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AVIATION TRANSPORT SECURITY AMENDMENT REGULATIONS 2010 (NO. 5) (SLI NO 298 OF 2010)
EXPLANATORY STATEMENT
Select Legislative Instrument 2010 No. 298
Issued by the Authority of the Minister for Infrastructure and Transport
Aviation Transport Security Act 2004
Aviation Transport Security Amendment Regulations 2010 (No. 5 )
Subsection 133 (1) of the Aviation Transport Security Act 2004 (the Act) provides that the Governor–General may make regulations 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.
Sections 35, 36, 37 and 38 of the Act provide that matters that may be dealt with by regulations include access to airside and landside areas and security zones (including conditions of entry, the issue and use of security passes and other identification systems). Regulations made under these sections may prescribe penalties for offences against those regulations.
The Aviation Transport Security Regulations 2005 (the Principal Regulations), in part, prescribe the necessary requirements for the issuing of an Aviation Security Identification Card (ASIC).
The Regulations give effect to key initiatives announced in the National Aviation Policy White Paper: Flight Path to the Future (the White Paper) and amend the Principal Regulations to:
· strengthen the cancellation provisions for ASIC issuing bodies;
· increase the maximum penalty for an ASIC holder failing to report that they have been convicted of an aviation-security relevant offence;
· clarify and expand exemptions to the ASIC display requirements;
· permit an issuing body to issue a replacement ASIC if the holder has had to surrender his or her ASIC to their previous issuing body; and
· allow a person to apply directly to the Secretary for the issue of a discretionary ASIC.
Attachment A outlines the scope of the Regulations. Further details of the Regulations are set out in Attachment B.
The Department has met with a wide range of key industry stakeholders to discuss the implementation of the White Paper ASIC enhancements including key stakeholders consisting of aviation industry participants, ASIC issuing bodies, industry representative bodies and unions. Since the release of the White Paper, constructive industry and union discussions have occurred at forums such as the Aviation Security Advisory Forum, Regional Industry Consultative Meeting and the Aviation Security Employee Consultative Forum.
A Regulatory Impact Statement (RIS 10645) was provided to the Office of Best Practice Regulations in the context of the White Paper. An extract of the pages relevant to these amendments to the ASIC regime is at Attachment C.
The Regulations commence on 1 December 2010.
The Regulations are a legislative instrument for the purpose of the Legislative Instruments Act 2003.
Attachment A
Scope of the Aviation Transport Security Amendment Regulations 2010 (No. 5)
The Regulations amend the Aviation Transport Security Regulations 2005 (the Principal Regulations) to specify that:
· State and Territory ambulance officers that are facilitating patients on and off air ambulances currently have a temporary exemption from the display of an ASIC or VIC provided that they are supervised by an ASIC holder. The amendment makes this exemption permanent and also includes the transportation of medical cargo.
· Officers of ambulance, rescue, or fire services who are responding to an emergency in an airside area or any airside security zone are currently exempt from displaying an ASIC or VIC. The Regulations expand this exemption to ensure it includes employees, contractors or volunteer officers of state and territory emergency services who are responding to emergencies that are on or off the airport. The exemption also includes a person who is under the direction of an emergency services officer in an emergency.
· The Principal Regulations require that if an ASIC is cancelled, a person must reapply for a new background check in order to be issued with an ASIC by another issuing body. The Regulations will allow another issuing body to reissue an ASIC if certain conditions are met and if the original ASIC was cancelled after 1 December 2010 due to:
· a lack of operational need;
· because of a condition placed on it that the ASIC be cancelled if the holder changed employer;
· the person requested the ASIC be cancelled; or
· the ASIC had a shorter expiry than the background check originally allowed (i.e. short term ASICs for contractors) in certain circumstances.
· Currently, an individual who has been found to be ineligible for an ASIC due to having an adverse criminal record has the opportunity to apply to the Secretary of the Department of Infrastructure and Transport (the Secretary) for a discretionary ASIC through their issuing body. The amendment allows an applicant, or issuing body, to apply directly to the Secretary for the issue of a discretionary ASIC. The applicant (issuing body or individual) must apply within 28 days from the date of receiving notice of the decision from the Secretary of the Attorney-General’s Department (Secretary AGD). The Secretary may grant an extension to this time limit on a case by case basis.
· ASIC holders are required to inform their issuing body within seven days if they are convicted and sentenced for an aviation-security relevant offence (ASRO). To increase the incentive for ASIC holders to report ASROs, the amendments increase the penalty from 20 penalty units ($2,200) to 50 units ($5,500). This is the maximum penalty that can be allocated for individuals under the Aviation Transport Security Act 2004. When reporting a conviction, ASIC holders will now be required to advise whether they consent to an additional background check and will also be required to provide relevant information in order for a background check to be conducted. If the holder does not consent to an additional background check or provide the relevant information, their ASIC will be cancelled. The background check provides clarity when there is doubt over whether an ASRO has been committed.
· From 1 December 2010, an issuing body will be required to apply, within two days, to the Secretary AGD for an additional background check on a person who has told them of an ASRO, provided the relevant information and has consented to an additional background check.
· The Secretary may apply to the Secretary AGD for an additional background check on an ASIC holder if the Secretary suspects the person has been convicted of an ASRO or may constitute a threat to aviation security. The Secretary can take into account information from published reports, the AFP or other relevant sources.
· If a subsequent background check on a person finds that an ASIC holder is no longer eligible for an ASIC or if it is found that the holder now has a qualified criminal record and the holders current ASIC expires later than it should, the issuing body must cancel the ASIC. The issuing body must also cancel an ASIC of a person if the Secretary notifies them that the holder has a qualified security assessment (ASIO security check). 100 penalty units apply to an issuing body who fails to cancel an ASIC when required. ASIC holders who have their ASICs cancelled due to an adverse criminal record or a qualified security assessment may apply to the Secretary within 28 days of the cancellation to have their ASIC reinstated.
· If a person has been convicted of an ASRO and has not yet been sentenced, the Secretary may direct an issuing body to suspend the ASIC until the sentence has been handed down and it can be determined if the person remains eligible to continue to hold an ASIC.
· An ASIC issuing body is required to record in their ASIC register details of ASICs that are suspended or have been reinstated after being cancelled. They are also required to include the date that an ASIC is returned to the issuing body after expiry or cancellation.
· From the 1 December 2010, ASICs may be issued for two years from the last day of the month in which the background checks were completed. This will give an ASIC holder a full two years before the ASIC expires. For example, a background check that is completed on 2 July 2011 will have a maximum expiry of 31 July 2013.
· An issuing body is required to use the AusCheck system (which includes a database component) to record the issue, reissue or cancellation reasons of an ASIC. A penalty of 10 units applies if the issuing body does not use the system.
Attachment B
Details of the Aviation Transport Security Amendment Regulations 2010 (No. 5)
Regulation 1 – Name of Regulations
This regulation provides that the title of the Regulations is the Aviation Transport Security Amendment Regulations 2010 (No. 5).
Regulation 2 – Commencement
This regulation provides for the Regulations to commence on 1 December 2010.
Regulation 3 – Amendment of Aviation Transport Security Regulations 2005
This regulation provides that the Aviation Transport Security Regulations 2005 (the Principal Regulations) are amended as set out in Schedule 1.
Regulation 4 – Transitional arrangements
This regulation provides for the following transitional arrangements:
(1) Item [11] only applies to Aviation Security Identification Cards (ASICs) that are cancelled, suspended or returned to the ASIC issuing body from the 1 December 2010.
(2) Item [19] only applies to ASICs that are cancelled on and after the 1 December 2010.
(3) The amendments to regulation 6.29 made by items [22] to [26] only apply to ASICs whose background checks for the original issue of the ASIC are completed by the Secretary Attorney-General’s Department (Secretary AGD) on or after 1 December 2010.
(4) The amendments to ASIC expiry dates made by items [30] and [31] only apply to ASICs whose background checks for the original issue of an ASIC are completed by the Secretary AGD on or after 1 December 2010. The previous regulatory requirements for ASIC expiry are still be applicable to ASICs whose background checks were completed prior to the commencement of these Regulations.
(5) Items [36] to [37] only apply to a person who is convicted of an aviation-security-relevant offence on or after 1 December 2010.
Schedule 1 – Amendments
Item [1] – Regulation 1.03, after definition of photograph
This item relocates the definition of a qualified security assessment from subregulation 6.31 (6) to regulation 1.03. This definition takes its meaning from Part IV of the Australian Security Intelligence Organisation Act 1979.
Item [2] – Paragraph 1.05 (1) (b)
This item replaces paragraph 1.05 (1) (b) to clarify that an ASIC that is suspended is not considered a valid ASIC.
Item [3] – Subregulation 3.07 (1), after the definition of cargo facilitator
Item [4] – After subregulation 3.07 (2)
These items insert a definition into regulation 3.07 of the term medical transport facilitator and provide for a conditional exemption from the ASIC display requirements for employees, contractors or volunteers of a state or territory ambulance service.
These items expand a current exemption under the Principal Regulations for passenger facilitators who are required to be escorted whilst on a security controlled airport. The amendment allows state or territory ambulance officers to be supervised whilst facilitating patients or medical cargo on or off an aircraft in a security controlled airport without the need to display an ASIC or VIC. This will enable a pilot displaying a valid ASIC in the cockpit of an aircraft (that has or will be carrying the patient or medical cargo) to watch the ambulance officer drive in and out of the secure area provided that the ambulance officers remained within the pilot’s line of sight.
The medical transport facilitator must be supervised by an ASIC holder who was authorised by the aircraft operator that is carrying the patient or cargo. The ASIC holder would be considered to be supervising if he/she is escorting, accompanying or watching the medical transport facilitator at all times.
Medical cargo is intended to apply to time critical items such as organ transportation or specialist medical equipment.
This item formalises a temporary exemption currently held by ambulance officers under regulation 3.08, which is due to expire on 5 May 2011. The amendment is intended to cover ambulance personnel who are not required to have frequent access to security controlled airports as part of their duties.
Item [5] - Subregulation 3.07 (3)
This item is a drafting amendment and ensures that subregulation 3.07 (3) facilitates a strict liability offence.
Item [6] – After subregulation 3.07 (3)
Item [7] – Subregulation 3.07 (4)
These items insert a new subregulation 3.07 (3A) to place responsibility on the aircraft operator to ensure that medical transport facilitators do not enter, or stay, within a secure area unless they are ASIC holders or are under the supervision of the authorised ASIC holder. This is to ensure that the aircraft operator exercises control over the actions of the ASIC holders it authorises to supervise the medical transport facilitators.
Contravention of this subregulation is a strict liability offence with a maximum penalty of 10 penalty units.
Item [8] – Regulation 3.13, definition of exempt person, paragraph (c)
This item amends regulation 3.13 to revise paragraph (c) of the definition of ‘exempt person’ to clarify that an employee, contractor or volunteer of an emergency service (including fire, rescue, emergency and ambulance services) is considered an exempt person for Division 3.3.
For example, volunteer fire–fighters of a rural fire brigade are exempt from the ASIC and VIC display requirements if they are responding to an emergency.
New paragraph (ca) also considers a person who is acting under the direction of an emergency services employee, contractor or volunteer during an emergency to be an exempt person.
The item clarifies that emergencies include those on and off the airport. For instance, the emergency may be in a distant location within Australia or overseas and emergency services may require access to the airport in order to transport personnel, cargo or specialised aircraft. Alternatively, the emergency could require emergency crews to cross through a security controlled airport in order to reach an emergency located on the other side of a boundary of a security controlled airport.
Emergency personnel who require access to security controlled airports with regular public transport (RPT) as part of their normal duties are still be required to obtain/display an ASIC, except in emergency situations or unless otherwise exempt.
Item [9] - Paragraph 3.18 (1) (b) Access by emergency personnel
Consequential to the amendment to regulation 3.13 in item [8], this item amends paragraph 3.18 (1) (b) and replicates the definition of ‘exempt person’.
Item [10] - Subregulation 3.18 (2)
This item amends subregulation 3.18 (2) to clarify that the person acting under the direction of a state or territory emergency services during an emergency is exempt from displaying an ASIC or VIC.
Item [11] – Paragraph 6.23 (2) (j)
This item amends subregulation 6.23 (2) to incorporate additional record keeping requirements for issuing bodies to ensure that the ASIC register includes details of ASICs that are cancelled and subsequently reinstated and to include details regarding the suspension of ASICs.
This item also requires that the date an ASIC is returned to the issuing body following the cards expiry, cancellation or other is recorded.
The purpose of this item is to ensure that accurate records regarding the number of valid ASICs in existence are available and it will assist in identifying any length of time that an individual may hold an invalid ASIC.
The record keeping requirements for an issuing body are not related to the requirement for issuing bodies to use the AusCheck database system.
Item [12] – Division 6.5, heading
Item [13] – Regulation 6.25A
Item [14] - Paragraph 6.27AA (1) (b)
These items are technical drafting amendments.
Item [12] modifies the heading of Division 6.5 to include the term ‘suspension’.
Item [13] inserts a definition of AusCheck facility into regulation 6.26A to aid a reader’s interpretation of items [19], [27], [45] and [46]. AusCheck is a division within the Attorney-General’s Department that conducts background checking. The AusCheck facility refers to the IT system used by AusCheck, the AusCheck system includes a database component.
Item [14] makes a punctuation change to allow for the insertion of new paragraph 6.27AA (1) (c) by item [15] below.
Item [15] – After paragraph 6.27AA (1) (b)
This item is a consequential amendment of new regulation 6.41A in item [37] which creates an additional obligation on ASIC issuing bodies.
This item inserts a new paragraph 6.27AA (1) (c) to provide the ability for an ASIC issuing body to apply to the Secretary AGD for a background check of an ASIC holder who has notified the body they have been convicted and sentenced to an aviation-security-relevant offence (ASRO).
Item [16] - After subregulation 6.27AA (2)
This item inserts new subregulations 6.27AA (3) and (4) to provide the Secretary of the Department of Infrastructure and Transport (the Secretary) the ability to request an additional background check on a current ASIC holder to ensure the holder remains eligible for an ASIC.
The Secretary might for example utilise this ability if he/she believes on reasonable grounds that an ASIC holder has not reported the conviction and sentence of an ASRO.
The Secretary may also request an additional background check on an ASIC holder if the Secretary reasonably believes that the person may be a threat to aviation security.
Before requesting a background check, the Secretary must consider any information provided to him/her by the ASIC holder, the issuing body, the Secretary AGD, other law enforcement agency or anything else relevant that the Secretary knows about. This does not mean that the Secretary must obtain information from all of these parties.
Item [17] – Subregulation 6.28 (1)
This item amends subregulation 6.28 (1) and is a technical drafting amendment, consequential of new subregulations 6.28 (4A) (4D) and (4H) being added by item [19] below.
Item [18] – Subregulation 6.28 (4), note
This item removes the note in subregulation 6.28 (4) as the note may be misleading.
Item [19] – After subregulation 6.28 (4)
This item inserts new subregulations 6.28 (4A) to 6.28 (4H) after subregulation 6.28 (4).
The Principal Regulations require that if an ASIC is cancelled for any reason, a person must reapply for a new background check in order to be issued with an ASIC by another issuing body.
The insertion of subregulation 6.28(4A) and (4D) provide issuing bodies with conditions under which they may re-issue an ASIC.
A person may be reissued with an ASIC if their original ASIC was surrendered to their previous issuing body due to:
· a lack of operational need;
· because of a condition placed on it that the ASIC be returned if the holder changed employer;
· the person requested the ASIC be cancelled; or
· the ASIC had a shorter expiry than the background check originally allowed (i.e. short term ASICs for contractors).
The reissued ASIC may be issued by the previous issuing body or by another issuing body for the remaining life of the original background check, provided the following conditions are met:
· the previous ASIC was cancelled after 1 December 2010;
· the issuing body has registered the reissue of the ASIC with the Secretary AGD (through the AusCheck system) within 12 months of the ASIC being cancelled;
· the previous ASIC was returned to the previous issuing body (unless the issuing body was correctly notified of the ASIC being lost/stolen/destroyed);
· the individual has not been convicted of any aviation-security-relevant offences since the original background check (that is since the background checks that were conducted upon the initial application for the previous ASIC);
· the individual notifies the issuing body of any relevant circumstances that may have changed since the initial ASIC application, e.g. change of name, address, employer, gender etc; and
· the issuing body has verified the individual’s operational need, identity and that the person is not an unlawful non-citizen.
The new issuing body may reissue the ASIC for a validity not exceeding the remaining life of the background checks and in accordance with any conditions that may have been placed on the ASIC by the Secretary or the Regulations (e.g. conditions may have been placed on a discretionary or reinstated ASIC or due to the person having a qualified criminal record).
To determine the maximum expiry date, the issuing body must register the issue of the ASIC on the AusCheck system. The system will nominate the maximum expiry and will only permit the register of the card if:
· the card had been cancelled for one of the approved cancellation reasons listed above or expired earlier than permitted;
· the card was cancelled after 1 December 2010; and
· the card has been registered on the system within 12 months of the cancellation;
Therefore, the issuing body may assume that these three conditions have been met if the AusCheck system permits the register of the card.
If an ASIC is not issued in accordance with the requirements of subregulation 6.28 (4A), (4D) or (4G) a maximum penalty of 50 penalty units apply. The offences are strict liability.
Subregulation 6.28 (4H) allows the original issuing body to issue an ASIC to a person who has had their ASIC cancelled due to a qualified criminal record.
For example, an individual has a background check completed on 15 December 2010 and is issued with a two year ASIC with an expiry of 31 December 2012. A subsequent background check conducted on the holder in June 2011 reveals they have a qualified criminal history. (This may occur in rare circumstances such as when a conviction is not properly recorded).
The holder’s ASIC will be required to be cancelled by new paragraph 6.43 (2) (da) because the ASIC expires after 31 December 2011 (later than one year after the relevant (or original) background checks were conducted).
As there is remaining time left on the background check, this provision allows an ASIC to be issued to the holder with the new expiry of 31 December 2011.
Item [20] – Subregulation 6.28 (6), at the foot
This item inserts a note at the foot of subregulation 6.28 (6) to explain that the expiry of an ASIC is outlined in regulation 6.32.
Item [21] – Subregulation 6.28 (7)
This item deletes subregulation 6.28 (7) due to the subregulation not being relevant to the issue of an ASIC. The ASIC expiry date for a person who has a qualified criminal record is now fully outlined in regulation 6.32.
Item [22] - Subregulation 6.29 (1)
The Principal Regulations currently only allow an issuing body to apply for a discretionary ASIC on behalf of a person who has been found ineligible. This item amends subregulation 6.29 (1) to allow an individual who is ineligible for an ASIC due to having an adverse criminal record to apply directly to the Secretary for a discretionary ASIC.
Item [23] – After subregulation 6.29 (1)
This item inserts a new subregulation 6.29 (1A) to introduce a time limit for a person, or their issuing body, to apply to the Secretary for a discretionary ASIC.
Applications are required to be received by the Secretary within 28 days of the individual or issuing body (depending on who is making the application) being advised that the individual has an adverse criminal record.
Being advised means the day that they are told by the Secretary AGD that the outcome of the background check has revealed the person has an adverse criminal record. This does not refer to a preliminary assessment made by the Secretary AGD in which they provide an individual with an opportunity to make representations about any offences that are listed on the individual’s criminal history certificate.
Should an individual or issuing body, due to extenuating circumstances, require more time to apply, they may apply to the Secretary in writing for an extension to the timeframe. The Secretary will consider extensions to the timeframe on a case by case basis.
Item [24] – Subregulation 6.29 (2)
This item amends subregulation 6.29 (2) to assist in the effective administration of applications to the Secretary for discretionary ASICs. It allows the Secretary, if required, to request further information directly from either the issuing body or applicant.
Item [25] – Paragraphs 6.29 (3) (a) and (b), excluding the note
This item amends subregulation 6.29 (3) to set out who should be notified of the Secretary’s decision for a request for a discretionary ASIC.
If a discretionary ASIC is approved, regardless of who made the application, the individual needs to know the outcome of the decision. In order to issue the discretionary ASIC, the issuing body also needs to know.
If a discretionary ASIC is refused, the individual needs to know the outcome and the reasons for the refusal so they can understand the decision. If the issuing body applied for the discretionary card on behalf of the individual, the issuing body also needs to know the outcome of the decision. The issuing body does not need to know the reasons for the refusal as it may contain private information.
Item [26] – Subregulation 6.29 (6)
This item amends subregulation 6.29 (6) to insert the words ‘and the person’ to ensure that both the issuing body and individual are informed of any conditions that a discretionary ASIC may be subject to.
Item [27] – After regulation 6.29
This item inserts new regulation 6.29A to require that an issuing body use the AusCheck system to register the issue or reissue of an ASIC. This includes the issue of an ASIC under regulation 6.28 or 6.29. This ensures than an issuing body confirms that a person has a valid background check with the Secretary AGD before issuing an ASIC.
The penalty for failing to register the issue of an ASIC in the AusCheck system is 10 penalty units.
Item [28] - Subregulation 6.31 (1), at the foot
Item [29] - Subregulation 6.31 (6), including the note
These items are technical drafting amendments that relocate the note referring to a person’s review rights for a security assessment and allow for the relocation of the definition of qualified security assessment to regulation 1.03 in item [1].
Item [30] – Subregulation 6.32 (2)
This item amends subregulation 6.32 (2) to remove a current contradiction in the Principal Regulations and allows a person’s ASIC to expire two years from the last day of the month in which the background check was completed. For example, a background check that is completed by the Secretary AGD on the 1 January 2011 that found a person has a clear record, will permit the issue of an ASIC with a maximum expiry date of 31 January 2013.
The expiry date of an ASIC is calculated from the completion of the original background checks that are conducted when a person initially applies for an ASIC. The expiry date cannot be extended if a subsequent background check is undertaken due to a person reporting an aviation-security-relevant offence or the Secretary requesting an additional background check on an individual.
When the original validity period of an ASIC expires or is about to expire, the person must reapply for an ASIC and have new background checks undertaken to verify their eligibility.
Item [31] – Subregulation 6.32 (4)
This item amends subregulation 6.32 (4) to clarify that an ASIC issued to a person who has a qualified criminal record must not expire later than one year from the last day of the month in which the background check was completed.
Item [32] – After subregulation 6.32 (4)
This item inserts a new subregulation 6.32 (5) to clarify that if a cancelled ASIC is reinstated, the reinstated ASIC must not expire later than either the date that it would have expired if it had never been cancelled or if the Secretary approved the reinstatement subject to a condition, the date specified by the Secretary.
This is regardless of any additional background checks that may have been carried out prior to or after the cancellation of the ASIC.
Item [33] – Subregulation 6.35 (1)
This item amends subregulation 6.35 (1) to delete an unnecessary condition to issuing a replacement ASIC. Under the Principal Regulations, a replacement ASIC can only be issued if a temporary ASIC has been issued to the person. However, there are situations where it will be more appropriate to issue a replacement ASIC immediately without the need for a temporary card. For example, if an ASIC has been defaced or destroyed.
Item [34] – Subregulation 6.35 (4)
This item relocates subregulation 6.35 (4) to subregulation 6.35 (2A) to remove any doubt that subregulations 6.35 (3) and (3A) apply to relocated subregulation 6.35 (2A).
To clarify, a grey ASIC that is replaced with a red ASIC (or vice versa) or an airport specific ASIC that is replaced with an AUS wide ASIC (or vice versa) must expire no later than the previous ASIC and must have a number which is unique among ASICs issued by the issuing body.
Item [35] – Subregulation 6.38 (6)
This item amends subregulation 6.38 (6) to outline that a person who has been refused an ASIC or had their ASIC cancelled for certain reasons must not be issued with a VIC. Similarly, a person who has had their ASIC suspended must also not be issued with a VIC.
The reasons for cancellation include:
a) an adverse or qualified security assessment;
b) an adverse criminal record or
c) not consenting or providing relevant information to support a subsequent background check.
To clarify, if a person has applied for a discretionary ASIC under regulation 6.29 or for the reinstatement of a cancelled ASIC they may not be issued with a VIC whilst awaiting a decision by the Secretary.
Due to the seriousness of an issuing body knowingly issuing a VIC and allowing a person who is considered a risk to aviation security onto an airport there is a maximum penalty of 100 penalty units for contravention of this provision.
Item [36] – Regulation 6.41
This item amends regulation 6.41 to require that an ASIC holder who has been convicted and sentenced for an ASRO report the conviction to either their issuing body or directly to the Secretary AGD.
The holder is required to report the ASRO within seven days of conviction and sentence. If sentencing occurs at a later date than the conviction was recorded, the seven days is from the date of sentencing.
An ASIC holder who has been convicted of an ASRO needs to undergo an additional background check to ensure they still remain eligible for an ASIC. The following information therefore needs to be provided, in writing, when the offence is reported:
a. Name, date of birth and address;
b. ASIC number (or if the person holds more than one ASIC, the ASIC numbers);
c. The court in which he or she was convicted;
d. The date of the conviction and sentence;
e. Whether the person consents for another background check to be performed, for any unfavourable results to be sent to their issuing body/s and for his or her identity to be confirmed.
The amendment increases the penalty for an individual who fails to report an ASRO from 20 to 50 penalty units. The new penalty is intended to increase the incentive to report such instances.
If the issuing body or Secretary AGD are not satisfied that all of the information required above has been provided or if they require further information to verify a person’s identity. The issuing body or Secretary AGD may request that the holder provide further information within 14 days.
If a person has reported being convicted and sentenced for an ASRO directly to the Secretary AGD and the person has not either:
a) consented to a background check; or
b) provided the Secretary AGD with any requested information within 14 days
The Secretary AGD must tell the issuing body.
If the ASIC holder does not consent to a background check or if the person does not provide the information within the required period, the persons ASIC must be cancelled under new paragraph 6.43 (2) (db) in item [42].
Item [37] – After regulation 6.41
This item inserts a new regulation 6.41A to impose an obligation on an issuing body to apply to the Secretary AGD for an additional background check on an ASIC holder who has reported the conviction of an ASRO. The issuing body, within two working days of the holder giving consent for the background check to be undertaken and providing any further information requested by the issuing body, must apply to the Secretary AGD for the additional background check.
The issuing body must provide the Secretary AGD with the information obtained from the ASIC holder under regulation 6.41.
If a person has committed a relevant offence after being issued with an ASIC an additional background check is essential to determine if a person is a risk to aviation security. If the issuing body fails to inform the Secretary AGD within the appropriate timeframe, the background check is delayed and this results in a poor security outcome. Due to the seriousness of not initiating a subsequent background check a maximum penalty of 100 penalty units has been attached to this obligation.
Item [38] – Subdivision 6.5.4, heading
This item amends the Subdivision 6.5.4 heading and is a technical drafting amendment.
Item [39] – After regulation 6.42, in Subdivision 6.5.4
This item inserts new regulations 6.42A to 6.42E after regulation 6.42.
6.42A Suspension of ASICs – Secretary’s direction
This item inserts new regulation 6.42A to enable the Secretary to direct an issuing body to suspend a holders ASIC under limited circumstances. The Secretary may exercise this power if an ASIC holder has been convicted of but not yet sentenced for an ASRO and the Secretary considers the person a threat to aviation security.
In deciding whether a person is a threat to aviation security, the Secretary must consider a number of factors including, but not limited to, the offence and circumstances surrounding the offence, where in the secure area the ASIC holder works/ has access to, the effect on the holder’s employment etc.
If the Secretary determines that an ASIC holder is a threat to aviation security and subsequently directs and issuing body to suspend an ASIC then the Secretary must inform the Secretary AGD of the direction in writing.
6.42B Suspension of ASIC by issuing body
This item inserts new regulation 6.42B to create an obligation on an issuing body to immediately suspend an ASIC upon receipt of a direction from the Secretary. To suspend an ASIC, the issuing body will, for example, be expected to immediately relevant remove electronic access from the ASIC, update their ASIC register and the AusCheck system.
The issuing body must then inform the ASIC holder (in writing) as soon as is practicable of the suspension and the reasons for the suspension. The suspension takes effect when the ASIC holder is told about the suspension.
Due to the seriousness of an issuing body failing to suspend the ASIC of a person who is a threat to aviation security, a maximum penalty of 100 units applies if an issuing body either fails to immediately suspend an ASIC or tell the ASIC holder as soon as possible about the suspension.
Once the ASIC holder is notified, they are required to return the ASIC within seven days – failure to do so results in the ASIC holder being subject to a strict liability offence of 10 penalty units. The strict liability offence is because it is critical that a person who has been deemed to be a threat to aviation security not hold an ASIC.
6.42C Period of suspension of ASIC
This item inserts new regulation 6.42C to clarify that the period that an ASIC is suspended for if the holder is subsequently sentenced for the relevant offence.
If the Secretary AGD notifies the issuing body that the holder of the suspended ASIC has an adverse criminal record, the ASIC remains suspended until the issuing body cancels the ASIC.
If the Secretary AGD notifies the issuing body that the holder of the suspended ASIC has a qualified criminal record and the holders ASIC has an expiry date later than 12 months from the end of the month of the date of the original background checks. That is the background checks that were completed when the person applied for the ASIC, not the recent background check conducted due to the conviction. The ASIC remains suspended until cancelled.
If the holder does not have an adverse or qualified criminal record then the ASIC ceases to be suspended and can be returned to the ASIC holder the day after the issuing body is notified the outcome of the holders background check is clear.
6.42D Suspension of temporary ASIC
This item inserts new regulation 6.42D to require that if a person has been issued with a temporary ASIC and their ASIC is suspended, the temporary ASIC must also be suspended.
6.42E Report to Secretary of suspension of an ASIC
This item inserts new regulation 6.42E to require that when an issuing body suspends an ASIC, the issuing body tell the Secretary about the suspension (which may include dates of the suspension and the return of the ASIC) and details of the ASIC holder and, if known, their employer.
If the Secretary believes that telling the holders employer about the suspension may help prevent unlawful interference with aviation, the Secretary may tell the employer that the ASIC has been suspended. For instance, this may be appropriate if the ASIC holder has not returned their ASIC upon suspension.
Item [40] – Paragraph 6.43 (2) (aa)
This item deletes paragraph 6.43 (2) (aa) as this provision is now obsolete as the Secretary AGD now conducts background checks, not the Secretary of the Department.
Item [41] – After paragraph 6.43 (2) (b)
This item inserts a new paragraph 6.43 (2) (ba) to require that an issuing body cancel a holder’s ASIC if the issuing body has been notified that the holder has a qualified security assessment.
Item [42] – Paragraph 6.43 (2) (d)
This item replaces paragraph 6.43 (2) (d) which currently obliges an issuing body to cancel the ASIC of a person who has been convicted of an offence against Part 2 of the Crimes (Aviation) Act 1991 or who has committed an ASRO and been sentenced to imprisonment.
Instead, new paragraphs 6.43 (2) (d) and (da) require an issuing body to cancel an ASIC if the body was told by the Secretary AGD that:
- the holder has an adverse criminal record; or
- the holder has a qualified criminal record, and the ASIC expires later than 1 year from the end of the month that the background checks (for the original issue of the card) were conducted.
New paragraph 6.43 (2) (db) requires that an issuing body cancel an ASIC if a person has reported being convicted of an ASRO but does not consent to a new background check or has not provided relevant information as requested under new subregulation 6.41 (2) in item [36].
If an ASIC is cancelled because a person has a qualified criminal record, the ASIC may be able to be reissued if time still remains on the validity of the background check. See subregulation 6.28 (4H) in item [19].
Item [43] – After subregulation 6.43 (3)
This item inserts new subregulations 6.43 (3A) to (3c) after subregulation 6.43 (3). An issuing body commits an offence under new subregulation 6.43 (3A) if the issuing body fails to cancel an ASIC when required. Failure to cancel an ASIC of a person who may be a threat to aviation security is a serious offence with a maximum penalty of 100 penalty units.
New subregulation 6.43 (3B) requires that an issuing body cancel a VIC of an ASIC holder of whom the Secretary has directed the suspension of their ASIC.
Failure of an issuing body to cancel the VIC of a person whose ASIC has been suspended is considered a serious offence and carries a maximum penalty of 100 penalty units under new subregulation 6.43 (3C).
Item [44] – After subregulation 6.43 (4)
This item inserts a new subregulation 6.43 (4A) after subregulation 6.43 (4). Some issuing bodies only issue ASICs to a select group of people, for example employees and contractors. This item inserts new subregulation 6.43 (4A) to recognise that these issuing bodies may place a condition on the issue of an ASIC that if the holder changes employers that the ASIC will be cancelled and must be returned to the issuing body.
This item supports subregulation 6.28 (4A) in item [19] by specifically recognising these types of cancellations in order to allow a person to be issued with an ASIC by a different issuing body provided certain conditions are met.
Item [45] – Subregulation 6.43 (6), including note
This item amends subregulation 6.43 6) to ensure that an issuing body notify an ASIC holder as soon as practicable if they cancel an ASIC for a particular reason.
New paragraph 6.43 (6) (b) requires that the issuing body register the reason the ASIC was cancelled in the AusCheck system. This obligation reflects current practice and is an important step in order for an ASIC to be able to be reissued by another issuing body under subregulation 6.28 (4A) as the AusCheck system will only permit the reissue of an ASIC if the card was cancelled under particular circumstances.
The penalty for failing to register the cancellation of an ASIC in the AusCheck system is 10 penalty units.
Item [46] – Regulation 6.43A
This item replaces regulation 6.43A and inserts new regulations 6.43B to 6.43E after regulation 6.42.
6.43A Reinstatement of cancelled ASIC – application
This item replaces regulation 6.43A and applies to a person whose ASIC has been cancelled under regulation 6.43 (2) (ba) or (d) due to the person being the subject of a qualified security assessment or having an adverse criminal record.
The provision permits a person, or their issuing body, to apply to the Secretary for the cancellation to be set aside. The application must be received by the Secretary within 28 days of the former ASIC holder being told about the cancellation by their issuing body.
Should an individual or issuing body, due to extenuating circumstances, require additional time, they may apply to the Secretary in writing for an extension to the timeframe. The Secretary will consider extensions on a case by case basis.
If the Secretary needs more information to deal with the application, the Secretary may ask the former ASIC holder, or the issuing body, to provide the information.
6.43B Reinstatement of ASIC cancelled for qualified security assessment – Secretary’s decision
New regulation 6.43B applies to an application received by the Secretary to set aside the cancellation of an ASIC that has been cancelled due to a qualified security assessment.
The Secretary must determine if the former ASIC holder may be a threat to aviation security within 30 days of receiving the application or if the Secretary has requested more information from the person or issuing body, within 30 days of receiving that information.
Due to the complicated nature of an assessment of a person who has a qualified security assessment the Secretary may require more time to make the decision, as such the Secretary may extend decision making period by a further 60 days.
In order to extend the period, the Secretary must, before the 30 day time limit has expired, notify the person who made the application about the extension.
If Secretary does not make a decision within the required timeframes (whether the original or extended timeframe) the Secretary is taken to have refused to set aside the cancellation of the ASIC.
New subregulation 6.43B (4) sets out who should be notified of the Secretary’s decision for a request to reinstate a cancelled ASIC.
If the Secretary decides to set aside the cancellation, regardless of who made the application, the following people need to know the outcome of the decision:
- the individual;
- the issuing body - in order to reinstate the cancelled ASIC; and
- the Secretary AGD.
If the Secretary refuses to set aside the cancellation;
- the individual will need to know the outcome and the reasons for the decision so they can understand the decision; and
- if the issuing body made the application, the issuing body also needs to know the outcome of the decision. The issuing body does not need to know the reasons for the refusal as this may contain private information relating to the individual.
6.43C Reinstatement of ASIC cancelled for adverse criminal record – Secretary’s decision
New regulation 6.43C applies to an application received by the Secretary to set aside the cancellation of an ASIC that has been cancelled due to an adverse criminal record.
The Secretary is required to determine if the former ASIC holder may be a threat to aviation security within 30 days of receiving the application or if the Secretary has requested more information from the person or issuing body, within 30 days of receiving that information.
Before making a decision as to whether the person may be a threat to aviation security, the Secretary must consider:
· any sentence of imprisonment that has been imposed on the person;
· if the person has completed the term of imprisonment, or part of the term, how long it was, and the holders conduct since the term was served;
· the nature of any offences the person has been convicted of;
· when the offences occurred e.g. prior to being issued with an ASIC;
· the effect on the holders employment if the ASIC is not reinstated;
· where the holder was employed, or needs access to within the secure areas; and
· anything else the Secretary knows about.
If Secretary does not make a decision within the required timeframes the Secretary is taken to have refused to set aside the cancellation of the ASIC.
Subregulation 6.43C (2) sets out who should be notified of the Secretary’s decision for a request to reinstate a cancelled ASIC.
If the Secretary decides to set aside the cancellation, regardless of who made the application, the following people need to know the outcome of the decision:
- the individual;
- the issuing body - in order to reinstate the cancelled ASIC; and
- the Secretary AGD.
If the Secretary refuses to set aside the cancellation;
- the individual needs to know the outcome and the reasons so they can understand the decision; and
- if the issuing body made the application, the issuing body needs to know the outcome of the decision. The issuing body does not need to know the reasons for the refusal as this may contain private information relating to the individual.
6.43D Reinstatement of ASIC subject to condition
If the Secretary sets aside the cancellation, or permits the reinstatement of the cancelled ASIC, the Secretary may impose a condition on the reinstated ASIC. For example, the Secretary may require the ASIC expire earlier than would have usually been allowed.
6.43E When issuing body must reinstate cancelled ASIC
If the Secretary approves the reinstatement of a cancelled ASIC, the issuing body is required to reinstate the ASIC to the former ASIC holder, subject to any conditions that the Secretary may have placed on the ASIC under 6.43D above.
The issuing body must also register the reinstatement of the ASIC in the AusCheck system to ensure that the AusCheck system has up to date records of issued ASICs.
The penalty for failing to register the issue or reinstatement of an ASIC in the AusCheck System is 10 penalty units.
Item [47] – Subregulation 8.02 (3), heading
Item [48] – Paragraph 8.02 (3) (a)
These items are technical drafting amendments that modify the heading of regulation 8.02 and replace the word ‘authorise’ to ‘approve’ in subparagraph 8.02 (3) (a) to ensure consistent use of terms used in regulation 6.29.
Item [49] – Paragraph 8.03 (3) (d)
Item [50] – After paragraph 8.02 (3) (d)
These items amend subregulation 3.03 (3) to increase the administrative review rights of an ASIC holder. A person who is affected by administrative decisions of the Secretary to suspend, refuse to set aside a cancellation, set aside a cancellation subject to a condition or to direct an issuing body not to issue an ASIC due to a qualified security assessment may apply to the AAT for a review of the decision of the Secretary.
Presently a person who receives a qualified security assessment (from ASIO) cannot appeal the decision of the Secretary to refuse them the issue of an ASIC. It is our intention that an affected person be given the right to appeal this decision under the Regulations. Additionally, the creation of powers to suspend and cancel an ASIC requires the creation of new appeal mechanisms to ensure that affected individuals have the opportunity to appeal decisions made under the regulations.
Attachment C
Extract of Item 5.5 from the National Aviation Policy Statement – Aviation White Paper Regulatory Impact Statement (RIS 10645)
The Regulations require people accessing secure areas of security controlled airports, at which regular passenger services (RPT) operate, to be background checked and display either an Aviation Security Identification Card (ASIC) or a Visitor Identification Card (VIC); at all times at screened airports and during RPT traffic periods only at non-screened airports. A VIC holder must be supervised by a person holding a valid ASIC at all times when in the secure area.
Before applying for an ASIC a person must have an operational need; that is they have a genuine valid requirement to frequently access to all, or part, of a secure area of an airport, or for the operation of the airport or an aircraft. ASICs deliver a level of assurance that people who have been issued with such a card are not a risk to aviation security. The ASIC regime aims to assist in the reduction of unlawful interference with aviation, not just terrorism.
On an international scale, the ASIC scheme is consistent with world’s best practice. Introduced in late 1998, the ASIC scheme was developed and implemented utilising components of several international aviation security background checking regimes. International benchmarking practices were adopted during the inception of the ASIC regime to ensure a best practice policy was legislated in Australia. Since its inception, the scheme has been subject to continuous enhancement in line with the changing security environment and international developments.
Following a review of Aviation Security Identification Card (ASIC) provisions in the Aviation Transport Security Regulations 2005 (ATSR), a series of amendments are proposed to strengthen the ASIC scheme after further aviation industry consultation.
In order to relieve the regulatory, administrative and financial burden on the aviation industry, it is proposed that the number of ASIC issuing bodies will be reduced. There are currently 191 ASIC issuing bodies which comply with ASIC reporting requirements under the ATSR. However approximately 116 of these ASIC issuing bodies do not currently issue ASICs and as such their ASIC issuing status should be revoked. A further reduction will be achieved by inviting any other ASIC issuing bodies that want to voluntarily revoke their authorisation as an issuing body to do so.
There are currently limited circumstances in which a person’s ASIC can be cancelled. It is possible for an individual who becomes ineligible under the background checking criteria to continue to hold an ASIC. To mitigate this potential weakness, ASIC cancellations will be strengthened requiring an issuing body to cancel a holder’s ASIC (subject to any appeal) if the issuing body becomes aware the holder no longer meets the eligibility criteria. The maximum penalty for an ASIC holder failing to report that they have been convicted of an aviation security relevant offence will also be increased, from 20 penalty units ($2,200.00) to 120 penalty units ($13,200.00).[1] The current maximum penalty is so low that it creates little incentive to report. In conjunction, the regulations could be amended to allow for subsequent background checks to be conducted on ASIC holders, in instances where the Department becomes aware that an individual may no longer meet the background checking eligibility criteria.
In addition, it is proposed that provisions regarding the appeal of decisions not to issue a person with an ASIC will be streamlined by establishing an appeal mechanism directly to the Secretary of the Department. This will enhance client service arrangements for ASIC applicants and align ASIC appeal processes with the Maritime Security Identification Card scheme. Time frames will be developed for the lodgement of appeal applications in order to minimise turnaround times for individuals and aviation industry participants during the appeals process.
The ATSR amendments will also enhance arrangements for the management of visitors at security controlled airports who are under the supervision of ASIC holders. In particular, visitors will be required to produce photographic proof of identity before a visitor identification card will be issued and it would be an offence for a Visitor Identification Card (VIC) applicant to knowingly provide a misleading reason for entry to a security controlled airport. To further strengthen visitor management arrangements, a maximum of three visitor cards will be able to be issued to a person within a 12 month period. A person refused an ASIC would also not be able to utilise the visitor management system. These measures will minimise the potential for the misuse of VIC scheme as a possible mechanism for persons to inappropriately gain access to security controlled areas within the aviation environment.
In addition miscellaneous administrative ATSR amendments are also proposed which include amendments regarding exemptions for ASIC display requirements; ASIC expiry dates being changed from the end of the month of expiry to a specific day[2]; and the issuing of a replacement ASIC by an issuing body if the card holder has surrendered their ASIC to their previous issuing body.
In the longer term, the Department will consider additional policy setting adjustments consistent with the security environment with regard to identity management (including biometrics) and the possibility of further separation of background checking and access regulatory provisions for security controlled airports.
It is therefore proposed to strengthen the ASIC regime by:
· strengthening the ASIC cancellation provisions for ASIC issuing bodies and making provision for subsequent background checking requirements for ASIC holders where their eligibility to hold an ASIC may have changed;
· increasing the maximum penalty for an ASIC holder failing to report that they have been convicted of an aviation security relevant offence;
· reducing the number of ASIC issuing bodies and enabling ASIC applicants to appeal decisions directly to the Secretary of the Department; and
· enhancing the arrangements for the management of visitors at security controlled airports under the supervision of ASIC holders.
An examination of the cost effectiveness of a move to annual background checking was conducted as part of the ASIC review. It is noted that the increased frequency of background checks would not provide a real-time checking system, however such a move would add significant costs to industry participants whilst delivering only marginal improvements to the number of positive checks of existing card holders. As a result the Government will maintain the current ASIC validity period ASIC of two years and the associated background checking processes, noting the long term desire to develop a real time capacity.
The Office of Transport Security (OTS) will work closely with aviation industry participants to ensure the implementation of these enhancements to the already strong ASIC scheme take into account the particular difficulties associated with aviation in different regional locations across Australia. The proposed ASIC scheme improvements will ensure that the ASIC scheme remains consistent with international better practice, delivers enhanced security outcomes at security controlled airports and that the administration of the scheme is streamlined for the benefit of both industry and government.
Nil.
The benefits are detailed at 2.3.1 Assessment of Benefits.
The risks are detailed at 5.1 Consequences of Inaction.
Nil.
It became apparent during the review that there were a number of issuing bodies that were not actively involved in the production and issuing of ASICs. There are currently 191 ASIC issuing bodies which are required to comply with reporting requirements under the ATSR. For those 116 issuing bodies that do not actively produce and issue cards (the majority of whom are in regional Australia), this is a regulatory, administrative and financial burden which will be removed by the proposed initiatives. It is intended that this reduction be extended in the future by inviting any other ASIC issuing bodies that want to voluntarily revoke their authorisation as an issuing body to do so.
The risks are detailed at 5.1 Consequences of Inaction.
Any cost to the Government is contingent on budget approval for funding of proposed initiatives. If this funding is not forthcoming industry will bear the full costs.
The benefits are detailed at 2.3.1 Assessment of Benefits.
The risks are detailed at 5.1 Consequences of Inaction.
[1] Since the approval of the RIS, policy approval was provided to limit the maximum penalty to 50 penalty units, which is the maximum penalty permitted for an individual under the Aviation Transport Security Act 2004.
[2] Following industry consultation the maximum ASIC expiry is now two years from the end of the month of the original background checks.