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Aviation Transport Security Amendment (Inbound Cargo Security Enhancement) Bill 2013

Introduced into the House of Representatives on 21 March 2013

Portfolio: Infrastructure and Transport

Overview

1.25      This bill seeks to amend the Aviation Transport Security Act 2004 to enable the Minister, by legislative instrument, to prohibit aircraft from carrying specified kinds of cargo into Australian territory. This could include prohibiting the carriage of cargo that originated from, or transited through, particular countries, or that is packaged in a particular way, or is more or less than a specified weight etc. The bill introduces a strict liability offence if a person to whom the legislative instrument applies fails to comply with the prohibition.

1.26      This follows from the discovery of two improvised explosive devices concealed within printers in air cargo consignments in the United Arab Emirates and the United Kingdom in 2010. To deal with these sorts of threats existing provisions have been used to issue a Special Security Direction (SDD) with requirements that all aircraft operators amend their Transport Security Programs (TSP). However, these SDD's are valid for only six months and amendments to the TSPs can be an administrative burden, which is why the amendments in this bill are sought.

Compatibility with human rights

1.27      The bill is accompanied by a self-contained statement of compatibility that examines the strict liability offence created by the bill. The statement of compatibility notes that the offence engages the right to be presumed innocent under article 14 of the International Covenant on Civil and Political Rights, as it does not require the fault based element of the offence to be made out.

1.28      The statement of compatibility sets out a detailed justification for limiting the right to be presumed innocent:

The threat of improvised explosive devices concealed in air cargo is real and the consequence of such a plot succeeding would be catastrophic. As such, a strict liability offence is an appropriate deterrent against acts or omissions committed by aviation industry participants that may contribute to the success of an attack. The lack of fault creates a strict framework in which aircraft operators and other industry participants are placed on guard to ensure that they comply with the Act. The seriousness of the threat and the need for the Government to reduce the risk of prohibited cargo from entering Australian territory warrants the creation of this strict liability offence. Including a provable fault element would likely undermine this deterrent, as it would be difficult to prove fault in most instances. Furthermore, the offence arises in a regulatory context where participants can be reasonably expected to know their duties and obligations under the Act.[1]

1.29      The penalty for this offence is quite high – higher than the upper limit of 60 penalty units for an individual or 300 for a body corporate as set out in A Guide to Framing Commonwealth Offences.[2] The penalty set out in the bill is 200 penalty units for an aircraft operator (or $34,000) or 100 penalty units for any other aviation industry participant (or $17,000). The principal Act defines an aircraft operator as a person who conducts, or offers to conduct, an air service. An aviation industry participant is defined more broadly and includes airport operators, air cargo agents, persons appointed to perform security functions and contractors. [3]

1.30      As the statement of compatibility notes, this 'would apply in most instances to a business rather than an individual. Aviation industry participants involved in the importation of inbound air cargo rarely operate as individual persons'. However, it can apply to individuals. The statement of compatibility justifies this as follows:

it is appropriate that a higher level of strict liability penalty (greater than 60 penalty units) be applied, regardless of whether the offender is operating as an individual person or a business. The penalty amount is intended to discourage non-compliance as well as ensure that industry and their personnel do everything that they can reasonably do to prevent the entry of prohibited cargo. Given the serious implications unlawful interference with aviation may have for Australia and Australian interests it is important that non-compliance with an instrument made under this framework be treated as a significant offence. The penalty of 200 or 100 penalty units is consistent with similar existing penalties for strict liability offences committed by aircraft operators or any other aviation industry participants under the Act.[4]

1.31      The committee accepts that it may be appropriate to make this regulatory offence subject to strict liability given its legitimate objective of public safety and the need for it to operate as a deterrent, as explained in the statement of compatibility.

1.32             The committee considers that the bill does not appear to give rise to human rights concerns.

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