Bills Digest no. 157 2005–06
Aviation Transport Security Amendment Bill
2006
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Endnotes
Contact Officer & Copyright Details
Passage History
Aviation
Transport Security Amendment Bill 2006
Date introduced: 29 March 2006
House: House of
Representatives
Portfolio: Transport and Regional Services
Commencement: The formal provisions commence on Royal Assent.
Commencement of the other provisions is set out under the Main
Provisions below.
To amend the Aviation Transport Security Act 2004 in
order to change the regulatory arrangements for aviation security
by:
- creating event zones that may be used for handling special
events at an airport
- regulating the security and clearance processes for domestic
and international cargo before it is taken on board an aircraft,
and
- allowing the Secretary of the Department of Transport and
Regional Services to approve alterations to an existing Transport
Security Program.
The current aviation security framework came into effect in
March 2005 following the commencement of the Aviation Transport
Security Act 2004 (Principal Act) and the subsequent making of
the Aviation Transport Security Regulations. Detailed background
information on the legislative aspects of aviation security reform
can be found in the
Bills Digest for the Principal Act.(1)
In June 2005, the Government asked Sir John Wheeler, the former
Head of the UK Parliament s Select Committee on Home Affairs and
Security Minister for Northern Ireland, to conduct a wide-ranging
review of Australia s airport security. Sir John had previously
carried out a review of security at the UK s principal airports. In
Australia, Sir John was asked to examine the threat from serious
and organised crime at airports, the integration of ground-based
security and law enforcement arrangements, and the adequacy of the
existing security requirements. He was supported in his review by
the former Director-General of the UK National Crime Intelligence
Service, John Abbott, and an Australian security expert, Neil
Fergus, who was the former security chief for the 2000 Sydney
Olympic Games.(2)
The Wheeler
Review(3) was presented to Government in September
2005. The report focused on responses to the threat of terrorism at
airports and the related threat from serious crime. It drew
attention to serious deficiencies in coordination among security
agencies and a lack of security awareness among airport workers. It
found that [p]olicing at major airports in Australia is often
inadequate and dysfunctional and security systems are typically
uncoordinated. The roots of this include bureaucratic turf
protection and unresolved Commonwealth/State conflicts over
resources. (4) It saw a need for more intensive
intelligence sharing among agencies, especially on aviation and
airport specific topics.(5) The report emphasised the
potential overlap between terrorism and crime, and the consequent
need for airport staff to be thoroughly vetted and subject to
random searches.(6) It recommended a permanent police
presence at eleven major airports under a single Airport Police
Commander, at a staffing level based on threat and risk
assessment.(7)
The review also found that security infrastructure at airports
was lacking. It recommended an increase in CCTV coverage of all
international airports,(8) and a tightening up of the
Aviation Security Identification Card system (ASIC), including
amalgamation and streamlining of its numerous
databases.(9) The report stated that [t]he present
system has a number of weaknesses, and there is confusion as to
what airport access an ASIC enables. Some casual or contract
workers, such as security screeners and cleaners, do not initially
hold ASICs and may not always be accompanied on the job by an ASIC
holder as required under current legislation .(10)
The review also drew attention to a major deficiency in cargo
screening which could allow the undetected loading of explosives.
The report stated that [w]hile 80 per cent of Australia s air cargo
is carried on passenger aircraft, it is not all screened. It is
clearly inconsistent for one category of aircraft user to be
treated differently from another, thereby putting the safety of the
aircraft in jeopardy. (11) The review recommended:
that the Australian Government require that the
screening of cargo be expanded and include mandatory screening of
all cargo on passenger aircraft where passengers checked baggage is
screened.(12)
The Wheeler Review acknowledged that the Commonwealth, state and
territory governments and the private sector had made many positive
security changes and dedicated significant resources to security,
especially since the attacks in the United States on September 11,
2001. It described the Aviation Transport Security Act
2004 as providing a solid basis for security regulation at
airports and associated activities .(13) However, the
report commented that [t]he Act and the Aviation Transport Security
Regulations 2005 were developed with less than optimal consultation
in order to be operative from 10 March 2005 and would benefit from
a review with the aim of clarification and simplification
.(14) The first recommendation of the review is:
that a thorough examination of legislation and
regulations on the sharing of information, both among government
agencies and between government and the private sector, be carried
out by the Attorney-General s Department, in collaboration with the
States and Territories and the private sector, with the aim of
identifying and removing elements which prohibit or inhibit the
flow of information needed to counter crime and terrorism which
threaten the aviation sector.(15)
A key point of the review is a warning that, after enhanced
measures are in place, the system could degenerate into ticking the
boxes instead of a proactive process of ongoing assessment of
threat and risk. The review recommends that:
the Aviation Transport Security Act 2004
and the 2005 Regulations be reviewed by the Department of Transport
and Regional Services to ensure that they encourage a culture of
proactive and ongoing threat and risk assessment and mitigation and
not a passive culture of compliance.(16)
On 21 September 2005, the Prime Minister and the Minister for
Transport and Regional Services announced the Government s in
principal acceptance of the recommendations made by the Wheeler
review and announced additional expenditure of almost $200 million
to further tighten security at Australia s major
airports.(17)
On 25 May 2005, the Joint Committee of Public Accounts and Audit
resolved to review the developments in aviation security since its
earlier report on the subject was tabled in Parliament in June
2004. The Committee was concerned by public reports of security
breaches at Australian airports, including allegations that baggage
handlers had been involved in a syndicate smuggling drugs through
Sydney airport.(18) The Committee tabled an interim
report in November 2005 in which it identified two areas of
aviation security that were the subject of recommendations made by
the Wheeler review where, it believed, further specific
requirements should be put forward.(19) These two areas
are:
- the proposed review of the Aviation Transport Security Act
2004 and Regulations 2005, and
- the proposed changes to background checking processes of
applications for Aviation Security Identification Cards
(ASICs)
The Committee unanimously supported the recommendations of the
Wheeler Review. In a press release, the Committee said that its own
current inquiry had confirmed the need for a review of the
arrangements for issuing and managing ASICs, a need to improve
information-sharing across airports, and the need for a single
policing authority for all category one and major airports. The
Committee highlighted other issues examined in the Wheeler report
and said that it was particularly concerned about procedures in
relation to baggage handling.(20)
In introducing this bill, the Minister for Transport and
Regional Services, Hon. Warren Truss, described it as a first step
in the review of aviation security legislation that was recommended
in the 2005 Wheeler review .(21) The bill addresses two
operational concerns at airports.
The first is the regulatory arrangements that would apply when a
security controlled airport (22) conducts activities
that are not part of its usual transport business. The Explanatory
Memorandum to the bill gives as examples of special events,
receiving and farewelling dignitaries attending the 2007 APEC
Meeting, and managing the Australian International Air Show at
Avalon Airport in March 2007.(23) For the purposes of
the proposed amendments, an event will be an activity that can
sensibly be subjected to specialised rules and that can be managed
within a precise area that has been specified on a map of the
airport.(24)
The second operational matter addressed by this bill is better
management of the process for handling domestic and international
cargo before it is taken onto an aircraft. The proposed amendments
introduce a framework for a layered approach to security within the
existing Regulated Agent scheme. The Minister said in his Second
reading speech that the bill will allow for different but
complementary security measures to be prescribed for different
parts of the supply chain. These differing requirements will be
based on criteria such as the size, scope and security risk posed
by a participant s operations. (25)
The Explanatory Memorandum states that there will be no
significant financial impact for the Government from this bill.
The changes in Schedule 1 are designed to
introduce more flexibility into the security procedures of the Act
when airport operators and other parties are dealing with
out-of-the-ordinary events. Details of the operational substance of
the Schedule 1 will be implemented through new regulations.
According to the Explanatory Memorandum, any given type of event
zone will be managed by a combination of regulations that apply to
that particular type of event zone, and by specific provisions that
the airport operator may have included in its Transport Security
Program (TSP).(26)
Items 2 to 5 insert
definitions of terms associated with the new event zones. The
proposed system for prescribing different kinds of event zones has
been modelled on the existing provisions in the Act that allow
regulations to be made to prescribe different kinds of security
zone (subsection 31(1) of the Act). Item 10
inserts new section 31A which provides for the new
airside event zones. An airside event zone is established by means
of a notice that the Secretary gives to the operator of a security
controlled airport. There can be more than one event zone for
managing a single complex event, such as an air show, or when a
large airport has more than one special event in progress at the
same time but in different event zones. The principal difference
between the proposed airside event zones and the existing airside
security zones is that an airside event zone may sometimes be
managed at a lower level of security than that which applies
generally to the airside area (new subsection
31A(7)), while an airside security zone is always managed
at a stricter level of security. A lower level of security may be
possible if the event is being staged within an enclosed area so
that the only access from the event zone to airside (and thus to
runways and aircraft) is through a screening point. New
section 31B provides that regulations may prescribe
different types of airside event zones, such as event zones for
managing the arrival or departure of dignitaries, an event zone for
managing large air shows, and an event zone for managing low risk
community events that use the infrastructure of regional airports.
According to the Explanatory Memorandum,(27) this
approach manages risks by allowing different event zones to be
managed by means of regulations that have been specifically
designed to deal with a particular event. Item 14
adds new sections 33A and 33B
that make similar changes to deal with landside event zones.
Items 1 to 19 and
items 21 to 35 of
Schedule 1 commence on a day to be fixed by
proclamation, or on a day six months after the day on which the Act
receives Royal Assent. Item 20 of Schedule 1 will commence at the
same time as items 1 to 19. However, the provision in item 20 will
never commence if item 27 of Schedule 2 (which amends the same
provision of the Principal Act) has commenced on or before that
time.
Schedule 2 amends the Principal Act to create a
legal environment that will enable regulations to be made dealing
specifically with the security process to be applied to domestic
and international cargo prior to being taken onto an aircraft. A
Regulation Impact Statement is provided in the Explanatory
Memorandum and gives detailed information about the proposed
legislative changes and the alternative approaches that the
Government has considered.
The idea of the Principal Act is to ensure that commercial air
cargo is subject to appropriate secure handling and screening
processes along the supply chain from initial packing to eventual
loading on the relevant aircraft. One of the main players in this
process are Regulated Air Cargo agents (RACAs). RACAs must have in
place a Transport Security Program (TSP) approved by the DOTARS
Secretary. According to the Explanatory Memorandum to the bill:
It has become clear through operational
experience, DOTARS experience, industry complaints, and industry
consultation, that while the TSP model is appropriate for some
RACAs, it is not appropriate for all air cargo industry
participants. However the existing Act does not provide scope for
introduction of a layered and scalable cargo regulatory regime that
takes into account relative size of businesses and their proximity
in the supply chain to the actual carriage of cargo by
air.(28)
So the bill creates a new category called accredited air cargo
agents (AACA). It appears these will have less onerous security
obligations than RACAs, although the Government is of the view that
this category will bring more cargo operators into the Principal
Act's regulatory net.(29)
An associated change in Schedule 2 is to
separate cargo security/screening requirements out from its
existing place in the Act and Regulations under passenger
screening. The idea is that it will be easier to adopt new
security/screening requirements that are particularly suited to air
cargo operations rather than passenger services.
It should be emphasised that much of the operational substance
of the proposed changes will be done by regulations, which are
still to be developed.
Item 3 adds a definition for the new term
accredited air cargo agent . Item 31 inserts
new Division 2A of Part 4 into
the Principal Act to deal exclusively with how cargo is to be
examined so as to ensure that it is safe to be carried by aircraft,
and how cargo is to be cleared for air carriage. Much of the detail
will be set out in regulations (new section 44C).
The Secretary is given the power to permit that certain air cargo
be certified as cleared without going through the normal
examination process (new subsection 44B(2)). The
exemption mirrors an existing paragraph 42(2)(b) that allows the
Secretary to specify that certain people, goods and vehicles can
pass through security points without being screened.
Regulations may also be made to specify the methods, techniques
and equipment to be used for the examination of cargo (new
subsection 44C(3)). The Explanatory Memorandum
comments:
One power that is not present in the [Principal
Act] is that of directing Cargo Terminal Operators (CTOs) to use
explosive trace detection (ETD) on cargo This amendment will
strengthen security outcomes through enhanced use of
technology.(30)
The regulations may also provide for breaches of screening and
clearance requirements, with maximum penalties ranging from 200
penalty units for an airport operator, down to 50 penalty units for
other persons, including accredited air cargo agents (new
subsection 44C(4)).
The following matter was brought to the attention of Senators by
the Senate Scrutiny of Bills Alert Digest 4/06. Items 5
and 7 in the table to subclause 2(1) of this bill provide for the
amendments proposed in items 1 to
33 of Schedule 2, and those in
Part 2 of Schedule 2, to commence
up to 12 months after Royal Assent. The Explanatory Memorandum
states, on page 11, that the justification for this delay in
commencement is to allow sufficient time for consultation with
[those involved in the aviation transport] industry to occur
.(31)
Schedule 3 makes amendments relating to a
Transport Security Program (TSP) that are expected to play an
important role in managing both complex and high-risk events.
Section 12 of the Principal Act sets out who must have a TSP. These
include the operator of an airport declared by the DOTARS Secretary
to be a security controlled airport , the operator of an air
service prescribed in regulations, and any other aviation industry
participant prescribed in regulations. An aviation industry
participant can include persons who lease sections of the airports,
and contractors, including contractors who carry out baggage,
security and any support functions. A TSP is normally valid for a
period of five years. Section 22 of the Principal Act permits an
aviation industry participant to apply to the Secretary to approve
a revision of an existing TSP. A revised TSP will be in force for a
period of five years from the time when the revision is
approved.
Item 1 of Schedule 3 inserts
new section 23A to provide an alternative way of
making simple changes to a TSP without increasing the life of the
TSP by a further five years. An aviation industry participant may
make a written request to the Secretary to approve the proposed
alterations (new subsection 23A(1)). The Secretary
is required to decide whether it is appropriate to deal with the
request under section 23A. According to the Explanatory Memorandum,
section 23A will only be appropriate if both the Secretary and the
aviation industry participant are in agreement that the proposed
alteration is relatively simple and that the change should not have
the effect of extending the life of the TSP for a further five
years. New paragraphs 23A(2)(b) and
23A(3)(b) require the Secretary to be satisfied
that a TSP as altered will satisfy the requirements of Part 2
Division 4 of the Principal Act which deals with the content and
form of TSPs. New subsection 23A(4) authorises the
Secretary, when considering whether to approve alterations to a
TSP, to take into account existing circumstances related to
aviation security. According to the Explanatory Memorandum, this
ensures that the Secretary is authorised to take into account any
relevant security matters that extend beyond the immediate
operation of the TSP that is being considered. Item
2 of Schedule 3 provides that the
Secretary s decision under new section 23A to
refuse to approve an alteration to a TSP is reviewable by the
Administrative Appeals Tribunal.
Schedule 3 commences on Royal Assent.
Endnotes
- Angus Martyn, Aviation Transport Security Bill 2003, Bills
Digest No. 23, 2003-04.
- Hon John Anderson, Minister for Transport and Regional
Services, Securing and policing Australia s airports , Media
Release, 7 June 2005, Available at
http://parlinfoweb.aph.gov.au/piweb/TranslateWIPILink.aspx?Folder=pressrel&Criteria=CITATION_ID:HZ9G6%3B
(Site visited 1/6/2006).
- Sir John Wheeler, An independent review of airport security
and policing for the Government of Australia,
September 2005.
- Wheeler, op. cit., p. xi, para. 12.
- ibid., p. xii, paras. 15, 16, 17.
- ibid., p. ix, para. 4.
- ibid., p. xii, para. 14.
- ibid., p. xiii, para. 20.
- ibid., p. xiii, paras. 18, 19.
- ibid., p. xiii, para. 18.
- ibid., p. xv, para. 25.
- ibid., p. xix, Recommendation XIV.
- ibid., p. x, paras. 7,8 and p. xiv, para. 24.
- ibid., p. xiv, para. 24.
- ibid., p. xvii, Recommendation I.
- ibid., p. xix, Recommendation IX.
- Hon John Howard, Prime Minister, Securing and policing
Australia s airports , [Media Release], 21 September 2005.
Available at
http://parlinfoweb.aph.gov.au/piweb/TranslateWIPILink.aspx?Folder=pressrel&Criteria=CITATION_ID:55DH6%3B
(site visited 1/6/2006)
- Joint Committee of Public Accounts and Audit, Review of
aviation security in Australia , Media Release, 26 May
2005. Available at
http://www.aph.gov.au/house/committee/jpaa/aviation_security2/media/media01.pdf
(site visited 31/5/2006)
- Joint Committee of Public Accounts and Audit, Developments
in aviation security since the Committee s June 2004 Report 400 an
interim report, November 2005. Available at
http://www.aph.gov.au/house/committee/jpaa/aviation_security2/interim_report.htm
(site visited 31/5/2006)
- Joint Committee of Public Accounts and Audit, Committee
welcomes Wheeler review, continues own inquiry , Media
Release, 21 September 2005. Available at
http://www.aph.gov.au/house/committee/jpaa/aviation_security2/media/media05.pdf
(site visited 31/5/2006)
- Hon. Warren Truss, Minister for Transport and Regional
Services, Second reading speech, Aviation Transport Security
Amendment Bill 2006 , House of Representatives, Debates,
29 March 2006, p. 13.
- A security controlled airport is defined in section 28 of the Principal Act.
This section allows the Secretary to declare, by a notice published
in the Commonwealth Gazette, that any airport, or part of
an airport, is a security controlled airport . This may include any
area controlled by the airport operator that is contiguous with the
land or water area forming the airport. Any airport area that is
exclusively controlled by the Australian Defence Force cannot be
declared.
- Explanatory Memorandum, Aviation Transport Security
Amendment Bill 2006, p. 2.
- ibid., p. 12.
- Hon. Warren Truss, op. cit., p. 13.
- Explanatory Memorandum, op. cit., p. 12.
- ibid., p. 16.
- ibid., p. 5.
- Hon. Warren Truss, op. cit., p. 13.
- Explanatory Memorandum, op. cit., p. 5.
- Senate Selection of Bills Committee, Alert Digest
4/06, p. 17 18.
Rosemary Bell
20 June 2006
Bills Digest Service
Information and Research Services
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.
IRS staff are available to discuss the paper's
contents with Senators and Members and their staff but not with
members of the public.
ISSN 1328-8091
© Commonwealth of Australia 2006
Except to the extent of the uses permitted under the
Copyright Act 1968, no part of this publication may be
reproduced or transmitted in any form or by any means, including
information storage and retrieval systems, without the prior
written consent of the Parliamentary Library, other than by members
of the Australian Parliament in the course of their official
duties.
Published by the Parliamentary Library, 2006.
Back to top