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2002-2003
THE PARLIAMENT OF THE
COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
AVIATION TRANSPORT
SECURITY BILL 2003
SUPPLEMENTARY
EXPLANATORY MEMORANDUM
AND
CORRECTION TO THE EXPLANATORY
MEMORANDUM
(Circulated by
authority of the Minister for Transport and Regional Services,
the
Honourable John Anderson, MP)
AVIATION TRANSPORT SECURITY BILL 2003
The Government amendments to the Aviation Transport Security Bill 2003
(the Bill) will:
• introduce a power to
control the movements of an aircraft on the ground to ensure compliance with
this Act;
• introduce a power to control the
movements of an aircraft in Australia, or an Australian aircraft, following an
aviation security incident;
• codify the power of
an airport screening officer to request a person subject to screening to undergo
a limited frisk search;
• provide for a person
subject to screening to choose to undergo a frisk search as an alternative to
another screening procedure;
• clarify the
definition of Aviation Industry Participant to exclude law enforcement
agencies and other prescribed Commonwealth
agencies;
• clarify that it is not the purpose of
the Bill to prevent lawful advocacy, protest, dissent or industrial action that
does not compromise aviation security, and that the definition of Unlawful
Interference with Aviation does not include any of these
activities;
• provide for the carriage of
prohibited items into airside areas that are not prescribed security
zones;
• define persons in custody as
persons held in custody under any Australian
law;
• clarify the reporting responsibilities of
persons likely to become aware of an aviation security
incident;
• simplify the information gathering
provisions of the Bill; and
• correct a number of
drafting errors.
Existing budget allocations will not be affected by this
amendment.
The Office or Regulation Review has advised that the amendment does not
require a Regulation Impact Statement.
AVIATION TRANSPORT SECURITY BILL
2003
Amendment 1 relates to Clause 3, Purposes of this Act. The
amendment inserts a new subclause 3(5) which clarifies that the purpose of the
Bill is not to prevent lawful advocacy, protest, dissent or industrial action
that does not compromise aviation security.
Amendment 5 relates to Clause 9, Preliminary - Definitions.
The amendment inserts a definition of Agency, being the same meaning as
in the Public Service Act 1999. This amendment facilitates the exclusion
of a prescribed Commonwealth Agency from being regulated for aviation security
purposes [amendment 4].
Amendment 6 relates to Clause 9,
Preliminary - Definitions. The amendment inserts definitions for
Australian aircraft and Australian territory. This amendment
provides for the operation of the control directions amendment [amendment
34].
Amendment 7 relates to Clause 9, Preliminary -
Definitions. The amendment inserts a definition for aviation security
incident, which has the meaning given by section 99. This amendment
provides for the operation of the control directions amendment [amendment
34].
Amendment 8 relates to Clause 9, Preliminary -
Definitions. The amendment inserts a definition for compliance control
direction, which has the meaning given by subsection 74B(2). This amendment
provides for the operation of the control directions amendment [amendment
34].
Amendment 9 relates to Clause 9, Preliminary -
Definitions. The amendment omits the definition of Departmental
official as it is no longer required.
Amendment 10 relates to
Clause 9, Preliminary - Definitions. The amendment omits the definition
of excepted circumstances as it is no longer
required.
Amendment 11 relates to Clause 9, Preliminary -
Definitions. The amendment inserts a definition of incident control
direction, which has the meaning given by subsection 74D(3). This amendment
provides for the operation of the control directions amendment [amendment
34].
Amendment 12 relates to Clause 9, Preliminary -
Definitions. The amendment omits the definition of protected
information as it is no longer required.
Amendment 13 relates
to Clause 9, Preliminary - Definitions. The amendment omits the
definition of protected person as it is no longer
required.
Amendment 14 relates to Clause 9, Preliminary -
Definitions. The amendment inserts a new definition of security
compliance information, which has the meaning given by subsection
109(1).
Amendment 15 relates to Clause 10, Preliminary -
Meaning of unlawful interference with aviation. The amendment inserts a
subclause (2) which excludes lawful advocacy, protest, dissent or industrial
action from being defined as unlawful interference with aviation.
Amendment 16 inserts a new Clause 10A, Preliminary - Division 6 -
General Defences.
Subclause (1) provides a general defence relating to the decision of a pilot
in command of an aircraft. The defence recognises the pilot’s
responsibility for the safety and security of the aircraft, and that practical
considerations for maintaining the safety and security of the aircraft may
influence the pilot’s ability to comply with a control direction.
For example, failure to comply with a control direction that is physically
impossibly due to a shortage of fuel would trigger this
defence.
Subclause (2) provides a general defence for compliance with a
special security direction where such compliance would cause a person to commit
an offence against the Act.
Subclause (3) provides a general defence for
compliance with a control direction where such compliance would cause a person
to commit an offence against the Act.
Amendment 21 relates to Clause 31, Airport Areas and Zones
– Types of airside security zones. The amendment replaces the term
control towers with the term air traffic control facilities. This
term includes all facilities for controlling air traffic, including control
towers.
Amendment 22 relates to Clause 31, Airport Areas and
Zones – Types of airside security zones. The amendment inserts an
additional subparagraph to include fire stations and other emergency service
facilities as areas that may be prescribed as security
zones.
Amendment 23 relates to Clause 33, Airport Areas and
Zones – Types of landside security zones. The amendment replaces the
term control towers with the term air traffic control facilities.
This term includes all facilities for controlling air traffic, including control
towers.
Amendment 24 relates to Clause 33, Airport Areas and
Zones – Types of landside security zones. The amendment inserts an
additional subparagraph to include fire stations and other emergency service
facilities as areas that may be prescribed as security
zones.
Amendment 25 relates to Clause 39, Other Security
Measures – Simplified overview of Part. The amendment inserts an
additional subclause (g) to the simplified overview to provide for the inclusion
of control directions [amendment 34] in the overview of Part
4.
Amendment 26 relates to Clause 53, Other Security Measures
– Simplified overview of Division. The amendment replaces the word
parallel with the words are similar to to correct a drafting
error.
Amendment 27 relates to Clause 54, Other Security
Measures – Prohibited items in airside areas and landside security
zones. The amendment replaces the term area in paragraph (1)(a) with
the term security zone. This corrects an error whereby the unauthorised
carriage of a prohibited item into and within an airside area would be an
offence, effectively prohibiting the carriage of tools of trade (eg spanners and
screwdrivers) into an airside area. The amendment provides that prohibited
items be prohibited only from prescribed security zones.
Amendment 28
relates to Clause 54, Other Security Measures – Prohibited items in
airside areas and landside security zones. The amendment inserts an
additional paragraph (1)(aa) that provides for the prescribing of an airside
security zone or landside security zone in the regulations. This
amendment facilitates the exclusion of prohibited items from prescribed security
zones by providing for the creation of these zones.
Amendment 29
relates to Clause 54, Other Security Measures – Prohibited items in
airside areas and landside security zones. The amendment replaces the term
area in paragraph (1)(c)(iii) with the term security zone. This
corrects an error whereby the unauthorised carriage of a prohibited item into
and within an airside area would be an offence, effectively prohibiting the
carriage of tools of trade (eg spanners and screwdrivers) onto an airside area.
The amendment provides that prohibited items be prohibited only from prescribed
security zones.
Amendment 30 relates to Clause 54, Other
Security Measures – Prohibited items in airside areas and landside
security zones. The amendment replaces the term area in paragraph
(3)(a) with the term security zone. This corrects an error whereby the
unauthorised carriage of a prohibited item into and within an airside area would
be an offence, effectively prohibiting the carriage of tools of trade (eg
spanners and screwdrivers) onto an airside area. The amendment provides that
prohibited items be prohibited only from prescribed security
zones.
Amendment 31 relates to Clause 54, Other Security
Measures – Prohibited items in airside areas and landside security
zones. The amendment inserts an additional paragraph (3)(aa) that provides
for the prescribing of an airside security zone or landside security
zone in the regulations. This amendment facilitates the exclusion of
prohibited items from prescribed security zones by providing for the creation of
these zones.
Amendment 32 relates to Clause 54, Other Security
Measures – Prohibited items in airside areas and landside security
zones. The amendment replaces the term area in paragraph (3)(c)(iii)
with the term security zone. This corrects an error whereby the
unauthorised carriage of a prohibited item into and within an airside area would
be an offence, effectively prohibiting the carriage of tools of trade (eg
spanners and screwdrivers) onto an airside area. The amendment provides that
prohibited items be prohibited only from prescribed security
zones.
Amendment 33 relates to Clause 64, Other Security
Measures – Meaning of person in custody. The amendment inserts an
additional subclause (2) to amend the meaning of person in custody to
include a person held in custody under a law of a State or Territory as well as
a person held in custody under a Commonwealth Act.
Amendment 34
inserts new Clauses 74A-E, Other Security Measures – Division 8 -
Control Directions.
This clause provides a simplified overview of the Division.
Subclause 74B(1) empowers an Aviation Security Inspector to direct the pilot
or operator of an aircraft in Australia and not in flight to take a specified
action in relation to the aircraft.
Subclause 74B(2) defines a direction under subclause (1) to be a
compliance control direction.
Subclause 74B(3) provides that a
compliance control direction can only be made if it is necessary to
ensure compliance with the Act.
Subclause 74B(4) indicates the type of
direction that an Aviation Security Inspector may make. For example, if an
Aviation Security Inspector has reason to suspect that a particular aircraft has
not been satisfactorily security cleared, the Inspector can detain that aircraft
until its security clearance can be verified.
Subclause 74B(5) provides
for regulations relating to compliance control directions.
Subclause 74C(1) provides that failure to comply with a compliance control
direction is an offence, for which penalties are 200 penalty units for an
aircraft operator, or 50 penalty units for a pilot in command.
Subclause
74C(2) provides that subclause (1) does not apply if the person has a reasonable
excuse.
Subclause 74D(1) empowers the Secretary to direct the aircraft operator or
pilot in command of an Australian aircraft to take a specified action in
relation to the aircraft.
Subclause 74D(2) empowers the Secretary to
direct the aircraft operator or pilot in command of a foreign aircraft to take a
specified action in relation to that aircraft if it is in Australian
territory.
Subclause 74D(3) defines a direction under subclauses (1) or
(2) to be an incident control direction.
Subclause 74D(4) provides
that an incident control direction must not be given unless the Secretary
reasonably believes that it is an appropriate or necessary response to an
aviation security incident.
Subclause 74D(5) indicates the type of
direction that the Secretary may make. For example, on becoming aware of the
occurrence of an aviation security incident on board an aircraft in flight, the
Secretary could direct the aircraft to land in a designated location. In
another example, in the event of the Secretary’s becoming aware, through
sufficiently verified intelligence, of a plan to hijack an aircraft in flight,
that flight could be required to land before the hijacker may have had time to
act. In another example, in the event of an actual terrorist attack on
Australian territory, all aircraft in Australian territory could be required to
land, remain grounded, or remain within or outside a particular area for a
specified period.
Subclause 74D(6) provides for regulations relating to
incident control directions.
Subclause 74E(1) provides that failure to comply with an incident control
direction is an offence, for which penalties are 1000 penalty units for an
aircraft operator, or 100 penalty units for a pilot in command.
Subclause
74E(2) provides that subclause (1) does not apply if the person has a reasonable
excuse.
Amendment 35 relates to Clause 75, Powers of officials
– Simplified overview of Part. The amendment omits the words All
of these matters are covered by this Part as amendment 34 introduces powers
of officials elsewhere in the Bill.
Amendment 36 relates to Clause
80, Powers of officials – Aviation security inspectors. The
amendment inserts a note under subclause (1) to note the additional powers of
aviation security inspectors provided by Clause 74B.
Amendment 37
relates to Clause 84, Powers of officials – Stopping and searching
people. The amendment inserts the words for an offence against this
subsection to clarify that the penalty relates to that
subsection.
Amendment 38 relates to Clause 85, Powers of
officials – Stopping and searching vehicles. The amendment inserts the
words for an offence against this subsection to clarify that the penalty
relates to that subsection.
Amendment 39 relates to Clause 86,
Powers of officials – Requests to leave areas or zones. The
amendment inserts the words for an offence against this subsection to
clarify that the penalty relates to that subsection.
Amendment 40
relates to Clause 88, Powers of officials – Removing vehicles from
areas or zones. The amendment replaces the word believes with the
word suspects to align the way this power is expressed with similar law
enforcement powers in other Commonwealth legislation.
Amendment 41
relates to Clause 93, Powers of officials – Simplified overview of
Division. The amendment inserts the words or undergo a frisk search
into the overview to reflect the frisk search power introduced by amendment
44.
Amendment 42 relates to Clause 95, Powers of officials – Screening powers. The amendment inserts a new subclause (5)(c) which corrects an error whereby a person who had agreed to be screened in a private room by a screening officer of the same sex, but had still refused to remove a piece of clothing which had prevented the screening of the person, could not be refused passage through the screening point.
Amendment 43 inserts an additional Clause 95A, Powers of
officials – Screening powers – frisk search as an alternative
screening procedure. The amendment provides that a person subject to
screening may choose to undergo a frisk search as an alternative to another
screening procedure. This provision will cater for those persons who, for
medical reasons, prefer not to be screened electronically.
Amendment
44 inserts an additional Clause 95B, Powers of officials –
Screening powers–frisk search as an additional screening
procedure.
Subclause 95B(1) provides for a screening officer to
request a person to undergo a frisk search where the results of a screening
procedure indicate that additional screening procedures are required to properly
screen a person.
Subclause 95B(2) provides that a frisk search may be
conducted only to the extent necessary to properly screen a
person.
Subclause 95B(3) creates an offence for a screening officer
requiring a person to undergo a frisk search or conducting a frisk search
without consent, or conducting a frisk search to an extent greater than
necessary. A penalty of 50 penalty units applies.
Subclause 95B(4)
provides that subclause (3) not apply if the screening officer has a reasonable
excuse.
Subclause 95B(5) provides that an offence against subclause (3)
is one of strict liability.
Subclause 95B(6) provides that, if a person
refuses to undergo a frisk search when requested, including a frisk search in a
private room and by a screening officer of the same sex, and that refusal
results in the screening officer being unable to properly screen the person, the
screening officer must refuse to allow the person to pass through the screening
point.
Amendment 45 relates to Clause 102, Reporting aviation
security incidents – Persons with incident reporting responsibilities.
The amendment inserts a new subclause (4). The new subclause clarifies the
inclusion, as persons with incident reporting responsibilities, of persons with
an aviation security function, such as aviation security inspectors and
screening officers, and the exclusion of persons whose role is distinct from
aviation security, such as transport safety investigators.
Amendment
46 relates to Part 7, Information-gathering. The amendment omits
Part 7, replacing it with a new Part 7, which simplifies the information
gathering provisions of the Bill and aligns them with similar provisions in
other Commonwealth legislation.
PART 7 –
Information-gathering
This Part allows the Secretary to collect
security compliance information from aviation industry participants. The
collection of security compliance information is important for ensuring that
appropriate security measures are implemented and maintained to safeguard
against unlawful interference in aviation, and that Australia has met its
international obligations.
Division 1 – Simplified overview of
Part
Clause 108 Simplified overview of Part
This clause
provides a simplified overview of the Part.
Clause 109 Secretary may
require security compliance information
This clause empowers the
Secretary to collect security compliance information from aviation industry
participants. This information can be used to assess a participant’s
compliance or non-compliance with their transport security program or other
security obligations under the Act. This allows the Secretary to assess the
status of security compliance within the aviation industry, and will enable the
Secretary to recognise potential weaknesses and rectify problems before the
safety of the industry and the public is compromised.
Subclause 109(1)
defines information that relates to compliance or failure to comply with this
Act as security compliance information.
Subclause 109(2) empowers
the Secretary, on reasonable grounds and by written notice, to collect security
compliance information from an aviation industry participant.
Subclause
109(3) provides that the information must be given within the period and in the
form and manner specified in the Secretary’s written notice. The period
given must be at least 14 days.
Subclause 109(4) provides that the
Secretary may specify the method by which the participant must provide the
information. The information may be provided orally, in writing, or by
electronic submission.
Subclause 109(5) creates an offence for failure to
comply with the Secretary’s notice under subclause (2). The penalty for
this offence is 45 penalty units.
Clause
110 Self-incrimination
Subclause 110(1) clarifies that whenever a person
is required to give security compliance information, that person cannot be
excused from giving the information on the grounds that it might incriminate
them or expose them to a penalty.
Subclause 110(2) provides that the
security compliance information given, the giving of that information, and any
information, document or thing obtained as a result of giving the information,
cannot be admitted as evidence in a criminal proceeding, or any other proceeding
for the recovery of a penalty, against a natural person. This protection does
not extend to the giving of false or misleading information as provided under
section 137.1 or 137.2 of the Criminal Code.
This clause
acknowledges that a coercive information-gathering power must be accompanied by
appropriate protection for the informant. This reinforces the concept that the
processes of gathering security compliance information to improve aviation
security, and those relating to judicial proceedings, particularly criminal
proceedings, should be separate to ensure a continued free flow of security
compliance information. The provision of security compliance information should
be encouraged to ensure that any security compliance concerns are addressed
prior to aviation security being compromised, or the general public
endangered.
Nothing in this Part prevents an agency from separately
collecting and using security compliance information for the purpose of judicial
or other proceedings.
AVIATION TRANSPORT SECURITY BILL
2003
CORRECTION TO THE EXPLANATORY MEMORANDUM
Replace text with:
This clause provides that the Crown in right of
the Commonwealth and all the States and Territories is subject to the Bill, but
the Crown in right of the Commonwealth cannot be prosecuted for an offence under
the Bill.