On 5 December 2019, the Senate, on the recommendation of the Selection of Bills Committee, referred the Transport Security Amendment (Testing and Training) Bill 2019 (the bill) to the Legal and Constitutional Affairs Legislation Committee (the committee) for inquiry and report by 19 February 2020.
Conduct of the inquiry
The committee advertised the inquiry on its website and wrote to relevant organisations inviting written submissions. The closing date for the receipt of submissions was 15 January 2020.
The committee thanks all of the individuals and organisations that contributed to the inquiry.
Background and purpose of the bill
The bill proposes to amend the Aviation Transport Security Act 2004 (the Aviation Act) and the Maritime Transport and Offshore Facilities Security Act 2003 (the Maritime Act) 'to improve the effectiveness of screening at Australia's security controlled airports and security regulated ports'.
The bill seeks to improve the capacity of aviation security inspectors to test aviation industry participants' security systems. The bill also proposes to establish the framework required to introduce a national standard of competency for aviation and maritime screening personnel.
The proposed measures of the bill would:
create powers for aviation security inspectors to conduct covert testing of aviation industry participants' aviation security systems to assess compliance with the Aviation Act at all regulated locations;
exempt aviation security inspectors from civil or criminal liability in certain circumstances where they are covertly testing aviation industry participants' aviation security systems, including where they are using inert test pieces which resemble or mimic weapons;
clarify and align the legislative basis for requiring aviation and maritime screening officers to have completed relevant training and to hold relevant qualifications prior to exercising powers or performing screening functions;
allow for legislative instruments to be made determining training, qualifications and other requirements, including the use of identity cards and uniforms, for specified screening officers relating to the exercise of powers or performance of screening functions; and
make technical amendments to improve the operation of the Aviation Act and the Maritime Act.
Covert security systems testing
In the course of their duties, aviation security inspectors conduct compliance activities to assess whether security obligations required under the Aviation Act are being met by aviation industry participants. These compliance activities include system tests which mimic possible terrorist attack pathways, and which probe for potential weaknesses in aviation security arrangements.
To ensure the realism of security tests, inspectors use 'test pieces' which simulate weapons and other objects prohibited from being taken on board air services. These test pieces are designed to be inert and to not cause harm. The Department of Home Affairs (the department) coordinates test activities utilising test pieces with local law enforcement agencies.
The provisions of the bill would establish an 'explicit legislative basis' for covert tests of aviation security systems to be conducted by aviation security inspectors at all locations regulated under the Aviation Act. This includes security controlled airports, and the premises of aviation industry participants located outside the boundary of a security controlled airport.
The bill would also provide an express authority for aviation security inspectors to conduct systems tests on aircraft at security controlled airports, after giving reasonable notice to an aircraft operator. These tests would not be conducted when passengers are on-board, boarding or disembarking an aircraft.
The bill would also enable the Australian government to implement recommendations accepted from the Inspector of Transport Security and the International Civil Aviation Organisation to expand the scope of system tests to a wider range of security measures.
The bill would provide aviation security inspectors with immunity from criminal or civil liability under Commonwealth, state or territory law if the following conditions are met:
the test is conducted in good faith; and
the test does not seriously endanger the health or safety of any person, or result in the significant loss of, or damage to, property.
The Explanatory Memorandum (EM) states that the intention is to 'enable inspectors to conduct system tests in the knowledge that they are not at risk of breaching other laws, such as those relating to bomb hoaxes'.
As such, the bill would provide a reversal of the evidential burden to require the defendant to point to evidence establishing a reasonable possibility that the matter is made out. The Department of Home Affairs notes that:
The reversal of the evidential burden is appropriate in these circumstances as elements of the immunity would be better known to the defendant than the prosecution. The Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers notes that an evidential burden does not completely displace the prosecutor’s duty to prove elements of an offence, but only defers that burden. If the defendant discharges the evidential burden, the prosecution must disprove those matters beyond reasonable doubt.
Screening officer training
In 2016 the Inspector of Transport Security, Mr Michael Carmody AO completed an inquiry into aviation and maritime transport security education and training in Australia. This inquiry assessed the outcomes and overall quality of existing security training in the aviation and maritime sectors and made a number of recommendations to enhance the education and training of staff at airports and seaports.
The inquiry highlighted a need for standardised qualifications, the introduction of national accreditation tests, on-the-job training, and continuing professional development requirements for screening officers. The inquiry recommended:
Updating the qualification requirement for new screening officers from a generic security guarding qualification to a screening specific qualification (existing screening officers’ qualifications are to be conditionally recognised).
Introducing national minimum standards for on-the-job training and continuing professional development for screening officers.
Introducing national competency testing for screening officers.
Qualification, training and accreditation requirements for screening officers are currently prescribed in the Aviation Transport Security Regulations 2005 and the Maritime Transport and Offshore Facilities Security Regulations 2003.
The bill proposes to amend the Aviation Act and the Maritime Act to provide the Secretary of the Department of Home Affairs (the Secretary) with the authority to, by legislative instrument, determine the qualifications, accreditation, and training requirements for screening officers across Australia.
The Secretary already holds a similar power to set training requirements for air cargo examination officers. These changes will bring national consistency to the Secretary’s powers across the maritime and aviation passenger and baggage, and air cargo transport security sectors.
The EM states that the proposed provisions of the bill would 'establish a national standard of competency for the screening workforce'. This would in turn, 'strengthen the performance of security screening activities undertaken at security controlled airports and security regulated ports'. Further, the bill would help ensure all screeners in Australia are equipped to respond to current and emerging threats.
If the bill is passed, new screening officers will be subject to all of the new screening officer training, qualification and accreditation requirements. The intention is to provide new screening officers with a consistent knowledge base and to ensure they have the skills and training required to undertake their duties.
When annual accreditation testing is introduced, screening officers will only need to pass accredited testing for the functions they perform. Should a screening officer fail a single test, for example in X-ray screening, they would still be able to perform their duties in other functions, while undertaking further training in conducting X-ray screening functions.
The Department of Home Affairs noted that the bill would also allow screening officers to undertake certain tasks when competent, whilst also undertaking training in other more challenging functions.
The department stated that this would achieve 'better security outcomes and greater flexibility in workforce planning for industry'.
Currently, security screening officers, regardless of whether they have completed training or accreditation in a specific function, are able to use all screening powers set out in the Aviation Act and the Maritime Act, as soon as they are authorised and required to conduct screening.
The bill would establish that screening officers may only exercise screening officer powers, or perform screening functions, if the officer has complied with the training, qualifications, and other requirements determined by the Secretary.
The bill would also introduce a power for the Secretary to exempt a class of screening officers from compliance with one or more of the requirements, where specified exceptional circumstances exist.
An 'exempt class of screening officer' could include a small group or groups of screening officers exempt from a particular requirement; an exemption applied to a particular airport (or port); or an exemption applied for a particular time-frame or until an event occurs.
The EM notes that knowledge of such an exemption could expose a port or airport to vulnerability to attack. In order to reduce the risk of such information being exploited by an adversary, exemptions made in writing by the Secretary would not be a legislative instrument, and therefore would not be published.
Consideration by other committees
When examining a bill or draft bill, the committee may take into account any relevant comments published by other committees.
The Parliamentary Joint Committee on Human Rights offered no comment on the bill.
The Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) assesses the legislative proposals against a set of accountability standards that focus on the effect of proposed legislation on individual rights, liberties, obligations, and on parliamentary propriety.
The Scrutiny of Bills Committee requested the minister's advice on a number of matters, as detailed below.
Significant matters in delegated legislation
The Scrutiny of Bills Committee noted that the bill would permit an aviation security inspector to conduct a test of an aviation industry participant's security system. This would include tests using an item, weapon, or vehicle to test its detection. Such tests would be required to be performed in accordance with any requirements prescribed in the regulations.
The Scrutiny of Bills Committee expressed a view that significant matters such as the requirements for aviation security tests should not be included in delegated legislation unless a sound justification is provided. Rather, such matters should be included in the primary legislation. The Scrutiny of Bills Committee noted that the EM for the bill provided no justification for the inclusion of these requirements in delegated legislation.
The Scrutiny of Bills Committee also noted that the requirement for test pieces to be inert does not exist on the face of primary legislation. It stated that at a minimum the requirement for test pieces to be inert should be provided on the face of the primary legislation.
Adequacy of parliamentary oversight
The Scrutiny of Bills Committee noted that exemptions for screening officers granted by the Secretary are not legislative instruments, and therefore will not be published. The committee also noted the explanation provided in the EM regarding the potential for knowledge of exemptions to be exploited.
The Scrutiny of Bills Committee highlighted that 'there will be no parliamentary oversight regarding the number of exemptions issued or the operation of the Secretary's power to make exemptions'. As such, the Scrutiny of Bills Committee considered that the bill could be amended to allow for parliamentary oversight, without compromising operational security. For example, the bill could be amended to require the department to include the number of exemptions issued under the Aviation Act and the Maritime Act in its annual report. The Scrutiny of Bills Committee stated that 'this would alert parliamentarians to the details of how the power is being exercised under each Act and provide opportunities for parliamentary debate'.
Key issues raised in submissions
Two issues, consultation with industry participants, and transitional arrangements for qualification and training requirements, were drawn to the attention of the committee by submitters.
Evidence received in relation to industry consultation, and transitional arrangements is examined below.
The Australian Airports Association (AAA) drew the committee's attention to the 'level of consultation undertaken by the Australian Government' in relation to the bill. The AAA noted that government consultation with industry participants on aviation security matters occurs through the Aviation Security and Advisory Forum (ASAF) and the Regional Industry Consultative Meeting (RICM). These consultative groups are managed by the Department of Home Affairs.
The AAA stated that at the November 2019 ASAF and RICM meetings, the bill was not listed for discussion, 'except for a reference to new training and qualification requirements for screening officers from "pending legislative changes"'.
The committee notes that the Department of Home Affairs stated in its submission that in developing the bill, the Department of Infrastructure, Transport, Cities and Regional Development was consulted. Furthermore:
The Government has consulted extensively with the aviation, air cargo, and maritime transport and security industries about strengthening the training, qualification and accreditation requirements for screening officers.
The Department of Home Affairs submitted that 'industry has been actively engaged in the development of the proposed approach in relation the training measures'. It stated that engagement included:
…involvement in regular industry forums, a technical advisory committee for the development of the specialised screening qualification and targeted working groups. During 2017 and 2018, over 500 screening officers from a number of screening service providers and screening authorities took part in an accreditation testing trial.
The department also noted that industry:
…has been engaged in relation to the testing measures through the Department of Home Affairs' Systems Test Working Group which includes aviation industry participants such as airport operators, airlines and screening service providers.
The AAA expressed concern that the Department of Home Affairs 'has not clearly articulated timelines for the transition to the new qualification and training regime', particularly the annual accreditation testing for security screening officers. Instead, the department's website simply states that 'an appropriate transition period will ensure minimal disruption to operations' and does not provide any clarity on expected timeframes.
However, the Department of Home Affairs submitted that 'a 12 month transition period will be provided to accredit the existing workforce' and that existing screening officers will not need to obtain a new qualification or complete additional on-the-job training. It stated that 'proposed changes to screening officer training, qualification and accreditation requirements will recognise the experience of existing screening officers'.
Support for the bill
Whilst noting the issues related to consultation with industry, and transitional arrangements for training requirements, submitters nevertheless expressed support for the passage of the bill through parliament.
The AAA submitted that it 'endorses the objectives of the Bill in updating training and qualification requirements and raising the standard for qualifications, ongoing education and competency levels required for airport security screening officers'. Similarly, the Sydney Airport Corporation submitted that it had engaged with the Department of Home Affairs regarding the bill and its purpose, and as such it 'support[s] the bill and its passage through the Australian Parliament'.
The provisions of the bill also received support from Dr John Coyne, Head of the Strategic Policing and Law Enforcement Program at the Australian Strategic Policy Institute.
Dr Coyne noted that the rationale for the bill 'is that terrorist and criminal threats continue to display…[an] intent to defeat maritime and aviation security screening and…the capability to innovate in order to attempt to defeat aviation and maritime security measures'. Dr Coyne highlighted that the provision of explicit powers for security inspectors to conduct covert security systems would 'provide a much-needed additional mechanism to maintain the security of Australia's aviation sector'.
Dr Coyne noted that 'as screening technology improves, and terrorists innovate, the minimum level of training for screening officers must also increase if they are to continue to mitigate risks'. As such, Dr Coyne offered support for the creation of a 'framework to streamline the implementation of future changes in screening officers' training requirements'.
Committee view and recommendation
Australia's transport sector is one of the safest and most secure in the world. However, the enduring threat of terrorism requires that the Australian government ensure that security arrangements are robust and responsive.
This bill would improve the capacity of aviation security inspectors to undertake the critically important function of testing security systems, and establishes a framework to ensure a nationally consistent standard of competency for aviation and maritime screening personnel.
This bill would further strengthen security at Australia's airports and seaports and will assist in ensuring the safety of more than 38 million travellers transiting through our ports of entry and departure annually.
The committee recommends that the Transport Security Amendment (Testing and Training) Bill 2019 be passed.
Senator Amanda Stoker