BILLS DIGEST NO. 53, 2016–17              18 January 2017

Transport Security Legislation Amendment Bill 2016

Christina Raymond
Law and Bills Digest Section 

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.

The information obtained from such consultations may enable the early identification of the potential impacts of the proposed measures on regulated entities. This could provide members of the Parliament with a stronger degree of assurance about the appropriateness of the regulatory approach proposed by the Bill, particularly the breadth of the proposed delegations of powers. Alternatively, consultation may provide members of the Parliament with an opportunity to pro-actively address, if necessary, any concerns held by the industry about the proposed regulatory approach before the framework legislation is enacted, and before regulations are made or notices issued.© Commonwealth of Australia

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[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).