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1997
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
AVIATION LEGISLATION AMENDMENT BILL (NO. 2) 1997
EXPLANATORY MEMORANDUM
(Circulated by Authority of the Minister
for Transport and Regional
Development, the Hon John
Sharp MP)
88635 Cat. No. 96 9060
3 ISBN 0644 503548
Aviation Legislation Amendment Bill (No. 2) 1997
The Aviation Legislation Amendment Bill (No. 2) 1997 (‘the Bill’) amends the Air Navigation Act 1920, the Airports Act 1996, the Air Services Act 1995, the Civil Aviation (Carriers’ Liability) Act 1959 and the International Air Services Commission Act 1992 (the IASC Act).
The primary amendments to the Air Navigation Act 1920 relate to the security screening and clearance of passengers boarding large commercial aircraft within Australia.
• Currently, arrangements under the Air Navigation Act 1920 make individual aircraft operators responsible for passenger screening for certain domestic and international aircraft operations.
The responsibility for segregating passengers who have been screened from those who have not also rests with the airlines. In the larger terminals around the country the favoured method for segregating screened persons before they board an aircraft is to screen into “sterile areas”. The access to these sterile areas other than through the screening point is controlled by the terminal operator.
The amendments centralise the responsibility for sterile area access control and passenger screening into the one organisation. This is achieved by transferring responsibility for passenger screening at sterile areas primarily to terminal operators. In addition, the amendments establish an administrative scheme that is sufficiently flexible to allow the Department to designate an airline or airlines (or other persons, with their consent) to be responsible (or partly responsible) for passenger screening at a sterile area where local circumstances indicate that this would give a better security outcome. The administrative scheme also provides that the Department may designate sterile areas and impose any conditions of operation on the sterile areas.
The Bill also amends the Air Navigation Act 1920 by substituting the current definitions of “bilateral arrangement” and “another country” with definitions consistent with amendments to the IASC Act.
The amendments to the Airports Act 1996 will allow regulations made pursuant to the Act to set fees to be charged for environment protection activities.
This Bill amends the Air Services Act 1995 to include promoting and fostering civil aviation in Australia as an objective for Airservices Australia.
This Bill amends the Civil Aviation (Carriers’ Liability) Act 1959 to ensure that de facto spouses are included among the members of a passenger’s family for the purposes of being eligible for the compensation available under the Act in the event of the passenger’s death or injury as a result of an air accident. De facto spouses are currently excluded from compensation and this is contrary to the Commonwealth’s own policy and legislation relating to discrimination on the grounds of marital status.
This Bill also makes a number of minor technical amendments to the Civil Aviation (Carriers’ Liability) Act 1959 to bring it into line with recent amendments to the Air Navigation Act 1920.
The primary amendments to the IASC Act will enable the International Air Services Commission to allocate capacity available for Australian carriers to operate scheduled services between two countries with whom Australia has bilateral arrangements (this includes, but is not limited to, what is generally referred to as “fifth freedom traffic”, where Australia is the origin or destination of a service operating between two countries outside Australia) through amendments to the definitions of “bilateral arrangement” and “capacity” at Subsection 4(1).
These amendments will entail a number of consequential amendments to the Act - particularly to ensure that the Commission will not allocate capacity contrary to any restrictions on capacity contained in a bilateral arrangement or any combination of bilateral arrangements.
These amendments will provide increased certainty for the aviation industry by creating a single authority for allocating all capacity available under air services arrangements. Currently the International Air Services Commission allocates capacity available under bilateral arrangements for services between Australia and other countries and the Department of Transport and Regional Development allocates capacity available under bilateral arrangements for services by Australian carriers between two foreign countries. This Act will therefore appropriately separate the negotiation of all access to international aviation markets for Australian carriers, done by the Department of Transport and Regional Development, from the allocation of capacity available under bilateral arrangements by the International Air Services Commission to Australian carriers wanting access to those markets.
The Bill also enables current “fifth freedom” operations by Australian carriers to be grandfathered for a period of 5 years.
The other amendments to the IASC Act 1992 include provisions which :
• define blocked space arrangements, code sharing and joint international air services to give the International Air Services Commission guidance on what may be considered a joint service for the purpose of allocating capacity;
• remove definitions of new and shelf capacity which are now redundant; and
• allow the International Air Services Commission to revoke a determination at the request of an Australian carrier to whom that determination relates.
Financial Impact Statement
The amendments to the Air Services Act 1995, the Civil Aviation (Carriers’ Liability) Act 1959 and the IASC Act, and the Air Navigation Act 1920 are of a machinery nature and will have no financial impact on the budget.
The amendments to the Airports Act 1996 will allow regulations to be made so that costs associated with issuing administrative or other approvals under the regulations can be partially recovered.
REGULATORY IMPACT STATEMENT FOR SCHEDULE 1 (OTHER THAN ITEMS 9, 10 AND 11).
Overall problem identification and specification of regulatory objectives
The broad aim of aviation security regulation is to promote a secure environment for Australian civil aviation. In particular, the aim of aviation security is to safeguard Australia's civil aviation operations against an act of unlawful interference (such as an act of hijack, the intentional destruction of the aircraft, etc.).
Passengers should be able to undertake their commercial air travel secure from an act of unlawful interference occurring during their flight.
Similarly, airline crew members, ground personnel and other industry staff members should be able to conduct their activities secure from the occurrence of acts of unlawful interference.
Finally, members of the general public should be secure from the occurrence of acts of unlawful interference in relation to aircraft flying overhead (eg, the destruction of aircraft by explosives).
As a result, the aim of aviation security extends beyond merely an enforcement role (ie, of identifying persons who commit acts of unlawful interference with Australian aviation, after the event, and prosecuting them). Rather, the primary purpose is to deter, detect and prevent attempted acts of unlawful interference with aviation.
The impact of the problem
A security breach, resulting in an act of unlawful interference (eg, the destruction of an aircraft and its passengers by terrorists) occurring within Australia would impose a substantial cost on all parties directly affected (the passengers and their families, as well as the airline concerned).
More generally, the loss of Australia's status as a secure provider of aviation transport infrastructure would impose a significant cost upon the industry as a whole. In turn, as transportation is a service industry, a substantial part of this cost would be transmitted throughout the Australian economy.
A loss of confidence in the security of Australian civil aviation would tend to negatively affect patronage and would divert transportation traffic (of both people and goods) onto other modes of travel that are less economically suited to the task. For example, air transportation is ordinarily selected due to its ability to rapidly transport large volumes of people and goods.
In terms of international passenger transportation and tourism, traffic levels to and from Australia would be seriously affected overall, as air transport represents the primary means of travel.
Why is Government involvement required to deal with the particular problem identified?
As set out above, the members of industry have a direct commercial incentive to operate securely. As a result, Australia's civil aviation industry generally accepts in-principle the need for aviation security standards.
However, industry also recognises that, to be effective, Australia's “aviation security net” must be implemented equally by all operators within the industry.
By its very nature, Australia's aviation industry is overwhelmingly inter-related and inter-dependent. For example, airlines rely on airport operators to provide aviation infrastructure and business inputs, and vice versa. Airport operators are also dependent on a wide range of small businesses (eg, retail outlets) that operate within the public areas of the passenger terminal buildings.
In the event that even a small minority of operators failed to adopt industry-agreed minimum standards, the remaining operators would be required to adopt duplicated and/or more rigorous, and therefore significantly more costly, measures in order to counter the potential for a security breach arising from the activities of these minority operators.
As a result, the various industry members and representative bodies acknowledge the role of Government in enforcing at least a minimum level of aviation security standards for the whole of Australia's civil aviation industry.
Aviation security regulations enhance Australian business competition generally, in that the business consumers of Australian aviation services are able to place confidence in the security and reliability of Australian aviation. In addition, aviation security regulations provide public interest benefits of ensuring a secure aviation environment for Australian residents and for passengers of Australian commercial aircraft generally.
A further aviation security aim is to harmonise Australia's civil aviation industry with internationally-accepted aviation security standards and practices. The aviation industry is one which operates globally.
Australia is a signatory to the Convention on International Civil Aviation (the “Chicago Convention”) and has undertaken to implement the various world-wide standards, recommended practices and procedures on aviation security that are outlined under the Convention.
The stated aim of the Chicago Convention is to implement global principles and arrangements in order that international civil aviation may be developed in a safe and orderly manner and that international air transport services may be established on the basis of equality of opportunity and operated soundly and economically. Aviation Security Standards and Recommended Practices (SARPs) are covered in Annex 17 to the Convention.
Compliance with the Annex 17 SARPs is also covered in Australia's bilateral air services treaties which are negotiated with other countries.
Finally, Australia has entered into a number of other related international treaties on aviation security - namely:
• the Convention for the Suppression of Unlawful Seizure of Aircraft (the “Hague Convention”) The Convention is designed to prevent unlawful acts of seizure, or the exercise of unlawful control, of aircraft in flight;
• the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (the “Montreal Convention”) The Convention is designed to prevent unlawful acts against the safety of civil aviation generally;
• the Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation (the “Montreal Protocol”) The Protocol is designed to prevent unlawful acts of violence at airports; and
• the Convention on Offences and Certain Other Acts Committed on board Aircraft (the “Tokyo Convention”) The Convention is designed to allow for the arrest of persons who commit offences on board an aircraft. The Convention applies to offences which jeopardise the safety of an aircraft or of persons or property therein or which jeopardise good order or discipline on board.
The objective of the regulatory initiative
Currently, Australian aviation security regulation provides a system within which attempted acts of unlawful interference are designed to be detected, deterred and prevented. In effect, the regulation creates an “aviation security net” covering the Australian aviation industry. The regulation adopts a two-fold approach in pursuing its aim:
• by providing a range of offences directed at persons (including the general public) who act contrary to the interests of aviation security within Australia. For example, offences are provided for persons who enter or remain in a sterile area at an airport without being screened or who carry weapons on board a commercial aircraft; and
• by specifying minimum operational (as opposed to economic) standards, for the purposes of aviation security, to be adopted by Australia's aviation industry.
The regulation prescribes a range of aviation security minimum standards within the industry, covering matters such as security controls on passenger baggage, security controls on air cargo, the reporting of threats of unlawful interference with aviation, the implementation of industry security programs and the prohibition of the carriage of weapons in sensitive areas (eg, in commercial aircraft or within certain areas of airports).
In particular, arrangements under the Air Navigation Act 1920 make individual aircraft operators responsible for passenger security screening for certain domestic and international aircraft operations. The aircraft, to which these passenger screening arrangements apply, are specified under section 20 of the Act.
The responsibility for segregating passengers who have been screened from those who have not also rests with the airlines. In the larger terminals around the country the favoured method for segregating screened persons before they board an aircraft is to screen into “sterile areas”. Sterile areas offer savings in security costs by minimising the screening staff and equipment compared to screening passengers at individual gate lounges.
The airlines' responsibility for segregation of persons following screening into a sterile area is extremely difficult to put into effect as they do not directly control access into the sterile area through points other than the screening point. These other access points are controlled by the terminal operator.
Also, with the progressively more commercial approach being taken by airport terminal operators to non-aeronautical revenue raising, more and more commercial activities (such as retail outlets) are being located within sterile areas, where the departing passengers tend to congregate. These activities are controlled by the operators of the passenger terminal buildings through the terminal operator leases and not by the airlines. The operation of these commercial activities, particularly the need to restock out of hours and some of the delivery practices, do have an impact on the security of the sterile area.
In consideration of these factors, the proposed regulatory initiative has the aim of centralising the responsibility for sterile area access control and passenger screening into the one organisation. This will be achieved by making terminal operators primarily responsible for passenger screening at sterile areas. This will result in a better security outcome overall.
In summary, the regulatory initiative is designed to:
• ensure that airlines remain responsible for what is carried on their aircraft and for passenger screening when a sterile area is not used to segregate passengers;
• ensure that airlines remain responsible for the segregation of their passengers between a sterile area approved under the new arrangements and their aircraft;
• make operators of terminals, in which sterile areas operate, responsible for access control and passenger screening, with the Department of Transport and Regional Development having the power to designate the sterile area and any conditions of operation; and
• ensure that these arrangements are sufficiently flexible to allow the Department of Transport and Regional Development to designate an airline or airlines (or other persons, with their consent) to be responsible for passenger screening into a sterile area where local circumstances indicate that this would give the better security outcome.
Identification of alternatives
The regulatory initiative represents only a minor change to a much larger pre-existing legislative scheme. As such, the alternatives comprise:
• amend the relevant provisions of the Air Navigation Act 1920 to explicitly transfer responsibility for sterile areas, as outlined above; or
• not amend the provisions of the Act. Since the obligations to operate sterile areas are currently explicitly provided under legislation, this option is in support of the status quo (ie, for airlines to remain exclusively responsible for sterile areas).
Impact group identification
While the positive effects of a secure aviation transport infrastructure indirectly benefit a wide range of persons, the specific consequences of the proposed regulatory initiative (being a minor amendment) only affects a small class of persons. Specifically, the regulatory initiative only impacts upon airlines, operators of terminal facilities at major airports and other members of industry who consent to perform screening functions. This last category of persons would include commercial security firms who consent as a result of being paid commercial rates for performing the function.
For example, from the point of view of the travelling passenger, there will be no change to current arrangements. There is no additional cost impact upon the wider community.
In addition, while the proposed regulatory initiative transfers responsibility for some existing aviation security matters from airlines to terminal operators, it does not change the nature of passenger screening or sterile areas as they exist at the moment. That is, in overall terms, the amendments do not create any additional obligations or additional costs.
It is anticipated that terminal operators will merely pass the existing costs of these aviation security matters directly onto the relevant airlines - in much the same way as terminal operators currently pass on the costs of other items of airport terminal infrastructure. Under new prices oversight arrangements implemented for the privatisation of Australia's major Federal airports, airport operators are able to pass the costs associated with Government-mandated aviation security requirements onto users (such as airlines) on a “cost-only” basis.
There is no additional cost to Government arising out of the proposed regulatory initiative.
On the other hand, it is expected that the overall benefits of the proposed regulatory initiative will be significant and widespread (although the benefits are unable to be accurately costed in dollar terms). As mentioned, the regulatory initiative centralises the responsibility for sterile area access control and passenger screening into the one organisation. This will result in a more secure process for passenger screening overall within Australia - with consequent beneficial effects for the deterrence, prevention and detection of acts of unlawful interference with Australian civil aviation.
Consultation
By way of background, the Department consults widely with Australia's aviation industry on regulatory issues. In particular, the Department holds regular consultative meetings with industry representatives to discuss matters of regulation generally.
In relation to the regulatory initiative, the Department has maintained two inter-linking industry consultative processes.
First, the Department has consulted in writing with members of Australia's aviation industry, on the terms of the proposed regulatory initiative. This consultation was initiated on 26 October 1995 and has been maintained since that date.
Second, the Department holds regular meetings with industry representatives to discuss matters of regulation generally. This consultative body is called the Aviation Security Industry Consultative Group and comprises the major airlines, major airport operators and peak industry bodies. The Group meets approximately once every three months. The Department has discussed the proposed regulatory initiative on a number of occasions since October 1995.
It is proposed that the future effect and operation of the proposed regulatory changes be reviewed in partnership with industry during the ongoing meetings of the Aviation Security Industry Consultative Group.
Administrative simplicity, economy and flexibility
The proposed regulatory initiative does not impact upon the Government's administrative procedures, nor does it affect existing administrative requirements placed on business.
Aviation Legislation Amendment Bill (No. 2) 1997
Clause 1 provides that the Bill may be cited as the Aviation Legislation Amendment Act (No. 2) 1997.
This clause provides that, with certain exceptions, the Act will commence on the day upon which the Act receives the Royal Assent.
The clause provides that those provisions in Schedule 1 dealing with security screening and Schedule 5 of the Act will commence on a day (or days) to be fixed by Proclamation. However, in the event that no such Proclamation (within the appropriate time) is made:
• the security screening provisions in Schedule 1 commence 12 months after the Act receives Royal Assent; and
• Schedule 5 commences 6 months after the Act receives Royal Assent.
The relatively lengthy (12 months) maximum period for implementation of the security screening amendments allows the option of a transitional period in case this becomes necessary. For example, Australia's civil aviation industry may need a reasonable time period in which to transfer the administration of sterile areas at airports. These arrangements will need to cover practical aspects such as the transfer of existing contracts with security firms for the conduct of passenger security screening and acquisition of screening equipment.
This clause specifies that the Acts specified in the Schedule are amended or repealed (as the case may be) as per the items set out in the Schedule.
Item 1 inserts a new definition of “screening authority” into Subsection 3(1) of the Act. This term is used within the new administrative scheme for sterile area passenger screening under item 19. A screening authority is any person appointed by the Secretary under new Section 21A as being responsible for passenger screening at a sterile area.
Item 2 inserts a new definition of “screening officer” into Subsection 3(1) of the Act. The term is used within the new administrative scheme for sterile area passenger screening under item 19.
The term is used to describe any person who is authorised or required to screen people, vehicles or goods under the Act. The term therefore covers organisations (eg, airlines, screening authorities, etc.) who are required to screen passengers under the terms of the Act as well as screening staff members who are employed to screen passengers on behalf of such organisations.
Item 3 replaces the existing definition of “screening point” in Subsection 3(1) of the Act. The updating of this term is a consequential amendment to the new administrative scheme for sterile area passenger screening under item 19.
Under the new definition, a screening point is any place (whether in an airport or not) where screening and clearance of people, vehicles or goods for the purposes of this Act are conducted.
Item 4 replaces the existing definition of “sterile area” in Subsection 3(1) of the Act. The updating of this term is a consequential amendment to the new administrative scheme for sterile area passenger screening under item 19. Under the new definition, a sterile area is any place (whether in a terminal building or not) designated by the Secretary under Section 21 as a sterile area.
Item 5 inserts a new definition of “terminal facility” into Subsection 3(1) of the Act.
This term is used within the new administrative scheme for sterile area passenger screening under item 19. A terminal facility is any area at an airport that is used to facilitate the movement of passengers onto or from an aircraft.
Item 6 inserts a new definition of “terminal operator” into Subsection 3(1) of the Act. This term is used within the new administrative scheme for sterile area passenger screening under item 19. A terminal operator is any person who is responsible, whether individually or jointly, for the day-to-day management of a terminal facility or a part of a terminal facility.
Item 7 is a consequential amendment to the new administrative scheme for sterile area passenger screening under item 19. In the existing definition of “screened” under Subsection 3AD(1) of the Act, the term “an aircraft operator” is replaced by “a screening officer”.
Item 8 is a consequential amendment to the new administrative scheme for sterile area passenger screening under item 19. In the existing definition of “cleared” under paragraph 3AD(2)(b) of the Act, the term “aircraft operator” is replaced by “screening officer”.
Item 9 of the amendments to the Air Navigation Act 1920, inserts a definition of “another country” in Subsection 11A(4) of the Act.
This amendment makes the definition consistent with that in the International Air Services Commission Act 1992 (the IASC Act).
Item 10 of the amendments to the Air Navigation Act 1920, repeals the definition of “bilateral arrangement” in Subsection 11A(4) and substitutes a new definition.
This amendment makes the definition consistent with that in the IASC Act . It extends the definition to include services operated between two countries with whom Australia has bilateral arrangements.
This definition has been replaced by the definition of “another country”. See Item 9.
Item 12 inserts a new provision (Subsection 2A) into Section 20 of the Act. The new provision prohibits passengers from boarding an aircraft (to which Section 20 applies) unless the passenger has been screened and cleared by the operator of the aircraft to board the aircraft. The new provision is a offence with a mental element of “intentionally or recklessly”, and with a maximum penalty of 80 penalty units.
In effect, item 12 rectifies a technical defect of the Act by inserting a passenger screening offence that is missing from the current legislative scheme.
The new Subsection 20(2A) is designed to mirror the existing offence under Subsection 20(2) of the Act. Existing Subsection 20(2) prohibits an operator of an aircraft (to which Section 20 applies) from permitting a passenger to board the aircraft unless the passenger has been screened and cleared by the operator.
Item 13 is a consequential amendment to item 12. In the existing Subsection 20(3) of the Act, the term “Subsection (2)” is replaced by “Subsections (2) and (2A)”.
Item 14 is a consequential amendment to the new administrative scheme for sterile area passenger screening under item 19. In existing subparagraph 20(3)(c)(i), which deals with the screening obligations of aircraft operators, the term “Section” is replaced by “Division”.
This amendment is necessary as the screening obligations, as proposed to be amended under the Bill, are to be contained throughout Division 1 of Part 3 of the Act - rather than concentrated within a particular Section.
Item 15 is a consequential amendment to the new administrative scheme for sterile area passenger screening under item 19. The item inserts a new provision (Subsection 3A) into Section 20 of the Act.
New Subsection 3A deems persons to have been screened and cleared, from the point of view of the aircraft operator, where the persons board an aircraft after leaving a sterile area and where:
• the person has been screened and cleared within the sterile area; and
• the persons have not had an opportunity to make physical contact with another person who is required to be screened but has not been screened or, having been screened, has afterwards had an opportunity to make physical contact with a person who is required to be screened but has not been screened.
If the passenger has not been screened within the sterile area, the aircraft operator will be required to rectify the situation before allowing the passenger to board the aircraft. For example, the aircraft operator could:
• screen the passenger itself; or
• send the passenger back to the sterile area for screening.
It is also intended that this new provision will operate where the aircraft operator is satisfied that screening (by the screening authority) suffers from a systemic or fundamental deficiency. In such a case, once again, the aircraft operator will be required to rectify the situation prior to allowing such passengers to board their aircraft. For example, the aircraft operator could:
• institute its own separate screening facilities; or
• negotiate with the screening authority to remedy its defective screening procedures.
Item 16 is a consequential amendment to Item 12. In the existing Subsection 20(4) of the Act, the term “Subsection (2) does” is replaced by “Subsections (2) and (2A) do”.
Item 17 is a consequential amendment to Item 12. Item 17 ensures that the offence under new Subsection 2A (inserted under Item 12) has a mental element of “intentionally or recklessly”, compared to the strict offences under existing Subsections 20(2) and 20(5)
Item 18 - Screening by aircraft operators
Item 18 is a consequential amendment to the new administrative scheme for sterile area passenger screening under item 19. The item inserts a new provision (Section 20A) into the Act.
In particular, item 18 divides the existing passenger screening function (as specified under the Act) to cover both:
• screening via a sterile area; and
• screening other than via a sterile area.
For example, while there is no need, under the new administrative scheme, for passengers to be re-screened where they emerge directly out of an existing sterile area, the relevant aircraft operator may need to become wholly responsible for the screening of passengers in certain circumstances (eg, in the absence of a sterile area within the passenger terminal building).
In particular, not all passenger terminal buildings necessarily need to establish sterile areas. For example, only passengers of large commercial aircraft need to be screened. In addition, at some smaller airports, it may be easier to merely screen passengers as they board the aircraft rather than establish a sterile area.
As a result, item 18 establishes the elements of passenger screening, to be performed by aircraft operators outside of a sterile area. Item 18 achieves this by duplicating the existing provisions of the Act that describe the elements of passenger screening for a sterile area.
In summary, item 18 inserts the following measures:
• under new Subsections 20A(1) and (2), the aircraft operator must screen in the manner as directed by the Secretary - this mirrors existing Subsections 22A(5)-(6) of the Act for sterile area screening. New Subsection 20A(2) is a strict offence with a maximum penalty of 200 penalty units;
• under new Subsections 20A(3) and (4), the aircraft operator must not permit persons or goods past the screening point if the screening detects a metal or unidentified object (unless the object is not a danger to aviation security or is surrendered) - this mirrors existing Subsections 22A(7)-(8) of the Act for sterile area screening. New Subsection 20A(4) is a strict offence with a maximum penalty of 200 penalty units; and
• under new Subsections 20A(5)-(10), the aircraft operator must keep screened persons and goods segregated from unscreened persons and goods - this mirrors existing Subsections 22A(9)-(13) of the Act for sterile area screening. New Subsection 20A(10) is a strict offence with a maximum penalty of 200 penalty units.
Item 19 inserts the core of the new administrative scheme for sterile area passenger screening. The item replaces the existing Section 21 of the Act and inserts three new Sections into the Act (Sections 21A, 21B and 21C).
The first element of the new administrative scheme for sterile area passenger screening is contained within new Subsection 21(1). Under this Subsection, the Secretary may, in writing, designate a place (used to process passengers of aircraft) as a sterile area. However, sterile areas may only be designated in relation to aircraft to which Section 20 applies.
Under new Subsection 21(2), the designated sterile area may be within, partly within or outside, a terminal building.
Under new Subsection 21(3), the Secretary may designate the sterile area:
• as a full-time sterile area: or
• as a sterile area only during the period or periods specified in the designation (for example, during specified hours of each day).
New Subsection (4) contains a useful definitional provision. Under this Subsection, if the Secretary designates a place as a sterile area only during a particular period or periods, a reference in this Act to a sterile area is deemed to be a reference to the place during the period or periods, as the case may be.
Finally, new Subsection 21(5) allows the Secretary to designate a sterile area subject to conditions.
As an adjunct to the designation of sterile areas under new Section 21, the Secretary may also appoint persons to be responsible for maintaining these sterile areas. This secondary element of the new administrative scheme for sterile area passenger screening is contained within new Section 21A.
Under new Subsection 21A(1), if the Secretary designates a place as a sterile area, the Secretary may, in writing, also appoint a person, or 2 or more persons, to be “screening authorities” in relation to:
• either the whole of the sterile area or a part of the sterile area (or perimeter of the sterile area) specified in the appointment; and
• either individually or jointly with one or more other screening authorities.
To use an example - the Secretary may wish to designate airlines “A” and “B” to be jointly responsible for:
• screening at the primary passenger screening point leading into the sterile area; and
• persons remaining in the sterile area generally;
and to designate terminal operator “C” to be separately and individually responsible for screening at all other points around the perimeter of the sterile area.
Under new Subsection 21A(2), the Secretary must make sufficient appointments such that the whole of the sterile area is under the responsibility of at least one screening authority. That is, there must not be any “left over” elements of a sterile area that are not under the responsibility of a screening authority.
New Subsection 21A(3) outlines the classes of persons who may be appointed as a screening authority in relation to a sterile area wholly outside a terminal facility:
• an aircraft operator whose passengers or intending passengers are to use the sterile area;
• the operator of a terminal facility that is contiguous to, or operationally connected with, the sterile area; or
• in the event that neither an aircraft operator nor a terminal operator has been appointed, the Secretary may appoint a person who has consented in writing to be a screening authority.
New Subsection 21A(4) outlines the classes of persons who may be appointed as a screening authority in relation to a sterile area wholly or partly inside a terminal facility:
• the operator of the terminal facility;
• an aircraft operator whose passengers or intending passengers are to use the sterile area; or
• in the event that neither an aircraft operator nor a terminal operator has been appointed, the Secretary may appoint a person who has consented in writing to be a screening authority.
For example, the third category of persons specified above (ie, other members of industry who consent in writing to perform screening functions) may include commercial security firms who consent as a result of being paid commercial rates for performing the function.
As an adjunct to the appointment of screening authorities to be responsible for maintaining sterile areas under new Section 21A, the Secretary may also issue written directions to those screening authorities specifying minimum operating requirements in relation to the proper maintenance of the sterile areas.
However, such directions may only be issued to a screening authority in relation to the sterile area, or part of the sterile area, that is under the responsibility of the screening authority (according to the terms of the screening authority's appointment).
For example, such specifications may include the need for the screening authority to search an area prior to the area commencing as a part-time sterile area.
New Section 21B contains an offence prohibiting screening authorities from failing to comply with such a Secretarial direction. The offence is a strict offence with a maximum penalty of 200 penalty units.
The final element of the new administrative scheme for sterile area passenger screening outlines the screening obligations of a “screening authority”. This element is contained within new Section 21C.
Under new Subsection 21C(1), a screening authority must ensure that people, vehicles and goods do not:
• enter the sterile area, or the part of the sterile area (or perimeter of the sterile area); or
• remain in the sterile area, or the part of the sterile area;
that has been designated by the Secretary to be under the responsibility of the screening authority - unless the people, vehicles and goods:
• have been screened and cleared by the screening authority; or
• are exempted by the Secretary from screening and clearance.
The obligation under new Section 21C is a strict offence with a maximum penalty of 200 penalty units.
This provision is a consequential amendment to the new administrative scheme for sterile area passenger screening under item 19.
The provision, in relation to paragraph 22A(1)(a) of the Act, replaces “by an aircraft operator in respect of the sterile area” with “for the purpose of entering the area”.
This provision is a consequential amendment to the new administrative scheme for sterile area passenger screening under item 19.
The provision, in relation to subparagraph 22A(2)(a)(i) of the Act, replaces “by an aircraft operator in respect of” with “for the purpose of entering”.
This provision is a consequential amendment to the new administrative scheme for sterile area passenger screening under item 19.
The provision, in relation to subparagraph 22A(2)(b)(i) of the Act, replaces “by an aircraft operator in respect of” with “for the purpose of entering”.
This provision is a consequential amendment to the new administrative scheme for sterile area passenger screening under item 19.
The provision, in relation to subparagraph 22A(3)(a)(i) of the Act, replaces “by an aircraft operator in respect of” with “for the purpose of entering”.
Item 24 is a consequential amendment to the new administrative scheme for sterile area passenger screening under item 19. In subparagraph 22A(4)(c)(i), which deals with the screening obligations of screening authorities, the term “Section” is replaced by “Division”.
This amendment is necessary as the screening obligations, as proposed to be amended under the Bill, are to be contained throughout Division 1 of Part 3 of the Act - rather than concentrated within a particular Section.
This provision is a consequential amendment to the new administrative scheme for sterile area passenger screening under item 19.
The provision, in relation to subparagraph 22A(3)(b)(i) of the Act, replaces “by an aircraft operator in respect of” with “for the purpose of entering”.
This provision is a consequential amendment to the new administrative scheme for sterile area passenger screening under item 19.
The provision, in relation to Subsection 22A(5) of the Act, replaces “An aircraft operator” with “A screening authority”.
This provision is a consequential amendment to the new administrative scheme for sterile area passenger screening under item 19.
The provision, in relation to Subsection 22A(6) of the Act, replaces “An aircraft operator” with “A screening authority”.
This provision is a consequential amendment to the new administrative scheme for sterile area passenger screening under item 19.
The provision replaces the screening obligation of an aircraft operator, currently contained within existing Subsection 22A(7), with an equivalent obligation for a screening authority in relation to a sterile area.
The provision achieves this by inserting new Subsection (6A) prohibiting a screening authority from permitting persons or goods past a screening point if the screening detects a metal or unidentified object (unless the object is not a danger to aviation security or is surrendered). New Subsection 22A(6A) is a strict offence with a maximum penalty of 200 penalty units.
This provision is a consequential amendment to the new administrative scheme for sterile area passenger screening under item 19.
The provision re-states the screening obligation of an aircraft operator, currently contained within existing Subsection 22A(7), in relation to the screening of passengers boarding an aircraft via a sterile area.
The provision achieves this by inserting new Subsection (7) prohibiting a screening authority from permitting persons or goods past a screening point if the screening detects a metal or unidentified object (unless the object is not a danger to aviation security or is surrendered). New Subsection 22A(7) is a strict offence with a maximum penalty of 200 penalty units.
This provision is a consequential amendment to items 28 and 29.
The provision ensures that the existing offence element under Subsection 22A(8) contains a reference to new Subsection (6A).
The existing offence - provided under Subsections 22A(8) and (13), against authorities failing to screen persons, goods or vehicles - is a strict offence with a maximum penalty of 200 penalty units.
This provision is a consequential amendment to the new administrative scheme for sterile area passenger screening under item 19.
The provision re-states the existing obligation to segregate screened persons from unscreened persons (whilst in a sterile area), currently contained within existing Subsection 22A(9), and transfers the obligation onto the screening authority responsible for the sterile area.
This provision is a consequential amendment to item 31.
As new Subsection 22A(9) contains all of the elements of the obligation for screening authorities to segregate screened persons from unscreened persons (whilst in a sterile area), there is no longer a need for existing Subsection 22A(10). As a result, this provision repeals existing Subsection 22A(10).
This provision is a consequential amendment to the new administrative scheme for sterile area passenger screening under item 19.
The provision, in relation to Subsection 22A(11) of the Act, replaces “an aircraft operator” with “a screening authority”.
This provision is a consequential amendment to the new administrative scheme for sterile area passenger screening under item 19.
The provision, in relation to Subsection 22A(12) of the Act, replaces “An aircraft operator” with “A screening authority”.
This provision is a consequential amendment to items 28 and 29.
The provision ensures that the existing offence element under Subsection 22A(13) contains a reference to new Subsection (6A).
The existing offence - provided under Subsections 22A(8) and (13), against authorities failing to screen persons, goods or vehicles - is a strict offence with a maximum penalty of 200 penalty units.
This provision is a consequential amendment to the new administrative scheme for sterile area passenger screening under item 19.
The provision, in relation to Subsection 22B(1) of the Act, replaces “An aircraft operator” with “A screening officer”.
This provision is a consequential amendment to the new administrative scheme for sterile area passenger screening under item 19.
The provision, in relation to paragraph 22B(2)(b) of the Act, replaces “operator” with “screening officer”.
This provision is a consequential amendment to the new administrative scheme for sterile area passenger screening under item 19.
The provision, in relation to Subsection 22B(2) of the Act, ensures that the current powers of an aircraft operator - in relation to refusing persons to enter a sterile area or to board an aircraft without being screened and cleared - are transferred onto the screening authority appointed in relation to the sterile area.
This provision is a consequential amendment to the new administrative scheme for sterile area passenger screening under item 19.
The provision, in relation to Subsection 22B(3) of the Act, replaces “An aircraft operator” with “A screening officer”.
This provision is a consequential amendment to the new administrative scheme for sterile area passenger screening under item 19.
The provision, in relation to Subsection 22B(4) of the Act, replaces “An aircraft operator” with “A screening officer”.
This provision is a consequential amendment to the new administrative scheme for sterile area passenger screening under item 19.
The provision repeals the current ability for persons to appeal to the Administrative Appeals Tribunal in relation to decisions of the Secretary:
• approving a place as a sterile area; or
• refusing to approve a place as a sterile area.
This item inserts a new Subsection (3B) into Section 132 that will allow regulations made for the purposes of protection of the environment under Subsection (1) to make provision for fees in respect of applications made in relation to any matter under the regulations.
This item inserts a new Subsection (3C) into Section 133 that will allow regulations made for the purposes of protection of the environment under Subsection (1) to make provision for fees in respect of applications made in relation to any matter under the regulations.
SCHEDULE 3 - AMENDMENTS
The Air Services Act 1995
Item 1
The Air Services Act 1995 is amended by inserting a new paragraph 8(1)(aa) after paragraph 8(1)(a).
The amendment provides an additional function for Airservices Australia to promote and foster civil aviation in Australia.
SCHEDULE 4 - AMENDMENTS
The Civil Aviation (Carriers’ Liability) Act 1959
Item 1
Item 1 of the amendments to the Civil Aviation (Carrier’s Liability) Act 1959 amends Subsections 12(5) and 35(5) by adding “de facto spouse” to the list of persons eligible for compensation under the Act.
De facto spouses are currently excluded from compensation and this is contrary to the Commonwealth’s own policy and legislation relating to discrimination on the grounds of marital status.
Item 2
Item 2 of the amendments to the Civil Aviation (Carrier’s Liability) Act 1959 amends the definition of “Australian International Carrier” in Subsections 11A(2) and 21A(2) to reflect redrafted provisions in the Air Navigation Act 1920 as amended in Aviation Legislation Amendment Act No 1 1997, which received assent on 17 April 1997 and is procedural.
Item 1 of the amendments to the IASC Act substitutes a new definition of “bilateral arrangement” at Subsection 4(1) of the Act.
The definition of “bilateral arrangement” accommodates rights for scheduled services by Australian carriers between Australia and a country with whom Australia has a bilateral arrangement and also between one country with whom Australia has a bilateral arrangement and another. This expanded definition will allow the International Air Services Commission to allocate available capacity, including “fifth freedom” capacity, as qualified by the relevant bilateral arrangement or combination of bilateral arrangements.
Item 2 of the amendments to the IASC Act inserts a new definition of “blocked space arrangements” at Subsection 4(1) of the Act.
The International Air Services Commission is required under Subsection 15(2)(e) of the IASC Act to impose a condition which defines the extent (if any) to which an Australian carrier may use the capacity it is allocated by providing joint international air services with another Australian carrier or any other person.
This definition provides the International Air Services Commission with guidance on what may be considered a blocked space arrangement for the purpose of imposing any such conditions.
Item 3 of the amendments to the IASC Act substitutes a new definition of “capacity” at Subsection 4(1) of the Act.
The amendment allows the International Air Services Commission to allocate capacity available under either a bilateral arrangement or a combination of bilateral arrangements.
This definition is deliberately broad, to encompass restrictions or qualifications on capacity, contained in a bilateral arrangement or combination of bilateral arrangements, that the International Air Services Commission may need to make a decision about in the course of allocating capacity. These may include, but are not limited to, capacity or frequency restrictions, or restrictions on the points to be served, or a combination of these restrictions or qualifications.
Item 4 of the amendments to the IASC Act inserts a new definition of “code sharing” at Subsection 4(1) of the Act.
The International Air Services Commission is required under Subsection 15(2)(e) of the IASC Act to impose a condition which defines the extent (if any) to which an Australian carrier may use the capacity it is allocated by providing joint international air services with another Australian carrier or any other person.
This definition provides the International Air Services Commission with guidance on what may be considered code sharing for the purpose of imposing any such conditions.
Item 5 of the amendments to the IASC Act inserts a new definition of “joint international air services” at Subsection 4(1) of the Act.
The International Air Services Commission is required under Subsection 15(2)(e) of the IASC Act 1992 to impose a condition which defines the extent (if any) to which an Australian carrier may use the capacity it is allocated by providing joint international air services with another Australian carrier or any other person.
This definition provides the International Air Services Commission with guidance on what may be considered joint international air services for the purpose of imposing any such conditions.
Item 6 of the amendments to the IASC Act repeals the definition of “new capacity” at Subsection 4(1) of the Act.
In practice, the only distinction between new and shelf capacity at Section 5 of the IASC Act is the process by which its availability is advertised. As this is an administrative rather than a legal or policy distinction the terms “new capacity” and “shelf capacity” have been deleted where they appear in the IASC Act, and “available capacity” as defined at Subsection 4(1) has been substituted for them.
Item 7 of the amendments to the IASC Act repeals the definition of “shelf capacity” at Subsection 4(1) of the Act. See Item 6.
Item 8 of the amendments to the IASC Act repeals Subsection 4(5) of the Act.
Subsection 4(5) stated that capacity is fully used when a carrier is operating the maximum number of flights permitted by the International Air Services Commission in its determination.
The Commission generally allocates a quantity of capacity calculated from a seat value without regard to the number of flights that might be operated. In combination with an aircraft substitution formula in a bilateral arrangement, this means that the same quantity of capacity may be exercised with differing numbers of flights, depending on the size of the aircraft used. It is therefore inappropriate for the Act to define full use of capacity in terms of flights operated.
Item 9 of the amendments to the IASC Act repeals Subsection 5(3) and 5(4) of the Act. These Subsections previously defined the distinction between new capacity and shelf capacity. This amendment is consequential to Items 6 and 7.
Item 10 of the amendments to the IASC Act repeals Subsection 6(2A) of the Act and substitutes a new Subsection.
The Subsection has been amended to declare that the International Air Services Commission may consider and decide on more than one matter in relation to particular capacity.
For example, the Commission can, at the same time, consider and decide applications by the same applicant for the renewal of a determination allocating capacity, and for the allocation of available capacity, or consider two or more applications by the same applicant, or by different applicants, for the allocation of available capacity for carriage covered by the same bilateral arrangement or combination of bilateral arrangements.
Item 11 of the amendments to the IASC Act inserts a new Subsection 7(2)(aa).
Capacity defined in bilateral arrangements on routes between Australia and its bilateral partners, or on routes between two bilateral partners with whom Australia has bilateral arrangements is usually qualified. These qualifications may include, but are not limited to, capacity or frequency restrictions or restrictions on the points to be served on the route, or a combination of both.
This amendment directs the International Air Services Commission not to allocate available capacity contrary to any restrictions on capacity in a bilateral arrangement or combination of bilateral arrangements.
Item 12 of the amendments to the IASC Act omits “new capacity” and substitutes “available capacity” at Subsection 12(1) and alters the heading to Section 12 by omitting “new” and substituting “available”. This amendment is consequential to Items 6 and 7.
Item 13 of the amendments to the IASC Act omits “new capacity” and substitutes “available capacity” at Subsection 12(2)(c)(i). This amendment is consequential to Items 6 and 7.
Item 14 of the amendments to the IASC Act repeals Section 13 of the Act, which refers to applications for shelf capacity. This amendment is consequential to Items 6 and 7.
Item 15 of the amendments to the IASC Act repeals paragraph 14(1)(c) as it refers to Sections 12 and 13 of the Act, which refer to applications for shelf and new capacity, and substitutes a new paragraph which refers only to paragraph 12(2)(b), which now applies to applications for available capacity. This amendment is consequential to Items 6 and 7.
Item 16 of the amendments to the IASC Act amends paragraph 15(2)(e) by omitting “international air services jointly” and substituting “joint international air services”.
This amendment will render this paragraph consistent with the definition of “joint international air services” to be included at Subsection 4(1) of the Act.
Item 17 of the amendments to the IASC Act omits the words “in any manner it thinks appropriate” from paragraph 27(b) as this is covered at Section 52 of the IASC Act.
Item 18 of the amendments to the IASC Act inserts a new Division 4 comprising a new Subsection 27AA dealing with the surrender of allocated capacity.
The International Air Services Commission is not able to revoke a determination allocating capacity under this Act when a carrier voluntarily hands back all of the capacity available to them under that determination, even when the carrier has no further interest in operating under that determination.
This provision ensures that a carrier can request the revocation of a determination when all the allocated capacity has been handed back and the International Air Services Commission can act on that request.
Item 19 of the amendments to the IASC Act repeals Subsection 49(2).
As all capacity available for allocation by the International Air Services Commission has been redefined as available capacity, there is no need for the distinction between new and shelf capacity to be recorded in the Register of Available Capacity. This amendment is consequential to Items 6 and 7.
Item 20 of the amendments to the IASC Act removes the requirement at Subsection 52 for notices to be issued in relation to applications for shelf capacity. This amendment is consequential to Items 6 and 7.
Item 21 of the amendments to the IASC Act omits “or Section 27” at Section 52 and substitutes Section 27 or Section 27AA”.
These amendments ensure that the procedure for issuing notices issued under 27AA is consistent with the procedure for issuing notices under other parts of the Act.
Item 22 of the amendments to the IASC Act adds a new Section 54B.
As the principal purpose of these amendments to the IASC Act is to allow the IASC to assume responsibility for allocating capacity available for Australian carriers between countries outside Australia, it is reasonable that the amendments do not affect current fifth freedom operations by Australian carriers.
The new Section will provide for an instrument, signed by the Minister, declaring a determination for five years covering current scheduled Australian carrier operations between foreign countries.
The proposed determination is similar to that used to establish Qantas’s rights to their existing capacity at the time of the formation of the International Air Services Commission.