Transport Security Amendment (Testing and Training) Bill 2019 - Commentary on Ministerial Responses [2020] AUSStaCSBSD 45 (26 February 2020)

• Transport Security Amendment (Testing and Training) Bill 2019
• Significant matters in delegated legislation 13
• Adequacy of parliamentary oversight16

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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
Bill status	Before the Senate

Significant matters in delegated legislation ^[13]

2.91 In Scrutiny Digest 1 of 2020 the committee requested 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.^[14]

Minister's response^[15]

2.92 The minister advised:

Requirements for aviation security tests
The Committee sought advice on the appropriateness of leaving the requirements for aviation security tests in delegated legislation.
To be effective, testing of the security systems would follow the threat types used by people - here and overseas - who have attempted, and in some cases have been successful, taking weapons into a passenger cabin or having unauthorised explosives loaded into an aircraft's cargo hold. To test security systems, aviation security inspectors use examples derived from old and new types of threats and novel methods used by terrorists around the world.
The requirements referred to in paragraphs 79(2)(h) and 80(2)(f) of the Aviation Act set out in Schedule 1 to the Testing and Training Bill are intended to prescribe relevant administrative or procedural matters in relation to testing aviation industry participants' security systems without exposing operational methods that might be subject to exploitation.
Testing requirements must be flexible enough to cater for modifications needed to respond to emerging threat types and risk levels. As a consequence, requirements must also be rapidly amendable to enable the adoption of new methods for thwarting attacks on aviation assets and infrastructure. Establishing the requirements in the primary legislation may place an unintended fetter on Australia's ability to rapidly respond to unanticipated changes in the security threat or risk environments.
While I thank the Committee for raising this matter, in developing the Testing and Training Bill, careful consideration was given to the most appropriate, flexible, and adaptable place to set out the administrative or procedural requirements for testing security systems. I concluded that it is necessary and appropriate to leave the requirements to delegated legislation.
Specifying that 'test pieces' are inert
The Committee also sought advice on the 'test pieces' used by aviation security inspectors to conduct security systems tests.
As indicated in the Explanatory Memorandum to the Testing and Training Bill, the proposed use of 'test pieces' is intended to ensure that the tests of security systems are as realistic as possible.
Aviation security inspectors are issued with test pieces for conducting systems testing in the course of their duties. The test pieces issued to aviation security inspectors are items provided by the Department that resemble or mimic weapons, for example handguns that cannot fire (because they are replicas or because they have had the firing pin removed), knife shaped implements that have no sharp edges (that cannot cut or stab) and simulated improvised explosive device or SIED (non-functional and unable to detonate). The training which aviation security inspectors receive, in combination with the test items issued by my Department, remove any risk of a 'real' weapon being used to conduct authorised systems testing. The Department does not issue functional or live weapons to aviation security inspectors.
If an aviation security inspector were to source and use an item that was a functional weapon to test a security system, they would face disciplinary action or be charged with an offence under another law of the Commonwealth, the States or Territories. The Testing and Training Bill provides aviation security inspectors with an immunity from prosecution in certain circumstances. That immunity would not be available to that officer if the good faith element of the defence was absent.
I thank the Committee for bringing this question to my attention. My Department will amend the Bill following legal and technical advice. The Committee may wish to note that the Department would treat the use of non-authorised test items as a serious disciplinary issue.

Committee comment

2.93 The committee thanks the minister for this response. The committee notes the minister's advice that the requirements for aviation security tests must be flexible enough to cater for modifications needed to respond to emerging threat types and risk levels and that, as a consequence, requirements must also be rapidly amendable to enable to adoption of new methods for thwarting attacks on aviation assets and infrastructure. The committee also notes the minister's advice that establishing the requirements in the primary legislation may place an unintended fetter on Australia's ability to rapidly respond to unanticipated changes in the security threat or risk environments.

2.94 In relation to the committee's query regarding the appropriateness of amending the bill to specify that 'test pieces' used by aviation security inspectors must be inert, the committee notes the minister's advice that the training which aviation security inspectors receive, in combination with the test items issued by the department, remove any risk of a 'real' weapon being used to conduct authorised systems testing. The committee also notes the minister's advice that if an aviation security inspector were to source and use an item that was a functional weapon to test a security system, they would face disciplinary action or be charged with an offence.

2.95 The committee welcomes the minister's advice that, following the receipt of legal and technical advice, the government will propose amendments to the bill to specify that 'test pieces' must be inert. The committee thanks the minister for his constructive engagement with the committee on this matter. In accordance with its usual practice, the committee will consider any amendments to the bill when they come before the Parliament.

2.96 The committee also requests that the key information provided by the minister be included in the explanatory memorandum, noting the importance of this document as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.97 In light of the detailed information provided, and the minister's undertaking in relation to amendments to the bill, the committee makes no further comment on this matter.

Adequacy of parliamentary oversight^[16]

2.98 In Scrutiny Digest 1 of 2020 the committee requested the minister's advice as to 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.^[17]

Minister's response^[18]

2.99 The minister advised:

The Committee has sought my advice in relation to Parliamentary oversight of the use of the proposed Secretarial power to exempt a class of screening officers from one or more training or qualification requirements set out in section 948 of the Aviation Act and 1658 of the Maritime Act. I appreciate the Committee's acknowledgement of the need for operational security.
The power to exempt a person from training or qualification requirements is intended to meet unanticipated and unavoidable needs, for example, where a training course cannot be offered in a particular locality for a short period of time, or in an emergency situation so that a port can continue to operate. The exemptions are explicitly not intended for use in any circumstance other than the exceptional.
As the powers are only to be exercised in exceptional circumstances, I do not anticipate large numbers of exemptions to be made.
The Committee suggested that Parliament should have some oversight of the exercise of the exemption, and suggested that the number of exemptions issued by the Secretary for these purposes might be included in the Department of Home Affairs' Annual Report.
After consideration of the concerns raised by the Committee, I have asked my Department to amend the Bill to legislate the information on the exercising of the screening exemption powers through the Department's Annual Report or other appropriate mechanism.

Committee comment

2.100 The committee thanks the minister for this response. The committee notes the minister's advice that the power to exempt a person from training or qualification requirements is intended to meet unanticipated and unavoidable needs, for example, where a training course cannot be offered in a particular locality for a short period of time, or in an emergency situation so that a port can continue to operate. The committee also notes the minister's advice that as the powers are only to be exercised in exceptional circumstances, it is not anticipated that large numbers of exemptions will be made.

2.101 The committee welcomes the minister's advice that the government will propose amendments to the bill to provide that information on the exercise of the exemption power is to be published in the department's annual report or through another appropriate mechanism. The committee thanks the minister for his constructive engagement with the committee on this matter. In accordance with its usual practice, the committee will consider any amendments to the bill when they come before the Parliament.

2.102 The committee also requests that the key information provided by the minister be included in the explanatory memorandum, noting the importance of this document as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.103 In light of the detailed information provided, and the minister's undertaking in relation to amendments to the bill, the committee makes no further comment on this matter.

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[13] Schedule 1, item 2, proposed paragraphs 79(2)(h) and 80(2)(f). The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(iv).

[14] Senate Scrutiny of Bills Committee, Scrutiny Digest 1 of 2020, pp. 34-36.

[15] The minister responded to the committee's comments in a letter dated 24 February 2020. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 3 of 2020 available at: www.aph.gov.au/senate_scrutiny_digest

[16] 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).

[17] Senate Scrutiny of Bills Committee, Scrutiny Digest 1 of 2020, pp. 34-36.

[18] The minister responded to the committee's comments in a letter dated 24 February 2020. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 3 of 2020 available at: www.aph.gov.au/senate_scrutiny_digest