Chapter 1 Aviation Transport
Security Amendment (Screening) Bill 2012
The Aviation Transport Security Amendment (Screening) Bill 2012 was
introduced into the House of Representatives by the Minister for Infrastructure
and Transport, the Hon. Anthony Albanese MP, on 16 February 2012 and referred to the House Standing Committee
on Infrastructure and Communications for inquiry and report.
Copies of the bill and the explanatory memorandum (EM) are at Appendix A.
The bill proposes four amendments to the Aviation Transport Security
Act 2004 with the aim of enhancing aviation security at Australia’s
international airports. The need to enhance current security measures is in
response to a passenger attempt to detonate an explosive on Northwest Airlines
Flight 253, en route from Amsterdam to Detroit, on 25 December 2009. The
explosive device contained no metallic components so could be carried through a
walk-through metal detector without triggering an alarm. This event highlighted
a significant vulnerability in global aviation security screening practices,
including in Australia.
The bill facilitates the upcoming introduction of body scanners at
Australia’s international airports, and forms part of the Australian
Government’s Strengthening Aviation Security Initiative, announced in February
2010. This initiative also includes the adoption of multi-view x‑ray and
bottled liquid scanners, additional explosive trace detection equipment, and cargo
screening technologies. The Committee notes that
the bill will also bring Australian aviation security standards into line with
those of the United States, Canada, the United Kingdom and the Netherlands.
The submission prepared by the Department of Infrastructure and
Transport (DIT) described a trial of the proposed body scanning equipment in
Sydney and Melbourne in August and September 2011. This trial was conducted to
measure the impact that the introduction of body scanners and multi-view x-ray
equipment might have on passenger facilitation, and to assist the airports in
preparing for this introduction. The submission noted that 23 577 body scans
were conducted during the seven week period of the trial, that ‘overall, public
reaction to the trial was positive’, and that most volunteers remarked that ‘it
was quick and easy.’ It was determined that a well-informed
communications strategy will be an essential element to alleviate any community
The Committee is aware of media and community concerns about issues
relating to aviation security, and the ongoing public discussion about safety,
privacy and health aspects where the operation of any machines using scanning
technology is being considered. The Committee therefore invited public
submissions, to expand the existing and available information on these
subjects. The Committee also attended a demonstration in Parliament House,
Canberra, of an L-3 ProVision millimetre wave body scanning machine — the
machine the Federal Government is intending to introduce into Australia’s
international airports later this year. The Committee also attended a briefing
with representatives of the Department of Infrastructure and Transport.
This report considers the bill in the context of issues raised in
written submissions and in the broader Australian community. The Committee is
aware that the bill is under consideration by the Senate Rural and Regional
Affairs and Transport Legislation Committee, with a report anticipated by 9 May
2012. It is expected that the
Senate inquiry may also consider issues relating to privacy, health,
effectiveness of the technology, and the details of the consultation processes
surrounding the legislation.
The Committee’s report outlines the provisions of the bill and notes
some of the issues which arose during the course of the inquiry. The Committee
considers that its role in the review of this proposed legislation is to assess
whether the bill will achieve its objective, and therefore does not propose to
duplicate other investigations and consultations conducted to date about these
and other aspects.
Provisions of the bill
As noted above, the bill proposes amendments to the Aviation
Transport Security Act 2004. The bill provides that a person is taken to
consent to any screening procedure when that person is at a screening point,
and must receive clearance in order to board an aircraft or to enter an area or
zone of a security controlled airport.
The bill also provides for the introduction of body scanners at security
screening points; scanners will operate alongside existing walk-through metal
detection screens. The bill does not preclude other technologies from being
adopted in the future. The bill will disallow airline passengers who are
randomly selected for a body scan from opting for an alternative screening
method, including a frisk search, unless there are physical or medical reasons.
This ‘no opt-out’ policy is being proposed to prevent people selected for
scanning from choosing a less effective form of screening.
The bill provides that the images captured by the body scanners will be
a generic human representation that is the same for all passengers.
The four provisions of the bill are as follows:
- Item 1 inserts
a new section (41A) into the Act, which stipulates that if a person is at a
screening point and the person must receive clearance to board an aircraft or
enter certain areas or zones of a security controlled airport, the person is
taken to consent to each screening procedure that may be conducted at the screening
point. This implied consent does not apply if the procedure is a frisk search
or if the person refuses to undergo the procedure. This section is intended to
streamline the screening process and thereby minimise the potential impact that
the introduction of body scanners and other future technology may have on passenger
- Item 2 amends paragraph
44(2)(aa) of the Act, to read:
(2) Without limiting the matters that may be dealt with by
regulations made under subsection (1), the regulations may deal with the
(aa) the persons or things that must not pass through a
Previously, paragraph 44(2)(aa) only
referred to the things that must not pass through a screening point. The
Minister stated that this amendment will allow the Aviation Transport Security
Regulations 2005 to prescribe the persons that must not pass through a
screening point, in addition to things that must not pass through a screening
point. As noted in the Minister’s second reading speech, a person who refuses
to undergo a screening procedure for which they have been randomly selected will
not be permitted to pass through a screening point.
- Item 3 inserts
sub-sections 44(3A) and 44(3B) into the Act. Sub-section 44(3A) comprises an
inexhaustive list of equipment that may be used for screening, including metal
detection equipment, explosive trace detection equipment, and body scanning
equipment such as an active millimetre wave body scanner. Sub-section 44(3B)
states that if body scanning equipment is used for the screening of a person,
and the equipment produces an image of the person, the image must only be a
generic body image that is gender-neutral and from which the person cannot be
- Item 4 repeals
section 95A of the Act, which currently allows a person to choose to undergo a
frisk search as an alternative to another screening procedure.
Issues arising during the inquiry
During the course of its inquiry, the Committee received submissions and
reviewed debate in the wider community regarding aspects of aviation security.
An overview of these views is provided, including those which relate to the
technology used by the proposed body scanning units and its purported health
impacts, the effectiveness of the scanners in providing greater aviation
security, the inability to ‘opt-out’ of a scan, as well as concerns about
Technology used by proposed body scanning units
Active millimetre wave scanners use non-ionising radiation in the form
of millimetre waves, a kind of radiofrequency radiation similar to that emitted
by mobile phones. According to the Australian Radiation Protection and Nuclear
Safety Agency (ARPANSA), non-ionising radiation has less energy than ionising
Millimetre waves can pass through any clothing or organic material a
person is wearing. The scanners transmit very low intensity millimetre waves
from antennas that rotate around the person being scanned. The waves reflected
from a person’s body can be measured and a 3-D image of the person is reconstructed
The very low intensity of the millimetre waves and the short duration of
the scan (approximately two seconds) means that the person being scanned is
exposed to less electromagnetic energy than from a short mobile phone call.
The Committee understands that other types of body scanning units
operate elsewhere in the world, including those which use ‘back-scatter x-ray’
technologies. According to government policy, only active millimetre wave body
scanners will be used in Australia.
The Committee is aware of concerns about the possible health effects from
exposure to millimetre wave scanners, including that:
- long term studies on the
safety of millimetre wave scanners are lacking and that the concerns over radio
waves potentially being carcinogenic are not new;
- whilst it is
generally accepted that millimetre wave scanners provide the lesser risk to
health, there is no consensus on the level of risk produced by both the
millimetre wave scanner and the backscatter x‑ray scanner.
The Queensland Council for Civil Liberties welcomed the fact that only millimetre
wave scanners would be used by the Federal Government but recommended that
further research be undertaken to ensure that queries as to the existence of a
scientific consensus on the safety of the scanners could be addressed.
Government agencies including ARPANSA, the Department of Health and
Ageing, the Therapeutic Goods Administration, and state and territory radiation
regulators, were asked by DIT to provide expert advice on the safety of the technology
used by millimetre wave body scanners. Following this
consultation, a publicly available Health and Safety Information Sheet was
developed, advising that ‘[t]here is no evidence to suggest that
millimetre-wave body scanners, or other devices in this frequency and at the
power density used by scanners, are a health risk for the travelling public or
the operators.’ This evidence also states that there are no known safety
concerns in relation to people with implanted medical devices, including
pacemakers and defibrillators, resulting from undergoing a body scan.
The Committee acknowledges the views which question the benefit of introducing
body scanning technology to aviation security, and which cast doubt on claims
that millimetre wave body scanners would have detected the explosives of the
type used by the Northwest Airlines Flight 253 bomber.
The Queensland Council for Civil Liberties, for example, took the view that if
airport measures are to be pursued, ‘... greater use of explosive particle
detectors would be in order [as they may] detect some of the explosives which
these [body] scanner machines are in fact incapable of detecting.’
The Australian Airline Pilots’ Association (AusALPA) cited evidence in its
submission which stated, in relation to public concerns in the UK on the
effectiveness of millimetre wave technology, that low density materials such as
powders, liquid or thin plastic do not show up on screen.
Some inquiry participants claimed that body scanners are ineffective and
time-consuming due to excessive
false-positive rates. The Australian Privacy
Foundation (APF) cited overseas criticisms of high false-positive rates of
detection caused by layers of clothing, certain types of footwear and, in some
cases, the posture of the person being scanned.
One submitter stated that the proposed body scanners would not actually
improve security from terrorist attacks, and also criticised the focus on
physical security at airport checkpoints on the basis that it draws resources
away from the proactive intelligence work used to counter terrorism.
The Committee notes the view expressed by DIT that ‘body scanners represent
the most advanced passenger screening technology available and are capable of
detecting a range of sophisticated threats that current screening technologies
are not able to detect.’ The Privacy Impact
Assessment (PIA), included with the DIT submission to the inquiry, noted that:
Walk through metal detectors and the style of frisk search
currently used at Australian airports simply cannot provide the same security
outcome that a body scanner can. Body scanners offer the greatest chance of
detection, owing to their ability to detect and pinpoint the location of both
metallic and non-metallic items present within or underneath a person’s
clothing. The only alternative method of screening that would provide a similar
level of assurance to that of a body scanner is an enhanced full body frisk
DIT also states in its submission that it liaised extensively with
partner agencies overseas to keep abreast of technological developments and
ensure that Australia follows international best practice in relation to body
Removal of ‘opt-out’ provision
The ‘no opt-out’ policy stipulated by the bill has been a source of
concern in media reports and in various submissions to the inquiry. The PIA noted
that this was also a ‘major stakeholder concern’.
The inability to opt out of a body scan is criticised in some submissions,
which question the claim made in the EM that passengers would be unlikely to
choose a frisk search over a body scan. The APF, AusALPA, and
Civil Liberties Australia all criticised the denial of an option to choose
alternative screening measures under the bill. The claim was also made
that the European Union allows passengers to choose a frisk search over a body
As noted above, the DIT submission claimed that ‘[t]he only screening
measure that would provide a similar level of assurance to that of a body
scanner is an enhanced full body frisk search.’
The Committee understands that the Government has decided that such invasive
body searches will not be introduced as part of Australia’s airport security
arrangements, and that ‘passengers selected for body scanner screening will not
be able to choose inferior or significantly intrusive alternatives.’
The Committee notes that ’[i]f a passenger refuses to undergo a body
scan they will not be allowed to pass through the security point and therefore
not be allowed to board their aircraft’; but that various special circumstances
of individuals, including disabilities or other medical conditions, will mean
that alternative screening procedures will be needed.
The Committee notes that further detail provided in the PIA may help to clarify
issues of concern to the community.
The Committee is aware of long-standing concerns in the community over the
use of digital images produced by body scanners.
The Queensland Council for Civil Liberties regarded body scanners as being, in
effect, a ‘virtual strip search’ and suggested that other less invasive
measures should be employed. Civil Liberties
Australia stated that the proposed scanners infringe the civil liberties of
Australians. The APF was concerned
that ‘the existence of an anomaly [on the screen] may be broadcast by voice,
which on occasion will inevitably draw the attention of others in the
vicinity.’ The Committee heard
concerns about digital images being stored following a body scan.
As government policy states that these images will not be stored, the Committee
believes there is no basis for these concerns.
As noted earlier, DIT in its submission described the development of the
PIA, including the involvement of the Office of the Australian Information
Commissioner (OAIC), incorporating the Office of the Federal Privacy
Commissioner. The OAIC confirmed its role in providing independent advice
during the PIA consultation phase, and both DIT and the
OAIC provided details on the conduct of these consultative processes. The
Committee notes the recognition in the PIA that there must be ‘a balance
between achieving security outcomes and protecting the individual’s privacy’,
and that the Federal Government ‘is working to ensure that the new technology
and associated processes achieve that balance.’
Figure A sample image generated by a body scan
from a Frequently Asked Questions website, managed by the Department of
Infrastructure and Transport, <http://travelsecure.infrastructure.gov.au/international/faq/faq_body_scanner.aspx>,
viewed 23 March 2012, and also included in supplementary submission 9.1 to the
The Committee notes the following conclusions made in the PIA:
- that an assessment
against the National Privacy Principles ‘has determined that no
personal or identifying information will be collected, used, stored or
disclosed as a result of body scanning screening’; and
- the ‘comprehensive
stakeholder consultation process undertaken by the Department’ identified that
‘the greatest privacy concern ... was the potential for misuse of revealing
images, such as those produced by first generation body scanners.’ Legislation
being introduced ‘only permits body scanners that produce a generic,
gender-neutral body image from which the person cannot be identified’, and that
there is a requirement that body scanners used for aviation security screening ‘will
not be capable of storing, transmitting or printing any data produced from a
body scan of a person’.
After consideration, the Committee noted that there are some positive consequences
of the use of body scanning technologies in airports. The Committee has
observed that there are likely to be many Australians, particularly those with
medical conditions (including medical implants such as pacemakers) who will now
be able to avoid a frisk search and instead be able to comply with security
measures by undertaking a body scan.
The Committee is aware of concerns regarding aviation security, and the
manner in which screening procedures are conducted. The Committee has taken
into consideration submissions made in relation to this bill. The Committee has
determined that its task in considering legislation referred to it is to
consider the effectiveness of the legislation in achieving its stated object,
not to revise or repeat the processes which led to its introduction. The
Committee considers that the bill will achieve its stated purpose, and
recommends that the bill be passed.
||That the House of Representatives consider and pass the Aviation
Transport Security Amendment (Screening) Bill 2012.
Nick Champion MP