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2016-2017-2018
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
AVIATION TRANSPORT SECURITY AMENDMENT BILL 2018
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Home Affairs,
the Hon Peter Dutton MP)
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AVIATION TRANSPORT SECURITY AMENDMENT BILL 2018
OUTLINE
The Aviation Transport Security Amendment Bill 2018 (the Bill) amends the
Aviation Transport Security Act 2004 (the Act) to allow the Secretary to give an aviation
industry participant a transport security program (TSP) that sets out the security requirements
they must meet.
Background
The purpose of the Act is to establish a regulatory framework to safeguard against unlawful
interference with civil aviation in Australia. It sets the minimum security requirements with
which industry participants, or persons engaged in civil aviation related activities, must
comply.
Transport Security Programs
The Act currently requires security controlled airports, prescribed air operators and any other
participant prescribed in Aviation Transport Security Regulations 2005 (the Regulations) to
hold a TSP. A TSP is a document developed by an industry participant, and approved by the
Secretary under the framework established by the Act and Regulations. A TSP sets out the
measures and procedures that industry participants have in place to meet their legislative and
regulatory obligations. A TSP demonstrates the participant is aware of, and has the capacity
to meet, their obligations. It must also set out how that industry participant coordinates and
manages aviation security, taking into account their local security risk context.
Currently all security regulated aviation industry participants are required to maintain a
comprehensive and bespoke TSP, regardless of the differences in the size, sophistication or
complexity of their operations. This approach for TSPs places a higher administrative burden
on smaller industry participants that often operate in regional Australia. The Government
assesses all TSPs, including minor amendments, and maintains a program of compliance
activities to ensure industry participants uphold their approved commitments to security
requirements.
The costs to both industry and Government are not proportionate to the security benefits
associated with smaller industry participants maintaining a bespoke TSP, particularly given
their lower risk.
A Secretary-issued Transport Security Program
The Bill proposes to amend the Act to allow the Secretary to give a TSP to an industry
participant. In practice, a participant would be given a TSP if assessed as lower risk and
where the administrative burden of preparing a bespoke TSP is not proportionate to the
security outcomes. Risk assessments are informed by intelligence and the characteristics of
industry participants, such as: location; proximity to iconic or critical infrastructure; regular
passenger numbers; and the types of services provided.
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A Secretary-issued TSP (or 'model' TSP) will set out the aviation security obligations for
these industry participants, and will not require preparation of a detailed program about how
the participant will meet these obligations (unlike a TSP for a higher risk industry
participant). Government compliance activities will continue to ensure obligations are
maintained.
This approach recognises the different level of risk and the disproportionately high costs for
lower risk industry participants. It will uphold security outcomes while reducing costs to
industry. Lower risk industry participants can direct their resources towards implementing
and maintaining robust security measures, and meeting the TSP requirements, rather than
documenting their security measures for the Government.
The Bill will:
(a) reduce the administrative burden for smaller industry participants by allowing the
Secretary to give a TSP to an industry participant where assessed as lower risk;
(b) ensure that a TSP given to an industry participant includes security requirements that are
appropriate for safeguarding against unlawful interference with aviation;
(c) allow for regulations to be made prescribing other matters to be dealt with in the TSP
given to an industry participant; and
(d) provide the ability to respond to changes in the aviation security environment through the
revision or cancellation of the TSPs given to industry participant.
The Bill will also amend the Act to provide industry participants with the review rights to the
Administration Appeals Tribunal for a decision to give a TSP or a revised TSP; to cancel a
Secretary-issued TSP; and to refuse to cancel a Secretary-issued TSP.
Financial impact statement
There will be no financial impact as result of this Bill.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Aviation Transport Security Amendment Bill 2018
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
The Aviation Transport Security Amendment Bill 2018 (the Bill) amends the
Aviation Transport Security Act 2004 (the Act) to allow the Secretary to give a transport
security program (TSP) to an aviation industry participant.
The Act currently requires security controlled airports, prescribed air operators, and any other
participants prescribed in the Aviation Transport Security Regulations 2005 (the Regulations)
to hold a TSP. A TSP is a document developed by an industry participant, and approved by
the Secretary under the framework established by the Act and Regulations. A TSP sets out
the measures and procedures that industry participants need to maintain to meet their
legislative and regulatory obligations. A TSP demonstrates the industry participant is aware
of, and has the capacity to meet their obligations. While taking into account the local security
risk context the industry participant must also set out in the TSP how it will coordinate and
manage aviation security.
The Bill proposes to give a TSP to lower risk industry participants. A Secretary-issued TSP
will set out the aviation security obligations for these industry participants, but will not
require preparation of a detailed program about how the participant will meet these
obligations (unlike a TSP for a higher risk participant). The Government will continue to
undertake compliance activities to ensure Secretary-issued TSP obligations are maintained.
This approach recognises the different level of risk and the disproportionately high costs for
lower risk industry participants. It will uphold security outcomes while reducing costs to
industry. Lower risk industry participants can direct their resources towards implementing
and maintaining robust security measures, and meeting the TSP requirements, rather than
towards documents about their security measures for the Government.
Human rights implications
This Bill does not engage any of the applicable rights or freedoms.
Conclusion
This Bill is compatible with human rights as it does not raise any human rights issues.
Minister for Home Affairs, the Hon Peter Dutton MP
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NOTES ON CLAUSES
Clause 1: Short Title
This clause provides that the Act will be cited as the Aviation Transport Security Amendment
Act 2018.
Clause 2: Commencement
This clause provides that all provisions of the Act commence the day after it receives
Royal Assent.
Clause 3: Schedules
This clause provides that the legislation specified in the Schedule to this Act, being the
Aviation Transport Security Act 2004, is amended or repealed as set out in the applicable
items in the Schedule. Any other items in a Schedule to this Act have effect according to its
terms. This is a technical provision which gives operational effect to the amendments
contained in the Schedule.
Schedule 1 - Amendments
Schedule 1 amends the Aviation Transport Security Act 2004 by inserting a new division in
Part 2 that allows the Secretary to give an aviation industry participant a transport security
program (TSP). The Schedule also sets out the requirements of a TSP given by the Secretary
and the conditions under which the Secretary may revise, revoke, or cancel a TSP.
Aviation Transport Security Act 2004
Item 1 - Section 4 (paragraph relating to Part 2)
This item amends the simplified overview of Part 2 by omitting the word "detail" and
substituting it with "set out". This change in language reflects the new provisions inserted by
item 7 that allow the Secretary to give a TSP to an industry participant.
Item 2 - Section 11
This item expands the simplified overview of Part 2 of the Act to refer to both TSPs given to
the Secretary and TSPs given by the Secretary. This consequential amendment is necessary to
reflect new sections inserted by item 7 that allow the Secretary to give a TSP to an industry
participant.
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Item 3 - Division 4 of part 2 (at the end of the heading)
This item makes a consequential amendment to the heading by adding "given to the
Secretary" to clarify that this Division does not apply to a TSP given by the Secretary under
the new Division 6.
Item 4 - After Division 4 of Part 2 (after the heading)
This item inserts a new section to specify that Division 4 of Part 2 applies only to a TSP
given to the Secretary, rather than a TSP given by the Secretary under the new Division 6.
Item 5 - Division 5 of Part 2 (at the end of the heading)
This item makes a consequential amendment to the heading by adding "given to the
Secretary" to make clear it that this Division does not apply to a TSP given by the Secretary,
provided for under the new Division 6.
Item 6 - Division 5 of Part 2 (after the heading)
This item inserts a new section to specify that Division 4 of Part 2 applies only to a TSP
given to the Secretary, rather than a TSP given by the Secretary under the new Division 6.
Item 7 - At the end of Part 2
This item inserts new sections 26B, 26C, 26D, 26E, 26F, 26G and 26H after section 26A of
the Act.
New section 26B provides that the Secretary may, by written notice, give a TSP to an
aviation industry participant in accordance with subsection 12(1) of the Act. This section also
provides that the Secretary may only give a participant a TSP where it is appropriate to do so,
taking into account existing circumstances as they relate to aviation security. If the aviation
industry participant is a smaller airport, these assessments of risk may include the location of
the airport, proximity to iconic or critical infrastructure, its regular passenger numbers and
the size of aircraft used in its operations.
The decision by the Secretary to give an industry participant a TSP under Subsection 26B(1)
will be reviewable by the Administrative Appeals Tribunal in accordance with the new
subsection 126(1)(dd).
Section 26C requires that a TSP given by the Secretary to an aviation industry participant
may:
set out the minimum security requirements that the aviation industry participant must
comply with for the purposes of safeguarding against unlawful interference with aviation;
deal with any other matter required to be dealt with in the program by regulations; and
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be appropriate for the participant's operations or locations covered by the TSP.
Section 26C also provides that the program may require the participant to have in place:
practices, procedures, technology, and equipment to coordinate and manage aviation
security activities;
a plan for how the participant will respond to aviation security incidents; and
practices and procedures to protect security compliance information.
Section 26C also provides that the regulations may prescribe other matters that are to be dealt
with in TSPs given by the Secretary under section 26B.
Section 26D provides that a TSP given by the Secretary to an aviation industry participant
comes into force at the time specified in the notice giving the TSP. A TSP remains in force
until the time it ceases to be in force as set out in the notice; or until the time it is replaced or
the time it is cancelled.
Section 26E specifies that if an aviation industry participant has been given a TSP by the
Secretary under section 26B, they may not give the Secretary another TSP (under Division 5)
without the Secretary's permission to do so.
Section 26F sets out when the Secretary may revise or cancel a TSP given under section 26B.
The Secretary may give an aviation industry participant another TSP or cancel the existing
TSP where they are no longer satisfied that the existing TSP is appropriate because
there has been a change in the circumstances that relate to, or could impact on aviation
security; or
for some other reason.
The Secretary may give the aviation industry participant a revised program which replaces
the existing program or by written notice, cancel the existing program. A decision by the
Secretary to cancel or to give an aviation industry participant a revised TSP will be
reviewable by the Administrative Appeals Tribunal in accordance with new subsection
126(1)(dd).
Section 26G sets out the process by which a TSP given by the Secretary to an aviation
industry participant under 26B may be cancelled for accumulating the number of demerit
points prescribed by the regulations (in accordance with amended subsection 125(1)). A
decision by the Secretary to cancel a TSP will be reviewable by the Administrative Appeals
Tribunal in accordance with new subsection 126(1)(dd).
Section 26H provides that an aviation industry participant may request, in writing, a TSP
given by the Secretary under section 26B to be cancelled. The participant must set out the
reasons for making the request and the Secretary has 60 days to accept or refuse the request.
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Should the Secretary not cancel or refuse to cancel the TSP within that timeframe, the
Secretary is taken to have refused to cancel the TSP.
Refusal by the Secretary to cancel the TSP will be reviewable by the Administrative Appeals
Tribunal in accordance with new subsection 126(1)(dd).
Item 8 - Subsection 125(1)
This item repeals subsection 125(1) and replaces the subsection to provide for a demerit
points system to be established in the regulations. If an aviation industry participant accrues
the prescribed number of demerit points under this system, a TSP given to the Secretary or
given by the Secretary may be cancelled.
Item 9 - After paragraph 126(1)(d)
This item adds to the list of decisions that are reviewable by an aviation industry participant;
a decision by the Secretary to give the participant a TSP (including a revised TSP);
a decision to cancel a TSP; and
a decision to refuse to cancel a TSP.
This ensures consistency across decisions made in relation to a TSPs given under section 26B
and TSPs approved by the Secretary under section 19.
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