AVIATION TRANSPORT SECURITY AMENDMENT (LANDSIDE SECURITY) REGULATIONS 2019 (F2019L01573) EXPLANATORY STATEMENT

Commonwealth Numbered Regulations - Explanatory Statements

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AVIATION TRANSPORT SECURITY AMENDMENT (LANDSIDE SECURITY) REGULATIONS 2019 (F2019L01573)

EXPLANATORY STATEMENT

Issued by authority of the Minister for Home Affairs

Aviation Transport Security Act 2004

Aviation Transport Security Amendment (Landside Security) Regulations 2019

The Aviation Transport Security Act 2004 (the Act) and the Aviation Transport Security Regulations 2005 (the Principal Regulations) establish a regulatory framework for the purpose of safeguarding against unlawful interference with Australian civil aviation.

To achieve this purpose, the Principal Regulations relevantly require operators of security controlled airports and operators of prescribed air services to have a transport security program (TSP) before they can establish secure zones and conduct screening of passengers and goods, or operate prescribed air services, respectively. In particular:

* Divisions 2.2 and 2.3 of Part 2 of the Principal Regulations set out the requirements about the content of a TSP for the operator of a security controlled airport and for operators of prescribed air services respectively, and

* Part 3 of the Principal Regulations relevantly prescribes provisions concerning the establishment of secure zones at security controlled airports (Division 3.1) and physical security requirements in respect of secure zones (Division 3.4).

Legislative authority

Subsection 133(1) of the Act provides that the Governor-General may make regulations 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 Act provides that regulations may:

* prescribe matters that are to be dealt with in each TSP, including the TSP for a particular kind of aviation industry participant (such as an airport operator or an airline) (see subsection 16(3) of the Act),

* prescribe different types of landside zones (subsection 33(1)), and

* for the purposes of safeguarding against unlawful interference with civil aviation, prescribe requirements in relation to each type of landside security zone--including the prescription of offences against such regulations, with penalties of up to 200 penalty units (subsection 38(1) and paragraph 38(3)(a)).

Purpose

The Aviation Transport Security Amendment (Landside Security) Regulations 2019 (the Regulations), under subsection 133(1) of the Act, make amendments to Divisions 2.2 and 2.3 of Part 2 of the Principal Regulations to prescribe additional requirements for TSPs. Those additional requirements include procedures for evacuation and emergency management in the case of unattended or suspect vehicles or items, or armed persons in a 'crowded landside zone'.

The Regulations amend Parts 2 and 3 of the Principle Regulations to:

* insert a newly established 'crowded landside zone' as a type of landside security zone at a security controlled airport in Division 3.1 of Part 3,

* require airport operators and airlines to have policies and procedures in their TSPs with respect to crowding, explosive devices and other potential situations in crowded landside zones in Divisions 2.2 and 2.3 of Part 2, and

* require an airport operator of certain security controlled airports to take measures to control crowding in the crowded landside zone in Division 3.4 of Part 3.

The Regulations also make minor technical amendments to the Principal Regulations, including the insertion of a transitional provision with respect to the changes to requirements for TSPs.

The establishment of a new type of landside security zone, the 'crowded landside zone' and the new requirements to implement certain physical security measures in this zone, addresses risks that were highlighted by the successful terrorist attacks on airports in Brussels (March 2016) and Istanbul (June 2016). Those attacks occurred ahead of the security screening points, in the publicly accessible, landside areas of these airports. Such publicly accessible areas at airports are regarded as particularly attractive targets for terrorists who want to conduct low sophistication, mass casualty attacks. Crowded landside zones are only applicable to certain security controlled airports, designated by the Secretary (designated airports).

In the wake of these overseas attacks, the Australian Government reviewed the security arrangements for crowded places at Australia's airports and assessed that, whilst airports and airlines had arrangements in place that were generally proportionate to the risk, it would be beneficial to benchmark and enhance these measures.

The amendments made by the Regulations to the Principal Regulations formalise and standardise a requirement for operators of designated airports to demonstrate how they are managing the security of crowded landside areas within their airport. The amendments further require that the operators of designated airports and the operators of airlines flying to or from a designated airport ensure that their evacuation and emergency management plans include procedures for responding to and managing certain adverse events in crowded landside zones.

Consultation with industry and government stakeholders took place through a number of mechanisms, including via the Department of Home Affairs' Aviation Security Advisory Forum and Regional Industry Consultative Meetings. Key aviation security stakeholders comprise the membership of these groups, which include Australian international, domestic and regional aircraft operators and airports, aviation industry associations, federal police, and government agencies. In response to issues raised by Industry, amendments were made so that crowded landside zones only apply at Australia's designated airports, and that the requirement to take measures to control crowding only apply to designated airport operators. Operators of other smaller airport were excluded entirely. Airlines would still have an obligation to develop measures and procedures relating to crowded landside zones, but operators of designated airports will have sole responsibility for the delineation of, and controlling crowding within, crowded landside zones.

The Office of Best Practice Regulation (OBPR) was consulted prior to making the Regulations. As the changes made by the Regulations will not result in any more than minor regulatory or economic impacts, OBPR advised that a regulation impact statement was not required to be completed (OBPR ID: 23492). 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 Regulations are set out in Attachment B.

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

The Regulations commence on the day after registration.

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 (Landside Security) Regulations 2019

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 Amendment (Landside Security) Regulations 2019 (the Regulations), under subsection 133(1) of the Act, make amendments to Parts 2 and 3 of the Aviation Transport Security Regulations 2005 (the Principal Regulations) to prescribe additional requirements for transport security programs (TSPs). A TSP is a document that certain aviation industry participants, including airport operators and airlines, have a statutory obligation to submit, hold and maintain. A TSP sets out the measures and procedures that aviation industry participants need to implement to meet their obligations under the Aviation Transport Security Act 2004 (the Act) and the Principal Regulations. The Regulations prescribe relevant matters and documents that must be included within a TSP.

The requirements for a TSP prescribed by the Regulations in Divisions 2.2 and 2.3 of Part 2 of the Principal Regulations include procedures for evacuation and emergency management in the case of unattended or suspect vehicles or items, or armed persons in a 'crowded landside zone'.

The Regulations amend Parts 2 and 3 of the Principal Regulations to:

* insert a newly established 'crowded landside zone' as a type of landside security zone at a security controlled airport in Division 3.1 of Part 3,

* require an airport operator of certain security controlled airports to take measures to control crowding in the crowded landside zone in Division 3.4 of Part 3.

The Regulations also make minor technical amendments to the Principal Regulations, including the insertion of a transitional provision with respect to the changes to requirements for TSPs.

Human rights implications

This Disallowable Legislative Instrument engages the following rights:

* Right to life and security of the person in Articles 6 and 9 of the International Covenant of Civil and Political Rights (ICCPR), and

* Right to freedom of assembly and protest in Article 21 of the ICCPR.

Right to life and security of the person

Article 6 of the ICCPR places a positive obligation on states to protect the right to life. Article 9 of the ICCPR requires states to provide reasonable and appropriate measures to protect a person's physical security.

The amendments promote the right to life by requiring airport operators to take steps to protect public safety in crowded landside zones. Threats to the right to life mitigated by these regulations include those from malicious acts including hostile vehicle attacks, improvised explosive devices (IEDs), and active armed offenders.

Right to freedom of assembly and association

Articles 21 and 22 of the ICCPR provide that people have a right to freedom of assembly and association. Limits on the rights to freedom of assembly and association can be imposed in conformity with the law, if they are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.

The purpose of these amendments is to protect national security, public safety and public order and the rights and freedoms of others, in crowded landside zones from incidents, threats and breaches of security, including hostile vehicle attacks, IEDs, and active armed offenders.

Many aviation industry participants currently have procedures in place to protect crowded places at airports. The amendments made by the Regulations formalise certain requirements relating to crowded landside zones, including a requirement for operators of designated airports to develop and implement measures to control crowding in their TSPs (see subparagraph 2.18B(a)(i)), as well as security measures and procedures to reduce the risk and consequences of damage from explosive devices in the crowded landside zone (subparagraph 2.18(a)(ii)) and quality control procedures to test the effectiveness of security responses (subparagraph 2.18B(i) and 2.18B(ii)).

Further, under paragraph 2.21(c), the TSP for an operator of a designated airport will need to be accompanied by a document setting out evacuation and emergency procedures for an incident, threat or breach arising from an unattended or suspect vehicle or thing or armed person in a crowded landside zone (subparagraphs 2.21(2)(c)(iv)-(v) and 2.43(2)(c)(vii)-(viii)).

Finally, new regulation 3.21A makes it an offence if the Secretary of the Department of Home Affairs prescribes a crowded landside zone and the operator of the relevant designated airport does not take measures to control crowding in the crowded landside zone.

To the extent that operators of designated airports will be required to demonstrate how they are controlling crowding within prescribed crowded landside zones, these regulations may limit the right to freedom of assembly and association. However, any limitation is reasonable, necessary and proportionate. Individuals are not prevented from assembling or associating with others by these measures. Rather, operators of designated airports will be required to have procedures and methods in place to control crowding and encourage people to keep moving safely through to other areas within the airport, to prevent the accumulation of large crowds of people. They will also be required to have procedures and methods in place to test security responses, as well as evacuation and emergency management procedures for use in the event of an armed person, or a suspect or unattended vehicle or thing, in a crowded landside zone.

To the extent that methods involve the disruption of physical access to large open spaces in a crowded landside zone, the improvement of people flows and the facilitation of dispersal of crowds to other areas of the airport, these measures are reasonable and necessary. Large, uncontrolled congregations in a crowded landside zone may be at serious risk of harm in the event of a security incident. Requiring airport operators to have procedures and methods for controlling crowding in and outside of passenger terminals is proportionate to the legitimate objective of protecting national security, public safety, public order and the rights and freedoms of others.

Further, the Act notes that at subsection 3(5) 'It is not a purpose of this Act to prevent lawful advocacy, protest, dissent or industrial action that does not compromise aviation security.' As an instrument subordinate to this Act, these regulations also do not prevent lawful advocacy, protest, dissent or industrial action that does not compromise aviation security.

To the extent that these amendments require operators of designated airports to develop procedures which limit the right to freedom of assembly and association, they are reasonable, necessary and proportionate for protecting national security, public safety and public order and the rights and freedoms of others.

Conclusion

This Disallowable Legislative Instrument is compatible with human rights because it promotes the right to life and security of the person. To the extent that this Disallowable Legislative Instrument limits the rights to freedom of assembly and association, the limits are reasonable, necessary and proportionate in order to protect national security, public safety and public order.

ATTACHMENT B

Details of the Aviation Transport Security Amendment (Landside Security) Regulations 2019

Background

The Aviation Transport Security Act 2004 (the Act) requires certain aviation industry participants to submit, hold and maintain an approved transport security program (TSP). A TSP sets out the measures and procedures that aviation industry participants need to implement to meet their obligations under the Act and Aviation Transport Security Regulations 2005 (the Principal Regulations).

The TSP for an aviation industry participant is intended to demonstrate that the participant:

* is aware of their responsibility to contribute to the maintenance of aviation security,

* has in place an integrated, responsible and proactive approach to managing aviation security including in airside and landside security zones,

* has the capacity to meet the specific obligations imposed under the Act, and

* has taken into account their local security risk context in developing activities and strategies for managing aviation security.

The Aviation Transport Security Amendment (Landside Security) Regulations 2019 (the Regulations) amends the Principal Regulations to:

* prescribe an additional type of landside security zone, known as a 'crowded landside zone', which will need to be identified in the TSP of the operator of a designated airport and approved by the Secretary of the Department of Home Affairs,

* require operators of Australia's designated airports to outline evacuation and emergency management procedures concerning certain events in a crowded landside zone in their TSPs, and to take measures to control crowding in such zones, and

* also require airlines to develop emergency management and evacuation procedures concerning circumstances where there is an armed offender, or an unattended or suspect vehicle or thing, in a crowded landside zone. In practice, this will be done in conjunction with airport operators.

Other technical amendments are made to support these substantial amendments.

Crowded landside zones of a designated airport could include the area around passenger terminals ('front-of-house') and drop-off/pick-up locations, where large numbers of people congregate on a predictable or regular basis. A crowded landside zone would be established by the Secretary under subsection 32(1) of the Act, after receiving from an airport operator the map of the different security zones of an airport in a document accompanying their TSP (as required under subsection 17(2) of the Act).

Once the Secretary establishes a crowded landside zone under subsection 32(1) of the Act, it is an offence for an airport operator who is responsible for that zone to fail to take measures to control crowding in that zone.

This new obligation provides an additional layer of security at designated airports, providing further protection to members of the public. It will mitigate against the possibility of hostile vehicular attack, improvised explosive devices, and active armed offenders.

Section 1 - Name

This section provides that the title of the Regulations is the Aviation Transport Security Amendment (Landside Security) Regulations 2019.

Section 2 - Commencement

This section provides for the commencement of the Regulations, as set out in the table in subsection 2(1). Item 1 of the table in subsection 2(1) provides that the Regulations commence the day after registration on the Federal Register of Legislation (see column 2 in particular).

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 Regulations are made under the Act.

Relevant to the Regulations, and for the purpose of paragraph 133(1)(a), the Act provides that the regulations may:

· prescribe matters that are to be dealt with in each TSP, including the TSP for a particular kind of aviation industry participant (such as an airport operator or an airline) (see subsection 16(3) of the Act),

* prescribe different types of landside zones (subsection 33(1)), and

Section 4 - Schedules

This section provides for the Principal Regulations to be amended as set out in the Schedule to the Regulations.

Schedule 1 - Amendments

Aviation Transport Security Regulations 2005

Clause 1 - Regulation 1.03 (definition of secure area)

Clause 1 repeals and substitutes the definition of 'secure area' in regulation 1.03 of the Principal Regulations, so that the definition excludes crowded landside zones. A crowded landside zone is prescribed as a type of landside security zone as a consequence of the amendments made by item 8 of these Regulations. While the definition of 'secure area' includes other landside security zones, a person is only permitted to access those zones when they have met security screening requirements or display an appropriate identification card. Crowded landside zones are areas of an airport that are generally accessible by all members of the public and no such security screening or security identification card displays are required. It is therefore not appropriate to include crowded landside zones in this definition.

Clause 2 - After regulation 2.18A

Clause 2 inserts new regulation 2.18B into the Principal Regulations. New regulation 2.18B makes it a requirement that a designated airport operator's TSP must:

* set out measures and procedures to control crowding in the crowded landside zone, and to reduce the risk and consequences of damage from explosive devices in the crowded landside zone (paragraph (a)), and

* include details of exercises to be conducted to test the effectiveness of security responses in the crowded landside zone, and how such exercises are scheduled (paragraph (b)).

The purpose of new regulation 2.18B is to improve the safety and security of crowded landside zones by ensuring that operators of designated airports have developed appropriate measures and procedures, and are actively testing the effectiveness of their security responses to identified risks arising from crowding in landside zones.

Clause 3 - Paragraph 2.21(2)(c)

Regulation 2.21 of the Principal Regulations sets out the requirement for an airport operator's TSP to include additional security measures and procedures available in the event of a heightened security alert. What those measures and procedures must include is prescribed by subregulation 2.21(2), including procedures for evacuation and emergency management in the case of an aviation security incident, security threat or breach of security concerning specified events (paragraph (c)). Prior to the making of the Regulations, under the Principal Regulations, the specified events for the purpose of this paragraph were an aircraft hijacking, a bomb threat, and a failure of critical security equipment.

Clause 3 repeals paragraph 2.21(2)(c) of the Principal Regulations and substitute a new paragraph to:

* clarify that the measures and procedures must specifically concern an aviation security incident, security threat or breach of security, and

* increase the number of specified events about which procedures for evacuation and emergency management are required from three to five.

The additional specified events for the purpose of paragraph 2.21(2)(c) are an unattended or suspect vehicle or thing in a crowded landside zone (new subparagraph 2.21(2)(c)(iv)) and armed persons in a crowded landside zone (new subparagraph 2.21(2)(c)(v)).

Where an airport does not have a crowded landside zone, established by a decision of the Secretary under subsection 32(1) of the Act, new subparagraphs 2.21(2)(c)(iv) and (v) are not applicable in respect of the airport operator's TSP.

Clause 4 - Paragraph 2.43(2)(c)

Regulation 2.43 of the Principal Regulations sets out the requirement for an airline's TSP to be accompanied by a document setting out additional security measures and procedures available in the event of a heightened security alert.

Subregulation 2.43(2) prescribes the measures and procedures that are required, including procedures for evacuation and emergency management in the case of an aviation security incident, security threat or breach of security concerning specified events (paragraph (c)). Currently, under the Principal Regulations, the specified events for the purpose of this paragraph are an aircraft hijacking, a bomb threat, a failure of critical security equipment, an external attack on an aircraft, the discovery of an unknown substance on an aircraft in flight, and the discovery of an unauthorised person on board an aircraft in flight.

Clause 4 repeals paragraph 2.43(2)(c) of the Principal Regulations and substitutes a new paragraph to:

* clarify that the measures and procedures must specifically concern an aviation security incident, security threat or breach of security, and

* increase the number of specified events about which procedures for evacuation and emergency management are required from six to eight.

The additional specified events are an unattended or suspect vehicle or thing in a crowded landside zone (new subparagraph 2.43(2)(c)(vii)) and armed persons in a crowded landside zone (new subparagraph 2.43(2)(c)(viii)).

All airlines operating flights from or to an airport with a crowded landside zone now need to include procedures for evacuation and emergency management with their TSP in the case of an aviation security incident, security threat or breach of security about the events prescribed in new subparagraphs 2.43(2)(c)(vii) and (viii).

Clause 5 - After paragraph 3.02(a)

Clause 5 amends regulation 3.02 of the Principal Regulations to insert new paragraph (aa), referring to the crowded landside zone. This has the effect of making the crowded landside zone a type of landside security zone for the purposes of section 33 of the Act.

Clause 6 - Regulation 3.02 (note and diagram)

Clause 6 repeals the note referring to the diagram, and the diagram in regulation 3.02 of the Principal Regulations because the diagram is no longer reflective of security controlled airports generally.

Clause 7 - Regulation 3.21 (heading)

Regulation 3.21 of the Principal Regulations currently prescribes physical security requirements (including barriers, patrolling or surveillance) about landside security zones other than sterile areas.

Clause 7 repeals the heading of regulation 3.21 of the Principal Regulations, and substitutes a new heading. The effect of this amendment is that regulation 3.21 applies to 'certain' landside security zones being the fuel storage zone, air traffic control facilities zone and navigational aids zone, and excluding the sterile area as well as the newly created crowded landside zones. This amendment is required consequential to the amendment at clause 8 as outlined below.

Clause 8 - At the end of subregulation 3.21(1)

Clause 8 inserts 'or a crowded landside zone' at the end of subregulation 3.21(1) of the Principal Regulations. The effect of this amendment is that the physical security requirements in regulation 3.21 do not apply in respect of a crowded landside zone.

Crowded landside zones are readily accessible to the public, unlike other types of landside security zones. Therefore, the security requirements set out in regulation 3.21 for landside security zones concerning security screening and the requirement to display security identification cards are not appropriate to apply to crowded landside zones.

Clause 9 - After regulation 3.21

Clause 9 inserts a new penalty provision into the Principal Regulations (new regulation 3.21A). Subsection (1) provides the offence also applies in relation to a designated airport when the Secretary establishes a crowded landside zone for that designated airport (under subsection 32(1) of the Act).

Under this new offence, an operator of a designated airport commits an offence where:

* the Secretary has established a crowded landside zone (under subsection 32(1) of the Act) (paragraph 3.21A(2)(a)),

* the airport operator is responsible for the crowded landside zone (paragraph 3.21A (2)(b)), and

* the airport operator does not take measures to control crowding in the crowded landside zone (paragraph 3.21A (2)(c)).

By introducing this offence, the operators of designated airports now have a legal obligation to take measures to control crowding in crowded landside zones. New regulation 2.18B (see clause 2 above) requires operators of designated airports to outline in procedures accompanying their TSPs, how they would implement these measures.

The maximum penalty for an offence against new regulation 3.21A of the Principal Regulations is 200 penalty units. The maximum penalty for this offence is consistent with the penalty level that applies for other offences for failures to meet similar requirements in the Principal Regulations, and reflects the seriousness of any act or omission endangering aviation security.

The imposition of a maximum penalty of 200 penalty units is expressly provided for in paragraph 37(3)(a) of the Act, which states that regulations made under subsection 37(1) to safeguard against unlawful interference with aviation may prescribe penalties for offences against those regulations of up to 200 penalty units for an airport operator.

It is noted that this upper limit is above the 50 penalty unit threshold for penalties prescribed in regulations, as indicated in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (see pages 44-45). It is considered appropriate to have this higher maximum penalties for this offence because:

* a strong deterrent is appropriate to enact, given the security risk that needs to be addressed for crowded landside zones and the security-sensitive nature of the aviation environment, and

* this offence would only apply to a narrow class of known organisations (being operators of designated airports) which are generally large corporations with significant financial resources.

Clause 10 - Subregulations 3.25(2) and (4)

Regulation 3.25 of the Principle Regulations relevantly sets out certain offences that relate to entering different landside security zones without the permission of the responsible airport operator (subregulation (2)) and entering with a vehicle without permission (subregulation (4)).

Clause 10 amends subregulations 3.25(2) and (4) to insert '(other than a crowded landside zone)' after the words 'security zone' in those subregulations. The effect of this amendment is to ensure that the offences contained in subregulations 3.25(2) and (4) do not apply in respect of crowded landside zones. A separate offence applicable to crowded landside zones is effectively set out in the amendments made by clause 9 of the Regulations (new regulation 3.21A).

Clause 11 - Subparagraphs 3A.06(1)(c)(i), 3A.07(1)(c)(i), 3A.12(1)(c)(ii) and 3A.13(1)(c)(ii)

Regulations 3A.06, 3A.07, 3A.12 and 3A.13 set out offences relating to the movement of a person out from airside special event zones and landside special event zones, including the movement from either of those zones into a landside security zone.

The amendments made by this clause ensure that the offences contained in regulations 3A.06, 3A.07, 3A.12 and 3A.13 do not apply in relation to the movement of a person from an airside or landside special event zone to a crowded landside zone. As crowded landside zones are open to the public, it would not be appropriate to penalise people for moving into such zones.

Clause 12 - At the end of subregulation 4.14(3)

Regulation 4.14 prescribes an offence that applies to airlines who permit unauthorised persons to have access to stores prior to the start of the air service. Relevantly, all stores that come on to a plane other than from a regular provider of stores need to be cleared before they are taken onto an aircraft or into a landside security zone (under subregulation 4.14(3)).

Clause 12 amends subregulation 4.14(3) to insert the words '(other than a landside security zone)' after the words 'security zone'. This ensures that the obligation to screen stores from non-regular providers does not apply from the point of entry to the crowded landside zone (which is generally accessible to the public and not subject to other screening obligations) but from the point of entry to other zones as is appropriate.

Clause 13 - In the appropriate position in Part 10

Clause 13 inserts new Division 15 into Part 10 of the Regulations. New regulation 10.36 provides that the amendments made by items 2 to 4 of Schedule 1 to the Regulations apply in relation to the approval of a new TSP, or of proposed alterations to an existing TSP.

The amending regulations are not retrospective. An aviation industry participant (airport or airline) is only required to include the measures outlined in the amending regulations either upon the expiry of their current TSP, or where they commence updating their TSP after the amending regulations come into effect.