BILLS DIGEST NO. 86, 2019–20              26 February 2020

Transport Security Amendment (Testing and Training) Bill 2019

Cat Barker
Foreign Affairs, Defence and Security Section

Date introduced: 4 December 2019

House:  Senate

Portfolio: Home Affairs

Commencement: Sections 1–3 on Royal Assent; Schedule 1 the day after Royal Assent; Schedule 2 a day fixed by Proclamation or six months after Royal Assent, whichever is sooner.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at February 2020.

Purpose and structure of the Bill

The purpose of Schedule 1 of the Transport Security Amendment (Testing and Training) Bill 2019 (the Bill) is to amend the Aviation Transport Security Act 2004 (ATS Act) to:

•       give aviation security inspectors explicit powers to test security systems in security controlled airports, on aircraft and in certain other places associated with aviation industry participants and

•       exempt inspectors from civil and criminal liability for actions undertaken in the course of such testing, providing certain conditions are met.

The purpose of Schedule 2 of the Bill is to amend the ATS Act and the Maritime Transport and Offshore Facilities Security Act 2003 (MTOFS Act) to update training and qualification requirements for screening officers and the means by which they are set.

Background

The ATS Act, the MTOFS Act and associated Regulations establish regulatory regimes to safeguard against unlawful interference with aviation and maritime transport and offshore facilities respectively.[1]

Aviation security testing

The Explanatory Memorandum states that the amendments related to security testing in Schedule 1 will allow the Government to ‘meet recommendations accepted from the Inspector of Transport Security and the International Civil Aviation Organization (ICAO) to expand the scope of system tests to a wider range of security measures’.[2] However, it does not identify the particular reports in which those recommendations were made, or whether those reports are publicly available.[3] The Inspector of Transport Security completed a review of security at Australian security regulated airports in 2017, following the disruption by police of an alleged plot to bring down a plane leaving from Sydney Airport.[4] The report has not been made public.[5]

Aviation security inspectors undertake compliance activities, including system testing, to assess whether aviation industry participants are meeting their security obligations under the ATS Act.[6] This accords with the requirements of Annex 17 to the Convention on International Civil Aviation.[7] The Bill will allow inspectors to conduct system tests in more locations and for a wider range of security measures.[8]

Training and qualifications

Training and qualification requirements for screening officers are currently set by Regulations made under the ATS Act and the MTOFS Act.[9]

The Explanatory Memorandum states that the amendments related to security testing in Schedule 2 respond to the Inspector of Transport Security’s inquiry into aviation and maritime transport security and education and training in Australia: ‘The Inquiry highlighted a need for standardised qualifications, the introduction of national accreditation tests, on-the-job training, and continuing professional development requirements for screening officers’.[10] Like the 2017 review, the report on that inquiry has not been made public.[11]

Committee consideration

Senate Legal and Constitutional Affairs Committee

The Senate Legal and Constitutional Affairs Committee tabled its report on the Bill on 19 February 2020. The majority report of the Committee made the single recommendation that the Bill be passed.[12] Additional comments by the Australian Labor Party (ALP) and Australian Greens Senators are outlined below under ‘Position of non-government parties/independents’.

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) sought the Minister’s advice on two aspects of the Bill.[13]

The Committee noted that aviation security system tests will be required to be conducted in accordance with the Regulations; and that while the Explanatory Memorandum states that any ‘test pieces’, such as imitation firearms, will be designed to be inert and not cause harm, no such limitation is proposed for inclusion in the ATS Act. It requested the Minister’s advice on ‘why it is necessary and appropriate to leave the requirements for aviation security tests to delegated legislation’ and ‘the appropriateness of amending the bill to, at a minimum, specify that “test pieces” used by aviation security inspectors must be inert’.[14]

The Committee also noted that while training and qualification requirements for screening officers will be determined by the Secretary in legislative instruments made under the ATS Act and the MTOFS Act, exemptions to those requirements, also made by the Secretary, will not be legislative instruments. It recognised the justification set out in the Explanatory Memorandum, notably the sensitive nature of exemptions and potential for publication to create vulnerabilities that could be exploited. However, the Committee suggested that consideration be given to facilitating some degree of parliamentary oversight of the use of exemptions. It requested the Minister’s advice on the appropriateness of amending the ATS Act and the MTOFS Act to require the number of exemptions given by the Secretary to be reported in the Department of Home Affairs’ (DoHA) annual reports.[15]

The Scrutiny of Bills Committee had not published a response from the Minister as at the date of this Digest.

Policy position of non-government parties/independents

In additional comments to the majority Senate Legal and Constitutional Affairs Committee report:

•       ALP Senators noted the importance of the proposed amendments, but expressed concern that the Government had not adequately responded to concerns raised by the Scrutiny of Bills Committee, which they felt were ‘critical to resolve’ before the Bill is passed and

•       Greens Senators criticised:

–      gaps in the supporting information provided in relation to the Bill, including information on the particular recommendations of the Inspector of Transport Security and the ICAO that the Bill is designed to address

–      the lack of a requirement in the Bill that test pieces be designed to be inert and not cause harm and

–      the fact that exemptions to training and qualification requirements will not be legislative instruments:

At the very least, the Coalition should consider the recommendation made by the [Scrutiny of Bills] Committee that there be a report on the number of exemptions provided, and how many people they applied to.[16]

ALP Senators did not make any explicit recommendations. Greens Senators recommended that the Bill be amended to address the issues they had identified.[17]

Other non-government parties and independents did not appear to have publicly stated their positions on the Bill as at the date of this Digest.

Position of major interest groups

There has been limited public comment on the Bill by stakeholders.

The Australian Airports Association, Sydney Airport and Dr John Coyne (Australian Strategic Policy Institute) supported the Bill in their submissions to the Legal and Constitutional Affairs Committee’s inquiry.[18] However, the Australian Airports Association stated that it was concerned that DoHA ‘has not clearly articulated timelines for the transition to the new qualification and training regime once the Bill becomes law, particularly the annual accreditation testing for security screening officers’.[19]

Financial implications

The Explanatory Memorandum states that the financial impact of the Bill is low, with any costs to be absorbed by DoHA.[20]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[21]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights made no comment on the Bill.[22]

Key issues and provisions

Aviation security systems testing (Schedule 1)

Aviation security inspectors are Australian Public Service (APS) employees in DoHA and law enforcement officers appointed as inspectors by the Secretary of DoHA.[23] As noted above, inspectors undertake compliance activities, including system testing, to assess whether aviation industry participants are meeting their security obligations under the ATS Act. The amendments in Schedule 1 are proposed to provide explicit powers for inspectors to conduct system tests, and to allow them to do so in more locations (specifically, beyond airport screening points) and for a wider range of security measures.[24] For example, it is intended that testing will be expanded to include air cargo examination and catering facilities.[25]

General powers

Section 79 of the ATS Act sets out the general powers of aviation security inspectors and the purposes for which they may be exercised. The powers set out in subsection 79(2) may be exercised for the purposes of determining whether a person is complying with the ATS Act or investigating a possible contravention of the Act.[26]

Item 2 of Schedule 1 will amend subsection 79(2) to give inspectors explicit powers to test a security system, ‘including by using an item, weapon or vehicle to test its detection’ in the following places, in accordance with any requirements prescribed in the Regulations:

•       a security controlled airport

•       any area, building (other than a residence) or vehicle under the control of an aviation industry participant or

•       if an aviation industry participant operates from a residence or part of a residence, that residence or part of the residence.[27]

Testing may be done overtly or covertly.[28] The testing power will be able to be exercised in a security controlled airport or an area, building or vehicle under the control of an aviation industry participant at any time without notice; and at a residence or part of a residence from which an aviation industry participant operates after giving the participant reasonable notice.[29]

The Explanatory Memorandum states:

… A security systems test is designed to mimic possible terrorist attack pathways and to probe for potential weak points in aviation security arrangements, which an adversary may wish to exploit. The purpose of security screening is to prevent weapons, such as firearms and explosives, from being placed on board an aircraft – in the passenger cabin or the cargo hold – ensuring that air travel in Australia remains safe and secure, and responsive to possible risks posed by those who intend to cause harm.

To ensure that the tests of security systems are as realistic as possible, aviation security inspectors use test pieces which represent items that may be used to conduct unlawful interference with aviation, including weapons (e.g. imitation firearms and simulated improvised explosive devices). Test pieces are designed to be inert and to not cause harm.[30]

The new testing power will be complemented by an exemption from civil and criminal liability under Commonwealth, state and territory laws for aviation security inspectors in certain circumstances. Proposed subsection 79(9) will provide an exemption where an inspector was testing a security system under proposed paragraph 79(2)(h), to the extent that the exercise of that power was in good faith, did not seriously endanger anyone’s health or safety, and did not result in significant loss of, or serious damage to, property. A defendant (in criminal proceedings) or person wishing to rely on the exemption (in civil proceedings) will bear an evidential burden in relation to the exemption, meaning he or she would need to adduce or point to evidence that suggests a reasonable possibility that the exemption applies.[31]

Subsection 79(4) will be repealed and replaced by proposed subsection 79(8).[32] This will continue the existing limitation on the exercise of all powers under section 79 that requires inspectors not to subject a person to greater indignity than is necessary and reasonable for the exercise of the power.

Subsection 79(5) contains an offence for engaging in conduct that hinders or obstructs an aviation security inspector in the exercise of a power under section 79. Item 7 of Schedule 1 will amend the subsection so that this offence does not apply where the power being exercised is the new security system testing power under proposed paragraph 79(2)(h). This amendment appears to have been included to ensure that a person does not face criminal sanction for doing something that hinders or obstructs a system test without knowing that such a test was being conducted.[33] Such a circumstance might arise more often in the context of covert testing.

Powers relating to aircraft

Section 80 of the ATS Act sets out the powers of aviation security inspectors in relation to aircraft and the purposes for which they may be exercised. As with the general powers, powers set out in subsection 80(2) may be exercised for the purposes of determining whether a person is complying with the ATS Act or investigating a possible contravention of the Act.[34]

Item 12 of Schedule 1 will amend subsection 80(2) to give inspectors explicit powers to test a security system, ‘including by using an item or weapon to test its detection’ in an aircraft, if the test is conducted while passengers are not on board, boarding or disembarking from the aircraft and in accordance with any requirements prescribed in the Regulations. As with existing powers in relation to aircraft, inspectors will be required to give the aircraft operator reasonable notice before exercising this power.[35]

The amendments will be accompanied by the same exemption from civil and criminal liability as outlined above for general powers.[36] As with those powers, the offence of hindering or obstructing an aviation security inspector will not apply where the power being exercised is the new security system testing power.[37]

Aviation and maritime screening officer training (Schedule 2)

The amendments to the ATS Act and the MTOFS Act in Schedule 2 of the Bill will update training requirements by establishing a framework for a national standard of competency for aviation and maritime screening officers.[38] The Explanatory Memorandum states:

The Bill amends the Aviation Act and the Maritime Act to provide [that] the Secretary of the Department of Home Affairs (the Secretary) may, by legislative instrument, determine the qualifications, accreditation and training for screening officers across Australia. The Bill introduces a power for the Secretary to exempt a class of screening officers from compliance with one or more of the requirements, where satisfied exceptional circumstances exist.

The Bill will provide that screening officers may only exercise screening officer powers, or perform screening functions, if the officer has complied with the training, qualification and other requirements determined by the Secretary, unless in class of screening officers that is exempt from those requirements.

These measures will establish a national standard of competency for the screening workforce, which will strengthen the performance of security screening activities undertaken at Australia’s security controlled airports and security regulated ports, and help ensure all screeners in Australia are equipped to respond to current and emerging threats.[39]

The amendments apparently respond to an inquiry by the Inspector of Transport Security that ‘highlighted a need for standardised qualifications, the introduction of national accreditation tests, on-the-job training, and continuing professional development requirements for screening officers’.[40] The inquiry was completed in 2016; however, DoHA will not publicly release the report because of the sensitive information it contains.[41]

Under the screener accreditation scheme, new recruits will be required to complete a Certificate II in Transport Security Protection that will focus specifically on screening and examination in the maritime, aviation and air cargo sectors, and to undertake on the job training. New and existing screening officers will be required to pass an annual accreditation test.[42]

Amendments to the ATS Act

Division 5 of Part 5 of the ATS Act makes provision for screening officers, including setting out their powers. Section 94 currently provides that a person who is authorised or required to conduct screening is a screening officer, and sets out matters that must and may be provided for in the Regulations. Items 7 and 8 will repeal and replace section 94 and insert proposed sections 94A–94C to establish (in conjunction with equivalent amendments to the MTOFS Act) a screener accreditation scheme.

Proposed section 94 will provide only that a person who is authorised or required to conduct screening is a screening officer. Most of the matters that section 94 currently provides must or may be dealt with in the Regulations will instead be governed by legislative instruments made by the Secretary of DoHA.

Proposed section 94A will allow the Secretary to determine:

•       training and qualification requirements and any other requirements for specified screening officers relating to their exercise or performance of a specified power under Division 5 of Part 5 of the ATS Act or a specified screening function and

•       for specified officers, requirements in relation to the use of identity cards or in relation to uniforms.[43]

In related amendments to section 44, requirements in relation to the form or issue of identity cards for screening officers may be included in the Regulations, and the Regulations may provide that those matters are to be specified in written notices made by the Secretary.[44]

Proposed section 94B will allow the Secretary to exempt a class of screening officers from one or more requirements relating to their exercise or performance of a specified power under Division 5 of Part 5 of the ATS Act or a specified screening function, if satisfied that exceptional circumstances exist. Exemptions must be in writing, and may be subject to conditions. Exemptions will not be legislative instruments; the Explanatory Memorandum states:

These exemptions may be of a sensitive nature, and may indicate a situation that may be subject to exploitation by persons intent on causing an unlawful interference with aviation, or aviation infrastructure, as a consequence it is imperative to restrict details of exemptions.

For example, there may be an exemption in place in relation to training or qualification requirements for a class of screening officer operating from a particular airport. This may expose that airport, or aircraft departing from that airport, to vulnerability to an attack. In order to reduce the risk of information of this type being exploited by an adversary, an exemption made in writing by the Secretary would not be a legislative instrument and therefore would not be published.[45]

Proposed section 94C will set out limits on the exercise of powers and performance of screening functions by screening officers. Proposed subsection 94C(1) will provide that screening officers may only exercise a power under Division 5 of Part 5 or perform a screening function if he or she has met each requirement determined under paragraph 94A(a) that relates to the officer’s exercise or performance of the power or function, except where an exemption applies.

Proposed subsection 94C(2) will continue an existing limitation that requires screening officers not to use more force or subject a person to greater indignity that is necessary and reasonable when exercising a power under Division 5 of Part 5, and extend it to the performance of screening functions.[46]

The Secretary will not be permitted to delegate the functions set out in proposed section 94A (determining matters by legislative instrument) or proposed subsection 94B(1) (exemptions).[47]

Amendments to the MTOFS Act

Items 11–20 of Schedule 2 will replicate the amendments outlined above for the ATS Act in the MTOFS Act. This will include:

•       inserting a definition of screening function into section 10 of the MTOFS Act (item 11)

•       allowing the Secretary to determine certain matters for screening officers by legislative instrument, including training and qualification requirements, and provide written exemptions (proposed sections 165–165B (items 17 and 18) and related amendments to section 119 (items 13 and 15)) and

•       setting out limits on the exercise of powers and performance of screening functions by screening officers (proposed section 165C (item 18) and the related repeal of section 168 (item 19)).

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[1].              Aviation Transport Security Act 2004 (ATS Act), section 3 (see further section 4; Department of Home Affairs (DoHA), ‘Air cargo and aviation’ and sub-pages, DoHA website, last updated 14 February 2019; Maritime Transport and Offshore Facilities Security Act 2003 (MTOFS Act), section 3 (see further section 4; DoHA, ‘Maritime security’ and sub-pages, DoHA website, last updated 11 November 2018).

[2].              Explanatory Memorandum, Transport Security Amendment (Testing and Training) Bill 2019, p. 2.

[3].              DoHA stated that the Government ‘agreed to recommendations from a 2016 ICAO [International Civil Aviation Organization] security audit, including strengthening covert system test protocols, and the creation of a more robust training and assessment program for screening officers’: DoHA, Submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Transport Security Amendment (Testing and Training) Bill 2019, [Submission no. 2], n.d., p. 6.

[4].              DoHA, ‘Review into security at Australian security regulated airports’, DoHA website (retrieved from the National Library of Australia’s Australian Government Web Archive); C Barker, Crimes Legislation Amendment (Police Powers at Airports) Bill 2019, Bills digest, 9, 2019–20, Parliamentary Library, Canberra, 22 July 2019.

[5].              DoHA, ‘Review into security at Australian security regulated airports’, op. cit. While the report has not been made public, DoHA stated that it informed a package included in the 2018–19 Budget that included funding to ‘increase the presence and specialist capabilities of the Australian Federal Police and the Australian Border Force at nine major domestic and international airports’ and for security enhancements at regional airports: P Dutton (Minister for Home Affairs), Budget 2018: keeping Australians safe, media release, 8 May 2018; Australian Government, Budget measures: budget paper no. 2: 2018–19, p. 128 (quote taken from this source).

[6].              Australian National Audit Office (ANAO), Passenger security screening at domestic airports: Department of Infrastructure and Regional Development, Audit report, 5, 2016–17, ANAO, Barton, ACT, 2016, pp. 27–29.

[7].              International Civil Aviation Organization (ICAO), Auditing Annex 17 standards, presented to ICAO Regional Universal Security Audit Programme Continuous Monitoring Approach (USAP-CMA) Seminar, Cairo, Egypt, 15–17 October 2018.

[8].              Explanatory Memorandum, pp. 1–2; J Duniam, ‘Second reading speech: Transport Security Amendment (Testing and Training) Bill 2019’, Senate, Debates, 4 December 2019, pp. 5068–5069.

[9].              Aviation Transport Security Regulations 2005, Regulation 5.06; Maritime Transport and Offshore Facilities Security Regulations 2003, Regulation 8.60.

[10].              Explanatory Memorandum, p. 3.

[11].              DoHA, ‘Transport security: reviews and inquiries’ (see under ‘Inquiry into aviation and maritime transport security education and training in Australia’), DoHA website, last updated 22 November 2018.

[12].              Senate Legal and Constitutional Affairs Legislation Committee, Transport Security Amendment (Testing and Training) Bill 2019, The Senate, Canberra, February 2020.

[13].              Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 1, 2020, 5 February 2020, pp. 34–36.

[14].              Ibid., pp. 34–35.

[15].              Ibid., pp. 35–36.

[16].              Labor Senators, Additional comments, Senate Legal and Constitutional Affairs Committee, Transport Security Amendment (Testing and Training) Bill 2019, The Senate, Canberra, February 2020, pp. 11–12; Australian Greens Senators, Additional comments, Senate Legal and Constitutional Affairs Committee, Transport Security Amendment (Testing and Training) Bill 2019, The Senate, Canberra, February 2020, pp. 13–14.

[17].              Ibid.

[18].              Australian Airports Association, Submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Transport Security Amendment (Testing and Training) Bill 2019, [Submission no. 4], 15 January 2020; Sydney Airport, Submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Transport Security Amendment (Testing and Training) Bill 2019, [Submission no. 1], 17 December 2019; J Coyne, Submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Transport Security Amendment (Testing and Training) Bill 2019, [Submission no. 3], n.d.

[19].              Australian Airports Association, Submission, op. cit.

[20].              Explanatory Memorandum, p. 3.

[21].              The Statement of Compatibility with Human Rights can be found in an attachment to the Explanatory Memorandum to the Bill.

[22].              Parliamentary Joint Committee on Human Rights, Human rights scrutiny report, 1, 2020, 5 February 2020, pp. 94, 96.

[23].              ATS Act, section 77. Law enforcement officer is defined in section 82 of the ATS Act.

[24].              Explanatory Memorandum, pp. 1–2; Duniam, ‘Second reading speech: Transport Security Amendment (Testing and Training) Bill 2019’, op. cit.

[25].              Duniam, ‘Second reading speech: Transport Security Amendment (Testing and Training) Bill 2019’, op. cit.

[26].              Ibid., subsection 79(1).

[27].              Proposed paragraph 79(2)(h). Security controlled airports are those declared as such in notices published in the Gazette (ATS Act, section 9 and subsection 28(2)). Aviation industry participant is defined in section 9 of the ATS Act, and includes airport and aircraft operators and certain other persons.

[28].              Explanatory Memorandum, p. 5.

[29].              ATS Act, subsection 79(3); item 4 (proposed paragraph 79(3A)(f)).

[30].              Explanatory Memorandum, p. 6.

[31].              Proposed subsection 79(10) and note to proposed subsection 79(9); Criminal Code Act 1995, subsection 13(3).

[32].              Items 5 and 10 of Schedule 1.

[33].              The Explanatory Memorandum (pp. 11–12) indicates that is the rationale for an equivalent amendment to an offence for hindering or obstructing the exercise of powers relating to aircraft (item 15 of Schedule 1).

[34].              ATS Act, subsection 80(1).

[35].              Ibid., subsection 80(3).

[36].              Item 18 (proposed subsections 80(7)–(9)).

[37].              Item 15 (amending paragraph 80(4)(b)).

[38].              Explanatory Memorandum, p. 3; Duniam, ‘Second reading speech: Transport Security Amendment (Testing and Training) Bill 2019’, op. cit.

[39].              Explanatory Memorandum, p. 3.

[40].              Ibid.

[41].              DoHA, ‘Transport security: reviews and inquiries’ (see under ‘Inquiry into aviation and maritime transport security education and training in Australia’), op. cit.

[42].              DoHA, ‘Security screening’ (see under ‘Screener accreditation scheme’), DoHA website, last updated 2 September 2019.

[43].              Item 1 of Schedule 2 will insert a definition of screening function into section 9 of the ATS Act; it will mean a function that a screening officer is authorised or required to perform under the ATS Act or an instrument made under it.

[44].              Items 3 (proposed paragraph 44(2)(aaa)) and 5 (amendment to subsection 44(3)) of Schedule 2.

[45].              Explanatory Memorandum, p. 17.

[46].              The existing limitation is in section 97, which will be repealed by item 9 of Schedule 2.

[47].              Item 10 of Schedule 2 (proposed paragraph 127(2)(aa)).