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