Bills Digest no. 15 2008–09
Aviation Legislation Amendment (2008 Measures No. 1) Bill 2008
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Date introduced:
26 June 2008
House:
House of Representatives
Portfolio:
Infrastructure, Transport, Regional Development and
Local Government
Commencement:
On Royal Assent
Links: The relevant
links to the Bill, Explanatory Memorandum and second reading speech
can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/. When Bills
have been passed they can be found at ComLaw, which is at http://www.comlaw.gov.au/.
To relocate the power to enable Air
Security Officers to lawfully discharge firearms on board aircrafts from
the Civil Aviation Act 1988 to the Aviation Transport Security
Act 2004.
The Aviation Transport Security Act 2004 (the
ATS Act), and its associated Regulations, contain all major provisions
relating to aviation security in Australia. It establishes the bases for
aviation security programs in Australia, including screening of goods
and people; information gathering and incident reporting for security
purposes; and gives the Departmental Secretary extensive powers to direct
the aviation industry regarding security measures. For more background
about the ATS Act, refer to the Bills
Digest prepared by the Parliamentary Library.[1]
The Air Security Officer program commenced in December
2001 with Air Security Officers (ASOs) flying on domestic flights. To
date, the program has expanded to also cover some international flights
to Singapore, the Philippines and the United States.
ASOs are specially trained Australian Federal Police
(AFP) officers who are armed when travelling and travel in teams of two
or more. The pilot is the only person on board, other than the ASOs themselves,
who is aware that there are armed ASOs on board a flight. According to
the AFP, the integrity of the program relies on the ASOs blending in with
other travellers.[2] The random and covert nature of
deployments is considered to be an important deterrent to any attack on
board a flight.[3] Media
reports suggest that the number of ASOs regularly travelling on flights
in, out and around Australia is between 130 and 170.[4]
ASOs only fly on Australian registered aircraft. In order
for ASOs to travel with firearms onboard an Australian aircraft to an
international destination, an agreement or arrangement between Australia
and the other country is necessary. Such an agreement or arrangement
would establish the boundaries for the carriage of weapons on board a
flight; this is necessary, as it is contrary to international law to travel
with a loaded firearm in the cabin of an aircraft.[5]
Presently, an ASO requires written permission from the
Civil Aviation Safety Authority (CASA) to discharge a firearm while on
board an aircraft. Regulation 144 of the Civil Aviation Safety Regulations,
made under the Civil Aviation Act 1988, prohibits the discharge
of a firearm in or from an aircraft. Subregulation 144 (2) provides that
it is a defence to any prosecution for the discharge of a firearm if the
person has written permission from CASA to do so.
The basis for the Bill is to address the problem outlined
by the Minister in his second reading speech:
Existing regulations do not allow an Air Security
Officer to lawfully discharge a firearm in an aircraft without the risk
of prosecution. This problem is currently being addressed through periodic
notices issued under regulation 144 of the Civil Aviation Regulations
1988, which effectively allow on duty Air Security Officers to lawfully
discharge a firearm in an aircraft without the risk of prosecution.
There have been some concerns that the issuing of
these exemptions under the Civil Aviation Regulations 1988 is inconsistent
with the purpose of safety legislation as it inherently implies that
it is safe to discharge a firearm on board an aircraft.[6]
To address this issue of perceived misconception, the
Bill proposes to move the exemption for ASOs to the relevant aviation
security legislation.
The Explanatory Memorandum states that ‘the amendments
would have no significant financial impact on Government expenditure’.[7]
A regulation that has extraterritorial application is
unusual but appropriate in these circumstances. Given that a security
incident could occur in-flight and in another country’s jurisdiction,
the regulations are necessary to ensure that ASOs are able to confidently
discharge a weapon, in the course of their duties, without fear of prosecution.
The Explanatory Memorandum notes that the current notices
may imply that it is safe to discharge firearm[8] but it does not elaborate further. Although it would be more
appropriate for the regulations to be made under the ATS Act, it
is not clear why these regulations are otherwise not working effectively.
While it is not specifically stated in any supporting documentation
on the Bill, it is assumed that the written permission of CASA has been
an administrative burden and the government has sought to address that.
During debate on this Bill, Warren Truss MP noted that ‘it has been suggested
that the legal basis for this arrangement is unnecessarily cumbersome
[and] the provision of such notices may also be inconsistent with the
intent of the Civil Aviation Act 1988’.[9]
The proposed legislation does not make it clear whether
the new regulations will mirror those under the Civil Aviation Act
1988, requiring the same permission notices. The Explanatory Memorandum
states that the changes will provide a more ‘appropriate and permanent
basis to deal with the lawful discharge of firearms by ASOs’.[10] However, it is not clear how this will be a ‘permanent’ solution
as turnover or the circumstances of ASOs (and their weapons) might happen
frequently, and the permission notice would still need to be specific
enough to cover an ASO’s actions. Currently, as noted by Darren Cheeseman
MP during debate, the current notice[s] expired on 30 June 2008.[11]
Thus, it would appear that the ASOs are not currently protected from the
risk of prosecution if they were to discharge their firearms on board
a flight.
Section 6 of the Aviation Transport Security Act 2004
provides that the extended geographical jurisdiction in Category B of
Section 15.2 of the Criminal Code applies to an offence against
the Act. Essentially, this provides for extra-territorial application
of the Act to offences committed onboard Australian ships and aircraft.
This is a legitimate exercise of jurisdiction because:
... under the Australian Constitution, the Commonwealth
has the power to enact legislation dealing with matters, things, circumstances
and persons outside Australia, provided there is sufficient connexion
between Australia and the matters, etc to which the law relates.[12]
Proposed new section 134 of the ATS Act expressly
states that regulations under the Act will have extra-territorial application,
if they are expressly stated as doing so. The need for an expressed statement
of extra-territoriality in proposed section 134 is questionable. Given
that the extra-territorial power is already set out in section 6 of the
Act, that jurisdiction already applies to the regulations made under the
Act.
Items 1–5 and item 7 insert new
definitions of airline, Australian international carriage, Australian
operator, bilateral arrangement and foreign country
into the Aviation Transport Security Act 2004.
Item 7 inserts a proposed new section
134 into the ATS Act to expressly provide that regulations made under
the Act can apply to an Australian aircraft, or non-Australian aircraft
engaged in Australian international carriage, and the people on board
those aircrafts, while the aircraft are outside Australian territory.[13] This extra-territorial power must be expressly
stated in the regulation(s) intending to apply it. The scope of the proposed
new section extends to non-Australian aircraft that fall under an existing
bilateral arrangement or agreement with Australia.
Items 8–10 insert provisions into the Civil
Aviation Act 1988 to exempt those people and aircraft authorised under
the Aviation Transport Security Regulations 2005 from offences
relating to carriage of dangerous goods. This provision expressly excludes
air ASOs from the application of provisions that make it an offence to
carry firearms on board aircrafts.
Concluding
comments
Given the discussion regarding jurisdiction and extra-territorial
powers above, it is questionable whether the proposed amendment to expressly
state the extra-territorial operation of regulations under the Act is
necessary at all. The extra-territorial application of the principal Act
is sufficient to extend to the associated regulations.
This Bill was debated in the Main Committee on 27 August
2008. During debate, Jason Clare MP and Darren Cheeseman MP noted that
the Australian Government Solicitor has advised that the ATS Act, and
thereby any regulations made under that Act, does not currently have extraterritorial
operation. The Government has acted on that advice in the drafting of
this Bill.
Nonetheless, despite the contrary view presented here,
there do not appear to be any fundamental flaws in the proposed legislation.
It appears that the Department has presented, in this
Bill, an administrative basis for the Air Security Officer Program that
reduces the existing administrative burden resulting from the need for
regularly drafted permission notices. More informative drafting of explanatory
material is recommended in the future.
[2] Australian Federal
Police, ‘Air Security Officers: making our skies safe’, Platypus Magazine,
Edition 99, July 2008, available at http://www.afp.gov.au/__data/assets/pdf_file/81747/34_airsecurityofficersmakingourskiessafe.pdf
[accessed on 19 August 2008].
PaoYi Tan and Monica Biddington
2 September 2008
Bills Digest Service
Parliamentary Library
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