Transport Security Amendment (Testing and Training) Bill 2019 [2020] AUSStaCSBSD 13 (5 February 2020)

• Transport Security Amendment (Testing and Training) Bill 2019
• Significant matters in delegated legislation 61
• Adequacy of parliamentary oversight63

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Transport Security Amendment (Testing and Training) Bill 2019

Purpose	This bill seeks to amend the Aviation Transport Security Act 2004 to introduce explicit powers for aviation security inspectors to conduct covert security systems testing to assess compliance of aviation industry participants with their security obligations under the Aviation Act, provide for the implementation of new screening officer training and accreditation, and to expand the testing of security systems used by aviation industry
Portfolio	Home Affairs
Introduced	Senate on 4 December 2019

Significant matters in delegated legislation ^[61]

1.98 Item 2 of Schedule 1 to the bill seeks to insert proposed paragraph 79(2)(h) into the Aviation Transport Security Act 2004. The proposed paragraph would permit an aviation security inspector to test an aviation industry participant's security system, including by using an item, weapon or vehicle to test its detection. Any tests must be in accordance with any requirements prescribed in the regulations.

1.99 The committee's view is that significant matters, such as requirements for aviation security tests, should be included in the primary legislation unless a sound justification for the use of delegated legislation is provided. In this instance, the explanatory memorandum provides no justification as to why these requirements are left to delegated legislation.

1.100 Additionally, the committee notes that the explanatory memorandum states that any 'test pieces', such as imitation firearms and simulated improvised explosion devices, are designed to be inert and to not cause harm.^[62] However, the committee notes that this requirement does not exist on the face of the primary legislation. Noting the potential risk to safety if real weapons were used for testing, the committee considers that, at a minimum, the requirement that any test pieces used be inert be provided on the face of the primary legislation.

1.101 In light of the above, the committee requests the minister's advice as to:

• why it is necessary and appropriate to leave the requirements for aviation security tests to delegated legislation; and

• the appropriateness of amending the bill to, at a minimum, specify that 'test pieces' used by aviation security inspectors must be inert.

Adequacy of parliamentary oversight^[63]

1.102 The bill seeks to insert proposed section 94A into the Aviation Transport Security Act 2004 (Aviation Act), which will allow the Secretary to determine training and qualification requirements for screening officers by legislative instrument. Proposed section 94B provides that the Secretary may exempt a class of screening officers from one or more of the requirements determined under section 94A if exceptional circumstances exist. An exemption made by the Secretary will not be a legislative instrument.^[64] These provisions are replicated by proposed sections 165A and 165B for the Maritime Transport and Offshore Facilities Security Act 2003.

1.103 In relation to the Aviation Act, the explanatory memorandum states:

These exemptions may be of a sensitive nature, and may indicate a situation that may be subject to exploitation by persons intent on causing an unlawful interference with aviation, or aviation infrastructure, as a consequence it is imperative to restrict details of exemptions.
For example, there may be an exemption in place in relation to training or qualification requirements for a class of screening officer operating from a particular airport. This may expose that airport, or aircraft departing from that airport, to vulnerability to an attack. In order to reduce the risk of information of this type being exploited by an adversary, an exemption made in writing by the Secretary would not be a legislative instrument and therefore would not be published.^[65]

1.104 While noting this explanation, the committee notes that the bill provides the Secretary with a broad discretionary power to exempt persons from the operation of the legislation in circumstances where there will be no parliamentary oversight regarding the number of exemptions issued or the operation of the Secretary's power to make exemptions. The committee considers that the bill could be amended to allow for parliamentary oversight of the exemptions without compromising the need for operational security. For example, the bill could be amended to include a requirement that the number of exemptions issued under each Act must be included in the department's annual report. This would alert parliamentarians to the details of how the power is being exercised under each Act and provide opportunities for parliamentary debate.

1.105 The committee requests the minister's advice regarding the appropriateness of amending proposed section 94B of the Aviation Transport Security Act 2004 and proposed section 165B of the Maritime Transport and Offshore Facilities Security Act 2003 to require that the number of exemptions issued by the Secretary be reported in the department's annual report.

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[61] Schedule 1, item 2, proposed paragraph 79(2)(h). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv).

[62] Explanatory memorandum, pp. 2 and 6.

[63] Schedule 2, item 8, proposed sections 94A and 94B of the Aviation Transport Security Act 2004, and item 18, proposed sections 165A and 165B of the Maritime Transport and Offshore Facilities Security Act 2003. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(v).

[64] See paragraph (a) of item 5 of the table in section 7 of the Legislation (Exemptions and Other Matters) Regulation 2005.

[65] Explanatory memorandum, p. 17.