EXPLANATORY STATEMENT

 

Select Legislative Instrument 2009 No. 172

 

 

Issued by the Authority of the Minister for Infrastructure, Transport, Regional Development and Local Government

 

Aviation Transport Security Act 2004

Aviation Transport Security Amendment Regulations 2009 (No. 3)

The Aviation Transport Security Act 2004 (the Act) establishes a regulatory framework to protect the security of civil aviation in Australia.

 

Section 133 of the Act provides that the Governor‑General may make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Act.

More specifically, section 30 of the Act allows the Secretary of the Department of Infrastructure, Transport, Regional Development and Local Government (the Department) to establish airside security zones within the airside area of an airport. Subsection 30(3) of the Act provides that the purpose of these zones is to establish specific zones in the airside area of a security controlled airport (SCA) which will have stricter and more specialised controls than those which generally apply to the airside area. Section 36 of the Act provides, in part, that the Regulations may outline the requirements for each type of airside security zones.

Part 4, Division 2 of the Act establishes the requirements that persons, goods and vehicles are screened and cleared before boarding an aircraft or entering an area or zone within a SCA.

The Aviation Transport Security Regulations 2005 (the Regulations) will be amended to implement the enhanced airside inspection regime, to introduce a comprehensive regime for the inspection of all airport staff, goods and vehicles entering and leaving airside at Australian airports.

The amendments give effect to a recommendation of Sir John Wheeler’s report, An Independent Review of Aviation Security and Policing for the Government of Australia (the Wheeler Review) released in September 2005. Sir John Wheeler recommended that the Department prepare regulations so that airports ensure that all those entering airside secure areas at certain airports in connection with work responsibilities should be subject to screening each time they enter, and potentially subject each time they leave, the secure area.

 

The concept of airside inspection is also contained in the International Civil Aviation Organisation (ICAO) Annex 17, which proclaims that member states must ensure that persons granted access to security restricted areas (SRAs) must be screened. The amendments however, go beyond the ICAO standard to ensure that the Australian aviation security regime retains its robust nature.

Sections 16, 30, 35(1), 36 (1), and 44 of the Act provide the regulation making powers for the airside inspection regime.

Attachment A explains the scope of the amendment to the Regulations.

Details of the amendments to the Regulations are set out in Attachment B.

 

The Regulations are legislative instruments for the purposes of the Legislative Instruments Act 2003.

 

The amendments contained in the Aviation Transport Security Amendment Regulations 2009 (No. 3) commenced on the day after they were registered on the Federal Register of Legislative Instruments.

These amendments have been settled in consultation with relevant Government agencies, namely, the Attorney-General’s Department, the Australian Customs and Border Protection Service, the Department of Immigration and Citizenship, the Australian Quarantine and Inspection Service, and the Australian Federal Police.

 

Wide consultation has been undertaken over an extended period of time with industry and key stakeholders, including the Regulatory Working Group established through the Aviation Security Advisory Forum which is the Department’s primary forum through which senior representatives from industry and government share and discuss views on aviation security matters of an operational, legal, policy and regulatory nature.

ATTACHMENT A

Scope of the Regulations

The Regulations require all persons, and their possessions, vehicles and goods entering the enhanced inspection area (EIA) to be searched for the presence of weapons, explosives and items that could be used for unlawful interference with aviation (other than tools of trade). The primary focus of inspection is to prevent actions that might constitute unlawful interference with aviation.

The airside inspection policy model consists of security inspection of all people, goods and vehicles entering an EIA for the purpose of preventing carriage of weapons or explosives or other items that might be used to interfere with an aircraft. This would be the responsibility of the transport security program (TSP) holder.

Prior to the commencement of the amendments, interim airside inspection measures were in place at the major eleven airports which are required to establish EIAs, and each airport has procedures in place that prevent unauthorised access to an EIA. The amendments to the Regulations provide a permanent regulatory framework for operators of SCAs to implement airside inspection arrangements, complementary to the arrangements in place managed through their TSPs.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ATTACHMENT B

 

Details of the Aviation Transport Security Amendment Regulations 2009 (No. 3)

Regulation 1 – Name of Regulations

 

The title of the Regulations is the Aviation Transport Security Amendment Regulations 2009 (No. 3).

 

Regulation 2 – Commencement

 

This regulation provides for the Regulations to commence on the day after they are registered.

 

Regulation 3 – Amendment of Aviation Transport Security Regulations 2005

 

The Aviation Transport Security Regulations 2005 are amended as set out in Schedule 1.

 

Schedule 1 – Amendments

 

Item [1] – After subregulation 2.14(2)

 

Under section 12 of the Act, certain aviation industry participants are required to have a TSP, and this includes an airport operator of a SCA. Division 2.2 of Part 2 of the Regulations sets out the content requirements for a TSP of operators of a SCA.

 

Item [1] inserts a new subregulation 2.14(3) which provides that where an EIA is established at an airport, then the airport operator’s TSP must set out the measures and procedures that are used to prevent unauthorised access to the EIA.

 

Item [2] – After regulation 2.18

Item [2] inserts a new regulation 2.18A which sets out additional TSP requirements for the eleven listed airports. If a screened air service operates at one of the eleven SCAs, then the TSP must set out the measures, equipment and procedures for how screening will be conducted in an EIA, and include the following;

§         the locations where the screening will be undertaken;

§         the details of the screening equipment that will be used, and of the screening officers that will be operating the equipment;

§         the details of the training that will be provided to those screening officers; and

§         the measures that will be taken when responding to the detection of weapons.

In relation to the training requirements of screening officers, subregulation 2.18A(3) provides that the training provided must meet the training objectives that are outlined in paragraphs 5.06(1)(d) and (e) of the Regulations.

Finally, subregulation 2.18A(4) provides that in those circumstances where it is not the responsibility of an airport operator to conduct screening in an EIA then their TSP must specify the screening authority that is responsible for carrying out the screening in the designated area.

Item [3] – After subregulation 2.32(2)

Under section 12 of the Act, certain aviation industry participants are required to have a TSP, and this includes an aircraft operator. Division 2.3 of the Regulations sets out the TSP content requirements for aircraft operators. For the purposes of this division, an aircraft operator is a reference to an operator that conducts a prescribed air service.

More specifically, existing regulation 2.32 sets out the requirements for what an airport operator’s TSP must contain for the purposes of physical security and access control to an operator’s facilities at the airport.

Item [3] inserts new subregulations 2.32(3) and 2.32 (4). Subregulation 2.32(3) provides that where the facilities are next to, or form part of an EIA and where the operator controls a designated access point to the area, then the TSP must outline the procedures regarding surveillance measures which will be used to identify and prevent unauthorised access to the area.

Subregulation 2.32(4) defines a designated access point as an access point which is designated by the operator.

Item [4] – After regulation 2.35

Item [4] inserts new regulation 2.35A, which effectively imposes the same TSP obligations on aircraft operators as those outlined in regulation 2.18A (item [2]), and apply to operators of prescribed air services.

Item [5] – Regulation 3.01

Currently, regulation 3.01 establishes a security restricted area (SRA) as a type of airside security zone.

Item [5] amends existing regulation 3.01 to include the EIA as a type of airside security zone for the purposes of section 31 of the Act.

Item [6] – Before regulation 3.13

Item [6] inserts new Subdivision 3.3.1, titled “Preliminary”.

Item [7] - Regulation 3.13, before definition of exempt person

Division 3.3 of the Regulations prescribes for the control of airside areas and zones in relation to physical security.

Item [7] inserts the definition for the term exempt goods for the purposes of Division 3, the airside inspection regime. Exempt goods are goods exempt from screening in the EIA and include:

§         baggage that has been cleared;

§         cargo that has been cleared;

§         goods which are provided by a supplier that has an arrangement with an aircraft operator, that is, a regular supplier to an aircraft operator;

§         goods which have not been accessible to unauthorised persons from the moment the goods were accepted from the supplier by the operator of the airport, until the start of a screened air service when the goods are taken on board that aircraft;

§         duty free items that are for the purposes of sale by an aircraft operator, or a duty free shop operating from the airport, and, duty free items that have been authorised by the airport operator for the airport as being items needed for delivery to an aircraft located in the area, or, as items that have to be carried through the area for delivery;

§         items that are carried by a private security contractor and are contained in a armoured vehicle which displays the logo of the contractor;

§         items that remain under the lawful authority of a uniformed member of the contractor’s staff and who properly display a valid red Aviation Security Identification Card (ASIC), if they are required to do so;

§         items that need to be delivered to, or carried through the EIA with the consent of the airport operator;

§         goods which are under the lawful control of a law enforcement officer, a member of the Australian Defence Force (ADF), and a member of a visiting force on training exercises or operations with the ADF; and

§         goods that the Secretary of the Department has provided under paragraph 42(2)(b) of the Act that do not have to be screened.

Item [8] – Regulation 3.13 after definition of exempt person

Item [8] inserts the definition for the term exempt vehicles for the purposes of Division 3 of the Regulations. Exempt vehicles are also exempt from the screening process in the EIA.

The vehicles which will be exempt from screening in the EIA include:

§         a vehicle that has been screened at an EIA, and since being allowed to pass through the screening point the vehicle has not left the airside area of the airport;

§         a vehicle carrying the crew and passengers of an aircraft for the purposes of boarding the aircraft if they have already been screened;

§         a vehicle used for the official duties of an exempt person; and

§         an armoured vehicle which is carrying exempt goods.

Essentially, the inspection of vehicles will consist of inspections of the person driving the vehicle, any passengers in the vehicle and an inspection of the vehicle itself. All vehicles, including vehicles of Australian Federal Police, Australian Customs and Border Protection Service and Australian Quarantine Inspection Service will be inspected.

Item [9] – Regulation 3.14

Item [9] replaces the current regulation 3.14 by expanding the scope of the common boundaries of areas and zones, and the signage that is required for those common boundaries:

§         If there is a common boundary for an airside area and an EIA, then the requirements for signs are those applicable to the EIA only.

§         If there is a common boundary for an airside area and a SRA, then the requirements for signs are those applicable to the SRA only.

§         If there is a common boundary for an EIA and a SRA, then the only requirements for signs are those applicable to the SRA only.

Item [10] – After regulation 3.15

Item [10] inserts new subdivision 3.3.2 titled, “Security restricted area”.

Item [11] – After regulation 3.16

Item [11] inserts new subdivision 3.3.3 titled, “Enhanced inspection area”.

3.16A Purpose and application of Subdivision

Now regulation 3.16A establishes the purpose and application of subdivision 3.3.3 of the Regulations. The purpose of this subdivision is to outline the additional security requirements that will apply to an EIA within an airside security zone, and will apply to those airside areas of the airport where the Secretary has established a zone as an EIA.

The note under subregulation 3.16A(2) refers to regulation 3.01 which prescribes an EIA as a type of airside security zone. It also refers to section 30 of the Act which gives the power to the Secretary to establish an EIA within the airside area of a SCA by written notice given to the airport operator.


3.16B Requirements for enhanced inspection area

This regulation expands the scope of regulation 3.16, “Additional security requirements for security restricted areas” so that the references to SRAs in this regulation will also apply to EIAs. The effect of this amendment is that the requirements which apply to SRAs will also apply to EIAs.

3.16C Additional security requirements for enhanced inspection area – entry screening point

This regulation has been inserted for the purposes of section 36 and 44 of the Act, and only applies to the airports listed in subregulation 2.18A(1) from, or which a screened air service operates (subregulation 3.16C(2)). The purpose of this regulation is to establish security measures for the entry points to an EIA within the airport. Subregulation 3.16C(3) requires an aviation industry participant during traffic periods at the airport to:

§         establish and maintain a screening point at every entry point into an EIA which is occupied or controlled by the aviation participant;

§         adopt measures which will deter and detect unauthorised access into the area; and

§         for those areas which are not continuously used as an EIA, the area is inspected and cleared of unauthorised weapons and explosives before it is used.

For paragraph 44(2)(b) of the Act, the screening point must screen for weapons only, and this screening point must be operated by a screening authority which is able to screen for weapons (subregulation 3.16C(4) and (5)).

Subregulation 3.16C(6) requires an aviation industry participant to:

§         require that all goods, persons and vehicles entering into an EIA enter through an EIA screening point;

§         require all non exempt goods, persons, and vehicles entering an EIA from or through an area that is occupied or controlled by an aviation industry participant to be screened prior to passing through the screening point;

§         ensure that all goods, persons and vehicles have received clearance prior to entering an EIA; and

§         carry out screening in accordance with any methods, techniques and equipment that has been issued by the Secretary under regulation 4.17 and is binding under subregulation 4.17(3) on the aviation industry participant.

Contravention of subregulations 3.16C(3), (4), (5) or (6) is an offence, and an aviation industry participant who is an aircraft operator or an airport operator faces a maximum penalty of 200 units, or in any other aviation industry participants face a maximum penalty of 100 units.

Regulation 3.16D Additional security requirements for enhanced inspection area – random screening in area

Regulation 3.16D is made for the purposes of section 36 and 44 of the Act and applies only to the eleven airports listed from or, to which a screened air service operates (subregulation 3.16D(1) and (2)). It applies to an aviation industry participant who occupies or controls an area of the airport that includes a point of entry into an EIA (subregulation 3.16D(3)).

Subregulation 3.16D(4) requires the aviation industry participant to conduct random inspections within the EIA during traffic periods at the airport. The screening point must be operated by a screening authority and must be able to screen for weapons (subregulation 3.16D(5) and (6)).

Subregulation 3.16D(7) requires the aviation industry participant to do the following at the screening point:

§         randomly select for screening good, persons or vehicles that have entered into the EIA; and

§         screen the goods, persons or vehicles (other than the goods, persons or vehicles which have been deemed to be exempt under the Regulations) in accordance with the methods, techniques and equipment specified in a notice issued by the Secretary under regulation 4.17, and binds the aviation industry participant under subregulation 4.17(3).

Contravention of this regulation is an offence and an aviation industry participant, who is an airport operator, or aircraft operator faces a maximum penalty of 200 penalty units, and in any other case an aviation industry participant faces a maximum penalty of 100 penalty units.

Subregulation 3.16D(9) states that the screening of exempt goods, persons or vehicles that have entered the EIA’s is not authorised.

Item [12] Before regulation 3.17

This item inserts subdivision 3.3.4 titled “Offences”.

Item [13] After regulation 3.17

Regulation 3.17A Offence – not operating enhanced inspection area screening point (entry point screening)

An aviation industry participant is deemed to have committed an offence and faces a maximum penalty of up to 50 penalty units if:

§         the aviation industry participant is a screening authority responsible for operating an EIA screening point which is mentioned in regulation 3.16C; and

§         there is an aircraft operating a screened air service is at the airport; and

§         the screening point has been established and maintained by an aviation industry participant to meet the requirements as outlined in subregulation 3.16C(6); and

§         it is a traffic period at the airport; and

§         at that time, the screening authority does not have in place adequate measures which ensure that persons, goods or vehicles which are entering the EIA do not enter the area other than through the screening point and that persons, goods or vehicles (other than those which have been deemed exempt) do not enter the EIA without having been screened.

Regulation 3.17B Offence – sign at enhanced inspection area screening point

An aviation industry participant is deemed to have committed an offence under this regulation if:

§         the aviation industry participant is responsible for an EIA at an airport; and

§         the participant has established an EIA screening point for the EIA; and

§         the participant does not display at the EIA screening point, a sign that is:
0.4m wide and 0.3m high, and, is in the form as displayed in the Regulations.

Contravention of this regulation is an offence, and an aviation industry participant who is an airport operator, or an aircraft operator, faces a maximum penalty of 200 penalty units, and, in any other case 100 penalty units.

Regulation 3.17C Offence – not preventing entry to enhanced inspection area

An aviation industry participant is deemed to have committed an offence, and faces a maximum penalty of 50 units if:

§         the aviation industry participant is operating an EIA screening point as mentioned in regulation 3.16C; and

§         an aircraft operating a screened service is at the airport; and

§         it is a traffic period at the airport; and

§         at that time, the aviation industry participant does not have in place adequate measures to ensure that persons, goods or vehicles entering into an EIA from an area occupied or controlled by the participant do not do so other than through screening point; and

§         that persons, goods or vehicles (other than exempt persons, exempt goods or exempt vehicles) are screened before they enter the EIA from an area occupied or controlled by participant and through an access point controlled by the participant.

Contravention of this regulation is an offence and is punishable by a maximum of 50 penalty units.

Item [14] Before regulation 3.18

Item [14] inserts new subdivision 3.3.5 titled “Emergency Access”.

Item [15] Subregulation 3.18(1)

Item [15] redrafts existing subregulation 3.18(1) so that members of the Defence Force who are responding to an event or threat of unlawful interference with aviation, and ambulance rescue or fire service officers who are responding to an emergency will not be prevented from having access to any part of the airside area or, to any airside security zone, which includes EIAs.

Item [16] Subregulation 4.04(2)(b)

Item [16] is minor drafting amendment and is consequential to item [17].

Item [17] Subregulation 4.04(2)(c)

Regulation 4.04 lists the things to be detected by screening. Item [17] inserts new subregulation 4.04(2)(c) to require weapons in a vehicle, or in goods entering an EIA to be detected by screening.

Item [18] Subregulation 4.05(2)

Item [18] redrafts existing subregulation 4.05(2), so that a weapon that is detected during screening must be surrendered to a screening authority and stored and handled in accordance with subregulation 4.57(2).

Subregulation 4.05(3) provides that subregulation 4.05(2) does not apply in situations where a weapon is detected by a screening authority for a particular screening area, and the weapon is in the possession of a person who is authorised under Division 4.2 of the Regulations to have the weapon in his or her possession, and in the screening area.

The Note refers to Division 4.2 of the Regulations which deals with weapons, and the classes of persons authorised to possess weapons in secure areas. Regulation 4.52 authorises an aviation industry participant to have certain weapons in an airside security zone if the weapon is a tool of trade which is controlled by the participant.

Item [19] Regulation 4.09

Item [19] replaces existing regulation 4.09. New regulation 4.09 titled “Circumstances in which persons may enter certain areas without being screened” is made for the purposes of subparagraph 44(2)(d)(ii) of the Act.

Subregulation 4.09(2) requires that a person must be cleared before entering an EIA or a sterile area unless they:

§         enter the area from airside after disembarking from a screened air service; or

§         pass through a screening point under regulation 4.10.

Item [20] Regulation 4.10, heading

Item [20] replaces the existing heading for regulation 4.10 with the new heading, “Persons who may pass through screening point without being screened”.

Item [21] Regulation 4.11, heading

Item [21] replaces existing heading for regulation 4.11 with the new heading, “Persons who may enter etc are certain areas other than through a screening point”.

Item [22] Sub regulations 4.11(3) and (4)

Item [22] expands the scope of subregulation 4.11(3) so that ambulance, rescue or fire service officers who are responding to an emergency, members of the Defence Force who are responding to an event or threat of unlawful interference with aviation and air security officers are taken to be cleared when entering a sterile area and an EIA.

Item [22] also expands the scope of subregulation 4.11(4) so that a law enforcement officer who produces valid identity will be taken to be cleared to enter a sterile and an EIA.

Item [23] Subparagraph 4.55(b)(iii)

Item [23] expands existing subparagraph 4.55(b)(iii), so that persons authorised to carry weapons through screening points can reach the place where the weapon is to be checked in or to be loaded on to the aircraft, and the weapon must be carried through the screening point.