ATTACHMENT

 

Details of the proposed Aviation Transport Security Amendment Regulation 2012 (No. 5)

 

Section 1 - Name of Regulations

 

This section provides that the title of the Regulation is the Aviation Transport Security Amendment Regulation 2012 (No. 5)

 

Section 2 - Commencement

 

This section provides for the Regulation to commence on 27 November 2012.

 

Section 3 - Amendment of the Aviation Transport Security Regulations 2005

 

This section provides that the Aviation Transport Security Regulations 2005 are amended as set out in the Schedule.

 

Schedule 1 - Amendments

 

Item [1] - Regulation 4.03A

 

The new regulation prescribes that if a person is directed to undergo a body scan by a screening officer, and that person refuses, they will be unable to pass through the screening point for a 24 hour period.

 

Allowances are specified in a notice made under regulation 4.17 for certain persons to be screened by another screening procedure that is set out in the notice. This includes where a screening officer is satisfied that the person has a medical or physical condition that makes screening by body scanning equipment undesirable or where the person is an unlawful non-citizen who is detained under section 189 of the Migration Act 1958. Examples of medical or physical conditions that make screening by body scanning equipment undesirable include persons that use mobility devices who are unable to stand in the body scanning equipment unassisted, persons in wheelchairs, persons accompanied by assistance animals, infants and young children, and persons who are unable to raise their arms above their head.

 

Items [2], [3], [4] - Regulation 4.17

 

This regulation amendment prescribes that the Secretary of the Department of Infrastructure and Transport may, by written notice, specify the methods, techniques and equipment to be used for screening, and the persons or things that must not pass through a screening point at a security controlled airport.

 

Item [5] - Regulation 4.18A

 

The new regulation prescribes that screening authorities responsible for operating a screening point must display a notice that outlines the rights and responsibilities of individuals at a screening point. The notice informs passengers that by entering the screening point, they will be taken to have consented to screening procedures, with the exception of a frisk search, and that by refusing a screening procedure, they will not be cleared to pass through the screening point.

 

The Aviation Transport Security Amendment (Screening) Bill 2012 amended the Act so that a person is taken to consent to any screening procedure when that person is at a screening point and must receive clearance in order to board an aircraft or to enter an area or zone of a security controlled airport. This provision does not apply where the procedure is a frisk search or where the person specifically refuses to undergo a screening procedure. The intent of this regulation is to inform the travelling public of this provision by requiring the screening authority to erect a sign at the screening point.

Item [6] - Regulation 4.41E

This item removes the requirement for a regulated business to record on a chain of custody statement the time and date of when it took possession of the identified cargo.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Aviation Transport Security Amendment Regulation 2012 (No. 5)

 

The Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the Instrument

 

The Instrument will amend the Aviation Transport Security Regulations 2005 to support the upcoming introduction of body scanners at Australian international airports. This will ensure that Australian travellers are afforded the highest level of protection against aviation terrorism, bringing Australia into line with countries such as the United States of America, Canada, the United Kingdom and the Netherlands. The Instrument will provide flexibility in the future for the Government to introduce new screening tools as improvements are made to existing technologies. It will also ensure that these technologies are used in such a way that achieves both a maximum security outcome and minimal impact on passenger facilitation.

 

Human rights implications

 

The Instrument engages the following human rights:

 

Right to freedom of movement

 

The right to freedom of movement is protected by Articles 12 and 13 of the International Covenant on Civil and Political Rights (ICCPR). These articles protect a person's right to move freely within a country for those who are lawfully within the country, the right to leave any country and the right to enter a country of which they are a citizen. The ability of a screening officer to refuse an individual clearance if they refuse to undergo a body scan may restrict a person's right to leave Australia. The requirement to undergo screening in order to be cleared and board an aircraft is already established in the Act, however, the Instrument will result in the inclusion of a 24 hour lock-out for individuals who refuse to be screened by a body scanner.

 

The National Terrorism Public Alert Level is currently at MEDIUM which means that the Government's security agencies have assessed that a terrorist attack could occur in Australia. It has been at this level since September 200l and is expected to remain so for the foreseeable future. The aviation security environment has significantly evolved over this period and it will continue to do so. The aviation screening regime in Australia is primarily designed to detect metallic weapons; however the risk to aviation security is no longer derived primarily from this type of threat. The sector now faces a range of sophisticated threats that our screening regime must be capable of detecting in order to ensure the safety of the travelling public.  Existing screening technologies used in Australia are incapable of detecting many of these new generation threats. Body scanners offer the greatest chance of detection, owing to their ability to detect and pinpoint the location of both metallic and non-metallic items concealed within or underneath a person's clothing. There is no alternative method of passenger screening available today that can deliver an equivalent security outcome to a body scanner.

Therefore, the Government's policy intention is that a passenger who is randomly selected to undergo a body scan will not be allowed to choose or be offered an alternative method of screening; unless the person has a medical or physical condition that means it is undesirable they are screened by a body scanner. If the passenger refuses to submit to a body scan they will not be allowed to pass through the screening point for a 24 hour period. Where a foreign national refuses a body scan and is subsequently denied clearance through the screening point, the Department of Infrastructure and Transport will work closely with the Department of Immigration and Citizenship to facilitate legitimate travel.

 

Privacy and reputation

 

An individual's privacy is protected by Article 17 of the International Covenant on Civil and Political Rights. The Government has carefully considered the introduction of body scanners and how it will impact on the privacy of the travelling public and hence, is committed to only introducing body scanners that have a range of privacy enhancements. The most important of these is automatic threat recognition technology which displays areas of concern on a generic human representation that is the same for all passengers. This technology removes the need for a human operator to look at raw or detailed images, and therefore maintains the privacy and modesty of all individuals.

 

The Department of Infrastructure and Transport has worked closely with the Office of the Australian Information Commissioner (OAIC) in order to ensure that the introduction of body scanning technology does not infringe upon a traveller's right to privacy. Consultation with the OAIC has also involved the development of a comprehensive privacy impact assessment about the introduction of body scanners. As discussed, body scanners are less intrusive than the only alternative that could provide a similar outcome - the full body frisk search. Furthermore, the introduction of body scanners will reduce the number of full body frisk searches that currently occur at aviation screening points, further protecting the privacy and modesty of individuals. In addition, body scanners that are introduced in Australia will not be capable of storing or transmitting any personal information.[1]

 

Right to Health

 

The right to the highest attainable standard of physical and mental health is protected by Article 12(1) of the International Covenant on Economic, Social and Cultural Rights. The Government has carefully considered the technology options available in regards to potential health effects for both the general public and airport workers. This has involved extensive consultation with the Department of Health and Ageing, the Australian Radiation Protection and Nuclear Safety Agency (ARPANSA), the Therapeutic Goods Administration and overseas authorities to ensure that body scanners meet health and safety requirements. Subsequent to this consultation the Government has decided that millimetre-wave body scanners will be introduced.

 

The power density that a person could be exposed to within the L-3 Communications ProVision millimetre-wave body scanner, the only body scanner that currently meets the Government's requirements, is thousands of times less than the maximum permissible exposure levels for the public specified in ARPANSA's Radiation Protection Standard: Maximum Exposure Levels to Radiofrequency Fields - 3 kHz - 300 GHz. The waves emitted during a scan are directed towards the interior of the body scanner. Outside the scanner, the exposure of aviation security screeners responsible for operating millimetre-wave body scanners working everyday in close proximity to these machines can be considered to be insignificant. Information on health and safety will be made available to the public on the Department of Infrastructure and Transport's website before body scanners are implemented at Australia's international airports.

 

Right to enjoy and benefit from Culture

 

The right to enjoy and benefit from culture is protected by both Article 27 of the International Covenant on Civil and Political Rights and Article 15 of the International Covenant on Economic, Social and Cultural Rights. The introduction of body scanners will not interfere with the right of persons to wear traditional religious or cultural attire, as with current procedures, passengers will not be required to remove any religious items or clothing. The Department of Infrastructure and Transport has engaged with religious groups through the Office of the Australian Information Commissioner to ensure that the processes and procedures are culturally sensitive.

 

Body scanners will not limit the observance of religious practices such as maintaining modesty as the technology has a range of privacy enhancements, including automatic threat recognition, to maintain the modesty of travellers. The body scanner technology is less intrusive than a frisk search and will reduce the number of full body frisk searches that occur at aviation security screening points. In cases where a frisk search is necessary, for example to resolve an alarm, the individual may request that procedure to occur in a private room. A frisk search will always be undertaken by someone of the same gender as the person being searched.

 

Right to freedom of thought, conscience and religion or belief

 

The right to freedom of religion or belief is protected by Article 18 of the International Covenant on Civil and Political Rights. As mentioned previously, the introduction of body scanners will not affect a person's ability to adhere to his or her religion or belief. As per current circumstances, passengers will not be required to remove religious dress when undertaking screening. In addition, a passenger's modesty will be protected through the requirement for body scanners to be equipped with automatic threat recognition. The Department has worked with stakeholders through the Office of the Australian Information Commissioner to ensure that security screening is undertaken in a culturally appropriate and sensitive manner.

 

Rights of people with disability

 

The rights of people with disability are protected by the Convention on the Rights of Persons with Disabilities. The Government understands that some screening technologies, including body scanners, may not be suitable for all individuals due to special circumstances, including disabilities or other medical conditions. These circumstances may prevent an individual from undertaking a screening procedure including a body scan, and as such, the Instrument will allow for the Secretary to make an Aviation Screening Notice exempting individuals for whom it is undesirable to be screened by a body scanner. The notice will set-out alternative methods of screening that are more suitable to their individual circumstances.

The Department of Infrastructure and Transport, through the Aviation Access Working Group, works closely with representatives from the aviation industry, disability stakeholders and the Australian Human Rights Commission to ensure that people with disability can access aviation services. In the context of aviation security, this forum focuses on ensuring that people with disability are catered for and where they are unable to undergo a screening procedure, appropriate alternatives are put in place. Preparation for the introduction of body scanners has led to an increased focus on the training of aviation security screening officers to ensure that people with disability are treated in a compassionate manner.

 

Rights of Equality and Non-discrimination

 

The right of equality and non-discrimination is protected by Articles 2, 16 and 26 of the International Covenant on Civil and Political Rights. All people have the right to be treated equally and in keeping with Australia's egalitarian screening regime, selection of individuals to undertake a body scan will be conducted on a purely random basis. Individuals will not be selected on the basis of their race, religion or gender.

 

Air Cargo Regulatory Amendment

 

This amendment to Regulation 4.41E does not engage any of the applicable rights or freedoms.

 

 

Conclusion

                                                                

The Instrument is compatible with human rights because it provides measures to further strengthen Australia's aviation security and where they may be limits to human rights, those limitations are reasonable, necessary and proportionate.

 

Air Cargo Regulatory Amendment

 

This amendment to Regulation 4.41E is compatible with human rights as it does not raise any human rights issues.

 

 

Minister for Infrastructure and Transport, the Hon Anthony Albanese