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Bills Digest no. 157 2005–06
Aviation Transport Security Amendment Bill 2006
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Endnotes
Contact Officer & Copyright Details
Passage History
Aviation Transport Security
Amendment Bill 2006
Date introduced: 29 March 2006
House: House of Representatives
Portfolio: Transport and Regional Services
Commencement: The formal provisions commence
on Royal Assent. Commencement of the other provisions is set out under
the Main Provisions below.
To amend the Aviation Transport Security Act 2004 in order to
change the regulatory arrangements for aviation security by:
- creating ‘event zones’ that may be used for handling special events
at an airport
- regulating the security and clearance processes for domestic and
international cargo before it is taken on board an aircraft, and
- allowing the Secretary of the Department of Transport and Regional
Services to approve alterations to an existing Transport Security Program.
The current aviation security framework came into effect in March 2005
following the commencement of the Aviation Transport Security Act 2004
(Principal Act) and the subsequent making of the Aviation Transport Security
Regulations. Detailed background information on the legislative aspects
of aviation security reform can be found in the Bills
Digest for the Principal Act.(1)
In June 2005, the Government asked Sir John Wheeler,
the former Head of the UK Parliament’s Select Committee on Home Affairs
and Security Minister for Northern Ireland,
to conduct a wide-ranging review of Australia’s
airport security. Sir John had previously
carried out a review of security at the UK’s
principal airports. In Australia,
Sir John was asked to examine the threat
from serious and organised crime at airports, the integration of ground-based
security and law enforcement arrangements, and the adequacy of the existing
security requirements. He was supported in his review by the former Director-General
of the UK National Crime Intelligence Service, John Abbott,
and an Australian security expert, Neil Fergus,
who was the former security chief for the 2000 Sydney Olympic Games.(2)
The Wheeler Review(3)
was presented to Government in September 2005. The report focused on
responses to the threat of terrorism at airports and the related threat
from serious crime. It drew attention to serious deficiencies in coordination
among security agencies and a lack of security awareness among airport
workers. It found that ‘[p]olicing at major airports in Australia
is often inadequate and dysfunctional and security systems are typically
uncoordinated. The roots of this include bureaucratic turf protection
and unresolved Commonwealth/State conflicts over resources.’(4)
It saw a need for more intensive intelligence sharing among agencies,
especially on aviation and airport specific topics.(5) The
report emphasised the potential overlap between terrorism and crime, and
the consequent need for airport staff to be thoroughly vetted and subject
to random searches.(6) It recommended a permanent police presence
at eleven major airports under a single Airport Police Commander, at a
staffing level based on threat and risk assessment.(7)
The review also found that security infrastructure at airports was lacking.
It recommended an increase in CCTV coverage of all international airports,(8)
and a tightening up of the Aviation Security Identification Card system
(ASIC), including amalgamation and streamlining of its numerous databases.(9)
The report stated that ‘[t]he present system has a number of weaknesses,
and there is confusion as to what airport access an ASIC enables. … Some
casual or contract workers, such as security screeners and cleaners, do
not initially hold ASICs and may not always be accompanied on the job
by an ASIC holder as required under current legislation’.(10)
The review also drew attention to a major deficiency in cargo screening
which could allow the undetected loading of explosives. The report stated
that ‘[w]hile 80 per cent of Australia’s
air cargo is carried on passenger aircraft, it is not all screened. It
is clearly inconsistent for one category of aircraft user to be treated
differently from another, thereby putting the safety of the aircraft in
jeopardy.’(11) The review recommended:
that the Australian Government require that the screening
of cargo be expanded and include mandatory screening of all cargo on
passenger aircraft where passengers’ checked baggage is screened.(12)
The Wheeler Review acknowledged that the Commonwealth, state and territory
governments and the private sector had made many positive security changes
and dedicated significant resources to security, especially since the
attacks in the United States
on September 11, 2001.
It described the Aviation Transport Security Act 2004 as providing
‘a solid basis for security regulation at airports and associated activities’.(13)
However, the report commented that ‘[t]he Act and the Aviation Transport
Security Regulations 2005 were … developed
with less than optimal consultation in order to be operative from 10
March 2005 and would benefit
from a review with the aim of clarification and simplification’.(14)
The first recommendation of the review is:
that a thorough examination of legislation and regulations
on the sharing of information, both among government agencies and between
government and the private sector, be carried out by the Attorney-General’s
Department, in collaboration with the States and Territories and the
private sector, with the aim of identifying and removing elements which
prohibit or inhibit the flow of information needed to counter crime
and terrorism which threaten the aviation sector.(15)
A key point of the review is a warning that, after enhanced measures
are in place, the system could degenerate into ‘ticking the boxes’ instead
of a proactive process of ongoing assessment of threat and risk. The review
recommends that:
the Aviation Transport Security Act 2004 and the
2005 Regulations be reviewed by the Department of Transport and Regional
Services to ensure that they encourage a culture of proactive and ongoing
threat and risk assessment and mitigation and not a passive culture
of compliance.(16)
On 21 September 2005, the Prime Minister and the Minister for Transport
and Regional Services announced the Government’s in principal acceptance
of the recommendations made by the Wheeler review and announced additional
expenditure of almost $200 million to further tighten security at Australia’s
major airports.(17)
On 25 May 2005, the
Joint Committee of Public Accounts and Audit resolved to review the developments
in aviation security since its earlier report on the subject was tabled
in Parliament in June 2004. The Committee was concerned by public reports
of security breaches at Australian airports, including allegations that
baggage handlers had been involved in a syndicate smuggling drugs through
Sydney airport.(18)
The Committee tabled an interim report in November 2005 in which it identified
two areas of aviation security that were the subject of recommendations
made by the Wheeler review where, it believed, further specific requirements
should be put forward.(19) These two areas are:
- the proposed review of the Aviation Transport Security Act 2004
and Regulations 2005, and
- the proposed changes to background checking processes of applications
for Aviation Security Identification Cards (ASICs)
The Committee unanimously supported the recommendations of the Wheeler
Review. In a press release, the Committee said that its own current inquiry
had confirmed the need for a review of the arrangements for issuing and
managing ASICs, a need to improve information-sharing across airports,
and the need for a single policing authority for all category one and
major airports. The Committee highlighted other issues examined in the
Wheeler report and said that it was particularly concerned about procedures
in relation to baggage handling.(20)
In introducing this bill, the Minister for Transport and Regional Services,
Hon. Warren Truss, described it as ‘a
first step in the review of aviation security legislation that was recommended
in the 2005 Wheeler review’.(21) The bill addresses two operational
concerns at airports.
The first is the regulatory arrangements that would apply when a ‘security
controlled airport’(22) conducts activities that are not part
of its usual transport business. The Explanatory Memorandum to the bill
gives as examples of special events, receiving and farewelling dignitaries
attending the 2007 APEC Meeting, and managing the Australian International
Air Show at Avalon Airport
in March 2007.(23) For the purposes of the proposed amendments,
an event will be an activity that can sensibly be subjected to specialised
rules and that can be managed within a precise area that has been specified
on a map of the airport.(24)
The second operational matter addressed by this bill is better management
of the process for handling domestic and international cargo before it
is taken onto an aircraft. The proposed amendments introduce a framework
for a layered approach to security within the existing Regulated Agent
scheme. The Minister said in his Second reading speech that the bill ‘will
allow for different but complementary security measures to be prescribed
for different parts of the supply chain. These differing requirements
will be based on criteria such as the size, scope and security risk posed
by a participant’s operations.’(25)
The Explanatory Memorandum states that there will be no significant financial
impact for the Government from this bill.
The changes in Schedule 1 are designed to introduce more flexibility
into the security procedures of the Act when airport operators and other
parties are dealing with ‘out-of-the-ordinary’ events. Details of the
operational substance of the Schedule 1 will be implemented through new
regulations. According to the Explanatory Memorandum, any given type of
event zone will be managed by a combination of regulations that apply
to that particular type of event zone, and by specific provisions that
the airport operator may have included in its Transport Security Program
(TSP).(26)
Items 2 to 5 insert definitions of terms associated with
the new event zones. The proposed system for prescribing different kinds
of event zones has been modelled on the existing provisions in the Act
that allow regulations to be made to prescribe different kinds of security
zone (subsection 31(1) of the Act). Item 10 inserts new section
31A which provides for the new airside event zones. An airside event
zone is established by means of a notice that the Secretary gives to the
operator of a security controlled airport. There can be more than one
event zone for managing a single complex event, such as an air show, or
when a large airport has more than one special event in progress at the
same time but in different event zones. The principal difference between
the proposed airside event zones and the existing airside security zones
is that an airside event zone may sometimes be managed at a lower level
of security than that which applies generally to the airside area (new
subsection 31A(7)), while an airside security zone is always managed
at a stricter level of security. A lower level of security may be possible
if the event is being staged within an enclosed area so that the only
access from the event zone to airside (and thus to runways and aircraft)
is through a screening point. New section 31B provides that regulations
may prescribe different types of airside event zones, such as event zones
for managing the arrival or departure of dignitaries, an event zone for
managing large air shows, and an event zone for managing low risk community
events that use the infrastructure of regional airports. According to
the Explanatory Memorandum,(27) this approach manages risks
by allowing different event zones to be managed by means of regulations
that have been specifically designed to deal with a particular event.
Item 14 adds new sections 33A and 33B that make similar
changes to deal with landside event zones.
Items 1 to 19 and items 21 to 35 of Schedule
1 commence on a day to be fixed by proclamation, or on a day six months
after the day on which the Act receives Royal Assent. Item 20 of Schedule
1 will commence at the same time as items 1 to 19. However, the provision
in item 20 will never commence if item 27 of Schedule 2 (which amends
the same provision of the Principal Act) has commenced on or before that
time.
Schedule 2 amends the Principal Act to create a legal environment
that will enable regulations to be made dealing specifically with the
security process to be applied to domestic and international cargo prior
to being taken onto an aircraft. A Regulation Impact Statement is provided
in the Explanatory Memorandum and gives detailed information about the
proposed legislative changes and the alternative approaches that the Government
has considered.
The idea of the Principal Act is to ensure that commercial air cargo
is subject to appropriate secure handling and screening processes along
the supply chain from initial packing to eventual loading on the relevant
aircraft. One of the main players in this process are Regulated Air Cargo
agents (RACAs). RACAs must have in place a Transport Security Program
(TSP) approved by the DOTARS Secretary. According to the Explanatory Memorandum
to the bill:
It has become clear through operational experience, DOTARS
experience, industry complaints, and industry consultation, that while
the TSP model is appropriate for some RACAs, it is not appropriate for
all air cargo industry participants. However the existing Act does not
provide scope for introduction of a layered and scalable cargo regulatory
regime that takes into account relative size of businesses and their
proximity in the supply chain to the actual carriage of cargo by air.(28)
So the bill creates a new category called accredited air cargo agents
(AACA). It appears these will have less onerous security obligations than
RACAs, although the Government is of the view that this category will
bring more cargo operators into the Principal Act's regulatory net.(29)
An associated change in Schedule 2 is to separate cargo security/screening
requirements out from its existing place in the Act and Regulations under
passenger screening. The idea is that it will be easier to adopt new security/screening
requirements that are particularly suited to air cargo operations rather
than passenger services.
It should be emphasised that much of the operational substance of the
proposed changes will be done by regulations, which are still to be developed.
Item 3 adds a definition for the new term ‘accredited air cargo
agent’. Item 31 inserts new Division 2A of Part 4 into
the Principal Act to deal exclusively with how cargo is to be examined
so as to ensure that it is safe to be carried by aircraft, and how cargo
is to be cleared for air carriage. Much of the detail will be set out
in regulations (new section 44C). The Secretary is given the power
to permit that certain air cargo be certified as cleared without going
through the normal examination process (new subsection 44B(2)).
The exemption mirrors an existing paragraph 42(2)(b) that allows the Secretary
to specify that certain people, goods and vehicles can pass through security
points without being screened.
Regulations may also be made to specify the methods, techniques and equipment
to be used for the examination of cargo (new subsection 44C(3)).
The Explanatory Memorandum comments:
One power that is not present in the [Principal Act]
is that of directing Cargo Terminal Operators (CTOs) to use explosive
trace detection (ETD) on cargo … This amendment will strengthen security
outcomes through enhanced use of technology.(30)
The regulations may also provide for breaches of screening and clearance
requirements, with maximum penalties ranging from 200 penalty units for
an airport operator, down to 50 penalty units for other persons, including
accredited air cargo agents (new subsection 44C(4)).
The following matter was brought to the attention of Senators by the
Senate Scrutiny of Bills Alert Digest 4/06. Items 5 and 7 in the
table to subclause 2(1) of this bill provide for the amendments proposed
in items 1 to 33 of Schedule 2, and those in Part
2 of Schedule 2, to commence up to 12 months after Royal Assent.
The Explanatory Memorandum states, on page 11, that the justification
for this delay in commencement ‘is to allow sufficient time for consultation
with [those involved in the aviation transport] industry to occur’.(31)
Schedule 3 makes amendments relating to a Transport Security Program
(TSP) that are expected to play an important role in managing both complex
and high-risk events. Section 12 of the Principal Act sets out who must
have a TSP. These include the operator of an airport declared by the DOTARS
Secretary to be a ‘security controlled airport’, the operator of an air
service prescribed in regulations, and any other ‘aviation industry participant’
prescribed in regulations. An aviation industry participant can include
persons who lease sections of the airports, and contractors, including
contractors who carry out baggage, security and any support functions.
A TSP is normally valid for a period of five years. Section 22 of the
Principal Act permits an aviation industry participant to apply to the
Secretary to approve a revision of an existing TSP. A revised TSP will
be in force for a period of five years from the time when the revision
is approved.
Item 1 of Schedule 3 inserts new section 23A to
provide an alternative way of making simple changes to a TSP without increasing
the life of the TSP by a further five years. An aviation industry participant
may make a written request to the Secretary to approve the proposed alterations
(new subsection 23A(1)). The Secretary is required to decide whether
it is appropriate to deal with the request under section 23A. According
to the Explanatory Memorandum, section 23A will only be appropriate if
both the Secretary and the aviation industry participant are in agreement
that the proposed alteration is relatively simple and that the change
should not have the effect of extending the life of the TSP for a further
five years. New paragraphs 23A(2)(b) and 23A(3)(b) require
the Secretary to be satisfied that a TSP as altered will satisfy the requirements
of Part 2 Division 4 of the Principal Act which deals with the content
and form of TSPs. New subsection 23A(4) authorises the Secretary,
when considering whether to approve alterations to a TSP, to take into
account existing circumstances related to aviation security. According
to the Explanatory Memorandum, this ensures that the Secretary is authorised
to take into account any relevant security matters that extend beyond
the immediate operation of the TSP that is being considered. Item 2
of Schedule 3 provides that the Secretary’s decision under new
section 23A to refuse to approve an alteration to a TSP is reviewable
by the Administrative Appeals Tribunal.
Schedule 3 commences on Royal Assent.
Endnotes
- Angus Martyn, Aviation Transport
Security Bill 2003, Bills Digest No. 23, 2003-04.
- Hon John Anderson, Minister for
Transport and Regional Services, ‘Securing and policing Australia’s
airports’, Media Release, 7
June 2005, Available at
http://parlinfoweb.aph.gov.au/piweb/TranslateWIPILink.aspx?Folder=pressrel&Criteria=CITATION_ID:HZ9G6%3B
(Site visited 1/6/2006).
- Sir John Wheeler, An independent
review of airport security and policing for the Government of Australia,
September 2005.
- Wheeler, op. cit., p. xi, para. 12.
- ibid., p. xii, paras. 15, 16, 17.
- ibid., p. ix, para. 4.
- ibid., p. xii, para. 14.
- ibid., p. xiii, para. 20.
- ibid., p. xiii, paras. 18, 19.
- ibid., p. xiii, para. 18.
- ibid., p. xv, para. 25.
- ibid., p. xix, Recommendation XIV.
- ibid., p. x, paras. 7,8 and p. xiv, para. 24.
- ibid., p. xiv, para. 24.
- ibid., p. xvii, Recommendation I.
- ibid., p. xix, Recommendation IX.
- Hon John Howard, Prime Minister,
‘Securing and policing Australia’s
airports’, [Media Release], 21
September 2005. Available
at http://parlinfoweb.aph.gov.au/piweb/TranslateWIPILink.aspx?Folder=pressrel&Criteria=CITATION_ID:55DH6%3B
(site visited 1/6/2006)
- Joint Committee of Public Accounts and Audit, ‘Review of aviation
security in Australia’,
Media Release, 26 May
2005. Available at http://www.aph.gov.au/house/committee/jpaa/aviation_security2/media/media01.pdf
(site visited 31/5/2006)
- Joint Committee of Public Accounts and Audit, Developments in
aviation security since the Committee’s June 2004 Report 400 … an interim
report, November 2005. Available at http://www.aph.gov.au/house/committee/jpaa/aviation_security2/interim_report.htm
(site visited 31/5/2006)
- Joint Committee of Public Accounts and Audit, ‘Committee welcomes
Wheeler review, continues own inquiry’, Media Release, 21 September 2005.
Available at http://www.aph.gov.au/house/committee/jpaa/aviation_security2/media/media05.pdf
(site visited 31/5/2006)
- Hon. Warren Truss, Minister for
Transport and Regional Services, ‘Second reading speech, Aviation Transport
Security Amendment Bill 2006’, House of Representatives, Debates,
29 March 2006, p. 13.
- A ‘security controlled airport’ is defined in section
28 of the Principal Act. This section allows the Secretary to declare,
by a notice published in the Commonwealth Gazette, that any airport,
or part of an airport, is a ‘security controlled airport’. This may
include any area ‘controlled by the airport operator’ that is contiguous
with the land or water area forming the airport. Any airport area that
is exclusively controlled by the Australian Defence Force cannot be
declared.
- Explanatory Memorandum, Aviation Transport Security Amendment
Bill 2006, p. 2.
- ibid., p. 12.
- Hon. Warren Truss, op. cit., p.
13.
- Explanatory Memorandum, op. cit., p. 12.
- ibid., p. 16.
- ibid., p. 5.
- Hon. Warren Truss, op. cit., p.
13.
- Explanatory Memorandum, op. cit., p. 5.
- Senate Selection of Bills Committee, Alert Digest 4/06, p.
17–18.
Rosemary Bell
20 June 2006
Bills Digest Service
Information and Research Services
This paper has been prepared to support the work of the Australian Parliament
using information available at the time of production. The views expressed
do not reflect an official position of the Information and Research Service,
nor do they constitute professional legal opinion.
IRS staff are available to discuss the paper's contents
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ISSN 1328-8091
© Commonwealth of Australia 2006
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