AVIATION TRANSPORT SECURITY AMENDMENT (SECURITY SYSTEMS TESTING) REGULATIONS 2020 (F2020L01641) EXPLANATORY STATEMENT

Commonwealth Numbered Regulations - Explanatory Statements

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AVIATION TRANSPORT SECURITY AMENDMENT (SECURITY SYSTEMS TESTING) REGULATIONS 2020 (F2020L01641)

Issued by authority of the Minister for Home Affairs

Aviation Transport Security Act 2004

Aviation Transport Security Amendment (Security Systems Testing) Regulations 2020

The Aviation Transport Security Act 2004 (the Aviation Act) and the Aviation Transport Security Regulations 2005 (the Aviation Regulations) operate to give effect to Australia's obligations under Annex 17 to the Convention on International Civil Aviation (the Chicago Convention), including the requirement to have a systems testing regime in place to assess the effectiveness of security measures being implemented. In pursuit of this aim, the Aviation Act and the Aviation Regulations established a regulatory framework to ensure that weapons, prohibited items, vehicles and other items that may be used to commit acts of unlawful interference with civil aviation in Australia can be identified, detected, and controlled by security systems.

Legislative authority

Subsection 133(1) of the Aviation Act provides that the Governor-General may make regulations prescribing matters required or permitted by the Aviation Act to be prescribed (paragraph (a)), or necessary or convenient to be prescribed for carrying out or giving effect to the Aviation Act (paragraph (b)).

Sections 46, 47, 49, 54, 55 and 57 of the Aviation Act each make it an offence for a person to carry, or otherwise have in their possession a weapon or prohibited item in specified areas of security controlled airport unless the person is authorised by the regulations to carry, have or use the weapon or prohibited item in those areas.

The Aviation Act was recently amended by the Transport Security Amendment (Testing and Training) Act 2020 (the Testing and Training Act) to introduce explicit powers for aviation security inspectors to conduct testing of a broader range of security systems.

Previously, aviation security inspectors were authorised only to test screening systems.

To determine whether a person is complying with the Aviation Act or to investigate a possible contravention of the Aviation Act, paragraph 79(2)(h) of the Aviation Act provides that an aviation security inspector may test a security system, including by using an item or test weapon to test its detection, in accordance with the requirements prescribed in the regulations for the purposes of paragraph 79(2)(h). Subsection 79(2A) provides that systems testing cannot be undertaken unless regulations made under subparagraph 79(2)(h) are in force. Paragraph 80(2)(f) is expressed similarly, in relation to conducting tests in aircraft. New subsections 79(2A) and 80(2A) of the Aviation Act operate to require that requirements for security systems testing for the purposes of paragraph 79(2)(h) and 80(2)(f) respectively be prescribed in the Aviation Regulations and in force before an aviation security inspectors' powers as set out in paragraph 79(2)(h) and 80(2)(f) respectively can be exercised.

Purpose

The Aviation Transport Security Amendment (Security Systems Testing) Regulations 2020 (the Security Systems Testing Regulations) amend the Aviation Regulations to:

* clarify exemptions from the requirement to be screened, and aligning the language used to the new definition of 'test weapons', which are various types of replica or imitation weapons;

* clarify the authorisation of aviation security inspectors to lawfully test security systems by explicitly prescribing the use of 'test weapons';

* make consequential amendments to the exemptions and authorisations for representatives of screening authorities to lawfully test a screening system;

* set requirements that must be met by Aviation Security Inspectors when performing security systems testing in various areas in airports, the premises of an aviation industry participant and vehicles, and in aircraft; and

* make technical amendments to support these measures.

Consultation

Consultation was undertaken with industry participants in relation to aviation security inspectors' use of 'test weapons' to test security systems in the development of Testing and Training Act over an extended period of time. The amendments that replicate or clarify previous exemptions or authorisations for aviation security inspectors and representatives of screening authorities are consequential to amendments made to the Aviation Act by the Testing and Training Act. The amendments are intended to have minimal impact on aviation industry participants.

The amendments that set out requirements for conducting security systems tests were previously un-codified procedural requirements followed by aviation security inspectors when conducting screening systems tests which were developed in consultation with industry. As a consequence, Industry was not consulted in relation to these amendments. However, it is intended that consultation to further refine the requirements around the exercise of the 'testing' powers will be ongoing.

The Department conducts an annual working group with aviation industry participants to discuss upcoming systems test developments, systems test procedures, and analysis of systems test outcomes and consults when new systems tests are being developed. However, due to the pandemic, the 2020 working group did not proceed.

The amendments are intended to have minimal impact on aviation industry participants. It has been determined that there will be no cost to industry.

Regulation Impact Statement

The Office of Best Practice Regulation (OBPR) was consulted prior to making the Regulations, and the Regulation Impact Statement requirements for these Regulations have been met (OBPR: 43025).

Financial impact statement

The financial impact of the regulations is low. Any costs associated with the implementation of the amendments will be met from within previous resources of the Department of Home Affairs.

Statement of Compatibility with Human Rights

A Statement of Compatibility with Human Rights in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011 is included at Attachment A.

The overall assessment is that the Regulations are compatible with human rights.

Details of the Regulations are set out in Attachment B.

The Aviation Act specifies no conditions that need to be satisfied before the power to make the Regulations may be exercised.

The Regulations are a legislative instrument for the purposes of the Legislation Act 2003.

Schedule 1 to the Regulations commences on the day after the instrument is registered.

Attachment A

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Aviation Transport Security Amendment (Security Systems Testing) Regulations 2020

This Disallowable Legislative Instrument 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 Disallowable Legislative Instrument

The Aviation Transport Security Act 2004 (the Aviation Act) and the Aviation Transport Security Regulations 2005 (the Aviation Regulations) establish a regulatory framework for the purpose of safeguarding against unlawful interference with civil aviation in Australia in accordance with Annex 17 (Security - Safeguarding International Civil Aviation Against Acts of Unlawful Interference) to the International Civil Aviation Organization Convention on International Civil Aviation (known as the Chicago Convention), to which Australia is a party, including the requirement to have a systems testing regime in place to assess the effectiveness of security measures being implemented. In pursuit of this aim, the Aviation Act and the Aviation Regulations established a regulatory framework to test security systems to ensure that weapons, prohibited items, vehicles and other items that may be used to commit acts of unlawful interference with civil aviation in Australia can be identified, detected, and controlled by security systems.

Further, sections 46, 47, 49, 54, 55 and 57 of the Aviation Act each make it an offence for a person to carry, or otherwise have in their possession a weapon or prohibited item in specified areas of a security regulated airport unless the person is authorised by the regulations to carry, have or use the weapon or prohibited item in those areas.

The Aviation Act was recently amended by the Transport Security Amendment (Testing and Training) Act 2020 (the Testing and Training Act) to introduce explicit powers for aviation security inspectors to conduct testing of a broader range of security systems. Previously, aviation security inspectors were authorised only to test screening systems.

"Security systems" is an umbrella term used to indicate the combination of measures that include human and physical barriers, screening and examination equipment, and security protocols and procedures, put in place by aviation industry participants under Aviation Transport Security Legislation, Transport Security Programs, and in accordance with any Notices given or Determinations made by the Secretary that are intended to safeguard against acts of unlawful interference with aviation.

The ultimate aim of an Australian aviation industry participant's security systems is to ensure that no prohibited items, prescribed weapons, or explosives are carried or loaded onto an aircraft, and that aviation infrastructure remains secure. In order to ensure that aim is met, each of the security systems put in place by aviation industry participants must be tested to make certain that unauthorised items that might pose a risk to aviation can be detected and neutralised before they cause harm.

The Aviation Transport Security Amendment (Security Systems Testing) Regulations 2020 made changes to the Aviation Regulations to refine the regulatory framework which safeguards against unlawful interference with aviation. Aviation security inspectors play a vital role in safeguarding against unlawful interference through their testing regime which tests aviation industry participant's security systems

The Regulations make clear the explicit authorisation for aviation security inspectors to exercise the powers to determine whether a person is compliant with the Aviation Act.

These Regulations clarify the authority, establish a new definition and prescribe requirements that must be followed by aviation security inspectors in the course of the testing regime, while on duty.

The amendments clarify that aviation security inspectors are deemed to be an 'exempt person', which ensures tests conducted lawfully will not attract prosecution under relevant laws. This exemption only applies to aviation inspectors conducting tests in the course of their duty. Without such protections, covert testing could appear to be a threat to security or come in conflict with existing weapon prohibitions.

In a practical sense, this exemption provides authority and protection from prosecution when an aviation security inspector tests covertly by trying to penetrate the security barrier despite being exempt from screening. This type of testing provides industry a robust measure of compliance and alerts industry to deficits in the security system to which they are required by law to mitigate and to which as regulators representatives of the Department will take further action on.

The regulations also introduce a new definition of 'test weapon' and the description of its authorised use in the course of aviation security inspectors conducting security system testing, while on duty. This provision does not represent a new power, rather the amendments provide clarity around items that can be lawfully used for testing.

Consequentially the regulations prescribes that requirements for aviation security inspector's use of 'test weapons' during testing operations are lawful. This definition change relates discretely to the use of 'test weapons' and has no impact on aviation industry screening authorities nor their operations.

The requirements introduced by the amended regulations includes expanding the testing of security systems used by aviation industry participants to ensure compliance with the Aviation Act.

This expansion of testing can occur at premises and in vehicles and aircrafts of aviation industry participants. The locations for these tests are not community or residential sites and do not include privately owned vehicles. The authority to conduct security tests in these areas increases the breadth of compliance testing and thereby directly strengthens operations under the aviation security framework.

Human rights implications

These regulations engages the following human rights:

* Right to life and security of the person in Articles 6 of the International Covenant on Civil and Political Rights (ICCPR)

Right to life

Article 6 of the ICCPR states:

Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

This Article places a positive obligation on States to protect the right to life. This Article provides, in part, for the establishment of reasonable and appropriate measures to protect a person's life. The United Nations Human Rights Committee's General Comment No. 36 on the right to life notes that there is an obligation on States to protect the right to life by addressing and responding to reasonably foreseeable threats and life threatening situations that can result in loss of life. The Australian Government is committed to act in accordance with Article 6 of the ICCPR in the civil aviation sector demonstrated through the activities of aviation security inspectors.

Aviation security inspectors testing of civil aviation industry participants' aviation security program, plays a significant role in safeguarding against unlawful interference with aviation. These amendments clarify aviation security inspectors testing powers to probe for weaknesses in industry participants' aviation security arrangements established under Australian Law. The obligations imposed on civil aviation participants by aviation security inspectors to comply with approved security programs, and the testing of these programs and mitigation of identified weaknesses in the programmes, contributes to the integrity of Australia's aviation security.

This instrument positively engages Article 6 by addressing and actively responding to the potential threats in the civil aviation environment which may otherwise compromise the right to life at security controlled airports and other area operated by aviation industry participants.

The lawful conducting of test across specified locations for the purpose of security compliance checks promotes the positive obligation to protect the community from threats to their life.

Conclusion

These regulations are compatible with human rights and promote the right to life by maintaining the integrity of Australia's aviation security.

Hon Peter Dutton MP, Minister for Home Affairs

ATTACHMENT B

Details of the Aviation Transport Security Amendment (Security Systems Testing) Regulations 2020

Section 1 - Name

This section provides that the title of the Regulations is the Aviation Transport Security Amendment (Security Systems Testing) Regulations 2020 (the Regulations).

Section 2 - Commencement

This section provides for the commencement of the Regulations, as set out in the table in subsection 2(1).

Table Item 1 of subsection 2(1) provides for the whole of the Regulations to commence on the day after this instrument is registered.

Subsection 2(2) clarifies that information in column 3 of the table in subsection (1) is not part of the instrument, and that information may be inserted there, or edited, in any published version of the instrument.

Section 3 - Authority

This section provides that Schedule 1 to the Regulations are made under the Aviation Transport Security Act 2004 (the Aviation Act).

Section 4 - Schedules

Subsection 4(1) provides for the Aviation Transport Security Regulations 2005 (the Aviation Regulations) to be amended as set out in Schedule 1 to the Regulations.

Schedule 1--Amendments

Aviation Transport Security Regulations 2005

Aviation industry participants are responsible for security systems in Australia's security controlled airports, on aircraft, in vehicles and in a building under their control. This would include a residence or part of a residence in circumstances where the aviation industry participant operates in that place. Each of these places have tailored security systems in place to ensure appropriate aviation security standards are being achieved. The combination of systems, including those focusing on security of airports, aircraft, vehicles, cargo or personnel act to protect against unlawful interference.

The ultimate aim of Australian aviation industry participant's security systems is to ensure that no prohibited items, prescribed weapons, or explosives are carried or loaded onto an aircraft, and that aviation infrastructure remains secure. In order to ensure that aim is met, each of the security systems put in place by aviation industry participants must be tested to make certain that unauthorised items that might pose a risk to aviation can be and are detected and neutralised before they cause harm.

Previously, exemptions and authorisations for aviation security inspectors on duty, and representatives of screening authorities, lawfully testing a screening system deal with both classes of person in the same way. The previous exemptions and authorisations for representatives of screening authorities lawfully testing a screening system have been replicated in this instrument without amendment.

Amendments have been made in relation to exemptions and authorisations for aviation security inspectors on duty to make clear that this class of person would not be committing an offence if they are carrying or have certain items in their possession in relation to an exercise of a power under paragraph 79(2)(h) or 80(2)(f) of the Aviation Act to test a security system. The exercise of a power in paragraph 79(2)(h) or 80(2)(f) must be done in accordance with the requirements set out in regulation 5.02.

Item [1] - Regulation 4.22A (paragraph (b) of the definition of exempt person)

This Item clarifies the previous meaning given for exempt person in paragraph (b) of the definition in Regulation 4.22A of Subdivision 4.1.1A of Division 4.1 of Part 4 of the Aviation Regulations.

Previously, paragraph (b) of the definition provided that exempt person means an aviation security inspector, or a representative of the screening authority, who is lawfully testing the screening system.

Substituted paragraph (b) provides that exempt person means a representative of the screening authority who is lawfully testing the screening system.

New paragraph (c) provides that exempt person means an aviation security inspector who is on duty and requires a LAG product in relation to an exercise of a power by the inspector under paragraph 79(2)(h) or 80(2)(f) of the Aviation Act to test a security system.

The purpose and effect of this amendment is to refine the previous application of the definition to a representative of the screening authority who is lawfully testing the screening system, and to make clear that an aviation security inspector is an exempt person when the inspector is on duty and requires a LAG product to exercise a power under paragraph 79(2)(h) or 80(2)(f) of the Aviation Act to test a security system.

This amendment is consequential to amendments made to the Aviation Transport Security Act 2005(the Aviation Act) by the Transport Security Amendment (Testing and Training) Act 2020, and to the amendment made by Item [2] of this instrument.

Item [2] - After paragraph 4.22HA(1)(a)

Subregulation 4.22HA(1) of subdivision 4.1.1A of Division 4.1 of Part 4 of the Aviation Regulations makes it an offence for a person to enter a liquids, aerosols and gels (LAGs) cleared area other than through a screening point when the person is in possession of an impermissible LAG product within the meaning of subregulation 4.11(4) of the Aviation Regulations.

This Item inserts a new paragraph (aa) into subregulation 4.22HA(1), which clarifies that the offence applies where the person is not an exempt person.

The purpose of new paragraph 4.22HA(1)(aa) is to provide an exception to the offence if the person is an exempt person.

The effect of new paragraph 4.22HA(1)(aa) is that a representative of the screening authority who is lawfully testing the screening system, or an aviation security inspector who is on duty and requires it for the exercise of a power under paragraph 79(2)(h) or 80(2)(f) of the Aviation Act, using an impermissible LAG product to test a security system would not be committing an offence.

Item [3] - Regulation 4.22QA (paragraph (b) of the definition of exempt person)

This Item clarifies the previous meaning given for exempt person in paragraph (b) of the definition in Regulation 4.22QA of Subdivision 4.1.1B of Division 4.1 of Part 4 of the Aviation Regulations.

Substituted paragraph (b) provides that exempt person means a representative of the screening authority who is lawfully testing the screening system.

New paragraph (c) provides that exempt person means an aviation security inspector who is on duty and requires an inorganic powder in relation to an exercise of a power under paragraph 79(2)(h) or 80(2)(f) of the Aviation Act to test a security system.

The purpose and effect of this amendment is to refine the previous application of the definition to a representative of the screening authority who is lawfully testing the screening system, and to make clear that an aviation security inspector is an exempt person when the inspector is on duty and requires an inorganic powder in relation to the exercise of a power under paragraph 79(2)(h) or 80(2)(f) of the Aviation Act to test a security system.

Item [4] - After paragraph 4.22QD(1)(a)

Subregulation 4.22QD(1) of subdivision 4.1.1B of Division 4.1 of Part 4 of the Aviation Regulations makes it an offence for a person to enter a LAGs (liquids, aerosols and gels) cleared area other than through a screening point when the person is in possession of an impermissible powder within the meaning of subregulation 4.11(4A) of the Aviation Regulations.

This Item inserts a new paragraph (aa) into subregulation 4.22QD(1), which clarifies that the offence applies where the person is not an exempt person.

The purpose of new paragraph 4.22QD(1)(aa) is to provide an exception to the offence if the person is an exempt person.

The effect of new paragraph 4.22QD(1)(aa) is that if a representative of the screening authority who is lawfully testing the screening system, or an aviation security inspector who is on duty and requires the inorganic powder in relation to the exercise of a power under paragraph 79(2)(h) or 80(2)(f) of the Aviation Act, and is, was, or will be using an impermissible powder to conduct the test, they would not be committing an offence.

Item [5] - Regulation 4.53 (heading)

Section 46 of the Aviation Act makes it an offence for a person to have a weapon in his or her possession in an airside area, a landside security zone or a landside event zone of an airport.

A person commits an offence under subsection 46(1) or 46(3) of the Aviation Act if they had a weapon in their possession in a secure area of an airport unless they are a person described in paragraph 46(1)(c) or paragraph 46(3)(c), respectively.

Subparagraphs 46(1)(c)(iii) and 46(3)(c)(iii) operate to provide, in part, that a person who is authorised by the Aviation Regulations to have the weapon in his or her possession in the airside area, landside security zone or landside event zone does not commit an offence under section 46 of the Aviation Act.

For the purposes of subparagraphs 46(1)(c)(iii) and 46(3)(c)(iii) of the Aviation Act, regulation 4.53 of Division 4.2 of Part 4 of the Aviation Regulations authorises persons to have weapons, that are not firearms, in their possession in a secure area of an airport.

The term "weapon" is defined in section 9 of the Aviation Act to include, at paragraph (b) of the definition, the things prescribed to be weapons in the Aviation Regulations.

Regulation 1.09 prescribes a wide variety of things, including parts of weapons or ammunition such as gunpowder, to be a weapon.

This amendment repeals the previous heading for regulation 4.53 of Division 4.2 of Part 4 of the Aviation Regulations and substitute a new heading "Persons authorised to have weapons or test weapons (not firearms) in possession in secure areas".

The previous heading, "Persons authorised to have weapons (not firearms) in possession in secure areas", indicates that regulation 4.53 deals with the persons previously authorised to have weapons that are not firearms in their possession in secure areas of an airport.

The purpose and effect of the amendment is to make clear that, following amendments made by Items below, regulation 4.53 deals with persons who are authorised to have weapons that are not firearms, and persons who are authorised to have test weapons that are not firearms, in a secure area of an airport.

This amendment is consequential to amendments made to the Aviation Transport Security Act 2005 (the Aviation Act) by the Transport Security Amendment (Testing and Training) Act 2020 that introduced the concept of test weapons, and to the amendment made by Item [8] of this instrument.

Item [6] - Before subregulation 4.53(1)

This Item inserts a new subheading "Weapons (other than firearms)" in regulation 4.53, before subregulation 4.53(1) of Division 4.2 of Part 4 of the Aviation Regulations.

Previously, persons authorised under subregulation 4.53(1) included officers of Customs, air security officers, screening officers or representatives of aircraft operators who are carrying a weapon to or from an aircraft because it has been accepted for carriage on - or is being removed from - an aircraft, and aviation security inspectors on duty - or representatives of a screening authority - who are lawfully testing the screening system.

All of the classes of persons mentioned above that were authorised by subregulation 4.53(1) had a legitimate reason to have weapons of various types that were not firearms in their possession in a secure area of an airport.

The purpose and effect of the new subheading is to make clear that subregulation 4.53(1) deals with only persons who are authorised to have weapons (other than firearms) in a secure area of an airport.

Item [7] - Paragraph 4.53(1)(e)

Previously, paragraph 4.53(1)(e) of the Aviation Regulations operated to authorise an aviation security inspector on duty, or a representative of the screening authority, to have a weapon that is not a firearm in their possession in a secure area of an airport to lawfully test the screening system.

The amendment by this Item amends paragraph 4.53(1)(e) to omit the words "an aviation security inspector on duty, or a representative of the screening authority," and substitutes the words "a representative of the screening authority".

The screening system that screens passengers and their carry-on baggage is the most publicly visible part of the aviation security regime. Security screening uses a combination of specialist equipment and skilled screening personnel to screen all people (other than exempt persons) into the sterile area of an airport or airside. These persons would include passengers, aircraft crew, airline and airport staff, and concession holders. Screening points screen these persons and their personal effects to detect firearms, explosives, other prescribed weapons and prohibited or proscribed items to safeguard against an unlawful interference with aviation.

In order to ensure that the equipment is operating effectively, regular testing is required by both the equipment manufacturers and in accordance with notices given to the screening authority under regulation 4.17 of the Aviation Regulations.

In accordance with regulation 4.53(1)( e) additional testing is also undertaken by the screening authority to ensure that the screening system (people, processes and equipment ) is operating effectively. To do this the screening authority may use an item as described in Table Item 1 of the table in regulation 1.09 as an example of a weapon.

It is therefore necessary that a representative of the screening authority remains authorised under paragraph 4.53(1)(e) to have a weapon that is not a firearm in order to test the screening system.

The purpose and effect of this amendment is to make clear that a representative of the screening authority continues to be authorised to have a weapon that is not a firearm in their possession in a secure area of an airport to lawfully test the screening system.

This amendment is consequential to the amendment made by Item [8] of this instrument.

Item [8] - At the end of regulation 4.53

This amendment inserts new subregulation (5) in regulation 4.53 of Division 4.2 of Part 4 of the Aviation Regulations.

New subregulation 4.53(5) - Test weapons

New subregulation 4.53(5) replaces, and replicates the effect of, previous paragraph 4.53(1)(e) as it relates to authorising a person who is an aviation security inspector on duty to have a type of weapon in their possession in a secure area of an airport to lawfully test the screening system.

New subregulation 4.53(5) provides that a person who is an aviation security inspector is authorised to have a test weapon in the person's possession in a secure area of an airport if the person is on duty, and the person requires the test weapon in relation to an exercise of a power under paragraph 79(2)(h) or 80(2)(f) of the Aviation Act to test a security system.

Test weapon is defined in section 9 of the Aviation Act to mean a weapon of a kind that is a replica or an imitation of another weapon. The purpose of a test weapon is to test a security system. Read in conjunction with paragraph 79(2)(h) or 80(2)(f), an aviation security inspector is permitted to use a test weapon to test a security system.

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 otherwise cannot operate as the weapon they are intended to replicate or imitate, in order to avoid causing harm or injury.

The purpose and effect of this amendment is to replicate the previous authorisations while explicitly authorising, for the purposes of subparagraphs 46(1)(c)(iii) and 46(3)(c)(iii) of the Aviation Act, an aviation security inspector on duty to have test weapons, (but not firearms), in their possession in a secure area of an airport to lawfully test a security system in circumstances where they require a test weapon in relation to the exercise of a power under paragraph 79(2)(h) or 80(2)(f) of the Aviation Act.

Item [9] - Paragraph 4.54(1)(da)

Previously, paragraph 4.54(1)(da) of Division 4.2 of Part 4 of the Aviation Regulations authorised an aviation security inspector on duty, and a representative of the screening authority to have a firearm in their possession in a secure area of an airport to lawfully test the screening system.

This Item amends paragraph 4.54(1)(da) to omit the words "an aviation security inspector on duty, or a representative of the screening authority," and substitutes the words "a representative of the screening authority".

As noted in Item [7] above, screening points in security controlled airports use specialist equipment to screen people and their personal effects to detect firearms, explosives and other prohibited items to safeguard against an unlawful interference with aviation.

The table in regulation 1.09 of the Aviation Regulations gives examples of 'things' that are a weapon. Table Item 1 of the table in regulation 1.09 includes the example of 'parts and ammunition for firearms' as these individual parts could be reconstituted to make a weapon.

To ensure that all parts of a firearm can continue to be detected and identified at a screening point a firearm, or parts of a firearm, may be used by a representative of a screening authority to test the screening system.

The amendment made by this Item maintains the previous authorisations given to screening authorities to test the screening system.

The Macquarie dictionary defines the word firearm to mean a small arms weapon from which a projectile is discharged by the burning of a propellant.

A test weapon, by design, is not in fact capable of either discharging a projectile or burning a propellant. A test weapon may be a replica or imitation of such a weapon and may have the appearance or give the impression of having those capabilities, but would not be a firearm.

As a consequence, an aviation security inspector would not require authorisation under regulation 4.54 to have a firearm in their possession in a secure area of an airport to lawfully test the screening system. An aviation security inspector is authorised under regulation 4.53 to have, and use a test weapon that is a replica or imitation of a small arms weapon, but which cannot discharge a projectile or burn propellant.

The purpose and effect of this amendment is to make clear that a representative of a screening authority continues to be authorised to have a weapon that is a firearm in their possession in a secure area of an airport to lawfully test the screening system.

Item [10] - Regulation 4.55 (heading)

Section 47 of the Aviation Act makes it an offence for a person to have a weapon in his or her possession when they pass through a screening point.

A person commits an offence under subsections 47(1) or 47(3) if they had a weapon in their possession when they pass through a screening point if the person is not in a class of persons described in paragraphs 47(1)(c) or 47(3)(c), respectively.

Subparagraphs 47(1)(c)(ii) and 47(3)(c)(ii) operate to provide, in part, that a person who is authorised by the Aviation Regulations to have the weapon in his or her possession when they pass through a screening point does not commit an offence under section 47.

For the purposes of subparagraphs 47(1)(c)(ii) and 47(3)(c)(ii) of the Aviation Act, regulation 4.55 of Division 4.2 of Part 4 of the Aviation Regulations authorises persons to carry a weapon through a screening point.

This amendment repeals the previous heading for regulation 4.55 and substitutes a new heading "Persons authorised to carry weapons or test weapons through screening points - general".

The previous heading, "Persons authorised to carry weapons or test weapons through screening points - general", indicated that regulation 4.55 dealt with the persons previously authorised to carry weapons through screening points.

The purpose and effect of the amendment is to make clear that, following amendments made by Items below, regulation 4.55 deals with persons who are authorised to carry weapons and persons who are authorised to carry test weapons through a screening point for the purposes of subparagraphs 47(1)(c)(ii) and 47(3)(c)(ii) of the Aviation Act.

This amendment is consequential to amendments made to the Aviation Transport Security Act 2005 (the Aviation Act) by the Transport Security Amendment (Testing and Training) Act 2020 that introduced the concept of test weapons, and to the amendment made by Item [12] of this instrument.

Item [11] - Regulation 4.55 (after the heading)

This Item inserts a new subheading "Weapons" in regulation 4.55, before subregulation 4.55(1) of Division 4.2 of Part 4 of the Aviation Regulations.

Previously, persons authorised under regulation 4.55 included screening officers on duty or representatives of aircraft operators who have detected a weapon during screening, or who are carrying a weapon to or from an aircraft because it has been surrendered and accepted for carriage on - or is being removed from - an aircraft, and aviation security inspectors on duty - or representatives of a screening authority - who are lawfully testing the screening system.

All of the classes of persons authorised by previous regulation 4.55 had a legitimate reason to carry weapons through a screening point.

The purpose and effect of the new subheading is to make clear that new subregulation 4.55(1), made by Item [13] of this instrument, deals only with persons who are authorised to carry weapons through a screening point.

Item [12] - Regulation 4.55

This Item inserts the numeral in parentheses, "(1)", before the words "The following persons" in regulation 4.55 of Division 4.2 of Part 4 of the Aviation Regulations.

Previously, regulation 4.55 described classes of persons who were authorised to carry a weapon through a screening point as set out in paragraphs 4.55(a) to (c). Regulation 4.55 did not previously contain subregulations.

The purpose and effect of the amendment is to recognise that the classes of persons who are authorised to carry a weapon through a screening point in paragraphs 4.55(1)(a), (b) and (c) are separate and distinct from the class of person described in new subregulation 4.55(2) (made by Item [14], below) who are authorised to carry a test weapon through a screening point.

This amendment is consequential to the amendment made by Item [14] of this instrument.

Item [13] - Paragraph 4.55(c)

Previously, paragraph 4.55(c) provided that an aviation security inspector on duty, or a representative of the screening authority, who is lawfully testing the screening system was authorised to carry a weapon through a screening point.

This Item, read in conjunction with the amendment made by Item [12] above amends paragraph 4.55(1)(c) of Division 4.2 of Part 4 of the Aviation Regulations to omit the words "an aviation security inspector on duty, or a representative of the screening authority,", and substitute the words "a representative of the screening authority".

The purpose and effect of this amendment is to make clear that a representative of the screening authority who is lawfully testing the screening system is authorised by paragraph 4.55(1)(c) to carry a weapon through a screening point.

This amendment is consequential to the amendment made by Items [12] and [14] of this instrument.

Item [14] - After subregulation 4.55(before note 1)

This amendment inserts new subregulation (2) into regulation 4.55 of Division 4.2 of Part 4 of the Aviation Regulations.

New subregulation 4.55(2)

New subregulation 4.55(2) replaces, and replicates the effect of, previous paragraph 4.55(1)(c) to the extent that it related to authorising an aviation security inspector on duty to carry a weapon through a screening point to lawfully test the screening system.

Subregulation 4.55(2) provides that a person who is an aviation security inspector is authorised to carry a test weapon through a screening point if the person is on duty, and requires the test weapon in relation to an exercise of a power under paragraph 79(2)(h) or 80(2)(f) of the Aviation Act to test a security system.

The purpose of this amendment is to replicate the effect of the previous authorisation of aviation security inspectors while explicitly authorising, for the purposes of subparagraphs 47(1)(c)(ii) and 47(3)(c)(ii) of the Aviation Act, an aviation security inspector on duty to carry test weapons through a screening point in an airport in relation to the exercise of a power in paragraph 79(2)(h) or 80(2)(f) to lawfully test a security system.

The effect of this amendment is to recognise that an aviation security inspector may have been directed to conduct testing of security systems in screening points, on the airside or other secure areas of an airport, and in aircraft and is therefore authorised to carry a test weapon through a screening point so that testing of other areas could be conducted.

Item [15] - Regulation 4.59 (heading)

Paragraphs 49(a) to (d) of the Aviation Act make it an offence for a person to carry or otherwise have in their possession, a weapon on board a prescribed aircraft if the weapon is located in a place that is accessible to them if the person is not a law enforcement officer, or if the carriage or possession of the weapon is not authorised by the regulations or permitted in writing by the Secretary.

A person who is authorised by the Aviation Regulations to carry or have a weapon in their possession in a place accessible to them on board a prescribed aircraft does not commit an offence under section 49.

For the purposes of paragraph 49(d) of the Aviation Act, regulation 4.59 of Division 4.2 of Part 4 of the Aviation Regulations authorises persons to have a weapon in their possession on board a prescribed aircraft.

This amendment repeals the previous heading for regulation 4.59 of Division 4.2 of Part 4 of the Aviation Regulations and substitutes a new heading "Persons authorised to have weapons or test weapons in possession on prescribed aircraft".

The previous heading, "Persons authorised to have weapons in possession on prescribed aircraft" indicated that regulation 4.59 dealt with the persons previously authorised to have weapons in their possession while on-board a prescribed aircraft.

The purpose and effect of the amendment is to make clear that, following amendments made by Items below, regulation 4.59 deals with persons who are authorised to have weapons, and persons who are authorised to have test weapons in their possession while on-board a prescribed aircraft.

This amendment is consequential to amendments made to the Aviation Transport Security Act 2005 (the Aviation Act) by the Transport Security Amendment (Testing and Training) Act 2020 that introduced the concept of test weapons, and to the amendment made by Item [17] of this instrument.

Item [16] - Before subregulation 4.59(1)

This Item inserts a new subheading "Weapons" in regulation 4.59, before subregulation 4.59(1) of Division 4.2 of Part 4 of the Aviation Regulations.

Previously, persons authorised under subregulation 4.59(1) generally included classes of person who are air security officers, representatives of the operator of a prescribed aircraft if the weapon has been surrendered and is to be handed to a law enforcement officer, and persons for whom the weapon is a tool of trade if the person keeps control of the weapon at all times.

All of the classes of persons authorised by subregulation 4.59(1) have a legitimate reason to have weapons of various types in their possession on board a prescribed aircraft.

The purpose and effect of the new subheading is to make clear that subregulation 4.53(1) deals only with persons who are authorised to have weapons in their possession on board a prescribed aircraft.

Item [17] - At the end of regulation 4.59

This amendment inserts new subregulation (6) into regulation 4.59 of Division 4.2 of Part 4 of the Aviation Regulations.

New subregulation 4.59(6)

New subregulation 4.59(6) authorises a person who is an aviation security inspector to possess a test weapon on board a prescribed aircraft if the inspector is on duty, and requires the weapon in relation to an exercise of a power under paragraph 79(2)(h) or paragraph 80(2)(f) of the Aviation Act to test a security system.

In order to ensure that an aircraft's security system (including pre-flight security procedures) is fully functioning, an aviation security inspector may conduct a test of the security system using a test weapon.

This amendment authorises an aviation security inspector to exercise a power to conceal a test weapon on an aircraft in order to test the security system, in line with paragraph 80(2)(f) of the Aviation Act and the requirements set out in Item [22] of this instrument.

An aviation security inspector may also be required to travel between states by prescribed aircraft so that security systems in security controlled airports in multiple jurisdictions can be tested. In some circumstances, depending on the type of a test weapon used, the test weapon is stored in a locked Security Construction and Equipment Committee (SCEC) endorsed container accessible by the aviation security inspector so that it remains under the inspector's control.

Test weapons have the appearance of the type of weapon that may be used by an adversary to cause an unlawful interference with aviation. Keeping these types of test weapons in a locked SCEC endorsed container in the inspector's line of sight is the most prudent and practical means of transporting them so that testing of security systems around the country can be conducted with test weapons that best replicate or imitate new weapons used by adversaries around the world.

This amendment also authorises an aviation security inspector to possess a test weapon on an aircraft in order to test a security system on arrival at the destination airport in accordance with paragraph 79(2)(h) of the Aviation Act and the requirements set out in Item [22] of this instrument.

The purpose and effect of this amendment is to explicitly authorise an aviation security inspector who is on duty to possess a test weapon on a prescribed aircraft in order to lawfully test a security system in the aircraft for paragraph 49(d) of the Aviation Act.

A further purpose is to ensure that an aviation security inspector is also authorised to use the test weapon to test a security system before and after disembarking from an aircraft and to transport new test weapons to other domestic jurisdictions.

Item [18] - At the end of regulation 4.63

Subparagraph 54(1)(c)(iii) of the Aviation Act, in part, makes it an offence for a person to be in an airside security or event zone, or a landside security or event zone, with a prohibited item in their possession if the person is not authorised by the regulations to have the prohibited item in their possession in one of those zones.

Regulation 4.63 of Division 4.3 of Part 4 of the Aviation Regulations authorises persons to have a prohibited item in their possession in a sterile area of a security controlled airport.

Currently, subregulation 4.63(1) authorises an air security officer to have a prohibited item in their possession in a sterile area, and subregulation 4.63(2) authorises a person who is escorting a person in custody to have a prohibited item in their possession in the sterile area if the item is reasonably necessary in connection with the escort.

This amendment inserts new subregulation (3) into regulation 4.63.

New subregulation 4.63(3)

For the purposes of subparagraph 54(1)(c)(iii) of the Aviation Act, new subregulation 4.63(3) authorises an aviation security inspector to have a prohibited item in their possession in a sterile area of an airport if the inspector is on duty and requires the item in relation to an exercise of power by the inspector under paragraph 79(2)(h) or 80(2)(f) of the Aviation Act to test a security system.

In order to ensure that security systems can detect all of the items that could be used for an unlawful interference with aviation by terrorists and other persons intent on causing harm, aviation security inspectors must be able to test security systems with those items, including prohibited items.

The purpose and effect of the amendment is to make clear that an aviation security inspector who is on duty is authorised, for subparagraph 54(1)(c)(iii) of the Aviation Act, to have a prohibited item in their possession in the sterile area of an airport to test a security system, whether the power to be exercised is under paragraph 79(2)(h) or 80(2)(f) of the Aviation Act.

Item [19] - At the end of regulation 4.64

Subparagraph 55(1)(c)(ii) of the Aviation Act, in part, makes it an offence for a person to carry a prohibited item through a screening point if the person is not authorised by the regulations to pass through a screening point with the prohibited item in their possession.

Regulation 4.64 of Division 4.3 of Part 4 of the Aviation Regulations authorises persons to carry a prohibited item through a screening point.

Currently, regulation 4.64 authorises classes of person who may carry a prohibited item through a screening point under certain circumstances. These classes include screening officers on duty, the operators of a screened aircraft (being employees or contractors on duty), persons escorting a person in custody, persons with medical conditions or their carers'.

The amendment made by Item [19] inserts new subregulation (6) into regulation 4.64.

New subregulation 4.64(6)

For the purposes of subparagraph 55(1)(c)(ii) of the Aviation Act, new subregulation 4.64(6) authorises an aviation security inspector to carry a prohibited item through a screening point in circumstances where the inspector is on duty and requires the item in relation to an exercise of power by the inspector under paragraph 79(2)(h) or 80(2)(f) of the Aviation Act to test a security system.

In order to ensure that a screening system at a screening point can detect all of the items that could be used for an unlawful interference with aviation by terrorists and other persons intent on causing harm, aviation security inspectors must be able to test screening point security systems with prohibited items.

An aviation security inspector may also need to carry a prohibited item through a screening point to test a security system on the airside of a security controlled airport.

This amendment authorises an aviation security inspector who is on duty and who requires a prohibited item to conduct testing, to carry a prohibited item through a screening point in order to test a security system, in line with paragraph 79(2)(h) or 80(2)(f) of the Aviation Act and the requirements set out in Item [22] of this instrument.

The purpose and effect of the amendment is to make clear that an aviation security inspector who is on duty and who requires a prohibited item for conducting a security systems test is authorised, for subparagraph 55(1)(c)(ii) of the Aviation Act, to carry a prohibited item through a screening point to test a security system, whether the power to be exercised is under paragraph 79(2)(h) or 80(2)(f) of the Aviation Act.

Item [20] - After subregulation 4.65(2)

The amendment made Item [21] inserts new subregulation (2A) into regulation 4.65 of Division 4.3 of Part 4 of the Aviation Regulations, which deals with persons who are authorised to have prohibited items in possession on prescribed aircraft.

Currently, regulation 4.65 authorises classes of person who may have a prohibited item on board a prescribed aircraft under certain circumstances. These classes include air security officers, officers of Customs when undertaking duties under the Customs Act 1901, and representatives of aircraft operators if the item was surrendered on board the aircraft and the item is stored in such a way that its presence is not apparent to passengers on the aircraft.

New subregulation 4.65(2A)

New subregulation 4.65(2A) authorises an aviation security inspector to have a prohibited item in the inspector's possession on board a prescribed aircraft if the inspector is on duty and requires the item in relation to an exercise of power by the inspector under paragraph 79(2)(h) or paragraph 80(2)(f) of the Aviation Act to test a security system.

Similarly to the amendment made by Item [18] of this instrument, the purpose and effect of the amendment is to explicitly authorise an aviation security inspector to have a prohibited item on a prescribed aircraft in order to lawfully test a security system in the aircraft for paragraph 57(d) of the Aviation Act.

A further purpose is to ensure that an aviation security inspector is also authorised to use the prohibited item to test a security system before and after disembarking from an aircraft and to transport prohibited items used for testing security systems to other domestic jurisdictions.

Item [21] - After subregulation 5.01(2)

Subsection 78(2) of the Aviation Act operates to provide that the Aviation Regulations may set out requirements in relation to the form, issue and use of aviation security inspector identity cards.

Subregulation 5.01(2) in Division 5.1 of Part 5 of the Aviation Regulations makes it mandatory that, if a person representing or apparently representing an aviation industry participant so requests, an aviation security inspector must show his or her identity card to the person.

This Item inserts new subregulation 5.01(2A) which provides that the requirement to show an identity card set out in subsection 5.01(2) does not apply if the aviation security inspector is exercising a power set out in paragraph 79(2)(h) or 80(2)(f) of the Aviation Act to test a security system and the inspector reasonably believes that showing the inspector's identity card to the person would adversely affect the effectiveness of the test.

In order to be a true test of a security system, the test must be conducted in as covert a manner as possible under the circumstances.

The purpose and effect of the amendment is to ensure that an aviation security inspector is not required to show their aviation security inspector identity card when doing so would interfere with the effectiveness of the test, and so that an aviation security inspector is not subject to the penalty prescribed under subregulation 5.01(2) if they do not show their identity card in those circumstances.

Item [22] - At the end of Division 5.1 of Part 5

This Item inserts a new regulation 5.02 in Division 5.1 of Part 5 of the Aviation Regulations.

Subsection 79(2A) of the Aviation Act 2004 requires that requirements for security systems testing for the purposes of paragraph 79(2)(h) be prescribed and in force before an aviation security inspectors' powers as set out in paragraph 79(2)(h) can be exercised.

New regulation 5.02 introduces new requirements for general security systems testing and requirements for aircraft security systems testing.

New subregulation 5.02(1) - Requirements relating to general security systems testing

For the purposes of paragraph 79(2)(h) of the Act, new paragraph 5.02(1)(a) sets out mandatory requirements that must be met if the aviation security inspector proposes to use a test weapon to conduct a test of a security system.

In those circumstances, subparagraph 5.02(1)(a)(i) prescribes the requirement that before the test is conducted, the inspector must notify each agency specified in subregulation 5.02(3) (to the extent that the agency has functions or powers in relation to the place in which the test is to be conducted) of the location, time and day on which the test will be conducted.

For the purposes of subparagraph 5.02(1)(a)(i) the agencies specified in subregulation 5.02(3) are the Australian Federal Police, the police force of a State or Territory, the Australian Border Force.

In addition, subparagraph 5.02(1)(a)(ii) prescribes the requirement that the inspector must hold, and have in their possession at the time of the test, any licence or permission that is required for the inspector to possess and use the test weapon to test the security system under the law of the State or Territory in which the test is to be conducted.

This amendment is consistent with an existing requirement in subparagraph 4.54(1)(a)(iii) for other persons who are authorised to have weapons (firearms) in their possession within secure areas of a security controlled airport, and makes clear that if the law of the relevant State or Territory requires a licence or permission for the test weapon, the aviation security inspector is required to hold one and to have it in their possession at the time of the security systems test.

Further, subparagraph 5.02(1)(a)(iii) prescribes the requirement that the inspector must carry, transport, and store the test weapon in accordance with any requirements under the law of the State or Territory in which the test is to be conducted.

This amendment is consistent with a requirement for other persons who are authorised to have weapons in their possession within secure areas of a security controlled airport (see for example paragraph 4.54(1)(a)) and will not impose an untenable administrative, operational, or financial burden on the department. Each state or territory has aviation security inspectors who are instructed on these requirements as part of their training.

At the conclusion of a test, subparagraphs 5.02(1)(b)(i) and (ii) prescribe the requirement that the inspector must advise the person representing or apparently representing an aviation industry participant at the test that the inspector is an aviation security inspector, and show that person their inspector's identity card.

Paragraph 5.02(1)(c) prescribes the requirement that within a reasonable time after the test, the inspector must provide a report of the outcome of the test to each aviation industry participant responsible for the security system that was tested.

Aviation security inspectors provide a representative of the aviation industry participant with an oral indicative systems test outcome during the systems test debrief, usually within two hours of the test concluding. This ensures that the responsible industry participant is aware of any matter that may need to be addressed.

What is a reasonable time?

"Reasonable time" in relation to providing a written report is the amount of time after the test which is necessary and required for an aviation security inspector to:

* Complete all planned compliance activities at the location at which the systems test was undertaken;

* Investigate any potential contraventions of the Aviation Act or Aviation Regulations identified during a systems test;

* Review each systems test outcome and any findings of non-compliance;

* Consider the evidence and the cause or causes for non-compliance;

* Determine which enforcement response is appropriate and in proportion to the contravention and apply it consistently with precedent; and

* Prepare the written report to be sent to the responsible aviation industry participant.

Some factors may extend investigation periods for contraventions. For example, if records relating to the systems test (such as screening images) are stored at a different location to the security system that was tested. Specific issues facing the particular aviation industry participant at the time of the test or any subsequent investigation may also extend the time period. For example where aviation security inspectors require aviation industry participants to provide records as part of the investigation, the response period may be extended to make allowances for the participant having reduced resourcing as was the case during the COVID-19 pandemic.

In addition, some aviation industry participants have requested periodic systems test outcome reports (every one to three months) based on the frequency of testing and their operational environment. In those circumstances, the pre-agreed time period is a 'reasonable time'.

The purpose of the amendment is to prescribe requirements for the exercise of a power in paragraph 79(2)(h) of the Aviation Act that must be met before and after a security systems test has been conducted that are clear, reasonable, appropriate, and adapted to their purpose.

The effect of these requirements is that no other entity is required to perform any additional act or omission in relation to the test itself. In effect, the requirements do not impose any additional administrative, financial, or operational burdens on any other entity.

These prescribed requirements also have the effect of allowing aviation industry participants to have a clear expectation of what actions an aviation security inspector must take after the test has been conducted.

New subregulation 5.02(2) - Requirements relating to aircraft security systems testing

Subsection 80(2A) of the Aviation Act operates to require that requirements for security systems testing for the purposes of paragraph 80(2)(f) be prescribed in the Aviation Regulations and in force before an aviation security inspectors' powers as set out in paragraph 80(2)(f) can be exercised.

Paragraph 80(2)(f) of the Aviation Act provides that an aviation security inspector may test a security system, including by using an item or test weapon to test its detection, in the aircraft if the test is conducted while passengers are not on board, boarding or disembarking from the aircraft, and in accordance with the requirements prescribed in the regulations for the purposes of paragraph 80(2)(f).

New subregulation 5.02(2) prescribes requirements for testing aircraft security systems.

For the purposes of paragraph 80(2)(f) of the Aviation Act, new paragraph 5.02(2)(a) prescribes the requirement that the aviation security inspector must include the location, time and day on which a test of a security system will be conducted in the notice given to the aircraft operator under subsection 80(3) of the Aviation Act.

Subsection 80(3) of the Aviation Act provides that an aviation security inspector may exercise a power mentioned in subsection 80(2) after giving the aircraft operator reasonable notice.

In addition to the requirement to give reasonable notice under subsection 80(3), advance notice is required for access to the test location on board the aircraft, and to minimise and adapt to flight schedule disruptions.

New paragraph 5.02(2)(b) prescribes the requirement that, in advance of the test, the inspector must also notify the airport operator of the location, time and day on which the test will be conducted.

New paragraph 5.02(2)(b) also prescribes the requirement that, in advance of the test, the inspector must notify whichever of the agencies specified in subregulation 5.02(3) is relevant to the extent that the agency has functions or powers in relation to the aircraft in which the test is to be conducted.

For the purposes of subparagraph 5.02(2)(b)(ii), the agencies specified in subregulation 5.02(3) are the Australian Federal Police, the police force of a State or Territory, the Australian Border Force.

The purpose of this requirement is to aid planning, access and response protocols in line with each agency's span of control.

With respect to the requirement that one or more of the agencies specified in subregulation 5.02(3) are notified, it is not the intention that the entire agency is notified. The intention is that where that agency has functions or powers in relation to the aircraft in which the test is to be conducted, that part of the agency in that locale is notified. The method of notification is agreed in advance with each agency.

The purpose of this amendment is to prescribe requirements for the exercise of a power in paragraph 80(2)(f) of the Aviation Act, that must be met by an aviation security inspector before they conduct security systems tests, particularly with test weapons, and what must be done after the test has been completed.