Bills Digest no. 86 2008–09
Aviation Legislation Amendment (2008 Measures No. 2)
Bill 2008
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
Contact officer & copyright details
Passage history
Date
introduced: 3 December
2008
House: House of Representatives
Portfolio: Infrastructure, Transport, Regional
Development and Local Government
Commencement:
Schedule 1 of Part 2, and
Schedule 1 of Part 3, commence on 1 July 2009. The remainder of the
Act commences on the day of Royal Assent.
Links: The
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
To amend the ATSA, the
CAA and the TSIA to make four amendments relating to transport
security and safety:
- To enable the Secretary of the Department of Infrastructure,
Transport, Regional Development and Local Government (the
Department) to require certain prescribed aviation security
information from aviation industry participants,
- To allow for the delegation of the Secretary s functions and
responsibilities under ATSA to the Agency Head of an agency with
national security responsibilities,
- To clarify the position on allowing the copying and disclosure
of CVR information for testing and maintenance, and
- To change the penalties for failing to report aviation, rail
and marine safety matters.
Aviation security in Australia is governed by a range of
different Acts and Regulations.
The ATSA, and its associated Regulations, contain all major
provisions relating to aviation security in Australia. It
establishes the basis for aviation security programs in Australia,
including screening of goods and people; information gathering and
incident reporting for security purposes; and gives the
Departmental Secretary extensive powers to direct the aviation
industry regarding security measures. For more background about the
ATSA, refer to the Bills
Digest prepared by the Parliamentary Library.[1]
The CAA establishes the CASA which is responsible for aviation
safety through setting aviation standards and rules, licensing
aerodromes, pilots and aviation engineers, and certifying aircraft
and operators. It dictates the treatment of CVR information, and
clarifies its status as evidence in an investigation.
The TSIA aims to maintain and improve transport safety in the
aviation marine and rail transport systems by providing for the
reporting of transport safety matters, conduct of safety
investigations by ATSB, making of safety action statements
(including safety recommendations to address safety deficiencies
identified by investigations) and publication of investigation
results.[2]
The Bill aims to widen the scope of information that can be
requested by the Secretary of the Department under ATSA. While
currently empowered by ATSA to collect security compliance
information from industry participants (which is defined as
information that relates to compliance or failure to comply with
the Act), the amendment would enable the Secretary to collect other
information which currently falls outside of the scope of that
definition.
Although the new provisions outline some examples of what might
be prescribed as aviation security information (such as
statistics relating to screening and information about clearance
activities) the proposed provisions do not limit the kinds of
information that may be prescribed by regulation to be collected.
As Regulations are not subject to full Parliamentary debate, the
resulting scope of aviation security information could
ultimately become very wide under this provision, and might enable
the Government to require the provision of personal information of
individuals (such as airline passengers). Therefore, care should be
taken when drafting the Regulations under the proposed provisions.
The Commonwealth agencies, as well as private industry, is required
to abide by sets of Privacy Principles contained in the Privacy
Act 1988 when collecting personal information from or about
individuals. Particular attention should be paid to those
Principles relating to collection and disclosure, as well as the
exceptions for emergencies and disasters set out in Part VIA of the
Privacy Act.
The Explanatory Memorandum states that the Department will
consult widely on the scope of aviation security
information before regulations are finalised and that there is
no immediate intention to exercise the regulation-making power on
commencement.[3]
The Lockhart River accident, a fatal airplane crash occurring in
Northern Queensland in 2005, brought to attention the limitation
periods relating to offences that can be prosecuted under the TSIA.
Following the accident, a lengthy investigation occurred, however
reports[4] indicate that no prosecution was
commenced as the investigation concluded outside of the statutory
limitation period. Statutory limitation periods for commencing
prosecutions for Commonwealth offences are set by section 15B of
the Crimes Act 1914 (the Crimes Act). The periods are set
out as follows:
Penalties of
up to 6 months imprisonment = 12 month statutory limitation
period
Penalties of
more than 6 months imprisonment = any time after the
offence
Separate from the
formal investigation[5] into the Lockhart River accident, a review of the
penalties, in Part 3 of the TSIA (dealing with compulsory reporting
of accidents), and the limitation periods attached to those
penalties, was subsequently conducted. A number of changes are now
proposed in this Bill:
- The penalty for failing to report an immediately reportable
matter under subsection 18(1) is doubled to 12 months
imprisonment
- The penalty for failing to submit a written report within 72
hours of discovering an immediately reportable matter or routine
reportable matter under subsection 19(1) is halved to 30 penalty
units[6] (which is
statutorily equivalent to 6 months imprisonment[7]); however, the statutory
limitation period for prosecution of this offence is set at 6 years
(rather than allowing it to default to 12 months), and
- The penalty for hindering an investigation under subsection
24(1) is doubled to 12 months imprisonment.
- In relation to the amendments to sections 18 and 24 of the
TSIA, several justifications are given in the Explanatory
Memorandum:[8]
- The penalty of 12 months imprisonment would immediately remove
the limitation period for prosecuting that offence, rather than the
current limitation period of 12 months for commencing prosecution,
which is considered to be insufficient time given the difficulty in
gathering evidence:
The change in penalty is proposed to be made as
a result of a review of the penalties in Part 3 of the TSIA
following the referral to the Australian Federal Police (AFP) of a
number of alleged failures to report IRMs and RRMs ... it became
apparent that the 6 month penalty in subsection 18(1) was difficult
to enforce because, when read with the statutory limitation period
in section 15B of the Crimes Act 1914, a prosecution
cannot be commenced more than 12 months after the occurrence of the
offence... Changing the penalty to 12 months imprisonment in
subsection 18(1) will alleviate this problem.[9]
- An inability to impose penalties due to quickly expiring
limitation periods has significant safety implications, as it
weakens the deterrent effect of the penalty provision, and
- The 12 month imprisonment penalty is considered appropriate for
the offence in comparison to existing penalties for similar
offences relating to evidence and investigations. For example,
section 43 of the TSIA which prohibits interfering with evidence
covered by a protection order, is also punishable by 12 months
imprisonment. Offences which deal with improper use of information,
or making fraudulent statements, tend to attract 2 years
imprisonment under the Act (see sections 42, 53 and 60 for
examples).
In relation to the proposed amendments to section 19, the
Explanatory Memorandum argues that the current penalty of 60
penalty units (or 12 months imprisonment) is disproportionately
large, and should be reduced by half (which would bring the
statutory limitation period for that offence down to 12 months);
however, that the statutory limitation issues faced by sections 18
and 24 also apply to section 19, and that 12 months is insufficient
for effective use of the penalty provision to be a deterrent. The
Explanatory Memorandum states that a limitation period of 6 years
was considered appropriate for the offence in subsection 19(1) in
the context of the timelines experienced with the Lockhart River
investigation.[10]
The Explanatory Memorandum states that:
The amendments would have no significant
financial impact on Government expenditure, therefore a Financial
Impact Statement is not required.[11]
Schedule 1, Part 1 of the
Bill contains amendments to the Aviation Transport Security Act
2004. Item 7inserts a new Division
3 into the ATSA Act to deal with circumstances where the
Secretary may require aviation security information. New
section 111 defines aviation security
information as information that is not security
compliance information and is prescribed by the regulations for the
purposes of this section . (Note that security
compliance information is defined under section 109
of ATSA as information that relates to compliance, or failure to
comply, with this Act .)
The section also allows for regulations under the Act to
prescribe what will be classed as aviation security
information, such as statistics and information
relating to screening processes, clearance activities, and
different security zones. The scope of what information can be
prescribed is not limited.
New subsection 111(3) authorises the Secretary
of the Department to give written notice to an aviation industry
participant to provide aviation security information. The notice
should specify a time period for responding (no less than 14 days)
and the form of the response (new subsections
111(4) and (5)). Failure to comply with
the notice is an offence (new subsection 111(6))
punishable by 45 penalty units. This penalty is comparable with
similar existing offences under the Act, such as failure to provide
security compliance information under section 109.
New section 112 states that a person is not
excused from giving the information requested under a section
111(3) notice on the grounds that the information is
self-incriminating; however, the information given in response to a
section 111(3) notice will be inadmissible as evidence in a
criminal proceeding (or other proceeding for recovering a penalty),
other than a proceeding for giving false or misleading information
or documents (under sections 137.1 and 137.2 of the Criminal
Code Act 1995).
Item 8 repeals existing subsection 127(1),
which provides the current delegation power, and replaces it with
new subsections 127(1) and (1A).
The scope of the power is widened to allow the Secretary of the
Department to delegate all or any of his or her powers and
functions under ATSA to an Agency Head of an agency that carries on
national security activities. New subsection
127(1A) clarifies that the delegation to another Agency
Head has no effect unless that Agency Head agrees to the
delegation. Once delegated to another Agency Head, the powers and
functions can then in turn be sub-delegated within his or her
agency to a Senior Executive Band 3 (Deputy-Secretary level)
employee (item 9, new section 127A).
Schedule 1, Part 2 of the Bill contains
amendments to the Civil Aviation Act 1988. Item
10 amends section 32AP of the CAA which makes it an
offence to copy CVR information. The amendment exempts people from
committing an offence if they have copied the CVR information for
the purposes of checking the equipment involved. The exemption is
subject to certain conditions, set out in new subsection
32AP(3A) (item 11) which includes written
notification to the relevant crew members before the recording of
the CVR information is made.
Schedule 1, Part 3 of the Bill contains
amendments to the Transport Safety Investigation Act 2003.
The majority of the amendments to the TSIA are to make adjustments
to criminal penalties. Items 16 and
21 adjust the criminal penalties for the offences
of failing to report an immediately reportable matter, or IRM
(section 18) and hindering an investigation (section 24)
respectively. The Bill increases the penalties for both of these
offences from 6 months imprisonment to 12 months imprisonment.
Items 17 and 18 amend section
18 which makes it an offence to fail to report an immediately
reportable matter. The amendments expand the range of circumstances
where no offence is committed, to account for instances where a
matter has not yet been reported, but there is a belief that it
will be reported as soon as is reasonably practicable.
Items 19 and 20 amend section
19 of the TSIA which deals with the provision of written reports to
the Executive Director (ED) of Transport Safety Investigation
within 72 hours. The TSIA currently creates a positive obligation
on a person to provide written reports to the ED within 72 hours of
discovering a reportable matter (subsection 19(1)) unless that
person is exempt from that obligation based on their reasonable
belief that another person has done so (subsections 19(2) and (3).
Item 19 halves the penalty for non-compliance with
subsection 19(1), reducing it from 60 to 30 penalty units. The
Explanatory Memorandum states that this addresses an anomaly which
was discovered during the review of penalties for Part 3 of the
TSIA (discussed at item 16, above).[12] As 60 penalty units is
statutorily equivalent to 12 months imprisonment,[13] the penalty for subsection 19(1)
was judged to be disproportionately high when compared to the
offence provision in section 18 of the TSIA.
New subsection 19(4) in item
20 enables the ED to give written notice to a person
requiring them to comply with subsection 19(1). The ED can only
give the written notice if satisfied that the person would be
required to do so under subsection 19(1), were it not for the
exemptions in subsection 19(2) or 19(3), or if they might have
extra information. Non-compliance with a notice from the ED is an
offence punishable by 30 penalty units (which is consistent with
other penalty provisions in the section).
New subsection 19(7) limits prosecution for
non-compliance with subsection 19(1) to within 6 years after the
commission of the offence. This proposed amendment would displace
the default limitation period of 12 months which would be set by
section 15B of the Crimes Act (contingent on the passage of
item 19, above). The Explanatory Statement states
that this is to ensure that there is adequate time for discovery of
evidence following an accident before prosecuting.[14]
Aviation Transport Security
Act 2004 ATSA
Civil Aviation Act 1988
CAA
Civil Aviation Safety Authority
CASA
Cockpit Voice Recorder CVR
Transport Safety
Investigation Act 2003 TSIA
Australian Transport Safety
Bureau ATS
Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library on (02) 6277
2699.
[1]. Angus Martyn, Aviation Transport Security Bill 2003,
Bills Digest, available at http://www.aph.gov.au/library/pubs/bd/2003-04/04bd023.htm
[accessed 29 January 2009]
[5]. Australian
Transport Safety Bureau, Aviation Safety Investigation Report
Final: Collision with Terrain; 11km NW Lockhart River
Aerodrome, 12 November 2007, available at
http://www.atsb.gov.au/publications/investigation_reports/2005/AAIR/aair200501977.aspx
[accessed 29 January 2009]
[6]. 30 penalty
units is equivalent to a fine of $3 300. This provision should also
be read in the context of subsection 4B(3) of the Crimes Act, which
allows a court to multiply the pecuniary penalty for an offence by
up to five times, when prosecuting a body corporate. For a full
chart of conversions for penalty units, see page 45 of A Guide
to Framing Commonwealth Offences, Civil Penalties and Enforcement
Powers, available at
http://www.ag.gov.au/www/agd/agd.nsf/Page/
Publications_GuidetoFramingCommonwealthOffences,CivilPenaltiesandEnforcementPowers
[accessed 30 January 2009]
[7]. Subsection 4B(2)
of the Crimes Act states that where a natural person is convicted
of an offence against a law of the Commonwealth punishable by
imprisonment only, the court may, if the contrary intention does
not appear and the court thinks it appropriate in all the
circumstances of the case, impose, instead of, or in addition to, a
penalty of imprisonment, a pecuniary penalty not exceeding the
number of penalty units calculated using the formula: Term of
Imprisonment x 5.
PaoYi Tan
2 February 2009
Bills Digest Service
Parliamentary Library
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