Bills Digest no. 20 2007–08
Aviation Legislation Amendment (2007 Measures No. 1)
Bill 2007
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
Financial implications
Main provisions
Endnotes
Contact officer & copyright details
Passage history
-
allow regulations to be made to prohibit activities or conduct
performed outside a security controlled airport that disrupts or
interferes with the operations of the airport
-
increase powers of customs officers
-
allow regulations to be made to provide for the most senior
dignitaries, their spouses and minors to be exempt from aviation
security screening ,
[1] and
-
rationalise the administration of the transport security program to
mirror the maritime security legislation.
The
amendments to the CAA are to:
-
create an offence in the situation where a person does an act to
interfere with a crew member or threatens the safety of an aircraft
or of persons on board whether or not the offender is in or out of
the aircraft, and
-
insert a new Part to enable regulations so the Civil Aviation
Safety Authority (CASA) can introduce a mandatory drug and alcohol
regime which will have 2 elements:
-
companies in the industry will be required to have programmes that
will be regulated and audited by CASA
-
CASA will carry out its own testing programme, to test people in
the industry who are not covered by a company programme.
The
regulatory scheme for mandatory drug and alcohol testing is a
measure to improve the safety of the civil aviation industry. On 2
May 2006 the Minister for Transport and Regional Services
announced that the aviation sector will be required to have a
mandatory scheme based on the report [2] prepared jointly by the Department of
Transport and Regional Services (DOTAR) and CASA. According to the
report: [3]
Drug and alcohol abuse are
estimated to generate enormous economic and social costs
internationally. Whilst figures vary considerably, published
estimates include well over $140 billion in annual losses in the
United States5 across all industry sectors; approximately $20
billion per annum in Canada; and $10 billion per annum in
Australia. Given such an impact, it is not surprising that serious
consideration has been given to preventative and remedial
measures.
The other
significant changes in the Bill derive in part from the
recommendations of the
Wheeler Report in September 2005. [4] These recommendations related to many
aspects of improved security, policing, terrorism responses,
background checking and expanded closed circuit television systems,
to mention a few. Recommendation 16 of the Report said that all
police, Australian Federal Police Protective Service and Customs
officers at airports need clear and unambiguous powers to stop,
search, detain and arrest where necessary within the airport and
its curtilage . [5]
The increased powers of customs officers will be implemented by
this Bill on its passage.
According to
the Explanatory Memorandum, there are no financial implications for
the amendments to the ATS Act. A detailed analysis of the financial
implications for the amendments to the CAA relating to mandatory
drug and alcohol testing regime are contained in the Regulatory
Impact Statement in the Explanatory Memorandum.
The preferred option in the report prepared by
the Allen Consulting Group on the alcohol and drugs scheme was
Option 3 where the net present value benefit to the community is
$219,867,589 and the benefit cost ratio is 4.55 .
Item
1 repeals and substitutes subsection 7(2)
to provide that only the Crown in right of the Commonwealth will
not be liable to be prosecuted for an offence under the Act. The
existing provision just says that the Crown is not liable to be
prosecuted. The effect of the change is to ensure that State or
Territory agencies operating airports are subject to the Act in the
same way as any other operator.
Items 3-5 amend section 10 to
extend the meaning of unlawful interference with an aircraft. The
section as amended will apply not only to acts done but to
attempted acts (amended subsection 10(1)).
Subsection 10(1)(a) is amended to bring into the
subsection the taking control of an aircraft by any trick or false
pretence and subsection 10(1)(g) is extended to
encompass false or misleading information.
The
expression trick or false pretence is common parlance in other
similar offences in other jurisdictions. [6] Current subsection 10(1)(a) applies to
acts involving violence, threats, intimidation and the like and the
inclusion of trick or false pretence widens the definition to
include peacefully taking control of an aircraft by means of
subterfuge or deceit . [7]
Items 6-12 make amendments to
Part 2 of the Act governing transport security programmes.
Under the Act various industry participants
are required to have and to comply with transport security
programmes. Other persons also have to comply with the programmes
of the aviation industry participants.
Item 6 repeals and
substitutes a new subsection 19(4) which provides
that if the Secretary does not make a decision within the
consideration period (60 days, new subsection
19(7)) then the Secretary is taken to have refused to
approve the programme. The new note to the
subsection says that the applicant can apply to the Administrative
Appeals Tribunal about the decision to refuse to approve a
programme under either subsection 19(2) or subsection 19(4).
Existing section 126 of the Act already provides that decisions
under section 19 are reviewable, so the new drafting clarifies that
by failing to do something is taken to be a decision for the
purposes of review. New subsections 19(5) and (6)
allow the Secretary to issue a notice to extend the time allowed to
consider an application when he or she has requested further
information, but the time extended cannot exceed 45 days.
Item 7 repeals and
substitutes subsection 20(3) to provide that a
program will remain in force for a period of 5 years or less (but
for at least 12 months) unless it is replaced under existing
subsection 22(2) or cancelled. Item 11 repeals
section 24 which requires a transport safety programme to be
revised every 5 years. This is consistent with the changes in
items 8-10 which ensure that when a programme is
revised, a variation is not taken to create a new programme and
therefore does not affect the time when a programme is to
expire.
Item
12 inserts new section 26A to allow a
programme to be cancelled on the request of a participant to the
Secretary. According to the Explanatory Memorandum there has
previously been no provision or mechanism for a person to be
relieved of their obligations if the person no longer wishes to
remain in operation . [8] Section 12 of the Act states:
Who must have a programme
The following aviation industry participants are required to
have a transport security program:
(a) an operator of a security controlled airport;
(b) an operator of a prescribed air service;
(c) a participant of a kind prescribed in the regulations.
If a person is no longer an operator then the
obligations under section 12 will no longer be applicable.
New section 26A does not specify that the
participant be no longer a participant or an operator and a
consequence might be that when any participant makes a request to
cancel the approval the Secretary must do so. It should be
noted that the provision is in the exact terms of the Maritime
Transport and Offshore Facilities Security Act 2003 section 59
which has been in that Act since its introduction in 2003.
Item 14 inserts New
Division 5 offences for causing disruption or interference in
relation to security controlled airports.
New
Division 5 consists of a single section new
section 38B. It allows regulations to be made that create
offences in relation to the disruption to or interference with the
activities of an airport operator of, or aircraft operator at, a
security controlled airport . There are some restrictions regarding
when new section 38B applies. These reflect
constitutional limitations, but the limitations are likely to be
fairly minor in practice.
The offences that can be
created by regulation do not require that the relevant activity
constitute a threat to the safety of persons or aircraft. This
contrasts with the concept of unlawful interference with aviation
in existing section 10 of the Act. However, unlawful interference
with aviation does not include lawful advocacy, protest, dissent or
industrial action that does not result in, or contribute to, threat
to the safety of persons or aircraft.
Overall,
then, a very wide range of activity could be criminalised by virtue
of regulations made under new section 38B,
including activity outside the bounds of an airport. However,
penalties are restricted to 50 penalty units, and any regulations
will be subject to Parliamentary disallowance in the usual way.
Item
17 inserts new subsection 84(1A). This
requires that a search conducted by a law enforcement officer under
existing subsection 84(1) powers must, if practicable, be conducted
by a person of the same sex as the person being searched. As noted
by the Explanatory Memorandum, this is consistent with searches
conducted under the provisions of the Crimes Act 1914 (see
section 3ZR).
Item 18 inserts new Division 3A
into Part 5 of the Act titled Eligible customs officers.
New section 89B defines eligible customs officer
and under new subsection 89B(b) customs officers
must be on duty to assert the exercise of the stop and search
powers. Regulations can be made to provide for the training
qualifications for and the use of identity cards by eligible
customs officers.
The powers are to stop and search persons (new section
89C) and vehicles (new section
89D) if the officer reasonably believes
it is necessary to do so. New section 89E allows
an officer to require someone to leave an aircraft, airport or
areas or zones if he or she reasonably suspects a person is
committing or has committed an offence.
Officers can restrain and detain a person if an offence is
suspected until the arrival of a law enforcement officer, and they
cannot use unreasonable force in the exercise of these powers
(new section 89F).
Item 21 repeals and substitutes new
subsections 131(1) and (2) to allow certain most senior
dignitaries, their spouses and minors to be exempt from aviation
security screening through regulations. [9]
Item 23 adds mention of new Part
IV drug and alcohol management plans to the functions of
the Civil Aviation Safety Authority (CASA), which is to be inserted
into the Act by this Bill.
Item 25 inserts new Part IV to
establish a regulatory regime for the drug and alcohol testing of
persons performing safety-sensitive aviation activities at
airports. Subject to the regulations, CASA will be able to regulate
and monitor compliance with plans and to carry out its own random
testing programmes. An outline of the two components is explained
in the Regulatory Impact Statement (RIS) in the Explanatory
Memorandum as follows:
It is intended that CASA will
have oversight of the drug and alcohol testing of safety sensitive
personnel in the civil aviation industry and that the regime will
consist of two components. The first component will be a drug and
alcohol regime to be implemented by the civil aviation industry and
those closely associated with its safety sensitive functions and
which will include a requirement for industry participants to
develop and implement a drug and alcohol programme (Industry
Component). While industry participants may elect to randomly test
their employees under this first component, it is not intended that
such random testing be mandated by CASA. The second component will
be a scaleable random testing regime of safety sensitive personnel
associated with the civil aviation industry, including those not
captured under the drug and alcohol programme conducted by industry
(CASA Component). It is proposed that CASA will engage a contractor
to undertake random testing on its behalf under this second
component.
[10]
New section 33 provides the definitions including
for a drug and alcohol test to detect the presence and level of
drugs and alcohol, and safety-sensitive aviation activities. There
is no definition of safety sensitive personnel but the
Explanatory Statement says they will include flight crew, cabin
crew, flight instructors, aircraft dispatchers, aircraft
maintenance and repair personnel, aviation security personnel
including screeners, air traffic controllers, baggage handlers,
ground refuellers and other personnel with airside access, and
contractors. [11]
New sections 34, 35 and 36 will allow regulations
to be made for the development, implementation and enforcement of
plans, the details of which will be required such as who is
required to develop plans and the content of plans, details of who
must give samples for testing, the conduct of tests, and
authorisation of persons who can take tests. New subsection
43(3) limits the scope of regulations that can be made in
that regulations cannot be made unless the activities can be
adversely affected by alcohol or drugs.
The results of drug and alcohol testing can only be admissible in
proceedings under the Act and regulations or other proceedings to
be specified in the regulations (new subsection
36(4). The Explanatory Memorandum sets out the other types
of proceedings envisaged in which the results could be made
admissible, and they are very broad ranging. They include
prosecution action (or sentence proceedings) under other
Commonwealth and/or State legislation ; the prosecution of
Commonwealth offences that follow on from decidedly aviation
related conduct; civil and administrative proceedings involving
disciplinary and dismissal action taken in respect of person
carrying out safety-sensitive aviation activities (employees and
employers) . [12]
Paragraphs 36(1) (i)-(l) enable regulations to be
made which will set out the procedures for the handling of samples,
the giving of results to CASA and to the person undergoing the
test, other persons who may receive the results, and the use and
disclosure of results. These proposed regulations will need to
comply with privacy law principles.
Item 39 specifically provides that the new
provisions (35, 36, 37, and 38) do not limit the general
regulation-making powers provided in new section
34. The CAA has a general regulation making power in
section 98 of the Act. The RIS in the Explanatory Memorandum
explains that the proposed amendments to section 9 (which sets out
CASA s functions) and section 98 (the regulation making power) of
the Act are required to ensure that CASA has all the lawful
authority required to give effect to the regime. [13] Section
98 however is not amended by the Bill, nor mentioned by the
Explanatory Memorandum itself in the main provisions of the
Bill.
Endnotes
[1]. Senate Hansard,
Second Reading Speech, 21 June 2007, p.
17.
[2]. Department of
Transport and Regional Services & CASA, Review into Safety
Benefits of Introducing Drug and Alcohol Testing, Joint
Report, 2006.
[4]. Wheeler, the Rt
Hon Sir John, An Independent Review of Airport Security and
Policing for the Government of Australia, Airport Security and
Policing Review, September 2005.
[5]. ibid,
Recommendation 16, p. xii.
[6]. Criminal Code
Act 1924 (Tas) section 276D, Crimes (Aviation) Act
1991(Cth) section 16, Crimes Act 1900 (NSW)
subsection 154B(4), Criminal Code 1899 (Qld) section 417A and
Aircraft Offences Act 1971 (SA) section 7.
[7]. Aviation
Legislation Amendment (2007 Measures No. 1) Bill 2007,
Explanatory Memorandum, p. 26.
[9]. Aviation
Legislation Amendment (2007 Measures No. 1) Bill 2007,
Second Reading Speech, Hansard, 21 June
2007, p. 17.
[10]. Aviation
Legislation Amendment (2007 Measures No. 1) Bill 2007,
Explanatory Memorandum, p. 3.
[13]. ibid,
paragraph 3.3, p. 12.
Diane Spooner
Law and Bills Digest Section
10 August 2007
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