Chapter 2 - Overview of the Bill
2.1
Schedule 1 of the Aviation bill amends the Aviation Transport
Security Act 2004 and the Civil Aviation Act 1988. The
proposed amendments are intended to enhance the legal framework used to
regulate and maintain security and safety within the Australian aviation
industry.
Provisions of the bill[1]
2.2
The main provisions contained in Schedule 1 of the bill, as detailed in
the Explanatory Memorandum, are outlined as follows:
Aviation Transport Security Act
2004
2.3
Item 1 – Section 7 replaces the existing subsection 7(2)
and is designed to ensure that a state or territory agency operating a security
controlled airport is subject to the Act in the same way as any other airport
operator.
2.4
Item 2 – Section 9 inserts a new definition of the term 'eligible
customs officer'.
2.5
Items 3, 4 and 5 – Section 10 amend the definition of unlawful
interference with aviation. This definition is central to the operation of
the Act and, in particular, forms the basis of the definition of aviation
security incident. These definitions also identify those aviation security
incidents that must be reported to the Department.
2.6
Item 6 – Section 19 repeals and replaces existing subsection
19(4) and clarifies that, in the case of an application for a TSP being refused
due to the failure of the Secretary to make a decision within the time allowed,
an appeal may be made to the Administrative Appeals Tribunal.
2.7
This item also introduces new subsections 19(5) to (7) which allow the
Secretary to issue a notice to extend the time allowed to consider an
application for a TSP when the Secretary requests further information from the
applicant relevant to the approval of the TSP.
2.8
Item 7 – Section 20 repeals existing subsection 20(3) which only
allows the Secretary to approve a TSP for a period of five years. The new
provision allows the Secretary to approve a TSP for any period of at least 12
months, but not more than five years.
2.9
Item 8 – Section 21 ensures that, when a TSP is varied in
accordance with a direction by the Secretary, the varied TSP is not taken to be
a new TSP – meaning that a variation to a TSP will not change the date that the
TSP is due to expire.
2.10
Item 9 – Section 22 supplements Item 8 and ensures that a
variation to a TSP does not change the date when the TSP is due to expire.
2.11
Item 10 – Section 23A inserts a note making it clear that an
alteration to a TSP does not extend the period that TSP is in force (beyond the
period it was originally approved).
2.12
Item 11 – Section 24 repeals the requirement that a TSP must be
revised every five years (consistent with amendments made at Items 8 to 10).
2.13
Item 12 – Section 26A provides that a TSP holder may request that
their TSP be cancelled. (This provision is consistent with a provision
contained in the Maritime Transport and Offshore Facilities Security Act
2003 for maritime industry participants).
2.14
Item 13 – Section 27 adds a paragraph which permits the
Regulations to include offences for causing disruption or interference in
relation to security controlled airports.
2.15
Item 14 – Section 38B authorises the making of regulations
prescribing offences in relation to the disruption to, or interference with,
the activities of the operator of a security controlled airport, or the
activities of an aircraft operator at a security controlled airport.
2.16
Examples of disruptive conduct within an airport include making remarks
about bombs in baggage at check-in or screening points and leaving items of
baggage or parcels unattended within a terminal building.
2.17
Disruptive conduct outside an airport can include directing light
emitting devices (such as laser devices) into the airport through or over the
top of the airport's perimeter fence.
2.18
Item 15 – Section 62 inserts a new paragraph 62(1)(aa) to ensure
that there is no doubt that the Regulations may prescribe security features
that must be included on board an aircraft.
2.19
Item 16 – Section 75 amends Section 75 to include 'eligible
customs officers' in the list of officials who hold powers under the Act.
2.20
Item 17 inserts new sub-section 84(1A) that ensures a search
conducted under the Act by a law enforcement officer must, if practicable, be
conducted by a person of the same sex as the person being searched. The
Explanatory Memorandum to the bill states that this is consistent with searches
conducted under the provisions of the Crimes Act 1914.
2.21
Item 18 inserts new Division 3A into Part 5 of the Act, which
deals with the powers of 'eligible customs officers'. This suite of powers is
largely drawn from powers already given to law enforcement officers under the
Aviation Transport Security Act. These new powers for eligible customs officers
include:
- stop and search provisions;
- request to leave an aircraft, airport or an area or zone of an
airport;
- restrain and detain (until the arrival of a law enforcement
officer); and
- the removal of vehicles from an area or zone of an airport if the
officer is unable to have the vehicle removed by the person in control of it.
2.22
Item 19 – Section 91 inserts new paragraph 91(1)(d), which makes
it clear that a person who is an airport security guard is not a person who is
an 'eligible customs officer'.
2.23
Item 20 – Section 126 amends subsection 126(1)(a). (This is as a
result of the amendments to TSP's under section 19 that allow for an aviation
industry participant to apply for a review of the decision not to approve their
TSP).
2.24
Item 21 – Section 131 clarifies that, apart from certain
screening and clearing requirements, privileges and immunities conferred under
the Commonwealth Acts specified in subsection (1) upon certain dignitaries,
diplomats and other persons are not affected by the Act or Regulations.
Subsection (2) has been inserted to allow the Act or Regulations to set out
requirements for the screening and clearing of dignitaries which will not be
limited by the Acts referred to in subsection 131(1).
2.25
Item 22 specifies that the amendment made by Item 7 only applies
to TSP's given after this item commences. (Item 8 applies to TSP's approved
before or after this item commences).
Civil Aviation Act 1988
2.26
Item 23 inserts new paragraph 9(1)(da) to give the Civil Aviation
Safety Authority (CASA) the new function of administering new Part IV of the
Civil Aviation Act which provides for drug and alcohol management plans and
testing.
2.27
Item 24 replaces existing subsection 24(1). Currently, under subsection
24(1), the offence of interfering with a crew member or performing an act which
threatens the safety of the aircraft or of a person on board, is limited to
persons who are on board an aircraft. The amendment extends the coverage of the
offence to include persons who are outside the aircraft. (For example, a person
on the ground who deliberately directs a laser emitting device at an aircraft
will commit an offence under new subsection).
2.28
Item 25 inserts new Part IV of the Civil Aviation Act 1988.
Part IV establishes a statutory framework in which regulations may be made to
permit CASA to require drug and alcohol management plans and testing of persons
performing safety-sensitive aviation activities that impact directly or
indirectly on the safety of civil air operations in Australian territory, or
the operation of Australian aircraft outside Australian territory. This set of
amendments will also:
- (subject to the Regulations) allow CASA to regulate and monitor
compliance with company drug and alcohol management plans, and carry out its
own random testing program;
- define terms such as 'body sample', 'drug or alcohol test',
'positive test result', 'safety-sensitive aviation activities' and 'testable
drug' which will be used in Part IV;
- authorise the making of regulations for, and in relation to, the
development, implementation and enforcement of drug and alcohol management
plans and testing (covering persons who perform, or who are able to perform, safety-sensitive
aviation activities); and
- provide that the results of drug and alcohol tests are not
admissible in legal proceedings under the Civil Aviation Act and Regulations,
or in other proceedings that could be prescribed in the Regulations for this
purpose.
Key amendments
2.29
As indicated in Chapter 1, the Aviation bill contains four sets of
amendments to the Aviation Transport Security Act 2004 and two sets of
amendments to the Civil Aviation Act 1988. The following section summarises
the key amendments and the evidence received by the committee in relation to
the amendments.
Amendments to the Aviation Transport Security Act 2004
Transport security programs
2.30
Under the current legislation, many aviation industry participants are
required to have a Transport Security Program (TSP) which plays a central role
in the management of aviation security obligations. Under the proposed
amendments included in Items 6-12:
- an aviation industry participant will be able to ask for its TSP
to be cancelled (if, for example, a particular aircraft operator no longer
intends to operate a regular public transport service, or no longer intends to
operate from a particular airport); and
- the process by which TSP's are processed will be enhanced by
varying deadlines when further information is needed.[2]
Enhanced aviation security powers
for Australian Customs Officers
2.31
Under the proposed amendments, officers of the Australian Customs
Service (ACS), defined as 'eligible customs officers', who operate at security
controlled airports will be given powers to ensure more effective coverage with
respect to 'potential acts of unlawful interference with aviation'. The
proposed amendments are the result of a recommendation made by Sir John Wheeler
in his report – An Independent Review of Airport Security and Policing for
the Government of Australia. It is envisaged that by allowing customs
officers to provide an initial immediate response to potential acts of unlawful
interference with aviation, the ACS will be able complement the work of airport
police.
2.32
It is proposed that 'eligible customs officers' will only exercise these
powers when:
- a law enforcement officer is not immediately available;
- prompt action is required to prevent a security event from
developing or continuing; or
- intervention is necessary to detain persons believed to have been
involved in a security event.
2.33
The intention under the amended legislation is that an 'eligible customs
officer' would only take action under these powers (to deal with persons or
vehicles) pending the arrival of a law enforcement officer who will determine
what further action is required. Customs officers will have no power to
question a person who is stopped in the exercise of these powers.[3]
2.34
Evidence provided to the committee indicated a general level of support
for changes to the Act which seek to clarify and broaden powers in relation to potential
acts of unlawful interference with, and threats to, aviation security.[4]
2.35
There was also general support for the provision of enhanced aviation
security powers for Australian customs officers who operate at security controlled
airports.[5]
The Australian Airports Association and Adelaide Airport Limited did, however, express
concern about the lack of detail in terms of airport operational issues with
regard to 'eligible customs officers'. It was argued that:
Parts 89A through to 89H confer significant powers and
responsibilities on 'eligible customs officers' and given that Customs
Controlled area virtually now encompasses all of the airside of an airfield
then our request for clear operational guidelines will ensure the safety of
aircraft, passengers and indeed ACS officers.[6]
2.36
The committee was particularly interested to understand the rationale
and intended operation of new section 38B, which refers to offences causing
disruption in relation to security controlled airports; as well as proposed new
section 131 of the Aviation Transport Security Act 2004, which relates
to the screening and clearing of dignitaries.
Disruptive action
2.37
Under new section 38B, regulations will be able to be made which prescribe
offences with respect to activities that cause disruption of, or interference to,
aviation or airport operations within the airport. This amendment will also extend
the coverage of the Act to disruptive actions that take place outside the
boundaries of a security controlled airport.
2.38
During the committee's hearing, the Department of Transport and Regional
Services (DOTARS) was asked specific questions about the way in which 'causing
disruption or interference' is defined in new Section 38B. Concerns were raised
about the apparent breadth of the section and whether the amendment could be
interpreted to include any activity seen to be disruptive – including
commercial and industrial activity.
2.39
A departmental representative told the committee that DOTARS was aware
of the need to make the distinction between industrial and security issues and
predicted that:
In framing the regulations, I anticipate that we would be trying
to clarify that we are not trying to take security into an industrial realm,
for example. What we are trying to do is give ourselves a broader head of power
to craft regulations that allow us to address some real threats, and I think
our record has been very good on that front.[7]
2.40
The committee was also told that new section 38B would operate within
the context of the exemption within existing section 10(2) of the Act. Section
10(1) in Division 5 of Part 1 of the Act defines unlawful interference with
aviation. Section 10(2) provides that unlawful interference with aviation does
not include lawful advocacy, protest, dissent or industrial action that does
not result in, or contribute to, an action mentioned in section 10(1). The
committee was advised that the intention was for regulations under section 38B
to be consistent with section 10 and that the Department could pick up the
exemptions in section 10(2) in the creation of the Regulations.
Screening and clearing of
dignitaries
2.41
Under the amended legislation, the provisions in relation to the
screening and clearing of dignitaries will be clarified. New section 131 will provide
for the Act or regulations to set out requirements for the screening and
clearing of dignitaries. In his second reading speech, the Minister said that
the intention of the proposed amendments is to provide for "the most
senior dignitaries, their spouses and minors to be exempt from aviation
security screening. Other dignitaries and VIPs will still be able to apply for
aviation security screening exemptions on a case-by-case basis."[8]
2.42
These proposed amendments were of particular concern to several industry
participants. [9] In its submission, Virgin
Blue Airlines Pty Ltd said that it was opposed to exempting any persons from
the screening and clearing requirements, and argued that:
... the approach adopted by the Government introduces security
vulnerabilities and risks to the security framework and therefore the
travelling public. Clearly if a person, who is exempt from screening and
clearance under legislation, can enter a sterile area or board an aircraft
whilst in possession of a weapon or prohibited item, either intentionally or
inadvertently, then this poses a risk to security.[10]
2.43
The Australian Airports Association and Adelaide Airport Limited also
indicated that they did not "support the exemption of 'certain'
dignitaries from aviation security screening."[11]
2.44
In evidence, officers representing DOTARS told the committee that the proposed
amendments in relation to the screening and clearing of dignitaries had come about
as the result of advice suggesting that Australia had not been meeting its international
legal obligations in relation to the processing of visiting dignitaries. [12]
2.45
The committee noted that there was considerable opposition from industry
participants to the granting of exemptions of any type, and questioned DOTARS
extensively in relation to this issue. The committee was particularly
interested to determine whether proposed changes to the legislation (allowing a
particular 'class' of person exemption from security screening) could create a
dangerous precedent.
2.46
Departmental representatives told the committee that the changes would
not involve a large number of people, that the amendment was actually only creating
a power to grant an exemption, and that:
The actual granting of exemptions is typically the sort of thing
that would be a policy decision by government around a class of people. It is
certainly not creating a catch-all power that is going to see thousands and
thousands of people with exemptions. It was a bit of a gap in the act that we
felt, because of our international obligations, we needed to give ourselves the
power. [13]
Amendments to the Civil Aviation Act 1988
Interference with air crew and
endangering aircraft or passengers
2.47
The proposed amendments to Section 24(1) extend the application of the
existing section, which prohibits a person on board an aircraft from taking
action which would endanger the safety of the aircraft or those on board, to
include a person outside the aircraft.
2.48
The committee notes that these amendments reflect concerns within the
aviation industry regarding an increasing incidence of lasers being used to
interfere with aircraft, particularly on approach to, and on take-off from,
airports. The proposed amendments to the Civil Aviation Act will mean that a
person who threatens the safety of an aircraft, either by laser or other means,
will be committing an offence.[14]
The committee notes that aviation industry representatives were generally
supportive of this amendment.[15]
Mandatory drug and alcohol testing
program
2.49
On 2 May 2006, the Commonwealth government announced the development of
new regulations which would require the aviation sector to introduce mandatory
drug and alcohol testing for safety sensitive personnel.[16]
The Commonwealth government's announcement is based on a January 2006 report
jointly prepared by DOTARS and CASA into the safety benefits of introducing
drug and alcohol testing for safety-sensitive aviation personnel.[17]
2.50
Under new Part IV of the Civil Aviation Act, it is intended that CASA
will have responsibility for the oversight of the drug and alcohol testing of
safety sensitive personnel in the civil aviation industry. CASA will have the
authority to give lawful effect to a drug and alcohol testing regime,
especially where it extends to organisations and safety sensitive personnel
over which the Authority does not already have clear and direct regulatory
authority.
2.51
Under the new legislation, safety sensitive personnel will include
flight crew, cabin crew (flight attendants), flight instructors, aircraft
dispatchers, aircraft maintenance and repair personnel, aviation security
personnel, including screeners, air traffic controllers, baggage handlers,
ground refuellers and other personnel with airside access, and contractors.
2.52
The new regime will consist of two components:
- Industry Component: a drug and alcohol regime to be
implemented by the civil aviation industry (and those associated with its
safety sensitive functions) and which will include a requirement for industry
participants to develop and implement a drug and alcohol program.
- CASA Component: a scaleable random testing regime of
safety sensitive personnel associated with the civil aviation industry,
including those not captured under the drug and alcohol program conducted by
industry.[18]
2.53
Industry participants may elect to randomly test their employees under the
Industry Component, however, it is not intended that such random testing be
mandated by CASA. Under the CASA Component, it is proposed that CASA will
engage a contractor to undertake random testing on its behalf.
2.54
Although several stakeholder groups doubted the existence of a drug and
alcohol problem in the Australian aviation industry, there was considerable support
for the introduction of mandatory drug and alcohol testing throughout the
Australian aviation sector. Industry representatives did, however, make a
number of comments about the practical implications of the new arrangements and
the Regulations which would govern the proposed regime.
2.55
The Regional Aviation Association of Australia (RAAA) Association
indicated that the Association was not aware of a major alcohol or drug problem
within the professional sector of the aviation industry. However, the
Association also recognised that the absence of evidence does not necessarily mean
that there is not a problem and ultimately described the amendments as being positive:
The gathering of data as a result of the programs proposed by
the legislation should help us as an industry to determine the true extent of
the use of alcohol and other drugs by members of the industry. This can only be
useful.
A number of our members currently have very stringent alcohol
and other drug programs in place. These are a pre-requisite for providing
support to mining companies, and involve every member of the companies involved
regardless of whether or not their activities can be defined as 'safety
sensitive'. The experience of those who have such programs in place has been
universally positive.[19]
2.56
The Australian and International Pilots Association (AIPA) also argued that
there is no evidence to suggest that the use of drugs and alcohol is a problem
in Australia's aviation industry. The Association did, however, acknowledge the
inevitability of drug and alcohol testing being introduced and advocated a
holistic approach to the way in which these programs are managed. AIPA suggested
an approach which "supports the overall mitigation of human performance
impairment, including related issues such as fatigue, work systems and
environmental stressors."[20]
2.57
AIPA argued for an approach that is more consistent with a 'harm
minimisation' philosophy, and will result in an intervention strategy that
focuses on substance use rather than the substance user. In this type of
program, testing is only a minor component of the program. AIPA suggests that:
This is in contrast to the US style punitive approach, which
formed much of the basis of the DoTaRS Review of the safety benefits of
introducing drug and alcohol testing for safety-sensitive personnel in the
aviation industry – and is subsequently reproduced in the Bill's EM.[21]
2.58
AIPA also highlighted a number of additional proposals that had been put
to the DOTARS and CASA Alcohol and Other Drugs Project Team including that:
- testing of aviation safety-sensitive personnel only be conducted
within Australia;
- testing analysis only to be conducted within Australia;
- only highest quality of testing analysis to be prescribed;
- the cost of testing is not to be borne by the individual;
- there be legislative protection of privacy aspects;
- testing records be treated as medical records;
- there be legislative protection of the security and access to
testing records; and
- appropriate provisions apply with regard to expunging
information.[22]
2.59
AIPA acknowledged that several of the above proposals have been adopted
by the Alcohol and Other Drugs Project Team in developing the enabling
legislation – particularly those in relation to a harm minimisation philosophy,
limiting testing to within Australia and not mandating random testing for
industry Drug and Alcohol Management Plans. AIPA indicated support for these
actions.[23]
2.60
A spokesman for the Liquor, Hospitality and Miscellaneous Union, LHMU,
told the committee that the union does not oppose drug and alcohol testing,
"nor provisions that require employers to ensure the safety of passengers
and employees in aviation security"[24].
The LHMU also argued for an approach based on education and rehabilitation:
... the LHMU believes that employers – and now, to a certain
extent, CASA – have a positive obligation to ensure that employees who have a
drug or alcohol problem are identified, educated and assisted along the road to
sobriety by way of rehabilitation and not by way of punitive measures.[25]
2.61
The Australian Federation of Air Pilots (AFAP) also questioned whether the
misuse of drugs and alcohol really is a significant problem in the Australian
aviation industry. AFAP also suggested that the resources allocated to drug and
alcohol testing programs might be better spent in other areas of the aviation
system – particularly aviation security. At the same time, AFAP acknowledged
that international trends, public interest and political considerations mean
that drug and alcohol testing will become a reality under the new legislation.
2.62
In its submission, the AFAP made a number of comments about the proposed
amendments. The Federation raised specific concerns about the intention to test
pilots following an accident or incident, and argued that:
... such tests should not be required unless clearly justified by
the facts and circumstances of the accident, and in the case of an accident
where the pilot is injured, only administered when cleared to do so by the
pilot's nominated medical practitioner.[26]
2.63
The AFAP also raised concerns about the ability of small operators to
comply with the legislation, both in relation to the practical considerations
and the financial burden being placed on them. It was also noted that under the
amendments, it is proposed that the CASA component only conduct random checks –
which raised some questions about how pre-employment or post accident checks
will be conducted.[27]
2.64
The AFAP also argued that details regarding how, and under what
circumstances, a random test may be carried out need to be clarified –
particularly issues such as the location and timing of random tests. Testing in
the aircraft, in the vicinity of the aircraft, gate lounge or tarmac were also
described as being completely unacceptable.[28]
Committee comment
2.65
The committee notes that there is general support across the aviation
industry for those amendments to the Act designed to enhance security. In
particular, there appears to be broad support for moves to expand the
definition of 'unlawful interference with aviation' to include activities
beyond the boundaries of the airport. During the inquiry, several industry
organisations indicated that they have previously raised concerns with DOTARS about
the use of laser devices directed toward aircraft from locations outside the
airport boundary. The committee joins industry participants in welcoming the
enhanced measures in the legislation to deal with this problem.
2.66
The committee shares the concern of some submitters that the operation
of many of the proposed amendments in the bill will be implemented through
regulations which have yet to be drafted. The unavailability of the proposed
regulations for examination by the committee and interested stakeholders during
this inquiry is a matter of some concern to the committee. While the committee
notes the Department’s assurances that a number of the issues and questions raised
by the committee (including the 38B amendment) will be clarified in the Regulations,
it has been difficult for the committee to assess the implications of the
proposed amendments in isolation from the Regulations.
2.67
In this context, the committee notes that in its current form new
section 38B of the Aviation Transport Security Act appears to have a broad
application. The committee notes that it is the Department’s intention to limit
the application of new section 38B to a range of activities consistent with
those set out in section 10 of the Act. While the committee considers that it
is desirable for such limitations to be set out in the primary legislation, the
committee welcomes the Department’s assurance and notes that the Regulations
will be subject to parliamentary scrutiny via the disallowance process.
2.68
Similarly, the committee notes the industry's broad support for the
introduction of drug and alcohol testing programs across the aviation industry
is tempered by concerns about the practical implementation of the proposed
measures. The committee notes that these concerns could be addressed through
the involvement of stakeholders in the drafting of the Regulations.
2.69
The committee shares the concerns expressed by several organisations regarding
the granting of exemptions from security clearance for certain dignitaries.
Whilst the committee understands the importance of balancing its international
legal obligations with its aviation security obligations, the committee has
serious reservations about the granting of any type of exemptions. The
committee is particularly concerned that this would set a precedent for further
exemptions over time and that this may become difficult to manage as security
issues become more critical over coming years.
2.70
While the committee accepts the need for the bill and supports its
passage, the committee notes that the successful implementation of the bill
will depend largely on the extent to which concerns such as those raised by
stakeholders during this inquiry are addressed in the drafting of relevant
regulations. The committee anticipates that the drafting of the Regulations will
be based on full consultation with all stakeholders. The committee remains
concerned about the exemption of certain dignitaries, diplomats and other
persons from security screening and clearing.
Recommendation
2.71
The committee recommends that the bill be passed.
Senator the Hon. Bill Heffernan
Chair
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