Aviation Security Amendment Bill
17 November 2004
Portfolio: Transport and Regional
Sections 1 to 3, and item
3 of Schedule 2, commence on Royal Assent. The operative parts of
the Bill (Schedules 1 and items 1-2 of Schedule 2) only
commence once both Royal Assent has been given and the
operative parts of the Aviation Transport Security Act
2004 have commenced.
To enable the carrying out of security checks for
persons holding prescribed licenses or authorisations issued by the
Civil Aviation Safety Authority.
The Aviation Security Amendment Bill 2004 (the
Bill) was first introduced into the 40th Parliament in
August 2004 but was not debated before Parliament was prorogued.
The Bill as introduced in the current Parliament contains some
relatively minor changes. As a 2004 election commitment, the
Government promised an additional $48 million of funding for
regional aviation security, but this is entirely separate to the
measures proposed in the Bill.(1)
In March 2003, the
Government introduced two Bills into Parliament that were designed
to overhaul the aviation security legislative framework, including
removing virtually all security matters from the Air Navigation
Act 1920 and the Air Navigation Regulations 1947. The main
Bill was passed as the Aviation Transport Security Act
2004 ( the ATS Act ) in early 2004. However, the operative parts of
the ATS Act have yet to commence, so aviation security is still
regulated by the Air Navigation Act and regulations.(2)
Further background on the legislative aspects of aviation security
reform can be found in the Bills Digest for the ATS
Persons who have
access to security restricted areas at airports must hold an
Aviation Security Identification Card (ASIC). ASIC matters are
currently provided for in Division 7 of Part 7 of the Air
Navigation Regulations 1947. Under Regulation 90, ASICs cannot be
issued to a person who, amongst other things:
ASICs can also be
cancelled for the same reasons. It is understood that as of 31
August 2004, all ASIC holders will have been subjected to
background checks covering all three of the above
Under the Air
Navigation Regulations, a decision to refuse to issue an ASIC or
cancel one is reviewable by the Administrative Appeals Tribunal
(AAT). A determination by the Secretary that a person constitutes a
threat to aviation security is also reviewable, as is the Secretary
s decision not to grant a special permission in cases where a
person has an adverse criminal record.
In relation to the
new ATS Act, sections 35-38 provide that, amongst other things,
regulations may set out requirements for the security checking of
persons who have access to certain secure areas or zones at
airports. In giving the second reading speech for the (then) Bill,
the Minister stated:
Changes to the
aviation security identification card regime will impose stricter
controls upon those with access to security sensitive areas at an
airport. The addition of politically motivated violence background
checks goes a long way towards preventing potential terrorists from
accessing these critical facilities.(8)
supporting the ATS Act were examined by the Senate Rural and
Regional Affairs and Transport Committee who reported in December
2003. The report did not make any specific recommendations,
nor did it make any comments on the proposed revised ASIC
system.(9) As at November 2004, the draft regulations
are being revised following a series of stakeholder
In December 2003,
the Government announced a range of additional aviation security
measures. In relation to security checks, the Minister said:
Aviation Security Identification Cards (ASICs) currently held by
airport employees working in security sensitive areas in Australian
airports will now be required for all staff working at airports
servicing passenger and freight aircraft.
The background checking process currently conducted for ASIC
holders will be extended to cover all pilots and trainee pilots
prior to the issuing of new photographic licences by 1 July
The checking process referred to in the second
paragraph of the Minister s statement appears to have been partly
implemented through the Air Navigation (Aviation Security Status
Checking) Regulations 2004, which came into force on 9 July 2004.
These regulations allow background checking to be conducted on
applicants for flight crew licences, and allow the Secretary of the
Department of Transport and Regional Services (DOTARS) to declare
someone as having adverse security status, therefore making them
ineligible to apply for a flight crew licence. However, the
Regulations do not cover persons who already hold
such a licence. These Regulations will presumably be
repealed when and if the ATS Act, including amendments proposed by
the Bill, and associated regulations come into force.
Item 2 adds the term security
designated authorisation into the existing definitions section
(section 9) of the ATS Act. However, the meaning of the term is
only to be given by regulations. Under the Bill, holders of, or
applicants for, such authorisations will be the subject of security
Item 4 adds new
Division 9 (sections 74F-74I) to the ATS Act. New
sections 74G and 74H are the key
New section 74G inserts the
concept of an adverse aviation security status into the ATS Act.
Under new subsection 74G(1), it is the DOTARS
Secretary(12) who makes a determination of a person s
status, although this function may be assumed by the Civil Aviation
Safety Authority (CASA)(13) or a DOTARS SES
employee.(14) If such a determination is made, a written
copy must be provided both to CASA(15) and the applicant
or holder of the security designated authorisation: new
subsection 74G(2). If the person holds a security
designated authorisation, CASA must then suspend or cancel it:
new paragraph 74G(3)(b). If the person is applying
for an authorisation, it must be refused: new paragraph
74G(3)(a). Note that a determination made under
new section 74G would appear to be a legislative
instrument as defined in the Legislative Instruments Act
2003. This matter is discussed in the concluding comments
section of this digest.
In considering the question of a person s
aviation security status, the decision-maker will have access to
advice from the Australian Security Intelligence Organisation
(ASIO). New subsection 74G(4) provides that a
decision is prescribed administrative action for the purposes of
Part IV of the Australian Security Intelligence Organisation
Act 1979 ( the ASIO Act ). This gives the applicant/holder the
right to seek a review of the ASIO advice by the Security Appeals
Division of the AAT.(16)
The actual procedure for security status
checks, including the matters which the Secretary must consider in
determining whether a person has an adverse aviation security
status, are to be provided for in regulations: new section
74H. Whilst it is understandable matters should be able to
be added by regulations, there seems no reason why at least a core
list of matters cannot be included in the Bill.
paragraph 74H(1)(b) provides that regulations may specify
circumstances in which the Secretary must determine that a
person has an adverse aviation security status. The Explanatory
Memorandum to the Bill comments:
These are likely to include circumstances where
a person is an unlawful non-citizen, where a person receives an
adverse or qualified security assessment from ASIO or where the
person has been convicted of certain prescribed criminal offences.
These are likely to include convictions for serious offences such
as those contained in Part 2 of the Crimes (Aviation) Act
1991 and Part 5.3 of the Criminal
By comparison, new paragraph
74H(1)(c) provides that regulations may specify
circumstances in which the Secretary may determine that a
person has an adverse aviation security status. Again the
Explanatory Memorandum comments:
It is envisaged that where a person has a
particular criminal history, that the Secretary will have a
discretion as to whether to declare the person to have an adverse
aviation security status.(18)
New paragraph 74H(1)(g)
provides that regulations may specify procedures and other matters
relating to the issue, suspension or cancellation by CASA of
security designated authorisations or the refusal by CASA to issue
such authorisations. The Explanatory Memorandum comments:
this would enable regulations to be made which
prevented CASA from issuing a security designated authorisation to
a person unless the applicant has been subject to checks by ASIO,
DIMIA and the AFP. It would also allow regulations which provided
that CASA must cancel a security designated authorisation where it
isn t possible to subject the holder to background
No detail is given as to the situations
where it might not be possible to subject the authorisation holder
to background checking. New paragraph 74H(1)(h)
provides that regulations may provide that applicants for, or
holders of, security designated authorisations may request security
status checking be undertaken. New paragraph
74H(1)(i) provides that regulations may also specify the
consequences of a failure by a holder or applicant to request that
such checking be undertaken. There is no elaboration on the
rationale for these two provisions, particularly the rather cryptic
new paragraph 74H(1)(i). New paragraph 74H(1)(k)
provides that regulations may also give CASA the function of
determining that a person has an adverse security status. Where
regulations have been made under new paragraph
74H(1)(k), and are in force, any references to the
Secretary in new sections 74G and
74H are to taken to include references to CASA:
new paragraph 74H(2)(a).
New section 74I provides that
Division 9 of Part 4 (ie new sections 74F-I) is
still to have effect notwithstanding any inconsistency between it
and anything in the Civil Aviation Act 1988 (the CA Act)
or its associated regulations. The Explanatory Memorandum suggests
that an example of such an inconsistency is existing section 18 of
the CA Act, which essentially restricts CASA to making decisions on
authorisations only on safety grounds.(20)
Item 5 inserts new
paragraph 126(f). This allows a person to seek an AAT
review of a decision by the Secretary or CASA to give them an
adverse aviation security status. However, item 5
also specifies by new subsection 126(1 that this
provision does not permit the AAT to review an adverse or qualified
ASIO security assessment other than as provided for in the ASIO Act
and the Administrative Appeals Tribunal Act 1975.
inserts new subsection 127(2A) to allow the
Secretary to delegate any of his or her powers under Division 9
above to a CASA officer at the Senior Executive Services level
equivalent. As a matter of interest, the August version of the Bill
allowed for such powers to be delegated to a member of what was
described as the Senior Management Group of CASA.
Items 7-10 make consequential
amendments to the CA Act.
Item 7 amends CASA s
functions to include functions conferred on it under the ATS
Act.(21) Item 8 repeals existing
subsection 9(5), which currently states that CASA s functions do
not include aviation security. Item 9 allows for
the making of regulations under the CA Act in order to formulate a
scheme in relation to security status checking . Item
10 allows for CASA to prescribe fees for its doing of
anything under the ATS Act.
Item 2 inserts new
paragraphs 1(2)(ba) and (bb) into
Schedule 3 of the Aviation Transport Security (Consequential
Amendments and Transitional Provisions) Act 2004. This will
allow for the making of regulations that will enable airport
security, ASIC and international cargo security programs made under
the existing Air Navigation Act to continue to be in force as
transport security or other programs under the ATS Act.
Item 3 states that the
exercise or purported exercise of power under Regulation 5 of the
Air Navigation (Aviation Security Status Checking) Regulations 2004
to determine that a person has an adverse aviation security status
is taken for all purposes to be, and is taken for all purposes
always to have been, prescribed administrative action for the
purposes of Part IV of the ASIO Act. As for new subsection
74G(4) discussed above, this gives the applicant or holder
the right to seek a review of the ASIO assessment by the Security
Appeals Division of the AAT.
The Bill will
extend security-related checking to persons who are not required to
hold ASICs. Such persons will include pilots and trainee pilots who
do not have access to officially designated security restricted
areas at airports.(22) This seems sensible given that
the September 11 2001 attacks in the United States demonstrated
that aircraft can be a potent terrorist weapon. As part of this
policy change, CASA will for the first time have a role to play in
aviation security, rather than just aviation safety. Much of the
actual content of the background checking process proposed by this
Bill is actually to be determined by regulations one is the matters
which the Secretary must consider in determining whether a person
has an adverse aviation security status. Parliament may wish to
consider whether it is necessary to leave quite this much to
regulations rather than including it in primary legislation.
Instruments Act 2003 (LIA) comes into effect on 1 January
Section 7 of the LIA
includes a table of instruments that are declared not to be
legislative instruments. These instruments are exempted from the
requirements of the LIA and do not need to be registered.
Item 1 of section 7 of the
LIA provides an exemption from the LIA for:
Instruments (other than
regulations and other instruments that, immediately before the
commencing day, are disallowable) made under the Air Navigation
Act 1920, or under the regulations made under that Act,
relating to aviation security.
It would seem that in order
to ensure that aviation security instruments are exempt from the
provisions of the LIA a consequential amendment to the LIA will
need to be sought in respect of instruments made under the
Aviation Transport Security Act 2004.
Security our Regional Skies Fact Sheet see
Unless amended by subsequent legislation, the operative parts
Aviation Transport Security Act will come into effect no
later than March 2005.
The meaning of this is detailed in subclause 90(4).
Currently, the Secretary of the Department of Transport and
This term has the same meaning as that in section 14 of the
Migration Act 1958.
Personnel communication, DOTARS.
The Hon John Anderson MP, House of Representatives
Debates, 37 March 2003, p. 13749.
Personnel communication, DOTARS.
The Hon John Anderson MP Enhanced aviation security package
announced , Media Release, 4 December 2004. See:
That is, the Secretary of the Department that administers the
See commentary on new paragraph 74H(2)(a)
Existing section 127 of the Act.
Obviously CASA only receives a copy if the determination is made
by the DOTARS Secretary or SES officer.
At. p. 4.
There are some exceptions.
That is, the ATS Act as amended by the Bill.
Presumably this is more likely at smaller rural or regional
airports or other aviation facilities.
This paper has been prepared to support the work of the
Australian Parliament using information available at the time of
production. The views expressed do not reflect an official position
of the Information and Research Service, nor do they constitute
professional legal opinion.
Published by the Parliamentary Library, 2004.