Bills Digest no. 4 2009–10
Aviation Transport Security Amendment (2009 Measures No.
1) Bill 2009
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
Aviation Transport Security Amendment (2009
Measures No. 1) Bill 2009
Date
introduced: 24 June
2009
House: House of Representatives
Portfolio: Infrastructure, Transport, Regional
Development and Local Government
Commencement:
Sections 1 to 3 commence
on Royal Assent. Parts 2 4 of Schedule 1 commence the day after
Royal Assent. Part 1 of Schedule 1 which deals with categories of
security controlled airports commences a day to be proclaimed, or
12 months after Royal Assent, whichever is the
earlier.
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/.
The Bill amends
the Aviation Transport Security Act 2004 to make modest
changes to the existing Commonwealth aviation transport security
regime. Specifically the Bill will:
- increase the flexibility in designating an airport as a
security controlled airport by enabling regulations to be made to
categorise airports in accordance with their relative risk
profile
- to increase the range of situations in which aviation security
inspectors may enter certain premises without notice
- introduce the option of enforceable undertakings as a
compliance measure, and
- allow aviation security inspectors to issue compliance control
directions in a wider range of circumstances
Background to the
development of the Aviation Transport Security Act 2004
(the Act) is contained in the relevant Bills
Digest.[1] The
main object of the Act is to ‘establish a regulatory
framework to safeguard against unlawful interference with
aviation’.[2]
A brief summary of some of the key features of
the current aviation transport security regime can be found at the
relevant part of the website of the administering Commonwealth
Department, the Department of Infrastructure, Transport, Regional
Development and Local Government.[3]
The Act has been regularly amended since 2004
to incorporate various changes in the regime. The perceived need
for such amendments appears to have in part been generated by
operational experience over time, and this is presumably the case
with this Bill. However, there have also been specific reviews done
on aviation security in recent years, notably the 2005 Wheeler
Review of airport security,[4] and the 2006 report of the Joint Parliamentary
Committee on Public Accounts and Audit
Developments in Aviation Security since the Committee’s
June 2004 Report 400: Review of Aviation Security in
Australia.[5]
There is no information in the
Minister’s second reading speech or the Explanatory
Memorandum to the Bill about whether, or to what extent, the
aviation industry has been consulted about the proposed
amendments.
At its meeting of 25 June 2009, the Senate
selection of Bills Committee deferred consideration of the Bill
until its next meeting.
The Bill does not
appear to have generated any significant public comment from the
aviation industry or the press.
According to the
Explanatory Memorandum, the amendments contained in the Bill will
have ‘no significant financial impact on Government
expenditure.’[6]
Existing subsection 28(2) of the Act enables
the Secretary of the administering Department to declare an airport
to be a ‘security controlled airport’.[7] Such a declaration allows, amongst
other things, the Secretary to then establish airside and landside
security zones. There may be different types of such security zones
prescribed by regulations, but as their name implies, these zones
are intended to provide appropriate levels of security by
controlling movements of persons, vehicles, goods etc. However, the
Explanatory Memorandum comments:
The declaration of an airport as a …
[security controlled airport] … generally places the same
legislative requirements on all such airports, regardless of their
size, location and type of aircraft operating from that airport.
The amendments under items 2 and 3 have been developed with the
purpose of allowing legislative requirements to be tailored
according to the security risk profile of each … [security
controlled airport]. It is intended that [the amendments in Part 1]
will enhance regulatory activity, whereby, airports would be better
targeted when categorised in accordance with their relative risk
profile.[8]
Item 3 inserts new
section 28A, which will enable regulations to prescribe
different categories of security controlled airports. The
assignment of a particular category to an individual airport will
be done in the same way as airports are now declared to be security
controlled airports – that is, by publishing a notice in the
Gazette, and giving a notice to the airport operator:
item 2.
The declaration of an airport as a security
controlled airport is reviewable by the Administrative Appeals
Tribunal (AAT) under existing paragraph 126(1)(e).
Item 5 inserts a new paragraph
126(1)(ea) so that a decision by the Secretary to assign a
security controlled airport a particular category will also be
reviewable by the AAT.
Aviation security inspectors are employees of
the administering Department, or State or Federal police officers,
or protective service officers under the Australian Federal
Police Act 1979. Such inspectors have wide entry and
inspection ranging powers under existing section 79 which can be
exercised for determining whether a person is complying with the
Act and /or investigating a possible contravention of it.
Amongst the inspectors powers are those to
enter and inspect any area, building or vehicle under the control
of an Accredited Air Cargo Agent or aviation industry
participant.[9]
However, where the proposed entry and inspection is in place that
is not within the boundaries of a security controlled airport,
‘reasonable notice’ must first be given before
exercising the power: existing subsection 79(3). The Explanatory
Memorandum asserts that:
The requirement to provide reasonable notice
reduces the effectiveness of inspection activity as it is possible
that businesses could quickly alter their practices for the period
of the inspection.[10]
Items 7 and
8 would delete this reasonable notice requirement
in most instances. However, reasonable notice would still be
required for entry and inspection of a residence.
In addition to offence provisions scattered
throughout the Act, Part 8 currently contains a range of compliance
mechanisms in relation to aviation industry participants.
Item 11 and the related
consequential amendments will now allow the Departmental Secretary
to enter into enforceable written undertakings with such
participants. The Explanatory Memorandum characterises this option
as a ‘middle range sanction’ to address
‘regulatory issues and contraventions of the [Act],
particularly in instances where the breaches are not serious enough
to warrant preventing an [aviation industry participant] from
continuing to operate’.[11]
An enforceable undertaking is voluntary. It
may specify that the aviation industry participant, will for the
purpose of complying with the Act, take, or refrain from taking,
specified action: new paragraphs 123A(1)(a)-(b).
In may be also be more anticipatory in nature, requiring that
specified action be taken that is directed at ensuring the
participant does not contravene the Act, or is unlikely to
contravene it, in the future: new paragraph
123A(1)(c).
Such undertakings may be cancelled by the
Secretary, or the relevant participant may withdraw from them or
have them varied, although only with the consent of the Secretary.
In cases where the Secretary considers the person has breached an
undertaking, they may seek a variety of court orders, including an
order to comply, or an order to make a payment of some form of
financial penalty or compensation: new paragraphs
123B(2)(a)-(d).
Existing sections 74A-74E deal with control
directions. These can be used to control the movement of aircraft,
and may be given to pilots in command or aircraft operators. There
are two types of control directions:
- Compliance control directions, given by aviation security
inspectors, are used to ensure compliance with this Act. They may
only be given in relation to aircraft that are not in flight.
- Incident control directions, given by the Secretary, may only
be given in response to aviation security incidents.
In the case of compliance control directions,
aviation security inspectors currently have no power to give such
directions to airport operators or screening authorities. The
Explanatory Memorandum comments:
There have been many instances where it would
have been appropriate for such directions to be issued to an
airport operator or screening authority. For example, an inspector
may wish to issue a compliance control direction to an airport
operator or a screening authority that all passengers and their
luggage on a particular flight must be screened or rescreened
before the aircraft can depart from the airport to ensure
compliance with the [Act].[12]
Item 15 inserts new
subsections 74B(1A) and 74B(1B).[13] These only apply to
security controlled airports. New subsection
74B(1A) will allow aviation security inspectors to direct
operators to take ‘specified action’ in relation to the
airport. New subsection 74B(1B) will allow
aviation security inspectors to direct a screening authority or
screening officer to take ‘specified action’ in
relation to a screening point. It is unclear whether, in the case
of subsection 74B(1B), where action was considered necessary in
relation to multiple screening points, an inspector could give one
direction that would cover all points. Presumably this is the
intent of the legislation, so it may be advisable to make this
clear.
Existing subsection 74C contains penalties for
a failure to comply with compliance control directions. The maximum
penalties range up to 200 penalty units ($22 000).[14] Item 18 amends
section 74C to apply the existing penalties in
cases of failure to comply with the expanded range of directions
contained in item 15 above. The existing defence
of reasonable excuse continues to apply.
Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library on (02) 6277 2764.
Angus Martyn
27 July 2009
Bills Digest Service
Parliamentary Library
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