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AVIATION TRANSPORT SECURITY AMENDMENT (DOMESTIC CARGO) REGULATIONS 2020 (F2020L00240)

EXPLANATORY STATEMENT

Issued by authority of the Minister for Home Affairs

Aviation Transport Security Act 2004

Aviation Transport Security Amendment (Domestic Cargo) Regulations 2020

The Aviation Transport Security Act 2004 (the Aviation Act) and the Aviation Transport Security Regulations 2005 (the Aviation Regulations) operate to give effect to Australia's obligations under Annex 17 to the Convention on International Civil Aviation (the Chicago Convention).  In pursuit of this aim, the Aviation Act and the Aviation Regulations establish a regulatory framework to safeguard against unlawful interference with civil aviation in Australia.

Legislative authority

Subsection 133(1) of the Aviation Act provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed (paragraph (a)), or necessary or convenient to be prescribed for carrying out or giving effect to the Act (paragraph (b)).

Relevantly, in relation to paragraph 133(1)(a), the Aviation Act provides that regulations may prescribe requirements in relation to examining cargo, receiving clearance, and the circumstances in which cargo is required to be cleared (see subparagraphs 44C(1)(a)(i), (iii), and (iv) of the Aviation Act).

Purpose

The Aviation Transport Security Amendment (Domestic Cargo) Regulations 2020 (the Domestic Cargo Regulations) amend the Aviation Regulations to:

• introduce measures that will clarify and homogenise the requirements for handling, making arrangements for the transport of, or loading international and domestic cargo; 
• provide for a single type of air cargo examination notice scheme for air cargo;
• introduce cargo examining aircraft operators as entities who handle, or load, cargo that must be examined prior to uploading onto specified types of aircraft; and
• make technical amendments to support these measures.

Extensive consultation was undertaken with government and industry stakeholders in the development of these amendments over an extended period of time.

Government stakeholders consulted include the Australian Border Force; Australian Federal Police; Australian Trade and Investment Commission; Department of Finance; Department of Foreign Affairs and Trade; Department of Industry, Innovation and Science; Department of Infrastructure, Transport, Cities and Regional Development; Department of the Prime Minister and Cabinet; Department of Agriculture; and the Department of Communications and the Arts. Various committees including the National Security Committee (NSC) of Cabinet; the Australia-New Zealand Counter-Terrorism Committee; and the Secretaries' Committee on National Security were also briefed.

The reform measures in these amendments were informed by a series of industry co-design workshops conducted in May and June 2018; and a number of pilot workshops at six regional airports (Kalgoorlie, Launceston, Mackay, Moranbah, Rockhampton, and Wagga Wagga) in October and November 2018.

The measures were further refined through wider consultation with industry organisations, including through the Air Cargo Security Industry Advisory Forum (ACSIAF) attended by representatives from Australian aircraft operators aviation industry associations, freight industry associations, customs brokers, freight forwarders and government agencies.

An industry questionnaire was provided to ACSIAF members in November and December 2018 to gather information about their existing air cargo operations and the economic/operational impact of potential future domestic air cargo security measures.

Key findings were used to further inform the development of the reforms introduced by these amendments.  As a result, these measures allow time for industry to upscale equipment and infrastructure, and provide thresholds that limit the scope of the reforms to certain aircraft. However, the economic analysis undertaken to determine the cost impact of a number of scenarios indicated that some additional cost to industry is unavoidable.

The Office of Best Practice Regulation (OBPR) was consulted prior to making the Regulations, and the Regulation Impact Statement requirements for these Regulations have been met (OBPR: 23873).

A Statement of Compatibility with Human Rights in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011 is included at Attachment A. The overall assessment is that the Regulations are compatible with human rights.

Details of the proposed Regulations are set out in Attachment B.

The Regulations are a legislative instrument for the purposes of the Legislation Act 2003.

Schedule 1 to the Regulations commence on 1 July 2020, and Schedule 2 to the Regulations commence on 1 July 2021.  The twelve month delay in the commencement of Schedule 2 is intended to provide aviation industry participants who are affected by the amendments in Schedule 2 with time to purchase equipment, to make changes to infrastructure, and to train staff if necessary.

Attachment A

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Aviation Transport Security Amendment (Domestic Cargo) Regulations 2020

This Disallowable Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Disallowable Legislative Instrument

The Aviation Transport Security Act 2004 (the Act) and the Aviation Transport Security Regulations 2005 (the Aviation Regulations) establish a regulatory framework for the purpose of safeguarding against unlawful interference with civil aviation in Australia and in accordance with Annex 17 (Aviation Security) to the Convention on International Civil Aviation, to which Australia is a party.

The amendments made by the Aviation Transport Security Amendment (Domestic Cargo) Regulations 2020 (the Domestic Cargo Regulations) strengthen the regulatory framework which safeguards against unlawful interference with aviation, by bolstering and expanding examination requirements for air cargo in Australia. The amendments will enhance the safety and security of passengers, airports and aircraft by improving and streamlining requirements for the examination and clearance of domestic and international air cargo to ensure that air cargo does not contain unauthorised explosives. For example, the Domestic Cargo Regulations clarify and homogenise the requirements for handling, making arrangements for the transport, or loading, of regulated international and domestic cargo.

The amendments build on measures already in place to ensure that the most appropriate systematic national aviation security regulatory framework is in place to safeguard the movement of air cargo within, and from, Australia.

Schedule 1 of the Domestic Cargo Regulations commences on 1 July 2020 and amends the Aviation Regulations to improve the examination and clearance framework for the movement of air cargo. 

It does this by defining additional terms to improve clarity of meaning in the Aviation Regulations, by simplifying the examination notice scheme, by introducing new examination and clearance requirements for domestic air cargo that complement the requirements for international air cargo, and by making clear that the new requirements apply to cargo loaded onto certain aircraft departing from certain airports. Schedule 1 also removes redundant terms and references, as part of the government's de-regulation agenda and saves existing notices issued under provisions repealed by the Domestic Cargo Regulations.

Schedule 2 of the Domestic Cargo Regulations commences on 1 July 2021 and amends the Aviation Regulations to broaden the application of the examination and clearance framework to additional Australian airports. The delay in commencement is required to allow affected industry participants the opportunity to procure essential equipment and train staff in the operation of that equipment.

Specifying that domestic and international outbound air cargo must be examined for clearance to be loaded onto aircraft, and specifying that both types of cargo must be examined and cleared to the standard dictated in a notice issued by the Secretary of the Department, ensures certainty in operational matters, and is consistent with the international standards and recommended practices specified in Annex 17 to the Convention on International Civil Aviation.

Human rights implications

This Disallowable Legislative Instrument engages the following rights:

*         The right to life and security of the person in Articles 6 and 9 of the International Covenant on Civil and Political Rights (ICCPR).

*         The right to presumption of innocence in Article 14(2) of the ICCPR.

Right to life and security of the person

Article 6(1) of the ICCPR provides:

Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. 

Article 6 of the ICCPR places a positive obligation on states to protect the right to life. The United Nations Human Rights Committee's General Comment No. 36 on the right to life notes that there is an obligation on states to protect the right to life by addressing and responding to reasonably foreseeable threats and life threatening situations that can result in loss of life.  

The Government is committed to act in accordance with Article 6(1) of the ICCPR. These amendments positively engage this Article by addressing and actively responding to the threat to the right to life and security of the person that uncleared cargo on an aircraft would present. This is achieved by specifying that domestic and international outbound air cargo must be examined for clearance to be loaded onto certain aircraft.

Article 9(1) of the ICCPR provides, in part:

Everyone has the right to liberty and security of person.

Article 9 of the ICCPR requires states to provide reasonable and appropriate measures to protect a person's physical security. The United Nations Human Rights Committee's General Comment No. 35 explains that the security of the person concerns freedom from injury to the body and the mind and that states must take measures to prevent the future injury of individuals.

These amendments promote the right to life and security of the person by enhancing the examination and clearance framework for the movement of air cargo. Threats to the right to life and security of the person are mitigated by the Domestic Cargo Regulations, by improving the way in which air cargo is examined to detect and prevent any unauthorised explosives being loaded onto aircraft. The presence of unauthorised explosives on an aircraft would present a significant risk to the security and lives of persons on board that aircraft and also persons within the vicinity of that aircraft.  

Right to the presumption of innocence

Article 14(2) of the ICCPR provides:

Everyone charge with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

It may be viewed that amendments introduced by the Domestic Cargo Regulations engage and limit the presumption of innocence expressed in Article 14(2) insofar as the amendments predicates an administrative decision by a public authority (the department) by imposing strict liability for a number of offences.

The strict liability offences and penalties introduced by these amendments operate to prohibit the particular activity, and are imposed for the purposes of safeguarding against unlawful interference with aviation. The application of strict liability for these offences is appropriate as the offences are not punishable by imprisonment, and are not dependent upon a subjective or community standard

The penalties for these strict liability offences are reasonable to impose as they act as a specific deterrent to persons who examine and clear cargo to ensure compliance, are within the prescribed limits set out in the Aviation Act and are similar to others imposed within the Aviation Regulations, and are proportionate to the risk posed by the transportation of cargo that has not been examined and cleared appropriately.

Conclusion

This Disallowable Legislative Instrument is compatible with human rights because it promotes the right to life and security of the person and to the extent that it limits human rights, those limitations are reasonable, necessary and proportionate to achieving the legitimate objective of protecting public order and national security.

The Hon. Peter Dutton MP

Minister for Home Affairs

ATTACHMENT B

Details of the proposed Aviation Transport Security Amendment (Domestic Cargo) Regulations 2020

Section 1 - Name

This section provides that the title of the proposed Regulations is the Aviation Transport Security Amendment (Domestic Cargo) Regulations 2020 (the proposed Regulations).

Section 2 - Commencement

This section provides for the commencement of the proposed Regulations, as set out in the table in subsection 2(1). 

Table Item 1 of subsection 2(1) contains standard technical enabling provisions. 

Table Item 2 of subsection 2(1) provides for Schedule 1 to the proposed Regulations to commence on 1 July 2020.

Table Item 3 of subsection 2(1) provides for Schedule 2 to the proposed Regulations to commence on 1 July 2021.

Subsection 2(2) clarifies that information in column 3 of the table in subsection (1) is not part of the instrument, and that information may be inserted there, or edited, in any published version of the instrument.

Section 3 - Authority

This section provides that the proposed Regulations are made under the Aviation Transport Security Act 2004 (the Act).

Section 4 - Schedules

This section provides for the Aviation Transport Security Regulations 2005 (the Aviation Regulations) to be amended as set out in the Schedules to the proposed Regulations.

Schedule 1--Amendments commencing 1 July 2020

Aviation Transport Security Regulations 2005

This Schedule amends the Aviation Transport Security Regulations 2005 (the Aviation Regulations) to expand air cargo examination requirements, replace the dual system examination notice scheme with a single examination notice scheme, introduce cargo examining aircraft operators as entities who handle, or load, cargo that must be examined prior to uploading onto specified types of aircraft, and make other technical amendments to support these measures.

The amendments operate to strengthen the overall security of the Australian aviation network and support the creation of consistent requirements for the examination and clearance of air cargo transported domestically or internationally. These amendments reflect the operational diversity and range of security risks associated with transporting cargo by air, and are adapted to meet current and future needs in an evolving security environment. 

There was general agreement by participants throughout consultations that domestic air cargo examination requirements should be strengthened. During consultation, some issues arose and the measures proposed by these amendments were adapted to address concerns.

1.      Time: The two-phased risk based approach proposed by these amendments was developed to allow time for industry readiness to upscale equipment and infrastructure.  This approach incorporates the time needed by industry for planning and impact mitigation.

2.      Scope: The amendments also provide thresholds that limit the scope of the reforms. Only cargo being loaded onto aircraft above 20,000 kg MTOW or with 40 or more seats will be subject to the examination requirements.

3.      Cost: The cost of screening is typically transferred to the freight-forwarder's customer on a cost-per-kilo basis.  Economic analysis was undertaken to determine the cost impact of a number of scenarios.  The analysis indicated that some additional cost to industry is unavoidable.

This Schedule gives effect to the first of two stages for enhanced cargo examination measures.  The Amendments introduced in this Schedule are made in relation to cargo loaded onto aircraft at Australia's five major airports.

This Schedule also introduces a single examination notice scheme to reduce the complexity of having two distinct examination notice streams that deal with the examination and clearance of air cargo based on the intended destination of the cargo.  The amendments introduced in this Schedule provides a single streamlined scheme that requires that international and domestic cargo be examined and cleared to the same standard.

This schedule also introduces amendments that allow for aircraft operators of prescribed air services to examine and clear air cargo, provided that the aircraft operator has approved security measures in place and can examine the cargo in accordance with a notice issued by the Secretary.

Various technical amendments to support the streamlined operation of the Aviation Regulations to support these measures are also made by the Schedule. This includes amending the information that is required to be entered on security declarations when cargo has been cleared to ensure consistency for the examination of domestic and export air cargo. Savings provisions have been included in the amendments to provide that security declarations issued immediately prior to the commencement of the proposed regulations remain valid, provided that the cargo remains in a secure supply chain (i.e. kept in a secure place, or moved securely from one place to another, to mitigate against the risk of someone tampering with cleared cargo).

Item [1] - Regulation 1.03

This item inserts a new definition of 'cargo examining aircraft operator' in regulation 1.03 of Part 1 of the Aviation Transport Security Regulations 2005 (the Aviation Regulations). 

Definition of cargo examining aircraft operator

For the purposes of the Aviation Regulations, the term is defined to mean an aircraft operator of a prescribed air service whose Transport Security Program (TSP) has been approved by the Secretary and sets out procedures for receiving, processing and clearing cargo.

The purpose of the proposed definition is to make clear that only an aircraft operator of a prescribed air service whose TSP sets out procedures for receiving, processing and clearing cargo is a cargo examining aircraft operator.

The effect of this amendment is to distinguish these aircraft operators from aircraft operators whose TSP does not set out relevant procedures. The inclusion of this defined term is relevant to items 11, 14, 15, 16, 20, 25, 26, 27, 31, 34, 35, 36, 38 and 39 of Schedule 1 to this instrument, set out below.

Item [2] - Regulation 1.03 (definitions of category 1 destination, category 2 destination and class of regulated business)

This item repeals the definitions of 'category 1 destination' and 'category 2 destination' and 'class of regulated business' from regulation 1.03 of Part 1 of the Aviation Regulations.

These amendments are consequential to other amendments proposed in this instrument.

The purpose of the repeal of the definition of 'class of regulated business' is to make an amendment which is consequential to the amendment in proposed item 6, below.  The amendment proposed by item 6 repeals the definition of 'regulated business'. This in turn makes the definition of 'class of regulated business' in regulation 1.03 redundant.

The purpose of the repeal of the definition of 'category 1 destination' is to make an amendment which is consequential to the amendments made by proposed items 30 to 38 (inclusive), below. The amendments proposed in items 30 to 38 streamline the examination notice scheme to provide for a single type of examination notice. As a notice for cargo destined for a category 1 destination will no longer exist, the definition is no longer be required. Similarly, the purpose of the repeal of the definition of 'category 2 destination' is to make an amendment which is consequential to the amendments made by proposed item 39, below.

Item 39, in part, repeals regulation 4.41JA which currently deals with notices destined for a category 2 destination.  As this type of notice will no longer exist, the definition for a category 2 destination is no longer required.

The effect of this amendment is that regulation 1.03 is clearer, simpler and uncluttered with redundant definitions.

Item [3] - Regulation 1.03

This item amends regulation 1.03 of Part 1 of the Aviation Regulations by inserting a new definition, and by inserting a new signpost for a definition located elsewhere in the Aviation Regulations. 

Definition of closed charter operation

The new term defined is 'closed charter operation'.  The purpose of this amendment is to provide that closed charter operation means a charter operation of the kind described in paragraph (a) or (c) of the definition of charter operation.

Signpost for the definition of examination notice

The new signpost is for the definition of 'examination notice'.  The purpose of this amendment is to direct the reader to subregulation 4.41J(2) for the meaning given for examination notice.

The effect of this amendment is to centrally locate definitions and signposts so that a reader can easily find the meaning of a term used in the Aviation Regulations.

Item [4] - Regulation 1.03 (paragraphs (c) and (d) of the definition of international cargo)

This item amends the definition of 'international cargo' in regulation 1.03 of Part 1 of the Aviation Regulations to remove paragraph (d) of the definition, and to make a technical stylistic change to paragraph (c) of the definition.

Paragraph (d) of the definition referred to cargo that is 'transhipped', or which arrived in Australia on one aircraft only to be transferred to another aircraft making an outbound flight.

The inference to be drawn from paragraph (c) of the definition, both before and after the proposed amendment made by this item, is that where cargo is transferred to another aircraft for that purpose, that this not only occurs on the airside area of an airport but also that the transfer happens without the cargo leaving the airside area.

The purpose of this amendment is to remove a redundant paragraph from the definition and to make technical changes that improve the readability of the definition.

Item [5] - Regulation 1.03

This item amends regulation 1.03 of Part 1 of the Aviation Regulations to insert a new signpost for the definition of 'loading person'. 

Signpost for the definition of loading person

The purpose and effect of this amendment is to direct the reader to subregulation 4.41G(3) for the meaning given for loading person.  That meaning has been included in the amendment proposed in Item 26 of Schedule 1 to this instrument, below.

The effect of this amendment is to centrally locate definitions and signposts so that a reader can easily find the meaning of a term used in the Aviation Regulations.

Item [6] - Regulation 1.03 (definitions of regulated business, regulation 4.41J notice and regulation 4.41JA notice)

This item makes technical amendments to repeal the definitions of regulated business, regulation 4.41J notice and regulation 4.41JA notice from regulation 1.03 of Part 1 of the Aviation Regulations. 

The purpose and effect of this amendment is to remove terms which no longer need to be defined as a consequence of the changes made by items 15 to 20, Item 22, and items 26 to 28 of Schedule 1 to this instrument, set out below.

Item [7] - Subregulation 3.01A(1) (definition of closed charter operation)

This item repeals the definition of 'closed charter operation' from regulation 3.01A of Part 3 of the Aviation Regulations.

The purpose of this amendment is to make a technical amendment as a consequence of, and to give effect to, the amendment made in Item 3 of Schedule 1 to this instrument, above, which relocates and clarifies this definition as it relates to the existing definition of 'charter operation' in regulation 1.03.

Item [8] - Regulation 4.41A

This item makes a minor technical amendment, to include numbering for the operative part of regulation 4.41A, by adding '(1)' before the beginning of the existing chapeau for regulation 4.41A of Part 4 of the Aviation Regulations. 

The purpose of this amendment is to make a technical amendment which operates in conjunction with the amendments proposed in items 9 and 10 of Schedule 1 to this instrument.

Item [9] - After paragraph 4.41A(a)

This item inserts a new paragraph (aa) in what will become subregulation 4.41A(1), as a result of the amendment proposed by item 8 above, to include the type of cargo expressly described in new subregulation 4.41A(2), proposed by Item 10, below.  

This amendment is consequential to the amendment proposed by Item 10, below and operates in conjunction with the amendments proposed in items 8 and 10 of Schedule 1 to this instrument.

Item [10] - At the end of regulation 4.41A

This item adds a new subregulation (2) to regulation 4.41A. 

New subregulation 4.41A(2) provides that, in addition to the types of cargo currently set out in paragraphs 4.41A(1)(a) and (b), Subdivision 4.1A.1 explicitly applies to another clearly expressed type of cargo.  

The relevant additional type of cargo is cargo transported on a domestic air service, that is not a closed charter service, in an aircraft that has a seating capacity for 40 or more persons or a certificated maximum take-off weight of 20,000 kg or more and the cargo is to be loaded onto the aircraft at Adelaide airport, Brisbane airport, Melbourne airport, Perth airport, or Sydney airport.

For clarity, an aircraft's 'certificated maximum take-off weight' means the maximum take-off weight stated in the aeroplane's type certificate, foreign type certificate, supplemental type certificate or foreign supplemental type certificate.

The purpose of this amendment is to make clear that Subdivision 4.1A.1 also applies to cargo intended to be transported on aircraft of that specified kind, operating as that particular type of air service, but only where the cargo is loaded onto aircraft at any one of the five specified airports (representing approximately 90 percent of Australia's domestic air cargo volumes).

The effect of proposed paragraph 4.41A(1)(b) is to both expressly extend the application of the subdivision, while also limiting the application of the subdivision to domestic cargo, loaded onto the described type of aircraft and air service at any of the five specified airports.

The amendment proposed by this item operates in conjunction with the amendments proposed in items 8 and 9 of Schedule 1 to this instrument.

Item [11] - Subregulation 4.41CA(1)

This item make a minor technical amendment, to insert a reference to cargo examining aircraft operators, defined by Item 1, above. A cargo examining aircraft operator is the type of entity expressly described in new subregulation 4.41CA(2A), who must meet certain requirements for cargo that they handle and examine to receive clearance. 

This amendment is consequential to the changes made by proposed Item 14 of Schedule 1 to this instrument.

Item [12] - Paragraph 4.41CA(2)(a)

Existing subregulation 4.41CA(3) deals with the requirements for cargo examined by Regulated Air Cargo Agents (RACAs) to receive clearance.  This item makes a technical and consequential amendment to paragraph 4.41CA(2)(a) to remove some existing references, and substitutes a new paragraph that makes the application of the subregulation clear.

The purpose of this amendment is to remove reference to a category 1 destination and a category 2 destination from the operative parts of this subregulation. This amendment is consequential to the amendment made by Item 2 above, which repeals the definitions of category 1 destination and category 2 destination from regulation 1.03.

The effect of this amendment is that, in addition to the matters set out in paragraphs 4.41CA(2)(b), (c) and (d), for subregulation 4.41CA(2) to be satisfied, the cargo must have been examined by a RACA in accordance with an examination notice given to the RACA.

Item [13] - Paragraph 4.41CA(2)(d)

This item makes a technical amendment to existing paragraph 4.41CA(2)(d) to include  the word "unauthorised" in relation to explosives.

The purpose of this amendment is to correct an omission, and to make paragraph 4.41CA(2)(d) consistent with paragraph 4.41CA(3)(d), which currently refers to cargo not containing unauthorised explosives.

The effect of this amendment is to permit cargo, handled by a RACA, that contains authorised explosives to be cleared - an example of which is appropriately packaged parts for car airbags.

Item [14] -  After subregulation 4.41CA(2)

This item inserts a new subregulation 4.41CA(2A) into regulation 4.41CA. New subregulation 4.41CA(2A) deals with the requirements for cargo examined by cargo examining aircraft operators to receive clearance. 

New subregulation 4.41CA(2A) provides that, for the subregulation to be satisfied, cargo must have been examined by the cargo examining aircraft operator in accordance with an examination notice given to the operator; and be handled by the operator in accordance with the requirements under the operator's TSP that deal with how cargo is to be handled in order to receive clearance; and have a security declaration; and not contain any unauthorised explosives.

The purpose of this item, in conjunction with the inclusion of a new definition in regulation 1.03 made by Item 1 above, is to introduce the concept of cargo examining aircraft operators, and to permit those entities to satisfy requirements for clearing cargo.

The effect of this item is to replicate the requirements in subregulations 4.41CA(2) and (3) for cargo examining aircraft operators.

Item [15] -  Paragraph 4.41CA(3)(b)

Existing subregulation 4.41CA(3) deals with the requirements for cargo that need not be examined to receive clearance.  This item makes a technical and consequential amendment to paragraph 4.41CA(3)(b) to remove an existing reference and substitute a new paragraph that makes the application of the subregulation clear.

The purpose of this amendment is to remove reference to regulated business from the operative parts of this subregulation. This amendment is consequential to the amendment made by items 2 and 6 above, which in part repeal the definitions of 'class of regulated business' and 'regulated business' from regulation 1.03.

The effect of amended paragraph 4.41CA(3)(b) provides that for subregulation 4.41CA(3) to be satisfied, the cargo must be handled by a RACA or a cargo examining aircraft operator in accordance with the requirements under the relevant entity's security program or TSP that deal with how cargo that has not been examined is to be handled in order to receive clearance.

Item [16] - Paragraph 4.41D(b)

Regulation 4.41D deals with the meaning of a security declaration, and describes what a security declaration is in relation to the clearance of cargo. This item repeals paragraph 4.41D(b), and substitute a new paragraph (b).  The item also introduces the concept of 'the issuer' in relation to the entity who issues a security declaration in relation to cargo.

New paragraph (b) provides that, in addition to the matters set out in paragraphs 4.41D(a) and (c), a security declaration is a document that is issued by a person (the issuer) that is a known consignor, a RACA or a cargo examining aircraft operator, when the cargo is in the possession of the issuer.

The purpose and effect of this amendment is to make a stylistic amendment to clarify who may issue a security declaration in relation to an item of cargo.

Item [17] - Paragraph 4.41D(c)

This item repeals the words "following information", and substitute the word "following" in existing paragraph 4.41D(c).  This item makes a technical, and stylistic amendment.

The purpose and effect of this amendment is to assist in making the regulation more readable by removing redundant or unnecessary words where the meaning is still clear after the word is removed.

Item [18] - Subparagraph 4.41D(c)(i)

This item repeals the words "regulated business issuing the document", and substitutes the word "issuer" in existing subparagraph 4.41D(c)(i). This amendment is consequential to the amendment made by items 2 and 6 above, which in part repeal the definitions of 'class of regulated business' and 'regulated business' from regulation 1.03, and technical in relation to replacing those terms with the concept of 'the issuer', introduced by Item 16 above.

The purpose and effect of this proposed amendment is to assist in the readability of the regulation, and to remove the redundant reference to "regulated business".

Item [19] - Subparagraph 4.41D(c)(ii)

This item repeals the words "regulated business", and substitutes the word "issuer" in existing subparagraph 4.41D(c)(ii). This amendment is consequential to the amendment made by items 2 and 6 above, which in part repeal the definitions of 'class of regulated business' and 'regulated business' from regulation 1.03, and technical in relation to replacing those terms with the concept of 'the issuer', introduced by Item 16 above.

The purpose and effect of this proposed amendment is to assist in the readability of the regulation, to remove the redundant reference to "regulated business", and to make subparagraph 4.41D(c)(ii) consistent with subparagraph 4.41D(c)(i), as amended by Item 18 above.

Item [20] - Subparagraph 4.41D(c)(iii)

This item repeals existing subparagraph 4.41D(c)(iii) which currently provides that a security declaration is a document that includes information regarding "whether the regulated business is a known consignor or a RACA", and substitutes "whether the issuer is a known consignor, a RACA or a cargo examining aircraft operator".

To assist in the readability of regulation 4.41D, this item also introduces the concept of "the issuer" to refer to a known consignor, a RACA or a cargo examining aircraft operator.

The purpose of this amendment is to include cargo examining aircraft operators within the application of subparagraph 4.41D(c)(iii).

This amendment is consequential to the amendments made by Item 1, above (which introduces the concept of cargo examining aircraft operator), and to amendments made elsewhere in this instrument.

Item [21] - Subparagraphs 4.41D(c)(v) and (vi)

After the current chapeau to regulation 4.41D and paragraph (c) which provide that "a security declaration is a document that ... includes the following ... ", subparagraphs 4.41D(c)(v) and (vi) provide for information about (v) the cargo's country of origin; and (vi) the cargo's country of destination".

This item repeals the subparagraphs, and substitute new subparagraphs (v) and (vi) which provide for information about:

*         either the airport where the cargo is first loaded onto the aircraft or, if the cargo originates with a known consignor, the physical address at which the cargo originates with the known consignor; or,

*         the airport to which the cargo is being transported.

The purpose of these amendments is to require clear and useful information about the cargo that may be used for tracking-back to the cargo's point of origin.  That is, where the item of cargo received clearance, or the physical address if the cargo originated from a known consignor. It will also assist to identify the cleared status of cargo items that are transhipped domestically. 

The notes following new subparagraphs (v) and (vi) provide that the airport may be named by using the International Civil Aviation Organization (ICAO) 4 letter code or 3 letter code, or by using the International Air Transport Association (IATA) 3 letter code which identifies the airport.

As an example, if the current requirements were applied to domestic cargo, the cargo item would only be required to have "Australia" recorded as both its country of origin and of destination.

The amendments require information about the airport or city at which the item received clearance, or if it originated with a known consignor, the physical address at which it originated with the known consignor.  The amendments also require the cargo's final destination airport code or city code to be recorded.

Example record of the origin address and destination code for a known consignor:

The effect of this amendment is that the requirement to provide sufficiently detailed information about cargo's origin and destination is clear.

Item [22] - Subparagraphs 4.41D(c)(viii) and (viiia)

Current subparagraphs 4.41D(c)(viii) and (viiia) deal with the examination methods applied to cargo where the cargo must be examined to receive clearance, in accordance with the requirements for the category of its destination (either category 1 or category 2).

This item repeals subparagraphs (viii) and (viiia), and substitute new subparagraph (viii).

New subparagraph (viii) provide that the information required to be recorded in the document is, if the cargo is required to be examined to receive clearance details of the examination method applied to the cargo by the issuer and a statement that the cargo was examined in accordance with an examination notice.

The purpose of this amendment is to make a technical amendment to cater for the single examination notice scheme, and to align the wording.

Item [23] - Regulation 4.41D (note 1)

This item repeals the note following regulation 4.41D, and substitutes a new note 1, which provides that, for the definition of document, see section 2B of the Acts Interpretation Act 1901.

The definition of document in section 2B of the Acts Interpretation Act 1901 provides that document means any record of information, and includes:

 (a)  anything on which there is writing; and

 (b)  anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and

 (c)  anything from which sounds, images or writings can be reproduced with or without the aid of anything else; and

 (d)  a map, plan, drawing or photograph

The purpose and effect of this amendment is to make clear that a document may be anything that fits within the non-exhaustive definition in section 2B of the Acts Interpretation Act 1901, and as the note relates to regulation 4.41D, that 'document' records the information required by regulation 4.41D.

Item [24] - Paragraph 4.41F(3)(c)

Regulation 4.41F deals with the strict liability offence of issuing a security declaration in certain circumstances. Subregulation 4.41F(3) describes the circumstances in which a RACA commits an offence of strict liability.

Paragraph 4.41F(3)(c) provides for the current dual examination notice scheme (a regulation 4.41J notice or a regulation 4.41JA notice), and describes the circumstances of  non-compliance with examination requirements set out in the notice issued in relation to the category of the cargo's destination.

This item repeals paragraph 4.41F(3)(c), and substitutes new paragraph 4.41F(3)(c) which provide that the RACA commits an offence of strict liability if the RACA has not examined the cargo in accordance with an examination notice given to the RACA.

The purpose and effect of this amendment is to provide for the single examination notice scheme. This amendment operates in conjunction with other amendments proposed in this instrument.

Item [25] - Subregulation 4.41F(5)

This item repeals subregulation 4.41F(5) including the penalty, and substitutes the new subheading 'Cargo examining aircraft operators', and new subregulations 4.41F(5), (6) and (7).

The new subheading before subregulation 4.41F(5) makes clear that subregulations 4.41F(5) and (6) apply to cargo examining aircraft operators. New subregulations 4.41F(5) and (6) specify the circumstances in which a cargo examining aircraft operator commits an offence. New subregulation 4.41F(7) specifies the circumstances in which persons other than known consignors, RACAs and cargo examining aircraft operators commit an offence.

The purpose of new subregulation 4.41F(5) is to provide that operators commit an offence of strict liability if they issue a security declaration in circumstances where the operator issues a security declaration for cargo, and the Secretary has not issued a subparagraph 44B(2)(b)(i) notice for the cargo and, the operator has not examined the cargo in accordance with their examination notice. The penalty imposed for contravention of this offence is 100 penalty units.

The purpose of new subregulation 4.41F(6) is to provide that operators commit an offence of strict liability if they issue a security declaration for cargo and the operator has not handled the cargo in accordance with their 'in force' TSP. The penalty imposed for contravention of this offence is 100 penalty units.

The purpose of new subregulation 4.41F(7) is to provide that persons other than known consignors, RACAs and cargo examining aircraft operators commit an offence of strict liability if they purport to issue a security declaration for cargo; and the person is not a known consignor, a RACA or a cargo examining aircraft operator. The penalty imposed for contravention of subregulation (7) is 50 penalty units.

The effect of these amendments is to replicate relevant parts and the penalty scheme of existing regulation 4.41F, to also expand its application to include cargo examining aircraft operators, and to make clear - by way of strict liability and the corresponding penalty - that a failure to comply with the requirement to issue a security declaration poses a risk to aviation security. This amendment will act as a both a deterrent and will place loading persons on notice to guard against the possibility of any contravention, which is likely to significantly enhance the effectiveness of the enforcement regime in deterring this conduct.

The Commonwealth Guide to Framing Offences, Infringement Notices and Enforcement Powers (the Guide) has been consulted in framing the strict liability offences and penalty provisions in proposed new subregulations 4.41F(5), (6) and (7) which carry the penalties of 100 penalty units if contravened by cargo examining aircraft operators, and 50 penalty units if contravened by persons other than known consignors, RACAs and cargo examining aircraft operators.

Generally speaking, air cargo requires examination in accordance with the methods and techniques set out in an examination notice before it can receive clearance for loading. Where the Secretary has issued a notice under subparagraph 44B(2)(b)(i) of the Act declaring that the cargo does not need to be examined to be cleared, the cargo must still have been handled in accordance with procedures set out in security programs and in accordance with requirements set out in examination notices, for a security declaration to be issued before loading the cargo onto air craft.

Security declarations are issued where the cargo has been handled appropriately, kept secure, examined where circumstances require it to be, and cleared as not posing a risk of unlawful interference with aviation. 

A security declaration for an item of cargo is evidence that the cargo has been handled in accordance with any relevant security program, notice from the Secretary, regulatory requirements, and obligations imposed on aviation industry participants by the Act.  

Imposing a fine of 100 penalty units for contravention of this requirement on a cargo examining aircraft operator is considered an appropriate penalty to impose. The penalty would apply in regard to issuing a security declaration for an item of cargo for which it is apparent that examination is required so it can be cleared, where cargo was not handled in accordance with their examination notice or with their transport security program.

Similarly, imposing a fine of 50 penalty units on a person who purports to issue a security declaration in circumstances where they are not a known consignor, RACA or cargo examining aircraft operator is considered appropriate.  The reasoning is that if they are not one of those named entities, they would not have a security program that details how to maintain cargo security or otherwise handle cargo, or an examination notice that sets out how cargo must be dealt with and secured during the process of being examined and cleared for loading.  An activity of this type would pose an obvious risk to aviation security.

These penalties are appropriate in the circumstances because:

*         the maximum penalty for an offence permitted to be prescribed in the Regulations:

• for an aircraft operator is 200 penalty units (see paragraph 44C(4)(a) of the Act);
• for an aviation industry participant (who is not an Accredited Air Cargo Agent (AACA) or an aircraft operator) is 100 penalty units (see paragraph 44C(4)(b) of the Act);
• includes the 5 times corporate multiplier under subsection 4B(3) of the Crimes Act 1914 (the Crimes Act);

*         these offences and their penalties operate to prohibit the particular activity of allowing cargo that has not been examined or handled in accordance with a notice or a security program to be loaded onto an aircraft, and are imposed for the purposes of safeguarding against unlawful interference with aviation; and

*         the penalties for these offences are similar to others imposed within the Aviation Regulations, and are commensurate with the risk to aviation security that loading cargo that has not been cleared in accordance with an examination notice onto an aircraft poses; and

*         these are reasonable penalties to impose, as they have a necessary element of deterrence whilst not being a manifestly excessive penalty for a strict liability offence.

In consideration of the guidance within the Guide for offences of strict liability, it is noted that, as strict liability applies to all of the physical elements of this offence:

*         the absence of the element of fault in subregulations 4.41F(5), (6) and (7) of the proposed Regulations is justified as it allows the Government to maintain a robust sanctions system which acts as both a deterrent against a person making this type of omission, and also acts as a positive incentive to comply with regulatory requirements;

*         the offences are not punishable by imprisonment, and are not dependent upon a subjective or community standard;

*         the offences are punishable by fines which do not exceed the relevant thresholds set out in subregulation 44C(4) of the Act;

*         there is a strong element of specific and general deterrence to the offences, and to require proof of intention would undermine the regulatory effectiveness of this provision and the purpose for which they are enacted as a means of safeguarding against unlawful interference with aviation;

*         unless regulations or a Secretarial notice provides otherwise, cargo must be examined to be cleared for loading onto an aircraft of specified types;

*         the clearance of an item of cargo is a regulatory requirement to establish that the cargo is safe to be loaded onto an aircraft, and is such common practice for persons who handle, make arrangements for transport of cargo or load cargo onto an aircraft, that it should be an easily discharged matter;

*         in this circumstance, penalising these persons in the absence of proof of fault is appropriate to apply because a security declaration must indicate the method of examination applied or the relevant exemption from having to comply with the requirement; and

*         the defence of honest and reasonable mistake of fact is still available for defendants under section 9.2 of the Criminal Code, outlined in Schedule 1 to the Criminal Code Act 1995.

Transporting unexamined cargo, that has not been exempted from examination by the regulations or the Secretary, and that may not have been kept in secure premises prior to uplift on-board an aircraft poses a risk to aviation security.  Imposing strict liability offences with penalties at or below the relevant thresholds set out in the Act is considered to be fully justified in this circumstance.            

Item [26] - Regulation 4.41G

This item repeals existing regulation 4.41G, and substitute new regulation 4.41G. Currently, regulation 4.41G is a strict liability offence provision which deals with loading cargo on aircraft if the cargo does not have a security declaration. 

New regulation 4.41G deals with the offence of loading cargo without a security declaration. The amendment proposed by this item operates in conjunction with the amendment made by items 2 and 6 above, which in part repeal the definitions of 'class of regulated business' and 'regulated business' from regulation 1.03.

The purpose of this amendment is to explicitly state the entities to which this regulation applies, rather than to refer to the relevant entities by a collective term.  This amendment effectively replicates the offence provisions and penalties set out in existing regulation 4.41G.

New regulation 4.41G specifies the elements of, and penalties for, the strict liability offence of loading cargo without a security declaration. Penalties for the contravention of either proposed subregulation (1) or (2) apply to a loading person.

The purpose of proposed subregulation 4.41G(3) is to specify that 'loading person' means an AACA, a cargo examining aircraft operator, a known consignor, or a RACA.

The purpose of proposed subregulation 4.41G(1) is to provide that a person commits an offence of strict liability in circumstances where the person is a loading person who loads cargo onto a prescribed aircraft and the person does not have a security declaration for the cargo at the time it was loaded.

In these circumstances, if the loading person was an AACA, the penalty for this offence is 50 penalty units.  If the loading person is not an AACA, the penalty for this offence is 100 penalty units.

The purpose of proposed subregulation 4.41G(2) is to provide that a person commits an offence of strict liability in circumstances where the person is a loading person who has entered into an arrangement with another person, who is not a loading person, to load cargo onto a prescribed aircraft, and the loading person does not have a security declaration for the cargo at the time it was loaded.

In these circumstances, if the loading person was an AACA, the penalty for this offence is 50 penalty units.  If the loading person is not an AACA, the penalty for this offence is 100 penalty units.

The effect of these amendments is to replicate relevant parts and penalty scheme of existing regulation 4.41G, to also expand its application to include cargo examining aircraft operators, and to make clear - by way of strict liability and the corresponding penalty - that a failure to comply with the requirement to issue a security declaration poses a risk to aviation security. This amendment will act as a both a deterrent and will place loading persons on notice to guard against the possibility of any contravention, which is likely to significantly enhance the effectiveness of the enforcement regime in deterring this conduct.

The Commonwealth Guide to Framing Offences, Infringement Notices and Enforcement Powers (the Guide) has been consulted in framing the strict liability offences in new regulation 4.41G which carry the penalties of 50 penalty units if contravened by an AACA, and 100 penalty units in any other case.

Air cargo that requires examination to receive clearance must have been handled in accordance with procedures set out in security programs and examined in accordance with methods and techniques specified in examination notices, to be cleared for loading onto aircraft. Security declarations are issued where the cargo has been examined for unauthorised explosives, and cleared as not posing a risk of unlawful interference with aviation. 

A security declaration for an item of cargo is evidence that the cargo has been handled, examined and cleared for being loaded onto an aircraft in accordance with the Act and regulatory requirements and with any relevant notice with which the loading person is bound to comply.

Imposing a fine of 50 penalty units for an AACA, and 100 penalty units in any other case, is considered an appropriate penalty to impose in regard to loading cargo without a security declaration because:

*         the maximum penalty for an offence permitted to be prescribed in the Regulations:

• for an AACA is 50 penalty units (see paragraph 44C(4)(c) of the Act);
• for an aviation industry participant (who is not an AACA or an aircraft operator) is 100 penalty units (see paragraph 44C(4)(b) of the Act);
• for an aircraft operator is 200 penalty units (see paragraph 44C(4)(a) of the Act);
• includes the 5 times corporate multiplier under subsection 4B(3) of the Crimes Act;

*         these offences and their penalties operate to prohibit the particular activity of allowing cargo that does not have a security declaration to be loaded onto an aircraft, and are imposed for the purposes of safeguarding against unlawful interference with aviation; and

*         the penalties for these offences are similar to others imposed within the Aviation Regulations, and are commensurate with the risk to aviation security that a failure to comply with the obligation to issue a security declaration poses; and

*         these are reasonable penalties to impose, as they have a necessary element of deterrence whilst not being a manifestly excessive penalty for a strict liability offence.

In consideration of the guidance within the Guide for offences of strict liability, it is noted that, as strict liability applies to all of the physical elements of this offence:

*         the absence of the element of fault in subregulations 4.41G(1) and 4.41G(2) of the proposed Regulations is justified as it allows the Government to maintain a robust sanctions system which acts as both a deterrent against a loading person making this type of omission, and also acts as a positive incentive to comply;

*         the offences are not punishable by imprisonment, and are not dependent upon a subjective or community standard;

*         the offences are punishable by fines which do not exceed the relevant thresholds set out in subregulation 44C(4) of the Act;

*         there is a strong element of specific and general deterrence to the offences, and to require proof of intention would undermine the regulatory effectiveness of this provision and the purpose for which they are enacted as a means of safeguarding against unlawful interference with aviation, and so that compliance and enforcement functions specified in section 79 of the Act can be properly administered;

*         the issue of a security declaration for an item of cargo is a regulatory requirement to establish that the cargo has been cleared, and is such common practice for persons who handle, make arrangements for transport of cargo or load cargo onto an aircraft, that it should be an easily discharged matter; and

*         in this circumstance, penalising persons who handle, make arrangements for transport of cargo, or load cargo onto an aircraft without proof of fault is appropriate to apply because the issue of a security declaration for an item of air cargo is a basic factual requirement for AACAs, RACAs, known consignors, and cargo examining aircraft operators to comply with, of which they should be well aware; and

*         the defence of honest and reasonable mistake of fact is still available for defendants under section 9.2 of the Criminal Code, outlined in Schedule 1 to the Criminal Code Act 1995.

In view of the risk that transporting unexamined and uncleared cargo on-board an aircraft might pose to aviation security, imposing strict liability offences with penalties at or below the relevant thresholds set out in the Act is considered to be fully justified.

Item [27] - Paragraph 4.41H(a)

Currently, regulation 4.41H deals with the offence of failing to keep records of security declarations. The chapeau to regulation 4.41H stipulates that "A person commits an offence of strict liability if", and paragraph (a) provides "the person is or was a regulated business; and".

This item removes the words "regulated business", and substitutes the words "known consignor, a RACA or a cargo examining aircraft operator".

The purpose of the amendment made by this item is to remove a redundant term and to include references to entities, as defined in the regulations, to whom the regulation applies.

The effect is to make clear on its face that the regulation applies to entities that handle, or examine or clear cargo who are a known consignor, a RACA or a cargo examining aircraft operator.

Item [28] - Paragraph 4.41H(b)

Currently, paragraph 4.41H(b) provides that "the person has, as a regulated business, issued a security declaration for the cargo; and".

This item removes the words "as a regulated business", and substitutes the words "in that capacity".

This item operates in conjunction with item 6 of this instrument, which repeals the definition of regulated business as it is no longer necessary.

The purpose of the amendment made by this item is to remove a redundant term, and simplify the reference to the entity described in paragraph 4.41H(a).

Item [29] - Subdivision 4.1A.1A of Division 4.1A of Part 4 (heading)

This item repeals the existing heading of Subdivision 4.1A.1A of Division 4.1A of Part 4 of the Aviation Regulations "Subdivision 4.1A.1A - Notice by Secretary", and substitute a new heading "Subdivision 4.1A.1A--Examination notices".

The purpose of this amendment is to reflect the introduction of the single examination notice scheme proposed by items 30 to 39.

The effect of this amendment is to make the heading of this subdivision more accurately reflect the purpose of the subdivision, in relation to the proposed single examination notice scheme.

This item operates in conjunction with other amendments proposed in this instrument that give effect to the single examination notice scheme.

Item [30] - Regulation 4.41J (heading)

This item repeals the heading of existing regulation 4.41J "4.41J Notice for examination of cargo--category 2 destinations", and substitutes a new heading "4.41J Examination notices".

The purpose of this amendment is to reflect the introduction of the single examination notice scheme.

The effect of this amendment is to make the heading of this regulation more accurately reflect the regulation's purpose, in relation to the single examination notice scheme.

This item operates in conjunction with other amendments proposed in this instrument that give effect to the single examination notice scheme.

Item [31] - Subregulation 4.41J(2)

Currently, subregulation 4.41J(2) provides that the Secretary may issue a written notice under regulation 4.41J (a regulation 4.41J notice) that sets out requirements in relation to how cargo that is to be unloaded at a category 2 destination must be examined by a RACA.

The note following subregulation 4.41J(2) provides that in certain circumstances cargo may need to be examined in accordance with other requirements, and directs the reader to regulation 4.41JA

This item repeals existing subregulation 4.41J(2) and the note which follows it, and substitutes a new subregulation 4.41J(2), which provides the Secretary with the discretion to make a written notice (an examination notice) that sets out requirements in relation to how cargo that is to be loaded onto an aircraft must be examined by a RACA or cargo examining aircraft operator.

This amendment provides the Secretary of the Department of State that administers the Aviation Act and the Aviation Regulations with the power to issue notices that set out requirements for the examination of air cargo prior to loading the cargo onto an aircraft.

Notices issued by the Secretary for this purpose are administrative in nature, and therefore would not be considered legislative instruments under the Legislation Act 2003. It is appropriate that notices of this type continue to operate as administrative notices, to preserve the security of airports at which particular types of screening do, or do not, apply.

The purpose and effect of this amendment is to introduce the single examination notice scheme, and to remove reference to the former examination notice schemes.

This item operates in conjunction with other amendments proposed in this instrument that give effect to the single examination notice scheme.

Item [32] - Subregulation 4.41J(3)

Currently, the chapeau to subregulation 4.41J(3) provides that without limiting subregulation (2), the notice may include one or more of the following, and refers to paragraphs (a) to (h).

This item amends the chapeau to subregulation 4.41J(3), to remove the words "the notice may", and to substitute the words "an examination notice may".

The purpose and effect of this amendment is to make a technical amendment, so that the provision refers to the new examination notice, rather than to a notice of unspecified type. 

This item operates in conjunction with other amendments proposed in this instrument that give effect to the single examination notice scheme.

Item [33] - Subregulation 4.41J(4)

Currently, subregulation 4.41J(4) provides that the notice may apply to a RACA or a class of RACAs. This is a reference to a regulation 4.41J notice.

Amendments proposed to regulation 4.41J by other items in this instrument extend the operation of the examination notice scheme to include cargo examining aircraft operators in addition to RACAs.

This item repeals subregulation 4.41J(4). Amendments proposed by other items in this instrument, render subregulation 4.41J(4) unnecessary.

The purpose and effect of this item is to operate in conjunction with other amendments proposed in this instrument that give effect to the single examination notice scheme.

Item [34] - Subregulation 4.41J(5)

Current subregulation 4.41J(5) mandates that the Secretary must give the notice to a RACA to which the notice applies if the Secretary is satisfied on reasonable grounds of the existence of certain circumstances set out in paragraphs 4.41J(5)(a) to (c). 

This item removes the words "the notice to a RACA to which the notice applies if", and substitutes the words "an examination notice to a RACA or cargo examining aircraft operator if the notice provides that the notice is to be given to the RACA or operator and".

The purpose and effect of this amendment, as with other items above and below, is to make clear that the examination notice scheme applies to RACAs and cargo examining aircraft operators.

Item [35] - Paragraphs 4.41J(5)(a) and (b)

Currently, after the chapeau to subregulation 4.41J(5): the Secretary must give the notice to a RACA to which the notice applies if the Secretary is satisfied on reasonable grounds, paragraphs 4.41J(5)(a) and (b) require that (a) the RACA is capable of examining cargo in accordance with the notice; and (b) the RACA intends to examine cargo in accordance with the notice.

This item inserts the words "or operator" after the word "RACA" in paragraphs 4.41J(5)(a) and (b).

The purpose and effect of this amendment, as with other items above and below, is to make clear that the examination notice scheme applies to RACAs and cargo examining aircraft operators.

Item [36] - Paragraph 4.41J(5)(c)

Currently, paragraph 4.41J(5)(c) issuing the notice to the RACA is in the interests of safeguarding against unlawful interference with aviation.

This item removes the words "issuing the notice to the RACA", and substitutes the words "giving the notice to the RACA or operator".

The purpose and effect of this amendment, as with other items above and below, is to make clear that the examination notice scheme applies to RACAs and cargo examining aircraft operators.

Item [37] - After subregulation 4.41J(5)

This item inserts a new subregulation (5A) after subregulation 4.41J(5). 

New subregulation (5A) provides that an examination notice may make different provisions in relation to cargo with respect to different circumstances.

The purpose of this proposed subregulation is to explicitly provide for, and recognise that, different requirements for the examination of cargo may need to be made, according to circumstance. Different circumstances may arise given the changing nature of Australian air cargo supply chain models, technology advances in cargo examination equipment and introduction of new types of outbound or domestic air cargo requiring examination.

This item operates in conjunction with other amendments proposed in this instrument that give effect to the single examination notice scheme.

Item [38] - Subregulation 4.41J(6)

Current subregulation 4.41J(6) provides that a RACA who has been given a notice under this regulation may, for the purposes of examining cargo, open, deconsolidate or unpack the cargo (whether or not the owner of the cargo, or any other person, has consented).

This item removes the words "A RACA who has been given a notice under this regulation", and substitutes the words "A RACA or cargo examining aircraft operator that has been given an examination notice".

The purpose and effect of this amendment is to include cargo examining aircraft operators within the single examination notice scheme.

This item operates in conjunction with other amendments proposed in this instrument that give effect to the single examination notice scheme.

Item [39] - Regulations 4.41JA, 4.41JB and 4.41K

This item repeals regulations 4.41JA, 4.41JB and 4.41K, and substitute new regulations 4.41JB and 4.41K.  Regulation 4.41JA has been made redundant by the introduction of the single examination notice scheme, and as a consequence will not be replaced.

Current regulation 4.41JB of Subdivision 4.1A.1A of Part 4 of the Aviation Regulations deals with revocation of notice issued under this Subdivision.

New regulation 4.41JB

New regulation 4.41JB provides greater administrative flexibility for the revocation or variation of examination notices.

The purpose of this amendment is, in part, to replicate the Secretary's existing powers and the existing requirements to provide copies in writing.  The purpose of this amendment is also to include cargo examining aircraft operators within the application of notice revocation scheme and to expand the grounds for revocation of an examination notice to allow for variance of a notice, or revocation and replacement, for errors or omissions.

New subregulation 4.41JB(1) mirrors the Secretary's existing power to revoke a notice in writing where a RACA makes a written request that the Secretary does so.  This amendment permits RACAs and cargo examining aircraft operators to make a written request for the revocation of their notice.

New subregulation 4.41JB(2) provides the Secretary with the power to revoke a notice where there is cause to do so (the amendment applies to both RACAs and cargo examining aircraft operators): that is, where the RACA or operator is not capable of examining cargo in accordance with their notice; or is not examining cargo in accordance with their notice; or revoking their notice is in the interests of safeguarding against unlawful interference with aviation.

New subregulation 4.41JB(3) mirrors the existing requirement that the Secretary must give a copy of a revocation, if the Secretary makes a revocation of the notice.

New subregulation 4.41JB(4) provides a new ground for revocation.  The new ground provides the Secretary with the power to satisfy themself on reasonable grounds to vary a notice or revoke a notice given to a RACA or operator and substitute it with a new notice for the purpose of correcting an error or omission in the original notice. Where the Secretary varies or substitutes a notice, it would have effect as if it had been given at the time the original notice was given. This ensures operational expediency that there is no delay between correcting an error or omission in a notice and the giving of the notice to the RACA or operator.

This amendment represents an expansion of the revocation grounds, and may be initiated by the RACA or operator, or by the Secretary on their own initiative (new subregulation 4.41JB (6)), and if the Secretary varies or revokes the notice, a copy must be given to the RACA or operator (new subregulation 4.41JB (5)).

The effect of this amendment is that the grounds for revocation of an examination notice are broader and more flexible to permit an administrative change where it is necessary to correct error or omission, yet retains the existing grounds to revoke a notice for cause.

New regulation 4.41K

Current regulation 4.41K is a strict liability offence provision which deals with a RACAs failure to comply with a regulation 4.41J or 4.41JA notice.  It provides that a RACA commits an offence of strict liability if the Secretary has given the RACA a regulation 4.41J notice or a regulation 4.41JA notice; and the RACA does not comply with the notice. Current regulation 4.41K provides that the penalty for this offence is 100 penalty units.

New regulation 4.41K is also a strict liability offence provision, and the provision deals with a RACA or a cargo examining aircraft operator's failure to comply with an examination notice.

New subregulation 4.41K(1) essentially replicates existing regulation 4.41K, including the penalty. It provides that a RACA commits an offence of strict liability if the Secretary has given the RACA an examination notice and the RACA does not comply with the notice.  The penalty for this offence remains at 100 penalty units.

New subregulation 4.41K(2) mirrors subregulation (1) but applies to a cargo examining aircraft operator.  It provides that a cargo examining aircraft operator commits an offence of strict liability if the Secretary has given the operator an examination notice and the operator fails to comply with the notice. The penalty for contravention of subregulation (2) is also 100 penalty units.

The circumstances in which a RACA or a cargo examining aircraft operator would find themselves in contravention of the offence provision are effectively identical, as are the 100 penalty unit penalties.

Imposing a fine of 100 penalty units is considered an appropriate penalty to impose in regard to non-compliance with an examination notice because:

• the maximum penalty for an offence permitted to be prescribed in the proposed Regulations:
• for an aviation industry participant (who is not an AACA or an aircraft operator) is 100 penalty units (see paragraph 44C(4)(b) of the Act);
• for an aircraft operator is 200 penalty units (see paragraph 44C(4)(a) of the Act);
• includes the 5 times corporate multiplier under subsection 4B(3) of the Crimes Act;

*         these offences and their penalties operate to prohibit the particular activity of non-compliance with an examination notice, and are imposed for the purposes of safeguarding against unlawful interference with aviation; and

*         the penalties for these offences are similar to others imposed within the Aviation Regulations, and are commensurate with the risk to aviation security that a failure to comply with an examination notice poses; and

*         these are reasonable penalties to impose, as they have a necessary element of deterrence whilst not being a manifestly excessive penalty for a strict liability offence.

In consideration of the guidance within the Guide for offences of strict liability, it is noted that, as strict liability applies to all of the physical elements of this offence:

*         the absence of the element of fault in subregulations 4.41K(1) and 4.41K(2) of the proposed Regulations is justified as it allows the Government to maintain a robust sanctions system which acts as both a deterrent against a RACA or an operator making this type of omission, and also acts as a positive incentive to comply with regulatory and administrative requirements;

*         the offences are not punishable by imprisonment, and are not dependent upon a subjective or community standard;

*         the offences are punishable by fines which do not exceed the relevant thresholds set out in subregulation 44C(4) of the Act;

*         there is a strong element of specific and general deterrence to the offences, and to require proof of intention would undermine the regulatory effectiveness of this provision and the purpose for which the requirement is enacted as a means of safeguarding against unlawful interference with aviation, and so that compliance and enforcement functions specified in section 79 of the Act can be properly administered;

*         compliance with an examination notice is a regulatory requirement that describes the methods and techniques that must be employed for cargo to be cleared, and is such common practice for persons who handle, make arrangements for transport of cargo or load cargo onto an aircraft, that it should be an easily discharged matter; and

*         in this circumstance, penalising persons who handle, make arrangements for transport of cargo, or load cargo onto an aircraft without proof of fault is appropriate to apply because compliance with an examination notice is a basic factual requirement for RACAs and cargo examining aircraft operators to comply with, of which they should be well aware; and

*         the defence of honest and reasonable mistake of fact is still available for defendants under section 9.2 of the Criminal Code, outlined in Schedule 1 to the Criminal Code Act 1995.

In view of the risk that transporting unexamined and uncleared cargo on-board an aircraft might pose to aviation security, imposing strict liability offences with penalties at or below the relevant thresholds set out in the Act is considered to be fully justified.         

The purpose and effect of this proposed amendment is to recognise the inclusion of cargo examining aircraft operators within the scope of the proposed new single examination scheme.

Item [40] - Subparagraph 4.42(a)(ii)

Regulation 4.42 of Part 4 of the Aviation Regulations deals with designating regulated air cargo agents, or RACAs.

Current subparagraph 4.42(a)(ii) provides that for the purposes of paragraph 44C(2)(i) of the Act, a person is a RACA if the person carries on a business that includes the examination, in accordance with a regulation 4.41J notice or a regulation 4.41JA notice given to the person, of cargo to be carried on a prescribed aircraft.

This item amends subparagraph 4.42(a)(ii), to remove the words "a regulation 4.41J notice or a regulation 4.41JA", and to substitute the words "an examination" in relation to the type of notice being referred to.

The purpose and effect of this amendment is to make a technical amendment, so that the provision refers to the new examination notice. 

This amendment operates in conjunction with the amendments proposed in part of items 3, 6, and 39, and by items 29 to 38 of Schedule 1 to this instrument.

Item [41] - Paragraph 4.43(1)(b)

Regulation 4.43 of Part 4 of the Aviation Regulations deals with applying for designation as a RACA.

This item amends paragraph 4.43(1)(b), to remove the words "a regulation 4.41J notice or a regulation 4.41JA", and to substitute the words "an examination" in relation to the type of notice being referred to. Current paragraph 4.43(1)(b) provides that a person may apply, in writing, to the Secretary to be designated as a RACA if the person intends to carry on a business that includes the examination, in accordance with a regulation 4.41J notice or a regulation 4.41JA notice, of cargo to be carried on a prescribed aircraft.

The purpose and effect of this amendment is to make a technical amendment, so that the provision refers to the new examination notice. 

This amendment operates in conjunction with the amendments proposed in part of items 3, 6, and 39, and by items 29 to 38 of Schedule 1 to this instrument.

Item [42] - Subparagraph 4.44B(1)(f)(ii)

This item amends subparagraph 4.44B(1)(f)(ii), to remove the words "a regulation 4.41J notice or a regulation 4.41JA", and to substitute the words "an examination" in relation to the type of notice being referred to.

The purpose and effect of this amendment is to make a technical amendment, so that the provision refers to the new examination notice. 

This amendment operates in conjunction with the amendments proposed in part of items 3, 6, and 39, and by items 29 to 38 of Schedule 1 to this instrument. 

Item [43] - In the appropriate position in Part 10

This item inserts new Division 16 into Part 10 of the Aviation Regulations. New Division 16 deals with amendments made by the proposed Regulations, and is divided into two operative parts, subdivision A and subdivision B.

New subdivision A, which deals with preliminary matters, inserts new regulation 10.37, which defines terms for Division 16 of Part 10.  It provides that:

*         amended Regulations means the Regulations as amended by the proposed Regulations.

*         amending Regulations means the Aviation Transport Security Amendment (Domestic Cargo) Regulations 2020.

*         old Regulations means the Regulations as in force immediately before 1 July 2020.

The purpose of these definitions is to make clear which version of the regulations is being referred to in new subdivision B.

New subdivision B, which deals with amendments made by Schedule 1 to the amending Regulations inserts new regulations 10.38, 10.39 and 10.40.

New regulation 10.38 makes provision for saving a regulation 4.41JA notice that was in force immediately before 1 July 2020. 

The effect of this regulation is to make clear that an in force regulation 4.41JA notice continues to have effect (and may be dealt with) on and after 1 July 2020 as if it were an examination notice given under subregulation 4.41J(2) of the amended Regulations.

New regulation 10.39 provides that the amendment of regulation 4.41JB of the old Regulations made by Item 36 of Schedule 1 to the amending Regulations does not apply in relation to a request made before 1 July 2020.

The effect of this regulation is to make clear that if an aviation industry participant made an application under regulation 4.41JB for their 4.41JA notice to be revoked before 1 July 2020, the amendments made to regulation 4.41JB do not apply to the application for revocation. 

New regulation 10.40 makes provision for saving a security declaration issued under the old Regulations in relation to international cargo between 1 June 2020 and 30 June 2020.

The effect of this regulation is, if a security declaration is in force immediately before 1 July 2020 and the cargo to which the security declaration relates is kept continuously secure from the time the cargo receives clearance until it is loaded onto an aircraft, the security declaration remains in force according to its terms on and after 1 July 2020 as if it were a security declaration issued under regulation 4.41D of the amended Regulations.

Schedule 2--Amendments commencing 1 July 2021

Aviation Transport Security Regulations 2005

This Schedule amends the Aviation Transport Security Regulations 2005 (the Aviation Regulations) to further expand air cargo examination requirements.

This Schedule gives effect to the second of two stages for the enhanced and streamlined cargo examination measures.  The Amendments in Schedule 1 apply in relation to Adelaide airport, Brisbane airport, Melbourne airport, Perth airport, or Sydney airport. The Amendments introduced in this Schedule enhance cargo examination requirements at all other airports in Australia 12 months after the first stage comes into effect to provide smaller operators with additional time to make arrangements to upgrade their security measures.

Item [1] - Paragraphs 4.41A(2)(b) and (c)

On 1 July 2021, this item repeals paragraphs (b) and (c) of subregulation 4.41A(2) (proposed by Item 10 of Schedule 1 to this Instrument, which is intended to come into effect on 1 July 2020), and makes a substitution.  This item proposes that the circumstance set out in substituted paragraph 4.41A(2)(b) is that the air service is not a closed charter operation.

The purpose of this amendment is to remove the limitation imposed by specifying the five airports in paragraph 4.41A(2)(c) (see Item 10 of Schedule 1 to this Instrument).

The effect of this amendment is that from 1 July 2021 subdivision 4.1A.1 applies to:

*         international cargo,

*         cargo to which the Subdivision applies because the Secretary has issued a notice to that effect under regulation 4.41J,and

*         cargo that is intended to be loaded onto a domestic air service, in an aircraft that has a seating capacity for 40 or more persons or a certificated maximum take-off weight of 20,000 kg or more and that is not a closed charter operation (and not limited to the five airports which the provision previously applied to).