Bills Digest no. 53, 2016–17
PDF version [767KB]
Christina Raymond
Law and Bills Digest Section
18
January 2017
Contents
Purpose, structure
and context of the Bill
Key measures and
objectives
Background to the Aviation
Act
Background to the Maritime
Act
Committee
consideration
Position of
non-government parties/independents
Position of major
interest groups
Financial
implications
Impact on Government
expenditure
Impact on regulated
entities
Statement of
Compatibility with Human Rights
Privacy safeguards
Anti-discrimination
safeguards
Safeguards to the
right to work
Key issues and
provisions
Strengthened airside
security arrangements—enhanced screening (items 1–6)
Rationale for the
proposed measures—the ‘insider’ threat
Overview of the
enhanced screening measures
Extension of the
purposes for which screening may be conducted (item 1)
Requirements for
conducting ‘in-area’ or ‘in-zone’ screening (items 2–5)
Further requirements
for the location of ‘in-area’ or ‘in-zone’ screening (item 6)
Comment—broad
delegation of legislative power: safeguards and implications for parliamentary
oversight
The potential
inclusion of safeguards in primary legislation
The potential for
the application of the new screening arrangements to be expanded by regulation
Consequences of
limiting the amendments in item 1 to airside areas and zones within airside
areas
Power to create
offences by regulation in relation to contraventions of the new screening
requirements
Increased
administrative flexibility—expanded powers of delegation (items 7 and 8)
Existing powers of
delegation under the Aviation Act and the Maritime Act
Amendment of
Secretary’s powers of delegation in the Aviation Act (item 7)
Amendment of
Secretary’s powers of delegation in the Maritime Act (item 8)
Rationale for the
proposed amendments
Comment—broad power
of delegation: powers delegated and classes of delegates
Adequacy of
safeguards against inappropriate delegations
Concluding comments
Adequacy of
justifications for, and legal safeguards applied to, broad delegations of power
Further information
about the new airside security model
Stakeholder
consultations on the Bill and the new security model
Date introduced: 1
December 2016
House: House of
Representatives
Portfolio: Infrastructure
and Regional Development
Commencement: On
Royal Assent.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at January 2017.
Purpose, structure and context of the Bill
Key measures and objectives
The Transport Security Legislation Amendment Bill 2016[1] proposes to amend the Aviation
Transport Security Act 2004 (Aviation Act)
and the Maritime Transport and Offshore Facilities Security Act 2003 (Maritime Act) as part of the Government’s ongoing review of
national security and related legislation to ensure that it remains fit for
purpose and keeps pace with developments in the security environment.[2]
Schedule 1
to the Bill contains eight amending items, which are directed to two main
objectives—namely:
- strengthening airside security—items 1–6 propose to amend the Aviation Act to strengthen protections
against the potential security threat presented by ‘trusted insiders’ who work
within the secure airside areas at Australian airports (such as airport and
airline workers, contractors and visitors) who could use their access to secure
areas to carry out or facilitate terrorist acts or other attacks. The proposed
amendments would authorise the making of regulations imposing screening and
clearance requirements for persons, vehicles and goods while they are within
secure airside areas, not just upon entry and
- increasing administrative flexibility—items
7 and 8 propose to amend, respectively, the Aviation Act and the Maritime
Act to expand the classes of persons to whom the Secretary of the
Department of Infrastructure and Regional Development (the Department) may
delegate his or her functions and powers under these Acts.
Background to the Aviation Act
The Aviation Act creates a
regulatory framework to safeguard against unlawful interference with aviation.
It establishes minimum security requirements for civil aviation in
Australia, primarily by imposing obligations on persons engaged with civil
aviation-related activities.[3]
The Aviation Act also gives effect
to Australia’s obligations under the Convention on International Civil Aviation[4]
(Chicago Convention).[5] The Chicago Convention sets out core principles, standards
and practices for international air transport (including with respect to
security) and establishes the International
Civil Aviation Organisation[6] as
a specialised UN agency responsible for the governance and administration of
the convention.
The mechanisms established under the Aviation
Act to safeguard against unlawful interference with aviation
include:
- imposing obligations on aviation industry participants to develop
and comply with approved transport security programs, detailing how they will
manage security for their operations (Part 2)
- authorising the Secretary of the Department to designate airports as
‘security controlled airports’ and to establish particular areas or zones
within those airports, which are subject to specific regulatory requirements to
safeguard against unlawful interference with aviation (Part 3)
- imposing several area, zone and aircraft-specific security measures,
including screening, examination, on-board security, the transportation of persons
in custody, and offences in relation to weapons and prohibited items. The Aviation
Act authorises the making of regulations and the issuing of notices or
directions by the Secretary which may prescribe further requirements (Part 4)
- conferring powers on officials (Part 5)
- imposing reporting obligations on industry participants in relation
to aviation security incidents (Part 6)
- setting requirements for the provision of information with respect
to security compliance and aviation security (Part 7) and
- establishing enforcement mechanisms for non-compliance with
obligations under the Act (Part 8).
The Aviation
Transport Security Regulations 2005 (Aviation
Regulations) are made under the Aviation Act and
relevantly prescribe requirements in relation to: transport security programs (Part
2); the designation of airport areas and zones (Part 3); other
security measures including screening and clearing (Part 4);
requirements for the training, qualification and security identification of
officials exercising powers under the Act (Parts 5 and 6); and
information-gathering and enforcement (Parts 6A and 7).
Background to the Maritime Act
The Maritime Act establishes a
regulatory framework to safeguard against unlawful interference with maritime
transport and offshore facilities. It principally regulates ships, port and
port facility operators, and offshore facilities and service providers.
The regulatory framework focuses on the
development and implementation of security plans for ships, other maritime
transport operations and offshore facilities. The Maritime Act implements
Australia’s obligations under the International Convention for the Safety of Life at Sea[7]
(SOLAS Convention) and the International Ship and Port Facility Security Code[8]
(ISPS Code).[9]
The regulatory mechanisms established
under the Maritime Act include:
- the designation of maritime security levels and corresponding
security measures required to be implemented in respect of each level (Part
2)
- the imposition of obligations on certain maritime industry
participants to develop and comply with maritime security plans (Part 3)
- the imposition of specific security obligations in relation to
regulated Australian ships (Part 4), regulated foreign ships (Part 5)
and offshore facilities (Parts 5A–5C)
- the establishment of maritime security zones within ports, and on
and around ships and offshore facilities (Part 6)
- the imposition of requirements for screening, weapons and prohibited
items (Part 7)
- the conferral of powers on officials (Part 8)
- the imposition of reporting obligations in relation to certain
security incidents (Part 9) and
- the imposition of obligations to provide information about
compliance (Part 10) and enforcement mechanisms for non-compliance with obligations
under the Act (Part 11).
The Maritime
Transport and Offshore Facilities Security Regulations 2003 (Maritime Regulations) are made under the Maritime Act and relevantly prescribe more detailed requirements in relation to:
maritime security levels and security directions (Part 2); maritime
security plans (Part 3); security requirements for ships and
offshore facilities (Parts 4–5A); maritime security zones (Part 6);
other security measures, including screening and clearing and prohibited items
(Part 7); the training, qualification and security identification of
officials exercising powers under the Act (Part 8); incident reporting (Part
9); and information-gathering and enforcement (Parts 10–11).
Committee consideration
On 1 December 2016, the Senate Standing
Committee for the Selection of Bills reported that it had deferred
consideration of the Bill to its next meeting.[10]
At the time of writing, the Senate
Standing Committee for the Scrutiny of Bills and the Parliamentary Joint
Committee on Human Rights had not reported on their consideration of the
Bill. This reflects that the Bill was introduced after these committees
tabled their final reports of 2016.
While not specifically examining the
Bill, the Senate Standing Committee on Rural and Regional Affairs and Transport
is conducting an inquiry into airport and aviation security, which is due to
report on 30 March 2017.[11]
The issue of additional screening measures within secure airside areas does not
appear to have arisen in the evidence received by the Committee to date,
although it has received evidence about the vulnerability of the aviation
sector to the ‘trusted insider’ threat.[12]
Position of non-government
parties/independents
At the time of writing, non-government
parties and independent members of Parliament do not appear to have commented
publicly on the Bill.
Position of major interest groups
At the time of writing, major interest
groups do not appear to have commented publicly on the Bill.
The Minister’s second reading speech indicates that the proposed
amendments are part of a new model for strengthening airside security at
Australia’s major international airports, which was developed in consultation
with the aviation industry.[13]
However, the extrinsic materials to the Bill do not provide
details about the scope or outcomes of industry consultations, including any
consultations on the regulatory aspects of implementing the new model, such as
the present Bill.
The general comments of some stakeholders
on other legislative proposals may also have some relevance to the present Bill.
For example, in its submission to the Senate Standing Committee on Rural and
Regional Affairs and Transport inquiry into the Transport Security Amendment (Serious or Organised Crime) Bill 2016,[14]
the Australian Services Union (ASU) acknowledged the need for enhanced security
measures to address the ‘trusted insider’ threat at airports, as well as to
protect the workplace safety of aviation industry workers. However, the ASU
emphasised that care must be taken to ensure that such measures are ‘balanced
with civil liberties and the practicalities of employees getting on with their
jobs’, and to ensure that any strengthened security arrangements engage
aviation industry workers as ‘part of the picture, not the problem’.[15]
The ASU cautioned that ‘security measures can go too far,
becoming too lengthy, expensive and burdensome on employees, the vast majority
of whom will never use their job to further a criminal purpose’.[16] The ASU also identified a need to improve security awareness
training provided to aviation industry workers, and mechanisms for them to
report matters of security concern.[17]
Financial implications
Impact on Government expenditure
The Explanatory Memorandum suggests that
the Bill is unlikely to have a significant impact on Government expenditure,
stating that ‘no additional Government funding has been sought’ and that ‘activities
are to be resourced from within current funding’.[18]
Impact on regulated entities
The Explanatory Memorandum also provides
information about the anticipated cost and regulatory impact on the aviation
industry if the proposed amendments to the Aviation Act in items 1–6
(enhanced screening measures) are enacted. It notes that the proposed
amendments will not, themselves, impose a cost or regulatory burden on
industry, as their purpose is to authorise the making of regulations prescribing
the new screening requirements within airside areas.[19]
However, the Explanatory Memorandum
acknowledges that regulations made pursuant to the Aviation Act (as amended
by the Bill) to prescribe the enhanced screening measures would have ‘a high
cost impact’ on the aviation industry, although it does not quantify the
anticipated cost.[20]
The Explanatory Memorandum also suggests
that industry implementation costs may be reduced, to an extent, because the
proposed amendments to the Aviation Act are intended to provide industry
participants with some flexibility in how the new security screening measures
are to be implemented.[21] The Explanatory Memorandum further indicates that a Regulation
Impact Statement (RIS) will be prepared to accompany regulations made in the future
if the Bill is passed.[22]
Statement of Compatibility with Human
Rights
As required under Part 3 of the Human
Rights (Parliamentary Scrutiny) Act 2011, the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[23]
In particular, the Statement of
Compatibility examines the impacts of the security screening measures in items
1–6 on persons who will be subject to them (such as airport and airline
employees, contractors and visitors who work within security restricted areas
in airports). It examines the impacts of the proposed measures on the right to
privacy under Article 17 of the International Covenant on Civil and Political Rights[24] (ICCPR), rights to equality and non‑discrimination
under Articles 2, 16 and 26 of the ICCPR, and rights to work under
Article 6 of the International Covenant on Economic, Social and Cultural Rights[25] (ICESCR).[26]
The Statement of Compatibility acknowledges
that the enhanced screening requirements will engage these rights by requiring
persons to undergo screening as a condition of their remaining in an airside
area, and the consequences for persons who refuse to participate in screening,
or who are found to have a prohibited weapon or item. (Namely, their removal
from the secure airside area and consequent inability to work for the period of
removal.)[27]
However, the Statement of Compatibility suggests that any
limitations of these rights are permissible because they are proportionate to
the legitimate objective of strengthening Australia’s aviation security to
address an emerging threat.[28] In particular, it points to various safeguards in the enhanced
screening regime (detailed below).
Privacy safeguards
The Statement of Compatibility indicates
that the enhanced screening requirements in items 1–6 of the Bill (which make
provision for the screening of persons who are already within an airside
area) will be subject to similar privacy safeguards to those currently applied
to the screening of persons before they enter an airside area. It
states:
The screening techniques being applied are
non-invasive, including explosive trace detection and metal
detection. Frisk searches may occasionally be used to resolve alarms or
when a technological equivalent is not available. In cases where a frisk
search is necessary the individual may request that procedure to occur in a
private room or within a screened area. A frisk search will always be
undertaken by someone of the same gender as the person being searched. All
screening procedures will be undertaken by trained screening officers in
accordance with requirements established by a notice issued under the Aviation
Transport Security Regulations 2005. [29]
This statement appears to indicate the
Government’s intention to implement these safeguards primarily via executive
action if the Bill is passed. (Namely, the issuing of a notice by the Secretary
under the Aviation Regulations that
prescribes screening procedures for the purpose of the enhanced screening
arrangements.)
While the Aviation Act contains
some limitations on the power of screening officers (relating to frisk searches
and the use of body scanners),[30]
neither the Bill nor the existing provisions of the Aviation
Act and Aviation Regulations appear to contain explicit provisions that would mandate the
inclusion of the privacy protections quoted above in a notice issued under the Aviation
Regulations that prescribes the
screening procedures for the new scheme.
The Statement of Compatibility does not
explain how the apparent reliance on administrative privacy protections is
compatible with the guarantee in Article 17(2) of the ICCPR that ‘everyone
has the right to the protection of the law’
against arbitrary or unlawful interference with, and attacks on, their personal
privacy [emphasis added].
The extrinsic materials to the Bill also
do not disclose whether the Department will undertake a privacy impact
assessment in relation to the enhanced screening arrangements to be prescribed
by notice.[31] Some commentators have expressed concern that privacy impact
assessments are under-utilised in national security legislative proposals, and
have supported a more active role for the Parliament in requiring the
Government to undertake such assessments and release them publicly as a
condition of passing legislation.[32]
Anti-discrimination safeguards
The Statement of
Compatibility identifies the Government’s intention to apply the new screening
requirements in a manner that is ‘in keeping with Australia’s egalitarian
screening regime for aviation passengers’ in that the selection of airport and
airline workers, visitors and contractors for screening inside the security
restricted areas will be conducted at random, and will not target individuals
on the basis of their ‘race, religion, gender or any other personal
characteristic’.[33]
As with the privacy protections noted
above, this statement appears to denote the Government’s policy intention to
implement this safeguard via executive action if the Bill is passed. (This
might potentially be implemented through amendments to the Aviation Regulations, or in notices issued under these
regulations, or in the requirements of individual transport security plans
prepared under Part 2 of the Aviation Act and Aviation Regulations,
or exclusively in policy.)
There is no apparent legislative
requirement in the Aviation Act that would mandate the inclusion of anti‑discrimination
safeguards in any regulations made or notices issued to implement the enhanced
screening regime, or in the requirements of individual transport security
plans. Neither the existing provisions of the Aviation Act and Aviation
Regulations, nor the proposed amendments contained in the Bill, appear to
expressly prohibit the use of discriminatory screening practices.
A degree of protection may be available
under anti-discrimination legislation of general application.[34]
Limited protection may also potentially exist under
existing provisions of the Aviation Regulations, which impose requirements for the random screening of persons,
vehicles and goods in ‘enhanced inspection areas’ within the secure airside
areas of nine specified Australian airports, within a specified time period.[35] (It is possible that the specific expression of this power as
authorising random screening might be open to interpretation as
excluding the power to conduct targeted screening, such as the selection
of persons on the basis of their race, ethnicity, religious attire or other
personal characteristics.)
Safeguards to the right to work
The Statement of Compatibility suggests
that the limitations on the right to work will be mitigated partially by the
Government’s intention to impose a new requirement that airport and airline
employees and contractors who regularly work within security restricted areas
within airports must undergo security awareness training. It is said that this
training will inform such persons of their obligations, and the security
reasons such obligations are imposed.[36] Participation in training may reduce the possibility that a person
may be removed from a secure area due to an inadvertent failure to comply with
security requirements, and may encourage compliance and promote procedural
fairness by providing aviation industry employees with advance warning of the
consequences of contravention.
As with the anti-discrimination
safeguards noted above, neither the Bill nor the existing provisions of the Aviation Act
and Aviation Regulations appear to contain explicit provisions that would
mandate the delivery of security awareness training of the kind described in
the Statement of Compatibility.[37]
Accordingly, this statement may denote
the Government’s future intention to include such requirements in the Aviation
Regulations or notices issued
under the Aviation Regulations, or in the requirements of transport security
plans prepared under the Aviation Act, or potentially to implement them exclusively
in policy, if the Bill is passed.
Key issues and provisions
Strengthened
airside security arrangements—enhanced screening (items 1–6)
The measures in items 1–6 of
Schedule 1 to the Bill propose to amend the Aviation Act to mitigate the
threat presented by ‘insiders’ who work within the secure airside areas at
Australian airports by implementing enhanced screening arrangements in relation
to persons, vehicles and goods within these areas.
Rationale for the proposed measures—the
‘insider’ threat
In his second reading speech to the Bill,
the Minister for Infrastructure and Transport, Darren Chester, provided the
following explanation of the ‘insider’ threat which prompted the introduction
of the Bill:
[W]e are introducing measures at Australia's
major international airports to mitigate what is known as the insider threat. Airport
workers such as baggage handlers, caterers, cleaners and engineers have special
access to passenger aircraft so they can carry out their important roles.
However, there is potential for this access to be exploited, either willingly
or through coercion, to facilitate an attack against a passenger aircraft.
Serious international security incidents
targeting aviation, such as the bombing of Metrojet flight 9268 in Egypt on 31
October 2015 and the attempted bombing of Daallo Airlines flight 159 in Somalia
on 2 February 2016, have highlighted the continuing threat to the global
aviation environment, in particular, the insider threat. There is growing
concern about the insider threat among the global aviation community, and the Convention
on International Civil Aviation [Chicago Convention], to which Australia is
a signatory, places obligations on states to have measures in place to address
this threat.[38]
The Minister further indicated that the
proposed measures in the Bill are part of a broader model to better address the
‘insider’ threat:
The Department of Infrastructure and
Regional Development (my department), in consultation with the aviation
industry, has developed a new model for strengthening airside security at
Australia’s nine major international airports to address the insider threat and
to ensure Australia meets its international civil aviation obligations for
airside security. These measures introduced through the Bill are part of a
broader suite of regulatory amendments that give effect to the model’s three
components, those being:
- controls to ensure people, vehicles and
goods entering airside areas at Australia's major international airports are
authorised to do so;
- random screening of people, vehicles and
accompanying goods entering and within the airside areas of the major
international airports to detect unauthorised weapons and explosives; and
- security awareness training for airport and
airline employees, including contractors, that regularly work within airside
areas at the major international airports.[39]
In terms of security risks in the civil
aviation sector more generally, academic and other non-government commentators
have described civilian airports as a ‘soft target’ for terrorist groups, and
have supported the ‘constant review’ of aviation security arrangements to keep
pace with changes in the threat environment, which can be rapid and unforeseen.[40]
In a submission to the Senate Standing
Committee on Rural and Regional Affairs and Transport inquiry into Airport
and aviation security in January 2015, ASIO stated, ‘we expect civilian
aviation will remain a high-value terrorist target for the foreseeable future’.[41] It identified several factors that make airports susceptible to
terrorist attack, including that ‘terrorists have exploited the trusted access
of individuals within the aviation sector in order to overcome security
measures’.[42]
Criminal intelligence and law enforcement
agencies have also identified risks presented by ‘trusted insiders’ within the
civil aviation sector in relation to organised crime, including the importation
or exportation of illicit drugs, domestic drug trafficking, money laundering,
and smuggling activities.[43]
Overview of the enhanced screening measures
The measures in items 1–6 of
Schedule 1 to the Bill propose to extend the existing framework for conducting
security screening in the Aviation Act (specifically Division 3 of
Part 3, and Division 2 of Part 4) to give effect to the second
component of the Government’s model for strengthened airport security
arrangements (outlined above). In general terms, the proposed amendments will
extend the existing provisions of the Aviation Act that confer
regulation-making powers for the purpose of conducting security screening of
persons, vehicles and goods before they enter, or before they are
taken into, certain areas within a ‘security controlled airport’,[44] namely the area
designated as the ‘airside area’.[45]
The proposed amendments will authorise
the random screening of persons, vehicles and goods once they are inside
an airside area. Compliance with the proposed ‘in-area’ screening requirements
will be a condition to a person, vehicle or goods being permitted to remain in
the area. Persons who refuse to undergo ‘in-area’ screening, or who are found
to be in possession of an unauthorised weapon, will be required to leave the
relevant area, or the relevant vehicle or goods may be removed if they are not
cleared to remain in the area following screening.[46]
Extension of the purposes for which
screening may be conducted (item 1)
Item 1
amends the regulation-making powers in Division 3, Part 3 (sections
35, 36 and 36A) of the Aviation Act, which provide that the Aviation
Regulations may, for the purposes of safeguarding against unlawful interference
with aviation, prescribe requirements in relation to certain designated airside
areas within a ‘security controlled airport’. These are the ‘airside area’
within a security controlled airport (section 35),[47] and zones within airside
areas, namely the ‘airside security zone’ (section 36),[48] and the ‘airside event
zone’ (section 36A).[49]
Subsection (2) of each of sections 35,
36 and 36A sets out an inclusive list of requirements
that may be prescribed in the Aviation Regulations in relation to an airside
area, or the relevant type of zone within an airside area, in a security
controlled airport.
These include requirements in relation
to: access to the relevant airside area or zone; patrolling; the provision of
lighting, fencing and storage facilities; the identification or marking of the
relevant airside area or zone; the approval of building works; the security
screening of persons, vehicles and goods for the purpose of entry; the
movement, management and operation of aircraft, vehicles and machinery; the
maintenance of the integrity of the area; access to aircraft; and the
management of persons, goods and vehicles.
Item 1
inserts a new paragraph (2)(f) in each of sections 35, 36 and 36A, which
provides that the regulations may prescribe requirements for the screening of
persons, vehicles and goods for entry to, or that are in, the relevant
airside area or zone within the airside area.
Requirements for conducting ‘in-area’ or
‘in-zone’ screening (items 2–5)
Items 2–5 propose
to make similar amendments to the provisions of
Division 2 of Part 4 of the Aviation Act, which prescribe more detailed
requirements and procedures in relation to the conduct of screening[50] and clearance[51] of persons, goods and vehicles. These items amend the following
provisions:
- subsection 41(1)—item 2 extends
the circumstances in which the screening of a person may be conducted in
a security controlled airport, in accordance with procedural requirements
prescribed in regulations made under section 44. Subsection 41(1) currently
authorises the screening of a person in preparation for the person boarding an
aircraft, or for the person to enter an area or zone. Item 2
provides that screening may also be conducted in order for a person to remain
in an area or zone
- paragraph 41A(1)(b)—item 3 amends
the circumstances in which a person who is at a screening point is taken to
have consented to a screening procedure that may be conducted in accordance
with regulations made under section 44. Currently, paragraph 41A(1)(b) provides
for a person’s ‘deemed consent’ to screening procedures if the person must
receive clearance in order to board an aircraft, or enter an area or
zone in a security controlled airport.[52]
Item 3 extends the application
of ‘deemed consent’ to include persons who must, as a result of the proposed
amendments in items 1 and 2 (as discussed above), receive clearance
following ‘in-area’ or ‘in-zone’ screening in order to remain in the
relevant airside area or zone
- subsection 42(1)—item 4 makes a similar
amendment to that in item 2 (discussed above) in relation to the circumstances
in which the screening of goods may be conducted in an area or a zone
within a security controlled airport, in accordance with the requirements
prescribed by regulations made under section 44. Item 4 extends this to
cover the screening of goods in order for them to remain in an area or
zone (in addition to the screening of goods in order for them to be taken
into an area or zone)
- subsection 43(1)—item 5 makes a similar
amendment to those in items 2 and 4 (discussed above) in relation to the
circumstances in which the screening of vehicles may be conducted within
an area or a zone within a security controlled airport, in accordance with the
procedural requirements prescribed by regulations made under section 44. Item
5 extends this to cover the screening of a vehicle in order to remain in
an area or zone (in addition to the screening of a vehicle in order to
enter an area or zone).
Further
requirements for the location of ‘in-area’ or ‘in-zone’ screening (item 6)
Item 6
proposes to amend certain regulation-making powers in section 44 with
respect to the procedural requirements governing screening and clearance of
persons, vehicles and goods.
Subsection 44(1) confers a broad regulation-making power with respect to the above
matters. Subsection 44(2) sets out an inclusive list of things that may
be dealt with in the Regulations.[53]
Subsection 44(3) provides that
the Aviation Regulations may authorise the Secretary of the Department to issue
written notices (including notices directed to particular persons, or classes
of persons) setting out requirements applying to them in relation to: the persons
who are authorised or required to conduct screening; the persons or things that
must not pass through a screening point; and the methods, techniques and
equipment to be used for screening.
Item 6 proposes
to amend subsection 44(3) by extending the matters in respect of which
the regulations may authorise the Secretary to issue notices to include the
places where screening may be conducted. This will provide legislative
authority for the issuing of notices setting out requirements for ‘in-area’ and
‘in-zone’ screening at security controlled airports.
Comment—broad delegation of legislative
power: safeguards and implications for parliamentary oversight
Items 1–6
do not prescribe in primary legislation the requirements for, or safeguards
applied to, ‘in-area’ or ‘in‑zone’ screening. Rather, they create a
framework for these matters to be prescribed by regulations, or by written
notices issued by the Secretary where the issuing of such notices is authorised
under the regulations.[54]
This appears to be consistent with the existing regulatory
approach taken under the Aviation Act and Aviation Regulations in
relation to the security screening and clearance of passengers boarding
aircraft, persons or vehicles entering airside areas or zones within security
controlled airports, and goods being brought into such zones. The relevant
parts of the Aviation Act create a high-level framework that authorises
the making of regulations to prescribe the substantive requirements.[55]
In his second reading speech, the
Minister indicated that the regulatory approach proposed in the Bill is
intended to ensure that there is flexibility in the implementation of ‘in-area’
and ‘in-zone’ security screening controls, so that they are adapted to the
operational circumstances of individual airports. He provided the following
illustration:
For example, for airports with few airside
tenants, it may be more efficient and cost-effective to apply screening
controls at all airside entry points. However, for airports that host large
numbers of airside tenants, each with their own access point into the airside
area, it will be more practical and cost-effective to apply screening controls
only at some access points, and to complement this with mobile screening
patrols inside the airside area.[56]
The potential inclusion of safeguards in
primary legislation
Members of the Parliament may wish to
consider whether it would be preferable to include certain safeguards in
primary legislation, rather than leaving them to regulations, or notices issued
under regulations (or potentially in the requirements of individual transport
security plans prepared under the Aviation Act).
As outlined above, the Human Rights
Statement of Compatibility accompanying the Bill identifies various safeguards
to the rights to privacy, equality and non-discrimination and work, which do
not appear to have a legislative basis in the existing provisions of the Aviation
Act or in the amendments proposed in the Bill. Consideration might
therefore be given to whether the Aviation Act should further be amended
to either make provision for those safeguards, or if greater flexibility is
desired, to require the Aviation Regulations to make provision for them.
An advantage of including safeguards in
primary legislation is that their establishment and continued existence is not
dependent, wholly or substantially, on executive discretion in exercising
delegated legislative power. The Parliament may also have a greater
opportunity to determine the content of safeguards contained in primary
legislation through the scrutiny and passage of a Bill, as compared to the
scrutiny of a legislative instrument for the purpose of potential disallowance.
On the other hand, these advantages would
need to be weighed against the legitimate need for flexibility to accommodate
the different operational circumstances at different airports, and to enable
security arrangements to be adaptable and responsive to developments in the
security environment.
The potential for the application of the
new screening arrangements to be expanded by regulation
The proposed amendments appear to be
capable of authorising a broader ‘in-area’ or ‘in-zone’ screening regime than
that announced by the Government as part of its new model for strengthened
airside security arrangements.
The extrinsic materials to the Bill
indicate that the new model announced by the Government is directed
specifically to security arrangements at Australia’s nine major international
airports.[57]
This is presumably intended to refer to the nine ‘designated
airports’ under the Aviation
Regulations, which are a particular category of ‘security controlled airport’
subject to regulation under the Aviation Act and Aviation Regulations.[58] ‘Designated airports’ are one of the seven categories of ‘security
controlled airports’ under the Aviation Regulations.[59]
However, the provisions of the Bill
appear to provide legislative authority for the establishment of such screening
arrangements at any security controlled airport. (That is, any or all of
the seven categories of security controlled airports set out in the Aviation
Regulations.)[60] This could cover a wide range of Australian airports, including
smaller international airports, or domestic airports without international
terminals.
Therefore, while the current policy
intention may be to limit the application of any regulations made under the
proposed amendments (if enacted) to a single category of security controlled
airport, it appears that the provisions of the Bill could authorise the future
extension of the scheme via regulation alone. (That is, by the making of
regulations that prescribe multiple categories of security controlled airports
which are to be subject to ‘in-area’ or ‘in-zone’ screening requirements.)
This may limit the degree of Parliamentary oversight and control of any
future executive decisions to expand the application of the scheme to more
airports.
The extrinsic materials to the Bill do
not appear to provide a justification for the proposal to enact provisions that
confer a broader legislative authority than is strictly necessary to implement
the stated policy objectives of the Bill. Members of the Parliament may
wish to seek an explanation of this matter from the Government in the course of
scrutinising or debating the Bill.
Consequences of limiting the amendments
in item 1 to airside areas and zones within airside areas
Separately to the issue discussed
immediately above, item 1 provides an important limitation on the scope
of the proposed delegation of legislative power in the Bill. In particular, the
effect of item 1 is that the Aviation Act would only provide legislative
authority for the application of ‘in-area’ and ‘in-zone’ screening arrangements
to airside areas and zones within airside areas.[61]
These areas are limited to the
operational areas of an airport—including, for example, areas accessible to
aircraft such as runways, taxiways and ramps; and areas surrounding aircraft
such as those used to embark or disembark passengers, load and unload baggage, catering
and stores, or refuel aircraft.[62]
Consequently, the Bill would not appear
to provide authority for the making of regulations purporting to expand the scheme
to cover the use of mobile ‘in-area’ or ‘in-zone’ screening procedures in
relation to persons who are within the ‘sterile areas’ of passenger
terminals, as a condition of their remaining in the area. (For example,
departure lounges, including food and retail concessions located within those
areas.)
This reflects that the Aviation
Regulations have designated ‘sterile
areas’ as a type of ‘landside security zone’ within the ‘landside area’ of a
security controlled airport.[63]
While ‘sterile areas’ are sometimes referred to informally, or
in different contexts, as being on the ‘airside’ of a terminal, this is not
their legal status under the Aviation Act. Accordingly, the apparent
effect of the Bill is that persons who work at food or retail concessions
within a sterile area, and passengers or other persons within a sterile area,
would remain subject to the existing screening requirements for the purpose of gaining
entry to that area, and for persons boarding an aircraft.[64]
A proposal to expand mobile, randomised ‘in-area’
or ‘in-zone’ screening arrangements to cover sterile areas would separately
require amendments to section 38 of the Aviation Act (which prescribes
the purposes for which regulations may be made in relation to the control of
landside security zones). Similarly, any proposal to extend such screening
requirements to the ‘landside area’ other than the landside security zone (for
example, baggage carousels in an arrivals hall, or check-in counters) would
require amendments to section 37 of the Aviation Act (which prescribes
the purposes for which regulations may be made in relation to the control of
landside areas).
Power to create offences by regulation in
relation to contraventions of the new screening requirements
Subsections 35(3), 36(3), 36A(3) and
44(4) of the Aviation Act authorise the
creation of offences by regulation, in respect of persons who fail to comply
with the requirements prescribed in the Aviation Regulations for the control of
airside areas and zones within security controlled airports, including
screening and clearance requirements.[65]
These existing provisions would appear to
provide authority for the creation of new offences by regulation (and the
extension of the existing offences made under the Aviation Regulations) with
respect to persons who contravene the ‘in-area’ and ‘in-zone’ screening
requirements proposed to be established by the Bill.
The extrinsic materials to the Bill do
not indicate whether the Government intends to amend the Aviation Regulations
to create offences for the contravention of the new in ‘in-area’ and ‘in-zone’
screening requirements. Members of the Parliament may wish to seek
clarification of this matter in the course of scrutinising and debating the
Bill. If the Bill is passed, the inclusion of any new offences and penalties in
future amending regulations may warrant scrutiny.[66]
In considering the need for the creation
of new or extended offences by regulation, it should also be noted that some
offences of general application in the Aviation Act may apply to persons
who are subject to the enhanced screening requirements proposed in the Bill.
These include offences for the possession of weapons and prohibited items in
airside areas,[67] and causing disruption or interference in relation to a security
controlled airport.[68]
Increased administrative flexibility—expanded
powers of delegation (items 7 and 8)
Items 7 and 8 propose to expand the powers of delegation in the Aviation Act and
the Maritime Act to allow the Secretary of the Department to delegate
several of his or her statutory powers and functions under each Act to any Australian
Public Service (APS) employee in the Department, in the absence of statutory
requirements regarding the delegate’s seniority or qualifications to exercise
the power or perform the function delegated.
Existing powers of delegation under the
Aviation Act and the Maritime Act
The Aviation Act and the Maritime
Act authorise the Secretary to perform a wide range of functions and
exercise a wide range of powers.[69] The Acts also authorise the Secretary to delegate any or all of his
or her powers and functions to designated officials.[70] These officials are generally
Senior Executive Service (SES) employees[71] of the Department or of other Commonwealth security agencies.[72]
The Secretary may also delegate several
of his or her functions and powers to APS employees[73] in the Department who hold an Executive Level 2 (EL2) or equivalent
position.[74] This power of delegation applies to all of the Secretary’s powers
or functions except for his or her powers to extend certain security directions
in extraordinary circumstances (‘special security directions’); and to take
certain enforcement action against industry participants who are alleged to
have contravened their statutory obligation (the issuing of enforcement
notices, and in the case of the Aviation Act, the
acceptance and enforcement of undertakings).[75]
The effect of the existing provisions is
that the Secretary’s powers of delegation are limited to delegates who hold a
senior management position within the Department or a Commonwealth security
agency, or a mid-level management position within the Department.
Amendment of Secretary’s powers of
delegation in the Aviation Act (item 7)
Item 7
proposes to amend certain powers of delegation in subsection 127(2) of
the Aviation Act. Subsection 127(2) currently provides that the
Secretary may, in writing, delegate any or all of his or her powers under the
Act to an APS employee in the Department who holds an EL2 level position or an
equivalent position (on either a substantive or an acting basis). However,
paragraphs 127(2)(a) and (b) provide that this power of delegation does not
apply to:
- the Secretary’s powers and functions under subsection 71(1), which authorise the Secretary to extend the duration of ‘special
security directions’ made by him or her under section 67 to implement
additional security measures beyond those otherwise required under the Aviation Act
and
- the Secretary’s enforcement powers and functions under Division 3 or
3A of Part 8, which authorise the Secretary to make
enforcement orders, and accept and enforce undertakings from regulated entities
in relation to alleged contraventions of the Aviation Act.
Item 7
proposes to remove the requirement that the Departmental employees to whom the
Secretary may delegate powers or functions must hold an EL2 position. This
amendment would authorise the Secretary to delegate a broad range of powers and
functions to an APS employee in the Department of any classification,
including:
- powers in relation to transport security programs, including
approval and cancellation (Part 2, Division 5)
- the power to designate an airport as a ‘security controlled airport’,
and to establish areas or zones within the airside and landside area of an
airport (Part 3)
- the power to issue written notices in relation to the clearance of
persons, goods, vehicles and cargo
(Part 4, Division 2)
- the power to provide written permission to persons, including
classes of persons, to carry or possess a weapon or a prohibited item in secure
areas and zones within airports, through screening points, or on aircraft. Such
permission constitutes an exception to criminal offences in the Aviation Act
in relation to controlled weapons and prohibited items (Part 4,
Divisions 3 and 4)
- the power to make and revoke ‘special security directions’ to
address circumstances that may arise which require additional security measures
beyond those otherwise required under the Aviation Act (section 67)
- the power to issue ‘incident control directions’ to aircraft
operators or pilots in command of Australian aircraft, or non-Australian
aircraft in Australian territory, requiring them to take specified action in
relation to the aircraft (section 74D)
- security status checking powers in relation to applicants for, and
holders of, certain authorisations.
These powers include the power to make a determination that a person has an
‘adverse aviation security status’ which means that any such authorisation the
person has applied for will be refused, and any extant authorisation will be cancelled
(section 74G)
- the power to appoint aviation security inspectors (Part 5,
Division 2)
- the power to require the provision of security compliance and
aviation security information
(Part 7, Divisions 2 and 3)
- the power to apply to the Federal Court seeking an injunction
against a person who is engaging in, or proposing to engage in, conduct in
contravention of the Aviation Act (Part 8, Division 4) and
- the power to make various legislative instruments, including
determinations of matters relating to the examination and clearing of cargo (section
44C) and the requirements for aviation incident security reporting (section
107).
- Notwithstanding the broad types of powers
that may be delegated, and the broad class of potential delegates, the Aviation
Act provides some safeguards in relation to the power of delegation
conferred by subsection 127(2):
- all powers of delegation conferred upon the Secretary under section 127 are discretionary. It seems likely that the
Secretary would, before delegating a particular function or power, take steps to
satisfy himself or herself that it is appropriate to make a delegation to a
particular Departmental employee or class of Departmental employees[76]
- subsection 127(3) provides that a delegate who is exercising any
delegated functions or powers must comply with any directions issued by the
Secretary and
- any delegates under subsection 127(2) could not sub-delegate
their delegated powers or functions.[77]
The express power of sub-delegation in section 127A only extends to the heads
of national security agencies to whom the Secretary has delegated powers or
functions under paragraph 127(1)(b).
Amendment of Secretary’s powers of
delegation in the Maritime Act (item 8)
Item 8
proposes to amend the power of delegation in subsection 202(2) of the Maritime
Act in a similar way to the proposed amendments to the Aviation Act in
item 7 (discussed above).
Subsection 202(2) of the Maritime Act currently
provides that the Secretary may, in writing, delegate any or all of his or her
powers under the Act to an APS employee who holds, or is acting in, an EL2 or
equivalent position in the Department. (This is subject to the exclusion of the
Secretary’s enforcement powers under Division 3 of Part 11, under which
the Secretary may issue an ‘enforcement order’ to maritime industry
participants, where the Secretary is of the opinion that the participant has
contravened the Act.)
Item 8
proposes to remove the requirement that the Departmental employees to whom the
Secretary may delegate powers or functions must hold an EL2 or equivalent
position. Accordingly, this amendment would also authorise the Secretary to
delegate a broad range of powers and functions under the Maritime Act to
any APS employee in the Department. These functions and powers are similar to
those under the Aviation Act (listed above). They include:
- the power to declare ‘maritime security levels’ (Part 2, Division
2)
- the power to give security directions (Part 2, Division 4)
- powers in relation to maritime security, ship security and offshore
security plans, including approval and cancellation (Parts 3–5C)
- powers in relation to the establishment of maritime security zones (Part
6)
- powers in relation to screening and clearing of persons, goods,
vehicles and vessels (Part 7, Division 2)
- the power to grant written permission to persons, including classes
of persons, to carry or possess a weapon or a prohibited item in a maritime
security zone, through a screening point or on board certain ships.
Such permission constitutes an exception to criminal offences in the Maritime
Act in relation to controlled weapons and prohibited items (Part 7,
Divisions 3 and 4)
- the power to appoint certain officials to exercise power and perform
functions (Part 8, Divisions 2, 2A and 3)
- powers to require the provision of security compliance information (Part
10, Division 2)
- enforcement powers, including the power to issue infringement
notices, and the power to make an application to the court for an injunction to
restrain an alleged contravention by an industry participant
(Part 11, Divisions 2 and 5).
The Maritime Act contains similar
safeguards to those in the Aviation Act (outlined above) in relation to:
- the discretionary nature of the Secretary’s power of delegation in
subsection 202(2)
- the obligation imposed on delegates under subsection 202(3) to
comply with any directions issued by the Secretary and
- the absence of a power of sub-delegation by APS employees to whom
the Secretary has delegated functions or powers under subsection 202(2).[78]
Rationale for the proposed amendments
In his second reading speech on the Bill,
the Minister stated that the proposed amendments in items 7 and 8 are
considered necessary to ‘give the Department greater administrative flexibility
and capacity to manage predicted industry growth, particularly in a changing
security environment’.[79]
The Explanatory Memorandum further states
that the proposed amendments are intended to improve the capacity of the
Department ‘to process increased numbers of regulatory submissions from industry
participants within statutory timeframes and to adapt administrative practices
to changes in the security environment’.[80]
Comment—broad
power of delegation: powers delegated and classes of delegates
The extrinsic materials to the Bill
identify a general need for administrative flexibility in view of the
regulatory and security environment in which the Aviation Act and the Maritime
Act operate. However, the extrinsic materials do not explain why the
identified need for administrative flexibility is considered to warrant the
absence of any statutory requirements in relation to the seniority,
qualifications or skills of the delegate, beyond his or her employment in the
Department.
The extrinsic materials also do not
include a specific justification for each type of statutory power and function
conferred upon the Secretary that could be delegated to any APS employee in the
Department if items 7 and 8 were enacted.
Adequacy of safeguards against
inappropriate delegations
The removal of a minimum classification
(or any other mandatory qualifications) for delegates who are Departmental
employees under subsection 127(2) of the Aviation Act and subsection
202(2) of the Maritime Act calls into question whether there are
adequate legal safeguards to prevent the risk of inappropriate delegations.
(For example, delegations to Departmental employees without appropriate
seniority or the requisite technical skills or experience to exercise the
delegated powers or perform the delegated functions.)
The Senate Standing Committee for the
Scrutiny of Bills has previously expressed a general preference for statutory
limitations on both the types of powers able to be delegated, and the
categories of persons to whom powers may be delegated—stating in relation to
the latter issue that ‘those to whom powers are delegated should be confined to
the holders of nominated offices, or to members of the Senior Executive
Service, or to persons holding specified qualifications’.[81]
The Australian Government Administrative
Law Policy Guide also notes the need for rigorous justification of
legislative proposals involving wide delegations of power, and states that ‘it
may be appropriate for more junior officers to make decisions [involving] a
limited exercise of discretion, or under provisions which will give rise to a
high volume of decisions’.[82] Items 7 and 8 of the Bill do not appear to limit the Secretary’s
power to make delegations to junior Departmental staff to these circumstances.
The exercise of several powers capable of
being delegated to any APS employee in the Department could impact
significantly on the legal rights, obligations and liabilities of regulated
entities, and may have significant security and financial implications. (For
example, powers to designate an airport as a ‘security
controlled airport’; grant permission to persons to carry or possess weapons or
prohibited items and thereby exempt such persons from criminal liability for
carrying or possessing them; issue security and incident control directions;
and take certain kinds of enforcement action against persons alleged to have
contravened the Act, including applying to a court for an injunction to
restrain certain activities.)
Such powers can already be delegated to
departmental staff holding SES and EL2 positions.[83] It is debatable whether the stated, generalised need for greater
administrative flexibility is a persuasive justification for the proposed
amendments, to the extent that they would authorise the Secretary to delegate
specific powers of considerable legal and practical significance to Executive
Level 1 (EL1) and APS-level staff.
The extrinsic materials to the Bill
would, ideally, have addressed the above matters, and included a specific
justification for each type of power and function that could be delegated to an
APS employee in the Department under the proposed amendments in items 7 and 8.
Members of the Parliament may wish to seek further information from the
Government about these matters in the course of scrutinising or debating the
Bill.
Members of the Parliament may also wish
to consider moving or supporting amendments to items 7 and 8, so that the
expanded powers of delegation are framed in a more targeted way. Amendments of
this kind might, for example, seek to limit the types of powers that the
Secretary may delegate to all APS employees in the Department, and require that
the classes of delegates for some powers must remain limited to employees of an
EL2 or higher classification.
A more nuanced approach along these lines
could target the specific functions and powers which are said to require
increased administrative flexibility, and which are demonstrably appropriate to
be delegated to junior officers in the Department, while providing a legislative
safeguard against the risk of inappropriate delegations.
Concluding comments
The proposed amendments in the Bill appear
to be directed to reasonable public policy objectives—namely:
- to strengthen airside security arrangements to better address the potential
threat presented by ‘trusted insiders’, in
line with Australia’s international aviation security obligations and
developments in the global security environment (items 1–6) and
- to promote greater flexibility and efficiency in the administration of
the Aviation Act and Maritime Act by the Department, in relation to the performance of statutory functions and the
exercise of statutory powers, in view of current and anticipated industry
growth and security related developments (items 7–8).
However, members of the Parliament may
wish to consider three issues in the course of scrutinising and debating
the Bill. These issues arise principally from the proposed delegations of
power, both legislative and administrative.
In particular, the measures in the Bill propose
to establish a framework under the Aviation Act that authorises the
making of regulations (and the issuing of statutory notices) that prescribe the
detailed requirements for enhanced airside security measures. They also propose
to authorise the delegation of statutory functions and powers conferred upon
the Secretary of the Department under the Aviation Act and the Maritime Act
to a wider class of delegates than is currently permitted.
Accordingly, if the Bill is enacted in
its present form, the efficacy of the proposed measures in achieving the desired
policy objectives—and in adhering to human rights requirements and established
legal policy standards—will depend significantly upon the exercise of delegated
powers.
Adequacy of justifications for, and legal
safeguards applied to, broad delegations of power
In relation to the first issue,
members of the Parliament may wish to consider the adequacy (or otherwise) of the
justifications provided for the breadth of the powers proposed to be delegated;
and the adequacy (or otherwise) of safeguards contained in primary legislation.
In particular, consideration might be given to the following matters:
- in relation to items 1–6—whether the Aviation
Act could prescribe, or require the Aviation Regulations to include
provision for, the types of safeguards referred to in the Statement of
Compatibility in relation to privacy, non-discrimination and the right to work.
This could ensure that these protections have a legislative basis, rather than
being dependent upon executive discretion for their establishment and continued
existence and
- in relation to items 7–8—whether there
is an adequate justification for the broad power of delegation proposed to be
conferred on the Secretary of the Department, authorising him or her to
delegate a wide range of functions and powers under the Aviation Act and
the Maritime Act to any APS employee in the Department, in the absence
of any statutory requirements regarding the delegate’s seniority or
qualifications. Consideration might also be given to whether the power to
delegate to more junior Departmental employees could be further targeted to
specific powers that are demonstrably appropriate for junior employees to
exercise. This could provide a legislative safeguard against potential
inappropriate delegations.
Further information about the new airside
security model
Secondly,
members of the Parliament may wish to seek further particulars from the
Government about its model for strengthening airside security arrangements,
as referred to in the Minister’s second reading speech. This may aid the
Parliament’s visibility and understanding of the broader regulatory and
operational context in which the proposed amendments will apply. It may also
provide clarity about the Government’s intended approach to the implementation
of its model, particularly the identification of those aspects which are to be
implemented through regulatory measures (new or existing), and those aspects
which are to be implemented administratively.
Stakeholder consultations on the Bill and
the new security model
Thirdly,
members of the Parliament may wish to consider seeking further information from
the Government about the nature and outcomes of consultation with aviation
industry participants on the measures in the Bill. Members of the Parliament
might also wish to hear directly from key aviation industry participants
(including major airport and airline operators and employee representatives) in
advance of debating and voting upon the Bill. This may include
consultations to gauge the industry’s views about the anticipated financial and
regulatory burden on airports and airline operators, and the impacts on persons
who would be subject to the enhanced screening measures (such as employees, contractors
and visitors who work within the secure airside areas at major international
airports). Such consultations might provide an assurance about the
appropriateness of the regulatory approach proposed in the Bill, or
alternatively may provide an opportunity for the Parliament to pro‑actively
address (as necessary) any issues of concern identified by industry
participants before the new framework legislation is enacted and any regulations
are made.
[1]. Parliament
of Australia, ‘Transport Security Legislation Amendment Bill 2016 homepage’,
Australian Parliament website.
[2]. D
Chester, ‘Second
reading speech: Transport Security Legislation Amendment Bill 2016’, House
of Representatives, Debates, 1 December 2016, p. 5138. See
also: D Chester (Minister for Infrastructure and Transport), New
measures to strengthen airport security, media release, 1 December
2016.
[3]. Aviation Act,
subsections 3(1) and 3(2).
[4]. Convention on International Civil Aviation, done in
Chicago, 7 December 1944, [1957] ATS 5 (entered into force for Australia and
generally 7 December 1944).
[5]. Aviation Act,
subsection 3(4).
[6]. International
Civil Aviation Organization (ICAO), ‘About ICAO’, ICAO
website.
[7]. International
Convention for the Safety of Life at Sea, done in London 1 November
1974, [1983] ATS 22 (entered into force for Australia 17 November 1983).
[8]. International
Maritime Organization (IMO), ‘SOLAS
XI-2 and the ISPS Code’, IMO website.
[9]. Maritime Act,
section 3.
[10]. Senate
Standing Committee for the Selection of Bills, Report,
10, 2016, The Senate, 1 December 2016, p. 4.
[11]. Inquiry
homepage, Senate Rural and Regional Affairs and Transport References
Committee, ‘Airport and aviation security’. (This inquiry was
re-referred on 15 September 2016, following the lapsing of the original
inquiry, which was referred on 4 December 2014, due to the dissolution of
the 44th Parliament for the general election.)
[12]. See, for
example: Australian Security Intelligence Organisation (ASIO), Submission to the Senate Rural and
Regional Affairs and Transport References Committee, Inquiry into Airport
and aviation security, January 2015, especially pp. 3–4.
[13]. Chester, ‘Second
reading speech: Transport Security Legislation Amendment Bill 2016’, op. cit.,
p. 5138.
[14]. Parliament
of Australia, ‘Transport Security Amendment (Serious or Organised Crime) Bill 2016
homepage’, Australian Parliament website.
[15]. Australian Services Union, Submission to the Senate Standing
Committee on Rural and Regional Affairs and Transport Legislation, Inquiry
into the Transport Security Amendment (Serious or Organised Crime) Bill 2016
[Provisions], March 2016, Attachment 1, p. 3.
[16]. Ibid.
[17]. Ibid., pp.
3–4.
[18]. Explanatory
Memorandum, Transport Security Legislation Amendment Bill 2016, p. 3.
[19]. Ibid.
[20]. Ibid.
[21]. Ibid. See
also: Chester, ‘Second reading speech: Transport Security Legislation Amendment
Bill 2016’, op. cit., pp. 5138–5139.
[22]. Ibid. Current Australian Government policy is that every policy proposal
designed to introduce or abolish regulation must be accompanied by a Regulation
Impact Statement (RIS), which is designed to assist the government in
identifying regulatory options with the highest net benefit.
The RIS is required to document the costs, benefits and impacts of regulatory
proposals (including the identification of alternative approaches and
consultation) and detail implementation and evaluation plans. See: Department
of the Prime Minister and Cabinet (PM&C), The Australian Government guide to regulation, PM&C, Canberra, 2014.
[23]. The
Statement of Compatibility with Human Rights can be found at page 4 of the Explanatory
Memorandum to the Bill.
[24]. International
Covenant on Civil and Political Rights, done in New York on 16 December
1966, [1980] ATS 23 (entered into force for Australia (except Art. 41) on 13
November 1980; Art. 41 came into force for Australia on 28 January 1994).
[25]. International
Covenant on Economic, Social and Cultural Rights, done in New York on
16 December 1966, [1976] ATS 5 (entered into force for Australia on
10 March 1976).
[26]. Explanatory
Memorandum, Transport Security Legislation Amendment Bill 2016, pp. 4–5.
[27]. Ibid.
[28]. Ibid.,
p. 5.
[29]. Ibid.,
p. 4.
[30]. Aviation
Act, Part 5, Division 5 (frisk searches); paragraph
44(3A)(c) and subsections 44(3B)-(3C) (body scanners).
[31]. A privacy
impact assessment (PIA) is a written assessment of an activity
or function that identifies the anticipated impact on the privacy of
individuals, and sets out recommendations for managing, minimising or
eliminating that impact. A PIA can be undertaken voluntarily, or on the
direction of the Privacy Commissioner: Privacy
Act 1988, section 33D. See also: Office of the
Australian Information Commissioner (OAIC), ‘Guide to undertaking privacy impact assessments’, OAIC website, May 2014.
[32]. M O’Neill, ‘New security laws being introduced without proper impact assessments’, Lateline, transcript, Australian Broadcasting Corporation
(ABC), 24 August 2015; R Clarke, ‘Privacy impact assessments as a control mechanism for Australian counter-terrorism
initiatives’ Computer Law & Security Review,
32, June 2016, pp. 403–418, especially pp. 410–414 (case studies
on the limited use of privacy impact assessments for national security related
Bills) and pp. 415–416 (critique of parliamentary scrutiny).
[33]. Explanatory
Memorandum, Transport Security Legislation Amendment Bill 2016, p. 5.
[34]. For example,
under Commonwealth anti-discrimination legislation (Racial
Discrimination Act 1975, section 9; Sex Discrimination
Act 1984, sections 5–7A and Part II; Disability
Discrimination Act 1992, sections 5–8 and Part 2; and Age Discrimination
Act 2004, Parts 3 and 4) or applicable anti-discrimination
legislation in the state or territory in which the airport is located.
(However, there is inconsistency in the coverage of discrimination on the
grounds of religion, which is not expressly covered by the Commonwealth Racial
Discrimination Act. See further: T Soutphommasane, T Lim and A Nelson,
Freedom from discrimination: report on the 40th anniversary of the
Racial Discrimination Act,
National Consultation Report, Australian Human Rights
Commission, Sydney, 2015, Chapter 8—race and religion.)
[35]. Aviation Regulations, Regulation 3.16D, made under sections
36 and 44 of the Aviation Act. The random screening requirements apply
to ‘enhanced inspection areas’ (EIAs) in the airside areas of Adelaide,
Brisbane, Cairns, Canberra, Coolangatta, Darwin, Melbourne, Perth and Sydney
airports. They require the randomised screening for weapons of persons,
vehicles or goods within an EIA during a ‘traffic period’ (which is a period
that begins two hours before the scheduled time of arrival, and ends two hours
after the actual departure time, of a scheduled air service that operates to or
from the airport).
[36]. Explanatory
Memorandum, Transport Security Legislation Amendment Bill 2016, p. 5.
[37]. While the Aviation Regulations
prescribe training requirements and mandatory qualifications for certain
officials exercising powers and performing functions under the Aviation Act (such
as screening officers in regulation 5.06), the Regulations do not mandate
security awareness training for all persons working at a security controlled
airport. In addition, the Aviation Regulations prescribe mandatory requirements
for the transport security plans of all airport and aircraft operators,
including certain requirements for managing security, such as
organisational structures and security management arrangements, and the roles
and responsibilities of security staff and other staff with security duties or
responsibilities (per regulations 2.11 and 2.29). While these Regulations
could potentially support the provision of security awareness training as part
of an operator’s security management strategy, they do not appear to mandate
the delivery of such training as part of all transport security plans.
[38]. Chester, ‘Second
reading speech: Transport Security Legislation Amendment Bill 2016’, op. cit.,
p. 5138.
[39]. Ibid.
[40]. T Goldsworthy, ‘Just how safe are Australia’s airports?’,
The Conversation, 1 July 2016. See also: S
Hewitt, ‘Brussels attacks: a throwback to pre-9/11 terrorism’, The Conversation, 23 March 2016; and R Olding, ‘Airports warned of “terrorist infiltration”’, Sydney Morning Herald, 17 November 2016, p. 1.
[41]. ASIO, Submission to the Senate Rural and
Regional Affairs and Transport References Committee, op. cit., p. 2.
[42]. Ibid., p. 3.
[43]. See, for example: Australian Criminal Intelligence Commission
(ACIC), ‘Transporting illicit goods: crime in the aviation sector’, ACIC website, last updated 30 June 2016. See also:
Parliamentary Joint Committee on Law Enforcement, Inquiry into the adequacy of aviation and maritime security measures
to combat serious and organised crime, The
Senate, Canberra, June 2011, Chapter 2.
[44]. Subsection
28(2) defines a ‘security controlled airport’ as an airport (or part of an
airport) which the Secretary of the Department has designated
as a ‘security controlled airport’ by a notice published in the Gazette. The
designation of an airport as a ‘security controlled airport’ is significant
because it triggers the application of the regulatory requirements in the Aviation
Act. Subsection 28(6) further provides
that the Secretary may assign a category to a particular security controlled
airport (with the categories prescribed by the Aviation
Regulations, which are made under section 28A
of the Aviation Act). Regulation 3.01B prescribes seven categories
of security controlled airports, generally by reference to the existence of
scheduled or chartered commercial services to or from the airport, the maximum
weight of aircraft, and the average annual number of fare paying passengers.
Regulation 3.01C also sets out several decision-making criteria the Secretary may
consider in assigning a category to a security controlled airport. The
assignment of a category to a security controlled airport is significant because
it triggers the application of several ‘category specific’ regulatory
requirements in the Aviation Act and Aviation Regulations.
[45]. Under section 29, the Secretary must designate an ‘airside
area’ and a ‘landside area’ within a security controlled airport
prescribed under subsection 28(2). Subsection 29(2) provides that
the purpose of an ‘airside area’ is to control access to operational
areas of a security controlled airport. Subsection 29(3) provides that
any other area within the boundaries of the security controlled airport is the ‘landside area’. Sections 30–34 provide for the
establishment (via written notice issued by the Secretary) of different types
of zones within the ‘airside’ and ‘landside’ areas of a security controlled
airport. The Aviation Regulations (regulations 3.01–3.02B) further prescribe different types of
airside and landside security and event zones. The
designation of ‘airside’ and ‘landside’ areas (and specific zones within each
area) is significant because it triggers the application of certain regulatory
requirements in the Aviation Act which are specific to those areas or
zones.
[46]. Explanatory
Memorandum, Transport Security Legislation Amendment Bill 2016, p. 2.
[47]. The
term ‘airside area’ is defined in subsection 29(2) (as summarised above).
[48]. The
term ‘airside security zone’ is defined in subsection 30(1) as being a
zone within the airside area of a security controlled airport that is
designated by a written notice issued by the Secretary. Subsection 30(3)
explains that the purpose of designating ‘airside security
zones’ is to subject these zones to ‘stricter or more specialised controls than
those applying generally to the airside area’. (See also, Aviation Regulations, regulation 3.01, which prescribes specific types of airside
security zones which may be designated by the Secretary.)
[49]. The term
‘airside event zone’ is defined in subsection 31A(1) as being a zone within the airside area of a
security controlled airport that is designated by written notice issued by the
Secretary. Subsection 31A(5) explains that the general purpose of
designating ‘airside event zones’ is to subject these zones to controls, ‘some
or all of which are different from those applying generally to the airside area’.
(See also, Aviation
Regulations, regulation 3.02A, which prescribes specific
types of airside event zones which may be designated by the Secretary.)
[50]. Undergoing ‘screening’ (or being granted an exemption from a
requirement to undergo screening) is generally a requirement for the person,
vehicle or goods to receive ‘clearance’ which authorises the person,
vehicle or goods to pass through a screening point. Subsections 41(1), 42(1)
and 43(1) provide that a person, goods or a vehicle is ‘screened’
when the person, the goods or the vehicle undergoes screening in accordance with
regulations made under section 44 in preparation for entering an area or zone
within a security controlled airport, or for boarding an aircraft.
[51]. Subsections 41(2), 42(2) and 43(2)
provide that a person, goods or a vehicle will ‘receive clearance’ if,
after being screened, the person, goods or vehicle is or are allowed to pass
through the screening point; or if the person, goods or vehicle is or are
permitted to pass through the screening point without being screened; or if the
person, goods or vehicle is or are permitted to enter other than via a
screening point. (Permission to pass through a screening point without being
screened, or to enter an area or zone other than via a screening point, may be
granted in the Aviation Regulations or in a written notice issued by the
Secretary).
[52]. Subsection 41A(2) provides that the
‘deemed consent’ provision in subsection 41A(1) does not apply to a
screening procedure that is a frisk search, or if the person refuses to undergo
a screening procedure. In the case of a frisk search, the person’s consent must
be separately obtained, and if the person’s refusal to consent means that it is
not possible to screen the person properly, he or she must not be permitted to
pass through the screening point and board an aircraft, or enter an area or
zone within a security controlled airport. In the case of a person who refuses
to undergo a screening procedure other than a frisk search, he or she cannot
receive clearance to pass through the screening point: see Part 5, Division
5.
[53]. These include: the persons who are authorised to conduct screening;
the persons or things that must not pass through a screening point; the things
to be detected by screening, and procedures for dealing with such things if
detected; the circumstances in which persons, goods, baggage and vehicles must
be screened; procedural details in relation to screening (including places,
methods, techniques and equipment); and supervision and control measures to
ensure that cleared persons, goods and vehicles remain cleared. See: Aviation
Act, paragraphs 44(2)(a)–(l).
[54]. However, it should be acknowledged that the proposed enhancements to
‘in-area’ and ‘in-zone’ screening measures will be subject to the general
privacy related protections in the Aviation Act in relation to the use
of body scanners (subsections 44(3B) and 44(3C)) and the conduct of frisk searches, or
searches which require the removal of a person’s clothing in order to properly
screen the person (Part 5, Division 5).
[55]. Aviation
Act, Part 3, Division 3 (control of airside areas and zones) and
Part 4, Division 2 (screening and clearing).
[56]. Chester, ‘Second
reading speech: Transport Security Legislation Amendment Bill 2016’, op. cit.,
pp. 5138–5139.
[57]. Ibid., p.
5138; Explanatory
Memorandum, Transport Security Legislation Amendment Bill 2016, p. 3.
[58]. Aviation Regulations,
Regulation 1.03 (definition of ‘designated airports’) and Regulation
3.01B (seven categories of security controlled airports, the first of which is
‘designated airports’). The nine ‘designated airports’ listed in Regulation
1.03 are Adelaide, Brisbane, Cairns, Canberra, Coolangatta, Darwin, Melbourne,
Perth and Sydney airports.
[59]. Aviation Regulations,
Regulation 3.01B, made under section 28A of the Aviation Act. Other
than the first category of security controlled airport (‘designated airports’,
which covers the nine major international airports), Regulation 3.01B
generally prescribes the categories by reference to the existence of
‘regular public transport operations’ (scheduled commercial services) or
‘open charter operations’ (commercial charter services available to the
airport) to or from the airport, the maximum weight of
aircraft, and the average annual number of ‘revenue passengers’ (fare-paying
passengers) departing the airport.
[60]. That is, all of the provisions of the Aviation
Act as amended by items 1–6 are expressed as applying to an area or zone
within a security controlled airport (and in the case of the provisions of Part
3, Division 3 as amended by item 1, an area or zone within the airside area of
a security controlled airport) without distinguishing between categories of
security controlled airports, reflecting that these categories are prescribed
by regulations made under section 28A.
[61]. This is made
explicit in item 1 which amends the regulation-making power to prescribe
requirements for the control of airside areas, airside
security zones and airside event zones in Part 3, Division 3 (sections 35, 36
and 36A) of the Aviation
Act. The Bill does not propose to amend Part 3,
Division 4 (sections 37, 38 and 38A), which creates a regulation-making power
to prescribe requirements for the control of landside areas, landside security
zones and landside event zones. Although the regulation-making powers in Part 4
with respect to the requirements of screening and clearance (per sections 41–44,
as amended by items 2–6 of the Bill) apply to all areas and zones
within a security controlled airport (both airside and landside), this power is
subject to the limitations imposed by Part 3 upon the general matters in
relation to which the regulations may be made for particular areas and zones
within security controlled airports. Accordingly, although items 2–6 of
the Bill will amend the screening and clearance requirements in Part 4
(sections 41–44) to authorise the making of regulations with respect to
screening and clearance requirements for persons, vehicles and goods to
remain in an area or a zone of a security controlled airport, there will be
no legislative authority under Part 3, Division 4 (sections 37, 38 and 38A) to
make regulations for the purpose of a person, vehicle or goods remaining in a landside
area or a zone within a landside area. Rather, paragraph (2)(f) of each of
sections 37, 38 and 38A will remain expressly limited to authorising the making
of regulations that prescribe requirements for the screening of people,
vehicles and goods for entry to a landside area or an area or zone
within the landside area.
[62]. Aviation Act,
subsection 29(2) (purpose of airside area).
[63]. Aviation Regulations,
paragraph 3.02(a).
[64]. Aviation Act,
section 38 (regulation-making power—requirements for landside security
zones); Aviation Regulations, regulation 3.20
(physical security requirements for sterile areas, made under section 38
of the Aviation Act); Aviation Act, Part 4 (regulation-making powers with respect to other security
measures, including screening and clearing); and Aviation
Regulations, Part 4 (requirements in relation
to screening, weapons and prohibited items, made under Part 4 of the Aviation
Act).
[65]. The existing offences in the Aviation
Regulations include:
offences relating to unauthorised entry to airside areas, remaining in airside
areas after being asked to leave (Regulation 3.17); specific offences
for the contravention of requirements for the operation of enhanced inspection
areas within airside areas, which apply to aviation industry participants
responsible for operating these areas (Regulations 3.17A-3.17C); and
offences applying to persons who are responsible for conducting screening,
including failure to comply with the requirements of a notice issued by the
Secretary which specifies screening methods, techniques and equipment, and the
persons or things that must not pass through a screening point (Regulation
4.17).
[66]. The Senate Standing Committee for the Scrutiny of Bills has
previously expressed concerns about legislative proposals to allow serious
criminal offences to be created or modified by regulation, as a potential
inappropriate delegation of legislative power. The Committee, as constituted in
the 40th Parliament, expressed such concern in relation to the originating
Bills to the Aviation Act and the Maritime Act: Senate Standing
Committee for the Scrutiny of Bills, The work of the committee during the 40th Parliament, February
2002–August 2004, The Senate, Canberra,
June 2008, Chapter 5 especially at [5.15].
[67]. Aviation Act,
sections 46 and 54 (offences for the unauthorised possession
of weapon or a prohibited item), and sections 47 and 55 (offences for carrying
a weapon or prohibited item through a screening point without authorisation).
[68]. Aviation Act,
section 38B.
[69]. The relevant powers and functions are outlined below in the discussion of items
7 and 8.
In brief, they include: powers to declare certain security related areas or
zones in airports or maritime areas; powers to issue directions; powers to
approve or cancel security plans; powers to exempt certain persons, vehicles,
vessels or goods from undergoing security screening requirements; powers to
permit persons to carry or possess weapons or prohibited items (and therefore
provide an immunity from criminal offences); powers to appoint certain
officials to perform functions under the legislation; powers to require the
provision of certain security and compliance-related information; and various
enforcement powers in relation to alleged contraventions by industry participants.
[70]. Aviation Act,
section 127; Maritime
Act, section 202.
[71]. Acts Interpretation
Act 1901, section 2B contains a general definition of the term ‘SES
employee’. It is defined by reference to the meaning of that term in the Public Service
Act 1999, section 34 of which defines ‘SES employees’
as ‘those APS employees who are classified as SES employees under the Classification
Rules’ (which are made by the Public Service
Commissioner under section 23 of the Public Service Act).
[72]. Aviation Act,
subsection 127(1); Maritime
Act, subsection 202(1). These provisions permit the delegation
to SES employees of the Attorney‑General’s Department, and the head of an
agency that carries on national security activities. The Aviation Act
also permits the delegation of the some powers and functions
under Part 4, Division 9 (security status checking) to SES employees of the
Civil Aviation Safety Authority: subsection 127(2A). The Maritime Act also
permits the delegation of some powers and functions to persons engaged by
‘recognised security organisations’ (which are determined by the Secretary):
sections 88 and 100ZE.
[73]. Acts Interpretation
Act 1901, section 2B contains a general definition of the term ‘APS
employee’. It is defined by reference to the meaning of that term in the Public Service Act
1999, section 7 of which defines ‘APS employee’ as a person who is
engaged under section 22 (being the engagement of a person by an agency head on
behalf of the Commonwealth for the purposes of an agency); or under section 72
(being the engagement of a person as an APS employee as a consequence of
machinery of government changes—for example, the abolition of a statutory agency
which employed staff under its governing legislation, and the transfer of its
functions and staff to another agency or department that employs staff under
the Public Service Act).
[74]. Aviation Act,
subsection 127(2); Maritime
Act, subsection 202(2). For an explanation of the APS
employment classification structure, made under the Classification
Rules, see: Australian Public Service Commission
(APSC), Australian Public Service: classification guide, APSC website, last updated 19 November 2014; and APSC, Australian Public Service: work level standards: APS level and
executive level classifications, APSC website,
last updated 19 November 2014.
[75]. Aviation Act,
paragraphs 127(2)(a) and (b); Maritime Act,
paragraphs 202(2)(a) and (b).
[76]. This is
consistent with the general duties imposed upon ‘accountable authorities’ (who
include Departmental secretaries) under Part 2–2 of the Public Governance,
Performance and Accountability Act 2013 in relation to the
governance of their agencies, and Australian Government administrative law
policy with respect to the delegation of functions and powers. See:
Attorney-General’s Department (AGD), ‘Australian administrative
law policy guide’, AGD, Canberra, 2011, p. 10. (It is also possible
that an administrative decision of the Secretary regarding the selection of a
delegate may be subject to judicial review, and could potentially be set aside
for unreasonableness, although this carries a high threshold which requires a
finding that the exercise of a power was so unreasonable that no reasonable person
could have so exercised the power: Administrative
Decisions (Judicial Review) Act 1977, paragraph 5(2)(g).)
[77]. See: Acts
Interpretation Act 1901, paragraph
34AB(1)(b) (general rule of interpretation that, where an Act confers a power
to delegate a duty, function or power, the powers that may be delegated do not
include the power to delegate). There is nothing apparent on the face of the
provisions of the Aviation Act governing delegation, or their wider
context, that would seem to evince an intention to displace this general rule.
[78]. Acts
Interpretation Act 1901, paragraph
34AB(1)(b) (discussed above in relation to the Aviation Act). Further,
the express power of sub‑delegation in section
202A of the Maritime Act is limited to security agency heads to whom the
Secretary has delegated powers under paragraph 202(1)(c).
[79]. Chester, ‘Second
reading speech: Transport Security Legislation Amendment Bill 2016’, op. cit.,
p. 5139.
[80]. Explanatory
Memorandum, Transport Security Legislation Amendment Bill 2016, pp. 2 and
4.
[81]. Senate
Standing Committee for the Scrutiny of Bills, The quality of explanatory memoranda accompanying Bills, Third report of 2004, The Senate, Canberra, March 2004 at
[3.22].
[82]. AGD, Australian
administrative law policy guide, op. cit., p. 10. See
also: PM&C, ‘Legislation handbook’, 4th edn,
PM&C, Canberra, 1999, which indicates (at p. 33) that the class of delegates
should be ‘as limited as practicable’.
[83]. Aviation Act,
subsection 127(1); Maritime
Act, subsection 202(1).
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