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2010-2011
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
AVIATION TRANSPORT SECURITY AMENDMENT (AIR CARGO) BILL 2011
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Infrastructure and Transport
the Honourable Anthony Albanese, MP)
AVIATION TRANSPORT SECURITY AMENDMENT (AIR CARGO) BILL 2011
OUTLINE
The Aviation Transport Security Amendment (Air Cargo) Bill 2011 will amend
the Aviation Transport Security Act 2004 (the ATSA).
The Bill:
. amends the definition of aviation industry participant (AIP) to include
Accredited Air Cargo Agents (AACA).
. extends the validity of Regulated Air Cargo Agent (RACA) Transport
Security Programs to minimise the administrative burden on industry
during the transition to the new air cargo security framework which
includes the introduction of the Regulated Shipper Scheme. This will
enable the air cargo industry to determine the most appropriate
regulatory scheme for their business and streamline transition
requirements where necessary.
. allows for a Legislative Instrument to prescribe security training
requirements for RACAs and AACAs. This will ensure consistency in
training outcomes and increase the security of air cargo across the
supply chain.
. includes minor technical amendments which will simplify the air cargo
clearance process by removing certification provisions and removing all
references to the term 'freight' and replacing them with the term 'cargo'
which is more relevant terminology for industry.
The Bill also amends two strict liability offences.
The penalty for an AACA in Subsection 73(1) and Subsection 102(1) of the
Bill is 50 penalty units. An AACA is considered 'any other person with
incident reporting responsibilities' for the purpose of Subsection 102(1).
The Bill prescribes penalties which are less than the 60 penalty units the
Senate Scrutiny of Bills Committee says appears to be a reasonable maximum.
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 (Air Cargo) Act
2011.
Clause 2: Commencement
The Bill contains one schedule of amendments to the ATSA. This clause
specifies when the various provisions of the Bill commence. The time of
the commencement of the provisions in Schedule 1 is upon Royal Assent.
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. The amendments set out in Schedule 1 are
divided into five parts:
1. Accredited air cargo agents.
2. Extension of Transport Security Programs.
3. Certification of cargo.
4. Training of employees of certain aviation industry participants.
5. References to freight.
Part 1 - Accredited air cargo agents
Item 1 - Section 9 (after paragraph (c) of the definition of aviation
industry participant)
This item expands the definition of 'aviation industry participant' to
include an AACA. AIP was previously defined to include types of businesses
and individuals involved in aviation and airport services. This definition
did not include AACAs. Following recent security incidents it has been
identified that provisions for AIPs that currently do not apply to AACAs
such as Special Security Directions and Incident Reporting should also
apply to AACAs. The revised definition will provide for flexibility to
respond to future security incidents and information gathering in relation
to a security incident across all AIPs.
The revised definition of AIP will mean:
a) an airport operator; or
b) an aircraft operator; or
c) a RACA; or
ca) an AACA; or
d) a person who occupies or controls an area of an airport (whether under
a lease, sublease or other arrangement); or
e) a person (other than an aviation security inspector) appointed by the
Secretary under this Act to perform a security function; or
ea) Airservices Australia; or
f) a contractor who provides services to a person mentioned in paragraphs
(a) to (ea).
Item 2 - Section 9 (definition of employee)
Item 2 amends the definition of 'employee'. This amendment reflects the
revised definition of AIP in item 1. The previous definition of 'employee'
differentiated between employees of an AACA and employees of an AIP. The
revised definition of AIP means that this distinction is no longer
required.
Item 3 - Paragraph 35(3)(b) to Item 27 - Paragraph 73(1) (penalty)
Items 3 to 27 provide for penalties relating to AACAs as an AIP. These
items maintain penalties for AACAs at 50 penalty units. Under the existing
provisions penalties AACAs would have been subject to 50 penalty units as
they were included in the definition of 'any other person'.
Item 28 - Subsection 79(2)
Item 28 amends the inspection powers for aviation security inspectors.
This item amends these provisions to reflect the revised definition of AIP
outlined in item 1. The current provisions in Paragraph 79(2)(b) and
Paragraph 79(2)(c) differentiate between AIP and AACAs. With AACAs now
being included in the AIP definition this distinction is no longer
required.
Item 29 - Paragraph 79(3)(b)
Item 29 amends the inspection powers for aviation security inspectors.
This item amends these provisions to reflect the revised definition of AIP
outlined in item 1. The current provisions in Paragraph 79(3)(b)
differentiate between AIP and an AACA. With AACAs now being included in
the AIP definition this distinction is no longer required.
Item 30 - Subsection 79(3A)
Item 30 amends subsection 79(3A) to reflect the renumbering of
subparagraphs in item 28 that has resulted from the revised definition of
AIP outlined in item 1. Item 30 amends references to these subparagraphs
to reflect the amendments made in item 28.
Item 31 - Subsection 102(1) (penalty)
Item 31 provides for a penalty relating to AACAs as an AIP with incident
reporting requirements. This item maintains the penalty for AACAs at 50
penalty units as currently established under the Aviation Transport
Security Regulations 2005. This item provides for a penalty of
commensurate value for AACAs as 'any other person with incident reporting
responsibilities'.
Part 2 - Extension of Transport Security Programs
Item 32 - At the end of section 20
Item 32 allows Transport Security Programs (TSPs) for certain aviation
industry participants to be extended. This will apply to RACAs whose TSP
will expire before 31 December 2012. The TSP will be taken to be in force
until 31 December 2012 unless the TSP is either revised under s22(4) or
23(4) or the TSP is cancelled under Division 5 at an earlier date.
This item will allow for AIPs to adjust to new measures to help secure
Australia's air cargo supply chain that were announced on 9 February 2010.
This included the establishment of a new air cargo security framework. The
new framework will see the introduction of a Regulated Shipper Scheme and
assistance to industry to procure appropriate technology such as X-ray and
explosive trace detection equipment in order to provide an enhanced air
cargo examination capability. Item 32 includes transitional provisions to
allow the air cargo industry to determine the most appropriate regulatory
scheme for their business and reduce unnecessary compliance costs.
Item 33 - Application of amendment
Item 33 provides that the extension of TSPs in item 32 applies to TSPs that
are in force at the time that item commences irrespective of when the TSP
was approved. This amendment allows the air cargo industry to determine
the most appropriate regulatory scheme for their business and reduces
unnecessary compliance costs.
Part 3 - Certification of cargo
Item 34 - Section 4 (paragraph relating to Part 4) to Item 43 (Paragraph
44C(2)(g))
Items 34 to 43 remove the term 'certification' and all references to the
process of certification from the ATSA. Certification is an additional and
unnecessary step in the cargo clearance process. Cargo should instead
receive clearance if it has been prepared for clearance in accordance with
the Regulations. This item simplifies the cargo clearance process and more
accurately reflects the operational procedures applied by industry whilst
maintaining the same integrity of cargo security measures.
Part 4 - Training of employees of certain aviation industry participants
Item 44 - At the end of subsection 44C(1)
Item 44 introduces a provision for prescribing training requirements for
employees of certain AIPs. These requirements will apply to all RACAs or
AACAs or selected RACAs or AACAs. This will ensure consistency in training
outcomes and increase the security of air cargo across the industry.
Item 45 - After subsection 44C(1)
Item 45 introduces a provision for the training requirements established in
item 44 to be made by a legislative instrument. This will establish clear
and consistent training requirements for AACAs and RACAs. Prescribing
these requirements by legislative instrument, rather than by notice, will
provide greater consistency and transparency of the security training
requirements.
Item 46 - Subsection 44C(4)
This item allows for penalties to apply to regulations or other legislative
instruments made for the purpose of Section 44C. This will extend the
penalties to apply to 'other legislative instruments' as a result of the
amendment outlined in item 45.
Part 5 - References to freight
Item 47 - Subsection 134(2) (definition of Australian international
carriage) and Item 48 - Subsection 134(2) (definition of bilateral
arrangement)
Items 47 to 48 remove any reference to the term 'freight' and replaces it
with the term 'cargo' which is more relevant terminology for industry. The
term cargo is used consistently elsewhere in the Act.