2004-2005-2006-2007 The Parliament of the Commonwealth of Australia THE SENATE Presented and read a first time Aviation Legislation Amendment (2007 Measures No. 1) Bill 2007 No. , 2007 (Transport and Regional Services) A Bill for an Act to amend legislation relating to aviation, and for related purposes [Page Break] 1 Short title ........................................................................................... 1 2 Commencement ................................................................................. 1 3 Schedule(s) ........................................................................................ 1 Schedule 1--Amendments 3 Aviation Transport Security Act 2004 3 Civil Aviation Act 1988 12 [Page Break] 2 aviation, and for related purposes 3 The Parliament of Australia enacts: 4 1 Short title 5 This Act may be cited as the Aviation Legislation Amendment 6 (2007 Measures No. 1) Act 2007. 7 2 Commencement 8 This Act commences on the day after it receives the Royal Assent. 9 3 Schedule(s) 10 Each Act that is specified in a Schedule to this Act is amended or 11 repealed as set out in the applicable items in the Schedule Aviation Legislation Amendment (2007 Measures No. 1) Bill 2007 No. , 2007 1 [Page Break] 2 according to its terms. [Page Break] 2 Schedule 1--Amendments 3 4 Aviation Transport Security Act 2004 5 1 Subsection 7(2) 6 Repeal the subsection, substitute: 7 (2) This Act does not make the Crown in right of the Commonwealth 8 liable to be prosecuted for an offence. 9 2 Section 9 10 Insert: 11 eligible customs officer has the meaning given by subsection 12 89B(1). 13 3 Subsection 10(1) 14 After "following done", insert ", or attempted to be done,". 15 4 At the end of paragraph 10(1)(a) 16 Add "or by any trick or false pretence". 17 5 Paragraph 10(1)(g) 18 After "false", insert "or misleading". 19 6 Subsection 19(4) 20 Repeal the subsection, substitute: 21 Failure to approve program within consideration period 22 (4) If: 23 (a) an aviation industry participant gives the Secretary a 24 transport security program; and 25 (b) the Secretary does not approve, or refuse to approve, the 26 program within the consideration period; 27 the Secretary is taken to have refused to approve the program at the 28 end of that period. 29 Note: An aviation industry participant may apply to the Administrative 30 Appeals Tribunal for review of a decision to refuse to approve a [Page Break] 2 section 126. 3 Secretary may request further information 4 (5) The Secretary may, by written notice given to the participant 5 within the consideration period, request the participant to give the 6 Secretary specified information relevant to the approval of the 7 program. 8 (6) The notice must specify a period of not more than 45 days within 9 which the information must be given. However, if more than one 10 notice is given to the participant under subsection (5), the total of 11 the periods specified in the notices must not exceed 45 days. 12 Consideration period 13 (7) The consideration period is the period of 60 days starting on the 14 day on which the Secretary received the program, extended, for 15 each notice given under subsection (5), by the number of days 16 falling within the period: 17 (a) starting on the day on which the notice was given; and 18 (b) ending on: 19 (i) the day on which the information requested in that 20 notice was received by the Secretary; or 21 (ii) if the information was not given within the period 22 specified in that notice--the last day of that period. 23 7 Subsection 20(3) 24 Repeal the subsection, substitute: 25 (3) The program remains in force for a period of 5 years or such lesser 26 period as the Secretary specifies in the notice of approval (which 27 must be at least 12 months), unless before the end of that period: 28 (a) the program is replaced under subsection 22(2); or 29 (b) the approval of the program is cancelled under this Division. 30 8 After subsection 21(3) 31 Insert: 32 (3A) If the participant gives the Secretary the program: 33 (a) varied in accordance with the direction; and [Page Break] 2 allowed by the Secretary; 3 the Secretary must, by written notice given to the participant, 4 approve the variation. The variation comes into force when the 5 notice is given. 6 Note: As the program is not replaced, the variation does not affect the period 7 for which the program is in force. Subsection 20(3) deals with the 8 period a transport security program is in force. 9 Example: A transport security program is approved on 1 January 2008. The 10 Secretary does not specify in the notice of approval the period it is to 11 be in force. 12 On 1 March 2011 a variation to the program comes into force. 13 The program (as now varied) will cease to be in force at the end of 14 31 December 2012 unless it is replaced or cancelled before then. 15 9 At the end of section 22 16 Add: 17 (3) Paragraph (1)(b) does not apply to a varied program given to the 18 Secretary under section 21. 19 10 At the end of subsection 23A(5) 20 Add: 21 Note: As the program is not replaced, the alterations do not affect the period 22 for which the program is in force. Subsection 20(3) deals with the 23 period a transport security program is in force. 24 Example: A transport security program is approved on 1 January 2008. The 25 Secretary does not specify in the notice of approval the period it is to 26 be in force. 27 On 1 March 2011 alterations to the program come into force. 28 The program (as now altered) will cease to be in force at the end of 29 31 December 2012 unless it is replaced or cancelled before then. 30 11 Section 24 31 Repeal the section. 32 12 At the end of Division 5 of Part 2 33 Add: [Page Break] 2 If: 3 (a) a transport security program for an aviation industry 4 participant is in force; and 5 (b) the participant makes a written request to the Secretary for 6 the approval of the program to be cancelled; 7 the Secretary must, by written notice given to the participant, 8 cancel the approval of the program. 9 13 At the end of section 27 10 Add: 11 Regulations under Division 5 may create offences for causing 12 disruption or interference in relation to security controlled airports. 13 14 At the end of Part 3 14 Add: 15 Division 5--Offences for causing disruption or interference 16 in relation to security controlled airports 17 38B Offences for causing disruption or interference in relation to 18 security controlled airports 19 (1) The regulations may prescribe offences in relation to the disruption 20 to or interference with the activities of an airport operator of a 21 security controlled airport, or the activities of an aircraft operator at 22 a security controlled airport, if: 23 (a) that airport is located in a Commonwealth place or in a 24 Territory; or 25 (b) that operator is a corporation to which paragraph 51(xx) of 26 the Constitution applies; or 27 (c) those activities take place in the course of, or in relation to, 28 trade or commerce: 29 (i) between Australia and places outside Australia; or 30 (ii) among the States; or 31 (iii) within a Territory, between a State and a Territory or 32 between 2 Territories. [Page Break] 2 not exceed 50 penalty units. 3 (2) The offences prescribed by the regulations may relate to conduct 4 that occurs outside the boundaries of a security controlled airport. 5 (3) Subsection (2) does not limit subsection (1). 6 15 After paragraph 62(1)(a) 7 Insert: 8 (aa) the security features on an aircraft; 9 16 Section 75 10 After: 11 (b) law enforcement officers (Division 3); 12 insert: 13 (ba) eligible customs officers (Division 3A); 14 17 After subsection 84(1) 15 Insert: 16 (1A) An ordinary search or a frisk search of a person under 17 subsection (1) must, if practicable, be conducted by a person of the 18 same sex as the person being searched. 19 18 After Division 3 of Part 5 20 Insert: 21 Division 3A--Eligible customs officers 22 89A Simplified overview of Division 23 This Division provides certain customs officers with powers to: 24 (a) stop and search persons and vehicles at airports; 25 and [Page Break] 2 area or zone of an airport; and 3 (c) restrain and detain persons until the persons can be 4 dealt with by a law enforcement officer; and 5 (d) remove vehicles from an airport, or from an area or 6 zone of an airport, if the customs officer is unable 7 to have the vehicle removed by the person in 8 control of it. 9 This Division establishes restrictions on these powers, such as 10 requiring the customs officer to explain why a search is to be made 11 and limiting the amount of force that may be used. 12 A person who does not leave an aircraft or an airport, or an area or 13 zone of an airport, when requested to do so by the customs officer 14 commits an offence, as does a person who hinders or obstructs the 15 officer exercising powers under this Division. 16 89B Eligible customs officers 17 (1) An eligible customs officer is a person who: 18 (a) is an officer of Customs within the meaning of subsection 19 4(1) of the Customs Act 1901; and 20 (b) is on duty at a security controlled airport; and 21 (c) satisfies the training and qualification requirements 22 prescribed by the regulations for the purposes of this 23 paragraph. 24 (2) The regulations may prescribe the following for eligible customs 25 officers: 26 (a) requirements in relation to the form, issue and use of identity 27 cards; 28 (b) requirements in relation to uniforms. 29 89C Stopping and searching persons 30 (1) If an eligible customs officer reasonably believes that it is 31 necessary to do so for the purposes of safeguarding against 32 unlawful interference with aviation, the officer may stop a person [Page Break] 2 search of the person. 3 (2) An ordinary search or a frisk search of a person under 4 subsection (1) must, if practicable, be conducted by a person of the 5 same sex as the person being searched. 6 (3) If an eligible customs officer stops a person under subsection (1), 7 the officer must: 8 (a) identify himself or herself as an eligible customs officer to 9 the person; and 10 (b) tell the person why the person has been stopped; and 11 (c) if the person is to be searched--tell the person why the 12 person is to be searched. 13 (4) A person commits an offence if: 14 (a) the person engages in conduct; and 15 (b) the conduct hinders or obstructs an eligible customs officer in 16 the exercise of a power under subsection (1). 17 Penalty for an offence against this subsection: Imprisonment 18 for 2 years. 19 89D Stopping and searching vehicles 20 (1) If an eligible customs officer reasonably believes that it is 21 necessary to do so for the purposes of safeguarding against 22 unlawful interference with aviation, the officer may do either or 23 both of the following in an airside area: 24 (a) require the driver of a vehicle to stop the vehicle; 25 (b) search the vehicle. 26 (2) If an eligible customs officer stops a vehicle under subsection (1), 27 the officer must: 28 (a) identify himself or herself as an eligible customs officer to 29 the driver of the vehicle; and 30 (b) tell the driver why the vehicle has been stopped; and 31 (c) if the vehicle is to be searched--tell the driver why the 32 vehicle is to be searched. [Page Break] 2 subsection (1) that was not stopped by the officer, the officer must, 3 if there is a driver or person in control of the vehicle present: 4 (a) identify himself or herself as an eligible customs officer to 5 the driver or person; and 6 (b) tell the driver or person why the vehicle is to be searched. 7 (4) A person commits an offence if: 8 (a) the person engages in conduct; and 9 (b) the conduct hinders or obstructs an eligible customs officer in 10 the exercise of a power under subsection (1). 11 Penalty for an offence against this subsection: Imprisonment 12 for 2 years. 13 89E Requests to leave aircraft, airport or areas or zones 14 (1) If an eligible customs officer reasonably suspects that a person on a 15 prescribed aircraft, or in an area or zone of a security controlled 16 airport, is committing, or has committed, an offence against this 17 Act, the officer may request the person to leave: 18 (a) the aircraft; or 19 (b) the area or zone; or 20 (c) the airport. 21 (2) A person commits an offence if: 22 (a) a request has been made to the person under subsection (1); 23 and 24 (b) the person fails to comply with the request. 25 Penalty for an offence against this subsection: 50 penalty 26 units. 27 89F Power to physically restrain persons 28 (1) If an eligible customs officer reasonably suspects that a person in 29 an area or zone of a security controlled airport is committing, or 30 has committed, an offence against this Act, the officer may 31 physically restrain the person. [Page Break] 2 officer may detain the person until the person can be dealt with by 3 a law enforcement officer. 4 (3) In exercising a power under subsection (1) or (2), an eligible 5 customs officer must not use more force, or subject a person to 6 greater indignity, than is necessary and reasonable. 7 89G Removing vehicles from areas or zones 8 (1) If an eligible customs officer reasonably suspects that: 9 (a) a vehicle in or near an area or zone of a security controlled 10 airport presents a risk to aviation security; or 11 (b) a vehicle is in an area or zone of a security controlled airport 12 without proper authorisation; 13 the officer may remove the vehicle. 14 (2) However, the eligible customs officer must not remove the vehicle 15 without making reasonable efforts to have the person in control of 16 the vehicle remove the vehicle. 17 (3) The eligible customs officer: 18 (a) must not use more force, or subject a person to greater 19 indignity, than is necessary and reasonable to remove the 20 vehicle from the area or zone; and 21 (b) must make reasonable efforts to avoid damaging the vehicle. 22 89H Other powers not affected 23 This Act does not, by implication, limit the exercise of the powers 24 an eligible customs officer has apart from this Act. 25 19 At the end of subsection 91(1) 26 Add: 27 ; and (d) is not an eligible customs officer. 28 20 Paragraph 126(1)(a) 29 Omit "section 19", substitute "subsection 19(2) or (4)". 30 21 Section 131 31 Repeal the section, substitute: [Page Break] 2 (1) Subject to this section, this Act does not affect an immunity or 3 privilege that is conferred by or under the Consular Privileges and 4 Immunities Act 1972, the Defence (Visiting Forces) Act 1963, the 5 Diplomatic Privileges and Immunities Act 1967, the Foreign States 6 Immunities Act 1985 or any other Act. 7 Screening and clearing 8 (2) An immunity or privilege (other than one that is accorded to 9 diplomatic bags) conferred by or under an Act referred to in 10 subsection (1) does not limit the application of provisions of this 11 Act which specify requirements for screening or for receiving 12 clearance. 13 22 Application--transport security programs 14 (1) The amendment made by item 6 applies to transport security programs 15 given under section 18 of the Aviation Transport Security Act 2004 after 16 the commencement of that item. 17 (2) The amendment made by item 7 applies to transport security programs 18 approved before or after the commencement of that item. 19 Civil Aviation Act 1988 20 23 After paragraph 9(1)(d) 21 Insert: 22 (da) administering Part IV (about drug and alcohol management 23 plans and testing); 24 24 Subsection 24(1) 25 Repeal the subsection, substitute: 26 (1) A person commits an offence if: 27 (a) the person does an act; and 28 (b) the act: 29 (i) interferes with a crew member of an aircraft in the 30 course of the performance of his or her duties as such a 31 crew member; or [Page Break] 2 an aircraft. 3 Penalty: Imprisonment for 2 years. 4 25 After Part IIIB 5 Insert: 6 Part IV--Drug and alcohol management plans and 7 testing 8 Division 1--Definitions 9 33 Definitions 10 (1) In this Part: 11 body sample means any of the following: 12 (a) any human biological fluid; 13 (b) any human biological tissue (whether alive or not); 14 (c) any human breath. 15 drug or alcohol test means: 16 (a) a test of a body sample of a person to determine the presence 17 (if any), but not the level, of alcohol or a testable drug in the 18 sample; or 19 (b) a test of a body sample of a person to determine the presence 20 (if any), and the level, of alcohol or a testable drug in the 21 sample. 22 positive test result, in relation to a drug or alcohol test of a body 23 sample, means a finding by the person or body who was authorised 24 under the regulations to conduct the test that the test reveals: 25 (a) the presence of alcohol or a testable drug in the sample; and 26 (b) if the test determined the level of alcohol or testable drug in 27 the sample and a permitted level for alcohol or that drug is 28 specified in the regulations--that the permitted level has 29 been exceeded. 30 safety-sensitive aviation activities means activities that impact 31 directly or indirectly on the safety of: [Page Break] 2 (b) the operation of Australian aircraft outside Australian 3 territory. 4 testable drug means a drug specified in an instrument under 5 subsection (2). 6 (2) The Minister may, by legislative instrument, specify a drug for the 7 purposes of the definition of testable drug in subsection (1). 8 Division 2--Regulations 9 34 General regulation-making power 10 Drug and alcohol management plans 11 (1) The regulations may make provision for and in relation to the 12 development, implementation and enforcement of drug and alcohol 13 management plans covering persons who perform, or are available 14 to perform, safety-sensitive aviation activities. 15 Drug or alcohol tests 16 (2) The regulations may make provision for and in relation to drug or 17 alcohol tests in respect of persons who perform, or are available to 18 perform, safety-sensitive aviation activities. 19 Limitation 20 (3) Regulations must not be made for the purposes of this section 21 unless the performance of the safety-sensitive aviation activities 22 concerned could be adversely affected by the use of alcohol or a 23 testable drug by persons who perform those activities. 24 35 Drug and alcohol management plans 25 Regulations made for the purposes of subsection 34(1) may make 26 provision for and in relation to any one or more of the following: 27 (a) the persons required to develop a drug and alcohol 28 management plan; 29 (b) the persons to be covered by such plans; 30 (c) the content of such plans (including requirements for drug 31 and alcohol education, for drug or alcohol tests in accordance [Page Break] 2 management, treatment, counselling and rehabilitation, of 3 persons covered by such plans); 4 (d) the submission of such plans to CASA for approval; 5 (e) the assessment and approval by CASA of such plans; 6 (f) the period such plans are to be in force; 7 (g) the amendment of such plans; 8 (h) the records to be maintained by persons required to develop 9 such plans; 10 (i) the obtaining of information or records from persons required 11 to develop such plans. 12 36 Drug or alcohol tests 13 (1) Regulations made for the purposes of subsection 34(2) may make 14 provision for and in relation to any one or more of the following: 15 (a) the persons who may be required to provide a body sample 16 for a drug or alcohol test; 17 (b) the persons who may require the persons covered by 18 paragraph (a) to provide a body sample for a drug or alcohol 19 test; 20 (c) the conduct of random drug or alcohol tests and the other 21 circumstances in which drug or alcohol tests may be 22 conducted; 23 (d) the provision of body samples for drug or alcohol tests 24 (including the persons or bodies authorised to take body 25 samples); 26 (e) the persons or bodies authorised to conduct drug or alcohol 27 tests; 28 (f) if a drug or alcohol test of a body sample of a person reveals 29 the presence of alcohol or a testable drug in the sample but 30 not the level of alcohol or the testable drug--the conduct of a 31 further drug or alcohol test of the same body sample, or 32 another body sample of the person, to determine the presence 33 (if any), and the level, of alcohol or a testable drug in that 34 sample; 35 (g) the manner of conducting drug or alcohol tests; 36 (h) the devices used in conducting drug or alcohol tests, 37 including the calibration, inspection and testing of those 38 devices; [Page Break] 2 taken in connection with drug or alcohol tests; 3 (j) the notification of test results to the person tested and to 4 CASA; 5 (k) the other persons to whom test results may be notified; 6 (l) the use and disclosure of test results; 7 (m) the giving of test results in certificates or other documents 8 and the evidentiary effect of such certificates or other 9 documents; 10 (n) a person ceasing to perform safety-sensitive aviation 11 activities if a drug or alcohol test in respect of the person 12 returns a positive test result and the conditions the person 13 must satisfy before resuming such activities; 14 (o) a person ceasing to perform safety-sensitive aviation 15 activities if the person refuses to provide a body sample for a 16 drug or alcohol test when required to do so in accordance 17 with the regulations and the conditions the person must 18 satisfy before resuming such activities. 19 (2) For the purposes of paragraph (1)(d), the regulations may provide 20 that a person or body is authorised to take body samples if the 21 person or body: 22 (a) has been accredited by a specified person or body; or 23 (b) has been approved by CASA to take body samples for the 24 purposes of this Part; or 25 (c) is included in a class of persons or bodies approved by CASA 26 to take body samples for the purposes of this Part. 27 (3) For the purposes of paragraph (1)(e), the regulations may provide 28 that a person or body is authorised to conduct drug or alcohol tests 29 if the person or body: 30 (a) has been accredited by a specified person or body; or 31 (b) has been approved by CASA to conduct drug or alcohol tests 32 for the purposes of this Part; or 33 (c) is included in a class of persons or bodies approved by CASA 34 to conduct drug or alcohol tests for the purposes of this Part. 35 Admissibility of test results etc. in legal proceedings 36 (4) The following: [Page Break] 2 or alcohol test conducted in respect of a person; 3 (b) any other information, answer to a question or document 4 relevant to conducting such a test; 5 are not admissible in evidence against the person in any 6 proceedings other than: 7 (c) proceedings under this Act or the regulations; or 8 (d) proceedings prescribed by the regulations for the purposes of 9 this paragraph. 10 37 Conferral of administrative powers 11 (1) Regulations made for the purposes of subsection 34(1) or (2) may 12 make provision with respect to a matter by conferring on a person a 13 power to make a decision of an administrative character. 14 (2) If regulations made for the purposes of subsection 34(1) or (2) 15 confer on a person a power to make a decision of an administrative 16 character, the regulations may also make provision for and in 17 relation to the person delegating that power to another person. 18 38 Conferral of power to make legislative instruments 19 (1) Regulations made for the purposes of subsection 34(1) or (2) may 20 empower CASA to make legislative instruments. 21 (2) Such an instrument must not prescribe a penalty. 22 39 General regulation-making power not limited 23 Sections 35 to 38 do not, by implication, limit section 34. 24 Note 1: Paragraph 98(3)(m) allows regulations to be made providing for the 25 review of decisions under the regulations. 26 Note 2: Paragraphs 98(3)(p) and (q) allow regulations to be made providing 27 for penalties for contraventions of the regulations. 28 Note 3: Subsection 98(3A) allows regulations to apply, adopt or incorporate 29 any matter contained in a written instrument or other document as in 30 force at a particular time or from time to time.