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2008-2009
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
AVIATION TRANSPORT SECURITY AMENDMENT (2009 MEASURES NO.2)
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.2)
BILL 2009
OUTLINE
The Aviation Transport Security Amendment (2009 Measures No. 2) Bill 2009 will amend
the Aviation Transport Security Act 2004 (the ATSA).
The Bill:
1. Broadens the definition of cargo to include goods that are `reasonably likely' to be
transported by aircraft. This broader definition will ensure a secure supply chain from
consignment to uplift. Each party in the supply chain is then regulated and obliged to
apply measures at each stage, consistent with their operations. The Regulations would
then specify when goods are considered to be `reasonably likely' to be transported by
aircraft.
2. Amends the definition of 'certified' so that, in relation to cargo, it will also mean certified
by a RACA or AACA.
3. Aligns certification processes with examination processes which will allow certification
of cargo by a RACA, AACA or aircraft operator.
4. Allows regulations to be made which provide for the Secretary to issue a notice
prescribing the circumstances in which cargo may be certified by RACAs, AACAs or
aircraft operators.
5. Introduces transitional provisions for Transport Security Programs (TSPs). The TSPs of
some aviation industry participants contain a definition of `cargo' which corresponds with
the definition of that term in section 9 of the ATSA before the commencement of the
amendments. To ensure that the definition of 'cargo' in those TSPs is consistent with the
new broader definition of cargo, those TSPs are taken to be amended as if they instead
included the new definition of `cargo'.
6. Includes a saving provision to ensure the application of existing regulations made under
section 44C of the ATSA is preserved.
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. 2) Act 2009.
Clause 2: Commencement
The Bill contains one schedule of amendments to the Act. This clause specifies when the
various provisions of the Bill commence. The time of the commencement of the particular
provisions are set out in a table in subclause 2(1).
Item 1 of the table provides that sections 1 to 3 of the Act (short title, commencement and
Schedule provisions) and anything in the Act not elsewhere covered by the table will commence
on the day the Act receives the Royal Assent.
Item 2 of the table provides that Schedule 1 to the Act will commence on a single day to be
fixed by Proclamation. However, it also provides that if any provision(s) do not commence
within the period of 6 months beginning on the day on which the Act receives the Royal
Assent, they commence on the first day after the end of that period.
Clause 3: Schedule(s)
This clause provides that 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.
SCHEDULE 1 - AMENDMENTS
Schedule 1 amends the ATSA.
Item 1 - Section 9 (definition of cargo)
This item expands the definition of the term `cargo'. Cargo was previously defined to mean
`goods other than baggage or stores, that are transported, or intended to be transported, by
aircraft.' Sections 44C(1)(b) and (c) of the ATSA provide for the establishment of schemes
under which people in the business of handling, or making arrangements for the transport, of
cargo are designated as RACAs or accredited as AACAs.
The decision to transport goods by aircraft is often made at a late stage in the supply chain.
At the early stages of the supply chain it is often difficult to establish an intent to transport
goods by aircraft as goods may often go by another mode. Therefore, under the previous
definition of 'cargo' it was difficult to determine whether a particular good was cargo and
hence whether the AACA and RACA schemes applied to it.
Item 1 broadens the definition of cargo to mean goods (other than baggage or stores) that:
(a) are transported by aircraft; or
(b) are intended to be transported by aircraft; or
(c) are, in accordance with the regulations, regarded as being reasonably likely to be
transported by aircraft.
This will enable regulations to be made specifying when goods are considered to be
reasonably likely to be transported by aircraft. For example, the regulations could specify
that goods are considered to be reasonably likely to be transported by aircraft where:
(a) the goods are identified by the consignor as being express or priority freight; or
(b) there is a written `dangerous goods' statement in respect of those goods for the
purposes of section 23A of the Civil Aviation Act 1988.
Item 2 - Section 9 (definition of certified)
The previous definition of `certified' only referred to aircraft operators being able to certify
cargo. Item 2 amends the definition to reflect the expanded scope of industry participants
who may certify cargo (i.e. RACAs and AACAs).
Item 3 - Paragraph 44C(2)(g)
Item 3 amends section 44C(2)(g) to expand the scope of industry participants that the
regulations specify can certify cargo to include RACAs and AACAs. As cargo is examined
throughout the supply chain, cargo may also be able to be certified throughout the supply
chain. The Bill will enable the regulations to deal with the circumstances in which cargo may
be certified by the following:
(a) All RACAs, all AACAs or all aircraft operators; or
(b) One or more specified classes of RACAs, AACAs or aircraft operators; or
(c) One or more specified RACAs, AACAs or aircraft operators.
Item 4 - Subsection 44C(3)
The amendment allows the regulations to provide the Secretary with the power to issue a
written notice specifying the circumstances in which cargo may be certified by:
(a) All RACAs, all AACAs or all aircraft operators; or
(b) One or more specified classes of RACAs, AACAs or aircraft operators; or
(c) One or more specified RACAs, AACAs or aircraft operators.
The criteria for cargo certification are subject to changes in the threat to aviation security,
technological advancements and international obligations. A power to prescribe
requirements by notice allows for the necessary level of flexibility and responsiveness. The
Bill would enable a notice to be issued that prescribes criteria for certification.
Item 5 - Transport Security Programs
Item 5 is a transitional provision. The TSPs of some aviation industry participants contain a
definition of `cargo' which corresponds with the definition of that term in section 9 of the
ATSA before the commencement of the amendments. To ensure that the definition of
`cargo' in those TSPs is consistent with the new broader definition of cargo, item 5 operates
so that those TSPs are taken to be amended as if they instead included the new definition of
`cargo'. Item 5 also clarifies that the item does not prevent a variation or cancellation of a
TSP after the commencement of the item.
Item 6 - Regulations prescribing requirements for examining, certifying and clearing
cargo
This amendment establishes a saving provision to ensure the application of existing
regulations made under section 44C of the ATSA is preserved.