EXPLANATORY STATEMENT

 

Select Legislative Instrument 2009 No. 24

 

Issued by the Authority of the Minister for Infrastructure, Transport, Regional Development and Local Government

 

Aviation Transport Security Act 2004

Aviation Transport Security Amendment Regulations 2009 (No. 1)

 

Civil Aviation Act 1988

Civil Aviation Amendment Regulations 2009 (No. 1)

 

Section 133 of the Aviation Transport Security Act 2004 (the ATSA) provides that the Governor-General may make regulations, prescribing matters required or permitted by the ATSA to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the ATSA.

 

More specifically, section 62 of the ATSA provides, in part, that the regulations may, for the purposes of safeguarding against unlawful interference with aviation prescribe requirements in relation to onboard security including the management and control of passengers and the security features on an aircraft.

Section 98 of the Civil Aviation Act 1988 (the CAA) provides that the Governor‑General may make regulations, not inconsistent with the CAA prescribing matters required or permitted by the CAA to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the CAA.

 

The purpose of the Regulations is to amend the provisions of the Aviation Transport Security Regulations 2005 (the ATSR) relating to onboard security of prescribed aircraft to:

·        restrict the class of persons who are allowed to enter and remain in the cockpit of an aircraft fitted with a cockpit door, during flight;

·        clarify cockpit offences on aircraft; and

·        make minor technical drafting amendments.

 

The Regulations also insert a minor consequential note into the Civil Aviation Regulations 1988 (the CAR).

 

Attachment A explains the scope of the amendment to the ATSR. Details of the amendments to the ATSR and the CAR are set out in Attachment B and Attachment C respectively.

 

The Regulations are legislative instruments for the purposes of the Legislative Instruments Act 2003.

 

The Regulations each commence 10 days after the day on which they are registered on the Federal Register of Legislative Instruments.

 

The amendments were developed in consultation with the aviation industry. Discussions were held through industry forums including a regulatory working group established through the Aviation Security Advisory Forums and Regional Industry Consultative Committees. Key industry stakeholders also provided positive feedback on the draft amendments.

 

 

ATTACHMENT A

 

Scope of the Regulations

 

The Regulations update the Aviation Transport Security Regulations 2005 (the ATSR) restricting the class of people who are allowed to enter and remain in the cockpit of a prescribed aircraft with a cockpit door by requiring them to satisfy entry requirements in order to access the cockpit. The Regulations also redraft the existing provisions relating to the cockpit doors and passenger restraining devices, without changing the substance of those provisions.

 

Security of cockpit – Prescribed Aircraft

 

The ATSR currently allows a person to enter and remain in the cockpit of an aircraft, after takeoff, if he or she is authorised by the Civil Aviation Regulations 1988 (the CAR). Under regulation 227 of the CAR, a person is permitted to enter and remain in the crew compartment (cockpit) during flight if the person is a member of the operating crew of the aircraft (paragraph 227(1A)(a)), or if the person is permitted by the pilot in command to enter the compartment (paragraph 227(1A)(b)).

 

The discretionary ability of the pilot in command, given under paragraph 227(1A)(b) of the CAR, to authorise entry to the cockpit is of concern as the pilot could permit a family member, friend or other into the cockpit that does not have a genuine safety, security, operational or training reason for being there.

The amendments address this issue and restrict the classes of persons permitted to enter or remain in the cockpit during flight.

The ATSR specifies that the pilot in command may only permit the following people to enter the cockpit during flight:

·        a member of the aircraft’s crew;

·        an employee of the aircraft operator;

·        a person, permitted by the aircraft operator, who has a security, safety, operational or training requirement;

·        a person authorised under the CAR (excluding paragraph 227(1A)(b) of the CAR);

·        a person authorised under the Civil Aviation Safety Regulations 1988; or

·        a supervised person authorised by the Secretary and the aircraft operator.

 

Nothing in the Regulations prevent the reasonable conduct of the pilot in command to either permit or refuse entry to a person in order to protect the safety or security of the aircraft, cargo, a person or an airport. This is currently expressed under section 10A of the Aviation Transport Security Act 2004.

 

 

ATTACHMENT B

 

Details of the Aviation Transport Security Amendment Regulations 2009 (No. 1)

 

Regulation 1 – Name of Regulations

 

The title of the Regulations is the Aviation Transport Security Amendment Regulations 2009 (No. 1).

 

Regulation 2 – Commencement

 

This regulation provides for the Regulations to commence ten days after the day that they are registered.

 

Regulation 3 – Amendment of Aviation Transport Security Regulations 2005

 

The Aviation Transport Security Regulations 2005 (the ATSR) are amended as set out in Schedule 1.

 

Schedule 1 – Amendments

 

Item [1] – Regulations 4.66 and 4.67

 

Cockpit doors are a critical component of aircraft security. The purpose of item [1] is to restrict access to the cockpit as a measure to further reduce the likelihood of hijacking.

 

Division 4.4 (regulations 4.66 to 4.72) of the ATSR relates to onboard security. Under current subregulations 4.67(2), (3) and (4), offences relating to cockpit doors are strict liability offences which carry penalties of up to 200 penalty units. The significant penalties highlight the potentially catastrophic results that can occur from seemingly minor breaches of, for example, a cockpit door being left unlocked during a flight or from permitting an unauthorised person access to the cockpit.

 

Item [1] creates a new Subdivision 4.4.1 titled ‘Security of cockpit in prescribed aircraft with cockpit door’. The Subdivision redrafts existing regulation 4.67 and separates the offences currently contained within that regulation.

 

4.66 Meaning of relevant aircraft

Regulation 4.66 defines the term ‘relevant aircraft’, when used within this Subdivision, to mean a prescribed aircraft with a cockpit door. Existing regulation 4.66 is relocated to new Subdivision 4.4.2 as described in item [2] below.

 

4.67 Offence – if cockpit door not lockable

Regulation 4.67 is a technical amendment which redrafts current paragraph 4.67(2)(a) and subregulation 4.67(7) to enhance the reader’s understanding of the offence.

 

The effect of the offence remains unchanged clarifying that an aircraft operator commits an offence if the cockpit door of a relevant aircraft is unable to be locked unless the lock is faulty and the aircraft is being flown to a place to be repaired. The regulation places emphasis on the aircraft operator to ensure the cockpit is able to be secured.

 

The strict liability offence has a maximum penalty of 200 penalty units. This replicates the current penalty already applicable to this offence.

 

4.67A Offence – failure to inform Secretary of faulty cockpit door lock

Regulation 4.67A is a technical amendment which redrafts current subregulation 4.67(8).

 

The effect of the regulation remains unchanged. That is, an aircraft operator who is flying an aircraft with a faulty door lock to a place where the lock can be repaired is required to inform the Secretary, as soon as is practicable, of the flight and the measures taken to ensure that the cockpit of the aircraft is secure during the flight.

Contravention attracts a maximum penalty of 50 penalty units, replicating the current penalty already applicable to this offence.

 

4.67B Offence – no means of communication when cockpit door locked

Regulation 4.67B redrafts current paragraph 4.67(2)(b). The effect of the offence remains unchanged. That is, an aircraft operator commits an offence if there is no means for the cabin crew and flight crew to communicate with each other when the cockpit door of the aircraft is locked. The means of communicating may, for example, be a small hatch or an electronic intercom. The regulation places emphasis on the aircraft operator to ensure the cockpit door need not be opened needlessly in order for communication to take place between the flight crew and cabin crew.

 

Contravention of the regulation is an offence of strict liability with a maximum penalty of 200 penalty units. This replicates the current penalty already applicable to this offence.

4.67C Offence – cockpit door not kept locked in flight

Currently, subregulations 4.67(3) and 4.67(5) require the aircraft operator to ensure that the cockpit door remains locked during specified periods. Regulation 4.67C redrafts this offence and places responsibility for ensuring that the cockpit door is locked, whilst the aircraft is in flight, on the pilot in command, instead of the aircraft operator.

 

The door may only be unlocked when it is necessary to allow a person to enter or leave the cockpit or when otherwise necessary for safety reasons. The door may, for example, need to be opened to allow a pilot to use the restroom. The pilot does not commit an offence if the door lock is faulty and therefore unable to be locked provided the fault occurred during that flight or the aircraft is being flown to a place where it can be repaired.

 

Contravention of new regulation 4.67C attracts a maximum penalty of 50 penalty units and is an offence of strict liability.

 

This amendment places appropriate emphasis on the pilot in command to ensure that the cockpit is secure at all times.

 

4.67D Offence – aircraft operator authorises ineligible person to enter, or remain in, cockpit

Regulation 4.67D sets out the criteria by which an aircraft operator may authorise a person to enter, or remain in, the cockpit of a prescribed aircraft whilst the aircraft is in flight.

 

Subregulation 4.67D(3) restricts access to the cockpit by only permitting the aircraft operator to authorise a person who has a safety, security, operational or training purpose to enter, or remain in, the cockpit of a prescribed aircraft. For example, the aircraft operator may authorise people such as air traffic controllers, aircraft engineers or others who may need access to the cockpit. This provision is not intended to extend to family members of employees.

 

For instances that do not fall under subregulation 4.67D(3), for example, charitable events for ill children, or when a spouse wishes to accompany a pilot on their last flight before retirement, subregulation 4.67D(4) permits the operator to allow entry to the cockpit to a person or class of person if the operator has received written authorisation from the Secretary.

 

It is an offence for the aircraft operator to authorise entry to the cockpit to a person that does not meet the requirements of subregulations 4.67D(3) or (4). Contravention of these provisions attracts a maximum penalty of 200 penalty units and is an offence of strict liability.

 

The offence places responsibility on the aircraft operator to ensure that any person that they authorise to enter the cockpit has a pertinent reason to be there.

 

A note inserted after regulation 4.67D clarifies that authorisation to enter a cockpit does not infer a right of entry. As per paragraph 227(1)(b) of the CAR, a person may only enter the cockpit with the permission of the pilot in command.

 

4.67E Offence – pilot in command permits ineligible person to enter, or remain in, cockpit

Current subregulation 4.67(4) outlines the type of people who can enter the cockpit after the aircraft has taken off. The current drafting of this regulation means it is possible for an unauthorised person to enter the cockpit before takeoff and remain there for the duration of the flight without being in breach of this regulation. Regulation 4.67E removes this loophole and ensures that the pilot in command could only permit certain classes of people to enter, or remain in, the cockpit whilst the aircraft is in flight.

 

The regulation also restricts the type of people who are be permitted to enter or remain in the cockpit of a prescribed aircraft during flight and places responsibility onto the pilot in command to ensure that unauthorised persons are not permitted in the cockpit during this period.

 

Regulation 4.67E permits the following persons to enter, or remain in the cockpit:

·        a member of the aircraft’s crew;

·        an employee of the aircraft operator;

·        a person permitted by the aircraft operator who has a security, safety, operational or training requirement;

·        a person who is authorised or required under the Civil Aviation Regulations 1988 (excluding regulation 227(1A)(b)) or the Civil Aviation Safety Regulations 1998 to enter, or remain in, the cockpit; or

·        a person who has been authorised by the Secretary and aircraft operator under subregulations 4.67D(1) and (4).

 

Subparagraph 4.67E(3)(a)(iv) prohibits access to a person who previously may have been able to enter the cockpit with only the permission of the pilot in command under paragraph 227(1A)(b) of the CAR. The intention of this exclusion is to remove the pilot in command’s discretionary ability to permit a person access to the cockpit. However, as is currently specified under section 10A of the Act, nothing in the regulation 4.67E prevents the reasonable conduct of the pilot in command in either permitting or refusing entry to the cockpit in order to protect the safety or security of the aircraft, cargo, a person or an airport.

 

Persons authorised to enter the cockpit must hold identification that identifies them as the person referred to in paragraph 4.67E(3)(a).

 

Persons who have been authorised by the Secretary must show their identification to the pilot in command or a crew member and must also be supervised at all times whilst they are in the cockpit.

 

Note 1 is inserted after regulation 4.67E outlining that as per regulation 227 of the CAR, a person may only enter the cockpit if the person has permission of the pilot in command.

 

Note 2 outlines regulation 227(1A)(b) of the CAR to assist in a reader’s understanding of subparagraph 4.67E(3)(a)(iv).

 

Subdivision 4.4.2 Other on-board security measures

 

Item [1] also inserts new Subdivision 4.4.2, titled ‘Other on-board security measures’.

 

Item [2] - After regulation 4.68

 

Item [2] relocates current regulation 4.66 ‘the management and control of passengers’ to regulation 4.68A. The effect of the regulation remains unchanged. The regulation ensures that the operator of a domestic or international regular public transport operation or domestic or international open charter operation must carry on board the aircraft enough restraining devices to permit the restraint of at least 2 passengers. Subregulation 4.68A(2) requires the restraining devices to be stored on the aircraft in a place that is readily accessible to the aircraft’s crew and not visible nor readily accessible to the aircraft’s passengers. Contravention of either subregulation attracts a maximum penalty of 5 penalty units.

 

 

ATTACHMENT C

 

Details of the Civil Aviation Amendment Regulations 2009 (No. 1)

 

Regulation 1 – Name of Regulations

 

The title of the Regulations is the Civil Aviation Amendment Regulations 2009 
(No. 1).

 

Regulation 2 – Commencement

 

The Regulations commence ten days after the day that they are registered.

 

Regulation 3 – Amendment of Civil Aviation Regulations 1988

 

The Civil Aviation Regulations 1988 (the CAR) are amended as set out in Schedule 1.

Schedule 1 – Amendments

 

Item [1] – After subregulation 227 (1A)

 

Item [1] is consequential of the amendments to the Aviation Transport Security Regulations 2005 (the ATSR) and inserts notes after subregulation 227(1A) of the CAR. Note 1 directs readers to the offence set out in regulation 4.67E in the ATSR should the pilot in command permit an ineligible person to enter, or remain in the cockpit of a relevant aircraft.

 

Note 2 direct readers to the definition of ‘relevant aircraft’ under regulation 4.66 of the ATSR.