AVIATION TRANSPORT SECURITY AMENDMENT REGULATIONS 2011 (NO. 1) (SLI NO 61 OF 2011) EXPLANATORY STATEMENT

AVIATION TRANSPORT SECURITY AMENDMENT REGULATIONS 2011 (NO. 1) (SLI NO 61 OF 2011)

Subsection 133 (1) of the Aviation Transport Security Act 2004 (the Act) provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

Sections 35, 36, 36A, 37, 38 and 38A of the Act provide that matters that may be dealt with by regulations include access to airside and landside areas and security zones, including conditions of entry, the issue and use of security passes and other identification systems. Regulations made under these sections may prescribe penalties for offences against those regulations.

Subsection 16(3) of the Act provides that the regulations may prescribe other matters to be dealt with in transport security programs which may apply to each transport security program, a particular kind of aviation industry participant or for a particular class of a particular kind of aviation industry participant.

The Aviation Transport Security Regulations 2005 (the Principal Regulations) prescribe the necessary requirements for the issuing of an Aviation Security Identification Card (ASIC) and a Visitor Identification Card (VIC) along with the establishment of ASIC issuing bodies.

The Regulations give effect to key initiatives announced in the National Aviation Policy White Paper: Flight Path to the Future (the White Paper) as well as clarifying existing provisions.

* Strengthen the visitor management provisions at security controlled airports with regular public transport (RPT) services;

* Require ASIC issuing bodies to obtain the permission of airport operators if they intend issuing airport-specific ASICs for their airport.

The Act does not specify any conditions that need to be met before the power to make the proposed Regulations may be exercised.

Regulations 1 to 3 and Schedule 1 commence on the day after they are registered. Regulation 4 and Schedule 2 commence on 21 November 2011.

The Regulations are a legislative instrument for the purpose of the Legislative Instruments Act 2003.

The Department consulted widely with key industry stakeholders, including ASIC issuing bodies, aviation industry participants, unions and government agencies. Stakeholders were given the opportunity to provide input into the development of the Regulations through feedback at various industry forums and were invited to provide comment in writing to the Department on the first draft of the Regulations from 13 January 2011 to 4 February 2011 and the second draft from 25 February 2011 to 11 March 2011.

Since the release of the White Paper, constructive industry and union discussions have occurred at forums such as the Aviation Security Advisory Forum, Regional Industry Consultative Meeting and the Aviation Security Employee Consultative Forum.

A Regulatory Impact Statement (RIS 10645) was provided to the Office of Best Practice Regulations in the context of the White Paper.

Additional amendments in the Regulations that were not included in the White Paper RIS have been found by the Office of Best Practice Regulation to only have minor and machinery impact and do not require an amendment to the RIS.

This regulation provides that the title of the Regulations is the Aviation Transport Security Amendment Regulations 2011 (No. 1).

This regulation provides that the Regulations commence in two parts. Regulations 1 to 3 and the provisions in Schedule 1 commence on the day after the Regulations are registered. Regulation 4 and the provisions in Schedule 2 commence on 21 November 2011.

The provisions of Schedule 1 clarify a number of definitions throughout the Aviation Transport Security Regulations 2005 (the Principal Regulations).

The provisions of Schedule 2 make substantive changes to facilitate the reduction of the number of ASIC issuing bodies and strengthen the visitor management provisions at security controlled airports with regular public transport (RPT) services. In order to provide aviation industry participants sufficient time to comply with the new requirements, the provisions of Schedule 2 are delayed until 21 November 2011.

This regulation provides that the Principal Regulations are amended as set out in Schedules 1 and 2.

This regulation provides that the amendments in Schedule 2 do not affect the validity of a Visitor Identification Card (VIC) issued prior to 21 November 2011.

This item creates a defined term of Customs and Border Protection for the Australian Customs and Border Protection Service which will apply throughout the Principal Regulations.

Item [2] removes the defined term of DIMIA which is replaced by the term Immigration Department in item [3]. The meaning of Immigration Department is the same as the meaning for DIMIA. This amendment is in response to changes to the Administrative Arrangements Order, and is drafted to allow for any future changes in the name of the Department that is administered by the Minister who administers the Migration Act 1958 and has no substantive impact.

This item amends the defined term of officer of the Australian Customs Service to officer of Customs. The definition remains the same.

[5] Subregulation 3.07 (1), definition of cargo facilitator, including the example

This item amends the definition of cargo facilitator to clarify that a cargo facilitator only applies to someone who is travelling with the cargo for the purpose of assisting with the movement of the cargo and is someone who does not require frequent access to an airport, defined as more than three times a year. An overseas courier would be a common example of a person defined as a cargo facilitator. The definition applies only when specialist assistance is needed in the movement of the cargo, such as the movement of animals, works of art or delicate machinery.

This will encourage people who need frequent access to a security controlled airport to facilitate the movement of cargo to apply for an Aviation Security Identification Card (ASIC).

There is no requirement on airport operators to keep a record of the number of times a person is classified as a cargo facilitator.

These items amend paragraph 3.26(1)(b) and subregulation 3.26(2) to make them consistent with provisions in Division 3.3 granting an exemption to emergency personnel who access secure areas of airports during an emergency.

These items expand the range of emergency personnel who are permitted to access the landside area of an airport when responding to an emergency. They have been expanded to include the employees, contractors and volunteers of an ambulance, fire or rescue service or State and Territory emergency service. For example, this will exempt rural volunteer fire brigades and the State Emergency Service from ASIC and VIC requirements when responding to an emergency.

Persons acting under the direction of any of these emergency personnel are also permitted to access the landside area of an airport during an emergency.

The item clarifies that emergencies include those on and off the airport. For instance, the emergency may be in a distant location within Australia or overseas and emergency services may require access to the airport in order to transport personnel, cargo or specialised aircraft. Alternatively, the emergency could require emergency crews to cross through a security controlled airport in order to reach an emergency located on the other side of a boundary of a security controlled airport.

Emergency personnel who require access to security controlled airports with regular public transport operations as part of their normal duties are still be required to obtain and display an ASIC, except in emergency situations or unless otherwise exempt.

This is a consequential amendment as a result of the removal of subregulation 4.75(1) which defined DIMIA as the Department administered by the Minister who administers the Migration Act 1958. The Department is now defined in regulation 1.03 - see items [2] and [3].

The definition of when a person in custody is dangerous for the purposes of subdivision 4.5.2 is unchanged.

These items make a consequential amendment to paragraph 4.81(2)(e) and subregulation 4.83(4) as a result of the change in the defined term DIMIA to Immigration Department in items [2] and [3].

This item refines the definition of operational need to include persons whose occupation or legitimate business interests require him or her to have unmonitored access to a security controlled airport that requires ASICs, along with persons who are required in the regulations to hold ASICs whether or not they require access to a secure area within a security controlled airport.

Certain categories of airport employees are required under the Principal Regulations to hold an ASIC even if they do not access the secure areas of an airport. As such, in order for these people to meet the operational need requirement to hold an ASIC, the definition is being expanded. These employees are:

* Subregulation 3.12(1) - Persons facilitating passenger check-in or baggage handling

* Regulation 5.10 - Eligible Customs Officers, as per paragraph 89B(2)(a) of the Act.

This item makes a number of consequential amendments throughout the Principal Regulations to address the change of DIMIA to the Immigration Department and of the Australian Customs Service to Customs and Border Protection.

This item moves the definition of designated airport from Division 3.5 to regulation 1.03 with the definition now applying throughout the Principal Regulations.

This item creates a defined term of TAC for the Temporary Aircrew Card which will apply throughout the Principal Regulations. The TAC is an identification card for the use of aircrew which was created by the Regulations. It is defined by regulation 6.37B in item [77].

Many provisions of the Principal Regulations that apply to ASICs and VICs also apply to TACs. The Regulations make a number of consequential amendments to include a reference to TACs where appropriate.

This item amends regulation 1.04 to include in the definition of properly displaying a reference to a TAC. Properly displaying is a requirement referred to throughout the Principal Regulations which previously applied only to the display of an ASIC or VIC. The display of a TAC will now be subject to the same requirements.

These items amend the heading of regulation 1.05 and subregulation 1.05(1) to include that the definition of what is valid applies to a TAC. The definition already included a reference to a valid ASIC and VIC.

Airport operators have responsibility for managing visitor access to their airport through the issuing of VICs. Customs and Border Protection and Secretary-approved VIC issuers (defined in regulation 6.01(1) in item [41]) may also issue VICs. Airport operators may authorise agents under regulation 6.37G, such as other businesses with commercial or lease agreements with the airport, to issue VICs on their behalf.

This item creates four subregulations relating to the issuing of VICs by an airport operator.

This subregulation requires that any airport operator that intends to authorise agents to issue VICs on its behalf must include in its transport security program (TSP) procedures for how it will authorise agents and how the airport operator will audit the VIC issuing practices of its agents.

An airport operator does not need to name the agents that it intends to authorise in its TSP, just that it intends to be able to authorise agents and the associated procedures for authorisation and auditing.

This subregulation requires that any airport operator that intends to issue VICs in a different form from the standard defined in regulation 6.39 must include in its TSP the forms that it intends to issue. This may include both the standard and non-standard forms. The airport operator must also include in its TSP in what form agents are able to issue VICs. For example if one group of agents are required to issue VICs in one form, but another group of agents is required to issue VICs in a different form, the TSP must contain the names of the agents in both groups and the VIC forms both groups will be issuing.

Agents will not be able to issue VICs in a form not set out in the TSP of the airport operator.

In approving a non-standard VIC, the Secretary may consider forms of VICs already present on the airport.

There may therefore be multiple forms of VICs approved for an airport, in standard and multiple non-standard forms. This would allow airport operators to identify VICs issued in different circumstances, for example conditional VICs or VICs issued by different classes of agents.

This subregulation requires that any airport operator that intends to issue VICs may set out in their TSP circumstances where the VIC does not have to be returned within the seven day time period after its expiry required under subregulation 6.45(2)(b). Such circumstances may include where 'bleed-through' technology is used, which renders the card unusable after a period of time.

An airport operator's TSP that sets out procedures relating to authorisation of agents, the issuing of a non-standard form of VIC and circumstances were a VIC does not have to be returned within seven days must be approved by the Secretary under Division 5 of Part 2 of the Act.

An airport operator may still issue VICs without setting out these procedures in its TSP if it intends to issue VICs in the standard form, to not have agents and not require the return of VICs within seven days of its expiry date.

This item creates requirements on aircraft operators to include in their TSP processes if they intend to issue TACs or VICs. An aircraft operator may not necessarily be approved to issue TACs or VICs simply by inclusion of the relevant process in its TSP.

Aircraft operators that conduct regular public transport operations may seek to issue TACs to its employees or contractors. An aircraft operator intending to issue TACs must set the process under which they will issue TACs in their TSP and have that TSP approved by the Secretary. It is expected that any process for the issue of TACs to be approved by the Secretary will include detail on:

As TACs will be used at different airports nationally, an aircraft operator will not be able to issue a non-standard form of TAC. This will ensure that TACs will be readily identifiable throughout all Australian airports.

This subregulation requires that any aircraft operator approved by the Secretary to issue VICs under 6.37F that intends to authorise agents to issue VICs on its behalf must include in its TSP procedures for how it will authorise agents and how the aircraft operator will audit the VIC issuing practices of its agents.

An aircraft operator does not need to name the agents that it intends to authorise in its TSP, just that it intends to be able to authorise agents and the associated procedures for authorisation and auditing.

This subregulation requires that any aircraft operator approved by the Secretary to issue VICs under regulation 6.37F that intends to issue VICs in a different form from the standard defined in regulation 6.39 must include in its TSP the forms that it intends to issue. This may include both the standard and non-standard forms. The aircraft operator must also include in its TSP in what form agents are able to issue VICs.

In approving a non-standard VIC, the Secretary may consider the VICs already present on relevant airports and may seek comment from affected airport operators.

An aircraft operator approved by the Secretary to issue VICs should consider consulting with the affected airport operators when deciding to issue non-standard VICs.

There may therefore be multiple forms of VICs approved for an aircraft operator, in standard and multiple non-standard forms. This would allow aircraft operators to identify VICs issued in different circumstances, for example conditional VICs or VICs issued by different classes of agents. It would also allow an aircraft operator to issue VICs in a non-standard form that is consistent with a non-standard form issued by the airport operator.

Agents will not be able to issue VICs in a form not set out in the TSP of the aircraft operator.

This subregulation requires that any aircraft operator approved by the Secretary to issue VICs under 6.37F that intends to issue VICs may set out circumstances where the VIC does not have to be returned within the seven day time period after its expiry required under subregulation 6.45(2)(b). Such circumstances may include where 'bleed-through' technology is used which renders the card unusable after a period of time.

An aircraft operator's TSP that sets out procedures relating to authorisation of agents, the issuing of a non-standard form of VIC and circumstances were a VIC does not have to be returned within seven days must be approved by the Secretary.

It in intended that an aircraft operator include in its TSP procedures relating to the issue of VICs even if it intends to issue VICs only in the standard form, to not have agents and require the return of VICs within seven days of its expiry date.

This item amends the heading of Subdivision 3.2.1 to include a reference to TACs.

This item simplifies the reference in subregulation 3.03(1) to subregulations 3.05 to 3.09.

These items amend note 3 to subregulation 3.03(1) and subregulation 3.03(4B) to include a reference to TACs.

This item inserts a new regulation 3.07B providing for an exemption for children under the age of five and for children under the age of 16 who are on a school excursion from having to display an ASIC or VIC when in the secure area of an airport, so long as they are under the supervision at all times of a person who is displaying an ASIC.

While the words of regulation 3.07B refer only to an exemption from displaying an ASIC, an exemption from displaying an ASIC is also an exemption through the operation of subregulation 3.09(1) from having to display a VIC.

Any teachers or other persons aged 16 or over involved in a school excursion are required to display an ASIC or VIC.

Many provisions of the Principal Regulations that apply to ASICs and VICs also apply to TACs. These items make various consequential amendments to include a reference to TACs.

This item creates a defined term of agent which applies throughout Part 6. An agent is authorised by an airport operator or Secretary-approved VIC issuer to issue VICs on their behalf.

In order to authorise agents, an airport operator or Secretary-approved VIC issuer must have in their TSP that they intend to authorise agents to issue VICs. Authorisation of an agent must be in accordance with their TSP and the requirements set out in regulation 6.37G.

This item amends subregulation 6.01(1) to include in the definition of holder a reference to a TAC. An ASIC, VIC or TAC holder means the person to whom the ASIC, VIC or TAC was issued.

This item amends the definition of issuing body and inserts two new definitions.

This item amends the definition of issuing body to no longer include a reference to issuing VICs and to include transitional issuing bodies, which are defined in subregulation 6.01(1) in item [42].

Previously, issuing bodies would issue both ASICs and VICs. An issuing body now refers to those bodies who issue ASICs. VIC issuer is the term used for bodies that issue VICs and is defined in subregulation 6.01(1) in item [42]. A body may be both an issuing body and a VIC issuer.

This item inserts a defined term for officer of the Commonwealth. It provides a broad list of persons who are to be included in its definition and is intended to cover all forms of Commonwealth government employees but does not include independent contractors working for the government. The definition is used for the purposes of defining to whom Customs and Border Protection may issue a VIC to under subregulation 6.38(1A)(c).

This item creates a defined term of Secretary-approved VIC issuer. A Secretary-approved VIC issuer is an aircraft operator who has been approved by the Secretary under regulation 6.37F to issue VICs. It is to be distinguished from VIC issuer which includes airport operators and their agents, Secretary-approved VIC issuers and their agents and Customs and Border Protection and is defined in subregulation 6.01(1) in item [42].

This item inserts a defined term of transitional issuing body. A transitional issuing body is a former ASIC issuing body that has been declared by the Secretary under regulation 6.22A to be a transitional issuing body. It can no longer issue ASICs, except in certain circumstances, but remains responsible for the ASICs it has already issued. A declaration that a body is a transitional issuing body is the first step in the body being no longer responsible for any ASICs. A body will remain a transitional issuing body for a long as it has any valid ASICs. When the last ASIC it is responsible for has expired or is cancelled, it ceases to be a transitional issuing body.

This item creates a defined term of VIC issuer. A VIC issuer is the collective term for those bodies that may issue VICs and includes airport operators and their agents, Secretary-approved VIC issuers and their agents, and Customs and Border Protection.

Customs and Border Protection is a VIC issuer for law enforcement officers and government officials. Customs and Border Protection has been made a separate VIC issuer because the sharing of the visitor data with airport operators for these categories of people may in some circumstances jeopardise law enforcement activities. As Customs and Border Protection do not have a TSP, there are additional regulations that only apply to it in relation to the issuing of VICs - see subregulations 6.39A(1) and (2) in item [102].

This item makes a consequential amendment to paragraph 6.06(c) to include a reference to TACs in the procedures to be included in an ASIC program for the design, distribution and storage of sample ASICs, VICs and TACs for training purposes.

This item omits regulation 6.08 concerning the authorisation of agents of issuing bodies. Regulation 6.37G is the provision under which agents are authorised.

This item inserts a new regulation 6.11 requiring issuing bodies to review their ASIC programs to ensure that they comply with the Regulations and if it does not comply to submit a varied compliant ASIC program with the Secretary by 21December 2011. The Secretary will approve or disapprove the varied ASIC program under the provisions of regulation 6.10.

The Secretary may decide to revoke the authorisation of an issuing body to issue ASICs under regulation 6.19 or declare the issuing body to be a transitional issuing body under regulation 6.22A if an issuing body does not submit a revised ASIC plan. This power is at the discretion of the Secretary.

If an issuing body does not submit a revised ASIC program as its existing program is already compliant with the Regulations, the Secretary does not have the power under this regulation to revoke the authorisation or declare the issuing body as a transitional issuing body.

An issuing body may apply in writing to the Secretary requesting an extension to submit a revised ASIC program, unless the Secretary has already made a decision to revoke their authorisation to issue ASICs. The Secretary must inform the issuing body in writing of the Secretary's decision on whether to allow an extension within 30 days. Failure by the Secretary to provide a response within 30 days is taken as a refusal by the Secretary to allow the extension.

This item substitutes regulations 6.12, 6.12A, 6.13 and 6.14 with two new regulations.

Customs and Border Protection and the Civil Aviation Safety Authority, which is defined in section 9 of the Act and referred to throughout the Principal Regulations as CASA, are made issuing bodies by regulation 6.12.

CASA is traditionally the primary issuing body for General Aviation pilots and Customs and Border Protection is traditionally the primary issuing body for government employees. There is no obligation on either general aviation pilots or government employees to apply for an ASIC through either of these respective bodies.

Issuing bodies that were issuing bodies under regulations 6.13 or 6.14 prior to the commencement of Schedule 2 will continue to be issuing bodies after the commencement of Schedule 2. They will still have to comply with the requirements of regulation 6.11 to review and if necessary submit a varied ASIC program.

Issuing bodies authorised as an issuing body under regulation 6.15 will continue to be authorised under regulation 6.15.

This item amends the heading of regulation 6.15 to remove the reference to VICs. The issuing of VICs by an aviation industry participant is no longer connected to authorisation as an issuing body.

This item amends subregulation 6.15(1) to remove the exception that operators of security controlled airports do not need to apply to the Secretary for authorisation to become an issuing body.

Prior to the Regulations there was a requirement on the operators of security controlled airports with certain zones gazetted by the Secretary to be issuing bodies. The amendment to subregulation 6.15(1) removes this requirement. If an operator of a security controlled airport has its authority revoked, or the operator of a new security controlled airport wishes to apply for authorisation as an issuing body, it would apply through the same process under regulation 6.15 as all other aviation industry participants.

This item amends 6.16(4) to require the Secretary to authorise a security controlled airport as an issuing body if the Secretary is satisfied their ASIC program is adequate and their authorisation would not pose a threat to aviation security. Previously, this requirement was only upon the Secretary where the security controlled airport did not have regular public transport operations. This requirement has been expanded as a consequence of the amendment to subregulation 6.15(1) in item [44] now permitting security controlled airports to apply for authorisation as an issuing body.

This item removes subregulation 6.16(8) which stated that authorisation as an issuing body authorised the issuing of both ASICs and VICs. Authorisation to issue ASICs and VICs are now treated separately. Issuing body now only refers to those bodies that issue ASICs - see item [36]. A body that issues VICs is referred to as a VIC issuer - see item [38]. A body may be authorised to issue both.

At the commencement of the Regulations those bodies that previously issued VICs will not be permitted to issue VICs unless they are authorised as a VIC issuer.

This item removes paragraph 6.19(1)(a) that provided grounds for the Secretary to revoke the authority of an security controlled airport to issue ASICs if it did not have a secure area. As there is no requirement for other issuing bodies to be security controlled airports or to control secure areas to be authorised to issue ASICs, this removes an inconsistency that applied only to these issuing bodies.

This item makes a consequential amendment renumbering paragraphs 6.19(1)(b), (c) and (d) as a result of the omission of paragraph 6.19(1)(a).

This item inserts a new regulation 6.19A that gives the Secretary the discretionary power to revoke the authorisation of an issuing body to issue ASICs on the Secretary's own initiative or upon the application by an issuing body under regulation 6.20. This is different from the Secretary's existing power to revoke authorisation for cause under regulation 6.19.

When the Secretary is considering an own initiative revocation of the authorisation of an issuing body, the issuing body in question must be notified in writing. The issuing body then has 14 days to respond.

In making a decision to revoke the authorisation of an issuing body, the Secretary must take into consideration a number of matters, including:

* any ASIC applications that are still ongoing, including ASICs with finalised background checks that have not been issued;

* whether responsibility for existing ASICs can be transferred to another issuing body;

* any information provided by the Secretary of the Attorney-General's Department (Secretary AGD) on any operational impact if the issuing body were revoked;

* any response provided by the issuing body in response to notification that the Secretary is considering revoking their authorisation; and

The number of ASICs the issuing body is taken to be responsible for is those ASICs the issuing body has issued that:

* have been cancelled or have expired but may be reinstated under subregulations 6.28(4A), 6.28(4D), 6.28(4H), 6.43A, 6.43B, 6.43C without an additional background check being conducted.

This would include cards for example with a validity period of less than 12 months due to employer-imposed conditions, cards cancelled due to a lack of operational need or cards where the decision to cancel has been successfully appealed and reversed.

ASICs that the issuing body is taken to be also include cards that the issuing body has been given responsibility for, but might not have originally issued, through the operation of subregulation 6.22(2).

Written notice of the Secretary's decision whether or not to revoke the authorisation of an issuing body must be provided to the body along with the reasons for that decision. If the issuing body applied for the revocation, the written notice of the decision must be provided within 30 days of when the Secretary received the application - see subregulation 6.20(2) in item [50]. A failure to notify the issuing body of the decision is taken as a refusal by the Secretary to revoke their authorisation - see subregulation 6.20(3) in item [50].

If the Secretary decides to revoke the authorisation of an issuing body which still has responsibility for issued ASICs, the Secretary must either declare the issuing body a transitional issuing body under regulation 6.22A or determine that another issuing body will take over responsibility for those ASICs under regulation 6.22. In making the decision to declare the body a transitional issuing body or to shift responsibility for its ASICs, the Secretary must consider those matters in subregulation 6.19A(4).

If it is declared a transitional issuing body, it will remain responsible for those ASICs it has issued and will not be able to issue new ASICs, except in limited circumstances where it is replacing ASICs that may have been lost, damaged or destroyed. The body will remain a transitional issuing body until all ASICs it is responsible for expire or are cancelled.

If it is determined that another issuing body will take over responsibility for the ASICs issued by the revoking body, the body will cease being an issuing body on the day the decision is made.

If the Secretary decides to revoke an issuing body's authorisation and it is not responsible for any ASICs the revocation takes immediate effect.

The Secretary must inform the Secretary AGD of any decision to revoke an issuing body's authority to issue ASICs. This will be updated in the AusCheck database managed by the Secretary AGD.

The decision by the Secretary to revoke or not revoke is not subject to merit review.

This item replaces the previous regulation 6.20 which required the Secretary to revoke the authorisation of an issuing body upon their request. The revocation of the authorisation of an issuing body upon written request is now at the discretion of the Secretary under regulation 6.19A. Regulation 6.20 requires that the Secretary must make a decision and inform the issuing body in writing of that decision within 30 days of receiving the application to revoke. Failure by the Secretary to make a decision within 30 days is taken to be a refusal to revoke the authorisation.

This item replaces regulation 6.22 for the transfer of ASICs from one issuing body to another and inserts a new regulation 6.22A for the declaration of a transitional issuing body.

Regulation 6.22 sets out the process for the changeover of responsibility for ASICs from an issuing body that will no longer issues ASICs (referred to in the regulation as the original issuing body) to another issuing body (the new issuing body). Regulation 6.22 applies when the Secretary revokes the authorisation of an issuing body to issue ASICs, when an issuing body no longer exists (such as insolvency) or for any other reason that an issuing body no longer performs the role of an issuing body.

In the situations when regulation 6.22 applies, the Secretary may decide that the new issuing body will be responsible for the ASICs issued by the original issuing body. The new issuing body is then taken as the issuing body for those ASICs that are transferred to it. The operation and validity of transferred ASICs is unchanged. All details relating to the ASIC remain the same, including the expiry date. All duties performed by the original issuing body for the ASIC are then performed by the new issuing body. In making the decision, the Secretary will consider whether a new issuing body is willing to accept the changeover of responsibility for the ASICs.

The original issuing body must transfer its register of ASICs to the new issuing body, but only those ASICs that:

* have been cancelled or have expired but may be reinstated under subregulations 6.28(4A), 6.28(4D), 6.28(4H), 6.43A, 6.43B, 6.43C without an additional background check being conducted.

The new issuing body is then responsible for maintaining the records of those transferred ASICs as if it has been the original issuing body.

The new issuing body is not responsible for the actions of the original issuing body in relation to the issue of the ASIC. This is to protect the new issuing body for any liability that may arise from errors made by the original issuing body in the issue of the ASIC.

The Secretary is to inform the Secretary AGD of the transfer of responsibility of the ASICs in order to update the AusCheck database. The Secretary AGD will need to be informed prior to any revocation to allow the original issuing body to be removed from the AusCheck system at the time of revocation.

The Secretary may decide that not all ASICs will be transferred from the original issuing body to the same new issuing body. They may be spread out between different new issuing bodies.

Regulation 6.22A permits the Secretary to declare that an issuing body is a transitional issuing body defined in subregulation 6.01(1) in Item [38]. A declaration by the Secretary will follow an exercise of the Secretary's discretion under 6.19A to revoke the authority of an issuing body to issue ASICs.

A declared transitional body will still be responsible for those ASICs is has issued but will not issue new ASICs, unless it is for an ASIC applied for prior to the declaration of the body becoming a transitional issuing body or for a replacement ASIC, and it must not apply to Secretary AGD for a background check, other than under regulation 6.41A when an ASIC holder reports that they have been convicted of an aviation security related offence.

The Secretary is to inform the Secretary AGD of the declaration of a body as an issuing body.

There is no offence provision associated with a breach of the requirements to not issue an ASIC however transitional issuing bodies will be prevented through the AusCheck system from doing so.

A issuing body will start being a transitional issuing body on the day the Secretary makes the declaration and will cease being a transitional issuing body after all their existing ASICs have expired or have been cancelled.

This item amends the heading of regulation 6.23 to remove the reference to VICs. It is a consequential amendment of item [53] which removes the requirement for issuing bodies to keep VIC records.

This item removes subregulation 6.23(4) requiring issuing bodies to maintain a register of details concerning the issue of VICs. As a result of the Regulations, issuing bodies will no longer be responsible for issuing VICs therefore removing the need for maintaining VIC records. Requirements relating to the maintenance of VIC records now sit in regulation 6.25A in item [58].

This item makes a consequential amendment to the numbering of subregulations 6.23 (5), (6) and (7) following the removal of subregulation 6.23(4) in item [53].

This item amends the heading of regulation 6.24 to specify that it applies to the other records of issuing bodies. Requirements relating to VICs which have been removed from regulation 6.24 by item [56] no longer apply to issuing bodies.

This item removes each mention of VIC from subregulation 6.24(2) as the subregulation applies to issuing bodies and issuing bodies are no longer required to maintain VIC records.

This item makes a consequential amendment to the heading of regulation 6.25 as it now only applies to issuing bodies.

This item inserts a new regulation 6.25A which sets out the record keeping requirements for all VIC issuers. Agents of VIC issuers are not required by the Principal Regulations to maintain VIC records however they may be required to do so in their agency agreement with their principal VIC issuer. VIC issuer records must include the details of VICs issued by their agents.

If a VIC is issued by a Secretary-approved VIC issuer or its agent, or Customs and Border Protection, the VIC register must include details of the airport at which the VIC is valid. Airport operators are not required to record this detail as they may only issue VICs for their airport.

The reasons stated by the person applying for the VIC must be recorded in writing the register. It is an offence for a person to misrepresent the reason for requiring a VIC under subregulation 6.38A(6). A VIC issuer may refuse the reason for why a person needs a VIC under subregulation 6.38A(5).

The details of an ASIC holder confirming the reason why the person needs a VIC are to be recorded in the register. If this ASIC holder is not the person who will be supervising the VIC holder, the details of the person who will be supervising the VIC holder also need to be recorded. This includes their name, ASIC number and the expiry dates of their ASIC. The ASIC holder listed as the supervisor in the register does not have to be the ASIC holder supervising the VIC holder all the time. They may pass responsibility for supervision onto another ASIC holder during their visit.

The date a VIC was returned or cancelled or reported lost, stolen or destroyed may need to be recorded. A VIC issuer may have approved in its TSP circumstances where a VIC does not need to be returned - see subregulation 2.16(6) for airport operators and subregulation 2.32(9) for Secretary-approved VIC issuers.

The 28 day rule is explained in regulations 6.38E to 6.38I in item [88]. It is an offence under subregulation 6.38(7) in item [87] for a person to make a false declaration that they have not been refused an ASIC or had an ASIC cancelled or suspended. It is also an offence for a person to knowingly breach the 28 day rule under subregulations 6.38E(4), 6.38EA(2) and 6.38EB(2).

Details of the documentation used to verify the identity of a person applying for a VIC are to be recorded. Copies of the documentation are not expected to be kept, however the type of document, the document number (if relevant), and the date of expiry, state or country of issue should all be recorded.

The residential details of a VIC holder who is a law enforcement officer, an officer or employee of ASIO or an Australian Public Service employee do not have to be recorded on the register. In the circumstances where these details are not recorded a statement why they weren't recorded should be made, for example residential information was not recorded in accordance with subregulation 6.25A(3).

Requirements for the VIC register to hold written statements or declarations may be satisfied through an electronic record, for example, a declaration by the VIC holder may be made through a checking a checkbox on an electronic form acknowledging their declaration.

Records on the VIC register must be kept for at least 24 months after the issue of the VIC (not the expiry of the VIC). The requirement for VIC registers to be kept for 24 months is to ensure compliance with the record-keeping requirements and to enable to tracking of visitors to airports.

In addition to the requirements of the VIC register, a VIC issuer must also keep a record for each person of the number of days the VIC issuer (or its agents) has issued a VIC to that person in the previous 12 months. This record is kept for the purposes of the 28 day rule, which is why it only needs to be kept for 12 months. VIC issuers that are airport operators of an airport from which screened air services do not operate are exempt from this requirement.

A VIC issuer may choose to combine its VIC register and record of VIC days into one database. There is no restriction on keeping records longer than the time prescribed in this regulation.

It is an offence for VIC issuers to not keep a register of issued VICs and the number of days each person has been issued a VIC. A penalty of 30 penalty units applies to a failure to maintain the register or a record of VIC days per person in accordance with the requirements of this subregulation. The penalty is consistent with Commonwealth penalties for offences relating to record keeping. It is not a strict liability offence therefore the knowledge of the VIC issuer that records were not being adequately kept is required to be shown.

This item also inserts a new regulation 6.25B which sets out the record keeping requirements for all TAC issuers.

A TAC can only be issued to ASIC holders or someone who has applied for an ASIC. The ASIC number of an ASIC holder must be recorded on the TAC database, or for applicants, the name of the issuing body where the application has been lodged. A TAC holder may not know their ASIC number however their employer should have these details available in their records when issuing the TAC.

The date a TAC was returned or cancelled or reported lost, stolen or destroyed may need to be recorded.

TAC records must be maintained for at least 24 months after the issue of the TAC (not the expiry of the TAC).

The VIC and TAC registers must be kept in a form that can be conveniently audited which will most commonly mean that it is stored electronically and accessible through a computer. The register must be stored at the office of the issuer.

While the regulation requires an electronic copy of the register, the regulations do not require that VICs and TACs be produced by electronic methods. In the case of a power failure, there is nothing preventing a VIC or TAC issuer from issuing handwritten VICs in accordance with the Principal Regulations or having pre-made VICs or TACs for reuse for short-term visitors which are returned at the end of the day. A hard copy of the information required in the VIC register can be entered into the electronic database at a later date.

VIC and TAC issuers must allow aviation security inspectors to inspect their records upon request during normal business hours.

This item inserts a new subregulation 6.26A(2) defining when an ASIC holder is taken to be supervising a person. The definition of supervising was previously in subregulation 6.38(2) and was in reference to supervision of VIC holders. An ASIC holder may now be supervising the holder of a VIC (subregulation 6.38(1)), Temporary ASIC (regulation 6.37A) or TAC (regulation 6.37C).

The same ASIC holder does not have to be supervising the holder of a VIC, temporary ASIC or TAC all the time. They may pass responsibility for supervision onto another ASIC holder.

This item amends the heading of Subdivision 6.5.2 to remove a reference to VICs as the issue of VICs is now dealt with in Subdivision 6.5.3.

This item replaces regulation 6.27 removing references to the issue of VICs by issuing bodies as the authorisation to issue ASICs and VICs are now treated separately - see item [46].

This item also creates an offence in subregulation 6.27(2) for non-issuing bodies to issue ASICs and in subregulation 6.27(4) for transitional bodies to issue an ASIC that is not a replacement ASIC or an ASIC that was applied for before the body was declared an issuing body. The penalty for committing this offence is set at 50 penalty units and is a strict liability offence. The offence on non-issuing bodies issuing ASICs is not a new offence but has been moved from subregulation 6.40(1) - see item [110]. A separate offence exists for transitional bodies as they are still defined as issuing bodies, meaning that the offence in subregulation 6.27(2) would not apply if they issued an ASIC outside of the permitted circumstances.

This item creates subregulation 6.27A(1) requiring that in order for an issuing body (other than Customs and Border Protection) to issue an airport-specific ASIC, they require the written permission of that airport for which they intend to issue the airport-specific ASIC. This restriction only applies if the issuing body is not the operator of the airport that the airport-specific ASIC will be issued for. For example, if Issuing Body ABC intended to issue airport-specific ASICs for Airport XYZ, ABC would need the written of XYZ in order to do so.

While the ASIC does not provide a right of access, the intent of the regulation is to provide greater access control for airport operators.

While there is no offence provision attached to this regulation, an ASIC issued in without permission will not be a valid ASIC as defined in regulation 1.05.

An airport operator may grant permission to an issuing body to issue airport-specific ASICs at its airport on a once-off general basis for all ASICs in the future, or it may impose conditions. For example a general permission might be given for a specific class of employees.

Issuing bodies should remember that an Australia-Wide ASIC may only be issued when the ASIC holder has an operational need to access more than one airport.

If an issuing body is refused permission to issue airport-specific ASICs at a particular airport, or is unsatisfied with the conditions imposed, the issuing body may apply to the Secretary for an exemption to the requirement.

In deciding whether to grant an exemption to subregulation 6.27A(1), the Secretary is to consider:

* Any reasons provided by the airport as to why permission was denied or why the conditions were imposed;

* The number of airport-specific ASICs for that airport the issuing body has previously issued or proposes to issue;

* the effect that the exemption would have on aviation security at the airports and on the airport operator;

* the significance of any facilities operated by the issuing body at the airport.

The Secretary will provide a written decision on granting an exemption and the reasons behind the decision within 30 days of receiving the application from the issuing body.

The administrative process in providing the written decision to the issuing body will include notification in writing by the Secretary to the airport operator of the decision.

This item removes regulation 6.27B which was a transitional arrangement relating to previous amendments and is no longer relevant.

This item is a consequential amendment to paragraph 6.28(4A)(a) which referred to regulation 6.47(2) which was renumbered 6.47(1) in item [128].

This item inserts four new subregulations concerning the Secretary's approval to issue an ASIC in certain circumstances where a person has been found ineligible and has applied to the Secretary to exercise discretion to issue an ASIC.

Subregulation 6.29(2A) permits the Secretary to request information from the Secretary AGD about the person. This may include information relating to previous applications for ASICs.

Subregulations 6.29(2B) to (2D) permit the Secretary to close an application from a person for a discretionary ASIC where the Secretary has requested more information under subregulation 6.29(2) and it has not been provided within 30 days of the request. Previously, if the Secretary had not yet made a decision and had requested more information which had not been provided, the application must remain open. The person or an issuing body on the person's behalf may request in writing for the Secretary to reopen to application. If the Secretary decides to extend the time for an application, it is not reopened until the requested information has been provided.

This item amends paragraph 6.33(4)(e) by changing first name to given name. First name is no longer used in regulations as in some cultures the first name that appears in a person's name is actually the family name and the person's given name comes after the family name.

This item removes regulation 6.34 dealing with the production of sample ASICs and VICs for training purposes. The provisions relating to sample ASICs and VICs are now contained in regulation 6.50 in item [132].

This item substitutes updated diagrams for the temporary red ASIC and temporary grey ASIC. The substituted diagrams are easier to read and reflect the changed requirements for these cards.

Under paragraph 6.37(5A)(a) in item [74], temporary ASICs issued for more than 24 hours at a designated airport or more than 72 hours at any other airport must include:

A temporary ASIC may also include these features even for cards that are not issued for more than 24 hours (72 at non-designated airports).

This is a consequential amendment to subregulation 6.37(3) following the new requirements of subregulation 6.37(5A) in item [74] concerning temporary ASICs issued over 24 hours at designated airports, or over 72 hours at all other airports.

This item removes the requirement for the image of the holder on a temporary ASIC to be a photo taken in the last six months. The requirement now is that the photo is a recent photo. The reason behind this amendment was that a temporary ASIC would often have the same photo that is on the holder's permanent ASIC, which may be up to two years old.

This item amends paragraph 6.37(3)(e) by changing first name to given name. First name is no longer used in regulations as in some cultures the first name that appears in a person's name is actually the family name and the person's given name comes after the family name.

This item inserts a new subregulation 6.37(5A) which requires that a temporary ASIC issued for more than 24 hours at a designated airport or more than 72 hours at any other airport must contain:

However; new subregulation 6.37(5B) provides that a temporary ASIC issued to a person who is displaying a valid ASIC for another airport is exempt from the requirements of subregulation 6.37(5A).

This item makes a consequential amendment to subregulation 6.37(6) as a result of the insertion of subregulation 6.37(5A) in item [74].

This item inserts new regulations requiring supervision of temporary ASIC holders where the card does not meet certain requirements, Subdivision 6.5.2A dealing with TACs and Subdivision 6.5.3 dealing with VICs.

This item inserts regulation 6.37A requiring that the holder of a temporary ASIC that does not have the image of the holder, the given name and surname of the holder and the expiry date of the temporary ASIC to be supervised by an ASIC holder at all times whenever the holder of the temporary ASIC is in the secure area of an airport. If a temporary ASIC is missing any of these requirements, the holder must be supervised.

The holder of a temporary ASIC who is displaying a valid ASIC for another airport is exempt from the requirement and does not have to be supervised.

A temporary aircrew card is similar to a VIC that can be used at multiple airports, but can only be used by the employees and contractors of aircraft operators that have been approved to issue them. Aircraft operators may issue temporary aircrew cards to their employees and contractors if they have been approved to do so in their TSP under subregulation 2.32(5) in item [7].

Only aircraft operators that conduct regular public transport operations may issue TACs.

An employee or contractor or an aircraft operator may be issued a TAC when they are the holder of an ASIC, but don't have their ASIC on them, or they have applied for an ASIC, and they require access to more than one security controlled airport as part of their employment. The intent of TACs is to allow aircrew who don't have their ASIC to continue to work without major disruption. The nature of aircrew employment may take them to multiple airports as part of their work before they have the chance to collect a forgotten ASIC. Issuing a VIC for each airport may be time consuming and affect not only the aircrew but passengers as well.

Any employee of an aircraft operator who is not actually travelling aboard a flight may not be issued a TAC, for example engineers performing on the line or ramp, unless they require access to more than one airport, otherwise a VIC (which would not be subject to the time restrictions of a TAC) would be more appropriate.

Airports will not need to produce TACs or include any reference to TACs in their TSP or ASIC Program, except for the purposes of training.

It is an offence for an aircraft operator that conducts regular public transport operations to issue TACs if it has not set out the process in its TSP for how cards will be issued and that TSP has been approved. It is also an offence for persons who are not an aircraft operator that conducts regular public transport operations to issue TACs. The penalty for both offences is set at 50 penalty units which is consistent with the penalty on non-issuing bodies that issue ASICs.

The holder of a TAC must be supervised by an ASIC holder at all times whenever they are in a secure area. This is consistent with the requirement on VIC holders to be supervised. An aircraft operator employee who is an ASIC holder who has lost or misplaced his or her ASIC could avoid the supervision requirement if they are issued with a temporary ASIC that complies with subregulation 6.37(5A) instead of a TAC.

It should be noted that while an aircraft operator must conduct regular public transport operations to apply to issue TACs, TAC holders are restricted from accessing prescribed air services without supervision. This is broader than regular public transport operations.

If a TAC holder is supervised, they are able to perform their duties. If they are unsupervised, it is unlikely they will be able to perform their duties. In the case where there is only one attendant on a flight, then they must be issued with a temporary ASIC in compliance with subregulation 6.37(5A) or they must be supervised.

Subregulation 6.37D(1) is a diagram outlining the TAC form. It is similar to the requirement in subregulation 6.39(1) in item [89] for a VIC.

Subregulation 6.37D(2) requires that TACs must comply with the dimensions, colour and type-face indicated on the card. A TAC is to be light or lime green.

If the image of the holder is shown on the card, it must be a recent image. This may include a photo a TAC issuer has on their employee database or ASIC register if they are also an ASIC issuing body.

A TAC must include the aircraft operator's company name. This is intended to be the name the company is commonly known as or trades by. Legally separate companies that are part of a larger umbrella of companies may all share the same company name on the TAC. The intent is so the TAC issuer is readily identifiable.

Under subregulation 6.37D(3) if a TAC is issued for more than 72 hours it must include:

It is a strict offence for an aircraft operator approved to issue TACs to issue a TAC that does not comply with the TAC form requirements. The penalty of 50 penalty units is consistent with the penalty for ASIC issuing bodies or VIC issuers who issue an ASIC or VIC that does not comply with their respective form requirements.

There is a discretionary area at the bottom of a TAC that may be used by the aircraft operator for its own purposes, for example the inclusion of a logo or information relating to access control.

It is an offence of strict liability for anyone other than a VIC issuer to issue a VIC. The penalty is set at 50 penalty units which is consistent with the penalty for non-issuing bodies that issue ASICs.

A VIC issuer is defined in subregulation 6.01(1) in item [38] and is the collective term for those bodies that may issue VICs. It includes airport operators and their agents, Secretary-approved VIC issuers and their agents and Customs and Border Protection.

Aircraft operators that operate a regular public transport operation from a passenger terminal may apply, in writing, to the Secretary for approval to issue VICs and be classified as a Secretary-approved VIC issuer. This therefore precludes aircraft operators that run only cargo terminals and charter operators.

The application to the Secretary must set out the airports that the aircraft operator wants to become a VIC issuer for and the reasons behind why it should be approved to issue VICs.

Aircraft operators approved to issue VICs will not necessarily be restricted to issuing VICs only at their passenger terminals. The requirement for a passenger terminal is the threshold for applying to the Secretary. Once this has been met, the aircraft operator may apply to issue VICs at other airports, however this will be subject to approval by the Secretary, which will be subject to the considerations of subregulation 6.37F(4) to each airport.

In determining whether to approve the application of an aircraft operator to become a Secretary-approved VIC issuer, the criteria below will be considered. An airport operator's application should provide information that addresses these criteria. In addition, the Secretary may ask for more information.

* the reasons provided by the aircraft operator for wanting to become a VIC issuer, including why this is preferred over the aircraft operator becoming an agent of the airports where it wants to issue VICs;

* any effects on aviation security at those airports where the aircraft operator will be approved to issue VICs, as well as any effects on the airport operators themselves;

* the significance of the facilities under the control of the aircraft operator at those airports; including:

o the size and number of the aircraft operated by the aircraft operator that use the facilities;

o whether the aircraft operator is in control of its own screening point for those facilities; and

o the measures and procedures in place to control access to those facilities (this will be outlined in the aircraft operator's TSP);

* whether the aircraft operator intends to authorise agents to issue VICs on its behalf and who those agents might be; and

The Secretary must make a decision on the application and inform the aircraft operator in writing of that decision within 30 days of receiving the application. Failure by the Secretary to make a decision within 30 days is taken to be a refusal to approve the aircraft operator as a VIC issuer. A decision to approve an application must also set out those airports the aircraft operator may issue VICs and any conditions imposed on the aircraft operator in the issuing of those VICs.

The Secretary must provide written notification to the airport operators of those airports the aircraft operator has been approved to issue VICs.

A decision by the Secretary to disapprove an application may be appealed to the Administrative Appeals Tribunal under regulation 8.06 in item [141].

A Secretary-approved VIC issuer must include in its TSP processes for issuing VICs - see subregulations 2.32(6) to 2.32(9) in item [7].

Regulation 6.37G Authorisation of agent of airport operator or Secretary-approved VIC issuer

An airport operator or Secretary-approved VIC issuer may authorise agents to issue VICs on their behalf if they have been approved to do so in their TSP and it is in accordance with its TSP - see subregulation 2.16(3) in item [6] for airport operators and subregulation 2.32(6) in item [7] for Secretary-approved VIC issuers. An airport operator or Secretary-approved VIC issuer may impose conditions on its agents in the issuing of VICs.

Only persons who are appropriate may be authorised as an agent to issue VICs. In order to be classified as appropriate to become an agent, they must:

* control or have reasonable need to access a secure area or part of a secure area of an airport;

* have been determined by the authorising airport operator or Secretary-approved VIC issuer as unlikely to be a threat to aviation security if they are made an agent; and

* demonstrated that it is not more appropriate for VICs to be issued by the airport operator or Secretary-approved VIC issuer rather than the person.

An agent must have their authority as an agent revoked immediately if they no longer satisfy the criteria above.

An airport operator or Secretary-approved VIC issuer is responsible for the actions of their agents in regards to the issuing of VICs. This is consistent with issuing bodies being responsible for the actions of their agents in relation to issuing ASICs. The intent is to place the responsibility on the airport operator or Secretary-approved VIC issuer to ensure that agents keep appropriate records and comply with all regulations and conditions imposed in the issuing of VICs. For example if a VIC issued by an agent is issued in breach of subregulation 6.38C(1), which requires that identification is confirmed before a VIC is issued, the VIC issuer who authorised the agent has committed an offence. A failure by a VIC agent to keep appropriate records is an offence committed by the VIC issuer who authorised the agent.

A VIC issuer may impose conditions on its agents, for example limiting the hours when they can issue VICs, limiting the categories of people they may issue a VIC to or by prohibiting an agent from issuing VICs in exceptional circumstances under regulation 6.38C.

Customs and Border Protection and a Secretary-approved VIC issuer may be authorised as an agent of an airport operator to issue VICs at an airport they are also approved to issue VICs at under their own authority. In these circumstances the identifier on each VIC will determine under which authority the VIC was issued. For example, a Secretary-approved VIC issuer issuing a VIC under its own authority will have its identifier on the VIC, required under paragraph 6.39(2)(g)(i). A Secretary-approved VIC issuer issuing a VIC as an agent will have the identifier of its authorising VIC issuer, generally the airport operator.

Customs and Border Protection cannot authorise an agent to issue VICs on its behalf.

This item changes the heading of regulation 6.38 from VICs to Issue of VICs to more clearly express the purpose behind the regulation.

This item makes a consequential amendment to subregulation 6.38(1) to reference the caveat in subregulation 6.38(1A) in item [79] on when a VIC may be issued.

This item inserts subregulation 6.38(1A) that restricts Customs and Border Protection to only issue VICs to law enforcement officers, officers and employees of the Australian Security Intelligence Organisation or the Australian Secret Intelligence Service, or an officer of the Commonwealth or of a State or Territory government. Officer of the Commonwealth is defined in subregulation 6.01(1) in item [36].

Persons categorised as able to be issued VICs by Customs and Border Protection must be on duty to qualify.

It will not be expected of Customs and Border Protection to issue VICs for all government agencies. Airport operators will still have the primary responsibility for issuing of VICs on their airport. The intent behind Customs-issued VICs is primarily for law enforcement purposes.

This item removes subregulation 6.38(2) which previously defined when a VIC holder is supervised. This definition is now in subregulation 6.26A(2) in item [62].

This item makes a consequential amendment to subregulation 6.38(3) referring to the definition of supervising which has been moved to 6.26A(2)(b)(iii).

This item makes a consequential amendment to subregulation 6.38(4) to now refer to VIC issuer rather than issuing body due to the creation of VIC issuers as the bodies authorised to issue VICs and the removal of this responsibility from issuing bodies.

This item inserts a note reminding that the penalty for a breach of subregulation 6.38(4) by an agent will apply to the VIC issuer that authorised the agent under subregulation 6.37G(5) in item [76].

This item inserts a new heading before subregulation 6.38(6) indicating that subregulations 6.38(6) and (7) deal with persons to whom a VIC cannot be issued.

This item makes a consequential amendment to subregulation 6.38(6) to now refer to VIC issuer rather than issuing body due to the creation of VIC issuers as the bodies authorised to issue VICs and the removal of this responsibility from issuing bodies.

This item inserts a note reminding that the penalty for a breach of subregulation 6.38(6) by an agent will apply to the VIC issuer that authorised the agent under subregulation 6.37G(5) in item [76].

This item replaces subregulations 6.38(7) to 6.38(9) with a new subregulation 6.38(7) which creates an offence on a person who applies for a VIC and has made a declaration under paragraph 6.25A(2)(i) in item [58] that they have not been refused an ASIC or had an ASIC suspended or cancelled due to an adverse criminal record and they knew that declaration to be false. The penalty for the offence of 20 penalty units is consistent with other offences on individuals throughout the Principal Regulations and is intended to ensure compliance in order to protect aviation security.

This item inserts nine new regulations relating to the issuing of VICs, including the creation of penalties on individuals and VIC issuers and the 28 day rule.

In order for a person to be issued a VIC they must provide a reason why they need to access the secure area of an airport. This reason must be recorded on the VIC register by the VIC issuer under paragraph 6.25A(2)(c) in item [58] and is to be confirmed in writing by an ASIC holder which must also be recorded in the VIC register under paragraph 6.25A(2)(m) in item [58].

It is an offence for a person to knowingly make a false or misleading declaration of the reasons why they need to access the secure area of an airport. It is also an offence on the ASIC holder who confirms the reason why the VIC is needed knowing that the reasons provided by the VIC applicant are false or misleading.

It is an offence for a VIC holder who enters a secure area for a reason other than that approved by the VIC issuer or engages in conduct that is inconsistent with the approved reason while in the secure area.

If the reasons why a person has been issued a VIC change the person must provide an update in writing to the VIC issuer of the changed reasons. The written requirement is satisfied by the updated reasons being recorded in the VIC register.

Providing an updated reason for a VIC does not automatically allow the VIC holder to continue to access secure areas. The VIC issuer may approve or disapprove the new reason. If the reason is disapproved the VIC is then no longer valid.

If a VIC holder continues to access a secure area without an approved reason they commit an offence under subregulation 6.38A(6).

In order for a VIC to be issued to a person the identity of the person must be confirmed by the VIC issuer. This can be done through:

* an identification document with a recent photo of the person and is a primary or secondary identification document as defined in subregulations 6.04(2) and (3), for example a current passport, driver licence, government employee identification or a student identification;

* two forms of identification one of which with a signature that the person verifies by resigning that:

o have been issued by a financial institution, for example a credit card or ATM card; or

o are a primary, secondary or tertiary identification document as defined in subregulations 6.04(2), (3), (5) and (6); or

A manner of identification approved by the Secretary may apply to all VIC issuers or only to a particular class of VIC issuers. Possible approved manners of identification may include confirmation through the AusCheck system for ASIC holders or through a company database for its employees.

Foreign dignitaries as defined in paragraphs 4.12(1)(a), (b) and (c) and persons under 18 are exempt from confirming their identification.

The identification of a person does not need to be confirmed in exceptional circumstances, as determined by the VIC issuer. An exceptional circumstance may include where there is a plumbing or electrical emergency and the person called to fix the problem does not have sufficient identification. Any exceptional circumstances where a VIC is issued must be recorded in writing and that record maintained for 24 months. The record must be made available to an aviation security inspector on request during business hours.

Any circumstances known in advance will not be regarded as exceptional circumstances, for example 'urgent construction' will not be considered exceptional circumstances.

The identification documentation used to verify a person's identity under paragraphs 6.38C(1)(a) and (b) must be recorded in the VIC register by the VIC issuer under paragraph 6.25A(2)(l) in item [58].

It is an offence for the VIC issuer to not confirm the identity of the person being issued a VIC if the person is not exempt from the requirement. The penalty for a breach of subregulation 6.38C by an agent will apply to the VIC issuer that authorised the agent under subregulation 6.37G(5) in item [76].

A VIC issuer may issue a VIC subject to a condition, such as limiting the areas a VIC holder may access.

A VIC must only be issued for one airport. The issuing of a VIC that is valid for more than one airport is an offence. This applies to all VIC issuers.

An airport operator commits an offence if it issues a VIC that is valid for an airport that it does not control. A Secretary-approved VIC issuer commits an offence if it issues a VIC for an airport that it has not been approved by the Secretary to issue VICs for. The penalty for these offences of 50 penalty units is consistent with the penalties for issuing bodies that issue an ASIC that does not comply with the Principal Regulations.

Airport operators and Secretary-approved VIC issuers must not issue a VIC that is valid for more than 28 days. Customs and Border Protection must not issue a VIC longer than 24 hours. VICs issued by Customs and Border Protection are limited to 24 hours as it is intended that their use will be for law enforcement purposes only.

A VIC issuer, other than Customs and Border Protection, must not issue a VIC to a person who has held a VIC for a particular airport for 28 days or more during the previous 12 months. This is known as the 28 day rule. The penalty for this offence is 50 penalty units.

In calculating the number of days a person has held a VIC for an airport, VICs issued by Customs and Border Protection and VICs issued prior to 21 November 2011 are not counted. VICs also issued under the exemptions in regulations 6.38G - to an ASIC applicant, 6.38H - to an ASIC holder, 6.38I - in exceptional circumstances, and 6.38F - under a temporary exemption, are not counted when calculating the number of days.

John has been issued a VIC for the following days over the previous 12 months for Airport ABC:

* 1 to 5 January 2012, issued by a Secretary-approved VIC issuer approved to issue VICs at Airport ABC

In calculating the number of days John has been issued a VIC for Airport ABC, only those VICs issued 1 to 10 December 2011, 11 to 20 December 2011 and 1 to 5 January 2012 are counted - totalling 25 days. The other VICs do not count as they were issued prior to 21 November 2011 (1 to 10 November 2011) and by Customs and Border Protection (10 to 20 January 2012). John is therefore able to be issued a VIC for Airport ABC.

A VIC issuer may only issue a VIC to a person for a period that will not result in the person breaching the 28 day rule. This means that from the final day that a VIC is valid, counting backwards the previous 12 months, the person must not have held a VIC for that particular airport for more than 28 days.

Following the example above, if John were to apply for a VIC for Airport ABC from the airport operator, a Secretary-approved VIC issuer or an approved agent on 21 January 2012, he may only be issued a VIC for three days. This is because within the previous 12 months, he has been issued a VIC at Airport ABC for 25 days (remembering that Customs and Border Protection VICs and VICs issued before 21 November 2011 don't count). Once John had been issued this three day VIC, he could not apply for another VIC for Airport ABC until after 1 December 2012 as it will then be more than 12 months since that VIC was issued.

John, if eligible, could still be issued a VIC by Customs and Border Protection as it won't count towards the 28 day rule. However; it should be noted that Customs and Border Protection cannot issue a VIC to a person if they have held a VIC issued by Customs and Border Protection for more than 28 days during the previous 12 months.

It is an offence for a person to knowingly apply for a VIC in breach of the 28 day rule. A person applying for a VIC can ask their VIC issuer for a count of the number of days they have previously issued the person a VIC in the last 12 months. The VIC issuer is required to record this information under subregulation 6.25A(5) in item [58].

Regulation 6.38EA The 28 day rule - additional rules for Secretary-approved VIC issuers

In addition to the requirements in regulation 6.38E to not issue a VIC to a person for more than 28 days at a particular airport, Secretary-approved VIC issuers must not issue a VIC to a person to whom they have issued a VIC for 28 days or more during the previous 12 months, regardless of which airports those VICs were issued for. A Secretary-approved VIC issuer that does not comply with this rule commits an offence with a penalty of 50 penalty units.

* At Airport ABC - 11 to 20 May 2012, issued by Secretary-approved VIC issuer 123

* At Airport XYZ - 1 to 18 June 2012, issued by Secretary-approved VIC issuer 123

John has been issued a VIC by Secretary-approved VIC issuer 123 for a total of 28 days across both Airport ABC and XYZ. John cannot have anymore VICs issued to him by Secretary-approved VIC issuer 123 until after 11 May 2013 as it will then be more than 12 months since that they issued him a VIC. John can however still be issued a VIC for Airport ABC by an operator or agent of the airport for 18 more days and for Airport XYZ for another 10 days.

It is an offence for a person to knowingly apply for a VIC from a Secretary-approved VIC issuer in breach of the 28 day rule. A person applying for a VIC from a Secretary-approved VIC issuer can ask for a count of the number of days they have previously issued the person a VIC in the last 12 months. The Secretary-approved VIC issuer is required to record this information under subregulation 6.25A(5) in item [58].

In calculating the number of days a person has been issued a VIC by a Secretary-approved VIC issuer, VICs issued prior to 21 November 2011 are not counted. VICs also issued under the exemptions in regulations 6.38G - to an ASIC applicant, 6.38H - to an ASIC holder, 6.38I - in exceptional circumstances, and 6.38F - under a temporary exemption, are not counted when calculating the number of days.

In order for airport operators to calculate the number of days a person has been issued a VIC for their airport in the previous 12 months, Secretary-approved VIC issuers must provide data to airport operators on VICs they have issued for that airport. This data is to be provided on or before the 7^th of each month and cover data for the previous month. The data must provide the name, date of birth and address of each person the Secretary-approved VIC issuer issued a VIC to who has held a VIC, according to their records, for more than 20 days in the last 12 months for that airport, the dates that those VICs were issued and how long the VIC was issued for.

Secretary-approved VIC issuers must provide this data to the airport operators of every airport they have been approved by the Secretary to issue VICs for, excluding those airports that do not operate screened services. Airports that do not operate screened services are exempt from recording the number of days a person has been issued a VIC at their airport under subregulation 6.25A(6) in item [58] and therefore there is no need to provide this information.

The data to be provided to the airport operator could take the form of the example below:

In providing this data to airport operators, Secretary-approved VIC issuers are to be aware of their obligations under the Privacy Act 1988. When collecting information for a person in the issuing of a VIC, Secretary-approved VIC issuers may want to acknowledge that some of the information collected may be shared with airport operators in order to comply with the Principal Regulations.

Regulation 6.38EB The 28 day rule - additional rule for Customs and Border Protection

Customs and Border Protection must not issue a VIC to a person to whom they have issued a VIC for 28 days or more during the previous 12 months, regardless of which airports those VICs were issued for.

It is an offence for a person to knowingly apply for a VIC from Customs and Border Protection in breach of the 28 day rule. A person applying for a VIC from Customs and Border Protection can ask for a count of the number of days they have previously issued the person a VIC in the last 12 months. Customs and Border Protection is required to record this information under subregulation 6.25A(5) in item [58].

In calculating the number of days a person has been issued a VIC by Customs and Border Protection, VICs issued prior to 21 November 2011 are not counted.

The Secretary may make an exemption in writing for an individual VIC issuer, a class of VIC issuers or all VIC issuers from the requirements of the 28 day rule in subregulations 6.38E(2) and (3) and subregulation 6.38EA(1) for a specified time. This exemption may be subject to conditions that must be followed by the VIC issuers specified.

A person who has applied for an ASIC and have not yet had their application finalised is exempt from the 28 day rule in subregulations 6.38E(2) and (3) and subregulation 6.38EA(1). They may apply for a VIC regardless of the number of days they have been issued a VIC in the previous 12 months.

Whether a person has applied for an ASIC must be independently verified by the VIC issuer. This verification could take place in the form of a letter from the issuing body advising that they have received and are processing the application or through confirmation that an application has been received by the Secretary AGD by checking the AusCheck system.

A person is only taken as having applied for an ASIC if they have submitted their application to an issuing body which is processing the application. Completing the application forms alone is not sufficient to be deemed as applying.

A person who has a valid ASIC but does not have it on their person is exempt from the 28 day rule in subregulations 6.38E(2) and (3) and subregulation 6.38EA(1). They may apply for a VIC regardless of the number of days they have been issued a VIC in the previous 12 months.

Whether a person has a valid ASIC must be independently verified by the VIC issuer. This verification could take place in the form of a letter from the person's issuing body advising they have a valid ASIC and are currently in the process of replacing it or through confirmation through the AusCheck system.

A person who has a valid airport-specific ASIC is also exempt from the 28 day rule when issued a VIC for a different airport.

A VIC issued to an ASIC holder must not have an expiry date later than the expiry date of the ASIC.

A VIC may be issued to a person despite the 28 day rule in subregulations 6.38E(1) and (2) for a particular airport if the VIC issuer considers there are exceptional circumstances.

An exceptional circumstance may include where there is a plumbing or electrical emergency and the person called to fix the problem does not have sufficient identification. Any exceptional circumstances where a VIC is issued must be recorded in writing and that record maintained for 24 months. The record must be made available to an aviation security inspector on request during business hours.

Any circumstances known in advance will not be regarded as exceptional circumstances, for example 'urgent construction' will not be considered exceptional circumstances.

There is no limit on the number of days a VIC may be issued for exceptional circumstances.

This item substitutes an updated diagram for default form of the VIC. The substituted diagram is easier to read and reflects the changed requirements for the card.

Under subregulation 6.39(4A) in item [97], a VIC issued for more than 24 hours at a designated airport or more than 72 hours at any other airport must include:

A VIC may also include these features for cards that are not issued for more than 24 hours (72 at non-designated airports).

There is a discretionary area at the bottom of a VIC that may be used by VIC issuer for its own purposes, for example the inclusion of a logo or information relating to access control.

This is a consequential amendment to subregulation 6.39(2) following the new requirements of subregulation 6.39(4A) in item [97] concerning VICs issued over 24 hours at designated airports, or over 72 hours at all other airports.

This item removes the requirement for the image of the holder on a VIC to be a photo taken in the last six months. The requirement now is that the photo is a recent photo. This amendment makes the recent photo requirement consistent with temporary ASICs and TACs.

This item amends paragraph 6.39(2)(d) by changing first name to given name. First name is no longer used in regulations as in some cultures the first name that appears in a person's name is actually the family name and the person's given name comes after the family name.

This item makes a consequential amendment to paragraph 6.39(2)(e) to now refer to VIC issuer rather than issuing body due to the creation of VIC issuers as the bodies authorised to issue VICs and the removal of this responsibility from issuing bodies.

This item amends paragraph 6.39(2)(f) to remove the caveat of if the VIC is airport specific as all VICs are airport specific.

This item amends paragraph 6.39(2)(g) and removes paragraph 6.39(2)(h) to specify the VIC issuer identifier that must be on a VIC. For all VIC issuers the background colour of the identifier may be any colour.

If the VIC issuer is an airport operator, the identifier must be the airport operator's logo or ICAO 4-letter code, 3-letter code or IATA 3-letter code for the airport.

If the VIC issuer is a Secretary-approved VIC issuer the identifier must be the aircraft operator's company or trading name. This is intended to be the name the company is commonly known as or trades by. Legally separate companies that are part of a larger umbrella of companies may all share the same company name on the VIC. The intent is so the VIC issuer is readily identifiable.

If the VIC issuer is Customs and Border Protection the identifier must be the word Customs.

Agents of airport operators and Secretary-approved VIC issuers must have the same identifier as the VIC issuer that authorised the agent.

This item amends paragraph 6.39(2)(i) to require that the date of expiry on a VIC includes the day it expires, for example 22 July 2012, rather than July 2012.

This item inserts a new subregulation 6.39(4A) to require that a VIC issued for more than 24 hours at a designated airport or more than 72 hours at any other airport must contain:

This item makes a consequential amendment to subregulation 6.39(5) to refer to VIC issuer rather than issuing body due to the creation of VIC issuers as the bodies authorised to issue VICs and the removal of this responsibility from issuing bodies.

This item makes a consequential amendment to subregulation 6.39(5) as a result of the insertion of subregulation 6.39(4A) in item [97].

This item inserts a note reminding that the penalty for a breach of subregulation 6.39(5) by an agent will apply to the VIC issuer that authorised the agent under subregulation 6.37G(5) in item [76].

These items make amend regulation 6.39A, concerning the issue of VICs in other forms than that set out in subregulations 6.39(1) and (2), to only refer to Customs and Border Protection instead of issuing bodies. VIC issuers other than Customs and Border Protection may apply to the Secretary under subregulation 6.39A(7A) to issue VICs in a form other than the default. These other VIC issuers set out the alternative forms in their TSP and have their TSP approved by the Secretary- see subregulations 2.16(4) and (5) in item [6] for airport operators and subregulations 2.32(7) and (8) for Secretary-approved VIC issuers in item [7]. As Customs and Border Protection does not have a TSP additional provisions for the application and approval of alternative forms of VIC have been set out in regulation 6.39A.

This item amends subregulation 6.39A(8) and inserts three new subregulations for the issue of VICs in different forms by VIC issuers other than Customs and Border Protection.

The Secretary approves a VIC issuer to issue VICs in a different form other than that set out in subregulations 6.39(1) and (2) through approval of the VIC issuer's TSP. A VIC issuer intending on issuing VICs in an alternative form must set out the alternative forms in their TSP and have their TSP approved by the Secretary - see subregulations 2.16(4) and (5) in item [6] for airport operators and subregulations 2.32(7) and (8) for Secretary-approved VIC issuers in item [7].

Alternative forms of VIC approved prior to 21 November 2011 are no longer valid after 21 November 2011 and must be reapproved by the Secretary under these subregulations.

Revised ASIC Programs will not be approved if they purport to authorise the issue of alternative forms of VICs. Alternative VIC forms must be submitted through a revised TSP.

An agent of an airport operator or Secretary authorised VIC issuer may only issue VICs in an alternative form if it is stated in the airport operator's or Secretary authorised VIC issuer's TSP that the alternative form will be issued by the agent.

This item creates a strict liability offence for VIC issuers that issue a VIC that is not in the default form set out in subregulations 6.39(1) and (2) or in an alternative form approved by the Secretary in their TSP.

This subregulation is a replacement for the previous offence covered under regulation 6.40.

This item inserts a new subregulation 6.39A(10) to create an offence for VIC issuers that issue a VIC in the default form set out in subregulations 6.39(1) and (2) when their TSP states that they must not issue a VIC in that form. Without this subregulation, a VIC issuer that has stated in its TSP that it will not issue VICs in the default form that goes on to issue a VIC in the default form would not have committed an offence.

This item inserts the heading for Subdivision 6.5.3A Obligations of VIC issuer, ASIC holder and issuing body.

A VIC issuer that issues a VIC to a person must ensure the VIC holder is aware of their responsibilities under the Principal Regulations. These obligations include:

* the requirement to leave a secure area if not under the supervision of an ASIC holder - regulation 3.09;

* the requirement to return an expired, cancelled or damaged VIC to the VIC issuer within 7 days - regulation 6.45;

* the requirement to return a VIC when there is no longer a need to access a secure area to the VIC issuer within 7 days - regulation 6.45;

* the requirement to update the reasons why a VIC is needed if the reasons change - regulation 6.38B;

* adherence to any conditions imposed on the VIC by the VIC issuer - regulation 6.38D; and

* to provide appropriate identification when applying for a VIC - regulation 6.38C.

VIC issuers (other than airports from which no screened air services depart) will be expected to inform VIC applicants of the number of days that they have previously been issued a VIC by the VIC issuer as part of making them aware of their responsibilities in relation to the 28 day rule.

VIC issuers must ensure that unissued VICs and all systems and equipment used in the production of VICs are kept secure. This includes protecting areas where VICs are produced and the secure transportation, storage and destruction of VIC information. The production of VICs means the manufacturer or physical production of VICs, not necessarily the issuing of VICs. For example it would not apply to the issuing of a VIC out of a car.

The standards to secure VIC equipment and information are expected to differ between airports depending on risk management factors. It will be left up to VIC issuers to set the security standard for their agents, given that VIC issuers are responsible for the actions of their agents under regulation 6.37G(5).

VIC issuers should be aware of their responsibilities under the Information Privacy Principles within the Privacy Act 1988.

This item amends the heading of Subdivision 6.5.4 to refer only to the suspension of ASICs. Regulations relating to the cancellation and other matters of ASICs, VICs and TACs are contained in Subdivision 6.5.5 in item [113].

This item inserts a new subdivision concerning the cancellation and other matters of ASICs, VICs and TACs.

This item creates a defined term for subdivision 6.5.5 of issuer. Issuer refers to different bodies depending on whether it is an ASIC, VIC or TAC that is relevant.

* For a VIC - issuer refers to the VIC issuer that issued the VIC, whether it be an airport operator, a Secretary-approved VIC issuer or Customs and Border Protection.

Issuer refers to the VIC issuer that authorised an agent, if the VIC was issued by the agent of a VIC issuer.

This item amends the heading of regulation 6.43 to remove the reference to VICs. The cancellation of VICs is covered in regulation 6.43F in item [127].

This item removes subregulation 6.43(1) as it defined who is taken for the issuing body of a VIC and VICs are no longer covered in regulation 6.43. The cancellation of VICs is covered in regulation 6.43F in item [127].

This item makes a consequential amendment to subregulation 6.43(2) to remove a reference to VIC as it no longer covered in regulation 6.43. The cancellation of VICs is covered in regulation 6.43F in item [127].

This is a consequential amendment to paragraph 6.43(2)(d) following the new requirements of subregulation 6.43(2A) in item [119] inserting a caveat on the cancellation of ASICs.

This item inserts a new subregulation 6.43(2A) placing a caveat on the requirement under paragraph 6.43(2)(d) for an issuing body to cancel an ASIC upon receiving a notice from the Secretary AGD that an ASIC holder has an adverse criminal record. The issuing body must not cancel the ASIC if the ASIC was issued or reinstated after consideration by the Secretary under regulations 6.29 or 6.43C and the notice from the Secretary AGD relates to an application by the ASIC holder for a new ASIC.

This item is to resolve a regulatory ambiguity which may have resulted in the cancellation of the ASIC of an ASIC holder who has applied for a new ASIC who previously had their ASIC initially refused due to an adverse criminal record and then granted under regulation 6.29 or had their ASIC reinstated after being cancelled under regulation 6.43C. As the adverse criminal record has already been considered by the Secretary in approving or reinstating the ASIC it should not be considered again for the current ASIC. However, the adverse criminal history will again be taken into consideration for the issue of the new ASIC.

This item removes subregulations 6.43(3B) and (3C) which related to the cancellation of a VIC. VICs are no longer covered in regulation 6.43. The cancellation of VICs is covered in regulation 6.43F in item [127].

These items make consequential amendments to remove a reference to VICs as VIC are no longer covered in regulation 6.43. The cancellation of VICs is covered in regulation 6.43F in item [127].

This item makes a consequential amendment to subregulation 6.43(6) referring to subregulation 6.43(3B) which has been removed in item [120].

This item makes a consequential amendment to paragraph 6.43(6)(b) referring to ASICs as this distinction is no longer necessary as regulation 6.43 no longer refers to VICs.

This item inserts four subregulations relating to the reinstatement of an ASIC cancelled under paragraph 6.43(2)(ba) or (d).

Subregulations 6.43A(6) to (9) permit the Secretary to close an application from a person to reinstate their ASIC where the Secretary has requested more information under subregulation 6.43A(6) and the information has not been provided within 30 days of the request. Previously, if the Secretary had not yet made a decision and had requested more information which had not been provided, the application must remain open. The person or an issuing body on the person's behalf may request in writing for the Secretary to reopen the application. If the Secretary decides to extend the time for an application, it is not reopened until the requested information has been provided.

This item inserts regulation 6.43F requiring the cancellation of a VIC or TAC by the issuer if they find out that the card was not issued in accordance with their TSP or the Principal Regulations or if the VIC or TAC holder had an ASIC cancelled under paragraphs 6.43(2)(b), (c), (d) or (db). The requirement to cancel a VIC or TAC not issued in accordance with the issuer's TSP also applies if an agent of the issuer issues the card. The requirement to cancel a VIC or TAC if the issuer finds out that the holder had an ASIC cancelled does not apply when the ASIC has been reinstated.

The provisions of this regulation relating to VICs were previously in regulation 6.43 but have been separated and apply also to TACs.

A VIC or TAC must also be cancelled if the issuer finds out that the person also holds an ASIC which has been suspended.

It is an offence for an issuer to not cancel a VIC or TAC when required to do so under this regulation. The penalty of 100 penalty units is in line with the risk represented by an issuer continuing to knowingly allow a person into the secure area of an airport when they are not permitted to.

An issuer may cancel the VIC or TAC of a person who fails to display their VIC or TAC in accordance with the requirements of subdivision 3.2.1 or when the VIC or TAC is defaced in any way. A VIC issuer may also cancel a VIC if the VIC holder contravenes a condition of the VIC. When considering cancelling a VIC or TAC due to a breach of requirements of subdivision 3.2.1, the issuer is to take into account the kind and seriousness of each breach and whether the person has a history of breaching subdivision 3.2.1 or any conditions of an ASIC or VIC previously held.

The cancellation of a VIC or TAC takes place when the issuer notifies the holder of the cancellation.

This item substitutes regulations 6.44 to 6.47 and inserts a new regulation 6.44A.

If an ASIC, VIC or TAC is cancelled by the issuer because they found out the person is an unlawful non-citizen or the issuer has received a notice from the Secretary AGD that the person has an adverse criminal record - both grounds for the cancellation of an ASIC under paragraphs 6.43(2)(c) and (d) - the issuer must provide a written report to the Secretary setting out the name of the person, their address and the details of the cancellation.

The cancellation of a VIC or TAC is only required to be notified to the Secretary if it is cancelled under paragraphs 6.43(2)(c) or (d). Notification of a cancellation for other reasons, for example due to no longer having an operational need, is not necessary.

The Secretary may pass on the information of an ASIC, VIC or TAC cancelled under this regulation if the Secretary thinks that doing so will help prevent unlawful interference with aviation. The information the Secretary may pass on is that an issuer has cancelled the card. The power is optional as there may not be any threat of unlawful interference, for example when the card has been returned or the issuer.

The Secretary may notify the airport operator of the cancellation of an airport-specific ASIC for that airport where the airport operator did not cancel the card. An airport operator might otherwise not be aware of the cancellation.

This regulation sets out the requirements relating to the return of an ASIC, VIC or TAC.

An ASIC, VIC or TAC must be returned to the issuing body within a set timeframe after the card expires, the holder is notified that the card has been cancelled, the card has been damaged or the holder no longer needs to access the secure area. For ASICs, no longer having a need to access the secure area means that the holder no longer has an operational need.

ASICs must be returned within one month. VICs and TACs must be returned within 7 days.

A VIC issuer may have approved in their TSP circumstances where a VIC does not have to be returned within the 7 day time period. This will have been approved by the Secretary under subregulation 2.16(6) in item [6] or subregulation 2.32(9) in item [7]. An approved circumstance may include where bleed-through technology is used to show that the card is invalid after a certain period of time or where the VIC is designed to fade within a period of time. As Customs and Border Protection does not have a TSP, any circumstances where a VIC does not have to be returned within the 7 day time period must be approved by the Secretary under paragraph 6.45(3)(b).

Where a VIC is not returned within the required timeframe, the VIC issuer must take reasonable steps to tell the former VIC holder, their employer and the ASIC holder who supervised the VIC holder that the card must be returned.

Failure to return an ASIC, VIC or TAC when required is a strict liability offence of 10 penalty units.

It is a strict liability offence for an ASIC, VIC or TAC holder to not report their lost, stolen or damaged card within 7 days of becoming aware of the lost, theft or damage of the card. It is not an offence when the issuer of the card destroys the card.

The holder of an ASIC, VIC or TAC may voluntarily request for the issuer of the card to cancel the card. An issuer requested by the holder of an ASIC, VIC or TAC to cancel a card must do.

This item amends subregulation 6.49(1) to include a reference to TACs allowing the Minister to direct in writing that all TACs or particular classes of TACs may be cancelled.

This item amends subregulation 6.49(2) to include a reference to TACs to allow the Minister to define a class of TACs to be cancelled by the issuer that issued the TAC. The item also makes a consequential amendment to account that different types of issuers are responsible for issuing ASICs, VICs and TACs.

This item inserts a new regulation 6.50 to permit issuers to issue sample ASICs, VICs and TACs for the purpose of training. The card must be distinguished from genuine ASICs, VICs and TACs but otherwise may take a form determined by the issuer.

These items amend subregulations 6.53(1) and (2) to include a reference to TACs.

This item makes a consequential amendment to paragraph 8.02(1)(g) as a result of the insertion of paragraph 8.02(1)(h) in item [138].

This item inserts a new paragraph 8.02(1)(h) allowing an application to be made to the Administrative Appeals Tribunal to review a decision by the Secretary to revoke an issuing body's authorisation under regulation 6.19A in item [49].

This item makes a consequential amendment to paragraph 8.02(3)(h) as a result of the insertion of paragraph 8.02(3)(i).

This item inserts a new paragraph 8.02(3)(i) allowing an application to be made to the Administrative Appeals Tribunal to review a decision by the Secretary on granting an exemption for an issuing body requiring the permission of the airport operator to issue airport-specific ASICs at that airport. See regulations 6.27A in item [64].

This item inserts a new regulation 8.06 allowing an application to be made to the Administrative Appeals Tribunal to review a decision by the Secretary to not approve an aircraft operator as a Secretary-approved VIC issuer under regulation 6.37F.

This item makes a number of consequential amendments to provisions in regulation 6.06 and regulations 6.16 and 6.19 to remove reference to VICs as the issuing of ASICs and VICs are now treated separately.

Extract of Item 5.5 from the National Aviation Policy Statement - Aviation White Paper Regulatory Impact Statement (RIS 10645)

The Regulations require people accessing secure areas of security controlled airports, at which regular passenger services (RPT) operate, to be background checked and display either an Aviation Security Identification Card (ASIC) or a Visitor Identification Card (VIC); at all times at screened airports and during RPT traffic periods only at non-screened airports. A VIC holder must be supervised by a person holding a valid ASIC at all times when in the secure area.

Before applying for an ASIC a person must have an operational need; that is they have a genuine valid requirement to frequently access to all, or part, of a secure area of an airport, or for the operation of the airport or an aircraft. ASICs deliver a level of assurance that people who have been issued with such a card are not a risk to aviation security. The ASIC regime aims to assist in the reduction of unlawful interference with aviation, not just terrorism.

On an international scale, the ASIC scheme is consistent with world's best practice. Introduced in late 1998, the ASIC scheme was developed and implemented utilising components of several international aviation security background checking regimes. International benchmarking practices were adopted during the inception of the ASIC regime to ensure a best practice policy was legislated in Australia. Since its inception, the scheme has been subject to continuous enhancement in line with the changing security environment and international developments.

Following a review of Aviation Security Identification Card (ASIC) provisions in the Aviation Transport Security Regulations 2005 (ATSR), a series of amendments are proposed to strengthen the ASIC scheme after further aviation industry consultation.

In order to relieve the regulatory, administrative and financial burden on the aviation industry, it is proposed that the number of ASIC issuing bodies will be reduced. There are currently 191 ASIC issuing bodies which comply with ASIC reporting requirements under the ATSR. However approximately 116 of these ASIC issuing bodies do not currently issue ASICs and as such their ASIC issuing status should be revoked. A further reduction will be achieved by inviting any other ASIC issuing bodies that want to voluntarily revoke their authorisation as an issuing body to do so.

There are currently limited circumstances in which a person's ASIC can be cancelled. It is possible for an individual who becomes ineligible under the background checking criteria to continue to hold an ASIC. To mitigate this potential weakness, ASIC cancellations will be strengthened requiring an issuing body to cancel a holder's ASIC (subject to any appeal) if the issuing body becomes aware the holder no longer meets the eligibility criteria. The maximum penalty for an ASIC holder failing to report that they have been convicted of an aviation security relevant offence will also be increased, from 20 penalty units ($2,200.00) to 120 penalty units ($13,200.00).[1] The current maximum penalty is so low that it creates little incentive to report. In conjunction, the regulations could be amended to allow for subsequent background checks to be conducted on ASIC holders, in instances where the Department becomes aware that an individual may no longer meet the background checking eligibility criteria.

In addition, it is proposed that provisions regarding the appeal of decisions not to issue a person with an ASIC will be streamlined by establishing an appeal mechanism directly to the Secretary of the Department. This will enhance client service arrangements for ASIC applicants and align ASIC appeal processes with the Maritime Security Identification Card scheme. Time frames will be developed for the lodgement of appeal applications in order to minimise turnaround times for individuals and aviation industry participants during the appeals process.

The proposed ATSR amendments will also enhance arrangements for the management of visitors at security controlled airports who are under the supervision of ASIC holders. In particular, visitors will be required to produce photographic proof of identity before a visitor identification card will be issued and it would be an offence for a Visitor Identification Card (VIC) applicant to knowingly provide a misleading reason for entry to a security controlled airport. To further strengthen visitor management arrangements, a maximum of three visitor cards will be able to be issued to a person within a 12 month period. A person refused an ASIC would also not be able to utilise the visitor management system. These measures will minimise the potential for the misuse of VIC scheme as a possible mechanism for persons to inappropriately gain access to security controlled areas within the aviation environment.

In addition miscellaneous administrative ATSR amendments are also proposed which include amendments regarding exemptions for ASIC display requirements; ASIC expiry dates being changed from the end of the month of expiry to a specific day[2]; and the issuing of a replacement ASIC by an issuing body if the card holder has surrendered their ASIC to their previous issuing body.

In the longer term, the Department will consider additional policy setting adjustments consistent with the security environment with regard to identity management (including biometrics) and the possibility of further separation of background checking and access regulatory provisions for security controlled airports.

* strengthening the ASIC cancellation provisions for ASIC issuing bodies and making provision for subsequent background checking requirements for ASIC holders where their eligibility to hold an ASIC may have changed;

* increasing the maximum penalty for an ASIC holder failing to report that they have been convicted of an aviation security relevant offence;

* reducing the number of ASIC issuing bodies and enabling ASIC applicants to appeal decisions directly to the Secretary of the Department; and

* enhancing the arrangements for the management of visitors at security controlled airports under the supervision of ASIC holders.

An examination of the cost effectiveness of a move to annual background checking was conducted as part of the ASIC review. It is noted that the increased frequency of background checks would not provide a real-time checking system, however such a move would add significant costs to industry participants whilst delivering only marginal improvements to the number of positive checks of existing card holders. As a result the Government will maintain the current ASIC validity period ASIC of two years and the associated background checking processes, noting the long term desire to develop a real time capacity.

The Office of Transport Security (OTS) will work closely with aviation industry participants to ensure the implementation of these enhancements to the already strong ASIC scheme take into account the particular difficulties associated with aviation in different regional locations across Australia. The proposed ASIC scheme improvements will ensure that the ASIC scheme remains consistent with international better practice, delivers enhanced security outcomes at security controlled airports and that the administration of the scheme is streamlined for the benefit of both industry and government.

Impact on Consumers

Costs

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Impact on Industry

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Benefits

It became apparent during the review that there were a number of issuing bodies that were not actively involved in the production and issuing of ASICs. There are currently 191 ASIC issuing bodies which are required to comply with reporting requirements under the ATSR. For those 116 issuing bodies that do not actively produce and issue cards (the majority of whom are in regional Australia), this is a regulatory, administrative and financial burden which will be removed by the proposed initiatives. It is intended that this reduction be extended in the future by inviting any other ASIC issuing bodies that want to voluntarily revoke their authorisation as an issuing body to do so.

Risks

Impact on Government

Costs

Any cost to the Government is contingent on budget approval for funding of proposed initiatives. If this funding is not forthcoming industry will bear the full costs.

Benefits

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[1] Since the approval of the RIS, policy approval was provided to limit the maximum penalty to 50 penalty units, which is the maximum penalty permitted for an individual under the Aviation Transport Security Act 2004.

[2] Following industry consultation the maximum ASIC expiry is now two years from the end of the month of the original background checks.

Airport	Surname	Given name	Date of Birth	Address	Suburb	Postcode	Date VIC issued	Days of VIC
ABC	Smith	John	22/07/84	12 Hill Place	Collingwood	3066	23/01/12	10
ABC	Smith	John	22/07/84	12 Hill Place	Collingwood	3066	05/03/12	12
ABC	Jones	John	14/02/56	1 Red Street	Canberra	2600	22/01/12	21

Commonwealth Numbered Regulations - Explanatory Statements

Impact on Consumers

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Impact on Industry

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Impact on Government

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