Commonwealth Numbered Regulations - Explanatory Statements

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AIR NAVIGATION (CHECKED BAGGAGE) AMENDMENT REGULATIONS 2004 (NO. 1) 2004 NO. 302

Subsection 26(1) of the Air Navigation Act 1920 (the Act) provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act. Paragraph 26(2)(a) of the Act specifically provides that regulations may be made for or in relation to aviation security.

The Government decided in December 2002 that as of 31 December 2004, 100 per cent Checked Baggage Screening (CBS) be mandatory for all international baggage originating from Australia, and that security classified airports have a capacity for screening domestic checked baggage.

The purpose of the amended Regulations is to extend the requirement for airport and terminal operators to implement a capacity for CBS for domestic checked baggage and introduce additional security requirements with regard to implementation of CBS.

The purpose of the amended Regulations is to strengthen aviation security and to safeguard aviation against acts of unlawful interference. The Regulations are necessary to ensure that CBS standards and practices remain up to date.

The new requirements for a capacity for screening of domestic baggage vary with the security categories that may be applied to airports, determined pursuant to Division 5 of Part 3 of the Act. In line with the Government's decision, domestic checked baggage will undergo screening in accordance with arrangements submitted by terminal operators and approved by the Secretary of the Department of Transport and Regional Services.

The amended Regulations also:

•       apply the Principal Regulations to both domestic and international aircraft engaged in regular public transport or charter operations;

•       allow the Secretary to approve the level of CBS for domestic baggage at specific categorized airports;

•       allow the Secretary to direct the required minimum technological standard used in CBS;

•       provide an exemption clause, with an outcome that allows airport operators to be granted temporary exemption from these requirements, if they put in place interim measures that satisfy the Secretary that aviation security will not be compromised; and

•       allow the Secretary's power to be delegated to the relevant employees in the Department.

Details of the Regulations are set out in the Attachment.

The Regulations commence on 31 December 2004.

Authority:       Subsection 26(1) of the Air Navigation Act 1920.

ATTACHMENT

Details of the proposed Air Navigation (Checked Baggage) Amendment Regulations 2004 (No. 1)

Regulation 1       Name of Regulations

This regulation provides that the Regulations are the Air Navigation (Checked Baggage) Amendment Regulations 2004 (No. 1).

Regulation 2       Commencement

This regulation provides that these Regulations commence on 31 December 2004.

Regulation 3       Amendment of Air Navigation (Checked Baggage) Regulations 2000.

This regulation provides that Schedule 1 amends the Air Navigation (Checked Baggage) Regulations 2000 (the Principal Regulations).

SCHEDULE 1 AMENDMENTS

ITEMS 1 to 5 - Regulation 3 - Definitions

These items insert definitions for the following terms, which are used in the proposed Regulations: domestic aircraft; international aircraft; categorized airport; domestic air service; and international air service. The last three terms are defined by reference to existing definitions in the Air Navigation Act 1920 (the Act).

ITEMS 6 and 7 - Regulation 5 - Application

Regulation 5, in its current form, does not provide for domestic aircraft to be subject to the Principal Regulations.

These items amend regulation 5 to provide that the Principal Regulations apply to aircraft to which section 20 of the Act applies, and inserts a note which specifies that such aircraft are;

(a) a regular public transport aircraft that;

(i)       is fitted to carry 100 or more passengers; and

(ii)       is not engaged in an international flight; or

(b) a regular public transport aircraft that is engaged in an international flight; or

(c) a charter aircraft that;

(i)       is fitted to carry 100 or more passengers; and

(ii)       is not engaged in an international flight; or

(d) a charter aircraft that;

(i)       is fitted to carry 38 or more passengers; and

(ii)       is engaged in an international flight

ITEM 8 - Subregulations 6(1A) and (1B) - Screening and clearance of checked baggage

This item substitutes existing subregulations 6(1A) and (1B) with new subregulations 6(1A), (1B) and (1C).

Subregulation 6(1) requires that terminal operators must ensure that checked baggage is screened and cleared before loading onto international aircraft. Existing subregulations 6(1A) and 6(1B) provide, respectively, that an offence against 6(1) is an offence of strict liability, and that it is a defence to a prosecution for such an offence that the item/s not screened or cleared were exempt.

New subregulation 6(1A) inserts a requirement that a terminal operator must comply with a direction by the Secretary with regard to screening and clearing of checked baggage for domestic aircraft.

New subregulation 6(1B) and 6(1C) are the same in substance as existing subregulations 6(1A) and 6(1B), except that they cover both subregulations 6(1) (relating to international aircraft) and new 6(1A) (relating to domestic aircraft).

ITEM 9 - Subregulation 6(2)

Subregulation 6(2) establishes how terminal operators must comply with screening and clearing requirements. The inclusion of subregulation (1A) in subregulation 6(2), extends the scope of subregulation 6(2) to include screening and clearing of baggage to domestic aircraft operations, as mandated by the December 2002 Government decision.

ITEMS 10 and 11 - Paragraph 6(2)(a and Paragraph 6(2)(b)

The proposed amendments to paragraphs 6(2)(a) and 6(2)(b) would allow the Principal Regulations to be extended to international and domestic aircraft. Paragraphs 6(2)(a) and 6(2)(b) do not currently fully incorporate the Government's December 2002 decision to implement 100 percent international CBS, and a capacity for domestic CBS.

ITEM 12 - Subregulation 7(1) - Testing procedures

Subregulation 7(1) specifies that testing procedures must be established for the screening of checked baggage captured under Regulation 5.

The proposed amendment to Regulation 5 (Refer Item 7), includes the capacity for domestic aircraft.

In the subregulation 7(1), testing procedures for checked baggage in international operations are covered by a reference to subregulation 6(1), while domestic operations rely on the definition of a categorised airport to apply the requirement for screening.

ITEM 13 - Subregulation 8(1) - Directions

Subregulation 8(1) provides that the Secretary may give directions to terminal operators about the procedures to be followed in CBS, specifically international operators.

The proposed amendment to subregulation 8(1) specifically allows for the Secretary to give directions to terminal operators with respect to both international and domestic operations.

ITEM 14 - Paragraph 8(4)(a)

This paragraph provides that in giving a direction to terminal operators, the Secretary must have regard to the kind of checked baggage screened at a terminal facility.

This item replaces "screened at" with "processed through," to provide greater consistency with the drafting of the Principal Regulations.

ITEM 15 - After Subregulation 9(1) - Exemptions

This item inserts new subregulation 9(1A), to provide that the Secretary must not exempt all items of checked baggage that are to be processed through a terminal facility unless the exemption is temporary and the Secretary is satisfied that the exemption will not adversely affect aviation security.

Subregulation 9(1A) applies conditions on the exemption allowed under subregulation 9(1).

ITEM 16 - Subregulation 11(1) - Explosive devices not to be loaded on board aircraft

Subregulation 11(1) specifies that a terminal operator must ensure that an explosive device detected in checked baggage during screening is not loaded on board an international aircraft.

This item omits "international" from subregulation 11(1), to allow it to apply to both international and domestic aircraft.

ITEM 17 - Subregulation 13(1) - Aircraft operators not to permit uncleared items to be loaded

Subregulation 13(1) specifies that an operator of an international aircraft may permit an item of checked baggage to be loaded on board only if the item has been screened and cleared by a terminal operator or has been screened in accordance with any directions given by the Secretary.

This item omits "international" from subregulation 13(1), to allow it to apply to both international and domestic aircraft.

ITEM 18 - Subregulation 13(3) - Aircraft operators not to permit uncleared items to be loaded

Subregulation 13(3) specifies that an operator of an international aircraft must ensure that an explosive device that is detected during screening is not loaded on board an aircraft.

This item omits "international" from subregulation 13(3), to allow it to apply to both international and domestic aircraft.

ITEM 19 - After Regulation 14

This item inserts a new regulation, providing that the Secretary may delegate his powers (apart from the power of delegation) under the Principal Regulations to an APS employee in the Department.