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TRANSPORT LEGISLATION AMENDMENT ACT (No. 2) 1995 No. 89 of 1995 - SCHEDULE 1
SCHEDULE Section 3
PART 1-AMENDMENTS OF THE AIR NAVIGATION ACT 1920 1. Before section 1: Insert:
"PART 1-PRELIMINARY". 2. Subsection 3(1): Insert:
" 'aircraft operator' or 'operator', in relation to an aircraft, means a
person who conducts, or offers to conduct, an air service by the use of the
aircraft;
'airport' means an area of land or water (including any buildings,
installations and equipment situated in the area) intended for use either
wholly or partly for the arrival, departure or movement of aircraft;
'airport operator' or 'operator':
(a) in relation to a Federal airport-means the Corporation; and
(b) in relation to any other airport-means the operator of the airport;
'airport security committee' means an airport security committee established
under section 22ZB;
'air service' means a service of providing air transportation of people or
goods, or both people and goods, by:
(a) regular public transport operation; or
(b) charter operation;
'baggage' means any article or possession of a passenger or crew member that
is to be carried on board an aircraft, but does not include an article that is
accessible to the passenger or crew member while the aircraft is in flight;
'carriage' means carriage anywhere on board an aircraft;
'categorised airport' means an airport categorised under section 22ZK;
'charter aircraft' means an aircraft engaged in a charter operation;
'charter operation' means an operation of an aircraft for the purpose of:
(a) a service of providing air transportation of people or goods, or both
people and goods, that:
(i) is provided for a fee payable by persons using the service; and
(ii) is not available to the general public on a regular basis;
whether or not the service is conducted in accordance with
fixed schedules to or from fixed terminals over specific
routes; or
(b) a service of providing air transportation of people or goods, or both
people and goods, that:
(i) is provided for a fee payable by persons using the service; and
(ii) is available to the general public on a regular basis; and
(iii) is not conducted in accordance with fixed schedules to or from
fixed terminals over specific routes; or
(c) a service of providing air transportation of people or goods, or both
people and goods, that:
(i) is not provided for a fee payable by persons using the service;
and
(ii) is conducted in accordance with fixed schedules to or from
fixed terminals over specific routes; and
(iii) is not available to the general public;
'clear', in relation to the screening of people, vehicles or goods, has the
meaning given by section 3AD;
'Corporation' means the Federal Airports Corporation;
'domestic air service' means an air service provided by means of a flight from
a place within Australia to another place within Australia with no
intermediate stop outside Australia;
'emergency operations centre', in relation to an airport, means the facility
established at the airport for the purpose of co-ordinating the response to,
or to a threat of, an unlawful interference with aviation;
'Federal airport' means an airport that is managed by the Corporation;
'international airport' means an international airport designated under
subsection 9(1);
'international air service' means an air service provided by means of a
flight:
(a) from a place within Australia to a place outside Australia; or
(b) from a place outside Australia to a place within Australia;
'protective service officer' means a protective service officer within the
meaning of the Australian Protective Service Act 1987;
'regular public transport aircraft' means an aircraft engaged in a regular
public transport operation;
'regular public transport operation' means an operation of an
aircraft for the purpose of an air service that: (a) is provided for
a fee payable by persons using the service; and
(b) is conducted in accordance with fixed schedules to or from fixed
terminals over specific routes; and
(c) is available to the general public on a regular basis;
'screen' has the meaning given by section 3AD;
'screening point', in relation to an aircraft, means a place where screening
and clearance of people, vehicles or goods for the purposes of this Act are
conducted by the operator of the aircraft, whether the place is in an airport
or not;
'security restricted area', in relation to an airport, means any part of the
airport that is identified as a security restricted area in an airport
security program prepared for the airport by the operator of the airport and
approved by the Secretary under subsection 22ZD(1);
'sterile area' means a place approved by the Secretary to be designated as a
sterile area under subsection 21(5);
'threaten' has the meaning given by section 3AA;
'thing' includes any substance;
'transceiver' includes a mobile telephone;
'uniformed security force', in relation to an airport, has the meaning given
by section 3AF;
'unlawful interference with aviation' has the meaning given by section 3AE;
'weapon' means:
(a) a firearm of any kind; or
(b) a thing stated in the regulations to be a weapon; and includes a
device that:
(c) except for the absence of, or a defect in, a part of the device, would
be a weapon of a kind mentioned in paragraph (a) or (b); or
(d) is reasonably capable of being converted into a weapon of a kind
mentioned in paragraph (a) or (b);". 3. Subsection 3(1) (definition of
"state aircraft"): Insert after "his" in paragraph (c) "or her". 4.
After section 3: Insert: Meaning of "threaten"
"3AA. For the purposes of this Act, a person is taken to 'threaten' to do an
act if the person makes a statement, or does anything else, showing, or from
which it could reasonably be inferred, that it is his or her intention to do
the act. Aircraft flights: when do they start?
"3AB. For the purposes of this Act, a flight of an aircraft is taken to start:
(a) when the last external door is closed in preparation for the first
movement of the aircraft for the purpose of taking off on the flight;
or
(b) if the aircraft moves, before all the external doors are closed, for
the purpose of taking off on the flight-when it first so moves.
Aircraft flights: when do they end?
"3AC.(1) Subject to this section, a flight of an aircraft is, for the purposes
of this Act, taken to end when the first external door is opened after the
aircraft comes to rest on the next landing it makes after starting the flight.
"(2) If an aircraft makes a forced landing, its flight is, for the purposes of
this Act, taken to end when the competent authorities take over responsibility
for the aircraft and for the people and property on board.
"(3) If, after an aircraft starts a flight:
(a) the aircraft is destroyed before the flight is taken to have ended
under subsection (1) or (2); or
(b) the flight is abandoned; the flight is, for the purposes of this Act,
taken to end when the aircraft is destroyed, or the flight is
abandoned, as the case may be. Screening and clearance
"3AD.(1) A person or vehicle is, or goods are, 'screened' for the purposes of
this Act when an aircraft operator applies testing procedures to the person,
vehicle or goods in order to detect the presence of any weapon that might be
on the person, or in the vehicle or goods.
"(2) The person or vehicle is, or goods are, 'cleared' for the purposes of
this Act if:
(a) the screening has not revealed the presence of any weapon on the
person or in the vehicle or goods; or
(b) in respect of a screening that has revealed the presence of a weapon
on the person or in the vehicle or goods-the weapon is surrendered to
the aircraft operator. Meaning of unlawful interference with aviation
"3AE.(1) In this Act, an 'unlawful interference with aviation' is any of the
following acts that is committed by a person without a lawful excuse:
(a) seizing, or exercising control of, an aircraft by force, or threat of
force, or any other form of intimidation;
(b) committing, against a person on board an aircraft in flight, an act of
violence that is likely to endanger the safety of the aircraft;
(c) destroying an aircraft that is in service;
(d) causing, to an aircraft in service, damage that:
(i) renders the aircraft incapable of flight; or
(ii) is likely to endanger its safety in flight;
(e) placing, or causing to be placed, on board an aircraft in service a
thing that is likely to:
(i) destroy the aircraft; or
(ii) render it incapable of flight; or
(iii) endanger its safety in flight;
(f) destroying or damaging any air navigation facilities, if the
destruction or damage is likely to endanger the safety of an aircraft
in flight;
(g) interfering with the operation of any air navigation facilities, if
the interference is likely to endanger the safety of an aircraft in
flight;
(h) communicating information that the person knows to be false, if the
communication of the information endangers the safety of an aircraft
in flight;
(i) using a weapon or other thing to commit an act of violence against a
person at an airport, if the act:
(i) causes, or is likely to cause, serious injury or death; and
(ii) endangers, or is likely to endanger, the safe operation of the
airport or the safety of anyone at the airport;
(j) using a weapon, or any other thing:
(i) to destroy, or cause serious damage to, the facilities of an
airport; or
(ii) to destroy, or cause serious damage to, an aircraft that is not
in service and is located within an airport; or
(iii) to disrupt the operation of an airport; if the use of the
weapon or thing endangers, or is likely to endanger, the safe
operation of the airport;
(k) attempting to commit an act described in any of the above paragraphs.
"(2) In this section:
'in flight', in relation to an aircraft, has the same meaning as in Article 2
of the Montreal Convention;
'in service', in relation to an aircraft, has the same meaning as in Article 2
of the Montreal Convention;
'Montreal Convention' means the Convention for the Suppression of Unlawful
Acts against the Safety of Civil Aviation, ratified by Australia on 12 July
1973, and whose English text is set out in Schedule 2 to the
Crimes (Aviation) Act 1991. Uniformed security force
"3AF. In this Act, a reference to a 'uniformed security force' in relation to
an airport is a reference to a group of people:
(a) who are made available by a body (for example, the Australian
Protective Service) to be engaged by the operator of the airport to
patrol the airport in accordance with the directions of the operator
of the airport; and
(b) each of whom, when so patrolling the airport:
(i) wears a uniform; and
(ii) carries a firearm of a kind that is approved by the Secretary
in writing for the purposes of this section; and
(iii) carries a transceiver that enables him or her to communicate
with other members of the body, the airport operator or the
police force of the State or Territory in which the airport is
located.". 5. Before section 3A: Insert:
"PART 2-REGULATION OF AIR NAVIGATION". 6. Subsection 9(1): Omit "writing under
his hand", substitute "signed writing". 7. Subsection 10(2): Omit, substitute:
"(2) If an aircraft is intentionally or recklessly flown in contravention of
subsection (1), the operator of the aircraft and the pilot in command of the
aircraft are each, unless the operator or the pilot in command, as the case
may be, has a reasonable excuse, guilty of an offence punishable on conviction
by imprisonment for a period of not more than 2 years. Note: Subsection 4B(2)
of the Crimes Act 1914 allows a court to impose in respect of an offence an
appropriate fine instead of, or in addition to, a term of imprisonment. If a
body corporate is convicted of an offence, subsection 4B(3) of that Act allows
a court to impose a fine of an amount that is not greater than 5 times the
maximum fine that could be imposed by the court on an individual convicted of
the same offence.". 8. Section 11: Add at the end:
"(2) The meanings of 'air service' and 'international air service' given by
subsection 3(1) do not apply to this section.". 9. Subsection 12(1A): Omit,
substitute:
"(1A) If an aircraft is intentionally or recklessly flown in contravention of
subsection (1), the operator of the aircraft is, unless the operator has a
reasonable excuse, guilty of an offence punishable on conviction by
imprisonment for a period of not more than 7 years. Note: Subsection 4B(2) of
the Crimes Act 1914 allows a court to impose in respect of an offence an
appropriate fine instead of, or in addition to, a term of imprisonment. If a
body corporate is convicted of an offence, subsection 4B(3) of that Act allows
a court to impose a fine of an amount that is not greater than 5 times the
maximum fine that could be imposed by the court on an individual convicted of
the same offence.". 10. Section 12: Add at the end:
"(3) The meanings of 'air service' and 'international air service' given by
subsection 3(1) do not apply to this section.". 11. Subsection 13A(2): Omit,
substitute:
"(2) If an aircraft is intentionally or recklessly flown in contravention of
subsection (1), the operator of the aircraft and the pilot in command of the
aircraft are each, unless the operator or the pilot in command, as the case
may be, has a reasonable excuse, guilty of an offence punishable on conviction
by imprisonment for a period of not more than 2 years. Note: Subsection 4B(2)
of the Crimes Act 1914 allows a court to impose in respect of an offence an
appropriate fine instead of, or in addition to, a term of imprisonment. If a
body corporate is convicted of an offence, subsection 4B(3) of that Act allows
a court to impose a fine of an amount that is not greater than 5 times the
maximum fine that could be imposed by the court on an individual convicted of
the same offence.". 12. Subsection 14(3): Omit, substitute:
"(3) If a passenger or any cargo or mail is intentionally or recklessly taken
on to, or discharged from, an aircraft in contravention of subsection (2), the
operator of the aircraft and the pilot in command of the aircraft are each,
unless the operator or the pilot in command, as the case may be, has a
reasonable excuse, guilty of an offence punishable on conviction by
imprisonment for a period of not more than 2 years. Note: Subsection 4B(2) of
the Crimes Act 1914 allows a court to impose in respect of an offence an
appropriate fine instead of, or in addition to, a term of imprisonment. If a
body corporate is convicted of an offence, subsection 4B(3) of that Act allows
a court to impose a fine of an amount that is not greater than 5 times the
maximum fine that could be imposed by the court on an individual convicted of
the same offence.". 13. Subsection 14(5): After "he" insert "or she". 14.
Subsection 15(2): After "he" (wherever occurring) insert "or she". 15.
Subsection 15(2B): Omit, substitute:
"(2B) If an aircraft is intentionally or recklessly flown in contravention of
subsection (1), the operator of the aircraft and the pilot in command of the
aircraft are each, unless the operator or the pilot in command, as the case
may be, has a reasonable excuse, guilty of an offence punishable on conviction
by imprisonment for a period of not more than 2 years. Note: Subsection 4B(2)
of the Crimes Act 1914 allows a court to impose in respect of an offence an
appropriate fine instead of, or in addition to, a term of imprisonment. If a
body corporate is convicted of an offence, subsection 4B(3) of that Act allows
a court to impose a fine of an amount that is not greater than 5 times the
maximum fine that could be imposed by the court on an individual convicted of
the same offence.". 16. Subsection 15(5): After "he" insert "or she". 17.
Subsection 17(1A): Omit, substitute:
"(1A) If an aircraft is intentionally or recklessly flown in contravention of
subsection (1), the operator of the aircraft and the pilot in command of the
aircraft are each, unless the operator or the pilot in command, as the case
may be, has a reasonable excuse, guilty of an offence punishable on conviction
by imprisonment for a period of not more than 2 years. Note: Subsection 4B(2)
of the Crimes Act 1914 allows a court to impose in respect of an offence an
appropriate fine instead of, or in addition to, a term of imprisonment. If a
body corporate is convicted of an offence, subsection 4B(3) of that Act allows
a court to impose a fine of an amount that is not greater than 5 times the
maximum fine that could be imposed by the court on an individual convicted of
the same offence.". 18. Subsection 19(3): Omit, substitute:
"(3) If an aircraft is flown in contravention of subsection (1), the operator
of the aircraft is, unless the operator has a reasonable excuse, guilty of an
offence punishable on conviction by a fine of not more than 200 penalty units.
"(4) An offence against subsection (3) is an offence of strict liability.
"(5) A person must not intentionally or recklessly:
(a) carry; or
(b) have in his or her possession; munitions or implements of war:
(c) on board an aircraft in or over Australian territory; or
(d) on board an Australian aircraft outside Australian territory. Penalty:
Imprisonment for 7 years.
"(6) Subsection (5) does not apply if the munitions or implements of war are
carried in accordance with the written permission of the Minister and any
conditions to which the permission is expressed to be subject. Note:
Subsection 4B(2) of the Crimes Act 1914 allows a court to impose in respect of
an offence an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of an offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by the court on an
individual convicted of the same offence.". 19. After section 19: Insert:
"PART 3-AVIATION SECURITY
"Division 1-Passengers and baggage etc. Screening of passengers and their
possessions
"20.(1) This section applies to an aircraft that is:
(a) a regular public transport aircraft that:
(i) is fitted to carry 100 or more passengers; and
(ii) is not engaged in an international flight; or
(b) a regular public transport aircraft that is engaged in an
international flight; or
(c) a charter aircraft that:
(i) is fitted to carry 100 or more passengers; and
(ii) is not engaged in an international flight; or
(d) a charter aircraft that:
(i) is fitted to carry 38 or more passengers; and
(ii) is engaged in an international flight.
"(2) The operator of an aircraft must not, without reasonable excuse, permit a
passenger who has not been screened and cleared by the operator to board the
aircraft. Penalty: 200 penalty units.
"(3) For the purposes of subsection (2), a person who:
(a) has been screened and cleared at an Australian airport before
embarking on an aircraft flight; and
(b) has disembarked from the aircraft at an Australian airport; and
(c) has not had an opportunity to make physical contact with a person who:
(i) is required by this section to be screened but has not been
screened; or
(ii) having been screened, has afterwards had an opportunity to make
physical contact with a person of a kind referred to in this
paragraph; is taken to have been screened and cleared for the
purpose of entering a sterile area in relation to another
flight of that aircraft or a flight of another aircraft or for
the purpose of boarding that aircraft or another aircraft.
"(4) Subsection (2) does not apply if:
(a) the Secretary has exempted the passenger in writing from screening and
clearance; or
(b) the passenger is included in a class of people that the Secretary has
exempted in writing from screening and clearance.
"(5) The operator of an aircraft must not, without reasonable excuse, permit a
passenger's accompanying possessions that have not been screened and cleared
by the operator to be brought on board the aircraft. Penalty: 200 penalty
units.
"(6) Subsection (5) does not apply if:
(a) the Secretary has exempted the possessions in writing from screening
and clearance; or
(b) the possessions are included in a class of items that the Secretary
has exempted in writing from screening and clearance.
"(7) An offence constituted by a contravention of this section is an offence
of strict liability. Note: If a body corporate is convicted of an offence,
subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of an
amount that is not greater than 5 times the maximum fine that could be imposed
by the court on an individual convicted of the same offence. Sterile area:
aircraft operator
"21.(1) An aircraft operator may individually, or jointly with one or more
other aircraft operators, apply to the Secretary in writing for the
Secretary's approval of a place to be designated as a sterile area in respect
of the operator or operators.
"(2) The application may state that the place is to be designated as a sterile
area only in respect of a particular time or times (for example, particular
hours of each day).
"(3) The place may be at an airport or outside an airport.
"(4) If the regulations prescribe:
(a) information that must be included in an application under subsection
(1); or
(b) the manner in which the application must be made; the application must
be made in accordance with the regulations.
"(5) The Secretary must consider the application and:
(a) approve the place to be designated as a sterile area; or
(b) approve the place to be designated as a sterile area subject to a
condition stated in the approval; or
(c) refuse the application.
"(6) An aircraft operator in respect of whom a place has been approved as a
sterile area must ensure that people, vehicles and goods do not enter or
remain in the sterile area unless they:
(a) have been screened and cleared by an aircraft operator in respect of
the sterile area; or
(b) are exempted by the Secretary from screening and clearance.
"(7) An aircraft operator must not, without reasonable excuse, contravene
subsection (6). Penalty: 200 penalty units. Note: If a body corporate is
convicted of an offence, subsection 4B(3) of the Crimes Act 1914 allows a
court to impose a fine of an amount that is not greater than 5 times the
maximum fine that could be imposed by the court on an individual convicted of
the same offence.
"(8) An offence constituted by a contravention of subsection (6) is an offence
of strict liability.
"(9) If, under an application referred to in subsection (2), the Secretary
approves a place to be designated as a sterile area only in respect of a
particular time or times, a reference in this Act to a sterile area is a
reference to the place during the time or times (as the case may be). Sterile
areas and screening point: weapons
"22.(1) A person must not intentionally or recklessly carry a weapon through a
screening point, or intentionally or recklessly have a weapon in his or her
possession in a sterile area, unless the person:
(a) is a member of the Australian Federal Police, or of a police force of
a State or Territory, who is on duty; or
(b) is a member of a uniformed security force who is on duty; or
(c) is permitted in writing by the Secretary to carry the weapon. Penalty:
Imprisonment for 5 years. Note: Subsection 4B(2) of the Crimes Act
1914 allows a court to impose an appropriate fine instead of, or in
addition to, a term of imprisonment.
"(2) If an authorised officer:
(a) reasonably suspects that a person has carried a weapon through a
screening point, or has a weapon in his or her possession in a sterile
area, in contravention of subsection (1); and
(b) does not think it appropriate to arrest the person; the officer may
request the person to leave the screening point or sterile area, as
the case may be.
"(3) If the person fails to comply with the request, section 22ZT has effect.
"(4) In this section:
'authorised officer' means:
(a) a member of a uniformed security force who is on duty; or
(b) a member of the Australian Federal Police, or of a police force of a
State or Territory, who is on duty. Screening of people generally:
sterile areas
"22A.(1) A person must not intentionally or recklessly enter a sterile area
unless:
(a) the person has been screened and cleared by an aircraft operator in
respect of the sterile area; or
(b) the Secretary has exempted the person in writing from screening and
clearance; or
(c) the person is included in a class of people that the Secretary has
exempted in writing from screening and clearance. Penalty: 80 penalty
units.
"(2) A person must not intentionally or recklessly take a vehicle into a
sterile area unless:
(a) the person:
(i) has been screened and cleared by an aircraft operator in
respect of the sterile area; or
(ii) has been exempted by the Secretary in writing from screening
and clearance; or
(iii) is included in a class of people that the Secretary has
exempted in writing from screening and clearance; and
(b) the vehicle:
(i) has been screened and cleared by an aircraft operator in
respect of the sterile area; or
(ii) has been exempted by the Secretary in writing from screening
and clearance; or
(iii) is included in a class of vehicles that the Secretary has
exempted in writing from screening and clearance. Penalty: 80
penalty units.
"(3) A person must not intentionally or recklessly take goods into a sterile
area unless:
(a) the person:
(i) has been screened and cleared by an aircraft operator in
respect of the sterile area; or
(ii) has been exempted by the Secretary in writing from screening
and clearance; or
(iii) is included in a class of people that the Secretary has
exempted in writing from screening and clearance; and
(b) the goods:
(i) have been screened and cleared by an aircraft operator in
respect of the sterile area; or
(ii) have been exempted by the Secretary in writing from screening
and clearance; or
(iii) are included in a class of goods that the Secretary has
exempted in writing from screening and clearance. Penalty: 80
penalty units.
"(4) For the purposes of subsections (1) to (3), a person who:
(a) has been screened and cleared at an Australian airport before
embarking on an aircraft flight; and
(b) has disembarked from the aircraft at an Australian airport; and
(c) has not had an opportunity to make physical contact with a person who:
(i) is required by this section to be screened but has not been
screened; or
(ii) having been screened, has afterwards had an opportunity to make
physical contact with a person of a kind referred to in this
paragraph; is taken to have been screened and cleared for the
purpose of entering a sterile area in relation to another
flight of that aircraft or a flight of another aircraft or for
the purpose of boarding that aircraft or another aircraft.
"(5) An aircraft operator screening people, goods or vehicles must do so:
(a) in the manner and on the occasions that the Secretary directs in
writing; and
(b) by the use of people who meet any requirements in relation to
qualification, training, experience or appropriate physical attributes
that are determined by the Secretary in writing; and
(c) by the use of equipment that conforms to, and is operated in
accordance with, specifications determined by the Secretary in
writing; and
(d) by the use of areas, buildings or rooms reserved for the purposes of
screening and clearance.
"(6) An aircraft operator must not, without reasonable excuse, contravene
subsection (5). Penalty: 200 penalty units.
"(7) An aircraft operator must not permit a person, a vehicle or goods to pass
a screening point to enter a sterile area, or to enter an aircraft, if the
screening equipment detects a metal or unidentified object that is on the
person, or in the vehicle or goods, unless:
(a) the operator is satisfied that the object is not a danger to aviation
security; or
(b) the object is surrendered to the operator.
"(8) An aircraft operator must not, without reasonable excuse, contravene
subsection (7). Penalty: 200 penalty units.
"(9) Subject to subsection (11), an aircraft operator must ensure that
passengers or intending passengers of the aircraft do not make physical
contact with people, vehicles or goods that have not been screened and
cleared.
"(10) The requirement in subsection (9) applies for the period beginning
immediately after the passenger, or intending passenger, is screened and
cleared and ending at the time when the passenger, or intending passenger,
boards the aircraft.
"(11) In spite of subsection (9), an aircraft operator is not required to
ensure that passengers, or intending passengers, do not make physical contact
with:
(a) a person, vehicle or goods authorised in writing by the Secretary to
be in an area used by those passengers or intending passengers; and
(b) a person, vehicle or goods in a class of people, vehicles or goods
that are authorised in writing by the Secretary to be in an area used
by those passengers or intending passengers.
"(12) An aircraft operator must not, without reasonable excuse, contravene
subsection (9). Penalty: 200 penalty units.
"(13) An offence constituted by a contravention of subsection (5), (7) or (9)
is an offence of strict liability. Note: If a body corporate is convicted of
an offence, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a
fine of an amount that is not greater than 5 times the maximum fine that could
be imposed by the court on an individual convicted of the same offence.
Screening officer has no power to remove person's clothing
"22B.(1) An aircraft operator screening a person may request the person to
remove any of the person's headwear, handwear, footwear and outer clothing for
the purposes of the screening.
"(2) If:
(a) the person refuses to comply with the request; and
(b) as a result of the refusal, the operator is unable to screen and clear
the person; the operator may refuse to permit the person to enter a
sterile area or an aircraft of the operator.
"(3) An aircraft operator screening a person must not:
(a) subject to subsections (1) and (2), require the person to remove any
of the person's clothing; or
(b) remove or cause the removal of any of the person's clothing.
"(4) An aircraft operator must not, without reasonable excuse, contravene
subsection (3). Penalty: 200 penalty units. Note: If a body corporate is
convicted of an offence, subsection 4B(3) of the Crimes Act 1914 allows a
court to impose a fine of an amount that is not greater than 5 times the
maximum fine that could be imposed by the court on an individual convicted of
the same offence.
"(5) An offence constituted by a contravention of subsection (3) is an offence
of strict liability. Carriage of baggage
"22C.(1) This section applies to an aircraft that is:
(a) a regular public transport aircraft; or
(b) a charter aircraft; that is fitted to carry 38 or more passengers.
"(2) The operator of an aircraft must not, without reasonable excuse, accept
baggage for carriage on board the aircraft for a person who fails or refuses
to provide to the operator his or her ticket or other authorisation for travel
on that aircraft. Penalty: 200 penalty units.
"(3) Subsection (2) does not apply if the Secretary has directed in writing
that:
(a) the aircraft; or
(b) a class of aircraft that includes the aircraft; or
(c) the baggage; or
(d) a class of baggage that includes the baggage; is exempt from the
operation of that subsection.
"(4) The operator of an aircraft must not, without reasonable excuse, fail to
ensure that a tag indicating the flight number and destination of the aircraft
is securely attached to each item of baggage accepted by the operator for
carriage on board the aircraft. Penalty: 20 penalty units.
"(5) The operator of an aircraft must not, without reasonable excuse, allow
baggage accepted by the operator for carriage on board the aircraft to be
accessible by a person other than the operator before the completion of the
flight. Penalty: 200 penalty units.
"(6) The operator of an aircraft must determine, before the aircraft starts a
flight, whether a person whose baggage has been accepted for carriage in the
aircraft:
(a) has disembarked from the aircraft; or
(b) has not boarded the aircraft.
"(7) An aircraft operator must not, without reasonable excuse, contravene
subsection (6). Penalty: 200 penalty units.
"(8) Subject to subsections (10) and (11), if a person whose baggage has been
accepted by an aircraft operator to be carried on board an aircraft:
(a) has disembarked from the aircraft; or
(b) has not boarded the aircraft; the operator of the aircraft must remove
the baggage from the aircraft before the aircraft starts a flight.
"(9) An aircraft operator must not, without reasonable excuse, contravene
subsection (8). Penalty: 200 penalty units.
"(10) Subsection (8) does not apply if:
(a) the Secretary has directed in writing that:
(i) the aircraft; or
(ii) a class of aircraft that includes the aircraft; or
(iii) the baggage; or
(iv) a class of baggage that includes the baggage; is exempt from
the operation of that subsection; or
(b) the person is intentionally prevented by the operator from entering or
remaining in the aircraft and the operator reasonably believes that
the baggage is unlikely to represent a danger to people on board the
aircraft; or
(c) the person died before boarding the aircraft; or
(d) the person died after boarding the aircraft and the body of the person
has been removed from the aircraft; or
(e) the person has disembarked from the aircraft during an unscheduled
landing of the aircraft that is for safety or other operational
purposes; or
(f) the person has disembarked from the aircraft or has not boarded the
aircraft because the person travels in another aircraft at the offer
of the operator.
"(11) Subsection (8) does not apply to a person's baggage that is on board an
aircraft if:
(a) the person has boarded another aircraft, whether an aircraft of the
operator or another operator; and
(b) the baggage was placed on the first-mentioned aircraft because of an
inadvertent act or omission of an aircraft operator; and
(c) the placing of the baggage on the first-mentioned aircraft was not
caused or contributed to by anything done by the person.
"(12) An offence constituted by a contravention of this section is an offence
of strict liability. Note: If a body corporate is convicted of an offence,
subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of an
amount that is not greater than 5 times the maximum fine that could be imposed
by the court on an individual convicted of the same offence. Carriage of
weapons on aircraft
"22D.(1) A person on board a charter aircraft or a regular transport aircraft
(whether during a flight or not) must not intentionally or recklessly:
(a) carry a weapon; or
(b) otherwise have in his or her possession a weapon that is located at a
place in the aircraft that is accessible to the person. Penalty:
Imprisonment for 7 years. Note: Subsection 4B(2) of the Crimes Act
1914 allows a court to impose in respect of an offence an appropriate
fine instead of, or in addition to, a term of imprisonment.
"(2) Subsection (1) does not apply in relation to a weapon that:
(a) is carried on board the aircraft in accordance with a written
direction or permission of the Secretary; or
(b) is carried:
(i) because an animal that could endanger the safety of the
aircraft, or the safety of people on board the aircraft, is
being carried on board the aircraft; and
(ii) under the control of the pilot in command of the aircraft; or
(c) forms part of the equipment of the aircraft in accordance with the
operations manual for the aircraft.
"(3) If a direction or permission under paragraph (2)(a) sets out conditions
under which, or the manner in which, the weapon is to be carried on board the
aircraft, the operator of the aircraft must ensure that the weapon is carried
on board the aircraft in accordance with the direction or permission.
"(4) An aircraft operator must not, without reasonable excuse, contravene
subsection (3). Penalty: 200 penalty units. Note: If a body corporate is
convicted of an offence, subsection 4B(3) of the Crimes Act 1914 allows a
court to impose a fine of an amount that is not greater than 5 times the
maximum fine that could be imposed by the court on an individual convicted of
the same offence.
"(5) An offence constituted by a contravention of subsection (3) is an offence
of strict liability.
"(6) If an authorised officer:
(a) reasonably suspects that a person on board an aircraft is carrying a
weapon, or otherwise has a weapon in his or her possession, in
contravention of subsection (1); and
(b) does not think it appropriate to arrest the person; the officer may
request the person to leave the aircraft before the aircraft starts a
flight.
"(7) If the person fails to comply with the request, section 22ZT has effect.
"(8) In this section:
'authorised officer' means:
(a) a member of a uniformed security force who is on duty; or
(b) a member of the Australian Federal Police, or of a police force of a
State or Territory, who is on duty. Note: Carriage of weapons on an
aircraft is also subject to provisions in the Civil Aviation Act 1988
and Crimes (Aviation) Act 1991.
"Division 2-Report of unlawful interference with aviation etc. Definitions
"22E. In this Division, unless the contrary intention appears:
'employee', in relation to an employer, means:
(a) a person employed by the employer; or
(b) a person engaged under a contract for services between the person and
the employer;
'employer' means:
(a) an aircraft operator; or
(b) an airport operator; or
(c) a person to whom a lease or licence has been granted in respect of
land within an airport; or
(d) a person, other than the Corporation, to whom a right has been granted
to use an area or a building, or a part of a building, at an airport.
Report of threat of unlawful interference with aviation etc.-employees
"22F.(1) An employee who becomes aware of:
(a) a threat of an unlawful interference with aviation; or
(b) an unlawful interference with aviation; must, as soon as possible,
report the threat or interference, as the case may be, to his or her
employer.
"(2) An employee must not, without reasonable excuse, contravene subsection
(1). Penalty: 200 penalty units.
"(3) An offence constituted by a contravention of subsection (1) is an offence
of strict liability. Report of threat of unlawful interference with aviation
etc.- aircraft operator
"22G.(1) An aircraft operator who becomes aware of:
(a) a threat of an unlawful interference with aviation; or
(b) an unlawful interference with aviation; must, as soon as possible,
report the threat or interference, as the case may be, to:
(c) if it relates to an airport-the operator of the airport; and
(d) if it relates to an aircraft of another operator-the other operator;
and
(e) if it relates to an aircraft of the operator:
(i) the Department; and
(ii) the Australian Federal Police or the police force of a State or
Territory; and
(f) if it is an interference with aviation that relates to an aircraft of
the operator in flight-Airservices Australia; and
(g) if it is an interference with aviation that relates to an aircraft of
the operator that is in an airport-the operator of the airport.
"(2) If:
(a) an aircraft operator becomes aware of a threat of unlawful
interference with aviation; and
(b) the threat relates to an aircraft of the operator; and
(c) either:
(i) the operator assesses the threat and decides that the threat is
credible; or
(ii) for whatever reason, the operator is unable to determine
whether the threat is credible; the operator must, as soon as
possible, report the threat to:
(d) Airservices Australia; and
(e) if the aircraft is on an airport-the operator of the airport.
"(3) An aircraft operator must not, without reasonable excuse, contravene
subsection (1) or (2). Penalty: 200 penalty units. Note: If a body corporate
is convicted of an offence, subsection 4B(3) of the Crimes Act 1914 allows a
court to impose a fine of an amount that is not greater than 5 times the
maximum fine that could be imposed by the court on an individual convicted of
the same offence.
"(4) An offence constituted by a contravention of this section is an offence
of strict liability. Report of threat etc.-airport operator
"22H.(1) The operator of an airport who becomes aware of:
(a) a threat of an unlawful interference with aviation; or
(b) an unlawful interference with aviation; must, as soon as soon as
possible, report the threat or interference, as the case may be, to:
(c) if it relates to an aircraft-the operator of the aircraft; and
(d) if it relates to an airport of another airport operator-the other
airport operator; and
(e) if it relates to an airport of the operator:
(i) the Department; and
(ii) the Australian Federal Police or the police force of a State or
Territory; and
(f) if it relates to an area or part of an airport of the operator for
which a lease or licence has been granted to another person-the other
person.
"(2) For the purposes of subsection (1), the operator is not required to
report under paragraph (1)(f) if the threat or unlawful interference:
(a) relates to the airport in general; and
(b) is not specifically directed at the area or part of the airport for
which the lease or licence has been granted.
"(3) An airport operator must not, without reasonable excuse, contravene
subsection (1). Penalty: 200 penalty units. Note: If a body corporate is
convicted of an offence, subsection 4B(3) of the Crimes Act 1914 allows a
court to impose a fine of an amount that is not greater than 5 times the
maximum fine that could be imposed by the court on an individual convicted of
the same offence.
"(4) An offence constituted by a contravention of subsection (1) is an offence
of strict liability. Report of threat etc.-other people
"22J.(1) This section applies to the following people:
(a) an employee of the Department;
(b) an employee of Airservices Australia;
(c) a member of the Australian Federal Police or of the police force of a
State or Territory on duty at an airport;
(d) a member of a uniformed security force on duty at an airport;
(e) a person (other than an aircraft operator or airport operator) to whom
a lease or licence has been granted in respect of land within an
airport;
(f) a person (other than an aircraft operator or airport operator) to whom
a right has been granted to use an area at an airport.
"(2) A person to whom this section applies who becomes aware of:
(a) a threat of an unlawful interference with aviation; or
(b) an unlawful interference with aviation; must, as soon as possible,
report the threat or interference to:
(c) if it relates to an aircraft-the operator of the aircraft; and
(d) if it relates to an airport-the operator of the airport.
"(3) A person must not, without reasonable excuse, contravene subsection (2).
Penalty: 200 penalty units.
"(4) An offence constituted by a contravention of subsection (2) is an offence
of strict liability. Report must comply with certain requirements
"22K.(1) The Secretary may, by notice published in the Gazette, set out:
(a) information that must be included in a report that is required to be
made to a person under a provision of this Division; or
(b) the manner in which the report must be made to the person.
"(2) A notice under subsection (1) is a disallowable instrument for the
purposes of section 46A of the Acts Interpretation Act 1901.
"(3) If requirements set out under subsection (1) are in force in relation to
a report required to be made to a person under a provision of this Division, a
report is taken not to have been made to the person under the provision unless
it complies with the requirements. False or misleading reports
"22L.(1) A person must not, without reasonable excuse, make a report under
this Division that is false or misleading in a material particular. Penalty:
200 penalty units.
"(2) An offence constituted by a contravention of subsection (1) is an offence
of strict liability.
"Division 3-Aviation security programs Application
"22M. This Division applies to the following air services:
(a) an international air service by regular public transport operations;
(b) an international air service by charter operations;
(c) a domestic air service by regular public transport operations using
aircraft fitted to carry 38 or more passengers. Definitions
"22N. In this Division:
'approved program' means an aviation security program in respect of which the
Secretary's approval under section 22R is in force, and includes such a
program as varied under section 22U or 22V;
'aviation security program' has the meaning given by section 22P;
'program purposes', in relation to a proposed program or an approved program
means the purposes referred to in paragraphs 22P(1)(a) to (j);
'proposed program' means a proposed aviation security program prepared under
section 22Q. Aviation security program
"22P.(1) For the purposes of this Division, an 'aviation security program' of
an aircraft operator is a program that describes the equipment to be used, and
sets out the procedures to be followed, by the operator for each of the
following purposes in relation to aircraft operated by the operator:
(a) preventing the unlawful carriage on an aircraft of the operator of:
(i) any weapon; or
(ii) any other thing that may endanger the safety of the aircraft or
of any people or property on board the aircraft;
(b) preventing any person from having unlawful access to an aircraft;
(c) ensuring that all baggage, mail, cargo, equipment, goods or any other
articles are accepted to be taken on board an aircraft only by:
(i) an employee of the operator; or
(ii) an agent or representative duly authorised by the operator;
(d) preventing baggage, mail, cargo, equipment, goods and any other
articles from being taken on board an aircraft except in accordance
with security procedures set out in the program;
(e) protecting an aircraft and people and property on board an aircraft
when there is reason to believe that a danger exists to the aircraft
or to the people or property;
(f) carrying a weapon on board an aircraft in a secure manner under
paragraph 22D(2)(a);
(g) carrying on board an aircraft in a secure manner a person who is in
lawful custody;
(h) responding to threats of unlawful interference with aviation in
relation to:
(i) an aircraft; and
(ii) the air service conducted or offered to be conducted by the
operator;
(i) reporting:
(i) threats of an unlawful interference with aviation; and
(ii) an unlawful interference with aviation; under this Act;
(j) responding to an unlawful interference with aviation against an
aircraft.
"(2) The reference in subsection (1) to the equipment and procedures includes
a reference to equipment to be used, and procedures to be followed, by the
operator:
(a) at an airport at which an aircraft of the operator lands; and
(b) on board such an aircraft while it is at an airport.
"(3) If the program relates to an international air service, the reference in
subsection (1) to the equipment and procedures includes a reference to
equipment to be used, and procedures to be followed, by the operator:
(a) on board an aircraft of the operator while it is in flight to or from
Australia, or within Australia; or
(b) in respect of an aircraft that is in flight to Australia-at the place
outside Australia at which the aircraft:
(i) last lands; or
(ii) last takes on board passengers or baggage, mail, equipment,
cargo, goods or any other articles; before the flight.
Preparation and submission of proposed aviation security
program
"22Q. An aircraft operator who proposes to conduct or offers to conduct an air
service may prepare in writing, and submit to the Secretary for approval, a
proposed aviation security program. Approval or rejection of proposed program
"22R.(1) If the Secretary is satisfied that a proposed program submitted by an
aircraft operator is adequate for each of the program purposes, the Secretary
must approve the program by giving written notice of the approval to the
aircraft operator.
"(2) Subject to section 22U, if the Secretary is not satisfied that a proposed
program submitted by an aircraft operator is adequate for each of those
purposes, the Secretary must refuse to approve the program by giving written
notice of the refusal to the aircraft operator.
"(3) An aviation security program in respect of which an approval under the
regulations was in force immediately before the commencement of this section
is taken to have been approved under subsection (1). Start and duration of
approved program "22S.(1) An approved program comes into force:
(a) unless paragraph (b) applies-on the day on which it is approved; or
(b) if a later day is stated in the notice of approval-on the later day.
"(2) The approval of an aviation security program remains in force until the
approval is cancelled under section 22T or subsection 22U(4). Cancellation of
approval of program
"22T. If, at any time, the Secretary is satisfied that:
(a) an approved program is not adequate for any one or more of the program
purposes; and
(b) action to vary the program under section 22U is not appropriate; the
Secretary must cancel the approval by giving written notice of the
cancellation to the aircraft operator who submitted the program.
Direction to vary program
"22U.(1) If the Secretary is satisfied that a proposed program or an approved
program is not adequate for any one or more of the program purposes, the
Secretary may, by written notice given to the aircraft operator who submitted
the program, direct the operator to vary the program.
"(2) The Secretary must not give a direction in relation to a program purpose
unless the Secretary is satisfied that the variation will make the program
adequate for that program purpose.
"(3) In the notice, the Secretary must:
(a) set out the variation; and
(b) state the time within which the aircraft operator must submit a
revised program incorporating the variation to the Secretary for
approval.
"(4) If the aircraft operator fails to comply with the direction within the
stated time, the Secretary must:
(a) refuse to approve the proposed program; or
(b) cancel the approval of the approved program; as the case requires, by
giving written notice of the refusal or cancellation, as the case may
be, to the aircraft operator. Review of program by operator
"22V.(1) An aircraft operator may, at any time, review an approved program
prepared by the aircraft operator.
"(2) In reviewing the approved program, the aircraft operator may have regard
to:
(a) developments, whether in Australia or overseas, in relation to:
(i) the equipment used; and
(ii) the procedures followed; in relation to aviation security; and
(b) experience gained in relation to aviation security, whether in
Australia or overseas, by other aircraft operators.
"(3) If the aircraft operator is satisfied that:
(a) the approved program is no longer adequate for any one or more of the
program purposes; or
(b) the effectiveness of the program for those purposes could be
substantially improved; the operator may prepare in writing, and
submit to the Secretary for approval, proposals for any variation of
the program that the operator thinks necessary.
"(4) If the Secretary is satisfied that the program, when varied as proposed,
will:
(a) be a program adequate for each of the program purposes; or
(b) be substantially more effective for those purposes; the Secretary must
approve the proposals by giving written notice of the approval to the
aircraft operator.
"(5) If the Secretary is not so satisfied, the Secretary must refuse to
approve the proposals by giving written notice of the refusal to the aircraft
operator. Offence-international air service by regular public transport
operations "22W.(1) Subject to subsection (2), an aircraft operator must not
conduct an international air service by regular public transport operations
unless:
(a) an approved program is in force in relation to the operator; and
(b) in conducting the service, the operator complies with the program in
relation to:
(i) an aircraft used in the service; and
(ii) any person or thing on board the aircraft.
"(2) Subsection (1) only applies in respect of an aircraft while it:
(a) flies over Australian territory; or
(b) lands at, takes off from, or otherwise is situated at, an airport in
Australia.
"(3) An aircraft operator must not, without reasonable excuse, contravene
subsection (1). Penalty: 200 penalty units. Note: If a body corporate is
convicted of an offence, subsection 4B(3) of the Crimes Act 1914 allows a
court to impose a fine of an amount that is not greater than 5 times the
maximum fine that could be imposed by the court on an individual convicted of
the same offence.
"(4) An offence constituted by a contravention of subsection (1) is an offence
of strict liability. Offence-international air service by charter operations
"22X.(1) Subject to subsection (3), an aircraft operator must not conduct an
international air service by charter operations unless:
(a) an approved program is in force in relation to the operator, or the
operator has adopted an approved program of another operator in
accordance with subsection (2); and
(b) in conducting the service, the operator complies with the program in
relation to:
(i) an aircraft used in the service; and
(ii) any person or thing on board the aircraft.
"(2) For the purposes of subsection (1), an aircraft operator adopts an
approved program of another operator if:
(a) the other operator has consented in writing to the adoption of the
program by the first-mentioned operator; and
(b) the Secretary, on the first-mentioned operator's application, has
approved, in writing, the adoption.
"(3) Subsection (1) only applies in respect of an aircraft while it:
(a) flies over Australian territory; or
(b) lands at, takes off from, or is otherwise situated at, an airport in
Australia.
"(4) An aircraft operator must not, without reasonable excuse, contravene
subsection (1). Penalty: 200 penalty units. Note: If a body corporate is
convicted of an offence, subsection 4B(3) of the Crimes Act 1914 allows a
court to impose a fine of an amount that is not greater than 5 times the
maximum fine that could be imposed by the court on an individual convicted of
the same offence.
"(5) An offence constituted by a contravention of subsection (1) is an offence
of strict liability. Offence-domestic air service by regular public transport
operations
"22Y.(1) An aircraft operator must not conduct a domestic air service referred
to in paragraph 22M(c) unless:
(a) an approved program is in force in relation to the operator; and
(b) in conducting the service, the operator complies with the program in
relation to:
(i) an aircraft used in the service; and
(ii) any person or thing on board the aircraft.
"(2) An aircraft operator must not, without reasonable excuse, contravene
subsection (1). Penalty: 200 penalty units. Note: If a body corporate is
convicted of an offence, subsection 4B(3) of the Crimes Act 1914 allows a
court to impose a fine of an amount that is not greater than 5 times the
maximum fine that could be imposed by the court on an individual convicted of
the same offence.
"(3) An offence constituted by a contravention of subsection (1) is an offence
of strict liability.
"Division 4-Airport security programs Definitions
"22Z. In this Division:
'airport security program' has the meaning given by section 22ZA;
'approved program' means an airport security program in respect of which the
Secretary's approval under section 22ZD is in force, and includes such a
program as varied under section 22ZG or 22ZH;
'program purposes', in relation to a proposed program or an approved program,
means the purposes referred to in paragraphs 22ZA(1)(a) to (e);
'proposed program' means a proposed airport security program prepared under
section 22ZC. Airport security program
"22ZA.(1) For the purposes of this Division, an 'airport security program' of
an airport operator is a program that describes the human and other resources
to be used, and the procedures to be followed, by the operator in relation to
the airport for each of the following purposes:
(a) preventing, detecting, deterring and responding to an unlawful
interference with aviation at the airport;
(b) responding to an unlawful interference with aviation against aircraft
intending to land at the airport;
(c) responding to a threat of an unlawful interference with aviation
relating to:
(i) the airport or any part of it; or
(ii) an aircraft at the airport; or
(iii) an aircraft that is intended to land at the airport;
(d) preventing unauthorised people from having access to areas of the
airport;
(e) reporting:
(i) threats of an unlawful interference with aviation; and
(ii) an unlawful interference with aviation; under this Act.
"(2) The reference in subsection (1) to a description of the human and other
resources to be used, and the procedures to be followed, in relation to an
airport for the purposes referred to in that subsection includes a reference
to a description of:
(a) the airport's fencing, barriers and gates; and
(b) any security restricted areas of the airport; and
(c) if the airport is a category 1 or 2 airport-the operation of the
airport's emergency operations centre; and
(d) if the airport is a category 1, 2 or 3 airport-the patrolling of the
airport by a uniformed security force. Airport security committees
"22ZB.(1) The operator of a category 1, 2, 3 or 4 airport must ensure that
there is an airport security committee for the airport.
"(2) An airport operator must not, without reasonable excuse, contravene
subsection (1). Penalty: 100 penalty units. Note: If a body corporate is
convicted of an offence, subsection 4B(3) of the Crimes Act 1914 allows a
court to impose a fine of an amount that is not greater than 5 times the
maximum fine that could be imposed by the court on an individual convicted of
the same offence.
"(3) An offence constituted by a contravention of subsection (1) is an offence
of strict liability.
"(4) An airport security committee is to consist of people who are:
(a) nominated in writing by the airport operator; and
(b) approved in writing by the Secretary.
"(5) The function of an airport security committee is to make recommendations
to the airport operator about:
(a) the preparation of an airport security program for the airport; and
(b) the implementation of the airport security program in relation to the
airport.
"(6) The airport operator is to convene:
(a) any meetings of the airport security committee that the Secretary
requires; and
(b) any additional meetings of the committee that the airport operator
thinks necessary for the efficient performance of the committee's
functions.
"(7) The airport operator or a representative of the airport operator is to
preside at meetings of the airport security committee.
"(8) In subsection (7):
'representative of the airport operator' means an individual who is:
(a) nominated by the airport operator; and
(b) approved in writing by the Secretary; as the airport operator's
representative. Preparation and submission of proposed airport
security program
"22ZC.(1) The operator of an airport may prepare in writing, and submit to the
Secretary for approval, a proposed airport security program for the airport.
"(2) If the airport is a category 1, 2, 3 or 4 airport, the operator must have
regard to any recommendation of the airport security committee in relation to
the airport when preparing the proposed program. Approval or rejection of
proposed program
"22ZD.(1) If the Secretary is satisfied that a proposed program submitted by
an airport operator is adequate for each of the program purposes, the
Secretary must approve the program by giving written notice of the approval to
the airport operator.
"(2) Subject to section 22ZG, if the Secretary is not satisfied that the
proposed program is adequate for each of those purposes, the Secretary must
refuse to approve the program by giving written notice of the refusal to the
airport operator. Start and duration of approved program
"22ZE.(1) An approved program comes into force:
(a) unless paragraph (b) applies-on the day on which it is approved; or
(b) if a later day is stated in the notice of approval-on the later day.
"(2) The approval of an airport security program remains in force until the
approval is cancelled under section 22ZF or subsection 22ZG(4). Cancellation
of approval of program
"22ZF. If, at any time, the Secretary is satisfied that:
(a) an approved program is not adequate for any one or more of the program
purposes; and
(b) action to vary the program under section 22ZG is not appropriate; the
Secretary must cancel the approval by giving written notice of the
cancellation to the airport operator who prepared the program.
Direction to vary program
"22ZG.(1) If the Secretary is not satisfied that a proposed program or an
approved program for an airport is adequate for any one or more of the program
purposes, the Secretary may, by written notice given to the operator of the
airport, direct the operator to vary the program.
"(2) The Secretary must not give a direction in relation to a program purpose
unless the Secretary is satisfied that the variation will make the program
adequate for that program purpose.
"(3) In the notice, the Secretary must:
(a) set out the variation; and
(b) state the time within which the airport operator must submit a revised
program incorporating the variation to the Secretary for approval.
"(4) If the airport operator fails to comply with the direction within the
stated time, the Secretary must:
(a) refuse to approve the proposed program; or
(b) cancel the approval of the approved program; as the case requires, by
giving written notice of the refusal or cancellation, as the case may
be, to the airport operator. Review of program by operator
"22ZH.(1) An airport operator may, at any time, review an approved program
prepared by the airport operator.
"(2) In reviewing the approved program, the airport operator may have regard
to:
(a) developments, whether in Australia or overseas, in relation to:
(i) the human and other resources used; and
(ii) the procedures followed; in relation to aviation security; and
(b) experience gained in relation to aviation security, whether in
Australia or overseas, by other airport operators.
"(3) If the airport operator is satisfied that:
(a) the approved program is no longer adequate for any one or more of the
program purposes; or
(b) the effectiveness of the program for those purposes could be
substantially improved; the operator may prepare in writing, and
submit to the Secretary for approval, proposals for any variation of
the program that the operator thinks necessary.
"(4) If the Secretary is satisfied that the program, when varied as proposed,
will:
(a) be a program adequate for each of the program purposes; or
(b) be substantially more effective for those purposes; the Secretary must
approve the proposals by giving written notice of the approval to the
airport operator.
"(5) If the Secretary is not so satisfied, the Secretary must refuse to
approve the proposals by giving written notice of the refusal to the airport
operator. Operator of categorised airport to have an approved airport security
program
"22ZJ.(1) The operator of a categorised airport must:
(a) ensure that an approved airport security program is in force at all
times for the airport; and
(b) comply with the program.
"(2) An operator of a categorised airport must not, without reasonable excuse,
contravene subsection (1). Penalty: 200 penalty units. Note: If a body
corporate is convicted of an offence, subsection 4B(3) of the Crimes Act 1914
allows a court to impose a fine of an amount that is not greater than 5 times
the maximum fine that could be imposed by the court on an individual convicted
of the same offence.
"(3) An offence constituted by a contravention of subsection (1) is an offence
of strict liability.
"Division 5-Security measures etc. applicable to categorised airports Airport
categories
"22ZK.(1) The Secretary may, by written notice given to the operator of an
airport, categorise the airport as a category 1, 2, 3, 4 or 5 airport.
"(2) The notice comes into force:
(a) unless paragraph (b) applies-on the day on which it is given; or
(b) if a later day is stated in the notice-on the later day. Category 1
airports-prescribed requirements
"22ZL.(1) The regulations may, in relation to a category 1 airport, prescribe
matters relating to any of the following:
(a) patrolling of the airport by members of a uniformed security force;
(b) patrolling of the airport by other security personnel;
(c) attendance at the airport by members of a police force and other
security personnel;
(d) responding to security emergencies at the airport;
(e) the operation of a security control centre at the airport;
(f) security restricted areas at the airport;
(g) meetings of an airport security committee;
(h) appointment of an officer to co-ordinate aviation security at the
airport;
(i) provision of lighting, fencing and storage facilities at the airport.
"(2) The operator of a category 1 airport must not, without reasonable excuse,
contravene regulations prescribed under subsection (1). Penalty: 200 penalty
units. Note: If a body corporate is convicted of an offence, subsection 4B(3)
of the Crimes Act 1914 allows a court to impose a fine of an amount that is
not greater than 5 times the maximum fine that could be imposed by the court
on an individual convicted of the same offence.
"(3) An offence constituted by a contravention of regulations prescribed under
subsection (1) is an offence of strict liability.
"(4) In this section:
'security control centre' means the place at an airport where the airport
operator co-ordinates routine measures that relate to aviation security.
Category 2 airports-prescribed requirements
"22ZM.(1) The regulations may, in relation to a category 2 airport, prescribe
matters relating to any of the following:
(a) patrolling of the airport by members of a uniformed security force;
(b) patrolling of the airport by other security personnel;
(c) attendance at the airport by members of a police force and other
security personnel;
(d) responding to security emergencies at the airport;
(e) security restricted areas at the airport;
(f) meetings of an airport security committee;
(g) appointment of an officer to co-ordinate aviation security at the
airport;
(h) provision of lighting, fencing and storage facilities at the airport.
"(2) The operator of a category 2 airport must not, without reasonable excuse,
contravene regulations prescribed under subsection (1). Penalty: 160 penalty
units. Note: If a body corporate is convicted of an offence, subsection 4B(3)
of the Crimes Act 1914 allows a court to impose a fine of an amount that is
not greater than 5 times the maximum fine that could be imposed by the court
on an individual convicted of the same offence.
"(3) An offence constituted by a contravention of regulations prescribed under
subsection (1) is an offence of strict liability. Category 3
airports-prescribed requirements
"22ZN.(1) The regulations may, in relation to a category 3 airport, prescribe
matters relating to any of the following:
(a) patrolling of the airport by members of a uniformed security force;
(b) patrolling of the airport by other security personnel;
(c) attendance at the airport by members of a police force and other
security personnel;
(d) responding to security emergencies at the airport;
(e) security restricted areas at the airport;
(f) meetings of an airport security committee;
(g) appointment of an officer to co-ordinate aviation security at the
airport;
(h) provision of lighting, fencing and storage facilities at the airport.
"(2) The operator of a category 3 airport must not, without reasonable excuse,
contravene regulations prescribed under subsection (1). Penalty: 120 penalty
units. Note: If a body corporate is convicted of an offence, subsection 4B(3)
of the Crimes Act 1914 allows a court to impose a fine of an amount that is
not greater than 5 times the maximum fine that could be imposed by the court
on an individual convicted of the same offence.
"(3) An offence constituted by a contravention of regulations prescribed under
subsection (1) is an offence of strict liability. Category 4
airports-prescribed requirements
"22ZO.(1) The regulations may, in relation to a category 4 airport, prescribe
matters relating to any of the following:
(a) security restricted areas at the airport;
(b) attendance at the airport by members of a police force and other
security personnel;
(c) meetings of an airport security committee;
(d) appointment of an officer to co-ordinate aviation security at the
airport;
(e) provision of fencing facilities at the airport.
"(2) The operator of a class 4 airport must not, without reasonable excuse,
contravene regulations prescribed under subsection (1). Penalty: 80 penalty
units. Note: If a body corporate is convicted of an offence, subsection 4B(3)
of the Crimes Act 1914 allows a court to impose a fine of an amount that is
not greater than 5 times the maximum fine that could be imposed by the court
on an individual convicted of the same offence.
"(3) An offence constituted by a contravention of regulations prescribed under
subsection (1) is an offence of strict liability. Category 5
airports-prescribed requirements
"22ZP.(1) The regulations may, in relation to a category 5 airport, prescribe
matters relating to any of the following:
(a) security restricted areas at the airport;
(b) attendance at the airport by members of a police force.
"(2) The operator of a category 5 airport must not, without reasonable excuse,
contravene regulations prescribed under subsection (1). Penalty: 40 penalty
units. Note: If a body corporate is convicted of an offence, subsection 4B(3)
of the Crimes Act 1914 allows a court to impose a fine of an amount that is
not greater than 5 times the maximum fine that could be imposed by the court
on an individual convicted of the same offence.
"(3) An offence constituted by a contravention of regulations prescribed under
subsection (1) is an offence of strict liability. Secretary's power of
direction
"22ZQ.(1) The Secretary may, by written notice given to the operator of a
categorised airport, direct the operator to comply, in relation to the
airport, with a requirement of the regulations that relates to another
category of airports if the Secretary reasonably believes that the requirement
is appropriate or necessary at the airport in the circumstances.
"(2) A direction may be limited as to the time or times at which, or may
prescribe a manner in which, a requirement is to be complied with.
"(3) An airport operator who is given a direction must not, without reasonable
excuse, contravene the direction. Penalty: 200 penalty units. Note: If a body
corporate is convicted of an offence, subsection 4B(3) of the Crimes Act 1914
allows a court to impose a fine of an amount that is not greater than 5 times
the maximum fine that could be imposed by the court on an individual convicted
of the same offence.
"(4) An offence constituted by a contravention of a direction is an offence of
strict liability. Carriage or discharge of firearms at a categorised airport
"22ZR.(1) Subject to subsection (2), a person in a security restricted area of
a categorised airport must not intentionally or recklessly:
(a) carry a firearm; or
(b) discharge a firearm. Penalty: Imprisonment for 7 years. Note:
Subsection 4B(2) of the Crimes Act 1914 allows a court to impose an
appropriate fine instead of, or in addition to, a term of
imprisonment. "(2) Subsection (1) does not apply if the person is:
(a) an officer or employee of the Department who is on duty; or
(b) a member of the Defence Force who is on duty; or
(c) a member of a uniformed security force who is on duty;
(d) a member of the Australian Federal Police or a police force of a State
or Territory who is on duty; or
(e) a protective service officer who is on duty; or
(f) an officer or employee of Airservices Australia acting in connection
with safety of air navigation; or
(g) a person acting with the authority of a person mentioned in any of the
above paragraphs; or
(h) a person exempted by the Secretary in writing from the operation of
that subsection; or
(i) the operator of the airport or a person who is acting with the
operator's authority.
"(3) If an authorised officer:
(a) reasonably suspects that a person in a security restricted area is
carrying or has discharged a firearm in contravention of subsection
(1); and
(b) does not think it appropriate to arrest the person; the officer may
request the person to leave the security restricted area.
"(4) If the person fails to comply with the request, section 22ZT has effect.
"(5) In this section:
'authorised officer' means:
(a) a member of a uniformed security force who is on duty; or
(b) a member of the Australian Federal Police, or of a police force of a
State or Territory, who is on duty. Approval of certain works at
airports
"22ZS.(1) In this section:
'facility' means any of the following facilities at an airport:
(a) a facility to control the access of people, vehicles or goods to a
security restricted area, including any of the following:
(i) gates;
(ii) doors;
(iii) fences;
(iv) the exterior of a building in the airport that faces a security
restricted area;
(b) a sterile area;
(c) a cargo handling facility;
(d) a baggage handling facility;
(e) a facility for the storage of mishandled or misrouted baggage.
"(2) If:
(a) the operator of a category 1, 2 or 3 airport wishes to construct,
alter or add to a facility at the airport; or
(b) the operator of an aircraft wishes to construct, alter or add to a
facility at a category 1, 2 or 3 airport; the operator may submit
written plans setting out the proposed construction, alteration or
addition to the Secretary for approval.
"(3) The plans must set out particulars of the proposal in sufficient detail
to allow the proposal to be properly considered by the Secretary.
"(4) The Secretary must, within 30 days after receiving the plans, by written
notice given to the operator:
(a) approve the plans; or
(b) approve the plans subject to a variation set out in the approval; or
(c) reject the plans.
"(5) If the Secretary does not comply with subsection (4), the plans are taken
to be approved by the Secretary at the end of the period of 30 days.
"(6) If the Secretary:
(a) approves the plans subject to a variation; or
(b) rejects the plans; the operator may submit to the Secretary, for
approval, written plans that incorporate the variation and any other
revisions.
"(7) This section applies to plans submitted under subsection (6) as if they
were submitted under subsection (2).
"(8) A person must not construct, alter or add to a facility at a category 1,
2 or 3 airport except in accordance with:
(a) plans approved under this section; or
(b) plans approved subject to a variation under this section.
"(9) A person must not, without reasonable excuse, contravene subsection (8).
Penalty: 200 penalty units. Note: If a body corporate is convicted of an
offence, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a
fine of an amount that is not greater than 5 times the maximum fine that could
be imposed by the court on an individual convicted of the same offence.
"(10) An offence constituted by a contravention of subsection (8) is an
offence of strict liability.
"Division 6-Miscellaneous Removal of person who fails to leave a place when
requested by an authorised officer
"22ZT.(1) In this section:
'authorised officer' means:
(a) a member of a uniformed security force who is on duty; or
(b) a member of the Australian Federal Police, or of a police force of a
State or Territory, who is on duty.
"(2) This section applies if a person has refused or failed, within a
reasonable time, to comply with the request made by an authorised officer
under subsection 22(2), 22D(6) or 22ZR(3).
"(3) Subject to this section, the authorised officer may use force to remove
the person:
(a) if the request was made under subsection 22(2)-from the screening
point or sterile area and from any security restricted area; or
(b) if the request was made under subsection 22D(6)-from the aircraft and
from any sterile area or security restricted area; or
(c) if the request was made under subsection 22ZR(3)-from the security
restricted area and from any sterile area.
"(4) An authorised officer must not, in the course of removing a person under
subsection (3) use more force, or subject the person to greater indignity,
than is necessary and reasonable to remove the person.
"(5) The authorised officer may not remove the person under subsection (3) if,
following the officer's request, one of the following occurs:
(a) if the request was made under subsection 22(2):
(i) the person voluntarily surrenders the weapon to the operator of
an aircraft and the operator agrees to carry the weapon on
board the aircraft; or
(ii) the person voluntarily surrenders the weapon to the authorised
officer;
(b) if the request was made under subsection 22D(6):
(i) the person voluntarily surrenders the weapon to the operator of
the aircraft and the operator agrees to carry the weapon on
board the aircraft; or
(ii) the person voluntarily surrenders the weapon to the authorised
officer;
(c) if the request was made under subsection 22ZR(3):
(i) the person voluntarily surrenders the firearm to the operator
of an aircraft and the operator agrees to carry the firearm on
board the aircraft; or
(ii) the person voluntarily surrenders the firearm to the authorised
officer; or
(iii) the person voluntarily surrenders the firearm to a person
referred to in any of the paragraphs of subsection 22ZR(2);
(d) in any case:
(i) the person consents to being screened, and to having his or her
accompanying possessions screened, by an aircraft operator; and
(ii) the person and those possessions are screened and cleared by
the aircraft operator (whether or not they have previously been
screened and cleared by an aircraft operator).
"(6) Subject to subsection (7), if a weapon is surrendered by the person to
the authorised officer or a person referred to in any of the paragraphs of
subsection 22ZR(2):
(a) if the person by whom the weapon was surrendered is proposing to
travel on an aircraft and the operator of the aircraft agrees to carry
the weapon on board the aircraft, the person to whom the weapon was
surrendered must deliver it to the operator; or
(b) otherwise-the person to whom the weapon was surrendered must return
the weapon to the person who surrendered it, but only when that person
is not in a sterile area, an aircraft or a security restricted area.
"(7) If a person to whom a weapon is surrendered (the 'weapon-holder') as
mentioned in subsection (6) reasonably suspects that the possession of the
weapon by the person who surrendered it may have contravened a law of the
Commonwealth, of a State or of a Territory, the weapon-holder:
(a) must not deliver the weapon to the operator of an aircraft or return
it to the person who surrendered it; and
(b) must, as soon as possible, report the surrender of the weapon to a
member of the Australian Federal Police or of a police force of a
State or Territory.
"(8) If the weapon-holder ceases to have the suspicion referred to in
subsection (7), the weapon-holder must, as soon as possible, deal with the
weapon in accordance with subsection (6). Weapon surrendered or delivered to
operator of aircraft
"22ZU.(1) This section applies if a weapon is:
(a) surrendered to an aircraft operator by a person (the 'weapon-owner'):
(i) following the screening of a person, vehicle or goods under
this Act; or
(ii) under paragraph 22ZT(5)(a), (b) or (c); or
(b) delivered to an aircraft operator under paragraph 22ZT(6)(a) by
someone to whom it was surrendered by a person (the 'weapon-owner')
under subsection 22ZT(5).
"(2) Subject to subsection (4), if the weapon-owner is travelling on a flight
in an aircraft of the operator, the operator must cause the weapon to be
returned to the weapon-owner at the end of the flight.
"(3) Subject to subsection (4), if the weapon-owner is not travelling on a
flight in an aircraft of the operator, the operator must return the weapon to
the weapon-owner, but only when the weapon-owner is not in a sterile area, an
aircraft or a security restricted area.
"(4) If the aircraft operator reasonably suspects that the possession of the
weapon by the weapon-owner may have contravened a law of the Commonwealth, of
a State or of a Territory, the operator:
(a) must not return the weapon to the weapon-owner; and
(b) must as soon as possible, report the surrender of the weapon to a
member of the Australian Federal Police or of a police force of a
State or Territory.
"(5) If the operator ceases to have the suspicion referred to in subsection
(4), the operator must, as soon as possible, deal with the weapon in
accordance with subsection (2) or (3), as the case requires. Secretary may
give directions
"22ZV.(1) In this section:
'court' includes:
(a) a tribunal; or
(b) an authority; or
(c) a person; that has power to require the production of documents or the
answering of questions;
'designated person' means a person who is:
(a) an officer or employee of the Department; or
(b) a member of the staff of Airservices Australia or of the Corporation;
or
(c) an airport operator, other than the Corporation; or
(d) an aircraft operator; or
(e) a person to whom a lease or licence has been granted in respect of
land within an airport; or
(f) a person, other than the Corporation, to whom a right has been granted
to use an area or a building, or a part of a building, at an airport;
or
(g) an authority, other than Airservices Australia, to which a right to
use an airport or part of an airport (including a building, or a part
of a building) has been granted; or
(h) a person employed by an operator, person or authority mentioned in
paragraph (c), (d), (e), (f) or (g);
'passenger' includes an intending passenger.
"(2) The Secretary may give written directions to a designated person or a
passenger in relation to the measures and resources to be used:
(a) in responding to a threat of an unlawful interference with aviation in
relation to:
(i) an aircraft; or
(ii) an airport; or
(b) in controlling access to a part of an airport.
"(3) A person must not, without reasonable excuse, fail to comply with a
direction under subsection (2) that is:
(a) given to the person; or
(b) clearly displayed at a place where the direction is to be complied
with by the person. Penalty: 200 penalty units.
"(4) Subject to subsection (5), a person must not:
(a) disclose to a passenger a direction under subsection (2) that is not
expressed to be a direction to a passenger; or
(b) disclose to a person who is not a designated person a direction under
subsection (2) that is expressed to be a direction to a designated
person only. Penalty: 20 penalty units.
"(5) A designated person who makes a disclosure of a kind referred to in
subsection (4) is not guilty of an offence because of that subsection if the
disclosure is reasonably necessary for the purpose of the exercise of his or
her powers, or the performance of his or her functions or duties, as a
designated person.
"(6) Subsection (4) does not preclude the disclosure of a direction to a court
in any civil or criminal proceeding.
"(7) An offence constituted by a contravention of this section is an offence
of strict liability. Review of decisions by AAT
"22ZW.(1) Application may be made to the Administrative Appeals Tribunal for a
review of a decision of the Secretary:
(a) to approve a place to be designated as a sterile area under subsection
21(5) subject to a condition; or
(b) to refuse an application for a place to be designated as a sterile
area under subsection 21(5); or
(c) to refuse to approve a proposed aviation security program under
section 22R or 22U; or
(d) to direct an aircraft operator to vary a proposed program or an
approved program under subsection 22U(1); or
(e) to direct an airport operator to vary a proposed program or an
approved program under subsection 22ZG(1); or
(f) to refuse to approve a proposed airport security program under section
22ZD or 22ZG; or
(g) to cancel the approval of an aviation security program under section
22T or 22U; or
(h) to cancel the approval of an airport security program under section
22ZF or 22ZG; or
(i) to refuse to approve a proposal to vary an aviation security program
under section 22V; or
(j) to refuse to approve the adoption of an approved aviation security
program under paragraph 22X(2)(b); or
(k) to refuse to approve a proposal to vary an airport security program
under section 22ZH; or
(l) to categorise an airport under section 22ZK; or
(m) to give a direction under subsection 22ZQ(1); or
(n) to approve plans subject to a variation under section 22ZS; or
(o) to reject plans under section 22ZS; or
(p) to give a direction under subsection 22ZV(2).
"(2) Notice of a decision by the Secretary to which subsection (1) applies
must include a statement to the effect that:
(a) subject to the Administrative Appeals Tribunal Act 1975, a person
affected by the decision may make an application to the Administrative
Appeals Tribunal for review of the decision; and
(b) a person whose interests are affected by the decision may request a
statement under section 28 of that Act.
"(3) A failure to comply with subsection (2) does not affect the validity of
the decision.". 20. Before section 23:
Insert:
"PART 4-MISCELLANEOUS". 21. Subsection 23(2): Omit. 22. After section 24:
Insert: Conduct by directors, servants and agents
"24A.(1) If, in proceedings for an offence against this Act, it is necessary
to establish the state of mind of a body corporate in relation to particular
conduct, it is sufficient to show:
(a) that the conduct was engaged in by a director, servant or agent of the
body corporate within the scope of his or her actual or apparent
authority; and
(b) that the director, servant or agent had the state of mind.
"(2) Any conduct engaged in on behalf of a body corporate by a director,
servant or agent of the body corporate within the scope of his or her actual
or apparent authority is taken, for the purposes of a prosecution for an
offence against this Act, to have been engaged in also by the body corporate
unless the body corporate establishes that it took reasonable precautions and
exercised due diligence to avoid the conduct.
"(3) If, in proceedings for an offence against this Act, it is necessary to
establish the state of mind of an individual in relation to particular
conduct, it is sufficient to show:
(a) that the conduct was engaged in by a servant or agent of the
individual within the scope of his or her actual or apparent
authority; and
(b) that the servant or agent had the state of mind.
"(4) Any conduct engaged in on behalf of an individual by a servant or agent
of the individual within the scope of his or her actual or apparent authority
is taken, for the purposes of a prosecution for an offence against this Act,
to have been engaged in also by the individual unless the individual
establishes that he or she took reasonable precautions and exercised due
diligence to avoid the conduct.
"(5) If:
(a) a person who is an individual is convicted of an offence; and
(b) the person would not have been convicted of the offence if subsections
(3) and (4) had not been enacted; the person is not liable to be
punished by imprisonment for the offence.
"(6) A reference in subsection (1) or (3) to the state of mind of a person
includes a reference to:
(a) the knowledge, intention, opinion, belief or purpose of the person;
and
(b) the person's reasons for the intention, opinion, belief or purpose.
"(7) A reference in this section to a director of a body corporate includes a
reference to a constituent member of, or to a member of a board or other group
of persons administering or managing the affairs of, a body corporate
incorporated for a public purpose by a law of the Commonwealth, of a State or
of a Territory.
"(8) A reference in this section to engaging in conduct includes a reference
to failing or refusing to engage in conduct.
"(9) A reference in this section to an offence against this Act includes a
reference to an offence created by section 6, 7 or 7A or subsection 86(1) of
the Crimes Act 1914 that relates to this Act.". 23. Section 27: Repeal,
substitute: Extra-territorial operation of regulations
"27.(1) Any provisions of the regulations may be expressed to apply to and in
relation to any of the following:
(a) Australian aircraft; (b) aircraft (other than Australian
aircraft) engaged in Australian international carriage;
(c) passengers on board, and members of the crew of, aircraft referred to
in paragraph (a) or (b); while the aircraft are outside Australian
territory.
"(2) In this section:
'airline' means a person engaged in the provision of air services;
'Australian international carriage' means the carriage of passengers or
freight, or both passengers and freight, whether within or outside Australian
territory, by an aircraft that:
(a) is operated by an airline that is designated, nominated or otherwise
similarly authorised by Australia under a bilateral arrangement to
engage in such carriage; or
(b) is operated by an airline incorporated in Australia; or
(c) is operated by an airline having its principal place of business in
Australia; or
(d) is operated by an Australian operator and is subject to section 13A,
14, 15 or 17; or
(e) is operated jointly by:
(i) an airline referred to in paragraph (a), (b) or (c); and
(ii) another person; but is under the control of the airline
referred to in subparagraph (i); or
(f) is subject to section 13A, 14, 15 or 17 and is operated jointly by:
(i) an Australian operator; and
(ii) another person; but is under the control of the Australian
operator;
'Australian operator' means:
(a) an individual who:
(i) is an Australian citizen; or (ii) is ordinarily resident in
Australia; or
(b) a body corporate that:
(i) is incorporated in Australia; or
(ii) has its principal place of business in Australia;
'bilateral arrangement' means an agreement or arrangement between:
(a) Australia, or an entity or organisation nominated or otherwise
similarly authorised by Australia to enter into the agreement or
arrangement; and
(b) a foreign country; under which the carriage by air of passengers or
freight, or both passengers and freight, between Australia and the
foreign country is permitted;
'foreign country' includes any region:
(a) that is part of a foreign country; or
(b) that is under the protection of a foreign country; or
(c) for whose international relations a foreign country is responsible.
"(3) For the purposes of this section:
(a) an aircraft is taken to be subject to section 13A if the aircraft is,
or apart from subsection 13A(4) would be, prohibited from being flown
between the places mentioned in subsection 13A(1) except with the
Secretary's permission and in accordance with that permission; and
(b) an aircraft is taken to be subject to section 14 if the aircraft is,
or apart from subsection 14(3B) would be, prohibited, on a non-
scheduled flight into Australian territory, from taking on or
discharging passengers, or any cargo or mail, being carried for reward
except with the Secretary's permission and in accordance with that
permission; and
(c) an aircraft is taken to be subject to section 15 if the aircraft is,
or apart from subsection 15(2D) would be, prohibited from making a
non-scheduled flight over or into Australian territory unless the
Minister has approved the flight; and
(d) an aircraft is taken to be subject to section 17 if the aircraft is,
or apart from subsection 17(1C) would be, prohibited from arriving in
Australian territory from a place outside Australian territory, or
from departing from Australian territory for a place outside
Australian territory, without the permission of the Secretary.
Legislative Instruments Act 1995 not to apply to instruments relating
to aviation security
"28. Instruments under this Act, or under the regulations, relating to
aviation security are not legislative instruments for the purposes of the
Legislative Instruments Act 1995.". 24. Subsection 29(2):
(a) After "him" insert "or her".
(b) After "he" insert "or she". 25. Subsection 31(1):
(a) Omit "writing under his hand", substitute "signed writing"
(b) Omit "his powers", substitute "his or her powers".
PART 2-AMENDMENT OF THE CIVIL AVIATION (CARRIERS' LIABILITY) ACT 1959 26.
After Part IV: Insert:
"PART IVA-CARRIERS TO BE INSURED AGAINST LIABILITY TO
PASSENGERS FOR DEATH OR PERSONAL INJURY Object of Part
"41A. The object of this Part is to require carriers to hold, in respect of
carriage to which Part II, III or IV applies, insurance that will ensure, as
far as practicable, that compensation within the limits of liability
prescribed by this Act will be paid in respect of death or personal injury
suffered by passengers on aircraft. Definitions
"41B. In this Part:
'acceptable contract of insurance' means a contract of insurance in respect of
which a certificate is in force under subsection 41C(7);
'business day' means a day other than a Saturday, a Sunday or a public holiday
in the Australian Capital Territory;
'carrier' means a person engaged, or offering to engage, in an air transport
operation for the carriage of passengers to which Part II, III or IV applies;
'contract of insurance' means a contract between a carrier and an insurer
under which the insurer indemnifies the carrier against personal injury
liability in respect of each passenger carried, or to be carried, by air by
the carrier;
'personal injury liability', in relation to a carrier, means liability under
this Act in respect of the death of, or personal injury suffered by,
passengers carried, or to be carried, by air by the carrier. Carriers may be
required to produce evidence that an acceptable contract of insurance is in
force between the carrier and an insurer
"41C.(1) The Minister may, at any time and from time to time, by written
notice given to a carrier, require the carrier, within a period set out in the
notice, to produce evidence, satisfactory to the Minister, that there is in
force between the carrier and an insurer a contract of insurance that meets
the prescribed requirements.
"(2) The prescribed requirements are:
(a) the requirements of subsections (3) and (4); and
(b) any other requirements made by the regulations for the purposes of
this section.
"(3) It is a requirement in relation to a contract of insurance that, under
the contract, the insurer's liability to indemnify the carrier against
personal injury liability, in respect of each passenger carried, or to be
carried, by air by the carrier, is for an amount that is not less than:
(a) in respect of carriage by a domestic carrier to which Part IV
applies-$500,000; or
(b) in respect of any other carriage-260,000 SDRs.
"(4) It is a requirement of a contract of insurance that, under the contract,
the insurer's liability to indemnify the carrier against personal injury
liability:
(a) is not affected by any breach of a safety-related requirement imposed
by or under any Act or by the Civil Aviation Safety Authority; and
(b) is not contingent upon the financial condition or solvency of the
carrier or upon the carrier not being or not becoming bankrupt or not
beginning to be or not being wound up.
"(5) The prescribed requirements do not prevent a contract of insurance from
including provisions indemnifying the carrier against a liability other than
personal injury liability.
"(6) A contract of insurance under which:
(a) the insurer indemnifies the carrier against liability as required by
Part 205 of the Federal Aviation Regulations of the United States of
America made under the law known as Title 49 United States
Code-Transportation; and
(b) the insurer's liability to indemnify the carrier:
(i) extends to carriage in, to or from Australia; and
(ii) is not affected by any breach of a requirement referred to in
paragraph (4)(a); is taken to meet the requirements referred to
in subsection (4).
"(7) If the Minister is satisfied that there is in force between a carrier and
an insurer a contract of insurance that meets the prescribed requirements, the
Minister may give the carrier a written certificate stating that the Minister
is so satisfied. Insurer's liability not affected by exclusions or breaches
"41D. Except as prescribed by the regulations, an insurer's liability under a
contract of insurance to indemnify the carrier against personal injury
liability to the extent mentioned in subsection 41C(3) is not affected by any
warranty or exclusion in the contract of insurance or by any breach of the
contract of insurance by the carrier. Carriers to be covered by acceptable
insurance
"41E.(1) A carrier must not carry passengers by air unless an acceptable
contract of insurance is in force in relation to the carrier.
"(2) A carrier who intentionally contravenes subsection (1) is guilty of an
offence punishable on conviction by imprisonment for a period of not more than
2 years. Note: Subsection 4B(2) of the Crimes Act 1914 allows a court to
impose in respect of an offence an appropriate fine instead of, or in addition
to, a term of imprisonment. If a body corporate is convicted of an offence,
subsection 4B(3) of that Act allows a court to impose a fine of an amount that
is not greater than 5 times the maximum fine that could be imposed by the
court on an individual convicted of the same offence. Conduct by directors,
servants and agents
"41F.(1) If, in proceedings for an offence against this Part, it is necessary
to establish the state of mind of a body corporate in relation to particular
conduct, it is sufficient to show:
(a) that the conduct was engaged in by a director, servant or agent of the
body corporate within the scope of his or her actual or apparent
authority; and
(b) that the director, servant or agent had the state of mind.
"(2) Any conduct engaged in on behalf of a body corporate by a director,
servant or agent of the body corporate within the scope of his or her actual
or apparent authority is taken, for the purposes of a prosecution for an
offence against this Part, to have been engaged in also by the body corporate
unless the body corporate establishes that it took reasonable precautions and
exercised due diligence to avoid the conduct.
"(3) If, in proceedings for an offence against this Part, it is necessary to
establish the state of mind of an individual in relation to particular
conduct, it is sufficient to show:
(a) that the conduct was engaged in by a servant or agent of the
individual within the scope of his or her actual or apparent
authority; and
(b) that the servant or agent had the state of mind.
"(4) Any conduct engaged in on behalf of an individual by a servant or agent
of the individual within the scope of his or her actual or apparent authority
is taken, for the purposes of a prosecution for an offence against this Part,
to have been engaged in also by the individual unless the individual
establishes that he or she took reasonable precautions and exercised due
diligence to avoid the conduct.
"(5) If:
(a) a person who is an individual is convicted of an offence; and
(b) the person would not have been convicted of the offence if subsections
(3) and (4) had not been enacted; the person is not liable to be
punished by imprisonment for the offence.
"(6) A reference in subsection (1) or (3) to the state of mind of a person
includes a reference to:
(a) the knowledge, intention, opinion, belief or purpose of the person;
and
(b) the person's reasons for the intention, opinion, belief or purpose.
"(7) A reference in this section to a director of a body corporate includes a
reference to a constituent member of, or to a member of a board or other group
of persons administering or managing the affairs of, a body corporate
incorporated for a public purpose by a law of the Commonwealth, of a State or
of a Territory.
"(8) A reference in this section to engaging in conduct includes a reference
to failing or refusing to engage in conduct.
"(9) A reference in this section to an offence against this Part includes a
reference to an offence created by section 6, 7 or 7A or subsection 86(1) of
the Crimes Act 1914 that relates to this Part. Grounds of cancellation of
contract of insurance not affected
"41G. Nothing in this Part affects:
(a) the grounds on which an insurer may cancel a contract of insurance
between the insurer and a carrier; or
(b) any right that an insurer may have to recover from a carrier an amount
paid by the insurer under a contract of insurance between the insurer
and the carrier. Conflict of laws
"41H. If:
(a) the proper law of a contract of insurance would, except for a term
that it should be the law of a foreign country or a term to a similar
effect, be the law of any part of Australia; or
(b) a contract of insurance contains a term that purports to substitute,
or has the effect of substituting, the law of a foreign country for
all or any of the provisions of this Part; this Part applies to the
contract despite that term. Injunctions
"41J.(1) In this section:
'prohibited carriage' means carriage by a carrier at a time when an acceptable
contract of insurance is not in force between the carrier and an insurer.
"(2) If the Minister has reason to believe that a carrier has engaged, or is
proposing to engage, in prohibited carriage, the Minister may apply to a court
of competent jurisdiction for an injunction restraining the carrier from
engaging in the carriage.
"(3) If the carrier does not satisfy the court that it is not engaging, or
proposing to engage, in prohibited carriage, the court must grant the
injunction.
"(4) If in the opinion of the court it is desirable to do so, the court may
grant an interim injunction pending determination of an application under
subsection (2).
"(5) The court may discharge or vary an injunction or an interim injunction
granted under this section.
"(6) The power of the court to grant an injunction or an interim injunction
restraining a carrier from engaging in prohibited carriage may be exercised:
(a) whether or not it appears to the court that the carrier intends to
engage again, or to continue to engage, in prohibited carriage of that
kind; and
(b) whether or not the carrier has previously engaged in prohibited
carriage of that kind.
"(7) A court must not require the Minister, as a condition of granting an
interim injunction, to give any undertakings as to damages.
"(8) The Federal Court of Australia is invested with federal jurisdiction in
matters where the Minister applies for an injunction or an interim injunction
under this section. Regulations
"41K. The regulations may make provision for or in relation to:
(a) the manner and form in which notices may be given under subsection
41C(1); and
(b) the period that may be set out in such notices; and
(c) the manner and form in which evidence is to be produced under that
subsection; and
(d) the giving by persons referred to in the regulations (who may be
individuals not resident in Australia or corporations not incorporated
or carrying on business in Australia) of notice (whether in advance,
or after the occurrence of the event concerned) to the Minister of any
modification, cancellation, non-renewal or expiry, or of any proposed
modification, cancellation or non-renewal, or of any impending expiry,
of an acceptable contract of insurance; and
(e) the consequences (including any effect on the contract of insurance)
of failure to give a notice referred to in paragraph (d). Delegation
"41L.(1) The Minister may, in writing, delegate to the Director, or to an
officer, of the Civil Aviation Safety Authority all or any of the Minister's
powers under this Part.
"(2) In this section:
'Director' has the same meaning as in the Civil Aviation Act 1988.
"(3) If:
(a) the Minister has, under this section, delegated a power of the
Minister contained in a provision of this Part; and
(b) a delegate exercises the power; a reference in that provision to the
Minister is taken, in relation to the exercise of the power by the
delegate, to be a reference to the delegate. Note: See sections 34AA,
34AB and 34A of the Acts Interpretation Act 1901 on delegations.".
PART 3-AMENDMENTS OF THE CRIMES (AVIATION) ACT 1991 27. Paragraphs 5(1)(a) and
(b): Omit, substitute
"(a) when the last external door is closed in preparation for the first
movement of the aircraft for the purpose of taking off on the flight; or
(b) if the aircraft moves, before all the external doors are closed, for
the purpose of taking off on the flight-when it first so moves.". 28.
Subsection 6(1): Omit, substitute:
"(1) Subject to this section, a flight of an aircraft is, for the purposes of
this Act, taken to end when the first external door is opened after the
aircraft comes to rest on the next landing it makes after starting the
flight.". 29. Paragraph 23(2)(b): Omit "Air Navigation Regulations",
substitute " Air Navigation Act 1920 or regulations made under that Act".
PART 4-AMENDMENT OF THE ROAD TRANSPORT REFORM
(VEHICLES AND TRAFFIC) ACT 1993 30. After section 2: Insert: Status of this
Act under Commonwealth and ACT laws
"2A.(1) For the purposes of the laws of the Commonwealth and the laws of the
Australian Capital Territory, this Act is taken to be a law made by the
Legislative Assembly for the Australian Capital Territory under subsection
22(1) of the Australian Capital Territory (Self-Government) Act 1988.
"(2) Subsection (1) does not empower the Legislative Assembly for the
Australian Capital Territory to make a law amending or repealing this Act.
"(3) In this section:
'laws of the Commonwealth' does not include:
(a) this section or section 3; or
(b) sections 31, 33 and 35 of the Australian Capital Territory
(Self-Government) Act 1988 .".
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