Commonwealth Numbered Regulations - Explanatory Statements

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AIR NAVIGATION REGULATIONS (AMENDMENT) 1997 NO. 336

STATUTORY RULES 1997 No. 336

Issued by the authority of the Minister for Transport and Regional Development Air Navigation Act 1920

Air Navigation Regulations (Amendment)

Subsection 26(1) of the Air Navigation Act 1920 provides that the Governor-General may make regulations for the purposes of the Act.

Details of the Regulations are as follows:

Clause 1 - Amendment

Clause 1 provides that the Air Navigation Regulations are amended as set out in these regulations.

Clause 2 - New regulation 311CDA (Aviation security: dogs at certain category 1 airports)

Clause 2 inserts a new regulation 311CDA into the Air Navigation Regulations, providing for the implementation of an explosive detection dog capability at Sydney (Kingsford Smith) Airport, Melbourne International Airport and Brisbane International Airport.

Existing regulations 311CD - 311CH specify a range of aviation security measures that are required to be implemented at Australia's major airports. New regulation 311CDA inserts an additional mandatory security measure into this part of the Air Navigation Regulations - in relation to Sydney, Melbourne and Brisbane Airports.

The measure described under new regulation 311CDA essentially requires the keeping available, by the airport operator, of

*       two dogs that are trained to detect explosives;

*       and a handler for each dog;

in relation to each airport, under the explosive detection dog facility of the airport's uniformed security force (currently, the Australian Protective Service).

The Regulations commence on notification in the Gazette.

REGULATORY IMPACT STATEMENT FOR THE REGULATIONS

1A. Problem identification

Australia is examining and reviewing, on an ongoing basis, airport security arrangements to ensure the highest standard of security is maintained at airports. As part of this continuing examination, it is proposed to strengthen the explosive detection capability at Australia's highest volume airports.

In the event of a security breach, resulting in an act of unlawful interference (eg, the intentional destruction of an aircraft and its passengers) occurring within Australia, a substantial cost would be imposed on all parties directly affected (the passengers and their families, as well as the airline concerned).

More generally, in the event of such an act of unlawful interference, the loss of Australia's status as a secure provider of aviation transport infrastructure would impose a significant cost upon the industry as a whole. In turn, as transportation is a service industry, a substantial part of this cost would be transmitted throughout the Australian economy.

A loss of confidence in the security of Australian civil aviation would tend to negatively affect patronage and would divert transportation traffic (of both people and goods) onto other modes of travel that are less economically suited to the task. For example, air transportation is ordinarily selected due to its ability to rapidly transport large volumes of people and goods.

In terms of international passenger transportation and tourism, traffic levels to and from Australia would be seriously affected overall, as air transport represents the primary means of travel.

There is a higher risk of such a security breach occurring at one of Australia's major high volume airports.

1B. Why is Government involvement required to deal with the particular problem identified?

As set out above, the members of industry have a direct commercial incentive to operate securely. As a result, Australia's civil aviation industry generally accepts in-principle the need for aviation security standards.

However, industry also recognises that, to be effective, Australia's "aviation security net" must be implemented equally by all operators within the industry.

By its very nature, Australia's aviation industry is overwhelmingly inter-related and interdependent. For example, airlines rely on airport operators to provide aviation infrastructure and business inputs, and vice versa. Airport operators are also dependent on a wide range of small businesses (eg, retail outlets) that operate within the public areas of the passenger terminal buildings.

In the event that even a small minority of operators failed to adopt industry-agreed minimum standards, the remaining operators would be required to adopt duplicated and/or more rigorous, and therefore significantly more costly, measures in order to counter the potential for a security breach arising from the activities of these minority operators.

As a result, the various industry members and representative bodies acknowledge the role of Government in enforcing at least a minimum level of aviation security standards for the whole of Australia's civil aviation industry.

Aviation security regulations enhance Australian business competition generally, in that the business consumers of Australian aviation services are able to place confidence in the security and reliability of Australian aviation. In addition, aviation security regulations provide public interest benefits of ensuring a secure aviation environment for Australian residents and for passengers of Australian commercial aircraft generally.

2A. Specification of desired objectives

The broad aim of aviation security regulation is to promote a secure environment for Australian civil aviation. In particular, the aim of aviation security is to safeguard Australia's civil aviation operations against an act of unlawful interference (such as an act of hijack, the intentional destruction of an aircraft, etc.).

Passengers should be able to undertake their commercial air travel secure from an act of unlawful interference occurring during their flight.

Similarly, airline crew members, ground personnel and other industry staff members should be able to conduct their activities secure Corn the occurrence of acts of unlawful interference.

Finally, members of the general public should be secure from the occurrence of acts of unlawful interference in relation to aircraft flying overhead (eg, the destruction of aircraft by explosives).

As a result, the aim of aviation security extends beyond merely an enforcement role (ie, of identifying persons who commit acts of unlawful interference with Australian aviation, after the event, and prosecuting them). Rather, the primary purpose is to deter, detect and prevent attempted acts of unlawful interference with aviation.

To continue to ensure an adequate level of aviation security, and to address concerns on explosives detection, it is proposed that new regulations be implemented providing for an explosives detection dog capability at Australia's major high volume airports of Sydney, Melbourne and Brisbane.

Sydney Airport is Australia's busiest airport and is a primary traffic hub for Australia's civil aviation network. In addition, the forthcoming Sydney 2000 Olympic Games adds a new factor to the aviation security threat for the airport. Australia's other major high volume airports (and the next largest in terms of passenger throughput) are Melbourne and Brisbane.

2B. Background to regulatory objectives

A further aviation security aim is to harmonise Australia's civil aviation industry with internationally-accepted aviation security standards and practices. The aviation industry is one that operates globally.

Australia is a signatory to the Convention on International Civil Aviation (the "Chicago Convention") and has undertaken to implement the various worldwide standards, recommended practices and procedures on aviation security that are outlined under the Convention.

The stated aim of the Chicago Convention is to implement global principles and arrangements in order that international civil aviation may be developed in a safe and orderly manner and that international air transport services may be established on the basis of equality of opportunity and operated soundly and economically. Aviation Security Standards and Recommended Practices (SARPs) are covered in Annex 17 to the Convention.

Compliance with the Annex 17 SARPs is also covered in Australia's bilateral air services treaties which are negotiated with other countries.

Finally, Australia has entered into a number of other related international treaties on aviation security - namely:

*       the Convention for the Suppression of Unlawful Seizure of Aircraft (the "Hague Convention") The Convention is designed to prevent unlawful acts of seizure, or the exercise of unlawful control, of aircraft in flight;

*       the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (the "Montreal Convention") The Convention is designed to prevent unlawful acts against the safety of civil aviation generally;

*       the Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation (the "Montreal Protocol") The Protocol is designed to prevent unlawful acts of violence at airports; and

*       the Convention on Offences and Certain Other Acts Committed on board Aircraft (the "Tokyo Convention") The Convention is designed to allow for the arrest of persons who commit offences on board an aircraft. The Convention applies to offences which jeopardise the safety of an aircraft or of persons or property therein or which jeopardise good order or discipline on board.

3.       Identificaton of options

The regulatory initiative represents only a minor change to a much larger pre-existing legislative scheme. As such, the alternatives comprise:

(a)       amend the relevant provisions of the Air Navigation Regulations (ANRs) to require the explosive detection dog capability, as outlined above; or

(b)       the status quo.

The existing regulations prescribe a range of aviation security minimum standards, for implementation within industry, covering matters such as security screening of passengers, security controls on passenger baggage, security controls on air cargo, the reporting of threats of unlawful interference with aviation, the implementation of industry security programs and the prohibition of the carriage of weapons in sensitive areas (eg, in commercial aircraft or within certain areas of airports).

However, a number of these measures are not specifically designed to detect explosives. For example, the primary purpose of metal detectors for the security screening of passengers is to detect weapons.

In the longer term, the Government is investigating the deployment of explosive detection devices at high volume airports, to be used for such purposes as screening items of passenger baggage.

As an ]immediate step, however, the proposed regulatory initiative has the aim of overlaying (over existing security measures) a new aviation security capability at Sydney, Melbourne and Brisbane Airports - the use of explosive detection. dogs. This proposed initiative will be able to be implemented without delay and is directly aimed at the detection of explosives at airports.

The capability essentially requires the airport operator to ensure that two dogs, and handler for each dog, are kept available by the airports uniformed security force (currently, the Australian Protective Service). In practice, the capability is to comprise some patrolling (essentially during peak hours) and also an on-call facility.

4. Assessment of impact

The regulatory initiative will only directly impact upon the operators of Sydney, Melbourne and Brisbane Airports. It is estimated that the total cost of the provision will be in the order of $112,000 p.a. per airport (a total of about $336,900 p.a.).

It is anticipated that the airport operators will pass these, costs (of aviation security) onto bodies utilising the airport -in much the same way as airport operators currently pass on the costs of - other items of airport terminal infrastructure. Under new prices oversight arrangements implemented for the privatisation of Australia's major Federal airports, airport operators are able to pass the costs associated with Government-mandated aviation security requirements onto users (such as airlines) on a "cost-only" basis.

There is no additional cost to Government arising out of the proposed regulatory initiative.

On the other hand, it is expected that the overall benefits of the proposed regulatory initiative will be significant and widespread (although the benefits are unable to be accurately costed in dollar terms). The regulatory initiative implements an additional security measure designed to deter and prevent the placement of explosives within passenger baggage and in airports generally. This will result in more secure arrangements for passenger processing and travel within Australia - with consequent beneficial effects for the deterrence, prevention and detection of acts of unlawful interference with Australian civil aviation.

That is, maintaining the status quo would have the effect of failing to mandate, as an aviation security measure at Australia's high volume airports, a capability that is currently available for immediate implementation and that is directly designed for the detection of explosives. In view of the forthcoming Sydney 2000 Olympic Games, it is proposed that such an aviation security measure be implemented as soon as possible at Sydney and also at Melbourne and Brisbane (representing Australia's second and third busiest airports).

5.       Consultation

By way of background, the Department consults widely with Australia's aviation industry on regulatory issues. In particular, the Department holds regular consultative meetings with industry representatives to discuss matters of regulation generally.

In relation to the regulatory initiative, the Department has maintained two interlinking industry consultative processes.

First, the Department has written to the operators of the airports affected, outlining the terms of the proposed regulatory initiative. This consultation was initiated on 24 June 1997 and has been maintained since that date.

Second, on 24 June 1997 the Department wrote in similar terms to members of the Aviation Security Industry Consultative Group - a consultative forum hosted by the Department covering Australia's aviation industry generally. The Group comprises the major airlines, the major airport operators and peak industry bodies. The Department holds regular meetings with the Group - approximately once every three months.

It is proposed that the future effect and operation of the proposed regulatory changes be reviewed in partnership with industry during the ongoing meetings of the Aviation Security Industry Consultative Group.

6.       Conclusion and recommended option

The proposed regulatory initiative, to introduce regulations providing for an explosives detection dog capability at Australia's major high volume airports of Sydney, Melbourne and Brisbane, enhances Australia's "aviation security net" and, as a result, the deterrence, detection and prevention of acts of unlawful interference with aviation.

Not introducing the proposed regulatory initiative would have the effect of failing to mandate, as an aviation security measure at Australia's high volume airports, a capability that is currently available for immediate implementation and that is directly designed for the detection of explosives.

7.       Implementation and review

The proposed regulatory initiative does not impact upon the Governments administrative procedures, nor does R affect existing levels of administrative requirements placed on business. It is proposed to review aviation security requirements on a regular basis and to consult on the effectiveness of the new security measure.