Purpose of the Bill

The purpose of the Aviation Transport Security Amendment Bill 2018 (the Bill) is to amend the regulatory framework established under the Aviation Transport Security Act 2004 (the Act) to allow minimum security requirements for the aviation industry to be prescribed in a manner that reduces the administrative burden for industry participants assessed as ‘lower-risk’. Under the measures in the Bill, lower-risk aviation industry participants may be given, and required to adhere to, a transport security program (TSP) issued by the Secretary of the Department of Home Affairs (a ‘Secretary-issued’ or ‘model’ TSP).

Background

The Productivity Commission is considering the effect on airport operations of regulatory arrangements for security and associated costs as part of its Government-initiated inquiry into the economic regulation of airports, due to report in 2019.[1] An Australian Industry Standards report in February 2018 identified a host of financial pressures causing anticipated budget deficits over the next decade in the order of $17 million annually across all regional airports. Increasing costs of compliance and security are predicted to have a disruptive impact on those operators.[2]

The Act obliges industry participants to develop, seek approval of, maintain and comply with a TSP.[3] The Aviation Transport Security Regulations 2005 (the Regulations) detail the required elements of a TSP for different kinds of industry participants.[4] The impost on resources that TSP obligations represent for smaller, lower-risk industry participants is cited in the Bill’s Explanatory Memorandum as a motivation for introducing the Secretary-issued TSP into the regulatory framework.[5]

The Senate Rural and Regional Affairs and Transport References Committee reported in March 2017 on its Inquiry into Airport and Aviation Security.[6] The report recommended:

... any future reviews of and amendments to aviation security regulation be risk-based and fit for purpose, with consideration given to the unique challenges faced by regional and rural airports and the overall diversity of Australian airports.[7]

The Bill, in keeping with the Government’s agreement with this recommendation, is designed to amend the TSP requirement in recognition of the administrative burden that the present framework imposes on targeted industry participants.[8]

Committee consideration

Senate Legal and Constitutional Affairs Legislation Committee

The Senate Legal and Constitutional Affairs Legislation Committee reported on the Bill on 16 October 2018.[9] The inquiry considered the impact on airport operations and whether this impact meets the objective of the legislation.[10]

Stakeholders expressed concern that a Secretary-issued TSP may not achieve the intent of the Bill—to reduce the administrative burden of developing a TSP commensurate with the security risk profile of industry participant activities—if the practicalities of implementation impose any unnecessary or unwarranted compliance burden.[11] The Department’s submission to the Committee inquiry noted its continuing engagement with industry through advisory and consultative fora, and stated that it will ‘work closely with industry to develop the content of the TSP document’.[12]

The Committee noted concerns raised in submissions—such as those expressed about the general level of security in the industry and about the implementation of the Bill—and relied on departmental advice to address these concerns by underscoring the ongoing role of the department in monitoring compliance and engaging with industry to develop appropriate security measures.[13] The Committee recommended that the Bill be passed, without making any further recommendations.

The Committee’s report and stakeholder submissions can be found at the inquiry homepage. Further detail about views expressed in submissions is included in the ‘Key issues and provisions’ section below.

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills had no comment on the Bill.[14]

Policy position of non-government parties/independents

Non-government parties and independents did not appear to have commented publicly on the Bill at the time of publication of this Bills Digest.

Position of major interest groups

At the time of publication of this Bills Digest, few major interest groups had expressed any position except through the Senate Legal and Constitutional Affairs Committee inquiry process.

The Committee received five submissions (three from industry participants, one from the Northern Territory Government and one from the Department of Home Affairs). Three of the four stakeholder submissions to the inquiry welcomed the intent of the Bill.[15] Only one submission, from the Transport Workers Union (TWU), did not; rather, the TWU took the view that the Bill potentially weakens aviation security standards.

The TWU submission questioned the validity of the policy rationale and characterised the differential risk assessment of smaller and regional airports as ‘dangerous’, stating:

Smaller and regional airports are by no means immune from serious security threats, particularly those relating to staffing, with the potential for catastrophic consequences. Smaller airports are also part of the same network that includes our major airports.[16]

Concerns raised in submissions to the Committee inquiry, which relate to the operation of specific provisions in the Bill, are discussed under ‘Key issues and provisions’ below.

Financial implications

The Explanatory Memorandum states that there are no financial implications for the Commonwealth associated with this Bill.[17]

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 does not engage any of the applicable rights or freedoms.[18]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights considers that the Bill does not raise human rights concerns.[19]

Key issues and provisions

The purpose of the Act is to safeguard against unlawful interference with aviation by providing a regulatory framework that imposes obligations on persons engaged in civil aviation related activities in Australia.[20] The mechanism to achieve this objective is the requirement that various aviation industry participants have, and comply with, TSPs.[21]

Industry participants must have a TSP in force if they are:

• an operator of a security controlled airport
• an operator of a prescribed air service or
• a participant of a kind prescribed in the Regulations.[22]

Penalties apply for a failure to hold a TSP that is in force by virtue of a notice of approval; or for a failure to comply with a TSP that is in force.[23] A notice of approval is issued by the Secretary of the department responsible for administering the Act.[24]

Division 4 of Part 2 of the Act stipulates the content requirements for a TSP, with further details in the Regulations that prescribe particulars for various aviation industry participants.[25] A TSP must be in writing and the industry participant must prepare their TSP in accordance with any requirements set out in the Regulations.[26]

Division 5 of Part 2 of the Act provides that a TSP may be given to the Secretary for approval.[27] The TSP is then subject to a consideration period while the Secretary determines whether the TSP satisfies the requirements under Division 4 of Part 2 of the Act and any relevant provision of the Regulations. During this period, the Secretary may request by written notice that the industry participant give to the Secretary additional, specific information relevant to approving the TSP.[28] Once approved, a TSP is in force and may be revised or cancelled under certain circumstances.[29]

The Bill proposes to introduce Division 6 to Part 2 of the Act, which would provide that a TSP may be given by the Secretary (or their delegate) in the form of a written notice. This amendment is intended to alleviate the administrative and compliance burdens of developing and maintaining TSPs for ‘lower risk’ industry participants, currently imposed by Divisions 4 and 5.[30] A TSP given by the Secretary under the new Division would come into force at the time specified in the notice by which the TSP is issued to the industry participant.[31]

Under proposed subsection 26B(3), the Secretary (or their delegate) may issue a TSP only where they are satisfied that, taking into account existing circumstances as they relate to aviation security, it is appropriate to do so. The criteria for determining whether it is appropriate to issue a TSP to an industry participant are not set out in the Bill. However, the Explanatory Memorandum states that the Secretary will take into account:

• a risk assessment informed by intelligence and the characteristics of industry participants (including location, regular passenger numbers and types of services provided) and
• whether the administrative burden under Divisions 4 and 5 is proportionate to the security benefits associated with holding and complying with an approved TSP.[32]

The scope of the Secretary’s discretionary power under new subsection 26B, which does not require consultation with an affected industry participant, has given rise to stakeholder concern that a TSP may be issued without regard to local resource limitations or how alternative measures and procedures to those prescribed may, in effect, achieve the same security outcomes.[33]

Proposed section 26C will oblige the Secretary (or their delegate) to set out a TSP according to content requirements and prescribed matters under the Regulations. Similar provisions to those under subsection 16(2) of Division 4 of Part 2 provide that a Secretary-issued TSP may require an industry participant to comply with obligations such as:

• procedures to manage and coordinate aviation security activities within the participant’s operation
• procedures to coordinate the management of aviation security with other parties (including Commonwealth agencies) who have responsibilities for, or are connected with, aviation
• technology, equipment and procedures that will be used by the participant to maintain aviation security
• a plan for how the participant will respond to aviation security incidents and/or
• practices and procedures to protect security compliance information.[34]

This aspect of the Bill would reduce the administrative burden on industry participants issued with a TSP, in so much as:

• it would alleviate the task of preparing a TSP for approval and instead set compliance obligations and
• those participants would not need to detail how they will meet their obligations.[35]

The requirement for an industry participant to identify and consult with other industry participants affected by the TSP is also eliminated from the administrative burden of otherwise preparing a ‘bespoke’ TSP.[36]

Stakeholder comment suggested that consultation between the affected industry participant and the department be incorporated into departmental operating procedure to enhance the development of a Secretary-issued TSP.[37] The contention relates to the exercise of the Secretary’s discretionary power under the proposed amendments, in so far as measures and procedures prescribed under the TSP will need to be both:

• appropriate for the operations or locations covered by the program[38] and
• ‘viable and affordable’ in their implementation by an affected industry participant.[39]

Proposed section 26F will enable the Secretary to revise or cancel inadequate Secretary-issued TSPs, while proposed section 26G will enable the Secretary to cancel for a failure to comply. Proposed section 26H will enable industry participants to request that the Secretary cancel a Secretary-issued TSP. These provisions are intended to enable responsiveness to changes in the aviation security environment, for example; and parallel equivalent provisions applicable to industry participants holding Secretary-approved TSPs under Division 5 of Part 2 of the Act.[40]

As with an approved TSP, decisions concerning a Secretary-issued TSP would be subject to review by the Administrative Appeals Tribunal. This would capture decisions made in accordance with proposed section 26B (to issue a TSP); proposed sections 26F and 26G (to replace a Secretary-issued TSP with a revised TSP or to cancel for a failure to comply); and proposed section 26H (to refuse to cancel a Secretary-issued TSP on request).[41] An industry participant will be precluded from giving a TSP to the Secretary for approval under Division 5 of Part 2 while a Secretary-issued TSP is in force, unless the Secretary (or their delegate) has given that industry participant written permission to do so.[42]

The existing provisions for a demerits points system under the Act will be amended by proposed subsection 125(1) to bring Secretary-issued TSP cancellations under the same provisions as those that apply to cancellations of Secretary-approved TSPs.[43]