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2008-2009
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
AVIATION TRANSPORT SECURITY AMENDMENT
(2009 MEASURES NO.1) BILL 2009
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Infrastructure, Transport,
Regional Development and Local Government,
The Honourable Anthony Albanese, MP)
AVIATION TRANSPORT SECURITY AMENDMENT (2009 MEASURES NO.1) BILL 2009
OUTLINE
The Aviation Transport Security Amendment (2009 Measures No. 1) Bill 2009
would amend the Aviation Transport Security Act 2004 (the ATSA).
Measures contained under the ATSA are designed to safeguard Australia's
civil operations against "acts of unlawful interference" and the proposed
amendments would further strengthen the framework of the aviation security
regime.
There are four sets of amendments to the ATSA under Schedule 1 to the Bill.
1. Part 1 of Schedule 1 would amend the ATSA to enable the Secretary of
the Department of Infrastructure, Transport, Regional Development and
Local Government (the Department) to designate security controlled
airports (SCAs) a particular category of airport, according to their
risk profiles. It would also enable regulations to be made to
prescribe different legislative requirements for each category of SCA
in order to reflect the relative risk profile associated with each
category of airport;
2. Part 2 of Schedule 1 would amend the ATSA to allow unannounced
inspections of businesses involved in air cargo;
3. Part 3 of Schedule 1 would amend the ATSA to allow the Secretary of
the Department to enter into enforceable undertakings with aviation
industry participants in relation to any matter dealt with under the
Act; and
4. Part 4 of Schedule 1 would amend the ATSA to expand the scope of
'compliance control directions' in Part 4 of Division 8 of the ATSA to
cover operators of SCAs, screening authorities and screening officers.
An aviation security inspector would be able to direct operators of
SCAs, screening authorities and screening officers to take specified
action in relation to the airport or screening points at the airport.
FINANCIAL IMPACT STATEMENT
The amendments would have no significant financial impact on Government
expenditure, therefore, a Financial Impact Statement is not required.
NOTES ON CLAUSES
Clause 1: Short Title
Clause 1 is a formal provision specifying the short title of the Act which
may be cited as the Aviation Transport Security Amendment (2009 Measures
No. 1) Act 2009.
Clause 2: Commencement
The Bill contains one schedule of amendments to the Act. This clause would
specify when the various provisions of the Bill are proposed to commence.
The time of the commencements of the particular provisions would be set out
in a table in subclause 2(1).
Item 1 of the table would provide that the preliminary provisions of the
Bill (short title, commencement and effect of Schedules) would commence on
Royal Assent.
Item 2 of the table would provide that Part 1 of Schedule 1 (which would
contain the amendment to the ATSA regarding the categorisation of SCAs)
would commence on the date of Proclamation but no later than 12 months
after the Act received Royal Assent.
Item 3 of the table would provide that Parts 2, 3 and 4 of Schedule 1 would
commence the day after the Act receives Royal Assent.
Clause 3: Schedule(s)
Each Act that is specified in a Schedule to this Act is amended or repealed
as set out in the applicable items in the Schedule concerned. Any other
item in a Schedule to this Act has effect according to its terms.
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SCHEDULE 1 - AMENDMENTS
Schedule 1 would amend the Aviation Transport Security Act 2004.
Part 1 - Categories of Security Controlled Airports
Item 1 - Section 27
1. Item 1would amend section 27 of the ATSA, which provides an overview of
Part 3 of the ATSA. This item is a minor consequential amendment.
Item 2 - At the end of section 28
Item 3 - After section 28
2. Currently the Secretary of the Department is empowered under subsection
28(2) of the ATSA to declare an airport to be a SCA. The declaration of an
airport as a SCA generally places the same legislative requirements on all
such airports, regardless of their size, location and type of aircraft
operating from that airport. The amendments under items 2 and 3 have been
developed with the purpose of allowing legislative requirements to be
tailored according to the security risk profile of each SCA. It is
intended that these amendments will enhance regulatory activity, whereby,
airports would be better targeted when categorised in accordance with their
relative risk profile.
3. Specifically, item 2 would insert new subsection 28(6) which would
provide that the Secretary may, by notice published in the Gazette, assign
a particular SCA a category prescribed under proposed section 28A (to be
inserted by item 3). Further, item 2 would also insert subsection 28(7)
which would provide that if the Secretary publishes a notice under
subsection 28(6) in relation to a SCA, the Secretary must, by written
notice given to the operator of the airport, specify the category assigned
to the airport.
4. Item 3 would insert a new section 28A in Part 3 of the ATSA which would
provide that the regulations may prescribe different categories of SCAs.
The note would make it clear to the reader that the new regulation making
power would effectively enable regulations to prescribe different
legislative requirements for each category of SCA to reflect the relative
risk profile associated with each airport.
5. It is proposed that the different categories of SCAs be prescribed under
the Aviation Transport Security Regulations 2005 (the ATSR), rather than
being defined under the ATSA, given the unpredictability of the aviation
security environment. The regulation making power contained under proposed
section 28A is also consistent with the broader framework of the ATSA as a
whole, which heavily relies on extensive regulation making powers.
Item 4 - Subsection 29(1)
6. This is a minor drafting amendment, and would replace the term 'section
28' under subsection 29(1) with the words 'subsection 28(2)'.
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Item 5 - Section 126
7. Currently paragraph 126(1)(e) provides that an application may be made
to the Administrative Appeals Tribunal (AAT) for a review of a decision
made by the Secretary to declare that a particular airport, or part of a
particular airport is a SCA under subsection 28(2). Consequential to item
2, proposed Item 5 would insert a new subsection 126(1)(ea) which would
provide that an application can be made to the AAT which would enable the
review of a decision made by the Secretary to assign a category to a
particular SCA.
Item 6 - Application
8. Item 6 is an application provision which would provide that the
amendment to section 28 applies in relation to airports, or parts of
airports, declared to be SCA before, on or after the commencement of this
amendment.
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Part 2 - Inspection Powers
Items 7 and 8 - Section 79(3)
9. Section 79 of the ATSA details powers for aviation security inspectors,
including powers to enter and inspect any area, building (other than a
residence) or vehicle under the control of an Accredited Air Cargo Agent
(AACA) or aviation industry participant. Currently these powers cannot be
exercised outside of the boundaries of a SCA without providing reasonable
notice (subsection 79(3) of the ATSA). The requirement to provide
reasonable notice reduces the effectiveness of inspection activity as it is
possible that businesses could quickly alter their practices for the period
of the inspection.
10. Items 7 and 8 would insert new subsections 79(3) (aa) and 79(3A) which
would amend the ATSA to allow aviation security inspectors to exercise the
following powers at any time and without notice.
11. Proposed subsection 79(3A) would amend the ATSA and extend the powers
of an aviation security inspector to enter any area, building (other than a
residence) or vehicle under the control of an aviation industry participant
or AACA and observe operating procedures and discuss those procedures with
an AACA or aviation industry participant or employee. In entering a
premise an inspector could inspect equipment or documents/records. This
includes photographing or copying documents/records and operating equipment
to gain access to documents/records.
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Part 3 - Enforceable Undertakings
Item 9 - Section 4
Item 10- Section 116
12. Items 9 and 10, which would amend sections 4 and 116 respectively, are
minor consequential amendments to item 11, which effectively allow the
Secretary of the Department to enter into enforceable undertakings with
aviation industry participants. Section 4 currently provides a simplified
overview of the ATSA, and section 116 provides a simplified overview of the
enforcement options under the Act.
Item 11 - Division 3 of Part 8
13. The current regulatory powers under the ATSA in relation to aviation
industry participants are generally concentrated at the more serious end of
the scale in terms of potential consequences for participants. For
example, should an aviation industry participant breach their obligations
under a transport security program (TSP), they face the possible sanction
of the cancellation of their TSP, thus preventing them from continuing to
operate.
14. The ATSA does not provide a set of middle range sanctions to address
regulatory issues and contraventions of the ATSA, particularly in instances
where the breaches are not serious enough to warrant preventing an AIP from
continuing to operate.
15. Item 11 proposes to introduce enforceable undertakings into the ATSA as
a middle-range administrative enforcement tool which would enable a more
responsive regulatory approach, generate more confidence on the part of
both the travelling public and industry, and encourage better industry
compliance.
16. Specifically, item 11 would insert a new Division 3A to Part 8 of the
ATSA. New section 123A would effectively enable the Secretary to accept
written undertakings from an aviation industry participant, in relation to
all matters that are dealt with under the ATSA.
17. Under proposed section 123A, the Secretary would not be able to force
an aviation industry participant to enter into an enforceable undertaking,
and at the same time, the Secretary would not be compelled to accept an
enforceable undertaking. An aviation industry participant would be able
to withdraw or vary the undertaking at any time with the written consent of
the Secretary (proposed subsection 123A(3)). In addition, the Secretary
would have the power, by written notice given to the participant, to cancel
the undertaking (new subsection 123A(4)).
18. If a participant breaches an undertaking, proposed section 123B would
enable the Secretary to enforce the undertaking on the aviation industry
participant by applying to the Federal Court for an order which may include
the following:
. an order directing compliance with the undertaking;
. an order directing a payment of an amount of financial benefit that
the participant has received (whether directly or indirectly) as a
result of the breach;
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. an order directing the participant to compensate another person who
has suffered loss or damage as a result of the breach; or
. an order that the Court considers appropriate.
19. As indicated above, this amendment has been developed to enable the
Department to deal more effectively, flexibly and in a more timely fashion
with compliance issues under the ATSA, and to provide greater ability to
set compliance strategies, negotiate outcomes and accept voluntary
solutions, without compromising security outcomes.
Item 12 - Sub section 127(2)(b)
20. Item 12 would amend subsection 127(2)(b) by inserting the term "3A"
after the words "Division 3". The effect of this amendment is to limit the
Secretary's ability to delegate his or her powers and functions in relation
to enforceable undertakings only to SES employees of the Department.
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Part 4 - Control Directions
Item 13 - section 9
21. Item 13 would insert a new definition under section 9 of the Act for
the term 'screening authority', which would mean a body corporate that is
authorised or required to conduct screening by or under regulations made
for the purposes of paragraph 44(2)(a).
Item 14 - section 74A
Item 16 - Subsection 74B (1) and 74B(2)
22. Item 14 would amend section 74A of the Act, which provides a simplified
overview of Division 8 of Part 4 of the Act. This is a consequential
amendment to item 15, which would expand the scope of compliance control
directions.
23. Item 16 would amend subsection 74B(2) by inserting the phrase '(1A) or
(1B)' after the words 'subsection (1)'. This is also a minor consequential
amendment to item 15.
Item 15 - After subsection 74(B)(1)
Item 17 - After subsection 74B (4)
Item 18 - Subsection 74C (1) (penalty)
24. Currently, there is no scope for aviation security inspectors to issue
compliance control directions to airport operators or screening
authorities. There have been many instances where it would have been
appropriate for such directions to be issued to an airport operator or
screening authority. For example, an inspector may wish to issue a
compliance control direction to an airport operator or a screening
authority that all passengers and their luggage on a particular flight must
be screened or rescreened before the aircraft can depart from the airport
to ensure compliance with the ATSA.
25. Item 15 would insert new subsections 74(1A) and 74(1B), which would
enable an aviation security inspector to direct operators of SCAs, and
screening authorities or a screening officer, to take specified action in
relation to the airport or screening points at the airport.
26. Item 17 would insert new subsections 74B (4A) and 74B(4B), which would
provide the types of direction that an inspector may make. For example,
an aviation security inspector would be able to issue a compliance control
direction directing an airport operator or screening authority to screen or
re-screen certain passengers and their baggage, or to ensure that
particular actions are taken in relation to a person or thing, in specified
areas or zones of the airport.
27. Item 18 would amend section 74C(1) so that the existing penalty
provision would apply to an operator of a SCA, screening authority or
screening officer should they fail to comply with a compliance control
direction. This offence would be punishable by 200 penalty units for an
operator of a SCA or a screening authority, or 50 penalty units for a
screening officer.
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