2008 The Parliament of the Commonwealth of Australia HOUSE OF REPRESENTATIVES Presented and read a first time Aviation Legislation Amendment (2008 Measures No. 2) Bill 2008 No. , 2008 (Infrastructure, Transport, Regional Development and Local Government) 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) ......................................................................................... 2 Schedule 1--Amendme nts 3 Part 1--Amendment of the Aviation Transport Security Act 2004 3 Part 2--Amendment of the Civil Aviation Act 1988 7 Part 3--Amendment of the Transport Safety Investigation Act 2003 8 Part 4--Application and savings provisions 11 i Aviation Legislation Amendment (2008 Measures No. 2) Bill 2008 No. , 2008 [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 (2008 Measures No. 2) Act 2008. 7 2 Commence ment 8 (1) Each provision of this Act specified in column 1 of the table 9 commences, or is taken to have commenced, in accordance with 10 column 2 of the table. Any other statement in column 2 has effect 11 according to its terms. 12 Aviation Legislation Amendment (2008 Measures No. 2) Bill 2008 No. , 2008 1 [Page Break] Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 The day on which this Act receives the and anything in Royal Assent. this Act not elsewhere covered by this table 2. Schedule 1, The day on which this Act receives the Part 1 Royal Assent. 3. Schedule 1, 1 Ju ly 2009. 1 Ju ly 2009 Part 2 4. Schedule 1, 1 Ju ly 2009. 1 Ju ly 2009 Part 3 5. Schedule 1, The day on which this Act receives the Part 4 Royal Assent. 1 Note: This table relates only to the provisions of this Act as originally 2 passed by both Houses of the Parliament and assented to. It will not be 3 expanded to deal with provisions inserted in this Act after assent. 4 (2) Column 3 of the table contains additional information that is not 5 part of this Act. Information in this column may be added to or 6 edited in any published version of this Act. 7 3 Schedule(s) 8 Each Act that is specified in a Schedule to this Act is amended or 9 repealed as set out in the applicable items in the Schedule 10 concerned, and any other item in a Schedule to this Act has effect 11 according to its terms. 12 2 Aviation Legislation Amendment (2008 Measures No. 2) Bill 2008 No. , 2008 [Page Break] Amend ment of the Aviation Transport Security Act 2004 Part 1 1 2 Schedule 1--Amendments 3 Part 1--Amendment of the Aviation Transport 4 Security Act 2004 5 1 Section 4 (seventh paragraph) 6 After "security compliance information", insert "and aviation security 7 information". 8 2 Section 9 9 Insert: 10 Agency Head has the same meaning as in the Public Service Act 11 1999. 12 3 Section 9 13 Insert: 14 aviation security information has the meaning given by subsection 15 111(1). 16 4 Section 9 17 Insert: 18 national security has the same meaning as in the National Security 19 Information (Criminal and Civil Proceedings) Act 2004. 20 5 Section 9 21 Insert: 22 SES Band 3 employee has the meaning given by subsection 23 127A(4). 24 6 At the end of section 108 25 Add: 26 Division 3 gives the Secretary the power to require aviation 27 security information but limits the use of the information in certain 28 proceedings. Aviation Legislation Amendment (2008 Measures No. 2) Bill 2008 No. , 2008 3 [Page Break] Part 1 A mend ment of the Aviation Transport Security Act 2004 1 7 At the end of Part 7 2 Add: 3 Division 3--Secretary may require aviation security 4 information 5 111 Secretary may require aviation security information 6 (1) Information that is not security compliance information and is 7 prescribed by the regulations for the purposes of this section is 8 aviation security information. 9 (2) Without limiting the kinds of information that may be prescribed 10 by regulations made under subsection (1), the regulations may 11 prescribe the following kinds of information as aviation security 12 information: 13 (a) statistics relating to the screening of people, vehicles, goods 14 or cargo for entry to cleared areas or cleared zones; 15 (b) statistics relating to the people, vehicles, goods or cargo that 16 go through a screening process and: 17 (i) receive clearance as a result of going through the 18 screening process; or 19 (ii) do not receive clearance as a result of going through the 20 screening process and the reason or reasons for not 21 receiving clearance; 22 (c) information about activities undertaken, or to be undertaken, 23 to ensure that people, vehicles, goods or cargo that have not 24 received clearance are not in cleared areas or cleared zones; 25 (d) information about activities undertaken, or to be undertaken, 26 at an airport for the purposes of safeguarding against 27 unlawful interferences with aviation; 28 (e) information about the controls that apply, or will apply, to 29 airside areas, airside security zones, airside event zones, 30 landside areas, landside security zones or landside event 31 zones. 32 (3) If the Secretary believes, on reasonable grounds, that an aviation 33 industry participant has aviation security information, the Secretary 34 may, by written notice given to the participant, require the 35 participant to give the information to the Secretary. 4 Aviation Legislation Amendment (2008 Measures No. 2) Bill 2008 No. , 2008 [Page Break] Amend ment of the Aviation Transport Security Act 2004 Part 1 1 (4) The information must be given within the period and in the form 2 and manner specified in the notice. The period must not be less 3 than 14 days. 4 (5) Without limiting subsection (4), the Secretary may specify in the 5 notice any one or more of the following ways for the participant to 6 give the information: 7 (a) orally; 8 (b) in writing; 9 (c) by electronic transmission. 10 (6) A person commits an offence if the person fails to comply with a 11 notice under subsection (3). 12 Penalty for an offence against this subsection: 45 penalty units. 13 112 Self-incrimination 14 (1) A person is not excused from giving aviation security information 15 under section 111 on the ground that the information might tend to 16 incriminate the person or expose the person to a penalty. 17 (2) However, if the person is a natural person: 18 (a) the information; and 19 (b) the giving of the information; and 20 (c) any information, document or thing obtained as a direct or 21 indirect consequence of giving the information; 22 are not admissible in evidence against the person in a criminal 23 proceeding, or any other proceeding for the recovery of a penalty, 24 other than a proceeding under section 137.1 or 137.2 of the 25 Criminal Code that relates to the giving of the information. 26 8 Subsection 127(1) 27 Repeal the subsection, substitute: 28 (1) The Secretary may, by writing, delegate all or any of his or her 29 powers and functions under this Act to a person of the following 30 kind: 31 (a) an SES employee, or acting SES employee, in the 32 Department; 33 (b) the Agency Head of an Agency that carries on activities that 34 relate to national security. Aviation Legislation Amendment (2008 Measures No. 2) Bill 2008 No. , 2008 5 [Page Break] Part 1 A mend ment of the Aviation Transport Security Act 2004 1 (1A) However, a delegation under paragraph (1)(b) has no effect unless 2 the Agency Head of the Agency agrees to the delegation. 3 9 After section 127 4 Insert: 5 127A Sub-delegation 6 (1) If the Secretary delegates a power or function to the Agency Head 7 of an Agency under paragraph 127(1)(b), the Agency Head may, 8 by writing, sub-delegate the power or function to an SES Band 3 9 employee in the Agency. 10 (2) Sections 34AA, 34AB and 34A of the Acts Interpretation Act 1901 11 apply in relation to the sub-delegation in a corresponding way to 12 the way in which they apply to a delegation. 13 (3) In exercising powers or functions under a sub-delegation, the 14 delegate must comply with any directions of the Agency Head of 15 the Agency. 16 (4) An SES Band 3 employee is an SES employee with a classification 17 of Senior Executive Band 3, and includes an SES employee who 18 has been temporarily assigned duties that have been allocated a 19 classification of Senior Executive Band 3. 20 6 Aviation Legislation Amendment (2008 Measures No. 2) Bill 2008 No. , 2008 [Page Break] Amend ment of the Civil Aviat ion Act 1988 Part 2 1 2 Part 2--Amendment of the Civil Aviation Act 1988 3 10 Before paragraph 32AP(3)(a) 4 Insert: 5 (aa) copying or disclosure that is necessary for the purposes of 6 checking whether equipment used to make a cockpit voice 7 recording is functioning and reliable, provided the conditions 8 set out in subsection (3A) are met; or 9 11 After subsection 32AP(3) 10 Insert: 11 (3A) The conditions that must be met for the purposes of 12 paragraph (3)(aa) are: 13 (a) the person who copies or discloses the CVR information for 14 the purposes of checking the equipment is authorised to do so 15 under the regulations; and 16 (b) that person honestly and reasonably believes on the 17 information available to him or her that: 18 (i) the cockpit voice recording does not relate to a 19 reportable matter (as defined for the purposes of the 20 Transport Safety Investigation Act 2003); and 21 (ii) the cockpit voice recording does not relate to an offence 22 under the law of the Commonwealth, or of a State or 23 Territory; and 24 (iii) the crew members in relation to the CVR information 25 were notified in writing, before the cockpit voice 26 recording was made, of the intention to copy or disclose 27 the CVR information for the purposes of checking 28 whether the equipment used to make the recording is 29 functioning and reliable. 30 Aviation Legislation Amendment (2008 Measures No. 2) Bill 2008 No. , 2008 7 [Page Break] Part 3 A mend ment of the Transport Safety Investigation Act 2003 1 2 Part 3--Amendment of the Transport Safety 3 Investigation Act 2003 4 12 Section 3 5 Before "In", insert "(1)". 6 13 At the end of section 3 7 Add: 8 (2) Regulations made for the purposes of the definition of immediately 9 reportable matter or routine reportable matter may prescribe the 10 matter by applying, adopting or incorporating, with or without 11 modification, any matter contained in any other instrument or 12 writing as in force from time to time. 13 14 Section 9 14 Repeal the section. 15 15 Subsection 18(1) 16 Omit "and by the means prescribed by the regulations", substitute ", by 17 the means prescribed by the regulations and including those of the 18 particulars prescribed by the regulations that are known to the 19 responsible person". 20 16 Subsection 18(1) (penalty) 21 Repeal the penalty, substitute: 22 Penalty: Imprisonment for 12 months. 23 17 Subsection 18(2) 24 Repeal the subsection, substitute: 25 (2) Subsection (1) does not apply if the person believes, on reasonable 26 grounds, that another responsible person has, or other responsible 27 persons have, already reported the matter, or will as soon as is 28 reasonably practicable report the matter, to a nominated official 29 with all the particulars prescribed by the regulations. 30 Note: A defendant bears an evidential burden in relation to the matter in 31 subsection (2). See subsection 13.3(3) of the Criminal Code. 8 Aviation Legislation Amendment (2008 Measures No. 2) Bill 2008 No. , 2008 [Page Break] Amend ment of the Transport Safety Investigation Act 2003 Part 3 1 18 Paragraph 18(3)(b) 2 After "has already reported", insert ", or will as soon as is reasonably 3 practicable report,". 4 19 Subsection 19(1) (penalty) 5 Repeal the penalty, substitute: 6 Penalty: 30 penalty units. 7 20 At the end of section 19 8 Add: 9 (4) The Executive Director may, by notice in writing to a responsible 10 person, require the person to give the Executive Director a written 11 report in relation to an immediately reportable matter or a routine 12 reportable matter within the period specified in the notice, by the 13 means prescribed and including the particulars prescribed by the 14 regulations. 15 (5) The Executive Director must not require a responsible person to 16 give a report under subsection (4) unless either: 17 (a) the Executive Director is satisfied that: 18 (i) the person has knowledge of the immediately reportable 19 matter or routine reportable matter; but 20 (ii) the person is one to whom subsection (1) does not apply 21 because of the operation of subsection (2) or (3); or 22 (b) the Executive Director is satisfied that: 23 (i) the person is one to whom subsection (1) applies despite 24 the operation of subsection (2) or (3); and 25 (ii) the person may have information that was not 26 communicated in a report given under subsection (1). 27 (6) The responsible person must comply with the notice. 28 Penalty: 30 penalty units. 29 (7) A prosecution of a person for an offence against subsection (1) 30 may be commenced at any time within 6 years after the 31 commission of the offence. 32 21 Subsection 24(1) (penalty) Aviation Legislation Amendment (2008 Measures No. 2) Bill 2008 No. , 2008 9 [Page Break] Part 3 A mend ment of the Transport Safety Investigation Act 2003 1 Repeal the penalty, substitute: 2 Penalty: Imprisonment for 12 months. 3 22 Subsections 26(2), 29(3), 32(5) and 36(5) 4 Omit "Maximum penalty", substitute "Penalty". 5 23 Section 37 6 Omit "Maximum penalty", substitute "Penalty". 7 24 Subsections 42(1), 42(4), 43(3), 44(2), 53(1), 53(2), 59(5), 8 60(1), 60(2) and 60(3) 9 Omit "Maximum penalty", substitute "Penalty". 10 10 Aviation Legislation Amendment (2008 Measures No. 2) Bill 2008 No. , 2008 [Page Break] Application and savings provisions Part 4 1 2 Part 4--Application and savings provisions 3 25 Application of amendments of section 127 of the Aviation 4 Transport Security Act 2004 5 A delegation to an SES employee, or acting SES employee in force, 6 immediately before the commencement of this item, under section 127 7 of the Aviation Transport Security Act 2004 (as in force immediately 8 before the commencement of this item) has effect after that 9 commencement as if it were a delegation to the SES employee, or the 10 acting SES employee, under that section as amended by item 8 of this 11 Schedule. 12 26 Application of Part 2 of this Schedule 13 The amendments made by Part 2 of this Schedule apply to copying or 14 disclosure that occurs on or after the commencement of that Part. 15 27 Application of amendments of section 18 of the Transport 16 Safety Investigation Act 2003 17 The amendments made by items 15 to 18 apply in relation to 18 immediately reportable matters that occur on or after the 19 commencement of Part 3 of this Schedule. 20 28 Application of amendments of section 19 of the Transport 21 Safety Investigation Act 2003 22 The amendments made by items 19 and 20 apply in relation to 23 immediately reportable matters and routine reportable matters that occur 24 on or after the commencement of Part 3 of this Schedule. 25 29 Application of amendment of section 24 of the Transport 26 Safety Investigation Act 2003 27 The amendment made by item 21 applies in relation to conduct engaged 28 in on or after the commencement of Part 3 of this Schedule. Aviation Legislation Amendment (2008 Measures No. 2) Bill 2008 No. , 2008 11