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2019-2020
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
THE HOUSE OF REPRESENTATIVES
TRANSPORT SECURITY AMENDMENT (TESTING AND TRAINING) BILL 2020
REVISED EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Home Affairs,
the Hon. Peter Dutton MP)
THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY
THE SENATE TO THE BILL AS INTRODUCED
Transport Security Amendment (Testing and Training) Bill 2020
OUTLINE
The Transport Security Amendment (Testing and Training) Bill 2020 (the Bill) introduces
explicit powers in the Aviation Transport Security Act 2004 (the Aviation Act) for aviation
security inspectors to conduct covert security systems testing to assess compliance of aviation
industry participants with their security obligations under the Aviation Act.
The Bill introduces measures to clarify the ability of aviation security inspectors to undertake
compliance activities in all regulated locations. In particular, aviation security inspectors will
be able to conduct systems tests at locations beyond screening points in an airport terminal,
without the risk of committing an offence against other laws.
The Bill also introduces measures into the Aviation Act and the Maritime Transport and
Offshore Facilities Security Act 2003 (the Maritime Act) to provide for the implementation of
a new requirement that screening officers must have completed relevant training and hold
qualifications specified in a legislative instrument before they exercise powers or perform
screening functions at security controlled airports and security regulated maritime ports. The
Bill will enable the introduction of a screening officer training and accreditation scheme to
strengthen training requirements for screeners at airports and seaports. The scheme will
establish a national standard of competency for the screening workforce, thereby
strengthening a key part of Australia's transport security framework.
In addition, the Bill introduces measures that respond to concerns raised by the Senate
Standing Committee for the Scrutiny of Bills in Scrutiny Digest No. 1, dated 5 February
2020, and to concerns raised by three members of the Senate Standing Committee on Legal
and Constitutional Affairs in its Report on the Transport Security Amendment (Testing and
Training) Bill 2019, dated 19 February 2020.
The requirements introduced by the Bill aim to expand the testing of security systems used by
aviation industry participants to ensure compliance with the Aviation Act, and improve the
effectiveness of screening conducted at Australia's security controlled airports and security
regulated ports, by standardising and harmonising the competency levels of screening
officers.
Specifically, the Bill will:
create powers for aviation security inspectors to conduct covert testing of aviation
industry participants' aviation security systems to assess compliance with the Aviation
Act at all regulated locations, subject to requirements set out in regulations;
introduce the term 'test weapon' and provide a clear meaning by defining the term
exempt aviation security inspectors from civil or criminal liability in certain;
circumstances where they are covertly testing aviation industry participants' aviation
security systems, including where they are using test weapons to test these systems;
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insert new guiding notes clarifying that aviation security inspectors, when exercising
power under paragraph 79(2)(h) or 80(2)(f) (inserted by Items 2 and 12 of Schedule 1 to
the Bill), must ensure they do not seriously endanger the health or safety of any person,
otherwise inspectors will not be immune from civil or criminal liability;
clarify and align the legislative basis for requiring screening officers to have completed
relevant training and to hold relevant qualifications prior to exercising powers or
performing screening functions;
allow for legislative instruments to be made determining training, qualifications and other
requirements for specified screening officers relating to the exercise of powers or
performance of screening functions, and to determine requirements relating to the use of
identity cards and uniforms;
insert new reporting requirements to provide Parliamentary oversight of the use of the
Secretarial powers to exempt a class (or classes) of screening officers from one or more
training or qualification requirements; and
make technical amendments to improve the operation of the Aviation Act and Maritime
Act.
Covert security systems testing
The Bill amends the Aviation Act to establish an explicit legislative basis for aviation
security inspectors to conduct covert tests of aviation security systems at all regulated
locations under the Aviation Act. The ability for inspectors to conduct system tests in more
locations for a wider range of security measures will provide opportunities to make aviation
security systems more robust and resilient against acts of unlawful interference, including
terrorism.
The Bill also enables the Australian Government to meet recommendations accepted from the
Inspector of Transport Security and the International Civil Aviation Organization to expand
the scope of systems tests to a wider range of security measures.
As part of their duties, aviation security inspectors conduct compliance activities to assess if
security obligations set out in the Aviation Act are being met by aviation industry
participants. Systems tests mimic possible terrorist attack pathways and probe for potential
weak points in aviation security arrangements. To ensure tests are as realistic as possible,
inspectors use 'test weapons' which replicate or imitate weapons that are prohibited from
being taken on board screened air services and other 'test pieces' which simulate objects that
are prohibited from being taken on board screened air services. Test weapons, by design, are
non-functional or not operational and cannot cause harm. Systems tests using test weapons
are coordinated by the Department of Home Affairs with relevant local law enforcement
agencies.
In order to permit an aviation security inspector to perform the full complement of their
duties, the Bill amends the Aviation Act to provide:
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an express authority for aviation security inspectors to undertake systems tests at security
controlled airports and at the premises of aviation industry participants located outside the
boundary of a security controlled airport, subject to requirements set out in regulations;
an express authority for aviation security inspectors to conduct systems tests on aircraft at
security controlled airports, after giving reasonable notice to an aircraft operator and
subject to requirements set out in regulations. Tests will not be conducted when
passengers are on board, boarding or disembarking from an aircraft; and
aviation security inspectors with immunity from civil or criminal liability under a
Commonwealth, State, or Territory law when they are conducting a systems test in good
faith, and the test does not seriously endanger the health or safety of any person and result
in significant loss of, or damage to, property. The intention is to enable inspectors to
conduct systems tests in the knowledge that they are not at risk of breaching other laws,
such as those relating to bomb hoaxes.
Screening officer training
The screening officer training amendments in this Bill are in response to the Inspector of
Transport Security's inquiry into aviation and maritime transport security education and
training in Australia (the Inquiry). The Inquiry highlighted a need for standardised
qualifications, the introduction of national accreditation tests, on-the-job training, and
continuing professional development requirements for screening officers.
The Bill amends the Aviation Act and the Maritime Act to provide the Secretary of the
Department of Home Affairs (the Secretary) may, by legislative instrument, determine the
qualifications, accreditation and training for screening officers across Australia. The Bill
introduces a power for the Secretary to exempt a class of screening officers from compliance
with one or more of the requirements, where satisfied exceptional circumstances exist.
The Bill will provide that screening officers may only exercise screening officer powers, or
perform screening functions, if the officer has complied with the training, qualification and
other requirements determined by the Secretary, unless in class of screening officers that is
exempt from those requirements.
These measures will establish a national standard of competency for the screening workforce,
which will strengthen the performance of security screening activities undertaken at
Australia's security controlled airports and security regulated ports, and help ensure all
screeners in Australia are equipped to respond to current and emerging threats.
Parliamentary oversight
The Bill also amends the Aviation Act to provide the Secretary of the Department of Home
Affairs with the power to exempt a class of screening officers from training or qualification
requirements to meet unanticipated and unavoidable needs. The exemptions are explicitly not
intended for use in any circumstance other than the exceptional.
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To address concerns regarding Parliamentary oversight of the use of the Secretarial power to
exempt a class of screening officers from one or more training or qualification requirements
(set out in Items 8 and 18 of Schedule 2 to the Bill), the number of exemptions issued by the
Secretary for these purposes are to be included in the Department of Home Affairs' annual
report. This will assure Parliament that the exemption power is not being misused while
maintaining appropriate levels of discretion and confidentiality.
FINANCIAL IMPACT STATEMENT
The financial impact of the Bill is low. Any costs associated with the implementation of the
proposed amendments will be met from within existing resources of the Department of Home
Affairs.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
A Statement of Compatibility with Human Rights has been completed in relation to the
amendments in this Bill and assesses that the amendments are compatible with Australia's
human rights obligations. A copy of the Statement of Compatibility with Human Rights is at
Attachment A which follows the clause by clause explanations.
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Transport Security Amendment (Testing and Training) Bill 2020
NOTES ON PROVISIONS
Part 1--Preliminary
Section 1 Short title
1. Section 1 of the Bill provides for the short title of the Act to be the Transport Security
Amendment (Testing and Training) Act 2020.
Section 2 Commencement
2. Section 2 of the Bill sets out the times at which the Act commences. Subsection 2(1)
provides that each provision of the Act specified in column 1 of the table commences, or is
taken to have commenced, in accordance with column 2 of the table. Any other statement in
column 2 has effect according to its terms.
3. The effect of subsection 2(1), and Item 1 of the associated table, is that sections 1 to 3
of the Bill commence on the day the Act receives Royal Assent.
4. The effect of subsection 2(1), and Item 2 of the associated table, is that Schedule 1 to
the Bill commences on the day after the Act receives Royal Assent.
5. The effect of subsection 2(1), and Item 3 of the associated table, is that Schedule 2 to
the Bill commences on a single day to be fixed by Proclamation. This will permit
arrangements to be put in place to give effect to the amendments in Schedule 2. If the
provisions do not commence within the period of 6 months beginning on the day the Act
receives the Royal Assent, they will commence on the day after the end of that period.
6. The note in subsection 2(1) makes it clear that the table relates only to the provisions
of the Act as originally enacted. The table will not be amended to deal with any later
amendments to the Act.
7. Subsection 2(2) provides that any information in column 3 of the table is not part of
the Act. Information may be inserted in this column, or information in it may be edited, in
any published version of the Act. There is currently no information in column 3 of the table.
Section 3 Schedules
8. Section 3 of the Bill provides that legislation that is specified in a Schedule to this Act
is amended or repealed as set out in the applicable items in the Schedule concerned. In
addition, this clause provides that any other item in a Schedule to this Act has effect
according to its terms.
9. There are two Schedules to the Bill. Schedule 1 to the Bill makes amendments to the
Aviation Transport Security Act 2004 (the Aviation Act). Schedule 2 to the Bill makes
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amendments to the Aviation Act (items 1 to 10) and the Maritime Transport and Offshore
Facilities Security Act 2003 (the Maritime Act) (items 11 to 20).
Schedule 1--Security systems testing
Aviation Transport Security Act 2004
10. Division 2 of Part 5 of the Aviation Act establishes the legislative framework for
aviation security inspectors and describes the range of powers that they can exercise to
determine an aviation industry participant's compliance with the Aviation Act. An aviation
security inspector may be an Australian Public Service employee of the Department, or a law
enforcement officer, who has been appointed as an aviation security inspector.
11. Aviation security inspectors play a pivotal role in ensuring Australia's aviation
security systems remain resilient against terrorist attacks. As part of their duties, aviation
security inspectors conduct compliance activities to assess if security obligations set out in
the Aviation Act are being met by the aviation industry. Covert testing of an aviation industry
participant's security system using items and methods that may be used in a terrorist attack
allows the Department and industry to probe for potential weak points in aviation security
arrangements, which a person intent on causing harm may wish to exploit.
Item 1A Section 9
12. New Item 1A is an interpretive provision that inserts a new definition in section 9 of
Division 4 of Part 1 of the Aviation Transport Security Act 2004 (the Aviation Act) in relation
to the term 'test weapon'.
13. Test weapon is defined to mean a weapon of a kind that is a replica or an imitation of
another weapon. The term 'weapon' is defined elsewhere in section 9 of the Aviation Act.
Both definitions may be read together.
14. To safeguard against an unlawful interference with aviation, weapons are prohibited
from being taken on-board, or loaded onto, an aircraft. Aviation industry participants have
security systems in place to, among other things, identify and locate concealed weapons. The
efficacy of these security systems are tested by aviation security inspectors in the course of
their duties.
15. The Department issues aviation security inspectors with test pieces to conduct testing
of security systems. The use of these objects allows the Department to test the effectiveness
of aviation security arrangements, and to identify any gaps in the security measures being
implemented by industry.
16. To ensure security systems tests are as realistic as possible, a variety of test pieces are
used to conduct testing. These test pieces can be ordinary, everyday objects or 'test weapons'.
Aviation security inspectors use 'test weapons' to test a security system for its ability to
detect weapons. Test weapons are issued to aviation security inspectors by the Department
and, by design are non-functional or not operational, as they are intended to replicate or
imitate a weapon in order to avoid causing harm or injury.
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17. The purpose and effect of this amendment is to clarify that any test weapon used to
test a security system is not a functional weapon but is a replica or imitation.
Item 1 Before subsection 79(1)
18. Section 79 of Division 2 of Part 5 of the Aviation Act deals with the general powers
of aviation security inspectors.
19. Item 1 inserts a new subheading, General powers, before subsection 79(1) to make
clear that the subsection deals exclusively with the general powers that may be exercised by
aviation security inspectors in the course of the performance of their duties for the purposes
of determining whether a person is complying with the Aviation Act or investigating a
possible contravention of the Aviation Act. This amendment supports, and is consequential
to, the amendment made by Item 2 below.
Item 2 At the end of subsection 79(2)
20. Item 2 inserts a new paragraph (h) into subsection 79(2) of Division 2 of Part 5 of the
Aviation Act to expressly permit an aviation security inspector to test an aviation industry
participant's security system. An aviation security inspector's testing of a security system
may be conducted in an overt or covert manner. The chapeau to new paragraph 79(2)(h)
provides that an aviation security inspector may test a security system including by using an
item, test weapon or vehicle.
21. Subparagraphs (i), (ii) and (iii) provide that the places that aviation security inspectors
may test a security system are security controlled airports; and any area, building or vehicle
under the control of an aviation industry participant (as defined by section 9 of the Aviation
Act), including a residence, or part of a residence, if the aviation industry participant operates
from a residence or part of a residence.
22. Security systems tests are conducted by aviation security inspectors to assess whether
the aviation industry is complying with security obligations established in the Act. A security
systems test is designed to mimic possible terrorist attack pathways and to probe for potential
weak points in aviation security arrangements, which an adversary may wish to exploit. The
purpose of security screening is to prevent weapons, such as firearms and explosives, from
being placed on board an aircraft - in the passenger cabin or the cargo hold - ensuring that air
travel in Australia remains safe and secure, and responsive to possible risks posed by those
who intend to cause harm.
23. To ensure that the tests of security systems are as realistic as possible, aviation
security inspectors use test pieces which represent items that may be used to conduct
unlawful interference with aviation, including test weapons which replicate or imitate other
weapons that are prohibited from being taken on board screened air services. Test weapons,
by design, are non-functional or not operational and do not cause harm. Security systems tests
using test weapons are coordinated by the Department of Home Affairs with local law
enforcement agencies.
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24. The ability for aviation security inspectors to conduct systems tests in more locations
for a wider range of security measures will provide new opportunities to identify and respond
to any unaddressed gaps in aviation security systems so that these systems become more
robust and resilient to safeguard against acts of unlawful interference with aviation, including
acts of terrorism.
25. The effect of this amendment is an express permission for security systems testing to
be conducted in security controlled airports and any area, building or vehicle under the
control of an aviation industry participant (as defined by section 9 of the Aviation Act),
including a residence, or part of a residence, if the aviation industry participant operates from
a residence or part of a residence. For example, these locations include air cargo examination
facilities where cargo is screened and cleared for uploading onto an aircraft.
26. In addition, this amendment will also enable requirements to be prescribed for the
purposes of paragraph 79(2)(h) in the Aviation Transport Security Regulations 2005
27. Further, this amendment will insert a Note after new paragraph 79(2)(h).
28. The Note provides that an aviation security inspector must ensure that the exercise of
the power under paragraph 79(2)(h) does not seriously endanger the health or safety of any
person, or the inspector will not be immune from civil or criminal liability (see
subsection 79(9)).
29. Subsection 79(9) operates to provide aviation security inspectors with a limited
immunity from prosecution. That immunity would not be available to an aviation security
inspector if the defence was not made out. As an example, this would be the case if a 'real'
weapon was used to conduct a security systems test.
30. The purpose and effect of this amendment is to make clear that if an aviation security
inspector were to seriously endanger the health or safety of any person, for example by
sourcing and using an item that was a functional weapon to test a security system, they may
be charged with an offence under another law of the Commonwealth, the States or
Territories.
Item 2A After subsection 79(2)
31. Item 2A inserts a new subsection (2A) into section 79 of Division 2 of Part 5 of the
Aviation Act to explicitly provide that a power under paragraph 79(2)(h) (introduced by
Item 2 above) may not be exercised unless regulations prescribing requirements for
conducting tests of security systems have been made for the purposes of that paragraph and
are in force.
32. The purpose of this amendment is to prevent the exercise of the power to conduct
systems tests unless requirements for conducting tests have been prescribed in the
regulations, and are in effect.
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Item 3 Before subsection 79(3)
33. Item 3 inserts a new subheading "When notice required for exercise of powers" before
subsection 79(3) of Division 2 of Part 5 of the Aviation Act. This amendment supports, and is
consequential to, the amendment made by Item 2 above.
34. The effect of this amendment is to make clear that the subsection deals exclusively
with when notice is, or is not, required to be given to an aviation industry participant prior to
an aviation security inspector exercising one or more of the general powers in section 79 of
the Aviation Act in the course of the performance of their duties.
Item 4 At the end of subsection 79(3A)
35. Item 4 inserts a new paragraph (f) into subsection 79(3A) of Division 2 of Part 5 of
the Aviation Act to include a reference to new subparagraph 79(2)(h)(ii), inserted by Item 2,
above.
36. The purpose of this amendment is to include an aviation security inspector's testing of
security systems, in an area outside the boundaries of a security controlled airport, within the
application of subsection 79(3A).
37. The effect of this amendment is to clarify that an aviation security inspector's power
to test security systems at any time and without notice applies to conducting testing in any
area, building or vehicle under the control of an aviation industry participant that is outside
the bounds of a security controlled airport. For example, this would include an examination
facility operated by a Regulated Air Cargo Agent.
Item 5 Subsection 79(4)
38. Item 5 repeals subsection 79(4). This amendment is consequential to the amendment
made by Item 10, below, which replicates and relocates the content of the repealed subsection
79(4).
Item 6 Before subsection 79(5)
39. Item 6 inserts a new subheading "Offence" before subsection 79(5) of Division 2 of
Part 5 of the Aviation Act. This amendment supports, and is consequential to, the amendment
made by Item 2 above.
40. The purpose of this amendment is to assist in the readability of the Aviation Act and
to make it clear that the subsection is an offence provision in relation to a person engaging in
conduct that hinders or obstructs an aviation security inspector in the exercise of a power
under section 79 of the Aviation Act.
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Item 7 Paragraph 79(5)(b)
41. Item 7 amends paragraph 79(5)(b) of Division 2 of Part 5 of the Aviation Act to insert
the words "(other than paragraph (2)(h))" after the words "under this section". Subsection
79(5) is an offence provision that sets out circumstances when a person may be committing
an offence in relation to engaging in conduct which hinders or obstructs an aviation security
inspector in the exercise of a power under section 79.
42. The purpose of this amendment is to expressly exclude the circumstances described in
paragraph 79(2)(h) (inserted by the amendment in Item 2, above) from the offence provision,
where a person engages in conduct which hinders or obstructs an aviation security inspector
in the exercise of a power under section 79.
43. The effect of this amendment is to make clear that a person would not be committing
an offence where they engage in conduct that hinders or obstructs an aviation security
inspector in certain circumstances when conducting systems tests.
Item 8 Subsection 79(6)(note)
44. Item 8 omits the word "Note" and substitutes the words "Note 1" with respect to the
note following subsection 79(6). This Item makes a technical amendment which reflects the
inclusion of an additional note following subsection 79(6), made by Item 9 below.
Item 9 At the end of subsection 79(6)
45. Item 9 inserts an additional note following subsection 79(6). New note 2 refers to the
possible application of the offence of obstructing a Commonwealth public official set out in
section 149.1 of the Criminal Code.
46. Currently, all persons who have been appointed as aviation security inspectors are
Australian Public Service employees in the Department of Home Affairs. They are
Commonwealth public servants and as such are Commonwealth public officials.
Item 10 At the end of section 79
47. Item 10 inserts new subsections (8), (9), (10) and (11) into section 79 of Division 2 of
Part 5 of the Aviation Act. These new subsections deal with restrictions on the exercise of an
aviation security inspector's powers and provide an aviation security inspector with an
immunity from civil or criminal liability under a law of the Commonwealth, a State or
Territory in limited circumstances.
Restrictions on the exercise of powers and immunity
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Subsection 79(8)
48. New subsection 79(8) provides that in exercising a power under section 79 of the
Aviation Act, an aviation security inspector must not subject a person to greater indignity
than is necessary and reasonable for the exercise of the power. The effect of this amendment
is to replicate the detail of former subsection 79(4), repealed by Item 5 above.
49. The purpose of this amendment is to acknowledge that the exercise of an aviation
security inspector's powers may result in an amount of indignity for an aviation industry
participant, in the sense that in testing the effectiveness of security systems to assess
compliance with the Aviation Act, a person's proficiency at performing their security role is
also under scrutiny. The tests are not intended to cause a person any embarrassment. Their
purpose is to ensure and maintain aviation security.
Subsection 79(9)
50. New subsection 79(9) provides that an aviation security inspector is not subject to
civil or criminal liability under the law of the Commonwealth, a State or Territory, in relation
to the exercise of a power under new paragraph 79(2)(h), to the extent that the exercise of the
power is in good faith, and does not seriously endanger the health or safety of any person and
does not result in significant loss of, or serious damage to, property.
51. The purpose of this amendment is to permit an aviation security inspector to perform
the full range of their duties, including covert systems testing using a test weapon a vehicle or
other item, at a regulated location. An aviation security inspector would not be subject to civil
or criminal liability under another Commonwealth, State or Territory law if they can raise the
possibility of the defence in paragraphs 79(9)(a), (b) and (c).
52. The effect of this amendment is to expressly enable an aviation security inspector to
conduct a test and provide a defence which, if proved to the relevant standard, would provide
them with immunity from civil or criminal liability.
Evidential burden - reversal of the burden of proof
53. The guiding note following new subsection 79(9) provides that a defendant bears an
evidential burden in relation the subsection 79(9) matter for a criminal proceeding.
Subsection 79(10)
54. New subsection 79(10) provides that a person who wishes to rely on subsection
79(9) in relation to a civil proceeding bears an evidential burden in relation to that matter.
Subsection 79(11)
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55. New subsection 79(11) provides that in section 79, in relation to a matter, evidential
burden means the burden of adducing or pointing to evidence that suggests a reasonable
possibility that the matter exists or does not exist.
56. The amendments made in subsections 79(9), (10) and (11) indicate a reversal of the
evidential burden in relation to making out a defence of a matter contained in subsection
79(9), which is unusual, but not without precedent. In criminal matters the defendant would
ordinarily be entitled to the presumption of innocence and it would be for the prosecution to
adduce evidence of a matter. Similarly, generally in civil matters the evidential burden
would lie on the plaintiff with respect to all essential elements of the matter. These
amendments are a reversal of both the civil and criminal evidential burdens.
57. The reversal of the evidential burden is appropriate in this instance as the information
to raise the possibility of one or more of the elements of the defence would be, if not
peculiarly within the knowledge of the defendant, at least better known to the defendant than
to the prosecution or to any individual third party. Consequently it would be significantly
more difficult and costly for the prosecution to disprove than for the defendant to establish
the matter.
58. As an example, this becomes apparent when one considers the defence at paragraph
79(9)(a) that the defendant has exercised the power under paragraph 79(2)(h) in good faith.
Were this cast as an offence element and not as a defence, then the Crown would need to
raise evidence negativing the possibility that the defendant was exercising the paragraph
79(2)(h) power in good faith. This goes both to the defendant's state of mind and whether the
defendant was exercising the power in paragraph 79(2)(h) in the performance of their duties.
The performance of an aviation security inspector's duty must be in accordance with general
or specific directions from their superiors, and in accordance with standard operating
procedures for conducting security system testing.
59. Raising evidence negativing the possibility would be a very onerous process. In this
instance, it is prudent and sensible for a defence to require the defendant to raise evidence
indicating a good faith use of power before the Crown would need to disprove the same
beyond reasonable doubt.
60. The Guide to Framing Commonwealth Offences, Infringement Notices and
Enforcement Powers notes that an evidential burden does not completely displace the
prosecutor's burden, but only defers that burden. The defendant must point to evidence
establishing a reasonable possibility that these defences are made out.
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Item 11 Before subsection 80 (1)
61. Section 80 of Division 2 of Part 5 of the Aviation Act deals with the powers of an
aviation security inspector with respect to aircraft. This amendment supports, and is
consequential to, the amendment made to subsection 80(2) by Item 12, below.
62. Item 11 inserts a new subheading, Powers relating to aircraft, before subsection 80(1)
to make clear that the subsection deals exclusively with an aviation inspector's powers
relating to an aircraft.
63. This amendment intends to make clear that the powers set out in subsection 80(2) may
be exercised by aviation security inspectors in the course of the performance of their duty for
the purposes of determining whether a person is complying with the Aviation Act, or
investigating a possible contravention of the Aviation Act.
Item 12 At the end of subsection 80(2)
64. Subsection 80(2) of Division 2 of Part 5 of the Aviation Act sets out the powers that
an aviation security inspector may exercise in an aircraft. An aviation security inspector's
testing of an aircraft operator's security system may be conducted in an overt or covert
manner.
65. Item 12 inserts a new paragraph (f) into subsection 80(2) of the Aviation Act. New
paragraph 80(2)(f) provides a clear and express discretionary power for an aviation security
inspector to test an aircraft operator's security system including by using an item or test
weapon, to test for the detection of the item or weapon, in an aircraft if the test is conducted
while passengers are not on board the aircraft, are not in the process of boarding the aircraft,
and are not in the process of disembarking from the aircraft. Security systems testing of an
aircraft involves prior notification to the aircraft operator.
66. The purpose of this amendment is to expressly permit an aviation security inspector to
test an aircraft operator's security systems in relation to an aircraft.
67. This amendment will also enable requirements to be prescribed for the purposes of
paragraph 80(2)(f) in the Aviation Transport Security Regulations 2005.
68. Similarly to the purposes of the amendment made by item 2 above, this amendment
permits an aviation security inspector to use test pieces, including test weapons, to test the
effectiveness of aircraft crews' pre-flight checking of an aircraft prior to clearance for
boarding, and to assess compliance with security obligations under the Aviation Act. Areas
checked by cabin and ground crew include, but are not limited to, the passenger cabin,
galleys, and cargo hold of an aircraft.
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69. Where a test piece that is a test weapon is used to conduct the security systems test, it
would only be placed on an aircraft when crew and passengers are not on board. A test
weapon used in this manner would be discreetly removed from the aircraft at the conclusion
of the test, and before any passengers are permitted to board the aircraft.
70. As with item 2 above, test weapons are non-functional or not operational and do not
cause harm. Test activities using test weapons are coordinated by the Department of Home
Affairs with local law enforcement agencies.
71. This amendment also inserts a Note after paragraph 80(2)(f).
72. The Note provides that an aviation security inspector must ensure that the exercise of
the power under paragraph 80(2)(f) does not seriously endanger the health or safety of any
person, or the inspector will not be immune from civil or criminal liability (see
subsection 80(7)).
73. Subsection 80(7) operates to provide aviation security inspectors with a limited
immunity from prosecution. That immunity would not be available to an aviation security
inspector if the defence was not made out. As an example, this would be the case if a 'real'
weapon was used to conduct a security systems test.
74. The purpose and effect of this amendment is to make clear that if an aviation security
inspector were to seriously endanger the health or safety of any person, for example by
sourcing and using an item that was a functional weapon to test a security system, they may
be charged with an offence under another law of the Commonwealth, the States or
Territories.
Item 12A After subsection 80(2)
75. Item 12A inserts a new section (2A) into section 80 of Division 2 of Part 5 of the
Aviation Act to explicitly provide that a power under paragraph 80(2)(f) (introduced by Item
12 above) may not be exercised unless regulations prescribing requirements for conducting
tests of security systems have been made for the purposes of that paragraph and are in force.
76. The purpose of this amendment is to prevent the exercise of the power to conduct
system tests unless requirements for conducting tests have been prescribed in the regulations,
and are in effect.
Item 13 Before subsection 80(3)
77. Item 13 inserts a new subheading, Notice requirement, before subsection 80(3) of
Division 2 of Part 5 of the Aviation Act to clarify the purpose of the subsection.
78. Subsection 80(3) of Division 2 of Part 5 of the Aviation Act provides that an aviation
security inspector may exercise a power mentioned in subsection 80(2) after giving the
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aircraft operator reasonable notice. This amendment supports, and is consequential to, the
amendment made by Items 11 and 12 above.
Item 14 Before subsection 80(4)
79. Item 14 inserts a new subheading, Offence, before subsection 80(4) of Division 2 of
Part 5 of the Aviation Act to support the amendment made by Items 11 to 13 above.
80. The purpose of this amendment is to make clear that the subsection is an offence
provision in relation to a person engaging in conduct that hinders or obstructs an aviation
security inspector in the exercise of a power under section 80 of the Aviation Act.
Item 15 Paragraph 80(4)(b)
81. Item 15 amends paragraph 80(4)(b) of Division 2 of Part 5 of the Aviation Act to
insert the words "(other than paragraph (2)(f))" after the words "under this section".
82. The purpose of this amendment is to confirm that a person would not be committing
an offence, where they engage in conduct that hinders or obstructs an aviation security
inspector in certain circumstances.
83. The effect of this amendment is to ensure that a person who is unaware that an
aviation security inspector is conducting a test of a security system, and for example alerts
cabin crew that a person was seen to leave an item on an aircraft, would not be committing an
offence.
Item 16 Subsection 80(5)(note)
84. Item 16 omits the word "Note" and substitutes the words "Note 1" with respect to the
note following subsection 80(5) in Division 2 of Part 5 of the Aviation Act.
85. This Item makes a technical amendment which reflects the inclusion of an additional
note following subsection 80(5), made by Item 17 below.
Item 17 At the end of subsection 80(5)
86. Item 17 inserts an additional note following subsection 80(5) in Division 2 of Part 5
of the Aviation Act.
87. New note 2 offers guidance to a reader by referring to the possible application of the
offence of obstructing a Commonwealth public official set out in section 149.1 of the
Criminal Code.
88. As indicated in Item 9 above, currently all persons who have been appointed as
aviation security inspectors are Australian Public Service employees in the Department of
Home Affairs. They are Commonwealth public servants and as such are Commonwealth
public officials.
16
Item 18 At the end of section 80
89. This item inserts new subsections 80(7), (8) and (9) in Division 2 of Part 5 of the
Aviation Act. The amendments made by Item 18 provide aviation security inspectors with
immunity from civil and criminal liability under the law of the Commonwealth, a State or
Territory in relation to the exercise of a power under new paragraph 80(2)(f), introduced by
Item 12 above.
Subsection 80(7) - Immunity
90. New subsection 80(7) provides that an aviation security inspector is not subject to
civil or criminal liability under the law of the Commonwealth, a State or Territory, in relation
the exercise of a power under paragraph 80(2)(f) to the extent that the exercise of the power
is in good faith and does not seriously endanger the health or safety of any person and does
not result in significant loss of, or serious damage to, property.
91. The purpose of this amendment is to permit an aviation security inspector to perform
the full range of their duties, including covert systems testing using an item or weapon, in an
aircraft. An aviation security inspector would not be subject to civil or criminal liability under
another Commonwealth, State or Territory law if they can raise the possibility of the defence
in paragraphs 80(7)(a), (b) and (c).
92. As noted in relation to Item 12 above, the testing of a security system in an aircraft
takes place before any passengers board the aircraft, in the full knowledge of the aircraft
operator.
93. The effect of this amendment is to expressly enable an aviation security inspector to
conduct a test and provide a defence which, if proved to the relevant standard, would provide
them with immunity from civil or criminal liability.
94. The guiding note following new subsection 80(7) provides that a defendant bears an
evidential burden in relation to the subsection 80(7) matter for a criminal proceeding.
Subsection 80(8)
95. New subsection 80(8) provides that a person who wishes to rely on subsection 80(7)
in relation to a civil proceeding bears an evidential burden in relation to that matter.
Subsection 80(9)
96. New subsection 80(9) provides that in section 80, in relation to a matter, evidential
burden means the burden of adducing or pointing to evidence that suggests a reasonable
possibility that the matter exists or does not exist.
97. Similarly to the amendments made in Item 10 above, the purpose of the amendments
made by new subsections 80(8) and (9), and the guidance offered in the note following
17
subsection 80(7), is to indicate a reversal of both the civil and criminal evidential burdens
in relation to making out a defence of a matter contained in subsection 80(7).
98. The reversal of the evidential burden is appropriate in this instance as the information to
raise the possibility of the existence of one or more of the elements of the defence would
be, if not peculiarly within the knowledge of the defendant, at least better known to the
defendant than to the prosecution or to any individual third party.
99. Testing the security system in place in an aircraft can only be conducted in the course of
an aviation security inspectors' duties, and therefore the good faith element goes to both the
inspectors' state of mind and the operational support for, and direction to, conduct the test.
As the test would be conducted in the absence of passengers and cargo there could be little
to no danger to the health or safety of any person, and the test should not place any property
at risk of damage or loss. It is simpler for an aviation security inspector to raise evidence to
support the existence of the defence, than it would be for the prosecution or plaintiff, in a
criminal or civil matter, respectively.
100. The Guide to Framing Commonwealth Offences, Infringement Notices and
Enforcement Powers notes that an evidential burden does not completely displace the
prosecutor's burden, but only defers that burden. The defendant must point to evidence
establishing a reasonable possibility that these defences are made out.
18
Schedule 2--Screening officer training
Aviation Transport Security Act 2004
Item 1 Section 9
101. Item 1 inserts a new definition in section 9 of Division 4 of Part 1 of the Aviation Act,
to describe and define the concept of a screening function. Screening function is defined to
mean a function that a screening officer is authorised or required to perform under the
Aviation Act or an instrument made under the Aviation Act.
102. Security screening is conducted by screening officers, who exercise screening powers
and perform screening functions, at screening points at security controlled airports to clear
people and their personal effects to enter into a secure or sterile area.
103. For example, a screening function is performed where a person passes through a walk
through metal detector at the direction of a screening officer, or where a person's carry-on
baggage is placed on a conveyer belt to be x-rayed and the x-ray image is examined by a
screening officer.
Item 2 Section 9 (definition of screening officer)
104. Item 2 amends the definition of screening officer in section 9 of Division 4 of Part 1
of the Aviation Act to omit the words "subsection 94(1)" and substitute the words "section
94".
105. This is a technical amendment, consequential to the amendment made by Item 5
below, which repeals subsections 94(1) to (3).
Item 3 After paragraph 44(2)(a)
106. Subsection 44(2) of the Aviation Act sets out in a non-exhaustive list, the matters that
may be dealt with by regulations made under subsection 44(1) of the Aviation Act.
107. Item 3 inserts a new paragraph (aaa) in subsection 44(2) of Division 2 of Part 4 of the
Aviation Act.
108. The effect of this amendment is to include requirements in relation to the form and
issue of identity cards for screening officers as matters that may be dealt with by the Aviation
Transport Security Regulations 2005.
Item 4 Subsection 44(2) (note)
109. Item 4 repeals the note following subsection 44(2) of Division 2 of Part 4 of the
Aviation Act, and substitutes a new note. The repealed note provided that Regulations made
19
under subsection 94(2) must prescribe training and qualification requirements for screening
officers and set out requirements in relation to the form, issue and use of identity cards.
110. The new note provides that a determination made under section 94A, may specify
training and other qualification requirements for screening officers. Section 94A is inserted
into the Act by the amendment in Item 8 below which provides the authority for the
Secretary, by legislative instrument, to determine training, qualification, and other
requirements for screening officers.
111. This amendment is consequential to the amendment made by Item 8 below.
Item 5 Subsection 44(3)
112. Currently, subsection 44(3) of Division 2 of Part 4 of the Aviation Act provides that
regulations made under paragraphs (2)(a), (2)(aa), (2)(i) or (2)(j) may provide that some or all
of the matters set out in that paragraph are to be specified in written notices made by the
Secretary.
113. Item 5 inserts a reference to new paragraph 44(2)(aaa) made by Item 3 above, in
subsection 44(3). This amendment has the effect of permitting the Secretary to specify
requirements in relation to the form and issue of identity cards for screening officers in
written notices.
Item 6 Section 93
114. Item 6 amends the simplified overview of Division 5 of Part 5 of the Aviation Act
which deals with the powers and functions of screening officers.
115. The purpose of this amendment is to describe the circumstances that must exist before
a screening officer may exercise screening officer powers or perform screening functions.
The simplified overview now signposts a condition precedent to a screening officer
exercising screening officer powers or performing a screening function. Screening officers
must have met training, qualification, and other requirements determined by the Secretary,
unless the officer is exempt from complying with the requirements.
116. This amendment is consequential to the amendment made by Item 8, below.
Item 7 Subsections 94(1) to (3)
117. Item 7 repeals subsections 94(1) to (3) of Division 5 of Part 5 of the Aviation Act, and
substitutes a simplified and brief statement.
118. This amendment establishes the framework for the exercise of screening officer
powers and the performance of screening functions.
20
119. Previously, section 94 of the Aviation Act dealt with a number of matters relating to
screening officers, including setting out who is a screening officer, and where certain
requirements relating to screening officers may be set out. These requirements included
training and qualifications, identity cards, uniforms and other requirements.
120. The substituted words provide that a person who is authorised or required to conduct
screening is a screening officer. The guidance in the note following the substituted words
provides that persons are authorised or required to conduct screening under the Aviation
Transport Security Regulations 2005, and refers the reader to paragraph 44(2)(a) of the
Aviation Act.
Item 8 After section 94
121. Item 8 inserts new sections 94A, 94B, 94C and 94D in Division 5 of Part 5 of the
Aviation Act, which deals with requirements relating to screening officers.
New section 94A Requirements relating to screening officers
122. New section 94A provides the authority for the Secretary to make a determination by
legislative instrument. The determination may set training and qualification requirements, and
requirements in relation to the use of identity cards, uniforms and other requirements, for
screening officers relating to the exercise or performance of a specified power under Division
5 of the Aviation Act or a specified screening function. The guidance in the note following
new section 94A refers the reader to subsection 13(3) of the Legislation Act 2003 for
specification of screening officers by class.
123. The purpose of this amendment is to provide a legislative basis for setting the training
and qualification requirements screening officers must meet in a legislative instrument made
by the Secretary.
124. The purpose of this amendment is to allow for unified requirements, ongoing learning
and standardised competency levels which must be met by all screening officers.
125. An effect of this amendment is that the flexibility to determine new training
requirements (as training modules become available) in a legislative instrument will enable
the screening workforce to keep up to date with new ways to identify and manage emerging
risks to aviation security, and new equipment developed to address those risks. It will assist
the screening workforce to be adaptive and responsive to changes in the security screening
environment.
126. An additional effect of this amendment is that a the Secretary may determine the
screening officers who may perform particular screening functions or exercise particular
screening officer powers according to the qualification they hold, or the training they have
completed.
21
New section 94B Exemption from requirements relating to screening officers
127. New subsection 94B(1) provides the authority for the Secretary, by writing, to exempt
a class of screening officers from one or more of the requirements determined under section
94A, if the Secretary is satisfied that exceptional circumstances exist.
128. New subsection 94B(2) provides that an exemption made under subsection 94B(1)
may be subject to specified conditions. For example, a condition may be that a particular
class of screening officers is only exempt from one of the requirements determined under
section 94A, or that the exemption is only in force at a particular airport, or that the
exemption is only in force until a specified date or time, or that the exemption is only in force
until an event occurs.
129. An exemption made by the Secretary in writing for section 94B is not a legislative
instrument in accordance with paragraph (a) of Item 5 of the table in section 7 of the
Legislation (Exemptions and Other Matters) Regulation 2015.
130. The purpose of this amendment is to permit limited exemptions from meeting one or
more of the requirements determined under section 94A to a small group or groups of
screening officers in circumstances that the Secretary is satisfied are exceptional.
131. These exemptions may be of a sensitive nature, and may indicate a situation that may
be subject to exploitation by persons intent on causing an unlawful interference with aviation,
or aviation infrastructure, as a consequence it is imperative to restrict details of exemptions.
132. For example, there may be an exemption in place in relation to training or
qualification requirements for a class of screening officer operating from a particular airport.
This may expose that airport, or aircraft departing from that airport, to vulnerability to an
attack. In order to reduce the risk of information of this type being exploited by an adversary,
an exemption made in writing by the Secretary would not be a legislative instrument and
therefore would not be published.
New section 94C Exercise of powers and performance of screening functions by screening
officers
133. New subsection 94C(1) provides that a screening officer may only exercise a power
under Division 5 of Part 5 of the Aviation Act or perform a screening function if the
screening officer has met requirements determined for paragraph 94A(a) that relates to the
exercise or performance of the power or functions, and for which the screening officer is not
exempt under section 94B.
134. The purpose of this amendment is to preclude or limit the exercise of screening officer
powers (under Division 5 of the Aviation Act), or limit the performance of screening
functions, at a security controlled airport to a screening officer who has completed the
relevant training and holds the relevant qualifications or meets other requirements determined
22
by the Secretary, unless the Secretary has exempted that screening officer from meeting those
requirements.
135. New subsection 94C(2) provides that in exercising a power under Division 5 of the
Aviation Act, or performing a screening function, a screening officer must not use more
force, or subject a person to greater indignity, than is necessary and reasonable.
136. The purpose of this amendment is to acknowledge that some screening powers and
functions require a level of force or an amount of indignity for the person being screened.
137. For example where a frisk search is conducted on a person after triggering the walk-
through metal detector alarm, or where a request is made that a person remove an outer
garment so that they can be checked by an explosive trace device, a screening officer is not
permitted to use more force than necessary or subject a person to a greater level of indignity
than is required to conduct the search or perform the check.
138. The amendment made by subsection 94C(2) also mirrors the content of former section
97, which is being repealed by Item 9 below.
139. The effect of new section 94C is to combine provisions that preclude or limit the
exercise of screening officer powers (under Division 5 of the Aviation Act), or the
performance of screening functions, at a security controlled airport.
140. The amendments made by Item 8 allow for the harmonisation of education and
training requirements for screening officers.
New section 94D Report on number of exemptions
141. New section 94D provides that the annual report prepared by the Secretary and given
to the Minister under section 46 of the Public Governance, Performance and Accountability
Act 2013 for a period must include the number of exemptions given by the Secretary under
subsection 94B(1) in that period.
142. This amendment would provide Parliamentary oversight of the use of the Secretarial
power to exempt a class of screening officers from one or more training or qualification
requirements set out in section 94B of the Aviation Act.
143. The power to exempt a person from training or qualification requirements is intended
to meet unanticipated and unavoidable needs. The exemptions are explicitly not intended for
use in any circumstance other than the exceptional.
144. One example of an exceptional circumstance that would prompt an exemption being
given is a global pandemic, where the only local institution offering the training has shut
down, or if the class of screening officer cannot attend tutorials because of local movement
restrictions. An exemption might be given for the period of time that attendance is impossible
or until arrangements can be made for the training to be offered entirely online.
23
145. Another example might be for an airport in a regional area, where the circumstances
of the region and screening officers must be taken into account. If the illness of a trained
screener means the only other experienced - but not 'accredited' screener present at the
airport is unable to make decisions an exemption may be put in place until such time as the ill
screening officer has received treatment and recovered and can attend work, or until a trained
and accredited screening officer can be recruited to undertake that role.
146. In either of those circumstances, an exemption would permit the continued operation
of commercial aviation in the area, and would prevent any screening officer performing their
function in breach of training and qualification requirements.
147. As the powers are only to be exercised in exceptional circumstances, large numbers of
exemptions are not anticipated. This limitation on the detail to be divulged is considered to be
appropriate in the circumstances.
148. The purpose of this is amendment is to provide assurance to parliament that the
exemption power is not being misused while maintaining appropriate levels of discretion and
confidentiality that would be needed to ensure that an adversary cannot exploit the situation.
149. The effect of this amendment is that Parliament would have appropriate oversight of
the exercise of the exemption, to the extent that the number of exemptions issued by the
Secretary for these purposes are to be included in the Department of Home Affairs' annual
report.
Item 9 Section 97
150. Item 9 repeals section 97 in Division 5 of Part 5 of the Aviation Act. Prior to this
amendment, section 97 provided that in exercising a power under this Division, a screening
officer must not use more force, or subject a person to greater indignity, than is necessary and
reasonable.
151. This amendment is consequential to the amendment in Item 8 above, which mirrors
the content of former section 97in new subsection 94C(2).
Item 10 After paragraph 127(2)(a)
152. The Secretary of the Department of Home Affairs has a number of powers and
functions under the Aviation Act. Section 127 of Part 10 of the Aviation Act deals with the
delegation of the Secretary's delegable powers and functions under the Act.
153. Subsection 127(1) permits the delegation of any or all of the Secretary's powers to
SES employees and acting SES employees in the Department, and SES employees in the
Attorney-General's Department, or to an Agency Head of an Agency that carries on activities
that relate to national security.
154. Item 10 inserts a new paragraph (aa) into subsection 127(2) to include a reference to
new sections 94A and 94B.
24
155. The purpose of this amendment is so that, should the Secretary decide to delegate the
power to determine the training, qualifications and other requirements for screening officers,
or to make exemptions to those requirements, out of administrative necessity the power may
only be delegated to a person described in subsection 127(1).
156. The effect of this amendment is to provide that the powers may be delegated to a
suitably high level employee or a relevant Agency head and to expressly exclude the powers
in sections 94A and 94B from those that may be delegated to APS employees in the
Department.
Maritime Transport and Offshore Facilities Security Act 2003
Item 11 Section 10
157. Item 11 inserts a new definition in section 10 of the Maritime Act, to describe and
define the concept of screening function. Screening function is defined to mean a function
that a screening officer is authorised or required to perform under the Maritime Act, or an
instrument made under the Maritime Act.
158. Security screening is conducted by screening officers, who exercise screening powers
and perform screening functions, at screening points at security regulated maritime ports to
clear people and their personal effects to enter into a secure or sterile area.
Item 12 Section 10 (definition of screening officer)
159. Item 12 amends the definition of screening officer in section 10 of Division 4 of Part
1 of the Maritime Act to omit the words "subsection 165(1)" and substitute the words
"section 165".
160. This is a technical amendment, consequential to the amendment made by Item 17
below, which repeals subsections 165(1) to (3).
Item 13 After paragraph 119(2)(a)
161. Subsection 119(2) of Division 2 of Part 7 of the Maritime Act sets out in a non-
exhaustive list, the matters that may be dealt with by regulations made under subsection
119(1) of the Maritime Act.
162. Item 13 inserts a new paragraph (aa) in subsection 119(2).
163. The purpose and effect of this amendment is to include requirements in relation to the
form and issue of identity cards for screening officers as matters that may be dealt with by the
Maritime Transport and Offshore Facility Security Regulations 2003.
25
Item 14 Subsection 119(2) (note)
164. Item 14 repeals the note following subsection 119(2) of Division 2 of Part 7 of the
Maritime Act, and substitutes a new note. The repealed note provided that Regulations made
under subsection 119(2) must prescribe training and qualification requirements for screening
officers and set out requirements in relation to the form, issue and use of identity cards.
165. The new note provides that a determination made under section 165A, may specify
training and other qualification requirements for screening officers. This amendment is
consequential to the amendment made by Item 18 below.
166. Section 165A (inserted into the Act by the amendment in Item 18 below) provides the
authority for the Secretary, by legislative instrument, to determine training, qualification, and
other requirements for screening officers.
Item 15 Subsection 119(3)
167. Currently, subsection 119(3) of Division 2 of Part 7 of the Maritime Act provides that
regulations made under paragraphs 119(2)(a) or (2)(k) may provide that some or all of the
matters set out in that paragraph are to be specified in written notices made by the Secretary.
168. Item 5 inserts a reference to new paragraph 119(2)(aa) made by Item 13 above, in
subsection 119(3). This amendment has the effect of permitting the Secretary to specify
requirements in relation to the form and issue of identity cards for screening officers in
written notices.
Item 16 Section 164
169. Item 16 amends the simplified overview of Division 6 of Part 8 of the Maritime Act
which deals with the powers and functions of screening officers.
170. This amendment deals with the circumstances that must exist before a screening
officer may exercise screening officer powers or perform screening functions. The simplified
overview now signposts a condition precedent to a screening officer exercising screening
officer powers or performing a screening function, to screening officers who have met
training, qualification, and other requirements determined by the Secretary, unless the officer
is exempt from complying with the requirements.
171. This amendment is consequential to the amendment made by Item 18, below.
26
Item 17 Subsections 165(1) to (3)
172. Item 17 repeals subsections 165(1) to (3) of Division 6 of Part 8 of the Maritime Act,
and substitutes the simplified and brief statement, that a person who is authorised or required
to conduct screening is a screening officer.
173. Previously, section 165 of the Maritime Act dealt with a number of matters relating to
screening officers, including setting out who is a screening officer, and where certain
requirements relating to screening officers may be prescribed. These requirements included
training and qualifications, identity cards, uniforms and other requirements.
174. The purpose of the substituted words is to provide that a person who is authorised or
required to conduct screening, is a screening officer.
175. The guidance in the note following the substituted words provides that persons are
authorised or required to conduct screening under the Maritime Transport and Offshore
Facility Security Regulations 2003, and refers the reader to paragraph 119(2)(a) of the
Maritime Act.
Item 18 After section 165
176. Item 18 inserts a new sections 165A, 165B, 165C and 165D in Division 6 of Part 8 of
the Maritime Act, which deals with requirements relating to screening officers.
177. The purpose of this amendment is to combine provisions that limit or preclude the
exercise of screening officer powers or the performance of screening functions, at a security
regulated port.
New section 165A Requirements relating to screening officers
178. New section 165A provides the authority for the Secretary to make a determination by
legislative instrument. The determination may set training and qualification requirements, and
requirements in relation to the use of identity cards, uniforms and other requirements, for
screening officers relating to the exercise or performance of a specified power under Division
6 of Part 8 of the Maritime Act or a specified screening function. The guidance in the note
following new section 165A refers the reader to subsection 13(3) of the Legislation Act 2003
for specification of screening officers by class.
179. This amendment has the effect that the determination may also specify screening
officers who may perform particular screening functions or exercise particular screening
officer powers according to the qualification they hold, or the training they have completed.
27
180. The purpose of this amendment is to provide a legislative basis for updating the
training and qualification requirements of screening officers, to raise the standard for
qualification, ongoing education and competency levels required of screening officers.
New section 165B Exemption from requirements relating to screening officers
181. New subsection 165B(1) provides the authority for the Secretary, by writing, to
exempt a class of screening officers from one or more of the requirements determined under
section 165A, if the Secretary is satisfied that exceptional circumstances exist.
182. New subsection 165B(2) provides that an exemption made under subsection 165B(1)
may be subject to certain conditions. For example, a condition may be that a particular class
of screening officer is only exempt from one of the requirements determined for section
165A, or that the exemption is only in force at a particular maritime port, or that the
exemption is only in force until a specified date or time, or that the exemption is only in force
until an event occurs.
183. An exemption made by the Secretary in writing for section 165B is not a legislative
instrument in accordance with paragraph (a) of Item 21 of the table in section 7 of the
Legislation (Exemptions and Other Matters) Regulation 2015.
184. The purpose of this amendment is to permit limited exemptions from meeting one or
more of the requirements determined under section 165A to a small group or groups of
screening officers in circumstances that the Secretary is satisfied are exceptional. These
exemptions may be of a sensitive nature, and may indicate a situation that may be subject to
exploitation by persons intent on causing an unlawful interference with maritime transport, or
maritime infrastructure or offshore facilities, as a consequence it is imperative to restrict
details of exemptions.
185. For example, there may be an exemption in place in relation to training or
qualification requirements for a class of screening officers operating from a particular
maritime port. This may expose that port, or vessels departing from that port, to vulnerability
to an attack. In order to reduce the risk of information of this type being exploited by an
adversary, an exemption made in writing by the Secretary would not be a legislative
instrument and therefore would not be published.
New section 165C Exercise of powers and performance of screening functions by screening
officers
186. New subsection 165C(1) provides that a screening officer may only exercise a power
under Division 6 of Part 8 of the Maritime Act or perform a screening function if the
screening officer has met the requirements determined for paragraph 165A(a) that relates to
the exercise or performance of the power or functions, and for which the screening officer is
not exempt under section 165B.
28
187. The purpose of this amendment is to preclude or limit the exercise of screening officer
powers (under Division 6 of the Maritime Act), or the performance of screening functions, at
a security regulated maritime port to a screening officer who has completed the relevant
training and holds the relevant qualifications or meets other requirements determined by the
Secretary, unless the Secretary has exempted that screening officer from meeting those
requirements.
188. New subsection 165C(2) provides that in exercising a power under Division 6 of the
Maritime Act, or performing a screening function, a screening officer must not use more
force, or subject a person to greater indignity, than is necessary and reasonable.
189. The purpose of this amendment is to acknowledge that some screening powers and
functions require a level of force or an amount of indignity for the person being screened. For
example where a frisk search is conducted on a person after triggering the walk-through
metal detector alarm, or where a person undergoes explosive trace detection, a screening
officer is not permitted to use more force than necessary or subject a person to a greater level
of indignity than is required to conduct the search or perform the check.
190. The amendment made by subsection 165C(2) also mirrors the content of former
section 168, which is being repealed by Item 19 below.
191. The effect of new section 165C is to combine provisions that preclude or limit the
exercise of screening officer powers (under Division 6 of the Maritime Act), or the
performance of screening functions, at a security regulated maritime port.
192. The amendments made by Item 18 allow for the harmonisation of the education,
training and accreditation requirements for screening officers.
New section 165D- Report on number of exemptions
193. New section 165D provides that the annual report prepared by the Secretary and given
to the Minister under section 46 of the Public Governance, Performance and Accountability
Act 2013 for a period must include the number of exemptions given by the Secretary under
subsection 94B(1) in that period.
194. This amendment would provide Parliamentary oversight of the use of the Secretarial
power to exempt a class of screening officers from one or more training or qualification
requirements set out in section 94B of the Aviation Act.
195. The power to exempt a person from training or qualification requirements is intended
to meet unanticipated and unavoidable needs. The exemptions are explicitly not intended for
use in any circumstance other than the exceptional.
196. One example of an exceptional circumstance that would prompt an exemption being
given is a global pandemic, where the only local institution offering the training has shut
29
down, or if the class of screening officer cannot attend tutorials because of local movement
restrictions. An exemption might be given for the period of time that attendance is impossible
or until arrangements can be made for accreditation for the training to be offered online.
197. Another example might be for an airport in a regional area, where the circumstances
of the region and screening officers must be taken into account. If the illness of a trained and
accredited screener means the only other experienced - but not 'accredited' as having
completed formal training- screener cannot attend a training institution, or cannot take the
necessary time off to be accredited. An exemption may be put in place until such time as the
ill screening officer has received treatment and recovered and can attend work, or until a
trained and accredited screening officer can be recruited to undertake that role.
198. In either of those circumstances, an exemption would permit the continued operation
of commercial aviation in the area, and would prevent any screening officer performing their
function in breach of training and qualification requirements.
199. As the powers are only to be exercised in exceptional circumstances, large numbers of
exemptions are not anticipated. This limitation on the detail to be divulged is considered to be
appropriate in the circumstances.
200. The purpose of this is amendment is to provide assurance to Parliament that the
exemption power is not being misused while maintaining appropriate levels of discretion and
confidentiality that would be needed to ensure that an adversary cannot exploit the situation.
201. The effect of this amendment is that Parliament would have appropriate oversight of
the exercise of the exemption, to the extent that the number of exemptions issued by the
Secretary for these purposes are to be included in the Department of Home Affairs' annual
report.
Item 19 Section 168
202. Item 19 repeals section 168. This amendment is consequential to the amendment
made by new subsection 165A(2), in item 18 above.
Item 20 Subsection 202(2)
203. The Secretary of the Department of Home Affairs has a number of powers and
functions under the Maritime Act. Section 202 of Part 13 of the Maritime Act deals with the
delegation of the Secretary's delegable powers and functions under the Act. Subsection
202(1) permits the delegation of all or any of the Secretary's powers to SES employees and
acting SES employees in the Department, or to an Agency Head of an Agency that carries on
activities that relate to national security.
204. Subsection 202(2) deals with the powers and functions that the Secretary may, and
may not, delegate to APS employees in the Department.
30
205. Item 20 amends subsection 202(2) to insert the words "sections 165A or 165B or"
before the words "Division 3 of Part 11".
206. The effect of this amendment is to provide that the powers may be delegated to a
suitably high level employee or a relevant Agency head and to expressly exclude the powers
in sections 165A and 165B from those that may be delegated to APS employees in the
Department.
207. The purpose of this amendment is so that, if the Secretary decides to delegate the
power to determine the training, qualifications and other requirements for screening officers,
or to make exemptions to those requirements, out of administrative necessity the power may
be delegated to a person described in subsection 202(1).
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ATTACHMENT
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Transport Security Amendment (Testing and Training) Bill 2020
1. The Transport Security Amendment (Testing and Training) Bill 2020 (the Bill) is
compatible with the human rights and freedoms recognised or declared in the international
instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
2. The Bill amends the Maritime Transport and Offshore Facilities Security Act 2003
(Maritime Act) and the Aviation Transport Security Act 2004 (Aviation Act).
3. The amendments clarify the ability of aviation security inspectors to undertake their
regulatory compliance activities. The amendments also introduce legislative settings needed
to support the implementation of a strengthened education, training and accreditation
program for aviation and maritime screening officers.
Schedule 1: Security systems testing
4. As a party to the Convention on International Civil Aviation (Chicago Convention)
(Annex 17 - Safeguarding International Civil Aviation Against Acts of Unlawful
Interference) and for compliance with Australia's national civil aviation security program,
Australia is required to arrange for security audits, tests, surveys and inspections to be
conducted on a regular basis. The Bill introduces provisions to the Aviation Act, intended to
protect aviation security inspectors who conduct system test activities in compliance with this
Convention. Such provisions are necessary because in operating such activities, inspectors
may breach some Federal, State and Territory laws. For example, they may breach offences
in relation to bomb hoaxes or the concealment of weapons. The intention is to protect
inspectors from the possibility of liability for civil or criminal prosecution when they are
conducting their duties in good faith and where that conduct does not seriously endanger the
health or safety of any person, and does not result in significant loss of, or serious damage to,
property.
5. The amendments also clarify that in exercising these powers, aviation security
inspectors must not subject a person to greater indignity than necessary and reasonable for the
exercise of the power.
Schedule 2: Screening officer training
6. The Bill will insert new provisions into the Maritime Act and Aviation Act that allow
the Secretary of the Department of Home Affairs (the Secretary) to prescribe screening
officer requirements by legislative instrument. The requirements, including measures relating
to qualifications, training, uniforms and identification, are currently outlined in regulations.
This change will allow updates to be made more efficiently in response to changes in the
security environment.
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7. The Bill also inserts new provisions into the Maritime Act and Aviation Act, so the
Acts specify that only screening officers who have completed the relevant training and/or
accreditation will be authorised to exercise specific powers and conduct screening functions.
Currently, an individual is automatically conferred legislated powers upon being authorised
as a screening officer.
8. Finally, the Bill amends the Maritime Act and Aviation Act, so that the Secretary will
be able to vary or exempt an individual or classes of people from one or more training or
accreditation requirements in exceptional circumstances, and apply specific conditions to
such requirements if necessary. For example, the Secretary may need to exempt screening
officers when transitioning new equipment and the officers are awaiting the next scheduled
training.
Human rights implications
9. The Bill engages the following human rights:
Right to equality and non-discrimination
10. Article 26 of the International Covenant to Civil and Political Rights (ICCPR) states:
All persons are equal before the law and are entitled without any discrimination to
the equal protection of the law. In this respect, the law shall prohibit any
discrimination and guarantee to all persons equal and effective protection against
discrimination on any ground such as race, colour, sex, language, religion, political
or other opinion, national or social origin, property, birth or other status.
Schedule 1: Security systems testing
11. These new provisions to the Aviation Act engage with article 26 of the ICCPR
because they allow for differential treatment of aviation security inspectors by excluding
them from being prosecuted for certain civil and criminal offences during the course of their
duties. Derogation from the obligation under article 26 of the ICCPR is permissible under
international law where such derogation is reasonable, justifiable and proportionate to
achieving a legitimate State objective. The differential treatment, as introduced by these new
provisions, allow aviation security inspectors to conduct system testing in good faith and
without fear of prosecution. Without such provisions, aviation security inspectors could not
conduct such system testing for fear of prosecution, and this would be to the detriment of
Australia's aviation security environment. These provisions are important because they not
only allow Australia to abide by our obligations under the Chicago Convention, but also
ensure the maintenance of the integrity of Australia's aviation security environment. The
differential treatment under these new provisions is therefore consistent with article 26 of the
ICCPR as the new provisions are reasonable, proportionate and justifiable to ensure the
maintenance of the integrity of Australia's aviation security environment.
Schedule 2: Screening officer training
12. These new provisions create the power in the Aviation Act and Maritime Act for the
Secretary to vary or exempt classes of people from elements of the accreditation, training and
qualification requirements. These engage with article 26 of the ICCPR because the provisions
potentially allow for differential treatment of screening officers. This differential treatment is
required to allow flexibility based on circumstances and to ensure there are no gaps within
the Australian maritime and aviation security environment. As such, the differential treatment
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under these provisions is reasonable, proportionate and justifiable to ensure the integrity of
screening can be maintained across Australia with sufficient flexibility to adapt to changes to
the aviation and maritime security environment.
Conclusion
13. The Bill is compatible with human rights because it will assist to maintain the
integrity of Australia's aviation and maritime security. To the extent that the Bill may limit
human rights, those limitations are reasonable, necessary and proportionate.
Hon Peter Dutton MP, Minister for Home Affairs
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