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Aviation Transport Security Amendment Bill 2006
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Endnotes
Contact Officer & Copyright Details
Aviation Transport Security Amendment Bill 2006
Date introduced:
House: House of Representatives
Portfolio: Transport and Regional Services
To amend the Aviation Transport Security Act 2004 in order to change the regulatory arrangements for aviation security by:
The current aviation security framework came into effect in March 2005
following the commencement of the Aviation Transport Security Act 2004
(Principal Act) and the subsequent making of the Aviation Transport Security
Regulations. Detailed background information on the legislative aspects
of aviation security reform can be found in the Bills
Digest for the
In June 2005, the Government asked
The Wheeler Review(3)
was presented to Government in September 2005. The report focused on
responses to the threat of terrorism at airports and the related threat
from serious crime. It drew attention to serious deficiencies in coordination
among security agencies and a lack of security awareness among airport
workers. It found that ‘[p]olicing at major airports in
The review also found that security infrastructure at airports was lacking. It recommended an increase in CCTV coverage of all international airports,(8) and a tightening up of the Aviation Security Identification Card system (ASIC), including amalgamation and streamlining of its numerous databases.(9) The report stated that ‘[t]he present system has a number of weaknesses, and there is confusion as to what airport access an ASIC enables. … Some casual or contract workers, such as security screeners and cleaners, do not initially hold ASICs and may not always be accompanied on the job by an ASIC holder as required under current legislation’.(10)
The review also drew attention to a major deficiency in cargo screening
which could allow the undetected loading of explosives. The report stated
that ‘[w]hile 80 per cent of
that the Australian Government require that the screening of cargo be expanded and include mandatory screening of all cargo on passenger aircraft where passengers’ checked baggage is screened.(12)
The Wheeler Review acknowledged that the Commonwealth, state and territory
governments and the private sector had made many positive security changes
and dedicated significant resources to security, especially since the
attacks in the
that a thorough examination of legislation and regulations on the sharing of information, both among government agencies and between government and the private sector, be carried out by the Attorney-General’s Department, in collaboration with the States and Territories and the private sector, with the aim of identifying and removing elements which prohibit or inhibit the flow of information needed to counter crime and terrorism which threaten the aviation sector.(15)
A key point of the review is a warning that, after enhanced measures are in place, the system could degenerate into ‘ticking the boxes’ instead of a proactive process of ongoing assessment of threat and risk. The review recommends that:
the Aviation Transport Security Act 2004 and the 2005 Regulations be reviewed by the Department of Transport and Regional Services to ensure that they encourage a culture of proactive and ongoing threat and risk assessment and mitigation and not a passive culture of compliance.(16)
On 21 September 2005, the Prime Minister and the Minister for Transport and Regional Services announced the Government’s in principal acceptance of the recommendations made by the Wheeler review and announced additional expenditure of almost $200 million to further tighten security at Australia’s major airports.(17)
On
The Committee unanimously supported the recommendations of the Wheeler Review. In a press release, the Committee said that its own current inquiry had confirmed the need for a review of the arrangements for issuing and managing ASICs, a need to improve information-sharing across airports, and the need for a single policing authority for all category one and major airports. The Committee highlighted other issues examined in the Wheeler report and said that it was particularly concerned about procedures in relation to baggage handling.(20)
In introducing this bill, the Minister for Transport and Regional Services,
The first is the regulatory arrangements that would apply when a ‘security
controlled airport’(22) conducts activities that are not part
of its usual transport business. The Explanatory Memorandum to the bill
gives as examples of special events, receiving and farewelling dignitaries
attending the 2007 APEC Meeting, and managing the Australian International
Air Show at
The second operational matter addressed by this bill is better management of the process for handling domestic and international cargo before it is taken onto an aircraft. The proposed amendments introduce a framework for a layered approach to security within the existing Regulated Agent scheme. The Minister said in his Second reading speech that the bill ‘will allow for different but complementary security measures to be prescribed for different parts of the supply chain. These differing requirements will be based on criteria such as the size, scope and security risk posed by a participant’s operations.’(25)
The Explanatory Memorandum states that there will be no significant financial impact for the Government from this bill.
The changes in Schedule 1 are designed to introduce more flexibility into the security procedures of the Act when airport operators and other parties are dealing with ‘out-of-the-ordinary’ events. Details of the operational substance of the Schedule 1 will be implemented through new regulations. According to the Explanatory Memorandum, any given type of event zone will be managed by a combination of regulations that apply to that particular type of event zone, and by specific provisions that the airport operator may have included in its Transport Security Program (TSP).(26)
Items 2 to 5 insert definitions of terms associated with the new event zones. The proposed system for prescribing different kinds of event zones has been modelled on the existing provisions in the Act that allow regulations to be made to prescribe different kinds of security zone (subsection 31(1) of the Act). Item 10 inserts new section 31A which provides for the new airside event zones. An airside event zone is established by means of a notice that the Secretary gives to the operator of a security controlled airport. There can be more than one event zone for managing a single complex event, such as an air show, or when a large airport has more than one special event in progress at the same time but in different event zones. The principal difference between the proposed airside event zones and the existing airside security zones is that an airside event zone may sometimes be managed at a lower level of security than that which applies generally to the airside area (new subsection 31A(7)), while an airside security zone is always managed at a stricter level of security. A lower level of security may be possible if the event is being staged within an enclosed area so that the only access from the event zone to airside (and thus to runways and aircraft) is through a screening point. New section 31B provides that regulations may prescribe different types of airside event zones, such as event zones for managing the arrival or departure of dignitaries, an event zone for managing large air shows, and an event zone for managing low risk community events that use the infrastructure of regional airports. According to the Explanatory Memorandum,(27) this approach manages risks by allowing different event zones to be managed by means of regulations that have been specifically designed to deal with a particular event. Item 14 adds new sections 33A and 33B that make similar changes to deal with landside event zones.
Items 1 to 19 and items 21 to 35 of Schedule 1 commence on a day to be fixed by proclamation, or on a day six months after the day on which the Act receives Royal Assent. Item 20 of Schedule 1 will commence at the same time as items 1 to 19. However, the provision in item 20 will never commence if item 27 of Schedule 2 (which amends the same provision of the Principal Act) has commenced on or before that time.
Schedule 2 amends the Principal Act to create a legal environment that will enable regulations to be made dealing specifically with the security process to be applied to domestic and international cargo prior to being taken onto an aircraft. A Regulation Impact Statement is provided in the Explanatory Memorandum and gives detailed information about the proposed legislative changes and the alternative approaches that the Government has considered.
The idea of the Principal Act is to ensure that commercial air cargo is subject to appropriate secure handling and screening processes along the supply chain from initial packing to eventual loading on the relevant aircraft. One of the main players in this process are Regulated Air Cargo agents (RACAs). RACAs must have in place a Transport Security Program (TSP) approved by the DOTARS Secretary. According to the Explanatory Memorandum to the bill:
It has become clear through operational experience, DOTARS experience, industry complaints, and industry consultation, that while the TSP model is appropriate for some RACAs, it is not appropriate for all air cargo industry participants. However the existing Act does not provide scope for introduction of a layered and scalable cargo regulatory regime that takes into account relative size of businesses and their proximity in the supply chain to the actual carriage of cargo by air.(28)
So the bill creates a new category called accredited air cargo agents (AACA). It appears these will have less onerous security obligations than RACAs, although the Government is of the view that this category will bring more cargo operators into the Principal Act's regulatory net.(29)
An associated change in Schedule 2 is to separate cargo security/screening requirements out from its existing place in the Act and Regulations under passenger screening. The idea is that it will be easier to adopt new security/screening requirements that are particularly suited to air cargo operations rather than passenger services.
It should be emphasised that much of the operational substance of the proposed changes will be done by regulations, which are still to be developed.
Item 3 adds a definition for the new term ‘accredited air cargo agent’. Item 31 inserts new Division 2A of Part 4 into the Principal Act to deal exclusively with how cargo is to be examined so as to ensure that it is safe to be carried by aircraft, and how cargo is to be cleared for air carriage. Much of the detail will be set out in regulations (new section 44C). The Secretary is given the power to permit that certain air cargo be certified as cleared without going through the normal examination process (new subsection 44B(2)). The exemption mirrors an existing paragraph 42(2)(b) that allows the Secretary to specify that certain people, goods and vehicles can pass through security points without being screened.
Regulations may also be made to specify the methods, techniques and equipment to be used for the examination of cargo (new subsection 44C(3)). The Explanatory Memorandum comments:
One power that is not present in the [Principal Act] is that of directing Cargo Terminal Operators (CTOs) to use explosive trace detection (ETD) on cargo … This amendment will strengthen security outcomes through enhanced use of technology.(30)
The regulations may also provide for breaches of screening and clearance requirements, with maximum penalties ranging from 200 penalty units for an airport operator, down to 50 penalty units for other persons, including accredited air cargo agents (new subsection 44C(4)).
The following matter was brought to the attention of Senators by the Senate Scrutiny of Bills Alert Digest 4/06. Items 5 and 7 in the table to subclause 2(1) of this bill provide for the amendments proposed in items 1 to 33 of Schedule 2, and those in Part 2 of Schedule 2, to commence up to 12 months after Royal Assent. The Explanatory Memorandum states, on page 11, that the justification for this delay in commencement ‘is to allow sufficient time for consultation with [those involved in the aviation transport] industry to occur’.(31)
Schedule 3 makes amendments relating to a Transport Security Program (TSP) that are expected to play an important role in managing both complex and high-risk events. Section 12 of the Principal Act sets out who must have a TSP. These include the operator of an airport declared by the DOTARS Secretary to be a ‘security controlled airport’, the operator of an air service prescribed in regulations, and any other ‘aviation industry participant’ prescribed in regulations. An aviation industry participant can include persons who lease sections of the airports, and contractors, including contractors who carry out baggage, security and any support functions. A TSP is normally valid for a period of five years. Section 22 of the Principal Act permits an aviation industry participant to apply to the Secretary to approve a revision of an existing TSP. A revised TSP will be in force for a period of five years from the time when the revision is approved.
Item 1 of Schedule 3 inserts new section 23A to provide an alternative way of making simple changes to a TSP without increasing the life of the TSP by a further five years. An aviation industry participant may make a written request to the Secretary to approve the proposed alterations (new subsection 23A(1)). The Secretary is required to decide whether it is appropriate to deal with the request under section 23A. According to the Explanatory Memorandum, section 23A will only be appropriate if both the Secretary and the aviation industry participant are in agreement that the proposed alteration is relatively simple and that the change should not have the effect of extending the life of the TSP for a further five years. New paragraphs 23A(2)(b) and 23A(3)(b) require the Secretary to be satisfied that a TSP as altered will satisfy the requirements of Part 2 Division 4 of the Principal Act which deals with the content and form of TSPs. New subsection 23A(4) authorises the Secretary, when considering whether to approve alterations to a TSP, to take into account existing circumstances related to aviation security. According to the Explanatory Memorandum, this ensures that the Secretary is authorised to take into account any relevant security matters that extend beyond the immediate operation of the TSP that is being considered. Item 2 of Schedule 3 provides that the Secretary’s decision under new section 23A to refuse to approve an alteration to a TSP is reviewable by the Administrative Appeals Tribunal.
Schedule 3 commences on Royal Assent.
This paper has been prepared to support the work of the Australian Parliament using information available at the time of production. The views expressed do not reflect an official position of the Information and Research Service, nor do they constitute professional legal opinion.
ISSN 1328-8091
© Commonwealth of Australia 2006
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Published by the Parliamentary Library, 2006.