is specified, the default elements under Chapter 2 of the Code
apply.
Part 2 – Transport Security Programs: This
Part requires various aviation industry participants to develop and comply with
a transport security program. These programs will regulate the operation of all
persons performing a security function on behalf of the program holder.
Regulations will provide additional detail on the content and form of the
transport security programs. The programs will be approved by the Secretary if
adequate, may be cancelled by the Secretary in certain circumstances, and will
be reviewed over time to maintain relevance.
Part 3 – Airport
Areas and Zones: Under this Part, the Secretary may declare an airport or
part of an airport to be a security controlled airport. The more sensitive
areas of an airport can then be determined and delineated. Airside and landside
areas, and security zones within those areas, are described and may be
established under this Part. This enables appropriate security measures to be
applied to different parts of the airport. These provisions reflect that
different parts of an airport represent different risks to aviation security.
Regulations will identify the requirements that apply to each area or security
zone and the consequences for contravening those requirements.
Part 4
– Other Security Measures: This Part establishes fundamental security
requirements that go beyond the concept of Area-based security controls in Part
3. A key requirement is that passengers and other persons are screened and
cleared prior to entering certain areas and/or boarding an aircraft. The Part
also creates a number of offences relating to carriage of weapons and other
items that, while not strictly weapons, could be used to threaten or cause
injury (ie. prohibited items). In addition, regulations may prescribe detailed
measures to deal with security on-board aircraft. In the event of a specific
threat or a change in the nature of threat to aviation, the Secretary can direct
relevant industry or government authorities to implement measures in order to
reduce the risk of unlawful interference with aviation in the immediate
period.
Part 5 – Powers of officials: This Part deals with
four classes of persons who may exercise powers for the purposes of preventing
unlawful interference with aviation. The four classes of person are:
1. Aviation Security Inspectors (Division 2);
2. Law Enforcement Officers
(Division 3);
3. Airport Security Guards (Division 4); and
4. Screening
Officers (Division 5)
This Part sets out eligibility criteria for each
class of person, grants specific powers to each class and places limits upon the
exercise of those powers. Powers given to law enforcement officers under this
Part are in addition to powers conferred upon them under other State, Territory
or Commonwealth legislation.
Part 7 – Information-gathering: This Part allows the
Secretary to collect and disseminate information prescribed in regulations,
provides for controls on the use and disclosure of that information and protects
the providers of information. The aim is to encourage a dialogue between the
aviation industry and Government and to ensure all critical compliance
information is gathered in a timely and efficient manner. The collection of
information is essential for the Secretary to deal with, and to resolve,
compliance concerns before they become serious and compromise aviation security.
This Part provides a balance by preventing the prosecution of those participants
who readily and appropriately report information relevant to aviation security
under this Part.
Part 8 – Enforcement: This part provides
for a number of different enforcement options in circumstances where
contraventions of the Bill have occurred or are suspected to have occurred.
These enforcement tools are:
• Infringement
notices;
• Enforcement orders;
• Injunctions;
and
• Demerit points systems.
This Part is structured so that
the regulator has a range of options to enforce compliance with the Bill,
instead of or in addition to referring matters to the Director of Public
Prosecutions for the purposes of prosecuting. Prosecutions are resource
intensive and while prosecution is an appropriate tool for serious breaches of
aviation security, the fundamental purpose of aviation security regulation is to
encourage and effect compliance.
Part 9 – Review of decisions:
This Part sets out the decisions which can be made under this Bill which are
reviewable by the Administrative Appeals Tribunal (AAT). Whilst the AAT is
limited in undertaking merits review to the decisions list in this clause, this
does not limit the scope for judicial review to occur under the
Administrative Decisions (Judicial Review) Act 1976, or at common
law.
Part 10 – Miscellaneous: This Part contains technical
information about the operation of this Bill and its intended effect on the
application of existing legislation such as the Airports Act 1996, Consular
Privileges and Immunities Act 1972, Defence (Visiting Forces) Act 1963,
the Diplomatic Privileges and Immunities Act 1967. It also allows
for delegation of certain powers and functions of the Bill. This Part also
includes provisions relating to compensation for damage to an aviation industry
participant’s equipment or data and compensation for acquisition of
property. Finally, this Part allows further regulations to be made as required
to give effect to this Bill.
Existing Budget allocations will be unaffected by this Bill.
For an explicit government regulation framework to be effective in the
aviation context, a key pre-requisite is an environment which fosters
information sharing. In general terms, the Department wishes to promote the
full and frank exchange of information, between government and industry, on
security matters. An information-handling component has been introduced to
cover information provided to the Department relating to compliance with
aviation security standards.
In addition to this, the Aviation Security
Branch maintains a number of formal consultative channels for communicating
information about regulation. First, the Branch hosts a longstanding
industry-Department forum, the ‘Aviation Security Consultative
Group’. This forum is consulted when working through security regulation
issues and their impact upon Australia’s aviation industry. The group
meets approximately once every three months though, in recent times, a number of
additional ‘out of session’ meetings have been called in relation to
specific and urgent aviation security issues. Representatives at these meetings
include the major Australian airlines, airport owners/operators, peak industry
bodies, and relevant Commonwealth agencies.
This measure was developed in light of ANAO concerns that airlines and
airports are currently dependent on security contractors to meet the obligations
of their programs, and that the regulatory structure needed a mechanism to
ensure that contractors were aware of their responsibilities under a program and
were obliged not to obstruct or hinder commitments made in that program.
Aviation security requires a team effort from the many participants operating at
an airport.
3. The introduction of a range of enforcement
options.
The regulatory structure provides a menu of options targeted
at promoting and encouraging compliance. These include a demerit point scheme,
enforceable orders, and injunctions. Proposed options are graduated and seek to
provide the Government with the power to directly target breaches. For example,
the use of an enforcement order to ensure that a door to an airside security
zone is closed is a means of ensuring compliance rather than simply prosecuting
offenders. Such options are not currently available under
legislation.
4. Allowing the regulations to set different
penalties for different classes of persons.
The ANAO report noted
that the penalty structure was rigid and did not recognise the differing levels
of responsibility for delivering aviation security outcomes. The proposed
penalty structure recognises this and provides a graded penalty system based on
responsibility and accountability. For example, a breach of screening would see
the screening officer receive an appropriate penalty for a breach by an
individual, but the screening authority - which has the broader responsibility
for screening at a particular airport or area - would gain a higher penalty.
5. A reduction in the penalty for screening operatives acting
improperly.
8. Providing screening officers and airport security guards with a
limited power to restrain persons.
A final option considered is that of Government regulation,
administration and physical control over the security function at airports.
This would replace the current industry roles, for example, in screening
passengers, baggage and security patrolling.
This approach could reduce
the responsibility for monitoring compliance by industry with respect to
ensuring adequate security and may provide more consistently applied standards.
This service delivery model would however be an approach inconsistent with
established Government policy on devolution of responsibility. There is
significant financial benefit for Government in the current Australian model
where the owners of the infrastructure hold responsibility for security and
where the costs associated with physical aviation security are borne by the
consumer.
There would still need to be a high level of industry
involvement in the security function due to the nature of the aviation industry.
For example, in flight security and passenger baggage reconciliation would still
need to be performed by the airlines.
The financial cost to Government
would be prohibitively high for Government to assume security roles at all
categorised airports. Cost recovery measures directed at getting consumers to
bear some of the cost would be difficult to implement without damaging passenger
numbers and politically challenging for Government. Further, the balance
between security and facilitation of passengers may be adversely affected were
Government to assume the service provider role for aviation security.
The proposed regulative reform to aviation security legislation has not
been subject to detailed quantitative or scientific impact analysis due to the
Government urgency for change. During the review process however, it has been
established that the greatest impact of the change will be on improving the
processes that support existing systems. A broad qualitative assessment of all
of the anticipated effects of each option serves to provide further evidence of
the need for regulatory action, and assist in reaching a conclusion as to which
option is most appropriate.
Any impact analysis for aviation security is
atypical in that the primary benefit is the avoidance of further costs.
Indirect benefits, in the avoidance of indirect costs, also play a substantial
role. Direct and indirect costs, if not avoided, are potentially large enough
to cancel out the overall product revenues of Australian aviation.
Subsequently, the objective of aviation security regulation is to minimise the
risks of such incidents.
Option 1 Self Regulation
The impact of self-regulation on consumers would vary according to their
location. The real impact comes from an increased aviation security risk.
Market forces dictate that there is a clear need for government to counter the
aviation security threat. The economic incentive is not strong enough for
industry to meet the costs of minimising the potential risk of unlawful
interference.
Under such an arrangement, any costs to airlines and
airports relating to security measures would most likely be passed on to
consumers to the extent that consumers would tolerate additional costs. Plus,
the level of public confidence in aviation might decrease without government
monitoring and involvement in maintaining security standards.
In the event of an aviation security incident, it is likely that the
Australian travelling public would demand immediate enhanced security measures.
Airlines would also react by introducing measures in relation to their own
activities. However, in the absence of credible, secure and industry-wide
infrastructure, such a company-specific security response may be more costly
overall, and less effective due to the effects of duplication and lack of
harmonisation.
Without the advantage of a nationally consistent,
industry-wide framework, the immediate introduction of minimum security
standards may necessarily be improvised and unscientific in attempting to
rapidly determine appropriate standards. However, this option would grant
industry the ability to determine what security arrangements are
appropriate.
Under a self-regulated environment it is also possible that
not all operators will implement optimal security measures, further increasing
the risk of unlawful interference.
The administrative and compliance assurance work associated with monitoring
aviation security compliance would be removed from the Department. These costs
would be transferred from the Department to industry.
Under a
self-regulation regime, the Government would lose any legislative power for
ensuring that its policy objectives are met. Since the September 11 attacks,
there has been a strong emphasis on improving aviation security in Australia.
Provision of an additional $1.3 billion over five years (in the 2002-03 Budget
process) to upgrade domestic security demonstrates this. This additional
funding targets improved aviation security, identification of possible security
threats, and increased capacity to respond to security incidents. These
improvements could not be guaranteed under self-regulation.
The aviation
industry is such that a whole variety of different organisations are required to
effect the different functions of air travel, like passenger ticketing, cargo
handling, and terminal operation. The Government monitors each of the relevant
organisations and physical locations to ensure each is aware of its security
obligations. Removing an independent governing body could result in a loss of
integrity of the system. There would be no real incentive to disclose a
security breach by an organisation working as part of the chain as it would have
implications for all the other organisations. For example, an airline may
discover a passenger on an aircraft with a weapon they have managed to carry
through a screening point undetected. For the airline to report the incident
would decrease public confidence in aviation security which would negatively
impact on their business.
The voluntaristic nature of self-regulation means that aviation security
initiatives might only be implemented where strictly needed, at the discretion
of industry. This would represent a decrease in the overall cost of security,
and potentially result in savings to industry, consumers, and the community at
large. This may only be of short-term benefit as any incident involving a
threat to security would have a negative financial impact on the
industry.
The most significant cost associated with the adoption of a self-regulation
approach is that, without suitable legislative enforcement tools, the
Government’s aviation security reform objectives would not be met. This
would mean an increased risk of unlawful interference, and possibly
unprecedented costs for both the aviation industry and Australian community. In
the absence of government involvement or control in a regulatory capacity, the
Australia’s obligations under international treaties would not be
guaranteed.
The use of either a quasi-regulation or co-regulation approach would have
little visible impact on consumers.
In a co-regulation environment, industry would be granted definite, codified
enforcement powers, sufficient to ensure compliance with security standards
within the airport community. For example, common law trespass could be
codified (to enhance legal certainty) at airports. A quasi-regulation approach
would see responsibility for the design of aviation security standards
transferred to industry members. Under either arrangement, it is plausible that
inequitable influence within the industry could occur, thus contravening the
Trade Practices Act and the Government’s Competition policy. For example,
a major airline negotiating standards with a small regional
carrier.
Under a co-regulation arrangement, the Government’s role
would be significantly diminished. Most of the administration and monitoring
costs associated with enforcement would be transferred to industry. However,
this also detracts from the Department’s ability to influence
Australia’s aviation security environment, and its ability to report on
national security objectives.
A quasi-regulated environment would remove
the Government’s ability to dictate the regulations, while still leaving
the costs of administration and compliance with the Department. This would
clearly impact upon the Departments ability to ensure aviation security
objectives are being met.
The benefits of adopting a quasi-regulation or co-regulation solution include
financial savings in terms of costly initiatives. Economic reality dictates
that standards introduced by industry are unlikely to be as pervasive as those
designed by a Government agency. For this reason, the immediate financial cost
to industry would probably be significantly lower.
One cost associated with both co-regulation and quasi-regulation approaches
is that they limit the Department’s ability to ensure the best possible
response to aviation security risk, either by restricting Departmental influence
over the content of aviation standards, or restricting the Department’s
compliance and enforcement options. The potential for unlawful interference
resulting from sub-standard regulation is also present.
In the event
that co-regulation failed or if global political events changed the status of
aviation risk, the Government would incur significant costs in resuming a
regulatory role and would have to do so without current knowledge. Under a
quasi or co-regulation approach, government would lose the significant knowledge
it does have of security issues, making it more difficult to take on direct
regulation in the future.
No significant changes to current facilitation or travel arrangements, from
the point of view of travelling passengers or of members of the general public,
are anticipated to arise from the regulatory proposal. That is, the proposed
measures will have no impact on airfares, or cause any additional delays or
inconvenience for consumers.
The regulatory proposal will only impact upon those members of
Australia’s aviation industry upon whom the Government imposes security
standards. In practice, this comprises the operators of Australia’s
categorised airports (see attachment 1), Australia’s major airlines, and
foreign airlines serving Australia. The cost of improved security measures will
be met by industry.
Explicit government regulation in this area will
impact upon these groups in a number of ways. Clarity of regulatory
requirements under the revised structure will better allow industry to assess
its performance against aviation security requirements. This, coupled with the
new enforcement framework will ensure improved compliance with aviation security
standards. This will further ensure that all industry members maintain a
minimum security level, allowing for increased confidence in the integrity of
Australian aviation security environment. Increased confidence for foreign
carriers in the integrity of Australian security standards will also result from
the implementation of international standards.
Under the proposed reform,
industry will have greater flexibility in meeting prescribed standards. The new
framework will involve broad outcome statements, with new security program
arrangements giving industry discretion as to how these outcomes are achieved.
The onus will remain on industry to prove that they are able to meet the
prescribed standards, but they will have the flexibility to do so in the most
cost-effective manner.
Many of the current aviation security rules are not permanent in nature. In
extreme cases, rules are prepared on an individual flight basis. This means
that, under the current system, there is a lack of certainty and transparency in
the ongoing status of rules. The revised government solution aim to provide
this certainty to both government (as regulator) and industry members. Outcomes
will be codified in the regulations.
While it is anticipated that the
Department’s inspection and compliance budget will remain at current
levels, the range of enforcement tools provided under the new legislation will
improve compliance and enhance the Department’s ability to prosecute
offenders. This will address recent concerns of the Australian National Audit
Office (Report No. 26, tabled 16 January 2003) in relation to action taken by
the Department to correct non-compliance with aviation security
standards.
As a result of the Access Control and ASICs Decisions,
Politically Motivated Violence checks will now become a key part of background
checking for all ASIC applicants and holders. These checks will have financial
implications for the Australian Federal Police (AFP) and ASIO, and these would
be considered in the context of the 2003-2004 Budget.
The new framework will enhance certainty and transparency and will support an
effective industry compliance program. In addition, the reform of aviation
security legislation will address issues such as cargo security, public
safeguards when transporting persons in custody, current legislative loopholes,
ambiguity in the weapons schedule, graduated penalties, airport categorisation,
current Instruments issued under the legislation (with a view to incorporating
several of these into regulations to improve transparency and accountability),
and issues raised in the Australian National Audit Office Report into Aviation
Security.
These measures will minimise the risk of a significant aviation
security incident occurring and strengthen confidence in the security of
Australian civil aviation. Dependent industries (such as tourism) will also be
able to place greater confidence in the security of Australian civil aviation.
The positive effects of a secure aviation infrastructure for Australia benefit
the whole of the Australian community. However, these benefits are difficult to
accurately quantify in dollar terms.
An aviation security breach,
occurring within Australia would impose a substantial cost on all parties
directly affected. These are the direct costs to be avoided and hence the
direct aviation security benefit of an effective aviation security
environment.
The introduction of new aviation security legislation will impact upon the
following classes of people:
1. impact on members of the Australian
community
A revision of Australia’s aviation security legislation
will ensure the continued application of global aviation security practices. It
will also clarify the responsibilities of the travelling public in relation to
aviation security. The threat of a catastrophic and costly event occurring
within Australian aviation will be minimised and confidence in the security of
Australian civil aviation will be strengthened.
In relation to the regulatory proposal, the Department has utilised two
separate consultative processes. First, the Department consulted widely with
industry in reviewing current aviation security policy. Consultative documents
were circulated in instalments relating to a variety of issues. The parties
consulted in this process included Australia’s categorised airports (see
attachment 1), the major Australian airlines, foreign international airlines
serving Australia, and peak industry bodies.
The instalments
comprised:
Instalment 1 Preliminary matters;
Instalment
2 Airport access control;
Instalment 3 Passenger and checked bag
screening;
Instalment 4 Airport measures; and
Instalments 5
& 6 Airline measures and the powers of the Department.
The
Department welcomed formal comment from industry when circulating these
instalments, and substantial comment was received. These consultative papers
formed the basis of the Passenger and Checked Baggage, and Access Control and
ASICs decisions. The outcomes of these Submissions underpin the most
significant changes to the current legislation.
Second, the proposed
changes were presented at the most recent Aviation Security Industry
Consultative Group meeting (19 to 21 February 2003). This forum promotes
consultation widely within Australia’s aviation industry on issues
surrounding aviation security regulation in Australia. In attendance at this
meeting were representatives from the Department, other government agencies, the
major Australian airlines, the major airport operators, and peak industry bodies
(see attachment 2).
Industry members raised a number of concerns with the proposed
reforms.
Industry members were concerned that the new structure did not
contain specific provisions for the prevention of aviation security hoaxes, and
the prosecution of people who provide false or misleading aviation security
information. Consideration was given to this issue, including the possibility
of adding specific hoax provisions to the Bill. However, legal advice on the
matter stated that sufficient hoax protection is afforded by other
legislation.
Another concern raised was that airline and airport
operators, as screening authorities, are accountable for breaches of the
screening point. Consequently they need greater authority to prevent people
from entering or remaining in a sterile area if the person has not been both
screened and cleared. As leaseholder, airports can already do this (in a
similar way to nightclub bouncers), however, the Department agreed to provide
screening officers and airport security guards with a limited power of detention
to strengthen their position.
Industry members also expressed concern
with existing persons in custody provisions. There have been instances where
airline operators have had difficulty in obtaining persons in custody
information from the relevant enforcement body. Such information is necessary
for the airline operator to make an informed decision about whether they can
transport the person and maintain adequate security. This concern has been
rectified under the proposed changes.
Some members of industry also
expressed concern over the proposed use of demerit points. However, the
Department sees this as an integral part of the new compliance
regime.
Aside from these concerns, the Department has received favourable
comment from industry on the overall direction of the proposed aviation security
regulatory framework.
AVIATION TRANSPORT SECURITY BILL 2003
This clause provides that the Bill will be called the Aviation
Transport Security Act 2003 once enacted.
This clause provides that the Bill will commence on the date of proclamation
but not later than 12 months after Royal assent. Commencement by proclamation
will allow time for numerous systems to be developed and in place and it will
allow for completion of the drafting of the regulations, which will need to
commence at the same time as the Bill.
Division 2 – Purposes and
simplified overview of this Act
This clause outlines the purposes of this Bill. In this context, a general
aim of the Bill is also to convey the message that aviation security is
everyone’s responsibility. That is, everyone has an obligation to comply
with security measures so that aviation security is not compromised. In
particular, persons engaged in aviation-related activities have additional
responsibilities as set out in this Bill. The Secretary’s role is to
regulate the security outcomes of the aviation industry.
This clause
specifically states the main purpose of this Bill is to establish a regulatory
framework to safeguard against unlawful interference with aviation. To achieve
this purpose, this Bill establishes minimum security requirements for civil
aviation in Australia by imposing obligations on person engaged in civil
aviation related activities. In particular, it obliges certain aviation
industry participants to develop, and comply with, aviation security programs.
The role of the Secretary under this Bill is to regulate those aviation industry
participants. Another purpose of this Act is to meet Australia’s
obligations under the Convention on International Civil Aviation (also known as
the Chicago Convention).
This clause provides a simplified outline of this Bill.
Division
3 – Application
Clause 5 Extension to
Territories
This clause provides that the Bill applies in all external
Territories, eg. Christmas Island, Norfolk Island etc.
Clause 6
Geographical jurisdiction
This clause means that the Bill may apply
outside Australia through application of section 15.2 of the Criminal
Code (extended geographical jurisdiction – category B). The
extended geographical (or extraterritorial) jurisdiction under that section
requires the offending conduct to have a connection with Australia. This may be
because the conduct occurs within Australia or on an Australian aircraft or
because the offence is committed by an Australian citizen, Australian resident
or Australian company. It may also apply where the conduct occurs outside of
Australia and a result of that conduct occurs in Australia or on an Australian
aircraft. The fact that the conduct is not a crime under the law of the foreign
country where the conduct occurred may be used as a defence for persons who are
not Australian citizens or Australian companies. The practical application of
the extended geographical jurisdiction will further be confined by the
definition of prescribed air service in the
regulations.
Generally speaking, parties to the Convention on
International Civil Aviation (Chicago Convention) are responsible for aviation
security within, and over, their own territory. Australia requires all
international airlines to operate under an Australian security program when
operating within Australia. Nonetheless, there will be occasions when a person
should be liable under Australian law for conduct that incurred outside
Australia due to the impact that conduct might have on our aviation security
system. Australia accepts passengers, baggage and cargo into its international
terminals without the need for additional screening. Were an airline to deliver
unscreened passengers or baggage, it could compromise security at those
terminals, possibly requiring disruptive and expensive remediation. If, for
example, an explosive device or weapon were found in an aircraft that had just
arrived in Australia, the international airline may need to be held responsible
for a failure to adequately screen the aircraft before departure from the
overseas airport. Another example could be failure to comply with a special
security direction that imposes special security procedures for air transport
services between Australia and a particular foreign country.
Due to the
definition of this Act, any regulations made under the Bill will
also have extended geographical jurisdiction.
Clause 7 Act to bind
Crown
This clause provides that the Crown in right of the Commonwealth
and all the States and Territories is subject to the Bill, but it cannot be
prosecuted for an offence under the Bill.
Clause 8 Act not to apply
to state aircraft
The Bill does not apply to a state aircraft, a term
defined in clause 9. In addition it will not apply to civil aircraft that the
Australian Defence Force leases, charters or otherwise operationally controls.
Subclause 8(2) also clarifies that the Australian Defence Force is not an
aviation industry participant under this Bill.
It should be noted that by
virtue of the savings provisions in clause 131 many provisions of the Bill will
not apply to the representatives or defence forces of foreign States.
Division 4 – Definitions
Clause 9
Definitions
This clause defines certain terms used in the Bill. The
definitions appear in alphabetical order in the Bill. However, for the purposes
of the explanatory memorandum, the definitions have been grouped together where
that may aid interpretation. Only select definitions are explained
here:
Aircraft has the same meaning as in the Civil Aviation
Act 1988, that is, any machine or craft that can derive support in the
atmosphere from the reactions of air, other than the reactions of the air
against the earth’s surface. This excludes hovercraft.
Airside
area means an area established under subclause 29(1). Subclause 29(1)
requires the Secretary to make public, by way of a notice in the Gazette,
the physical location of the airside area within the boundary of a security
controlled airport.
A landside security zone means an area within the designated
landside of a security controlled airport that is established under subclause
28(2). The purpose of designating a landside security zone within the landside
area is that areas that require stricter or more specialised controls can be
treated accordingly.
Aviation industry participant is defined
to include persons who must have regard to aviation security matters as part of
their business. An aviation industry participant includes:
• an
airport operator;
• an aircraft operator;
• a regulated air
cargo agent;
• a person who occupies or controls an area of an airport
(whether under a lease, sublease or other arrangement);
• a person
(other than an aviation security inspector) appointed by the Secretary under
this Bill to perform a security function; or
• a contractor who
provides services to a person mentioned above.
• employed by an aviation industry participant; or
• engaged
under a contract for services between the person and the aviation industry
participant.
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 aircraft. The key concept in this definition is to only include items
that are on-board an aircraft as the article or possession of a person
travelling on that same aircraft, whether in the cabin or bellyhold of the
aircraft. For example, if a person intended to take an item of baggage with
them on a particular aircraft, and it was subsequently decided that the item
would reach the same destination on a different aircraft, the item would not
fall within this definition of baggage. Unaccompanied baggage travels as cargo
and therefore is not captured by this definition because this type of baggage
may be subject to different security controls.
Cargo means goods,
other than baggage, carry-on baggage or stores, that are transported, or
intended to be transported, by aircraft.
Stores means items
that are to be carried on-board an aircraft for use, sale or consumption on the
aircraft.
Cleared aircraft means an aircraft where the
regulations require all passengers to be cleared before they board that
aircraft.
A cleared area is an area that can only be entered by
persons who have received clearance. A cleared area is considered a secure
environment, as all persons within that area have been screened for weapons and
other prohibited items or otherwise deemed cleared. A cleared area can no
longer be considered secure, and ceases to be a cleared area, if uncleared
persons or goods move into the area.
Engage in conduct is defined in this Bill to have the same meaning as
that provided in the Criminal Code Act 1995, to mean:
• to do an
act;
• omit to perform an act.
For example, paragraph 79(5) uses the
term engage in conduct. If a person fails to perform an act, and that
failure itself hinders or obstructs an aviation security inspector in the
exercise of his or her powers, the person has engaged in conduct for the
purposes of that offence provision.
Excepted circumstances in
relation to protected information has the meaning given by subclause 113(2).
This subclause limits the disclosure of protected information to those persons
who have legitimate need of the information.
In service in
relation to an aircraft is defined as having the same meaning as in Article 2 of
the Montreal Convention:
“an aircraft is considered to be in
service from the beginning of the pre-flight preparation of the aircraft by
ground personnel or by the crew for a specific flight until twenty-four hours
after any landing. The period of service shall, in any event, extend for the
entire period during which the aircraft is in flight as defined in paragraph (a)
of this Article.”
Paragraph (a) states:
“an aircraft is
considered to be in flight at any time from the moment when all its external
doors are closed following embarkation until the moment when any such door is
opened for disembarkation. In the case of a forced landing, the flight shall be
deemed to continue until the competent authorities take over the responsibility
for the aircraft and for persons and property
on-board.”
Montreal Convention has the same meaning as that
given in the Crimes (Aviation) Act 1991. The full title of the Montreal
Convention is the Convention for the Suppression of Unlawful Acts Against the
Safety of Civil Aviation 1971 done at Montreal on 23 September
1971.
• could be used for unlawful interference with aviation; and
• is prescribed in the regulations for the purposes of this
definition.
This definition recognises that many items, which are not
strictly considered to be weapons, could be used to threaten, injure or in any
way commit an act of unlawful interference with aviation. The penalties that
pertain to prohibited items are significantly lower than those for weapons to
reflect the relative seriousness of the offences. The reference to unlawful
interference with aviation appropriately limits the regulation making power
given there are serious offences attached to the definition. Examples of
prohibited items are discussed in the explanatory material for Part 4
Division 4 below.
Weapon is defined to mean:
a) a firearm of
any kind; or
b) a thing prescribed by the regulations as a weapon; or
c) a
device that, except for the absence of, or 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).
It is essential to allow the regulations to
prescribe what a weapon is because new weapons may be developed and new threats
may arise. Amendments in response to these situations may need to be inserted
into the regulatory framework quickly, which is not achievable by having to
amend an Act.
Receive clearance is the decision made, after a
person, vehicle or good has been screened, to allow that person, vehicle or good
to proceed into a cleared area, cleared zone or cleared aircraft. There are
also some situations where a person, vehicle or good are deemed to have received
clearance. For example, some persons, such as Heads of State, are exempt from
the screening requirements and are deemed to have received clearance in order to
board aircraft.
Regulated cargo agent means a person designated
as a regulated cargo agent in accordance with regulations made under clause 44.
Regulated cargo agents undertake responsibility for screening air cargo.
Regulations will prescribe requirements for regulated cargo
agents.
Security compliance information means information that
relates to compliance, or a failure to comply, with this Bill the regulations or
an instrument made under this Bill or the regulations. The purpose of security
compliance information is to allow the Department of Transport and Regional
Services (the Australian regulator of aviation security) to obtain information
to address security compliance issues.
A security controlled airport
is established under clause 28(2) when the Secretary publishes a map in the
Gazette showing the physical layout and boundaries of that airport.
State aircraft is defined with the same meaning as the Air
Navigation Act 1920, which currently states:
a) aircraft of any part of the Defence Force (including
any aircraft that is commanded by a member of
that Force in the course of his or her duties as such a member), other than
any aircraft that by virtue of
registration under the regulations is an Australian aircraft; and
b) aircraft used
in the military, customs or police services of a country other than
Australia.
It should be noted that it is proposed to amend this
definition in the Civil Aviation Legislation Amendment Bill 2003 by
deleting the underlined text.
Transport security program is
defined as a program prepared for the purposes of Part 2 of the Bill. The
program is a fundamental tool for ensuring aviation industry participants
understand and effect their role in delivering aviation security outcomes.
Division 5 – Unlawful interference with aviation
This clause defines the term unlawful interference with aviation. The
definition is integral to the understanding and application of the Bill. It
determines the parameters of what unlawful interference with aviation is, how it
may occur and thus the harm or threat that this Bill safeguards against. It
covers conduct that threatens the safe operation of aircraft and airports, and
thus, behaviour which may cause harm to passengers, crew, ground personnel and
the general public or damage to property.
The term is based upon
guidance from the International Civil Aviation Organisation (ICAO) that is
contained in Doc 9713 Parts 1 and 2 ICAO Vocabulary 2001 – act of unlawful
interference A53.
The term is defined through paragraphs 10(a) to (h),
listing the circumstances in which unlawful interference with aviation can
occur, namely:
• where control of an aircraft is taken by force, or
threat of force, or by any other form of intimidation. This subclause covers a
hijacking;
• where an aircraft is destroyed when it is in service.
“In service” is taken to mean when the aircraft is operating as an
aircraft and can include when it is being maintained and serviced as well as
when it operating as a transport conveyance. This subclause covers a bomb
attack;
• where damage is done 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. This subclause covers sabotage such as mechanical interference with
the intention of damaging the aircraft such as may occur when the aircraft were
being maintained;
• when 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. This clause envisages acts that would take place within
the aircraft cabin;
• when something is placed, or caused to be placed,
on an aircraft that is in service that puts the safety of that aircraft or any
person on-board or outside that aircraft at risk. This clause covers placement
of bombs or such devices in aircraft, both in the passenger cabin, or in the
bellyhold;
• when the safety of aircraft is put at risk by damage or
destroying of air navigation facilities. This would cover damage to or
interference with air navigation aids such as control towers, beacons and
signals interference;
• where the safety of an aircraft is put at risk
by communication of false information. This would cover threats, hoaxing, or
other provision of information that would cause an aircraft to take such action
that would put it at risk; and
• where a person commits an act at an
airport, or causes interference or damage that puts the safe operation of an
airport or the safety of any person at the airport at risk. This subclause
would cover destruction of key facilities or infrastructure.
Transport security programs allow regulation of aviation security
according to the different physical and operational characteristics of aviation
industry participants. The key organisations are required to develop a
transport security program to demonstrate an understanding of their roles and
responsibilities in managing aviation security and its ability to meet
obligations.
Division 1 – Simplified overview of
Part
This clause provides an overview of each Division in this Part.
Division 2 – Aviation industry participants required to have
programs
Certain aviation industry participants must have a transport security program
in order to operate their business, including an operator of a security
controlled airport and an operator of a prescribed air service. Paragraph
12(c) allows regulations to be made which require other aviation industry
participants to have a program.
Not all airport and aircraft operators
currently fall under the auspices of aviation security regulation. For example,
by limiting paragraphs 12(a) and (b) to security controlled airports and
prescribed air services, the regulations need not include private aircraft
operators in the requirement to have a program according to current policy. On
the other hand, the entire provision provides flexibility if the future aviation
security environment warrants heavier regulation of participants such as very
small airport operators, or contractors who provide a specific security
service.
If an aviation industry participant is required to have a program, it is an
offence punishable by 200 penalty units for that participant to operate without
a program. Under section 4AA of the Crimes Act 1914, 1 penalty unit means
$110. Section 4B(3) of that Act allows the court to impose a penalty upon a
body corporate up to 5 times the amount of the maximum that could be imposed on
a natural person (ie. an individual) convicted of the same
offence.[1] For the offence to apply,
the participant must operate as a participant of that kind under
subclause 13(1)(b). This subclause was inserted so that an organisation
must actually be operating a relevant business for the offence to apply. This
clause is not intended to capture participants who are not in operation as a
participant of that kind (for example, a recently established airline without a
program can only commit an offence under this provision once it begins operating
its airline business). The offence is one of strict liability and does not
apply if the participant has a reasonable excuse.
Clause 14
Participants must comply with programs
Participants will be guilty of an
offence punishable by 200 penalty units if they do not comply with the program
that is in force for an aircraft or airport operator and 100 penalty units for
other aviation industry participants. The offence is one of strict liability,
however subclause 14(2) provides that it does not apply if the participant has a
reasonable excuse. Reasonable excuse is a very limited legal defence that
applies in addition to the usual defence of mistake of fact for strict liability
offences as set out in the Criminal Code. In this context, a
reasonable excuse may be unforseen infrastructure damage caused by extreme
weather.
Division 3 – Complying with programs of other
participants
Clause 15 Complying with transport security programs
of other participants
This clause is aimed at encouraging the many
participants, who operate a business at an airport or with respect to an
airline, to comply with transport security programs. Aviation security requires
a team effort from all participants that potentially impact upon aviation
security.
Subclause 15(1) provides that an aviation industry
participant must not engage in conduct that hinders or obstructs compliance with
the program of another participant. This clause imposes obligations on any
participant.
Under subclause 15(2), participants also have a positive
obligation, and must take all reasonable steps, to comply with another’s
program if they operate underneath that program and they have been given the
relevant parts. It is common for airport and aircraft operators to contract
certain activities or lease land or buildings to another organisation. This
subclause imposes obligations on aviation industry participants who have a
contractual relationship with the program holder and who are identified in the
transport security program. It should be noted that due to paragraph 16(2)(g)
these participants will have been consulted in the development of the program.
Subclause 15(3) provides that contravening this obligation does not
constitute an offence. Instead, a participant may be subject to an enforcement
order under clause 119 or an injunction under clause 124. Airport and aircraft
operators are expected to have adequate contractual arrangements in place so
that contractors, tenants and the like are held to account for actions or
omissions which impact on aviation security. However, this provision recognises
there may be some cases where it is more appropriate for the regulator to go
directly to the source of the problem that is potentially compromising aviation
security. This may be required where there is a commercial dispute between the
parties. This subclause aims to encourage compliance across the entire chain of
authority, without undermining the principle that ultimate responsibility for
program compliance rests with the owner of the program. This clause responds
specifically to a recommendation made by the ANAO Report on Aviation
Security.
Division 4 – Content and form of
programs
Clause 16 Content of programs
The transport
security program is a key aspect of aviation security regulation. It is the
guiding document that coordinates all security activities with respect to the
participant’s operation. The program does not provide an interpretation
of the obligations set out in the Bill and regulations. Rather, it contains
material relevant to the management of security by the participant that is not
prescribed anywhere else in the regulatory framework. It also requires the
program holder to demonstrate its ability and dedication to implement aviation
security outcomes. The content of the program has three elements:
To
meet the requirements set out in subclause 16(1), the participant must
demonstrate that the participant:
• is aware of its general
responsibility to contribute to the maintenance of aviation
security;
• has developed an integrated, responsible and proactive
approach to managing aviation security;
• is aware of, and has the
capacity to meet, the specific obligations imposed on the participant under this
Act; and
• has taken into account relevant features of the
participant’s operation in developing activities and strategies for
managing aviation security.
The purpose of this subclause is to require the
participant to demonstrate to the regulator through its program that it is a
dependable organisation with the capacity and desire to deliver security
outcomes.
Subclause 16(2) requires a program to set out certain specific
information:
• how the participant will manage and coordinate aviation
security activities within the participant’s operation. For example, this
may include outlining the role, structure, membership and protocol of the person
or body responsible for security within the organisation;
• how the
participant will coordinate the management of aviation security with other
parties (including Commonwealth agencies) who have responsibilities for, or are
connected with, aviation. This may include identifying links with other
relevant authorities and the communication systems or existence of contractual
arrangements in place to support these relationships;
• the technology,
equipment and procedures to be used by the participant to maintain aviation
security. The matters contemplated by this paragraph include, but are not
limited to, the type and model of screening equipment used, the frequency and
standard of patrolling by law enforcement officers and airport security guards
and the lighting, fencing and barriers used, some of which may need to meet
internationally accepted standards;
• how the participant will respond
to aviation security incidents. This would include contingency plans and how
those plans are to be exercised to ensure the participant is prepared to deal
with an aviation incident;
• the practices and procedures to be used by
the participant to protect security compliance information. This may involve
setting out how the participant ensures its employees recognise and treat
sensitive information as confidential, the consequences of not complying with
those internal procedures and the equipment used to store sensitive
material;
• the other aviation industry participants who are covered
by, or operating under, the program. For example, the program would set out the
identity and services provided by all organisations operating under the program
(such as agents, contractors, tenants and like organisations). It would also
provide the way in which the program holder ensures those organisations comply
with security obligations;
• 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.
The
preparation of an effective program requires a thorough appreciation of the
physical, operational and contractual characteristics of the individual
participant.
This type of specific information is contained in the
programs, rather than in regulations, for a number of reasons. Firstly, the
program completes the regulatory framework by setting out operation-specific
measures over and above those required in the Act and regulations. Secondly,
much of this information is not and should not be publicly available.
Disclosing some of the matters set out in programs could reduce the
effectiveness of those matters and in some cases may compromise security.
Thirdly, programs allow different participants to match their program to their
individual risk and operational profile. For example, the operator of Sydney
Kingsford Smith Airport would need to set out more comprehensive measures in
relation to patrolling of the airside area in its program than the operator of
Kalgoorlie Airport before the Secretary would approve the
program.
Subclause (3) provides that the regulations may also set out
requirements for:
• each program. That is, where the requirement needs
to apply to all programs;
• the programs of a particular kind of
participant. That is, different matters may be set out for different kinds of
participants. For example, an aircraft operator’s program would contain
slightly different information to an airport operator’s program;
or
• each program for a particular class of a particular kind of
participant. For example, each kind of participant may be categorised or
grouped administratively to allow a different level of requirements to be
applied according to risk profile. For example, this means that large operators
can be subject to different requirements to smaller operators.
Clause
17 Form of programs
Programs are required to be writing. Regulations can
also set out requirements for the form of programs. Subclause 17(2) requires a
further requirement for an airport operator to include detailed maps (and
proposed changes) that show the boundaries of landside and airside areas and
zones of the airport. It is envisaged these maps may also show access points
around the airport. The maps which include security zones are not suitable for
public disclosure in the interests of security, but are very important in
determining the obligations of participants and therefore they impact on the
offences in relation to controlling access to these areas and zones.
Division 5 – Approving, revising and cancelling
programs
Clauses 18 and 19 Providing programs for
approval
Clause 18 allows a participant to prepare a program and request
the Secretary to approve that program. Clause 19 controls the way in which the
Secretary makes a decision to approve or refuse to approve a program.
If
the Secretary is satisfied the program adequately addresses the relevant
requirements, the Secretary has no choice but to approve the program (subclause
19(1)). Alternatively, if the Secretary is not satisfied he or she has no
choice but to refuse to approve the program (subclause 19(2)). The Secretary
must give the participant written notice of the decision to approve or refuse.
In making the decision to approve or refuse to approve, subclause 19(3)
allows the Secretary to take account of existing circumstances as they relate to
aviation security. That is, the Secretary may have regard to the current
aviation environment to determine whether the participant should have a program.
For example, if the nature of the threat level changed significantly, the
participant may need to set out the relevant requirements in more detail and
possibly commit to a greater level of measures, for example, more security
personnel or more frequent patrolling.
Subclause 19(4) imposes a time
limit of 60 days on the approval of programs. This is to ensure an outcome is
reached within a period known to both parties. If the time period lapses with
no decision made, a participant would be able to seek review of the deemed
refusal in the AAT.
Clause 20 When a program is in force
The
written notice of approval should specify the time the program comes into force
(subclause 20(1)). However, where no time is specified, the program comes into
force when the notice is given (subclause 20(2)). Subclause 20(2) also prevents
retrospective approvals. The earliest time a program can come into force is
when the notice is given.
A program remains in force under subclause
20(3) until the program is replaced or cancelled. A program can be replaced
under subsection 22(2) via three circumstances; where the Secretary approves a
revised program, which has been revised by the participant
either:
• voluntarily under clause 22; or
• as directed by the
Secretary under clause 23; and
• at least every 5 years as required by
clause 24.
Clause 21 Secretary may direct participants to vary
programs
Subclause 21(1) allows the Secretary to, by written notice,
direct a participant to vary a program where the Secretary is no longer
satisfied the program adequately addresses the relevant requirements under
Division 4. Subclause 21(2) prohibits the Secretary from making a direction to
vary unless the Secretary is satisfied the variation is appropriate to
adequately address the relevant requirements. It should be noted that clause 25
provides for cancellation in situations where the Secretary is not satisfied
that the problem can be remedied through a variation. The purpose of this
clause is to address specific problems or inadequacies in a participant’s
program that can be resolved by varying the program. An example of a direction
to vary is where a Special Security Direction is issued to implement a
particular measure in response to an immediate threat and that threat evolves
into an ongoing one. A direction to vary would then incorporate that measure
into the relevant participants’ program(s).
Subclause 21(3) aims to
ensure certainty by requiring the Secretary to provide a notice setting out the
variation and the period within which the participant must submit the varied
program.
If the participant does not comply with a direction to vary,
the Secretary must cancel the program under subclause 21(4). However, the
Secretary may allow extra time for the participant to comply, reducing the
likelihood that a program will be cancelled for failing to meet this
deadline.
Clause 22 Participants may revise programs
This
clause allows the participant to voluntarily revise its own program. A
participant may consider that its program could be improved to fit changed
circumstances. The participant can then take positive steps to revise its
program and submit it to the Secretary for approval.
Subclause 22(2)
provides for the revised program to replace the existing one. A new program
effectively comes into force when approved and the five year period starts again
for the purposes of the mandatory review requirement under clause 24. The
participant should clearly indicate the changes made by the revised program to
allow the Secretary to assess the adequacy of the changes.
Clause 23
Secretary may direct participants to revise programs
The Secretary may
under subclause 23(1) direct a particular program holder or all program holders
to revise their programs and submit them for approval in accordance with clause
22. Once approved, the revised program replaces the existing one. The purpose
of this clause is to compel program holders to reconsider the existing aviation
environment and relevant operation-specific factors to determine whether their
program remains adequate. Circumstances where this direction power may be used
include, but are not limited to, the following:
• intelligence is
obtained which indicates an increase in the threat of unlawful interference with
aviation;
• a general increase in the likelihood of terrorism that
could possibly impact on aviation security, for example, as a result of the Bali
bombings of 12 October 2002; or
• systematic issues identified through
the audit process.
Subclause 23(2) requires the Secretary to provide a
notice specifying the period within which the revised program must be given.
The participant should clearly indicate the changes made by the revised program
to allow the Secretary to assess the adequacy of the changes.
Again,
the Secretary must cancel the program under subclause 23(3) if the participant
fails to comply with the direction. However, the Secretary may allow extra time
for the participant to comply, reducing the likelihood that a program will be
cancelled for failing to meet this deadline.
Clause 24 Programs must
be revised every 5 years
The purpose of this clause is to ensure programs
are revisited over time so that they remain living and relevant documents to the
participants’ business. Participants must therefore revise their programs
at least once every 5 years in accordance with clause 22. Once approved, the
revised program replaces the existing one. Where this does not occur, this
clause requires the Secretary to cancel the program, that is, where the program
has been in force for a period of 5 years and the Secretary has not approved a
revised program for the participant within that period. The level and nature of
threats and acts of unlawful interference with aviation have changed
dramatically in the past 5 years. This trend is expected to continue.
Effective regulation of aviation security requires flexibility, continuous
improvement and adaptation to existing circumstances.
Clauses 25 and
26 Cancelling programs
Clauses 25 and 26 require or allow the Secretary
to cancel a program in certain circumstances. A participant who is no longer
capable of meeting its obligations as an organisation in relation to aviation
security will not be allowed to operate its business. The Secretary’s
role is to regulate aviation industry participants to ensure they deliver
security outcomes. Where it is clear they are no longer able to do so, these
provisions are essential to protect the general public by enabling the programs
to be cancelled.
Inadequate programs
Clause 25 addresses the
case where the Secretary is no longer satisfied the program meets the relevant
requirements, and variation or revision of the program would not resolve the
problem. The Secretary must cancel the program under this
clause.
Failure to comply
Clause 26 addresses the case where
the program itself does meet the relevant requirements, but the participant is
not complying with that program. The Secretary may cancel the program under
this clause.
Cancellation of a program effectively means the
participant can no longer operate its business. Subclause 26(1)(b)
appropriately controls the Secretary’s discretion to cancel a program
under this clause. It requires the participant to have accumulated a prescribed
number of demerit points before the Secretary may cancel the program.
Therefore, a participant’s program may be cancelled only where systematic
breaches have occurred or a persistent disregard for compliance is displayed.
Subclause 26(2) allows the Secretary to give the participant an opportunity to
show cause why a program should not be cancelled.
This Part allows the Secretary to establish a security controlled
airport. The establishment of a security controlled airport brings that
particular airport under the regulatory framework for aviation security. Many
provisions in the Bill apply only to security controlled airports. The decision
to establish a security controlled airport has a significant effect on the
business of an airport operator and is therefore merits reviewable under clause
126. This approach also allows an appropriate balance to be achieved between a)
preventing unlawful interference with aviation, b) maximising the
efficiency of trade and commerce; and
c) providing cost effective services to
regional Australia.
Maintaining the integrity of the boundaries of the
landside and the airside is an essential component in achieving aviation
security outcomes. The airside area, and security zones that may be established
within the airside and landside areas, will have tighter or more specialised
access control arrangements than other parts of the airport to reflect the
particular risk to aviation security presented by that part of the airport.
Procedures and arrangements will be put in place in the regulations. These will
include restricting entry only to authorised persons, preventing unauthorised
access and deterring and detecting premeditated access.
Clause 27 Simplified overview of Part
This clause provides a
simplified outline of this Part.
Subclause 28(1) defines an airport to mean an area of land or water intended
for use either wholly or in part in connection with the arrival, departure or
movement of aircraft. It also includes any area that is controlled by an
airport operator that is contiguous with such an area of land and water. This
definition recognises that Australian airports differ greatly from one another
and include such features as business parks, wetlands and sea frontage. For
example, wetlands would not be used for the movement, arrival or departure of
aircraft, but still fall within the boundaries of some airports and therefore
form part of the airport for the purposes of the definition.
Subclause
28(2) provides for the Secretary to publish a notice in the Gazette, so that the
establishment of an airport, or part of an airport, as a security controlled
airport is made public.
Subclause 28(3) provides that the notice the
Secretary publishes under subclause 28(2) will be accompanied by a map that
shows the boundaries of the airport. This will ensure people are able to find
out where the boundaries are.
Subclause 28(4) excludes any areas
controlled exclusively by the Australian Defence Force from being included
within the boundaries of a security controlled airport. The Secretary may
include a joint user area within the boundaries with the agreement of the
Secretary of the Department of Defence.
Subclause 28(5) defines a joint
user area as one controlled jointly by the Australian Defence Force or one or
more aviation industry participants.
Subclause 29(1) provides that the notice issued in the Gazette by the
Secretary under 28(2) will establish an airside area for a security controlled
airport and show the boundaries of the airside area. This will ensure people
are able to find out where the boundaries are. This is particularly important as
some offences, for example possession of a weapon in an airside area, rely on
these boundaries. While it is envisaged that the regulations will provide for
appropriate signage to be displayed in these areas, this notice requirement
provides an extra method for clarifying obligations placed upon
individuals.
Subclause 29(2) specifies that the purpose of the
establishment of an airside area is so that access to the operational areas of a
security controlled airport can be controlled. Control of airside access is
essential to the achievement of aviation security outcomes.
Once an
airside area is established for a security controlled airport, the remaining
area within the boundaries of that security controlled airport is the landside
area under subclause 29(3). The purpose of this subclause is to establish a
landside area and all parts of an airport will be either landside or airside
areas. The terms airside and landside are used in this Bill to reflect their
common usage among aviation industry participants.
Having established an airside area on a security controlled airport, the
Secretary may then establish security zones within that airside. This system is
designed to promote flexibility within and across airports to focus on getting
the right security measures operating in the right areas.
Subclause 30(1)
provides for the Secretary, by written notice given to the operator of a
security controlled airport, to establish one or more airside security zones
within the airside area of the airport. The types of zones are described in
clause 31.
Subclause 30(2) provides that in establishing airside security
zones, the notice must include a map of the airport that shows the boundaries of
the zones. Unlike the notice and map of an airside area, this notice and map
will not be gazetted and should not be publicly available for security reasons.
The maps will only be distributed to those whose obligations are dependant on
the boundaries of these security zones. It is also envisaged that the
regulations will provide for appropriate signage to be displayed in these zones.
Subclause 30(3) explains that the purpose of the airside security zones
is to allow for stricter or more specific controls to be effected in those
zones. In general, access to the airside area will have conditions attached,
such as screening, identification and supervision, having a lawful reason to
enter, depending on the level of security required in that zone. The security
zones that may be designated may include areas for cleared persons, for cleared
baggage, for loading and unloading aircraft or to protect traffic control towers
and fuel facilities.
Subclause 31(1) provides for regulations to be made that may prescribe
different types of airside security zones.
Different types of security
zones will enable specific security issues to be addressed in a targeted
manner.
Subclause 31(2) outlines the purposes for which different types
of airside security zones may be prescribed and include:
• controlling
the movement of people, vehicles and goods within airside
areas;
• restricting access to zones within airside
areas;
• providing cleared zones;
• preventing interference
with aircraft (including unattended aircraft); and
• ensuring the
security of control towers, fuel storage areas, general aviation areas, cargo
and baggage handling facilities, navigational aids, and critical facilities and
critical structures.
Subclauses 31(3) and (4) note that a facility or a
structure is a critical facility or structure if interference with them could
put the safe operation of an airport or an aircraft at risk. For example, a
critical facility may be a building that is used to store screened catering
goods immediately before being loaded onto aircraft. A zone may be set up in
order to apply security controls to this building, to reduce the likelihood of
interference with those goods and support the safe operation of the relevant
airport or aircraft.
The diagram below at Figure 1.0 helps to explain the
concept of dividing a security controlled airport into areas and zones for the
purposes of this Part of the Bill.
Figure 1.0: Airport Areas and Zones
Security Controlled Airport
Airside Security Zone around a navigation aidAirside
Security Zone around the fuel facilityAirside Security Zone
around the Air Traffic Control TowerLANDSIDE
AREATerminal building
Airside Security Zone used for loading and unloading
screened aircraft
Airside Security Zone used for holding screened and cleared persons and goods before passengers board aircraft
Airside Security Zone around the fuel
facilityLANDSIDE AREA
Security Controlled
AirportAIRSIDE
AREATerminal
building
Airside Security Zone used for holding screened and cleared persons and goods before passengers board aircraft
Airside Security Zone used for loading and unloading screened aircraft
AIRSIDE AREA
Clause 32
Landside security zones
Subclause 32(1) allows for the Secretary, by
written notice to the airport operator, to establish a landside security zone
within the landside area of a security controlled airport. Such a zone may be
established to apply particular measures through regulation.
While
landside areas have traditionally been considered freely accessible to the
general public, provision has been made in this clause to designate a landside
security zone should the need arise. For example, in the future, it may be
necessary to act quickly to restrict entry into the terminal building to include
passengers and aviation industry participants only. The establishment of a
landside security zone would allow this to occur without having to amend the
Act. Other examples include ensuring unattended vehicles are not permitted or
situated in the drop off zone directly outside the front of the terminal, or
screening people before entry to the terminal.
Subclause 32(2) provides
that the notice establishing landside must include a map of the airport that
shows the boundaries of the landside security zones. Unlike the notice and map
of the airside area, the notice and map of landside security zones will not be
gazetted and should not be publicly available for security reasons. However, it
is envisaged that the regulations will provide for appropriate signage to be
displayed in these zones so that people are able to determine their
obligations.
Subclause 32(3) establishes that the purpose of the landside
security zones is to allow for stricter or more specific controls to be
effected.
Clause 33 Types of landside security
zones
Subclause 33(1) allows for regulations to prescribe the different
types of landside security zones.
Subclause 33(2) outlines the purposes
for which the types of landside security zones may be prescribed. These
purposes include:
• controlling the movement of people, vehicles and
goods within landside areas;
• restricting access to zones within
landside areas;
• providing cleared zones;
• preventing
interference with aircraft (including unattended aircraft);
and
• ensuring the security of control towers, fuel storage areas,
general aviation areas, cargo and baggage handling facilities, navigational
aids, and critical facilities and critical structures.
These purposes
mirror the purposes in subclause 31(2) that apply to the airside
area.
Clause 34 Secretary must consult etc
This clause provides
that in establishing an airport area, an airside security zone, or a landside
security zone at a security controlled airport, the Secretary must have regard
to the purpose of the area or zone and take into account the views of the
airport operator, the physical features of the airport and the operational
features of the airport. This clause is necessary to ensure that the zones or
areas are established with regard to the differing needs and features that exist
at Australian airports and recognises that unique circumstances need to be
considered in establishing physical access control systems.
Division 3
– Control of airside areas and zones
Clause 35 Requirements
for airside areas
Subclause 35(1) allows regulations to be made for the
purposes of safeguarding against unlawful interference with aviation that
prescribe requirements in relation to the airside area of a security controlled
airport. The reference to unlawful interference with aviation appropriately
limits the extent of requirements that can be prescribed by regulations made
under this clause.
Subclause 35(2) outlines the matters that may be
dealt with by regulations made under subclause 35(1) and
include:
• access to the airside area;
• patrolling of the
airside area;
• the provision of lighting, fencing and storage
facilities;
• the identification or marking of the airside area (for
example, through compulsory signage);
• the approval of building works
within, or adjacent to, the airside area;
• the screening of people,
vehicles or goods for entry to the airside area;
• the security
checking (including background checking) of persons who have access to the
airside area. This category will allow for the establishment of the Aviation
Security Identification Card (ASIC) scheme that provides background checking for
ASIC card holders. The ASIC is the key identification measure for aviation
personnel who have access to security restricted areas at
airports;
• the movement, management or operation of aircraft, vehicles
and other machinery in the airside area;
• the maintenance and the
integrity of the airside area;
• access to aircraft (including
unattended aircraft) from the airside area;
• the management of people
and goods (including the management of unaccompanied, unidentified or suspicious
goods) in the airside area; and
• the management (including the sale or
disposal) of vehicles or goods abandoned in the airside area.
This list gives
an indication of the matters that may be contemplated for regulations made under
this clause.
Subclause 35(3) provides that regulations made under
subclause 35(2) may prescribe penalties. The penalties for an offence committed
by an airport operator or an aircraft operator must not exceed 200 penalty
units. The penalties for an offence committed by an aviation industry
participant (other than an aircraft operator or airport operator) may not exceed
100 penalty units. An offence committed by any other person may not exceed 50
penalty units. This graduated penalty range reflects the different levels of
responsibility for aviation security for aircraft and airline operators, other
aviation participants and individuals.
Clause 36 Requirements for
airside zones
Subclause 36(1) provides that regulations may be made, for
the purposes of safeguarding against unlawful interference with aviation,
prescribing requirements in relation to the different types of airside security
zones at security controlled airports. The reference to unlawful interference
with aviation appropriately limits the extent of requirements that can be
prescribed by regulations made under this clause.
Subclause 36(2)
outlines the matters that may be dealt with by regulations made under subclause
36(1) and include:
• access to airside zones;
• patrolling of
airside zones;
• the provision of lighting, fencing and storage
facilities;
• the identification or marking of airside zones (for
example, through compulsory signage);
• the approval of building works
within, or adjacent to, airside zones;
• the screening of people,
vehicles or goods for entry to airside zones;
• the security checking
(including background checking) of persons who have access to airside
zones;
• the movement, management or operation of aircraft, vehicles
and other machinery in airside zones;
• the maintenance and the
integrity of airside zones;
• access to aircraft (including unattended
aircraft) from airside zones;
• the management of people and goods
(including the management of unaccompanied, unidentified or suspicious goods) in
airside zones; and
• the management (including the sale or disposal) of
vehicles or goods abandoned in airside zones.
This list gives an indication
of the matters that may be contemplated for regulations made under this
clause.
Subclause 36(3) works in the same way as subclause 35(3) and
provides a graduated penalty system to be effected in the regulations. The
penalties are limited in the same way as in subclause 35(3).
Division
4 – Control of landside areas and zones
Clause 37
Requirements for landside areas
Subclause 37(1) provides for regulations
to be made for the purposes of safeguarding against unlawful interference with
aviation that prescribe requirements in relation to the landside area of a
security controlled airport. The reference to unlawful interference with
aviation appropriately limits the extent of requirements that can be prescribed
by regulations made under this clause.
Subclause 37(2) outlines the
matters that may be dealt with by regulations made under the subclause 37(1) and
include:
• access to the landside area;
• patrolling of the
landside area;
• the provision of lighting, fencing and storage
facilities;
• the identification or marking of the landside area (for
example, through compulsory signage);
• the approval of building works
within, or adjacent to, the landside area;
• the screening of people,
vehicles or goods for entry to the landside area;
• the security
checking (including background checking) of persons who have access to the
landside area;
• the movement, management or operation of aircraft,
vehicles and other machinery in the landside area;
• the maintenance
and the integrity of the landside area;
• access to aircraft (including
unattended aircraft) from the landside area;
• the management of people
and goods (including the management of unaccompanied, unidentified or suspicious
goods) in the landside area; and
• the management (including the sale
or disposal) of vehicles or goods abandoned in the landside area.
This list
gives an indication of the matters that may be contemplated for regulations made
under this clause.
Subclause 37(3) allows regulations to be made on the
matters prescribed above may prescribe penalties. The penalties for an offence
committed by an airport operator or an aircraft operator may not exceed 200
penalty units. The penalties for an offence committed by an aviation industry
participant (other than an aircraft operator or airport operator) may not exceed
100 penalty units. An offence committed by any other person may not exceed 50
penalty units. This graduated penalty range reflects the different levels of
responsibility for aviation security for aircraft and airline operators, other
aviation participants and individuals.
Clause 38 Requirements for
landside zones
Subclause 38(1) provides that regulations may be made, for
the purposes of safeguarding against unlawful interference with aviation,
prescribing requirements in relation to the different landside security zones of
a security controlled airport. The reference to unlawful interference with
aviation appropriately limits the extent of requirements that can be prescribed
by regulations made under this clause.
Subclause 38(2) outlines the
matters that may be dealt with by regulations made under subclause 38(1) and
include:
• access to landside security zones;
• patrolling of
landside security zones;
• the provision of lighting, fencing and
storage facilities;
• the identification or marking of landside
security zones (for example, through compulsory signage);
• the
approval of building works within, or adjacent to, landside security
zones;
• the screening of people, vehicles or goods for entry to
landside security zones;
• the security checking (including background
checking) of persons who have access to landside security zones;
• the
movement, management or operation of aircraft, vehicles and other machinery in
landside security zones;
• the maintenance and the integrity of
landside security zones;
• access to aircraft (including unattended
aircraft) from landside security zones;
• the management of people and
goods (including the management of unaccompanied, unidentified or suspicious
goods) in landside security zones; and
• the management (including the
sale or disposal) of vehicles or goods abandoned in landside security
zones.
This list gives an indication of the matters that may be contemplated
for regulations made under this clause.
Subclause 38(3) works in the same
way as subclause 37(3) and provides a graduated penalty system to be effected in
the regulations. The penalties are limited in the same way as in subclause
37(3).
Division 1 – Simplified overview of Part
Clause 39
Simplified overview of Part
This part deals with a range of matters not
dealt with elsewhere such as screening and clearing, weapons, prohibited items,
on-board security, persons in custody and special security directions.
The principle purpose of screening is to prevent weapons and prohibited
items from entering the cabin of an aircraft and to prevent explosive devices
from entering the bellyhold of an aircraft. This is done by screening persons,
goods, and vehicles so that persons and goods that ultimately board or are
carried on an aircraft are segregated or kept secure for the purposes of
boarding or being carried on an aircraft.
The process of screening
essentially contains three elements:
1. the process to be undertaken
(screening);
2. the decision made (ie cleared or not cleared); and
3. if
cleared, the maintenance of the cleared state.
The Bill separates the screening and clearing provisions for people, goods
and vehicles. This is to allow regulations to be made that specifically deal
with each of these separately because the screening treatments needed for
effective outcomes are different for each. For example, goods being loaded onto
an aircraft would be screened and cleared in a different way to
passengers.
This Part also contemplates persons and classes of persons
that will not need to be screened or who can enter a cleared area or zone other
than through a screening point. Only a very small minority of persons will be
exempted in this way. Screening is intended to be non-intrusive and consensual.
Screening is essential to ensuring aviation security outcomes. It also promotes
public confidence in the system aimed at preventing unlawful interference with
aviation.
This clause provides a simplified overview of the Division and notes that
access to aircraft, areas and zones at an airport may be restricted to persons
good and vehicles that have received clearance.
Clause 41 Screening
and clearing people
Subclause 41(1) provides that a person is screened
when the person undergoes screening in accordance with regulations made under
clause 44 in preparation for boarding an aircraft or entering an area or zone
within an airport. “Screened” is the procedure. This subclause
does not preclude screening occurring off airport, for example, at a designated
place such as a hotel.
Subclause 41(2) outlines how a person receives
clearance. The primary manner in which a person receives clearance is through a
decision being made by the screening officer. After being screened, the person
receives clearance if they are allowed to proceed through a screening point. It
is envisaged the regulations will authorise or the Secretary will permit that
some people, or classes of people, do not need to be screened (such as members
of the police force who are on duty). This subclause allows for those people to
have received clearance, even though they have not been screened as described
above. Another way persons or classes of persons can receive clearance is where
the regulations authorise or the Secretary permits those persons enter a cleared
area, cleared zone or cleared aircraft other than through a screening point.
Therefore, paragraphs 41(2)(b) and (c) allow a determination to be made that
persons who are in a cleared area, zone or aircraft are ‘deemed’ to
have received clearance, either by virtue of being screened or having an
exemption.
Subclause 41(3) describes the term cleared, that is, the way
in which someone, after receiving clearance, retains that particular status. It
provides that a person is cleared at a moment in time if they have received
clearance and they have at all times been in a cleared area, a cleared zone or a
cleared aircraft. This clause is necessary to ensure that the person who has
received clearance, only remains cleared if he or she has not had an opportunity
to come into contact with any weapons or prohibited items, for example, either
from other persons or from goods that have not been cleared. If such an
opportunity occurs, they would cease to be cleared.
Subclause 41(4)
allows for regulations to be made to provide that a person is taken to be in a
cleared area or cleared zone if the person is under the supervision or control
prescribed in those regulations. This recognises that supervision or control is
taken to provide the same outcome as being in a cleared area or zone in limited
circumstances prescribed in regulations, the outcome being, keeping persons
segregated and cleared. Subclause 41(4) is therefore a deeming provision and
envisages a situation where, for example, an off airport screening procedure is
permitted, such as at a hotel, for the purpose of boarding an aircraft, without
passing through a cleared area or cleared zone. The regulations may prescribe,
for example, that transporting those people in a cleared vehicle along the
normal road system is adequate supervision or control for the purpose of this
subclause. The regulations may also stipulate that the vehicle must be cleared
and that the persons must be supervised at all times to ensure that they do not
come into contact with uncleared persons or goods before they either enter a
cleared area or cleared zone or board an aircraft.
Subclause 41(5)
clarifies that the Secretary may issue a notice that will provide that a class
of persons may pass through a screening point without being screened and further
that a class of persons may enter a cleared area, cleared zone or cleared
aircraft other than through a screening point. An example of a class of person
contemplated here is a small number of Customs officials who need access to
these areas for covert operations and who may need to be able to observe and
enter different parts of the airport quickly and by different routes.
Clause 42 Screening and clearing goods
Subclause 42(1)
provides that goods are to be screened in a way consistent with regulations
under section 44 prior to being taken on-board an aircraft, or being taken into
an area or zone within an airport. The term “goods”, in this Bill,
has its natural meaning and can be cargo, checked bags, or items for use or sale
in a cleared area or zone. This subclause does not preclude screening of goods
to occur off airport, for example, at a Customs bond store.
Subclause
42(2) outlines how goods receive clearance. A good can receive clearance if it
has been screened and allowed to pass through a screening point, or if it is in
a class of goods that have been exempted from screening by the regulations or
the Secretary, whether or not it enters the cleared area, cleared zone or
cleared aircraft through a screening point. This subclause is flexible to
recognise the many ways in which goods may be taken to have been screened and
received clearance.
Subclause 42(3) provides that goods are cleared at a
moment in time if they have received clearance and they have at all times been
in a cleared area, a cleared zone or a cleared aircraft. This clause is
necessary to ensure that after goods receive clearance, they only remain cleared
if they do not have the opportunity to come into contact with non cleared
persons. For example, it guards against the possibility that a non-cleared
person with an explosive device could plant that device in a package of goods.
If such an opportunity occurs, the goods would cease to be
cleared.
Subclauses 42(4) and 42(5) relate to goods and mirror the effect
of subclauses 41(4) and 41(5) that apply to persons. For example, goods may be
screened in a freight collection facility or warehouse off the airport and
transported to the airport for loading onto an aircraft. The regulations may
prescribe the way in which those goods must be supervised or controlled, for the
purposes of being transported after receiving clearance.
This clause relates to vehicles and mirrors clauses 41 and 42 that apply to
persons and goods. The vehicles envisaged in this clause are the numerous
vehicles that operate on the airside everyday. This would include vehicles used
to transport cleared persons and goods to and around the
airport.
Clause 44 Requirements for screening and clearing
This
clause sets up the framework for regulations to be made to provide for the
details of who can conduct screening, how they are to do it and when they are to
do it in relation to people, goods and vehicles.
Subclause 44(1) states
that the regulations may prescribe requirements in relation to screening,
receiving clearance and when persons, goods or vehicles are required to be
cleared. It also allows for the establishment of a scheme for the regulation of
air cargo agents.
Subclause 44(2) outlines all the things that can be
dealt with by regulations in relation to subclause 44(1). It is envisaged that
the regulations will contain the full detail of how screening is to occur, where
it may occur and by whom it is to be undertaken.
Regulations can be
made that authorise who is required to conduct screening, what screening should
be trying to detect, what to do with the detected items, and circumstances in
which a person must be cleared to enter a cleared airside area or zone or board
an aircraft.
Regulations can be also made that detail the circumstances
in which persons, goods, baggage and cargo must be cleared to enter a landside
security zone, airside area or airside zone or board or are taken onto an
aircraft. For example, a regulation could be made to require goods such as
stores and catering to be screened and cleared in all circumstances where they
are to be taken onto a charter operation which involves a jet-based aircraft.
This subclause further allows for regulations to be made to specify the
circumstances in which vehicles must be cleared to be taken into a landside
security zone, an airside area or an airside security zone.
This
subclause further allows regulations to be made about:
• the places
screening can occur. It is envisaged this can happen off and on an airport for
persons, vehicles and goods;
• what equipment can be used and how that
equipment may be deployed;
• what supervision and control measures can
be used to ensure that persons, vehicles and goods that have received clearance
remain cleared in uncleared areas and zones;
• how the screening of
cargo by regulated air cargo agents can occur and the procedures for dealing
with screened cargo;
• the requirements that a person must satisfy to
be designated as a regulated cargo agent;
• the method of applying for
designation as a regulated air cargo agent and how those applications are to be
dealt with; and
• conditions that must be complied with by regulated
air cargo agents.
Subclause 44(3) allows the regulations to provide an
instrument power for the Secretary for a number of screening requirements, so
that the Secretary can by written notice outline the requirements
for:
• the methods, techniques and equipment to be used for screening.
Such a notice may also provide that the notice only be given to the persons, or
classes of person specified in the notice. If made public, details about how
screening is to occur may compromise aviation security. Therefore, this
subclause allows details to be promulgated to those who need to apply the
techniques or procedures;
• appoint those authorised or required to
conduct screening. For example, this would allow the Secretary to appoint
specific persons as screening authorities; and
• the procedures for
screening cargo by regulated air cargo agents and for dealing with screened
cargo. Again, if made public, details about how screening is to occur may
compromise aviation security. Therefore, this subclause allows details to be
promulgated to those who need to apply the techniques or procedures.
Subclause 44(4) provides a penalty structure for offences against the
regulations made above and once again reflects the graduated responsibility
structure. Penalties made in the regulations must not exceed 200 penalty units
for an airport operator or aircraft operator, 100 penalty units for an offence
committed by an aviation industry participant (other than an aircraft operator
or airline operator), or 50 penalty units for an offence committed by any other
person.
The control of weapons in certain security sensitive areas of airports
and on-board aircraft is an important aspect of preventing unlawful interference
with aviation. It may ordinarily be lawful to possess a weapon (such as a large
chef’s knife or a licensed firearm) in a public place, but this possession
should be prohibited in certain areas for the purpose of preventing unlawful
interference with aviation.
Clause 45 Simplified overview of this
Division
This clause provides a simplified outline of this Division.
Clause 46 Weapons in airside areas and landside security
zones
Paragraphs 46(1)(a) and (b) provide that a person commits an
offence if the person has a weapon in his or her possession in an airside area
or a landside security zone. Reference to areas and zones, which are
established under this Act, effectively limits the application of this clause to
security controlled airports. Therefore, the offence only applies to persons at
airports which fall under the regulatory cloak of this Bill.
Paragraph
46(1)(c) provides for circumstances where a person is permitted to have a weapon
in these areas or zones. Certain persons or classes of persons need to be able
to carry weapons in the course of their duties. Law enforcement officers and
members of the Australian Defence Force on duty are therefore permitted under
paragraphs 46(1)(c)(i) and (ii). Paragraph 46(1)(c)(iii) allows a person to
have a weapon if authorised by the regulations or permitted in writing by the
Secretary. For example, the regulations or the Secretary may allow the carriage
of a weapon by a particular class of workers on the airside that require knives
to perform their duties. Conditions could also be placed upon this permission
under clause 50.
Subclause 46(2) provides that subclause 46(1) is a
strict liability offence. A person who has a weapon in contravention of
subclause 46(1) faces a maximum of 100 penalty units.
The general
offence under subclause 46(3) has a penalty of imprisonment because a fault
element must also be proved. That is, a person who is intentionally possesses a
weapon and is reckless as to the fact that he or she is in an airside area or
landside security zone faces a maximum of 7 years imprisonment. The higher
penalty recognises that intentional conduct of this type warrants more serious
punishment than inadvertent breaches of the offence provisions.
Clause
47 Carrying weapons through a screening point
Paragraphs 47(1)(a) and (b)
provide that a person commits an offence if the person has a weapon in his or
her possession when he or she passes through a screening point. A purpose of
screening is to ensure passengers do not have access to weapons in the cabin to
effect unlawful interference with aviation (for example, hijacking or acts of
sabotage). Weapons are therefore prohibited once a person passes through a
screening point.
Paragraph 47(1)(c) provides for circumstances where a
person is permitted to have a weapon when passing through a screening point.
Such circumstances are extremely limited, more so than in the airside area or
landside security zone. This is because passing through a screening point is
the penultimate security control applied before passengers board an aircraft.
Certain persons or classes of persons need to be able to carry weapons in the
course of their duties. Law enforcement officers are therefore permitted under
paragraph 47(1)(c)(i) (note a member of the Australian Defence Force who is on
duty is not permitted here as in clause 46). Paragraph 47(1)(c)(ii) allows
persons to have a weapon if authorised by the regulations or permitted in
writing by the Secretary.
Subclause 47(2) provides that subclause 47(1)
is a strict liability offence. A person who has a weapon in contravention of
subclause 47(1) faces a maximum of 100 penalty units.
The general
offence under subclause 47(3) has a penalty of imprisonment because a fault
element must also be proved. A person who has a weapon in contravention of
subclause 47(1) faces a maximum of 7 years imprisonment. The higher penalty
recognises that intentional conduct of this type warrants more serious
punishment than inadvertent breaches of the offence provisions.
Clause
48 and 49 Weapons on-board aircraft
Paragraphs 48(1)(a) and (b) provide
that a person commits an offence if the person carries or otherwise has in his
or her possession a weapon that is located at a place that is accessible to the
person on-board a prescribed aircraft. The term prescribed aircraft allows
certain aircraft such as charter operations for the purpose of hunting by air to
be excluded from the auspices of this offence.
Paragraph 48(1)(b)(ii)
refers to accessibility of a weapon. This reference recognises that it is
generally acceptable for weapons, other than explosive devices, to be carried in
the bellyhold of an aircraft if the bellyhold is secure and not accessible by
passengers for the duration of the flight. The aim is to prevent persons from
possessing weapons that are accessible to them during flight so they cannot be
used to commit an act of unlawful interference with aviation.
Paragraphs 48(1)(c), (d) and (e) provide for circumstances where a
person is permitted to have a weapon on-board an aircraft, that is,
where:
• the person is a law enforcement officer;
• carriage
of the weapon is authorised by the regulations or permitted in writing by the
Secretary; or
• the weapon is under the control of the pilot in
command, because:
- it forms part of the equipment of the aircraft in
accordance with the operation manual; or
- an animal is being carried
on-board that could endanger the safety of the aircraft or the people on-board.
Subclause 48(2) provides that subclause 48(1) is a strict liability
offence. A person who has a weapon in contravention of subclause 48(1) faces a
maximum of 100 penalty units.
The note in this clause points to the
Civil Aviation Act 1988 and the Crimes (Aviation) Act 1991 which
also contain provisions regarding the carriage of weapons on
aircraft.
The only difference between clauses 48 and 49 is clause 49
constitutes a general offence rather than a strict liability offence. It has a
penalty of imprisonment because a fault element must also be proved. A person
who has a weapon in contravention of subclause 49(1) faces a maximum of 7 years
imprisonment. The higher penalty recognises that intentional conduct of this
type warrants more serious punishment than inadvertent breaches of the offence
provisions.
Clause 50 Failure to comply with conditions
In
permitting the possession or control of weapons, clause 50 allows the
regulations or Secretary to impose conditions upon such permissions. Where a
person is authorised by regulations permitted in writing by the Secretary to
have a weapon in his or possession or under his or her control, the person
commits an offence if he or she fails to comply with conditions relating to that
authorisation or permission. This clause reinforces the undermining principle
that weapons are generally prohibited in certain areas at airports and on-board
aircraft. Authorisation or permission to carry a weapon is a concession given
in limited circumstances. Absence of the ability to enforce compliance with
conditions would undermine the ability to make those concessions.
The
offence is a strict liability offence. A person that contravenes conditions
imposed faces a maximum 50 penalty units unless he or she has a reasonable
excuse, which is a defence with an accepted legal meaning.
Clause 51 Secretary may permit by class
This clause clarifies
that the Secretary, in giving permissions in relation to particular conduct
under this Division, may give such permissions to a class of persons in addition
to specific individuals.
Clause 52 Other weapons
requirements
This clause allows the regulations to prescribe other
matters in relation to the carriage and use of weapons for the purposes of
safeguarding against unlawful interference with aviation. The Bill
appropriately sets out the serious offences regarding weapons at airports and
on-board aircraft in clauses 46 to 50. However, some detail can be outlined in
regulations. For example, the authorisation of carriage under clauses 46 to 51,
dealing with a person who carries or uses a weapon or is suspected of carrying
or using a weapon, or dealing with a surrendered weapon.
Subclause
52(3) restricts the maximum penalties that may be imposed by regulations made
under this clause. The penalties reflect the relative roles and
responsibilities of various persons in delivering aviation security outcomes.
They must not exceed:
• 200 penalty units for an offence committed by
an airport operator or an aircraft operator;
• 100 penalty units for an
offence committed by any other aviation industry participant;
• 50
penalty units for an offence committed by any other person.
Division 4
– Prohibited Items
This Division sets out similar offences for
prohibited items to those in Division 3 in relation to weapons. This Division
recognises that many items, which are not strictly considered to be weapons,
could be used to commit an act of unlawful interference with aviation even
though they were not manufactured for that purpose. It may be ordinarily lawful
to possess a prohibited item (such as a stainless steel knitting needle, a razor
blade or a baseball bat) in a public place, but these items should be prohibited
in certain airport areas and on-board aircraft for the purpose of preventing
unlawful interference with aviation.
Accordingly, the clauses in this
Division aim to control prohibited items in certain security sensitive areas of
airports and on-board aircraft. The penalties that pertain to prohibited items
are much lower than those for weapons to reflect the relative seriousness of the
offences.
Clause 53 Simplified overview of this Division
This
clause provides a simplified outline of this Division.
Clause 54
Prohibited items in airside areas and landside security zones
Paragraphs
54(1)(a) and (b) provide that a person commits an offence if the person has a
prohibited item in his or her possession in an airside area or a landside
security zone.
Paragraph 54(1)(c) provides for circumstances where a
person is permitted to have a prohibited item. Certain persons or classes of
persons need to be able to carry prohibited items in the course of their duties.
Law enforcement officers, airport security guards, aviation security inspectors
and members of the Australian Defence Force on duty are therefore permitted
under paragraphs 54(1)(c)(i) and (ii). Paragraph 54(1)(c)(iii) allows persons
to have a prohibited item if authorised by the regulations or permitted in
writing by the Secretary. Regulations to permit the carriage of prohibited
items will be much broader than for weapons. This is because many individuals
working at an airport need prohibited items such as scissors, Stanley knives,
and other common tools to perform their duties.
Subclause 54(2) provides
for a strict liability offence. A person that has a prohibited item in
contravention of subclause 54(1) faces a maximum of 20 penalty units unless he
or she has a reasonable excuse. Reasonable excuse is a defence with an accepted
legal meaning. This penalty is much smaller than the corresponding penalty of 2
years imprisonment for weapons. Whilst many persons may innocently carry such
items in security sensitive areas without authorisation, this conduct is serious
enough to warrant punishment in order to encourage strict compliance. This
clause aims to prevent these items from falling into the hands of a person
intending to commit an act of unlawful interference.
The general offence
under subclause 54(3) has a significantly higher penalty because a fault element
must also be proved. A person who has a prohibited item in contravention of
this clause faces a maximum of 2 years imprisonment. A maximum penalty
involving imprisonment is inappropriate for a passenger who enters an area
before boarding and isn’t aware there was a pair of scissors in his or her
bag. In such circumstances, the person may be subject to an on the spot fine
for a contravention of subclause 54(1).
Clause 55 Carrying
prohibited items through a screening point
Paragraphs 55(1)(a) and (b)
provides that a person commits an offence if the person has a prohibited item in
his or her possession when he or she passes through a screening point. A
purpose of screening is to ensure passengers do not have access to weapons or
items that can be used as weapons in the cabin to effect unlawful interference
with aviation (for example, hijacking or acts of sabotage). Such items are
therefore prohibited once a person passes through a screening
point.
Paragraph 55(1)(c) provides for circumstances where a person is
permitted to have a prohibited item when passing through a screening point.
Such circumstances are limited, more so than in the airside area or landside
security zone. The paragraph allows prohibited items to be carried if the
person is a law enforcement officer, airport security guard or aviation industry
inspector, or if the person is authorised by the regulations or permitted by the
Secretary. These permissions are intended to be more limited than those in the
airside area or landside security zone. Whilst it may be necessary for workers
at the airport to carry prohibited items in the airside area, passing through a
screening point is the penultimate security control applied before passengers
board an aircraft, so prohibited items should be more strictly controlled.
Subclause 55(2) provides for a strict liability offence. A person that
has a prohibited item in contravention of subclause 55(1) faces a maximum of 20
penalty units. This penalty is much smaller than the corresponding penalty of 2
years imprisonment for weapons. However, many persons innocently carry such
items through screening points and this conduct is serious enough to warrant
punishment in order to encourage strict compliance. This clause aims to
encourage compliance and prevent these items from falling into the hands of a
person intending to commit an act of unlawful interference.
The general
offence under subclause 55(3) has a significantly higher penalty because a fault
element must also be proved. A person who intentionally has a prohibited item
in contravention of this clause faces a maximum of 2 years imprisonment.
Clauses 56 and 57 Prohibited items on-board aircraft
Paragraphs 56(1)(a) and (b) provide that a person commits an offence if
the person carries or otherwise has in his or her possession a weapon that is
located at a place that is accessible to the person on-board a prescribed
aircraft. The term prescribed aircraft allows certain aircraft such as private
aircraft to be excluded from the auspices of this offence.
Paragraph
56(1)(b)(ii) refers to accessibility of a prohibited item. This reference aims
to prevent persons from possessing prohibited items that are accessible to them
during flight so they cannot be used to commit an act of unlawful interference
with aviation.
Paragraphs 56(1)(c), (d) and (e) provide for
circumstances where a person is permitted to have a prohibited item on-board an
aircraft, that is, where:
• the person is a law enforcement officer,
airport security guard or an aviation security inspector;
• carriage of
the prohibited item is authorised by the regulations or permitted in writing by
the Secretary; or
• the prohibited is under the control of the pilot in
command, because:
- it forms part of the equipment of the aircraft in
accordance with the operation manual; or
- an animal is being carried
on-board that could endanger the safety of the aircraft or the people on-board.
Subclause 56(2) provides that subclause 56(1) is a strict liability
offence. A person who has a prohibited item in contravention of subclause 56(1)
faces a maximum of 20 penalty units. . Whilst many persons may innocently carry
such items on-board aircraft, this conduct is serious enough to warrant
punishment, for example, by an on the spot fine, in order to encourage strict
compliance.
The only difference between clauses 56 and 57 is clause 57
constitutes a general offence rather than a strict liability offence. It has a
penalty of imprisonment because a fault element must also be proved. A person
who has a prohibited item in contravention of subclause 57(1) faces a maximum of
2 years imprisonment. The higher penalty recognises that intentional conduct of
this type warrants more serious punishment than inadvertent breaches of the
offence provisions.
Clause 58 Failure to comply with
conditions
In permitting the possession or control of prohibited items,
clause 58 allows the regulations or Secretary to impose conditions upon such
permissions. Where a person is authorised by regulations permitted in writing
by the Secretary to have a weapon in his or possession or under his or her
control, the person commits an offence if he or she fails to comply with
conditions relating to that authorisation or permission. This clause reinforces
the undermining principle that the existence of prohibited items should be
restricted in certain areas at airports and on-board aircraft and conditions
placed upon authorised or permitted carriage or possession should be respected.
The offence is a strict liability offence. A person that contravenes
conditions imposed faces a maximum 50 penalty units unless he or she has a
reasonable excuse.
Clause 59 Secretary may permit by
class
This clause clarifies that the Secretary, in giving permissions in
relation to particular conduct under this Division, may give such permissions to
a class of persons in addition to specific individuals.
Clause 60
Other prohibited items requirements
This clause allows the regulations to
prescribe other matters in relation to the carriage and use of prohibited items
for the purposes of safeguarding against unlawful interference with aviation.
The Bill appropriately sets out the serious offences regarding prohibited items
at airports and on-board aircraft in clauses 54 to 59. However, some detail can
be outlined in regulations. For example, the authorisation of carriage under
clauses 54 to 59, dealing with a person who carries or uses a prohibited item or
is suspected of carrying or using a prohibited item, or dealing with a
surrendered prohibited item.
Subclause 60(3) restricts the maximum
penalties that may be imposed by regulations made under this clause. The
penalties reflect the relative roles and responsibilities of various persons in
delivering aviation security outcomes. They must not exceed:
• 200
penalty units for an offence committed by an airport operator or an aircraft
operator;
• 100 penalty units for an offence committed by any other
aviation industry participant;
• 50 penalty units for an offence
committed by any other person.
Division 5 – On-board
security
This Division provides regulation making powers to deal with
security on-board aircraft and a graduated penalty system for offences against
those regulations. The matters dealt with in this Division are specific to
aircraft measures where they are not covered under other Parts of the
Bill.
This clause provides a simplified outline of the Division.
Clause
62 On-board security
This clause allows regulations to prescribe
requirements in relation to:
• the management and control of passengers
(including persons in custody) on-board an aircraft;
• pre-flight
checks of aircraft cabins and other parts of an aircraft. Regulations may
provide, for example, parameters for the way in which a pre-flight check is
conducted;
• 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. Regulations dealing with the screening of baggage will be made under
Part 4, Division 2. However, other security controls for baggage that do not
involve screening need to be made under this Division. For example, this may
include reconciliation of baggage with a passenger and ensuring that passenger
is on-board with their baggage when the aircraft departs;
• unattended
aircraft. Regulations may set out requirements for unattended aircraft that are
parked on the tarmac overnight. For example, a range of possible measures
include 24 hour TV monitoring, patrolling and the provision of sufficient
lighting.
This clause states that 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. An example would include deportation of person under the Migration
Act where the person has overstayed their visa.
Clause 65 Requirements
relating to persons in custody
These include:
• the circumstances in which persons in custody may
be on a prescribed aircraft or at a security controlled airport. This may
include the process that must be followed by the requesting
agency;
• 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. For example, certain categories of persons in custody may
require 2 escorts at all time, whereas others may pose a lower risk and not
require any escorts;
• information about a person in custody that must
be provided to the operator of the relevant prescribed aircraft or security
controlled airport. This may cover information about their identity, the
reasons for custody and the behaviour of the person while in
custody;
• 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. This recognises that, notwithstanding the views of the operator or
the requesting agency, the pilot in command has final responsibility for the
safe operation of the aircraft;
• the circumstances in which the
aircraft operator or pilot in command of a prescribed aircraft may refuse to
allow a person in custody to be on the aircraft. This recognises that the
operator and pilot are the best placed people to make an assessment, based upon
the above information and security controls, as to whether or not to carry the
person;
• the circumstances in which the operator of a security
controlled airport may refuse to allow a person in custody to be at the airport.
This recognises the risk posed by some persons in custody to the general public
and the role of the airport operator in protecting the airport from unlawful
interference with aviation; and
• the number of persons in custody that
may be on a prescribed aircraft, or at a security controlled airport, at any one
time. Security resources are finite and there may need to be such restrictions
to ensure public safety.
Subclause 65(3) provides a penalty structure for
offences against the regulations made above and once again reflects the
graduated responsibility structure. Penalties made in the regulations must not
exceed 200 penalty units for an airport operator or aircraft operator, 100
penalty units for an offence committed by an aviation industry participant
(other than an aircraft operator or airline operator), or 50 penalty units for
an offence committed by any other person.
Special security directions are designed to allow the Government to respond
quickly to threats of unlawful interference with aviation where the current
standards or measures are insufficient, inappropriate or do not adequately
address an emerging situation or technology.
The provisions are designed
with in-built review and sunset mechanisms so that the Government has to address
the issue of standards or measures that become ongoing by the use of other
regulatory tools, for example, by making regulations or including measures in
transport security programs by variation.
This clause provides a simplified outline of this division.
Paragraph 67(1)(a) provides that in the case that a specific threat of
unlawful interference is made or exists, the Secretary may, in writing, direct
that additional security measures be taken or complied with. It is envisaged
that these directions would be used where the Government is made aware of a
specific threat and can take direct, specific action which will address that
threat. For example, where the Government became aware that a particular flight
or flights to a particular destination may be targeted for interference, the
special security directions would allow the Secretary to direct an airline or
airport to take specific measures or take specific actions to address that
threat.
Paragraph 67(1)(b) details that the Secretary may give special
security directions where there is a change in the nature of an existing general
threat of unlawful interference with aviation. It is envisaged that these
directions would be used where information or advice is received about an
increased or changed threat environment and the Government would seek to protect
aviation as a key industry sector, such as after the Bali Bombings in October
2002. It would also cover the situation where intelligence reveals new methods
of terrorist attack and specific counter-measures would be required.
In
both the cases of a special security directions made under paragraphs 67(1)(a)
and (b), the directions must be made by the Secretary in writing.
Subclause 69(1) details the persons to whom special security directions may
be given. These include employees of the Department of Transport and Regional
Services, members of the staff of the Civil Aviation Safety Authority or
Airservices Australia, an aviation industry participant, or employee of an
aviation industry participant, a passenger or intending passenger, and a person
who is on the airport. Special security directions can be given to this wide
class of persons so that they may affect the operations of both airlines and
airports and can extend to the travelling public and the public at airports. It
is necessary that this scope exists so that the Government can direct
specialised measures to be put in place at airports or for particular
flights.
Subclause 69(2) provides that special security directions may be
given to a passenger or a person at the airport by erecting and clearly
displaying a sign in the relevant place. An example may be where screening for
a particular flight is being done in a particular way, such as not allowing
jackets to be carried in the cabin. A sign at the check-in counter would ensure
that members of the travelling public have adequate notice to comply with the
direction, such as checking their jackets into their checked baggage for
carriage in the bellyhold.
In general, it is envisaged these directions would need to be in place as
soon as practicable because of the time pressured circumstances in which they
are generally given. In practice, the Secretary recognises that the aviation
industry may often need time to put in place the people or mechanisms to effect
a special security direction and the provisions allow for the Secretary to
effect a delayed start to a special security direction where this may be the
case. The Secretary’s objective is for the aviation industry to be able
to quickly and effectively respond to increased or changing threat
environments.
Under subclause 70(1), the written direction may specify
the time it comes into force, for example 10:00am on a particular day. However,
where no time is specified, the direction comes into force 24 hours after it is
given. This paragraph, 70(2)(a), also prevents retrospective directions. The
earliest time a direction can come into force 24 hours after it is given.
This is a practical approach to ensure that on receipt of a direction, when
no other time is specified, industry has at least 24 hours to give effect to
that direction.
Paragraph 70(2)(b) allows for a delay in the special
security direction of not more than 7 days. This would be of use where a
special security direction required action that would take more than 24 hours to
put in place and it recognises that industry may need a lead time to make
appropriate arrangements. However, it also prevents the Secretary from using
this direction power other than for immediate threats.
Subclause 70(3)
provides that a special security direction will remain in force until it is
revoked in writing by the Secretary, after 3 months (sunset clause) or after 6
months where it’s extended under subclause 71(1). The sunset provisions
are to ensure that special security directions are used for their intended
purpose and not as a means of easy regulation. Where measures are required
beyond this time, the regulator will have to seek to amend the Act, the
Regulations or provide for extra measures in the aviation transport security
programs.
Subclause 70(4) requires a sign to be removed where the
Secretary revokes the direction or it ceases under subclause 69(2). This will
ensure that there is no confusion about what directions are in
force.
Subclause 70(5) provides that a special security direction must be
revoked when a specific threat no longer exists. This will protect industry and
the travelling public against having measures in place when a specific threat no
longer exists.
Subclause 70(6) provides a sunset for a special security
direction after 3 months. After that, clause 71 allows for a one-off extension
of 3 months. The expiration of a special security direction will ensure that
the regulator takes steps to use more permanent regulatory tools where a measure
needs to be on going.
Clause 71 Secretary may extend direction for
further 3 months
The intention of this clause is to allow the Secretary
to extend special security directions beyond the original 3 months period once
only. This envisages a situation where a special security direction is been
issued in response to a threat and after 3 months that threat is undiminished.
The Secretary must consult with industry in order to extend the direction, by a
notice in writing. However, the clause also ensures that after a 6 month period
the special security direction must sunset and cannot be extended. Where a
threat level still remains after the sunset, the Government must use more
permanent regulatory tools to put preventative security measures in place with
industry. This ensures a stop gap and emergency measure cannot be relied upon
for a long period of time.
The purpose of this clause to ensure that the Government does not seek to use
the special security directions power on an ongoing basis instead of referring
to more appropriate regulatory measures to apply to industry.
Paragraphs
72(a) and (b) provide that if a direction has been in place for a continuous
period of 6 months, the Secretary must not make the same direction, or a
direction that is substantially similar to, the original direction for a period
of 6 months after the original direction is revoked or expires. This clause has
a similar intent to section 49 of the Acts Interpretation Act 1901
which prevents regulations from being re-made within a 6 month period after
they have been disallowed, unless the Parliament otherwise
approves.
Clause 73 Failure to comply with special security
direction
It is an offence of strict liability for a person to fail to
comply with the special security direction unless they have a reasonable excuse.
The penalties are graduated and reflect the level of responsibility for
complying with a special security direction. The penalty is 200 penalty units
for an airport or aircraft operator, 100 penalty units for another aviation
industry participant and 50 units for an individual.
Clause 74 Failure
to comply with confidentiality requirements
It is an offence of strict
liability to disclose a direction which has confidentiality requirements under
clause 68 unless that disclosure is to a court or tribunal or to an authority or
other person who can compel disclosure. This would include disclosure to a
Coroner.
This Part gives certain persons powers and responsibilities under this
Bill. These categories of person are granted certain powers because they have a
particular role to play in preventing unlawful interference with
aviation.
This clause provides a simplified outline of this Part.
The Division sets out who can be an aviation security inspector, what
their powers are, and the limits on their powers. The primary role of aviation
security inspectors is to audit and investigate the compliance of aviation
industry participants and other persons with the Bill. In order to do this
effectively, they require a number of powers, including to enter premises and
inspect documents.
This clause provides a simplified outline of this Division.
This clause allows the Secretary to appoint APS employees in the Department
or law enforcement officers to be aviation security inspectors. The
appointments must be in writing.
The Secretary must issue aviation security inspectors with identity cards.
Identity cards need to be carried by aviation security inspectors, and must be
produced where they are exercising their powers under the Bill (including the
regulations).
The regulations may set out requirements in relation to the
form, issue and use of identity cards. Subclause 78(3) allows for an identity
card to be incorporated into another form of identification, for example an
Aviation Security Identification Card (ASIC). This is simply a measure to
minimise the number of forms of identification required to be worn.
Subclause 79(1) gives aviation security inspectors a number of powers for the
purposes of determining whether a person is complying with the Act or
Regulations. These powers are essential to the ability of the Secretary to
audit and/or investigate compliance with the regulatory scheme, and therefore
fulfil his or her role as regulator. This clause gives Aviation Security
Inspectors the ability to enter and inspect a security controlled airport or an
area, building or vehicle under the control of an aviation industry participant
or the place of business of an aviation industry participant, which is also a
residence. This clause also includes the powers to:
• inspect equipment
in a place or vehicle which they enter. This may include the testing of
screening equipment;
• observe the operating procedures of an aviation
industry participant. This may include observing the boarding procedures of a
particular flight;
• discuss those procedures with an employee of the
aviation industry participant or with another aviation industry
participant;
• inspect, photograph or copy a document or record made or
kept by an aviation industry participant; and
• operate equipment at a
place which they enter for the purposes of gaining access to a document or
record made or kept by an aviation industry participant [clause 128 allows for
compensation to be paid where damage is caused to electronic equipment in the
exercise of these powers].
Subclause 79(3) allows an aviation security
inspector to exercise the powers in subclause 79(2) at any time and without
notice. Continuous monitoring is an important aspect of the aviation security
audit function. Inspectors will also be able to use this power in off-airport
locations provided they give reasonable notice.
Subclause 79(4) is
intended to ensure these powers are exercised in a professional manner. This
clause is intended to cover the situation where an inspector enters a
person’s place of business, which is also their residence, so that the
audit must be conducted with regard to the co-location of private and business
premises.
It is an offence of strict liability, punishable by a maximum
fine of 50 penalty units, if a person engages in conduct which hinders or
obstructs an aviation security inspector in the exercise of their powers under
subclause 79(2). It is not an offence if the person has a reasonable excuse.
The phrase ‘engages in conduct’ covers omissions as well as acts, so
hindering or obstructing may include a person failing to provide timely access
to a place where an aviation security inspector is permitted to
enter.
Clause 80 Powers of aviation security inspectors -
aircraft
This clause provides aviation security inspectors essentially
the same powers in relation to aircraft as clause 79 grants in relation to
areas. Subclause 80(1) gives aviation security inspectors a number of powers
for the purposes of determining whether a person is complying with the Act or
Regulations. These powers are essential to the ability of the Secretary to
audit and/or investigate compliance with the regulatory scheme, and therefore
fulfil his or her role as regulator. This clause gives Aviation Security
Inspectors powers to:
• enter and inspect an aircraft operator’s
aircraft at a security controlled airport;
• inspect equipment in the
aircraft;
• observe operating procedures for the aircraft (whether
operated by the crew or some other person);
• discuss those procedures
with a person carrying them out or with another aviation industry participant;
and
• inspect, photograph or copy a document or record held in the
aircraft that relates to a passenger or an item of cargo.
Subclause 80(3)
allows an aviation security inspector to exercise the powers in subclause 80(2)
provided they give reasonable notice.
It is an offence of strict
liability, punishable by a maximum fine of 50 penalty units, if a person engages
in conduct which hinders or obstructs an aviation security inspector in the
exercise of their powers under subclause 80(2). It is not an offence if the
person has a reasonable excuse.
Law enforcement officers are granted relatively extensive powers because
it is recognised that there are circumstances where coercive powers are
necessary in order to safeguard against unlawful interference with aviation.
Police and Australian Protective Services Officers, due to the nature and level
of their training and expertise, are seen as the most appropriate people to
exercise coercive powers at and around airports.
Clauses 82-88 set out
the powers of law enforcement officers. These powers are in addition to any
powers that a law enforcement officer may have apart from this Bill. They are
not intended to in any way to limit those other powers.
This clause provides a simplified outline of this Division.
Clause 82 Law enforcement officers
This clause creates a
definition of a law enforcement officer. A person who is on duty at a security
controlled airport is a law enforcement officer if he or she is:
• a
member of the Australian Federal Police or the police force of a state or
territory; or
• a protective services officer within the meaning of the
Australian Protective Services Act – whether he or she is an ordinary
protective services officer or a special protective services officer, provided
that person has the powers of an ordinary protective services
officer.
Clause 83 Access to airports by law enforcement
officers
This clause provides that a law enforcement officer may enter
and remain in any part of a security controlled airport at any time. This
provision enables law enforcement officers to be unimpeded in their movements in
and around airports.
Subclause 84(1) provides that a law enforcement officer may stop and search
any person who is in an airside area if that officer reasonably believes it is
necessary for the purposes of safeguarding against unlawful interference with
aviation. The power is limited to ordinary and frisk searches, which have the
same meaning as in the Crimes Act 1914. This power is required because
these areas are high risk in terms of potential unlawful interference with
aviation.
Subclause 84(2) outlines how a law enforcement officer
exercises this power. It provides that a law enforcement officer
must:
• identify himself as a law enforcement officer to the
person;
• tell the person why the person has been
stopped;
• if the person is to be searched – explain to the
person why the search is necessary.
A person commits an offence,
punishable by a maximum penalty of 2 years imprisonment, if that person engages
in conduct which hinders or obstructs a law enforcement officer in the exercise
of their powers under 84(1). Due to the application of Chapter 2 of the
Criminal Code, a prosecution would need to prove the conduct was
intentional. An example of such conduct would be a person who refuses to stop
when directed to do so by a law enforcement officer.
Clause 85
Stopping and searching vehicles
Subclause 85(1) empowers a law
enforcement officer to stop a vehicle and/or search a vehicle in an airside
area. This includes the power to search an already parked and possibly
unattended vehicle.
Subclause 85(2) provides that when a law enforcement
officer stops a vehicle under subclause 85(1), they must identify themselves as
a law enforcement officer; tell the driver why the vehicle has been stopped; and
if the vehicle is to be searched, explain to the driver why the search is
necessary.
Subclause 85(3) requires a law enforcement officer, who
intends to search a stationary vehicle to tell the driver or person in control
why the vehicle is to be searched and identify him or herself as a law
enforcement officer to the driver or person in control, where such a person is
present.
A person commits an offence, punishable by a maximum penalty
of 2 years imprisonment, if that person engages in conduct which hinders or
obstructs a law enforcement officer in the exercise of their powers under
subclause 85(4). Due to the application of Chapter 2 of the Criminal
Code, a prosecution would need to prove the conduct was intentional. An
example of such conduct would be the driver of a vehicle in an airside security
zone who refuses to stop the vehicle after being requested to in accordance with
subclause 85(1).
Clause 86 Requests to leave areas or zones
A
person commits an offence, punishable by a maximum penalty of 50 penalty units,
if that person fails to comply with a request by a law enforcement officer to
leave an airport area, airport zone, airport or aircraft. A law enforcement
officer may make such a request if he or she reasonably suspects that the person
is committing, or has committed an offence against the Act.
Clause 87
Removing people from aircraft, airports, areas or zones
Subclause 87(1)
empowers a law enforcement officer to remove a person from an airport area,
airport zone, airport or aircraft where a request has been made under clause 86,
and the person fails to comply with the request. This could include a
requirement to leave a vehicle which was located within an area or
zone.
Subclause 87(2) recognises the balance that must be struck between
the legitimate use of force to protect aviation security and the civil liberties
of individuals. It provides that the law enforcement officer must not use more
force or subject the person to greater indignity than is necessary or reasonable
in removing the person from an airport area, airport zone, airport or aircraft.
Motor vehicles have the potential to be used as a means of concealing
explosive devices, therefore it is important that their presence on the airside
of an airport is strictly controlled. Consequently, law enforcement officers
are given powers under subclause 88(1) to remove a vehicle from an airport area
or zone where the officer believes that the vehicle may present a risk. Under
this clause, law enforcement officers, in the first instance, must endeavour to
have the driver or person in control of the vehicle remove the vehicle. Where
this is not practicable, they may take other reasonable measures to have the
vehicle removed.
Subclause 88(3) provides that in exercising his or her
power under 88(1), a law enforcement officer must not subject a person to
greater indignity than is necessary and reasonable to remove the vehicle, and
make all reasonable efforts to avoid damaging the vehicle. As discussed in the
explanatory material on subclause 87(2), this provision is included in an
attempt to balance legitimate security concerns and civil liberties.
The Bill does not limit the powers of law enforcement officers under other
law such as the common law powers, the Australian Protective Services Act
1987, Australian Federal Police Act 1979, Crimes Act 1914 and the various
State and Territory Police legislation.
The Division provides a framework for determining who is an airport
security guard, as well as granting airport security guards limited
powers.
This clause provides a simplified outline of this Division.
Clause 91 Airport security guards
This clause provides a
definition for an airport security guard.
Subclause 91(1) provides that
an airport security guard is a person who satisfies the requirements prescribed
in the regulations for an airport security guard, is on duty at a security
controlled airport, and is not a law enforcement officer. Regulations will
provide requirements that limit who may be classified as an ‘airport
security guard’ for the purposes of this Bill.
Subclause 91(2)
requires the regulations to prescribe the training and qualification
requirements. The regulations may also prescribe requirements in relation to
identity cards.
Subclause 91(3) allows regulations to be made in relation
to uniforms and any other requirements.
Clause 92 Airport security
guards’ power to physically restrain persons
This clause grants an
airport security guard a limited power of physical restraint. This power has
been included in recognition of the fact that while law enforcement officers are
the most appropriate people to exercise powers of restraint, there are
circumstances where law enforcement officers will not be available to attend to
breaches of security arrangements, and in these circumstances it is appropriate
for airport security guard’s to exercise limited powers.
This
clause provides that an airport security guard may use reasonable force to
physically restrain a person if the airport security guard reasonably suspects
the person is committing or has committed an offence against this Bill and
reasonably believes that it is necessary to do so in order to:
• ensure that a person who is not cleared, is held until they can be
removed from a cleared area or a cleared zone; or
• maintain the
integrity of a landside security zone, an airside area or airside security zone.
The power of restraint may only be exercised until the person can be
dealt with by a law enforcement officer.
An example of when such a power
may be exercised is where a person runs through a screening point without being
screened. In such a case the airport security guard would be empowered to use
reasonable force in the circumstances to restrain the person until a law
enforcement officer can attend and make a decision as to what action needs to be
taken in relation to that person. It would also cover the detention of an
intruder on the airside.
Division 5 – Screening
Officers
This Division sets the outer parameters of what is
acceptable behaviour from a person who is conducting screening. These
provisions complement those in Division 2 of Part 4 and the regulations and
instruments which will be created under that Division.
Clause 93
Simplified overview of Division
This clause provides a simplified outline
of this Division.
Clause 94 Screening officers
This clause
provides a definition of a screening officer as a person who is authorised or
required to conduct screening. Regulations made under clause 43 may prescribe
the requirements that must be met for a person to be a screening officer. The
primary function of a screening officer is to ensure that no person can carry
any item onto an aircraft, or into an area in the vicinity of an aircraft that
may be used to commit an act of unlawful interference with
aviation.
Clause 95 Screening powers
This clause sets out the
primary powers of a screening officer. These are non-coercive powers which
assist a screening officer in their task of screening people going through a
screening point. This clause reflects the policy that in general, screening
officers are not the appropriate people to exercise coercive powers, and
provides an offence for screening officers who go outside their stated
powers.
A screening officer may use a variety of measures to effect
screening, for example, persons may be required to place carry on items onto an
x-ray machine conveyor belt and then pass through a metal detector to establish
that they are not carrying weapons or prohibited items. In order to be assured
that an intending passenger or other person moving into a cleared zone is doing
so free of weapons or prohibited items, in addition to other requirements for
screening set out in Division 2 of Part 4 screening officers may have cause to
request a person to remove any item of the person’s clothing if the
screening officer considers it is necessary in order to screen that person
properly. To protect people who are subject to screening, screening officers
cannot require a person to remove clothing. The Bill distinguishes
between ‘requesting’ and ‘requiring’. It is an offence
for a screening officer to require or cause the removal of a person’s
clothing, unless the screening officer has a reasonable excuse. A reasonable
excuse would be where a senior citizen asks for assistance in removing his or
her overcoat. However, where a person will not remove an item of clothing as
requested, and the screening officer as a result is not able to screen the
person properly, a screening officer must not allow the person to pass through
the screening point.
Subclause 95(5) clarifies that where a person is
not willing to remove clothing to allow adequate screening to occur, even if
given the opportunity to do so in a private room with the same sex, the screener
must refuse to allow the person to pass through the screening
point. This is intended to strike a balance between the detection of weapons
and prohibited items and civil liberties. Such a situation would be where a
person passes through a screening point and metal is detected on his or her
body.
Clause 96 Screening officers’ power to physically
restrain persons
This clause gives the same powers, and places the same
limitations upon, a screening officer as clause 92 provides to and places upon
airport security guard’s. The main difference is that the screening
officers power only applies in relation to cleared areas. This power has been
included in recognition of the fact that while law enforcement officers are the
most appropriate people to exercise powers of restraint, there are circumstances
where law enforcement officers will not be available to attend to breaches of
security arrangements, and in these circumstances it is appropriate for a
screening officer to exercise limited powers.
97 Exercise of powers by
screening officers
A screening officer must not use more force or subject
a person to greater indignity than is necessary and reasonable. This clause is
intended to ensure screening officers treat the public with appropriate respect
in carrying out their screening duties.
This Part establishes mechanisms, including offences, relating to the
provision of aviation security information to the Secretary and the Department.
This ensures that the Secretary, as aviation security regulator, has adequate
information in the event of an aviation security incident. This Part details the
form, content and manner of reporting, clarifying the aviation sector
information reporting responsibilities for industry and government personnel,
especially in the event of any incident that relates to aircraft or airport
security.
This clause provides a simplified outline of this Part.
Clause 99 Meaning of aviation security incident
This clause
defines aviation security incident as a threat of unlawful interference with
aviation (for example, a bomb threat), or an act of unlawful interference with
aviation (for example, a hijack).
Division 3 –
Offences
Clause 100 Airport Operators
Subclause 100(1)
states that an airport operator is committing an offence punishable by a maximum
fine of 200 penalty units if that operator becomes aware of an aviation security
incident and fails to report this incident in accordance with clause 104 as soon
as possible. For the purposes of the Criminal Code both of these would
be considered the physical elements. This does not apply in relation to a
report that must be made to a particular person if the airport operator
believes, on reasonable grounds, that the particular person is already aware of
the incident. This subclause is intended to remove duplication of reporting
obligations. This is a strict liability offence and does not apply if the
operator has a reasonable excuse.
Clause 101 Aircraft
Operators
This clause mirrors the offence in clause 100 and applies to
aircraft operators.
Clause 102 Other persons with incident
reporting responsibilities
This clause mirrors the offence in clause 100
and applies to other persons with incident reporting responsibilities.
Subclause 102(4) identifies each of the following as 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;
(e) a law
enforcement officer;
(f) an airport security guard.
This list ensures
that all persons with a professional function relating to aviation security have
incident reporting responsibilities. The penalties for contravening this clause
are consistent with the hierarchy throughout the Bill, namely, 200 penalty units
for aircraft and airport operators, 100 penalty units for aviation industry
participants and 50 penalty units for other persons or
individuals.
Clause 103 Employees
This clause mirrors the
offence in clause 100 and applies to employees. This clause reflects the fact
that, while the organisation has overall responsibility for aviation security,
individual employees also have an important role in ensuring the security of
Australia’s civil aviation environment. The penalty is 50 penalty units,
commensurate with those imposed on individuals throughout the Bill.
Division 4 – Reporting requirements
Clause 104
Reporting by airport operators
Subclause 104(1) states that airport
operators must report aviation security incidents in accordance with this
clause. Subclause 104(2) states that an incident that relates to the operator
of another airport must be reported to that other operator. Subclause 104(3)
states that an incident that relates to the aircraft of an aircraft operator
must be reported to that aircraft operator. Subclause 104(4) states that an
incident that relates to the airport of the airport operator must be reported
to
(a) the Secretary (this will generally be done through a Departmental duty
officer);
(b) the Australian Federal Police or the police force of a State or
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.
This clause ensures that the relevant organisation is aware of any
incident which has security implications for them, their business, or their
property. Subclause 104(5) states that the airport operator is not required to
report an incident to a lessee or licensee if the incident relates to the
airport in general, and is not specifically directed at the part of the airport
for which the lease or licence has been granted.
Clause 105 Reporting
by aircraft operators
This clause requires that aircraft operators must
report aviation security incidents in accordance with this clause. Subclause
105(2) states that an incident that relates to the operator of an airport must
be reported to that operator. Subclause 105(3) states that an incident that
relates to the aircraft of another aircraft operator must be reported to that
other aircraft operator. Subclause 105(4) states that an incident that relates
to the aircraft of the aircraft operator must be reported to
(a) the
Secretary (this will generally be done through a Departmental duty officer) ;
and
(b) the Australian Federal Police or the police force of a State or
Territory.
Subclause 105(5) states that an incident that relates to an
aircraft of the aircraft operator and is an unlawful interference with aviation,
a threat of unlawful interference with aviation that is assessed by the operator
as credible, or a threat of unlawful interference with aviation that the
operator is unable to assess, that incident must be reported to Airservices
Australia (if the aircraft is in flight), or the operator of the airport (if the
aircraft is at an airport). This will ensure the impact of the threat on other
potentially affected parties can be managed.
Clause 106 Reporting by
persons with incident reporting responsibilities
Subclause 106(1) states
that a person with incident reporting responsibilities must report aviation
security incidents in accordance with this section. Subclause 106(2) states that
each incident must be reported to the Secretary. Subclause 106(3) states that
an incident that relates to the operator of an airport must be reported to that
operator. Subclause 106(4) states that an incident that relates to the aircraft
of an aircraft operator must be reported to that aircraft operator. The
intention is to ensure that all incidents reported by these persons are reported
to the Secretary as well as to the relevant operator. This obligation will be
satisfied by reporting to the departmental duty officer.
Division 5
– Form and content of reports
Clause 107 How reports are to
be made
This clause allows a notice to be made by the Secretary that sets
out what information is to be included in a report and how the report is to be
made. Such a notice must be published in the Gazette and may be
disallowed after tabling in Parliament. Subclause 107(3) states that if
a person reports an aviation security incident, and 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.
Therefore the person may be committing an offence under clauses 100 –
103.
It should be noted sections 137.1 and 137.2 of the Criminal Code
contain offences for providing false or misleading information.
This Part allows the Secretary to collect security compliance information
and controls the subsequent use and disclosure of that information. The intent
is to establish a scheme similar to the safety information gathering regime
currently in the Air Navigation Act 1920 and proposed in the Transport
Safety Investigation Bill 2002.
Division 1 – Simplified
overview of Part
Clause 108 Simplified overview of
Part
This provides a simplified overview of this Part.
Division
2 – Secretary may require security compliance
information
Clause 109 Secretary may require security compliance
information
The purpose of this clause is to allow the Secretary to
gather compliance information, mainly to establish statistical information
indicating the health of the aviation industry with respect to particular
aspects of compliance. Where compliance issues are identified from gathering
the information, the Secretary will be able to address possible weaknesses in
our aviation security system and rectify the problems before the safety of the
general public is potentially compromised.
This clause allows the
regulations to prescribe kinds of security compliance information. Subclause
109(2) allows the Secretary to require prescribed information from an aviation
industry participant by written notice where the Secretary believes on
reasonable grounds that the participant has the prescribed information under
subclause 109(1). A person commits an offence, punishable by a maximum of 45
penalty units, if the person fails to provide the information in accordance with
the notice issued under subclause (2). Subclause 109(3) requires the
participant to provide the information within the period and in the way
specified in the notice. However, the period must not be less than 14 days.
Subclause 109(4) allows the Secretary to require the information in one
or more forms, either orally, in writing or by electronic transmission (ie.
E-mail).
Clause 110 Self-incrimination
This clause clarifies
that whenever a person is obliged to give security compliance information (such
as under clause 109) that person cannot be excused from giving that information
on the grounds that it might incriminate them or expose them to a penalty.
Clauses 111 to 115 in Division 3, acknowledge that such coercive
information-gathering powers, particularly where a common law privilege is
removed, must be accompanied by appropriate protections for that information.
Notwithstanding, this clause does not prevent agencies from separately
collecting the same information that may then be admitted as
evidence.
Division 3 – Protection and use of security compliance
information
Clause 111 Meaning of protected information and
protected person
This clause defines the meaning of protected information
and protected person. To fall within the definition of protected information,
security compliance information (defined in clause 9 as information that relates
to compliance or failure to comply with this Act) must be given to a
Departmental official. The information can be given as required by the
Secretary under clause 109, or it can be given voluntarily. The person who
gives the security compliance information to the Departmental official is the
protected person. Once the information becomes protected, Division 3 applies to
control its use and disclosure and to protect the person who provided the
information.
Clause 112 Use or disclosure by Departmental officials
Clause 112(1) sets out the elements of the offence relating to the use
or disclosure of protected information by a Departmental official. A
Departmental official commits an offence if he or she uses or discloses
protected information, the use or disclosure is not for the purposes of this
Bill (as outlined in clause 3) and the official is reckless as to whether the
information is protected information.
The purposes of this Bill include
establishing a framework to safeguard against unlawful interference with
aviation and setting minimum standards by imposing obligations on aviation
industry participants.
Subclause 112(2) allows the protected information
to be used or disclosed for the purposes of a prosecution, or defending a
prosecution of an offence, against subclause 112(1) or an offence against
section 137.1 or 137.2 of the Criminal Code. The Criminal Code
offences relate to the provision of false or misleading
information.
Clause 113 Disclosure other than in excepted
circumstances
Clause 113(1) sets out the elements of the offence of
disclosure other than in excepted circumstances. A person commits
an offence if he or she discloses protected information other than in excepted
circumstances (in subclause 113(2)) and the person is reckless as to whether the
information is protected information.
This offence applies to all
persons, so any person who comes across protected information must only release
the information in accordance with clause 113. For example, where protected
information is disclosed in accordance with clause 113, it continues to be
protected information. The receiver of the information will therefore commit an
offence if the elements in clause 113(1) are present.
The offence also
applies to Departmental officials, so the restricted way in which Departmental
officials are permitted to disclose protected information for the purposes of
this Bill under clause 112 is further limited by the excepted circumstances in
this clause.
Subclause 113(2) lists the excepted circumstances in which
protected information can be disclosed. It can be disclosed to:
• A
Departmental official; or
• A Commonwealth Minister; or
• A
member of the staff of a Commonwealth Minister who is nominated by the Minister
to receive protected information on the Minister’s behalf. For example, an
acting Minister; or
• A person acting in the course of his or her
duties as a member of the Parliament of the Commonwealth;
• A
Coroner
• Either:
o An
aviation industry participant;
or
o 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). For example,
information may be disclosed to Commonwealth regulatory authorities such as the
Protective Security Coordination Committee of the Attorney-General’s
Department (the body responsible for addressing Counter-Terrorism First Response
role across the Commonwealth).
Where the protected information is disclosed
to the one of the last two persons on the list, the disclosure must not
identify, and must not be reasonably capable of being used to identify, the
protected person. Paragraph 113(2)(e) aims to strike a fair balance between
improving security compliance, achieving the purposes of this Bill and
protecting the privacy rights of the protected person.
Subclause 113(2)
recognises that certain persons have the capacity to address aviation security
issues and therefore must have this information made available to them. In
addition, the Government and the travelling public expect an open and
transparent process regarding the communication of and actions to address,
aviation security issues. This is important in order to achieve public
confidence in the safety and security of aviation.
Subclause 113(3)
allows protected information to be disclosed in other than excepted
circumstances with the consent of the protected person, or where the disclosure
is for the purpose of a prosecution, or defending a prosecution, of an offence
against subclause 113(1) or an offence against section 137.1 or 137.2 of the
Criminal Code. The Criminal Code offences relate to the provision
of false or misleading information.
Clause 114 Disclosure to a court
or tribunal
This clause clarifies that a court or tribunal cannot compel
a person to provide protected information except in a prosecution of an offence
against clause 114(1) for use or disclosure by a Departmental official or
against clause 102(3)(b) for disclosure other than in excepted circumstances or
against 137.1 or 137.2 of the Criminal Code. This includes Coronial
proceedings.
It is intended that the disclosure of protected information
includes documents or records that contain protected information. Therefore, in
addition to disclosing the protected information orally, a person cannot be
compelled to produce documents that contain that protected information, having
the same effect.
Clause 115 Protection for person who gives
information
This clause provides that giving protected information, or
any information, document or thing obtained directly or indirectly as a result
of giving protected information cannot be admitted as evidence in criminal
proceeding, or any other proceeding for the recovery of a penalty, against the
person who provided the information or material, the protected person, other
than a proceeding under section 137.1 or 137.2 of the Criminal Code. In
this context, a person would include a body corporate.
This clause
reinforces the notion that the processes of gathering compliance information to
improve aviation security and those relating to judicial proceedings,
particularly criminal proceedings, should be separate to ensure a continued free
flow of security information. Giving security compliance information should be
encouraged so that problems regarding compliance can be addressed before they
compromise aviation security or put the general public in serious danger.
Note that nothing in Division 3 of this Part prevents agencies
separately collecting and using protected information for the purposes of
judicial and other proceedings.
This part provides a range of enforcement options which are available to the
Secretary as an alternative to, or in addition to, prosecution. By giving a
range of enforcement options, it is more likely that the enforcement measures
will be appropriate and adapted to the nature and scope of a particular
contravention. These enforcement options are in part designed to address
concerns identified in the ANAO Report on Aviation Security.
This clause provides a simplified outline of this Part.
This clause enables regulations to be made which allow infringement notices,
commonly known as ‘on the spot fines’, to be issued as an
alternative to prosecution where it is alleged that an offence provision in the
act or regulations has been breached.
Subclause 117(1) provides that
the regulations may make provisions enabling a person who is alleged to have
committed an offence against this Bill, other than an offence against subclauses
13(1), 46(3) or 47(3) or clause 49, to pay a penalty to the Commonwealth as an
alternative to prosecution. It is not appropriate to allow a penalty to be paid
as an alternative to prosecution for these four listed offences (that is,
operating without a program and intentional weapons’ offences) because
they are considered serious acts that should only be punishable by criminal
sanctions. Reference to offences against this Bill includes offences against
the regulations made under this Bill by virtue of the definition of ‘this
Act’ in clause 9, which includes the regulations.
Subclause
117(2) provides that the infringement notice fine must not exceed one-fifth of
the maximum fine that a court could impose on the person as a penalty for that
offence. This reflects current Commonwealth criminal law policy guidelines.
However, this provision does not restrict infringement notices from setting out
penalties for an alleged contravention which are lower than one –fifth of
the maximum penalty payable under the penalty provision.
Enforcement orders are a regulatory tool which will be used when the
Secretary is of the opinion that there has been a breach of the Act and specific
actions need to be taken in order to prevent unlawful interference with
aviation. The orders reflect the policy that it is better to fix problems with,
and minimise risks to, aviation security when they are identified rather than
simply seek to prosecute when breaches of the Act or regulations occur.
However, where the orders themselves are contravened, an injunction may be
sought.
This clause provides a simplified outline of this Division.
This clause allows the Secretary to make enforcement orders requiring,
prohibiting or restricting action by a person if he or she reasonably believes
that the person has committed an offence against the Act and it is necessary to
make the order to safeguard against unlawful interference with aviation. As
this is a civil enforcement tool, the Secretary will only need to be satisfied
of these matters on the balance of probabilities rather than the criminal
standard of beyond reasonable doubt.
The clause also provides that the
enforcement order must bear a clear and direct relationship to the contravention
and be proportionate to the contravention. In addition, the Secretary cannot
require payment of money.
An example where an enforcement order may be
issued is where an airport tenant, which does not have its own program, is
preventing an airport operator from complying with its program by allowing
people to pass through its property onto the airside area of an airport without
proper authorisation. In such circumstances, the Secretary may consider issuing
an enforcement order to require the tenant to prevent unauthorised access
through its facility.
Subclause 119(1) provides that the Secretary may
make a written order prohibiting or restricting specified activities by the
person named in the enforcement order or requiring the person named in the
enforcement order to take specified action. Failure to comply with such an order
may result in injunctive relief being sought (see clause 123).
(o;
Clause 120 Commencement and duration of enforcement
orders
Subclause 120(1) provides that an enforcement order comes into
force at the time specified in the order, for example 1:00am on a particular
day, or if there is no specified time, at the beginning of the 7th
day after the order is made. The provision for a shorter period will allow for
orders to be given in emergency situations.
Subclause 120(2) provides
that an enforcement order remains in force either for the period specified in
the order, or if a period is not specified, until the order is revoked by the
Secretary.
To ensure enforcement orders remain current and relevant, this clause
provides for their regular review. Under this clause, the Secretary must review
enforcement orders at least every 3 months, and after each review, confirm, vary
or revoke the order by instrument in writing. This reflects the fact that
enforcement orders are aimed at remediation for a particular problem and should
be monitored to ensure they continue to address that particular compliance
problem. The Secretary must revoke the order unless he or she is satisfied that
the order is still needed to ensure compliance and safeguard against unlawful
interference with aviation.
The Secretary must not vary the order
unless he or she is satisfied that the order as varied adequately safeguards
against unlawful interference with aviation. An order continues in force as
varied immediately after the order is varied, and will require a further review
after an additional 3 months.
This clause deals with notice requirements when enforcement orders are issued
or reviewed.
Subclause 122(1) provides that the Secretary must, as soon
as is practicable after making or reviewing an enforcement order, cause the
person named in the order to be informed of the making of the order, or the
decision on the review, as the case requires.
Subclause 122(2) provides
that failure by the Secretary to comply with subclause 122(1) does not affect
the validity of an order.
A person must not engage in conduct that contravenes an enforcement order.
While this is not an offence, it may be enforced through injunctive
relief.
An example of conduct which contravenes an enforcement order
would be when an enforcement order stated that an airport operator must ensure
that an entry point at the airside perimeter of an airport is guarded by an
airport security guard 24 hours a day, and the entry point was only guarded for
12 hours a day.
It should be noted that this will enable enforcement
orders to be reviewed before a court.
The Federal Court may grant an injunction, to restrain persons from taking
actions which contravene this Act, or to require a person to do an act or thing.
Such a power allows action to be taken before a breach occurs, rather than
waiting until a breach has occurred and then prosecuting. The phrase engage
in conduct, in this context, would cover both acts or omissions.
An
example of where such an injunction power may be used is when an aircraft
operator was operating without an approved program. An injunction could stop
the operation immediately. In addition to being subject to a penalty of up to
200 penalty units for committing an offence under clause 13, the granting of an
injunction in such circumstances could mean that individual directors of such an
operation would be in contempt of court if they breached the injunction, and
would face the usual penalties associated with such a breach.
This
injunction power is in no way intended to limit any other powers the Federal
Court may have which could impact upon aviation security.
Subclause
124(1) provides that such an injunction may only be ordered on application from
the Secretary.
Subclause 124(2) empowers the Federal Court to grant an
injunction where consent is given by all parties to the proceedings, regardless
of whether the Court is satisfied that the circumstances necessary to grant an
injunction under 124(1) are satisfied.
Subclause 124(3) allows the court
to grant an interim injunction.
Subclause 124(4) provides that 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. This clause therefore
limits the court’s usual discretion to require undertakings as to damages.
This recognises that the Commonwealth, as represented by the Secretary, does not
represent a risk in relation to its ability to pay damages.
Subclause
124(5) allows the court to discharge or vary an injunction it has
granted.
Subclauses 124 (6) and 124(7) clarify that neither the previous
conduct of a person, nor their intention in present and future circumstances, is
conclusive in relation to whether to grant or vary an injunction in relation to
that person. The subclause provides that the power to grant or vary an
injunction from restraining a person from engaging in conduct may be
exercised:
• whether or not it appears to the court that the person
intends to engage again, or to continue to engage, in such conduct, which may be
a refusal or failure to do an act or thing; and
• whether or not the
person has previously engaged in such conduct.
Division 5 –
Demerit Points Systems
Clause 125 Demerit points
This
clause allows regulations to establish a demerit points system, which attaches
to a transport security program. The purpose of this provision is to allow for
a system in the regulatory framework that builds a security profile and records
(and ultimately may punish) systemic breaches of the Act and/or regulations by
program holders.
By making provision for a demerit points system, the
Bill responds to one of the key recommendations of the ANAO Report on Aviation
Security, which suggested that the penalty regime in previous aviation security
legislation was too rigid, and didn’t give the regulator sufficient
flexibility in its enforcement measures.
In addition to providing
flexibility, a demerit points system builds increased fairness into the system
by making program holders, to whom the system applies, aware of how their
organisation is performing from a compliance perspective. It therefore
encourages an aviation industry participant to make the necessary changes to
avoid putting their operation in jeopardy.
Subclause 125(1) provides that
the regulations may establish a demerit points system under which the approval
of a transport security program of a person who accrues a prescribed number of
demerit points may be cancelled. The demerit points system is also referred to
in clause 26, which deals with cancelling approval of transport security
programs.
Subclause 125(2) provides that demerit point may only be
allowed to accrue to a person if that person is found guilty of an offence
against this Act or regulations, or the person pays an infringement notice or
other alternative to prosecution set out in the regulations.
Subclause
125(3) allows the demerit points scheme to differentiate between types of
aviation industry participants, as well as between different classes of a
particular kind of aviation industry participant. For example, the regulations
may make provision for each aircraft operator to have a different number of
demerit points, depending on the size and nature of their operation, as well as
making provision for different demerit point schemes to apply to aircraft
operators as opposed to airport operators or other aviation industry
participants.
This clause sets out the decisions which can be made under this Act which are
reviewable by the Administrative Appeals Tribunal (AAT). Whilst the AAT is
limited in undertaking merits review to the decisions list in this clause, this
does not limit the scope for judicial review to occur under the
Administrative Decisions (Judicial Review) Act 1976, or at common
law.
Clause 126 provides that the AAT may review decisions which can be
made under this Bill by the Secretary:
• to refuse to approve a
transport security program under clause 19; or
• to direct a
participant to vary a program under clause 21; or
• to direct a
participant to revise a program under clause 23; or
• to cancel a
transport security program under clause 25 or 26; or
• to declare a
particular airport or part of an airport as a security controlled airport under
subclause 28(2).
Through its Secretary, the Department of Transport and Regional Services will
be the administering authority of this Bill. Clause 127(1) permits the
Secretary to delegate all or any of his or her powers under the Bill to any SES
employee, or person acting as an SES employee within the Department. Subclause
127(2) provides that the majority of the Secretary's powers may also be
delegated to an APS employee within the Department who holds an Executive Level
2 position (whether on an ongoing basis or for a fixed term). The terms
SES employee, and APS employee are defined in the
Public Service Act 1999.
Two powers have been reserved for
delegates who are SES employees. They are the power to extend a special
security direction (issued under Division 7 of Part 4) for a further three
months under subclause 71(1); and the power to issue an enforcement order (under
Division 3 of Part 8). These powers are significant and exercise of them has
been restricted to senior managers to promote consistency and accountability.
All delegates will have to comply with directions from the Secretary
under subclause 127(3).
This clause provides detail on the circumstances in which compensation for
damage
to electronic equipment must be made when such equipment has been
operated by aviation security inspectors in exercise of their powers under
clause 79. This is a common provision in other legislation which permits
operation of electronic equipment on premises.
This clause provides for compensation for acquisition of property where
compensation is required for constitutional reasons.
Clause 130 Part
11 of the Airports Act 1996
The Airports Act 1996
regulates a number of matters at airports, some of which overlap with those
that will be regulated under this Bill. The principal area of overlap relates
to airport vehicle movements. It is intended that the two regulatory regimes
should complement each other, nonetheless, if a conflict between the two does
arise, the policy is that aviation security concerns should prevail. In the
event of an unintended inconsistency, this clause will ensure that the
provisions of this Bill, and regulations made under this Bill, will have primacy
over the provisions of the Airports Act 1996, and the regulations made
under that act. At airports that are not regulated by the Airports Act
1996, this Bill will generally have priority due to the operation of section
109 of The Constitution.
Under international law, representatives of foreign governments, such as
diplomats, consular officials and heads of state, are immune from many
Australian laws. An example relevant to aviation security is that an
embassy’s diplomatic bag may not be opened or detained by the government
which is hosting the diplomatic mission. Additionally, visiting foreign defence
forces also have a number of immunities from our domestic laws. These
immunities have been recognised in several existing Commonwealth Acts that are
listed in this clause. This clause ensures that this Bill does not affect those
existing immunities.
This clause provides for continued operation of the Bill (or provisions of the Bill) in the event of a successful constitutional challenge. It sets out the various constitutional heads of power upon which the Bill can draw if its operation is expressly confined to acts or omissions under those constitutional powers.
Subclause 133(1) allows regulations to be made where required or permitted by
this Bill, or
where necessary or convenient for the purposes of the
Bill.
Regulation making powers are spread throughout the Bill. In
particular Parts 3 and 4 provide extensive regulation making powers for airport
areas and zones, screening, control of weapons and prohibited items, on-board
security and persons in custody. The Bill provides a significant degree of
flexibility by providing a broad and robust framework and extensive regulation
making powers. The aviation security environment is necessarily responsive to
the increased focus on terrorist activity and new threats of unlawful
interference with aviation. As the nature of these threats changes, the
Government may need to move quickly to implement new security measures or modify
existing measures. By providing for much of the detail to be set out in
regulations, this Bill will allow the Government to respond to the evolving
security situation in a timely fashion, while preserving the necessary
parliamentary oversight.
In addition to the regulation making powers
specified elsewhere in the act, subclause 133(2) allows regulations to prescribe
fees and prescribe penalties not exceeding 50 penalty units for offences in the
regulations. It should be noted, however, that there is provision for higher
penalties for aviation industry participants in many other clauses of the Bill.
Subclause 133(3) clarifies that those higher penalties apply to regulations made
under those other clauses.
[1] This explanation of penalty units and the corporate multiplier applies throughout the entire Bill.