Bills Digest No. 23 2003-04
Aviation Transport Security Bill
2003
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Appendix 1
Contact Officer & Copyright Details
Passage History
Aviation Transport Security Bill
2003
Date Introduced: 27 March 2003
House: House of Representatives
Portfolio: Transport and Regional
Services
Commencement: The Act
itself commences on Royal Assent. However, the main provisions
(sections 3 to 122) commence on a day to be fixed by proclamation,
or failing that, 12 months after Royal
Assent.
To update the Commonwealth regulatory
framework governing aviation security.
The Department of Transport and Regional
Services (DOTARS) has been continuously working on revising the
legislative framework for aviation security for over four years.
The following provides a short history of this process and other
related matters.
In 1998, the Australian National Audit Office
(ANAO) released a report,
Aviation Security in Australia.(1) The overall
conclusion of the report was that DOTARS (then DoTRD) had
established a regulatory regime which ensures
Australia s compliance with the standards embodied in Annex 17 [of
the 1944 Convention on
International Civil Aviation - the so-called 'Chicago Convention(2)].
However, there are areas where Australia's aviation security regime
can be strengthened even further. (3)
Partly
as a consequence of the ANAO report, DOTARS started a
revision of Part 3 of the Air Navigation Act 1920. Part 3,
which provides most of the legislative framework for aviation
security along with associated regulations, covers matters such as
the following:
- screening of passengers and baggage
- reporting requirements
for unlawful interference with aviation, and
- aviation and airport security programs
This work resulted in the Aviation Legislation Amendment
Bill (No.2) 2001 being introduced into
Parliament in April 2001. The 2001 Bill largely proposed to repeal
the existing Part 3 and replace it with regulations, although some
provisions on information gathering were to be put into Part 3. The
Bill was never debated and no draft regulations were released.
Ultimately the Bill lapsed with the proroguing of Parliament in
October 2001 that year. The Bill (then called the Aviation Legislation Amendment Bill
2002) was reintroduced into Parliament an unchanged form in
March 2002. The relevant
Bills Digest comments:
In December 2001, Federal Cabinet directed
[DOTARS] to conduct reviews on four aviation security areas -
passenger screening, baggage screening, airport access control and
additional security measures (ASMs). These reviews have
incorporated discussions with an established industry consultative
group - whose membership includes the peak airline and airports
groups, Qantas and Virgin Blue and all airports that handle
international traffic - and are likely to be progressively
finalised in May and June 2002, probably enabling drafting
instructions [for regulations] to be developed by around July
2002.(4)
The 2002 Bill was not debated by Parliament
until December 2002. The proposal to repeal existing Part 3 was
rejected. Instead, the provisions on information gathering were
added as a new Part 3A and substantive provisions of Part 3 left
unchanged. It is unknown whether any draft regulations were ever
developed. However, the Explanatory Memorandum to the
(2003) Bill comments that:
The outcome of these reviews was the preparation
of advice to the Government. The resultant Submissions were
considered in December 2002. The recommendations of these
Submissions are to be implemented in the new legislative
framework.(5)
Under the Aviation Security (Consequential
Amendments and Transitional Provisions) Bill 2003, both Part 3 and
the new Part 3A of the Air Navigation Act are to be
repealed.(6) If passed, all major Aviation Security
provisions will be contained in the Aviation Transport Security Act
2003 and associated
regulations.
The existing regulatory framework for aviation
security is contained in the Air Navigation Act 1920, the Air
Navigation Regulations and Air Navigation (Baggage Screening)
Regulations. The Air
Navigation Act 1920 provides for certain airlines and airports
to have security programs.(7)
These programs contain what are called
standard security measures (SSMs) tailored for the relevant airline
or airport. Typically, these SSMs cover matters such as passenger,
baggage and cargo screening and the controlling of access to areas
of the airport and aircraft themselves. The DOTARS Secretary may
also direct that these programs be varied in a particular fashion
and within a prescribed timeframe. This variation power allows for
the imposition of additional security measures (ASMs) when
required. According to a 2003 ANAO report (discussed later in this
Digest), the first set of post 11 September 2001 ASMs were issued
on 12 September, with further ASMs periodically issued later in
2001 and 2002. Although details of these ASMs are not on the public
record, presumably for security reasons, the Government has
publicised that these have required an upgrading of passenger and
baggage screening in particular. For example:
The Government will require all airports that
handle scheduled jet operations to conduct passenger and carry-on
baggage screening for all passengers, including those flying on
propeller services The Government has further decided to mandate
upgrades to the screening capability at all domestic and
international passenger screening points. The upgraded equipment
will be at the cutting edge of international standards for
screening technology. Australia has screened checked baggage on
selected international flights since June 2000 we consider that it
is now appropriate to introduce 100 percent checked bag screening,
using the latest equipment, for all international services. My
department will work closely with the industry to bring it into
effect by 31 December 2004, a full year ahead of the deadline
imposed by the International Civil Aviation Organisation (ICAO).
The Government will also require the operators of Australia's major
domestic terminals to introduce checked bag screening for domestic
services, on the same timetable. (8)
Other security measures have included air
marshalls and deployment of additional protective service officers
at 11 airports.(9)
In the face a number of security incidents
during 2003,(10) the Government has come under some
criticism, mainly in relation to the number of regional airports
that do not have passenger / carry-on baggage
screening(11) and questions about the effectiveness of
screening of airport ground staff that have access to sensitive
areas.(12) On 5 June, it was announced that Federal Parliament s Public Accounts
and Audit Committee was to conduct an inquiry reviewing aviation
security arrangements in Australia. The Committee s terms of reference
are to examine:
- regulation of aviation security by the Commonwealth Department
of Transport and Regional Services
- compliance with Commonwealth security requirements by airport
operators at major and regional airports
- compliance with Commonwealth security requirements by
airlines
- the impact of overseas security requirements on Australian
aviation security
- cost imposts of security upgrades, particularly for regional
airports
- privacy implications of greater security measures, and
- opportunities to enhance security measures presented by current
and emerging technologies.
According to the Committee Chairman, Bob
Charles MP, the committee:
does not intend to apportion blame for recent
security breaches but instead will seek ways to strengthen
Australian aviation security The Committee will examine the effect
of overseas security requirements on Australian aviation security.
Strengthening security, in particular at regional airports, will
have cost implications. The Committee will examine those
implications, as well as how current and emerging technologies
present opportunities to enhance security measures in a
cost-effective way. While it will review these technologies, the
Committee has neither the expertise nor intention to recommend the
adoption of particular technologies. (13)
No reporting date has been released by the
Committee as yet.
Since the terrorist attacks
on the United
States in September
2001, the International Civil Aviation Organisation (ICAO) has examined ways
of improving aviation security. In February 2002, a Ministerial
level meeting endorsed the ICOA Aviation Security Plan
of
Action. The Plan includes measures
such as:
- regular, mandatory, systematic and harmonized audits to enable
evaluation of aviation security in place in all Member States of
ICAO
- identification, analysis and development of an effective global
response to new and emerging threats, integrating timely measures
to be taken in specific fields including airports, aircraft and air
traffic control systems
- strengthening of the security-related provisions in the Annexes
to the Convention on International Civil Aviation, using expedited
procedures where warranted and subject to overall safety
considerations, notably to provide for protection of the flight
deck
- close coordination and coherence with audit programmes at the
regional and subregional level
- processing of the results by ICAO in a way which reconciles
confidentiality and transparency, and
- a follow-up programme for assistance, with rectification of
identified deficiencies.(14)
- In terms of strengthening the Chicago Convention Annex 17, a
range of issues has been incorporated into Annex 17 with effect
from 1 July 2002:
- applicability of Annex 17 to domestic operations where
practicable
- international cooperation relating to threat information
- certification of screeners
- access control relating to air crew and airport personnel
- in-flight security personnel and protection of the cockpit
- joint response to acts of unlawful interference
- definition of aircraft security check and security restricted
area
- measures relating to special categories of passengers (eg.
cooperative approach to armed personnel)
- security controls in relation to catering supplies and
operators stores
- training programs, and
- baggage control.
In January 2003, the ANAO released a further
report on aviation security.(15) According to ANAO,
this report was relatively narrow in scope and only examined DOTARS
progress against the key recommendations of the 1998
audit.(16) The 2003 report concluded:
Overall, the ANAO found that DOTARS responded well
to the events of 11 September 2001 with a prompt escalation of the
aviation security measures and effective oversight of their
implementation. The regulatory framework for aviation security is
comprehensive. Although DOTARS' monitoring regime is essentially
sound, the quality of monitoring in practice is variable. In
addition, the action DOTARS takes to correct non-compliance could
be improved. As the
body with regulatory responsibilities, DOTARS could show more
pro-active leadership to effectively engage the various
organisations and people involved in delivering aviation security,
particularly as security relies on everyone playing their part to
ensure an effective outcome. The greatest challenge for DOTARS,
particularly in light of recent events, is to effectively encourage
a strong security culture throughout the industry. DOTARS can
demonstrate stronger leadership by setting, monitoring and
reviewing performance targets for industry, and by using a wider
range of management strategies to encourage industry to achieve
them. In this context, progress in implementing the
recommendations from the 1998 audit has been limited. Instead,
DOTARS efforts have been focused on modernising the aviation
security regulatory framework. The ANAO makes no comment on policy
priorities [emphasis added]. (17)
DOTARS agreed with all six specific ANAO
recommendations in the 2003 report and as of January 2003 had
already commenced following up .(18) The ANAO report did
not comment on the appropriateness of the existing legislative
framework. However, the Government has taken the view that this
framework has:
resulted in unnecessary complications in the
administration of laws and difficulty in ensuring compliance. [and
the] current complexities inhibit full accountability and
transparency of security providers (including airlines and
airports). (19)
According to the Explanatory
Memorandum,(20) as at March 2003 consultation with
various parties was done through two processes.
- Firstly, through the circulation of consultative documents to
around 40 Australian airports, the major Australian airlines,
foreign international airlines serving Australia, and peak industry
bodies. These documents
covered issues including airport access control, passenger and
checked bag screening, airport measures, and Departmental
powers. The Explanatory Memorandum states that
substantial comment[s] were received in response to the
circulated documents.
- Secondly, the proposed changes were presented at the Aviation
Security Industry Consultative Group meeting held in late February
2003. This body includes representatives of the major Australian
airlines, the major airport operators, and some peak industry
bodies, but does not include union or contracting company
representatives.
The Explanatory Memorandum notes
several concerns raised by industry members during the reform
process. These include:
- the lack of a specific offence for aviation security-related
hoaxes
- airlines and airport operators lack of legislative power to
prevent unscreened persons from entering sterile areas
- obtaining personal information from police about persons who
have been detained by airlines in order to assess the persons
security risk, and
- the proposed demerit point scheme.(21)
The Explanatory Memorandum says in
some cases the Bill was amended to accommodate these concerns. It
also states the Department has received favourable comment from
industry on the overall direction of the proposed aviation security
regulatory framework .
On 26 March, the Bill was referred to Senate
Rural and Regional Affairs and Transport Legislation Committee for
inquiry. Only four submissions were received by the committee in
relation to the Bill. Notably, the submission from the Australian
Airports Association (AAA) stated:
There has been widespread prior industry
consultation with regard to the 'substance' of the Bill [however]
There has not been widespread prior industry consultation on the
'detail' of the proposed legislation. Initial impressions suggest
that it has been developed without due regard to the industry by
embracing 'bits and pieces' from former sections of the Air
Navigation Act 1920, various Additional Security Measures (ASMs)
and some from the minutes of Aviation Industry Security
meetings.(22)
In Senate Committee hearings, Departmental
officials said the criticism of the AAA regarding the detail of the
Bill and the (lack of) consultation was of considerable surprise
.(23) There was also some criticism by the opposition at
the hearings that there had been no direct consultation by aviation
security workers .(24)
In addition, specific consultations regarding
regulations under the Bill were commenced by DOTARS in May 2003.
According to information supplied by DOTARS, a series of meetings
in Sydney, Melbourne and Coolangatta were held to discuss the
issues of persons in custody, screening, clearing, the demerit
points scheme, airport areas and zones, transport security
programs, infringement Notices, ASICs, and powers of officials. As
yet the issues of weapons / prohibited items and onboard security
have not been discussed. Again according to information from
DOTARS, a broader range of organisations have been invited to these
meetings than the Industry Consultative Group referred to earlier.
Notably, this wider group includes a large number of regional local
government councils, State government departments and the security
companies, SNP security, Group 4 Security and Chubb Security. It is
not known what views were expressed by the various groups either at
meetings or through written comments.
New section 6 provides that
extended geographical jurisdiction category B of section 15.2 of
the Criminal Code
applies to offence provisions of the Bill. Thus an offence may
still be committed where all the relevant conduct and/or result of
conduct occurs outside Australia, but there is still some
Australian connection eg involving an Australian aircraft or the
offending conduct is committed by an Australian citizen, resident
or company. Regulations made under the Act will have similar
extended geographical jurisdiction. As noted by the Explanatory Memorandum, no
offence will occur if the relevant conduct is done by a
non-Australian person or company and the conduct is not a crime
under the law of the foreign country where it occurs: see
subsection 15.2(2) of the Criminal Code.(25)
New section 7 is a standard
provision that although the Commonwealth, State and Territory
governments are bound by the Bill, they cannot be prosecuted for an
offence under it.
New section 8 establishes a
presumption that, unless otherwise indicated, the Bill will not
apply to defence force, customs or police aircraft of any country (
State aircraft ). Civil aircraft charted by the Australian Defence
Force (ADF) will be similarly excluded. The Bill will not affect
various diplomatic immunities and privileges conferred by other
legislation: new
section 131.
Amongst other terms, new section 9 defines
aviation
industry participant . This covers
(a) an
airport operator; or
(b) an
aircraft operator; or
(c) a
regulated air cargo agent; or
(d) a person
who occupies or controls an area of an airport (whether under a
lease, sublease or other arrangement); or
(e) a person
(other than an aviation security inspector) appointed by the
Secretary under this Act to perform a security function; or
(f) a
contractor who provides services to a person mentioned in
paragraphs (a) to (e).
The ADF cannot be an aviation industry
participant.
New section 10 defines the
meaning of unlawful interference with aviation . The Explanatory Memorandum
comments
The definition is integral to the understanding
and application of the Bill. It determines the parameters of what
unlawful interference with aviation is, how it may occur and thus
the harm or threat that this Bill safeguards
against.(26)
Apart from key actions such as taking control
of an aircraft by force, or threat of force, or by any other form
of intimidation (ie hijacking), the definition includes in
new paragraph
10(h):
committing an act at an airport, or causing any
interference or damage, that puts the safe operation of an airport,
or the safety of any person at the airport at risk.
While the Explanatory Memorandum comments
that this subclause would cover destruction of key facilities or
infrastructure (27), it is arguable that the drafting
allows for a rather broad range of activities to come within the
unlawful interference with aviation. For example, an unauthorised
on-site demonstration that impedes vehicle traffic flow would fall
within the definition. New paragraph 10(h) is at
least an incremental expansion of equivalent existing paragraph
3AE(1)(j) of the Air
Navigation Act which includes the
using [of] a weapon, or any other thing to disrupt
the operation of an airport if the use of the weapon or thing
endangers, or is likely to endanger, the safe operation of the
airport;
The Explanatory Memorandum also
states that the proposed meaning of unlawful interference with
aviation is based upon guidance from the ICAO Vocabulary
.(28) According to information supplied by DOTARS, the
relevant excerpt from ICAO Document 9713 is:
Acts
of Unlawful Interference (Definition given for guidance
purposes)
These are acts or attempted acts such as to
jeopardize the safety of civil aviation and air transport, i.e.
- seizure of aircraft in flight,
- unlawful seizure of aircraft on the ground,
- hostage-taking on board aircraft or on aerodromes,
- forcible intrusion on board an aircraft, at an airport or on
the premises of an aeronautical facility,
- introduction on board an aircraft or at an airport of a weapon
or hazardous device or material intended for criminal
purposes,
- communication of false information such as to jeopardize the
safety of an aircraft in flight or on the ground, of passengers,
crew, ground personnel or the general public, at an airport or on
the premises of a civil aviation facility.
The ICAO document does not appear to support
the breadth of the proposed (or current) definition of unlawful
interference with aviation . That said, there may well be good
reasons for going beyond the ICAO meaning: after all, it is only
meant as guidance .
Whilst transport security programs are not
defined as such, their content is dealt with in new section 16.
New section 12 sets out who
must have a transport security program. These include an operator
of an airport declared a security controlled airport by the DOTARS
Secretary(29) (the Secretary), the operator of an air
service prescribed in regulations, or any other aviation industry
participant prescribed in regulations. As previously noted, an
aviation industry participant includes persons who lease sections
of the airports and contractors, including contractors who carry
out baggage, security or any support functions. The issue of who
should be required to have security programs was discussed in
Senate Committee hearings into the Bill:
Ms Lynch
[DOTARS] - At the moment all airports fall under
our regulatory cloak. All participating airports have to have an
aviation security program as it is and all operating airlines have
to have an aviation security program. So it will not actually pull
in many more airports or airlines than are currently covered by the
programs. What it does do is seek to extend the use of programs to
aviation industry participants. We have broadened out that
definition so that we can possibly pick up other groups of people
at the moment who may well be delivering security services under
somebody else s program. But where we think that they are of
sufficient input to the security process and it would be useful for
them to have their own program against which they can be held
accountable, we are holding out that opportunity for those people
to either come to us to have a program put together or for us to
work with them to put a program together .
At the moment the cargo industry has a lot of
participants I gather there are around 800 who range from the size
of something, for example, like FedEx down to very, very small
operators. I think working with that particular section of the
industry will be a very big thing. Moving all of those people at
the same pace towards them all having agreed security programs will
be quite a large task. So we may well look at prescribing in
regulations programs required perhaps at a certain level of
operation or something like that. We are seeking to make sure that
that industry is consulted about and included in the way that their
programs are going to work and operate. We want to make sure that
we are able to do that.
Senator O BRIEN
- So there will be a two-tiered system?
Ms Lynch - There could be, yes.
Senator O BRIEN - How is that justified? Is it just too hard and
that is why you are setting two tiers, or is there some real
security reason why two tiers is acceptable?
Mr Dolan [DOTARS] - I think that question gets to the overall
approach to the security system itself, which is to say that it is
based on threat and risk. The level of risk and exposure does vary
with different scales of operation, among other things. Rather than
just having a two-tiered system on some comparatively arbitrary
basis, we would have to take a look at the overall level of threat
and see how it applies to the freight industry as a whole and come
to a view as to what the appropriate interventions are to get the
appropriate level of security. (30)
If an aviation industry participant fails to
have in force a program they are require to have by new section 12, they face a
fine of up to 200 penalty units ($22 000)(31) if an
individual or $110 000 if a company: new section 13. However, if
required to have a program, no offence occurs unless the
participant is actually operating the relevant business ( operates
as a participant of that kind is the actual wording). There is no
specific guidance as to the dividing line between operating and not
operating. A similar fine applies if a participant has a program in
force but fails to comply with it: new section 14.
New section 13
and 14
offences are offences of strict liability (ie there is no
requirement to prove fault or culpability, eg intention,
recklessness etc) but they do not apply if the participant has a
reasonable excuse. In commenting upon the meaning of reasonable
excuse as a statutory defence to an offence, the High Court has
said that:
the reality is that when legislatures enact
defences such as "reasonable excuse" they effectively give, and
intend to give, to the courts the power to determine the content of
such defences. Defences in this form are categories of
indeterminate reference that have no content until a court makes
its decision. They effectively require the courts to prescribe the
relevant rule of conduct after the fact of its occurrence.
(32)
The Explanatory Memorandum comments
in relation to new
section 14 that in this context, a reasonable excuse may
be unforseen infrastructure damage caused by extreme weather
.(33) The defence of reasonable excuse exists for the
equivalent provisions in the Air Navigation Act 1920.
New section 15 sets out the
responsibilities of participants in relation to the security
programs of other participants. There are two broad
responsibilities.
Firstly, a participant must not engage
in conduct that hinders or obstructs compliance with the program of
another participant . Presumably this means compliance of any
participant that potentially comes within the scope of the program.
But what if the participants conduct is reasonable but has a
side-effect of a (minor) hindrance?
Secondly, if the program of a first
participant covers the activities of any other participants, these
other participants must take all reasonable steps to comply with
the program if they
have been given all the relevant parts of the program. As noted by
the Explanatory
Memorandum, due to paragraph 16(2)(g), these participants will
have been consulted in the development of the program
.(34) However, they still might disagree with the
program in terms of its implications for them. A breach of
new section 15
may be remedied either by an enforcement order by the
Secretary(35) under new section 119 (though
these can only be made in limited circumstances) or through a court
injunction under new
section 124.
There is no equivalent requirement of
new section
15 in the Air
Navigation Act 1920 or regulations.
New section 16 sets out the
required content of transport security programs. They are
extensive. Regulations may be made to extend the list of required
contents for all programs or certain types of programs. Regulations
may also be made to set out how and / or what form the program is
to be prepared: new
section 17. The required scope of transport security
programs is broader than the equivalent provisions in the
Air Navigation Act
1920, eg existing section 22P.
New sections 18-26 deal with
how transport security programs are to be approved, varied,
cancelled etc.
Under new section 19, the
Secretary must approve
the program if they are satisfied it adequately addresses the
requirements of new
sections 16-17: if not, he/she must refuse approval. In
making this decision, the Secretary may take account of existing
circumstances as they relate to aviation security . Refusal of
approval may be reviewed by the Administrative Appeals Tribunal
(AAT) as are several other decisions related to security programs:
new section
126. If once the program is approved and in
force,(36) and the Secretary is no longer satisfied that
it adequately addresses the new sections 16-17
requirements, he or she may direct it be varied by the participant in a
specified way within a set timeframe: new section 21. If the
participate fails to comply, the program must be cancelled by the
Secretary.(37)
The Secretary may also direct the program be
revised by the
participant if the Secretary feels that it no longer adequately
addresses the new
sections 16-17 requirements: new section 23. Unlike the
variation direction, there is no provision in the revision
direction allowing the Secretary to specify how the program should
be changed. If the participant fails to comply with the
new section 23
direction, the program must be cancelled by the Secretary. Whilst
it s not clear whether an unsatisfactory revision could allow the
Secretary to cancel the program, presumably if the Secretary wants
particular changes to a program they would elect for a variation
rather than a revision.
If the
Secretary feels that the program no longer adequately addresses the
new sections
16-17 requirements and is satisfied that it is not
appropriate to direct either a variation or revision, they must
cancel the program: new
section 25. There is no guidance in the
Bill on the circumstances in which a
variation or revision would not be appropriate. The Explanatory Memorandum merely
comments that new
section 25 would likely come into play when a variation or
revision would not solve the problem .(38)
Under new section 26, cancellation
of the program can also occur through the accumulation of a certain
number of demerit points. New section 125 allows for
regulations to be made establishing a system whereby demerit points
may be incurred either when a participant is convicted of an
offence under the Act or otherwise pays a fine in lieu of being
prosecuted for an offence. The regulations will prescribe the
number of points required before the Secretary can cancel the
program. Note that the Secretary has the discretion to take no
action even when a participant exceeds the critical number of
points. The Secretary also has the discretion whether not to give
the participant an opportunity to show cause why the program should
not be cancelled.
New sections 18-25 are
broadly similar to the existing provisions under the Air Navigation Act 1920. However
the Air Navigation Act
1920 contains no demerit point scheme. Nor does the Secretary
currently have the power to direct a revision (as opposed to a
variation) of a transport security program.
New section 28 allows the
Secretary to declare via gazettal that any airport, or part of an
airport, is a security controlled airport . This may include any
area controlled by the airport operator that is
contiguous(39) with the land or water area forming the
airport. Any airport area exclusively controlled(40) by
Australian Defence Force cannot be declared.
If an airport is gazetted under new section 28, the
Gazettal must also establish airside (41) and landside
areas within its boundaries: new section 29. The purpose
of airside areas is to control access to operational areas of a
security controlled airport : new subsection 29(2).
Landside areas are areas within the airport boundaries that are not
airside areas. The Air Navigation Regulations 1947 do contain the
term airside controlled
areas (existing clause 56), but these are fairly limited in what
they can cover for example, they cannot include a building.
New section
29 landside areas are potentially much more
flexible in terms of coverage.
The Secretary may establish one or more
airside or landside security zones within any part of the airside
or landside areas: new
sections 30 and 32. Under new sections 31 and
33, the types
of security zones may be prescribed by regulation. The Air
Navigation Regulations 1947 does have a somewhat similar-sounding
term of
security sensitive area (existing clause 57), but again these seem
limited in the scope of what they may cover and so are unlikely to
be directly comparable to the role of the proposed airside
or landside security zones.
When
establishing airside / landside areas and security zones within
them, new section
34 obliges the Secretary to have regard to the purpose of
the area or zone and take into account the views of the airport
operator, the physical features of the airport and the operational
features of the airport. Presumably the purpose of the area or zone
means the purposes for which they may be established under
new sections
29-33. The Explanatory Memorandum comments
that new section
34:
is necessary to ensure that the zones or areas are
established with regard to the differing needs and features that
exist at Australian airports and recognises that unique
circumstances need to be considered in establishing physical access
control systems. (42)
New sections 35-38 provide
that, for the purposes of safeguarding against unlawful
interference with aviation , regulations may set out requirements
for airside / landside areas and security zones. These regulations
may include matters such as:
- access to, and patrolling of, the areas / zones
- the
approval of building works within, or adjacent to, the areas /
zones
- the screening of people, vehicles or goods for entry to the
areas / zones
- the security checking (including background checking) of
persons who have access to the areas / zones
- access to aircraft (including unattended aircraft) from the
areas / zones, and
- the management of people and goods (including the management of
unaccompanied, unidentified or suspicious goods) in the areas /
zones.
On the issue of regulations to establish
security checking requirements (fourth dot point above) the
Explanatory Memorandum
says that:
this category will allow for the establishment of
the Aviation Security Identification Card (ASIC) scheme that
provides background checking for ASIC card holders. The ASIC is the
key identification measure for aviation personnel who have access
to security restricted areas at airports. (43)
ASIC matters are currently provided for in
existing Division 7 of Part 7 of the Air Navigation Regulations
1947. Under Division 7, the Secretary may authorise a person (the
issuing body ) to issue ASICs to appropriate persons. Under
existing clause 79, issuing bodies must have ASIC programs which
seem to essentially control the issuing and use of ASICs issued by
that body. There is no explicit requirement for background checks
in clause 79, although presumably these are required as part of a
program before the Secretary authorises a person as an issuing
authority under clause 81.
In the second reading speech for the Bill, the
Minister stated:
Changes to the aviation security identification
card regime will impose stricter controls upon those with access to
security sensitive areas at an airport. The addition of politically
motivated violence(44) background checks goes a long way
towards preventing potential terrorists from accessing these
critical facilities. (45)
This issue was discussed in hearings in the
Senate inquiry into the Bill:
Mr Dolan - To
the extent that there were tightened arrangements for the issue of
ASICs against a broader range of things than criminal background
checking, which is the current arrangement, the intention is that
the appropriate character assessments will be made by the
Australian Security Intelligence Organisation. There are
arrangements set out in the ASIO legislation for undertaking such
checking, which is the basis upon which that system will be
used.
Senator ALLISON
- So how will this work? ASIO will take on this
check for every employee landside and airside in an airport. Is
this correct?
Mr Dolan
- Everyone who is required to possess and display
an ASIC will be subjected to an enhanced system of checking ..
Senator ALLISON - The employee
who previously had a security pass based on no criminal convictions
and whatever else, could check the criminal record and assess
whether it was a fair decision or not. What process is available to
employees who might get a no instead of a yes to check and see
whether the decision was reasonable?
Mr Dolan - My understanding and
again, as I am not responsible for this legislation, I will have to
confirm it is that there are appropriate appeal provisions in the
ASIO legislation against an unfavourable assessment. The two key
points are that were someone to be given an unfavourable
assessment, first, they would know of that and, second, there are
provisions in a separate piece of legislation, the ASIO Act, to
deal with that if they wish to appeal .
Senator ALLISON
-The union submission makes the point that
difficulties could arise in terms of unfair dismissal laws if
someone who is currently in a job then does not survive the ASIO
check and is not able to be provided with an ASIC. What
arrangements are in place for dealing with unfair dismissal cases?
Does this override the unfair dismissal laws and, in that case,
how? Secondly, is there compensation for someone who might have
lost their job in these circumstances?
Mr Dolan -I am not aware, but we
will get formal advice to you about whether this legislation
overrides unfair dismissal laws and other elements of the
legislative framework. That being the case, the current
arrangements that relate to unfair dismissal would apply. The
compensation arrangements that sometimes are associated with that
will continue to apply. But we will get formal confirmation of
that. (46)
New subsections 36(3) and
38(3) of the
Bill allow for regulations to provide for pecuniary penalties in
relation to the above requirements. The maximum penalties attaching
to offences under the regulations varies according to the offender.
For an airport operator
or an aircraft operator, the maximum fine is 200 penalty
units. For an aviation industry participant who is not an aircraft
operator or airport operator, it is 100 penalty units. For others,
the maximum is 50 penalty units. Under section 4B of the Crimes Act, if the offenders are
corporations, the penalties may be five times these amounts - ie up
to 1000 penalty units.
New sections 41-44 deal with
screening and clearing of people, goods and vehicles. It appears
the details of when and how people, goods and vehicles are to be
screened, who may conduct the screening etc will be set out in
regulations: new
section 44. The Secretary also has certain powers to
specify that certain people, goods and vehicles can pass through
screening points without being screened. Importantly, regulations
may give additional powers to the Secretary, such as the ability to
specify what equipment must be used in the screening process:
new subsection
44(3).
The regulations may also provide for offences
for breaches of screening and clearance requirements, with maximum
penalties ranging from 200
penalty units for an
airport operator or an aircraft operator down to 50 penalty units
for non-aviation industry participants.(47)
New sections 45-52
deal with weapons. Weapons
are defined as firearms or anything prescribed as a weapon by
regulations. A defective weapon or something that is reasonably
capable of being converted into a weapon also falls within the
definition: new section
9.
Only
certain persons may have a weapon in their possession in an airside
area or landside security zone(48): new section 46. These
persons are:
- law enforcement officers (Federal, State or territory police,
protective or special protective service officers)
- ADF personnel on duty, and
- a person so authorised by regulations or permitted by the
Secretary to have the particular weapon.(49)
Persons not falling with these categories
commit an offence punishable by either up to 100 penalty units or
seven years imprisonment. According the Explanatory Memorandum, a prison
term can only be imposed if the person intentionally possesses the
weapon and is reckless
as to the fact they are in an airside area or landside security
zone.(50) The fine can be imposed in cases of
strict liability.(51) With one very limited
exception,(52) existing weapons provisions in the
Air Navigation Act 1920
do not create strict liability offences.
New section 47 is similar to
new section 46
but it relates to possession of weapons whilst passing through a
screening point. Only law enforcement officers and persons so
authorised by regulations or permitted by the Secretary to have the
particular weapon may do this. The same offence provisions and
penalties apply as for new section 46.
New sections 48-49 cover
carrying or possessing weapons on board prescribed aircraft
.(53) Prescribed aircraft are those used on air services
described in regulations. As for new section 47, law
enforcement officers and persons so authorised by regulations or
permitted by the Secretary are not subject to the offence
provisions of new
sections 48-49. Possession in the context of
new sections
48-49 includes having the weapon stowed in a place that is
accessible to the person whilst they on board the plane eg in cabin
lockers, toilets etc. Weapons under the control of the commanding
pilot may also be carried or possessed if they are carried for
certain reasons, eg forming part of the official aircraft
equipment. Again there is a strict liability offence
(new section
48) and offence that requires some fault element of
intention (new section
49), with the latter carrying a penalty of up to seven
years imprisonment.
Where a person is authorised by regulations or
the Secretary to have weapons (so as to make them exempt from
new sections
46-49, for example), such authorisation will of course be
subject to conditions. New section 50 imposes a
fine of up to 50 penalty units if such conditions are not complied
with, unless for a reasonable excuse.
For the purpose of safeguarding against
unlawful interference with aviation , new section 52 gives a
general regulation-making power for the carriage and use of weapons
on prescribed aircraft or security controlled airports.
New paragraph
52(2)(b) says this would include regulations for dealing
with a person who is suspected of [unlawfully] carrying or using a
weapon .
New sections 54-60 largely
duplicate new sections
46-52 except they concern prohibited items rather than
weapons.(54) A prohibited item is an item that could be
used for unlawful interference with aviation and is prescribed by
regulations for the purposes of [defining prohibited items] :
new section 9.
The penalties for prohibited item offences are less than for weapon
offences the maximum penalty is two years imprisonment rather than
seven, with 20 penalty units for a strict liability offence.
Again for the purpose of safeguarding against
unlawful interference with aviation , new section 62 gives a
general regulation-making power for the control of passengers,
preflight aircraft checks, baggage handling etc. Regulations for
baggage handling can only be made for prescribed aircraft. Other
types of regulations made under new section 62 may apply to
any aircraft.(55)
New sections 64-65 provide a
similar general-regulation making power as for new section 62 but relating
to persons in custody on a prescribed aircraft or at a security
controlled airport. A person in custody is someone who has been
placed in custody under an Act other than the Bill, eg a person
detained on criminal charges who is to be transferred between
states to face interrogation, trial etc. The Explanatory Memorandum comments
that:
This clause allows regulations to be made about
the transport of persons in custody on certain aircraft or through
security controlled airports [it] recognises the fact that aircraft
operators or pilots in command need adequate information about a
person so they can prepare a risk assessment to determine whether
he or she can be carried without compromising the safety of the
aircraft or other persons on-board, and require the implementation
of appropriate security controls.(56)
New sections 66-74 cover
special security directions . The Explanatory Memorandum comments
that these are:
designed to allow the Government to respond
quickly to threats of unlawful interference with aviation where the
current standards or measures are insufficient, inappropriate or do
not adequately address an emerging situation or
technology.(57)
There are no equivalent provisions in either
the Air Navigation Act
1920 or Air Navigation Regulations 1947.
The power to issue special security directions
lies with the Secretary. These can only be issued where
a specific threat of
unlawful interference is made or exists or is a change in the
nature of an existing general threat of unlawful interference with
aviation : new
paragraphs 67(1)(a)-(b). Presumably the
decision where these circumstances exist lies with the Secretary.
There is no requirement for the decision to be made on reasonable
grounds.
Under new section 69, special
security directions may be issued to a very wide range of persons,
including airport or airline employees, airline passengers or
anyone at a security controlled airport. In the latter two
categories, notices of the direction will be taken to have been
given by clearly displaying a sign in the place the direction
applies. New section
69 provides that the maximum penalty for failing to comply
with special security directions ranges from 200 penalty units for
an airport or aircraft operator down to 50 penalty units for say an
airport employee or passenger.(58) The offence is one of
strict liability, but does not apply if a person has a reasonable
excuse.
A direction can only be in continuous force
for 3 months, unless extended for a further maximum of 3 months:
new subsections 70(6)
and 71(1)-(2). In order to extend the notice, the
Secretary must consult with the person to whom the direction has
been given other than passengers or persons within the airport:
new subsections 71(1)
and (3). A direction may be revoked at any time by the
Secretary, but must be revoked if made under new paragraph 67(1)(a) and the specific
threat no longer exists : new subsection 70(5). Again
presumably the Secretary is the judge of whether the threat has
ceased to exist or not.
If a direction has been in continuous force
for 6 months, the Secretary cannot reissue the direction or one
that is substantially similar until another 6 months have passed:
new section
72. According the Explanatory Memorandum:
The purpose of this clause to ensure that the
Government does not seek to use the special security directions
power on an ongoing basis instead of referring to more appropriate
regulatory measures to apply to industry. (59)
There is nothing stopping the Secretary
revoking a direction just short of the 6 month limit and then
reissuing it with immediate effect.
A direction may set out restrictions in
relation to disclosure of the direction: new section 68. There are no
limitations given in the Bill on what those restrictions may be,
with exception that no criminal offence occurs if a person to whom
the direction is given breaks the restrictions before a court or
tribunal or where an authority or person has the power to require
the production of documents or the answering of questions :
new paragraph
74(1)(d). Other than these exceptions, a failure to comply
with restrictions carries a penalty up to 20 penalty
units.(60) The offence is one of strict liability, but
does not apply if a person has a reasonable excuse.
Part 5 deals with the powers
of various classes of officials with aviation security functions.
There are four classes of officials:
- aviation security inspectors
- law enforcement officers
- airport security guards, and
- screening officers.
New sections 76-80 deal with
aviation security inspectors. Such inspectors are appointed by the
Secretary and must be a Department of Transport APS officer or law
enforcement officer. Such inspectors appear to have a similar role
to authorised officers in existing clauses 53-54 of the Air
Navigation Regulations.
Under new section 79, aviation
security inspectors may, for the purposes of determining compliance
with the Bill or investigating any possible contravention, enter
and inspect a security controlled airport or an area, building,
vehicle or equipment under the control of an aviation industry
participant.(61) As part of their inspection, they may
observe the operating procedures of a participant(62)
and discuss those procedures with an employee of the participant or
with another aviation industry participant. They may inspect,
photograph or copy a document or record made or kept by a
participant and operate equipment at a place which they enter for
the purposes of gaining access to a document or record made or kept
by the. A person who hinders or obstructs including by failing to
do something - an inspector in exercising their power is subject to
a fine of up to 50 penalty units. The offence is of strict
liability, but does not apply if a person has a reasonable
excuse.
If the entry and inspection takes places
outside a security controlled airport, inspectors must give the
participant reasonable notice . Otherwise, the inspector s powers
may be exercised at any time and with no notice. An inspector must
not subject a person to greater indignity than is necessary and
reasonable for the exercise of a new section 79 power.
New section 80
governs an inspector s
power in relation to aircraft. Such powers are broadly similar to
new section
79 with some additional restrictions. The inspection /
entry may only take place at a security controlled airport and
reasonable notice must be given. The inspector may not operate any
equipment for the purpose of gaining access to documents or
records. Any documents etc inspected or copied must relate to a
passenger or item of cargo. The same offence provisions
apply.
New sections 81-89
cover law enforcement
officers. These are Federal, State or territory police,
protective or special protective service officers who are on duty
at a security controlled airport.
The various powers contained in new sections 81-89 are
additional to any another legislative or common law power law
enforcement officers may have. The two main sets of powers in the
Bill are a stop and search power and a removal power.
The stop and search power (new sections 84-85) may be
exercised in relation to both people and vehicles in airside
areas(63) if the officer reasonably believes that it is
necessary to do so for the purposes of safeguarding against
unlawful interference in aviation . The search of a person may be
an ordinary search or a frisk search .(64) These
searches can only be done on persons or vehicles that have been
stopped in an airside area. The officer must identify themselves
and inform the person why they are being stopped and / or searched.
A person who hinders or obstructs including by failing to do
something - an officer in exercising their stop and search power is
subject to imprisonment of up to 2 years imprisonment. For such an
offence to have occurred, the person must have intended to engage
in the hindering or obstruction conduct and been reckless as to its
effect on the ability of the officer to stop and search.
There is no stop and search power in the
existing Air Navigation Act
1920 or Air Navigation Regulations 1947. Indeed, the power to
conduct a search of a person without the need by the relevant
officer to reasonably believe that the person has committed or is
committing an offence is unusual. Even the proposed stop and search
section 18B of the Australian Protective Service
Amendment Bill 2003 has the requirement of the likely commission of
an offence . The effect of the key phrase purposes of
safeguarding against unlawful interference in aviation in
new subsection
84(1) of the Bill is potentially rather broad, particular
given the comments made earlier in this digest about the definition
of unlawful interference in aviation . The Explanatory Memorandum
states:
this power is required is required because
[airside areas] are high risk in terms of potential unlawful
interference with aviation.(65)
Under new sections 86-87, if an
officer reasonably suspects that a person on a prescribed aircraft,
or in an area or zone of a security controlled airport is
committing or committed an offence under the Act, they may ask them
to leave the aircraft, area zone or airport. If they fail to
comply, they commit an offence, but the officer may also remove
them to ensure compliance. The officer must not use any more force,
or subject the person to any greater indignity than is necessary
and reasonable to effect the removal. New section 88 gives a
similar power of removal of a vehicle if they believe it presents a
risk to aviation security or [lacks] proper authorisation to be the
relevant area / zone .
New sections 90-92 deal with
airport security guards. The training and qualification
requirements for airport security guards are to be prescribed in
the regulations.
The only substantive power given to such
guards is to restrain a person and if necessary detain them until
they can be handed over to a law enforcement officer. They may only
physically restrain a person if the guard reasonably suspects
(presumably on the balance of probabilities) the person is
committing, or has committed, an offence under the Bill and reasonably believes that it
is necessary to detain / remove them in order to either ensure that a person who
is not cleared is not in a cleared area or a cleared zone or
maintain the integrity of a landside security zone, an airside area
or airside security zone. If so restrained (which presumably
includes removal from a cleared area), a person may then be
detained until [they] can be dealt with by a law enforcement
officer . There is no set time limit on detention, nor are there
any requirements that a guard contact law enforcement agencies as
soon as practicable. The guard must not use any more force, or
subject the person concern to greater indignity, than is necessary
or reasonable .
New sections 93-97 cover
screening officers. The training and qualification requirements for
screening officers are to be prescribed in the regulations. In
addition, a person must be authorised or required to conduct
screening to be deemed a screening officer.
A screening officer may request a person to
remove any item of clothing if they think it necessary for proper
screening. However, they cannot require its removal, remove it, or
cause its removal do so carries a penalty of up 50 penalty units
unless the officer has a reasonable excuse. The offence is one of
strict liability. If a person refuses either removal or screening
in a private room by an officer of the same sex with the result
that it is not possible to screen the person properly , the
screening officer must
refuse to allow the person to proceed through the screening point.
Screening officers have a similar power of restraint and detention
as do airport security guards.
An aviation security incident is defined in
new section 99
as either a threat of, or an act of, unlawful interference with
aviation. Reporting requirements are currently covered by existing
Division 2 of Part 3 of the Air Navigation Act 1920.
New Part 6 is
not substantially different from existing Division 2 of Part 3.
The following have reporting responsibilities
for such incidents:
- an airport operator
- an employee of the Department
- a member of the staff of CASA(66)
- a member of the staff of Airservices Australia
- an aviation industry participant
- a law enforcement officer, and
- an airport security guard.
Airport and aircraft operators have the most
extensive reporting requirement in terms of to whom they must
report incidents. However, incidents that relate to a specific
airport or aircraft must always be reported to the operator of the
airport / aircraft.
Where there is an obligation to report under
new sections
104-106, it must be done as soon as possible otherwise an
offence occurs. However, no offence is committed if either the
person either believes on reasonable grounds that the person to
whom the report must be made is already aware of the incident or
they have a reasonable excuse for not reporting as required. The
offence is one of strict liability. Penalties are the graduated
scale from 200 down to 50 penalty units.(67) Employees
of participants must report to their employer as soon as possible,
unless they have a reasonable excuse for not doing so.
The information to be included in the report,
and how it is to be made, is to be prescribed by the Secretary via
a notice in the Gazette: new subsection 107(1). The
Secretary s notice is a disallowable instrument. A report that does
not comply any requirements in place under new subsection 107(1) is
deemed not to have been made and hence an offence may occur. There
is an equivalent provision in the Air Navigation Act 1920:
existing subsection 22K(3). Presumably strict compliance with all
the requirements is necessary to avoid the committing of an
offence.
Part 7 largely replicates
existing Part 3A in the Air
Navigation Act 1920.
New section 109 allows the
Secretary to require an aviation industry participant to provide
him or her with security compliance information(68) 'if
[he or she] believes on reasonable grounds' that the participant
has information of a kind that is prescribed in the regulations.
The Secretary must allow the participant at least 14 days to
respond. A person failing to comply with a notice is liable to a
fine of up 45 penalty units.(69)
The fact that the requested information might
lead to self-incrimination cannot be used as a reason for not
providing it (new section 110), although the
information can generally only be used for particular purposes (see
new sections 112-113 below). This maintains the
current position in existing Part 3A in the Air Navigation Act 1920.
New section 111 defines when
aviation security information is 'protected information' and the
person providing it a 'protected person'. New subsection
111(1) establishes a presumption that these definitions
apply when a person gives such information to a Department
official, regardless of whether it is provided in response to a
new section 109 notice. However, new
subsection 111(2) modifies this by stating subsection (1)
does not apply if:
(a) the information is given to the Departmental official in the
course of an investigation by the official
that relates to compliance with this Act [emphasis added] and
(b) the information is not given in compliance with a notice under
section 109.
The term investigation is not defined.
Hence, unless the information given is specifically in response to
a new section 109 notice, is seems difficult to anticipate whether
any information will be protected information.
New subsection 112(1)
restricts the use or disclosure of protected information by
Departmental officials to the purposes of this Bill ie the
safeguarding against unlawful interference and compliance with the
Chicago convention. Such officials face a fine of 45 penalty units
for breaching this restriction. However, new subsection
112(1) does not apply where the information is disclosed
or used in the course of prosecuting or defending either an alleged
new section 112(1) offence or an offence under
sections 137.1 or 137.2 of the Criminal Code.(70) It
also does not apply to disclosures to coroners in the course of
their official duties.
New subsection 113(1)
restricts the disclosure of protected information by persons in
general, including Departmental officials. Essentially, protected
information may only be disclosed to Department officials,
Commonwealth Ministers, members of a Minister's staff nominated by
that Minister, an MP or Senator acting in the course of his or her
duties as a Member of Parliament, a coroner, an aviation industry
participant or person employed by the Public Service. However, in
the later two cases, the information can only be disclosed 'in a
form that does not identify, and is not reasonably capable of being
used to identify, the protected person': new paragraph
113(2)(e). Again, the offence provisions do not apply
where the information is disclosed in the course of prosecuting or
defending an alleged new subsection 113(1)
offence or an offence under sections 137.1 or 137.2 of the Criminal
Code. They also do not apply if the disclosure occurs with the
consent of the protected person.
New section 114 states that a
person is not to be required to disclose protected information to a
court or tribunal except in a prosecution of an offence mentioned
in new subsection 112(2) or paragraph
113B(3)(b).
New section 115 provides that
neither giving protected information or any information, document
or thing obtained as direct or indirect consequence of giving
protected information is admissible as evidence is a criminal
proceeding or any other proceeding for recovery of a
penalty, other than a proceeding under sections
137.1 or 137.2 of the Criminal Code.
Part 8 (new sections
116-125) sets out various options for enforcing the Act.
These are:
- infringement notices
- enforcement orders
- unctions, and
- merit points.
Part 8 has no equivalent in
the Air Navigation Act or Regulations.
A system of infringements notice may be
established by regulations: new subsection 117(1). This
will allow a person or corporation to avoid prosecution for an
offence under the Bill if they agree to pay a fine of up
to 20% of the maximum fine payable had they been prosecuted and
found guilty.(71) However, this option is not available
for the offence of failing to have a transport security program in
place(72) and certain possession of weapons
offences.(73) Provisions for an infringements notice
system in lieu of prosecution are not uncommon in Commonwealth
legislation: see for example in existing paragraph 26(2)(l) of the
Air Navigation Act
1920.
New sections 118-123 covers
enforcement orders. These allow the Secretary to direct a specified
airline industry participant to do something, not to do something,
or place some restrictions on activities. The Explanatory Memorandum comments
that:
Enforcement orders are a regulatory tool which
will be used when the Secretary is of the opinion that there has
been a breach of the Act and specific actions need to be taken in
order to prevent unlawful interference with aviation. The orders
reflect the policy that it is better to fix problems with, and
minimise risks to, aviation security when they are identified
rather than simply seek to prosecute when breaches of the Act or
regulations occur. However, where the orders themselves are
contravened, an injunction may be sought. (74)
Under new section 119, orders can
only be made by the Secretary if he or she reasonably believes
[both] that the person has contravened the Act and it is necessary
to make the order to safeguard against unlawful interference with
aviation . As noted by the Explanatory Memorandum, a belief
of contravention based on the balance of probabilities is
sufficient.(75) An order must bear a clear and direct
relationship to the contravention and be proportionate to the
contravention . It cannot involve the payment of money other than
that already recoverable at law.
Contravention of an order is not an offence
but may be subject to a new section 124
injunction.
New section 121 provides
that enforcement orders must be reviewed by the Secretary at least
every 3 months. An order must be revoked unless (presumably on the
basis of the review) the Secretary is satisfied that the order is
still needed to safeguard against unlawful interference with
aviation .
Under new section 124, the
Secretary may apply for a Federal Court injunction for an
apprehended, current or past breach of the Act (ie Bill). If all
parties agree, an injunction may also be granted even if there is
no question of a breach of the Bill. Interim injunctions may also
be granted. The court must not to require any person give an
undertaking as to damages as condition of granting an interim
injunction. The Explanatory
Memorandum states that this provision recognises that the
Commonwealth, as represented by the Secretary, does not represent a
risk in relation to its ability to pay damages .(76)
New section 125 allows for
the establishment of a demerit points system. The idea is that the
accrual of sufficient points enables (but does not require) the
Secretary to cancel a participant s transport security program
approval under new
section 26. New section 125 leaves the
establishment and operating details of the system to regulations.
However, new subsection
125(2) provides that points may only be accrued where a
participant is either found guilty of an offence against the Act or
pays an infringement notice or other alternative to prosecution set
out in the regulations.
New Part 9 only has one
section, new section
126. It lists what decisions by the Secretary are amenable
to AAT review. These are:
- a refusal to approve a transport security program under clause
19
- a direction to vary a program under clause 21
- direction to revise a program under clause 23
- ancellation of program under clauses 25 or 26, or
- a declaration of a particular airport or part of an airport as
a security controlled airport under subclause 28(2).
Under new section 127, the
Secretary may delegate virtually all of his or her powers to
Departmental APS officers of Director level or above. Only powers
relating to enforcement orders and the extension of special
security directions may be delegated to SES officer only.
New sections 128-129 are
standard provisions dealing with compensation for the damage to
electronic equipment (see new section 79) and
compensation for the acquisition of property (paragraph 51(xxxi) of
the Commonwealth Constitution).
New section 130 clarifies
that Part 11 of the Airports
Act 1996 (Part 11 regulates various commercial and traffic
matters on airport sites) has no effect where it is inconsistent
with the Bill. The Explanatory Memorandum comments
that:
It is intended that the two regulatory regimes
should complement each other, nonetheless, if a conflict between
the two does arise, the policy is that aviation security concerns
should prevail. (77)
New section 131 provides
that various listed Acts that give effect to various diplomatic
immunities and privileges are not affected by the Bill when
passed.
New section 132 deals with
the situation if the Bill, or sections of it, when passed, are
found to be beyond the Commonwealth s constitutional power. In such
cases, the Act is to have effect as if it only applied to acts or
omissions that may be regulated under certain specified
constitution head of power (eg corporations, interstate trade and
commence, territories, or external affairs powers). This ensures
that any unconstitutional elements are severed from the Bill rather
than the whole Bill being invalid.
New section 133 is a
standard provision regarding the power to make regulations.
Regulations can create offences, but in these cases the maximum
penalty is 50 penalty units.(78)
The Bill provides extensive powers to the
Departmental Secretary to work with, and where necessary, direct
the aviation industry in Australia regarding aviation security.
Much of the Secretary s power is already in legislation, albeit in
the Air Navigation Regulations. However, the Bill incorporates some
important additions such as the special security directions
(new sections
66-74) and,
in some cases, setting out very substantial powers for aviation
security personnel accompanied by prison terms for hindering the
exercise of these powers (see particularly the discussion of search
powers for new
sections 84-85). The extent to which
such additions are strictly necessary to implement Australia s
obligations under Annex 17 of the Chicago Convention is probably
open to debate, but there is little doubt that there is a public
expectation of stringent control over aviation security post 11
September 2001.
Much of the nuts and bolts of the regulatory
framework will still be left to regulations for example
requirements for screening of passengers, staff, baggage etc.
The issue of what happens to existing aviation
employees that fail the expanded background checks (see the
discussion on new
sections 35-38) is still unclear,
although the Senate Committee is likely to receive more advice on
this issue from the Government before issuing its report. That
Committee, and the Public
Accounts and Audit Committee inquiry into aviation security
arrangements will no doubt have much to say about the more
operational matters of Australian aviation security.
- ANAO Audit Report no. 16
1998-99
- The Chicago Convention has virtually
universal membership, with some 188 ratifications.
One of the functions of the
Chicago Convention is to promote the adoption of international
'standards and recommended practices' or SARPs. These SARPs are
contained in Annexes to the Convention. Annex 17 deals with
aviation security.
- op. cit, paragraph 6, p.
12.
- Bills Digest no. 144, 2001-02, p.
5
- At p.5.
- Items 30 and 31 of that
Bill.
- A domestic airservice operator using
aircraft seating less than 38 people is not required by the
Air Navigation Act to
have a security program. Only airports categorised by the Secretary
must have security programs.
- The Hon John Anderson MP, House of Representatives,
Debates,
11 December 2002
p. 10137.
- ibid.
- Jet drama raises new security concerns
Daily Telegraph
30 May
2003, Second airport
terror link Australian 11 June 2003.
- Martin Ferguson MP, All talk and tax, no action on
security , Media
release 14 April February 2003.
- Martin Ferguson MP, Anderson long on security rhetoric , Media release,
12 February
2003.
- Media release, 5 June 2003. See: http://www.aph.gov.au/house/committee/jpaa/050603.pdf.
- See: http://www.icao.int/icao/en/atb/avsec/PlanAction.htm
- ANAO Audit Report no. 26 2002-03,
Aviation security
in Australia.
- ibid., paragraph 6, p. 10.
- ibid, paragraph 7.
- ibid., Paragraph 19, p. 13.
- Explanatory
Memorandum,
p.4.
- pp. 16 17.
- Explanatory Memorandum, p.
17.
- See
http://www.aph.gov.au/senate/committee/rrat_ctte/aviation03/submissions/sub03.doc
- P. 3.
- ibid.
- The Explanatory Memorandum also
states that the practical application of the extended geographical
jurisdiction will further be confined by the definition of
prescribed air
service in the
regulations at p. 23.
- P. 27.
- P. 28.
- P. 28.
- Operators of security controlled
airports must have a security program. Under new subsection 28(2),
it is the Secretary who declares which airports are security
controlled airports.
- Senate Rural and Regional Affairs and
Transport Legislation Committee, Inquiry into the Aviation
Transport Security Bill 2003, Hansard, p. 4. See:
http://www.aph.gov.au/senate/committee/rrat_ctte/aviation03/hansard/060503.pdf
- One penalty unit equals
$110.
- Taikato v The Queen
(1996) 186 CLR 454 at
466.
- P. 29.
- P. 29.
- Only the Departmental Secretary may apply for
the order.
- An approval notice will normally
nominate a day that the program comes into force.
- The timeframe for compliance can be
extended.
- P. 34.
- That is, around the
boundary.
- Joint-user areas can be declared if
agreed by the Australian Defence Force.
- The purpose of an airside area is to
control access to operational areas of a security controlled
airport : new
subsection 29(2).
- At p. 38.
- At p. 39.
- See Appendix 1 for the meaning of this
term.
- The Hon John Anderson MP House of Representatives,
Debates,
27 March
2003, p.
13749.
- Senate Rural and Regional Affairs and
Transport Legislation Committee, op. cit, pp. 10 12.
- Section 4B of the Crimes Act applies so these
penalties may be five times greater for companies, ie up to 1000
penalty units.
- Note that these zones are only found in
security controlled airports.
- The Explanatory Memorandum comments at
p. 46 that for example, the regulations or the Secretary may allow
the carriage of a weapon by a particular class of workers on the
airside that require knives to perform their duties. Conditions
could also be placed upon this permission under clause 50
.
- As the offence provision does not
specify any fault elements for the physical elements involved in
the offence (possession of the weapon and being in an
airside area or landside
security zone),
section 5.6 of the Criminal Code applies. Section 5.6 provides that
recklessness is the fault element for a circumstance (in this case being
in an airside area
or landside security zone) and intention is the fault element for conduct (possession of the
weapon). The dividing line between what is a circumstance and what
is conduct is not always clear cut. Subsection 4.1(2) of the
Criminal Code for example states that conduct includes a state of
affairs . To avoid any ambiguity, it would be helpful if the
Bill was explicit which physical elements
are circumstances and which are conduct.
- The mistake of fact of defence is still
available in offences involving strict liability.
- Existing subsection 22D(3).
- These sections also note that the
Civil Aviation Act 1988 and the Crimes (Aviation) Act
1991 also
contain provisions regarding the carriage of weapons on
aircraft.
- There is no equivalent offence in the
Air Navigation Act 1920
or Air Navigation Regulations 1947.
- Although not ADF or State aircraft:
new section
8.
- P. 52.
- P.53.
- Section 4B of the Crimes Act applies.
- P. 55.
- Section 4B of the Crimes Act applies.
- If a participant operates from a
residence, the inspectors have entry and inspection powers over the
part of the residence connected with the participants business.
- The Explanatory Memorandum comments
at p. 56 that this might include observing the boarding procedures of a
particular flight .
- See new section 29.
- Under
section 3 of the Crimes Act 1914 an ordinary search
is a
search of a person or of articles in the possession of a person
that may include (a) requiring the person to remove his or her
overcoat, coat or jacket and any gloves, shoes and hat; and (b) an
examination of those items. Under the same provision, a
frisk search is a
search of a person conducted by quickly running the hands over the
person's outer garments; and (b) an examination of anything worn or
carried by the person that is conveniently and voluntarily removed
by the person .
- P. 58.
- CASA staff do not have specific
reporting responsibilities under existing 22J of the Air Navigation Act
1920.
- Section 4B of the Crimes Act applies.
- This is defined in new section 9 as
information that relates to compliance or failure to comply, with
this Act .
- Section 4B of the Crimes Act applies.
- These are offences of providing false or
misleading information or documents.
- In the case of offences that prescribe
only imprisonment as a penalty, section 4B of the Crimes Act allows for a fine to
be imposed to lieu of prison, according to a set formula. For
example, if as in the case of subsection 54(3) the prison term is 2
years, section 4B allows for a maximum fine of 120 penalty units
($13 200). Thus the maximum fine for a person under section
117 would be $2640.
- Subsection 13(1).
- Subsections 46(3) and 47(3) and section
49.
- P. 68.
- ibid.
- P. 70.
- P. 72.
- Section 4B of the Crimes Act applies.
Australian Security Intelligence
Organisation Act 1979, Section 4, definition of politically
motivated violence:
(a) acts or threats of violence or unlawful
harm that are intended or likely to achieve a political objective,
whether in Australia or elsewhere, including acts or threats
carried on for the purpose of influencing the policy or acts of a
government, whether in Australia or elsewhere;
(b) acts that:
(i) involve violence or
are intended or are likely to involve or lead to violence (whether
by the persons who carry on those acts or by other persons);
and
(ii) are directed to
overthrowing or destroying, or assisting in the overthrow or
destruction of, the government or the constitutional system of
government of the Commonwealth or of a State or Territory;
(c) acts that are offences punishable under
the Crimes (Foreign Incursions and Recruitment) Act 1978,
the Crimes (Hostages) Act 1989 or Division 1 of Part 2, or
Part 3, of the Crimes (Ships and Fixed Platforms) Act 1992
or under Division 1 or 4 of Part 2 of the Crimes (Aviation) Act
1991; or
(d) acts that:
(i) are offences
punishable under the Crimes (Internationally Protected Persons)
Act 1976; or
(ii) threaten or
endanger any person or class of persons specified by the Minister
for the purposes of this subparagraph by notice in writing given to
the Director-General
Angus Martyn
19 August 2003
Bills Digest Service
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