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2004
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
SENATE
AVIATION
SECURITY AMENDMENT BILL
2004
EXPLANATORY
MEMORANDUM
(Circulated by
authority of the Minister for Transport and Regional Services,
the
Honourable John Anderson, MP)
AVIATION SECURITY AMENDMENT BILL 2004
The Bill has two parts. The first amends the Aviation Transport
Security Act 2004 (‘the ATS Act’) and the Civil Aviation Act
1988 (‘the CA Act’) to allow background checking
(currently criminal records, citizenship and politically motivated violence
checks) of holders of security designated authorisations. This will include
flight crew and trainee flight crew as defined in the CA Act, but may also be
extended to other holders of Civil Aviation authorisations.
The second
part amends the ATS Act to include contractors of Airservices Australia as
aviation industry participants and the Aviation Transport Security
(Transitional Provisions and Consequential Amendments) Act 2004 to allow
certain programs under the Air Navigation Act 1920 (‘the AN
Act’) to continue as programs under the ATS Act. This will enable existing
programs to be gradually transitioned to the new requirements under the ATS Act,
rather than existing programs terminating on the day the substantive provisions
of the ATS Act commence.
Existing budget allocations will be unaffected by this
Bill.
AVIATION SECURITY AMENDMENT BILL 2004
1. This clause provides that the Bill will be called the Aviation
Security Amendment Act 2004 once enacted.
2. This clause provides that sections 1 to 3 of the Bill will commence on
the date of Royal Assent. Schedule 1 and Items 1 and 2 of Schedule 2 of the
Bill will commence on the date of Royal Assent and immediately after the
commencement of section 3 of the Aviation Transport Security Act 2004.
Item 3 of Schedule 2 of the Bill will commence on the date of Royal
Assent.
3. This clause provides that any Schedule to this Act is amended or
repealed.
This item provides that the Director of the Civil Aviation Safety
Authority (CASA) has the same meaning as Director of Aviation Safety, as given
by section 84 of the Civil Aviation Act 1988.
This item provides that security designated authorisation has the meaning
given by the regulations.
This item adds the security status checking division to the simplified
overview of Part 4 of the ATS Act.
Item 4
This item inserts
Division 9 “Security status checking” into the ATS
Act.
Section 74F
This item provides for a simplified
overview of Division 9 or Part 4 of the ATS Act.
Section
74G
Subsection (1) provides that the Secretary may determine that a
person has an adverse aviation security status.
Subsection (2) provides
that when the Secretary makes a determination under subsection (1), the
Secretary must give a copy of the determination to the person in question and to
CASA.
Subsection (3) provides that, where a determination is made under
subsection (1), CASA must as soon as practicable either reject an application
for a security designated authorisation, or suspend or cancel an existing
authorisation as appropriate.
Subsection (4) provides that a decision to
determine that a person has an adverse aviation security status is taken to be
prescribed administrative action for the purposes of Part IV of the
Australian Security Intelligence Organisation Act 1979 (‘the ASIO
Act’). The purpose of this provision is to ensure that advices given by
the Australian Security Intelligence Organisation (ASIO) in relation to the
status of pilots and other authorisation holders are security assessments for
the purposes of the ASIO Act, and are therefore subject to the specific review
rights which are provided for under the ASIO Act and the Administrative
Appeals Tribunal Act 1975.
Section 74H
Paragraph
(1)(a) provides that regulations may be made providing for the matters to which
the Secretary must have regard for the purposes of deciding whether or not to
determine that a person has an adverse aviation security status. It is envisaged
that this will include the results of security assessments by ASIO; checks as to
a person’s immigration status by the Department of Immigration,
Multicultural and Indigenous Affairs (DIMIA); and a criminal records check
conducted by the Australian Federal Police (AFP).
Paragraph (1)(b)
provides that regulations may be made specifying circumstances in which the
Secretary must determine that a person has an adverse aviation security status.
This envisages certain circumstances where the Secretary will have no discretion
but to declare someone as having an adverse security status. These are likely to
include circumstances where a person is an unlawful non-citizen, where a person
receives an adverse or qualified security assessment from ASIO or where the
person has been convicted of certain prescribed criminal offences. These are
likely to include convictions for serious offences such as those contained in
Part 2 of the Crimes (Aviation) Act 1991 and Part 5.3 of the Criminal
Code.
Paragraph (1)(c) provides that regulations may be made
specifying circumstances in which the Secretary may determine that a person has
an adverse security status. It is envisaged that where a person has a particular
criminal history, that the Secretary will have a discretion as to whether to
declare the person to have an adverse aviation security status.
Paragraph
(1)(d) provides that regulations may be made providing for matters relating to
the carrying out of security status checking.
Paragraph (1)(e) provides
that regulations may be made authorising the use or disclosure of personal
information. The purpose of this provision is to facilitate the flow of
information between relevant agencies necessary for background checking of
pilots to occur, without those agencies breaching the Privacy Act 1988.
Paragraph (1)(f) provides that regulations may be made specifying
procedures and other matters relating to the determination of applications for
security designated authorisations. This includes, but is not limited to,
delaying the determination of such applications pending the outcome of security
status checking. This provision will, amongst other things, allow regulations to
be made which require CASA to wait until the results of background checking are
known before progressing an application for a security designated
authorisation.
Paragraph (1)(g) provides that regulations may be made
specifying procedures and other matters relating to the issue, suspension or
cancellation by CASA of security designated authorisations or the refusal by
CASA to issue security designated authorisation. For example, this would enable
regulations to be made which prevented CASA from issuing a security designated
authorisation to a person unless the applicant has been subject to checks by
ASIO, DIMIA and the AFP. It would also allow regulations which provided that
CASA must cancel a security designated authorisation where it isn’t
possible to subject the holder to background checking.
Paragraph (1)(h)
provides that regulations may be made providing that applicants for, or holders
of, security designated authorisations may request security status checking be
undertaken.
Paragraph (1)(i) enables regulations to be made specifying
the consequences of a failure of a person to request background checking be
undertaken.
Paragraph (1)(j) provides that regulations may be made
providing for the collection of fees by CASA on behalf of the Commonwealth,
being fees prescribed by the regulations for the purposes of this Division.
Paragraph (1)(k) provides that regulations may be made giving CASA the
function of determining that a person has an adverse security status. Such
regulations would mean that the determination of whether a person has an adverse
security status becomes a function of CASA. Such regulations, together with
paragraph (1)(j) and the addition of paragraph 98(3)(v) to the CA Act will allow
CASA to impose and collect fees in its own right for the purposes of performing
such a function.
Paragraph (1)(l) enables the Director of CASA to
delegate all or any one of the functions and powers conferred on CASA under Part
4, Division 9 of the Aviation Transport Security Act 2004 to a CASA
officer at the Senior Executive Services level equivalent. For example, the
Director of CASA can delegate to such an officer, the power to determine if a
person has an adverse security status.
Paragraph (1)(m) provides that
regulations may be made in relation to any other matter related to the operation
of this Division.
Paragraph (2)(a) provides that if regulations under
paragraph (1)(k) are in force, reference in section 74G and section 74H to the
Secretary are taken to be references to CASA.
Paragraph (2)(b) provides
that paragraph 74G(2)(b) does not apply to a determination by CASA under
subsection 74G(1). This prevents CASA having to furnish a decision to
itself.
Paragraph (2)(c) provides that paragraph 126(1)(f) has effect as
if the reference in subsection 126(1) to the Secretary included a reference to
CASA.
Section 74I
This section provides that Division 9 has
effect despite anything in the CA Act or regulations under that Act. The purpose
of this provision is to ensure that the provisions of Division 9 and regulations
made under Division 9 have effect despite provisions in the CA Act (such as, for
example, section 18) or CA Regulations, which might be regarded as being
inconsistent.
This item adds paragraph (f) and subsections (2) and (3) to section 126
of the ATS Act. The item deals with appeals against decisions made under that
Act. This grants a right of appeal against a decision by the Secretary or CASA
to declare someone as having adverse aviation security status.
This Item
makes it clear that the right to appeal against the Secretary’s decision
to declare a person to have an adverse security status does not allow the
contents of an ASIO assessment to be reviewed by virtue of paragraph 126(f) of
the ATS Act. Therefore, the right of appeal under paragraph 126(f) does not
supplement or replace the right of appeal against a security assessment under
the ASIO and AAT Act.
This item inserts a provision into the ATS Act which allows the Secretary
to delegate any of his or her powers under Division 9 of Part 4 to a member of
the Senior Management Group of CASA.
This item inserts a provision into the CA Act which provides that
CASA’s functions include functions conferred on it under the ATS Act. This
includes functions conferred on CASA under regulations made under the ATS Act.
This item repeals subsection 9(5) of the CA Act. This is to remove any
possibility that CASA is precluded from taking on some security functions.
This item provides that regulations may be made under the CA Act
formulating a scheme in relation to security status checking.
Item
10
This item adds paragraph (v) to subsection 98(3) of the CA Act. It
makes it clear that CASA is able to prescribe fees which CASA can collect in
relation to services, applications or requests, or the doing of anything, by
CASA under the ATS Act.
This item amends paragraph (f) of the definition of aviation industry
participant in section 9 of the ATS Act to ensure that aviation industry
participants includes contractors of Airservices Australia as well as
contractors of other aviation industry participants. This corrects an oversight
which occurred when paragraph (ea) was added to the definition of aviation
industry participant.
This item amends Schedule 3 of the Aviation Transport Security
(Consequential Amendments and Transitional Provisions) Act 2004 to allow
regulations to be made which enable airport security programs approved under the
AN Act to continue to be in force as Transport Security Programs under the ATS
Act, and Aviation Security Identification Card (ASIC) programs and international
cargo security programs approved under the AN Act to continue to be in force as
Transport Security Programs or such other programs under the ATS Act as are
prescribed by the regulations.
These amendments will allow transitional
arrangements to be put in place whereby existing programs under the AN Act do
not necessarily come to an end at the commencement of the substantive provisions
of the ATS Act.
Item 3
This item provides that the exercise
or purported exercise of power under regulation 5 of the Air Navigation
(Aviation Security Status Checking) Regulations 2004 to determine that a
person has an adverse aviation security status is taken for all purposes to be,
and is taken for all purposes always to have been, prescribed administrative
action for the purposes of Part IV of the ASIO Act. The effect of this is that
advice provided by ASIO for the purposes of the Air Navigation (Aviation
Security Status Checking) Regulations will be taken to be security assessments
under the ASIO Act.