EXPLANATORY STATEMENT

 

Select Legislative Instrument 2008 No. 190

 

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

 

Aviation Transport Security Act 2004

 

Aviation Transport Security Amendment Regulations 2008 (No. 2)

The Aviation Transport Security Act 2004 (the Act) and the Aviation Transport Security Regulations 2005 (the Principal Regulations) establish a regulatory framework to protect the security of civil aviation in Australia.

 

Section 133 of the Act provides, in part, 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.

 

These Regulations amend the Aviation Transport Security Regulations 2005 (the Principal Regulations) establish a new regulatory scheme to expand and enhance the application of security measures for air cargo. The new scheme, the ‘accredited air cargo agent scheme’ will operate along with the existing Regulated Air Cargo Agent (RACA) scheme and apply to businesses that handle or transport air cargo but are not regulated under the RACA scheme.

 

RACAs will continue to develop their own individual transport security programs to comply with whilst AACAs will be provided with AACA security programs by the Department of Infrastructure, Transport, Regional Development and Local Government. The regulations make technical amendments to the regulated air cargo agent scheme and establish new powers relating to air cargo examination.

 

The Regulations prescribe:

• the definition of an accredited air cargo agent;

• requirements to be complied with by accredited air cargo agents;

• the information that must be included in an application to become an accredited air cargo agent;

• requirements that apply to the accreditation of an accredited air cargo agent;

• offences related to accredited air cargo agents;

• the review of decisions in relation to an accredited air cargo agent;

• amendments to regulated air cargo agent security programs; and

• arrangements for the examination of air cargo.

 

Attachment A summarises the consultation that has been undertaken.

Attachment B explains each clause of the Amendment Regulations.

 

Attachment C details the Regulatory Impact Statement for the Amendment Regulations.

 

The 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 Legislative Instruments Act 2003.

 

The Regulations commence on 1 October 2008.

 

 

 

 

 

ATTACHMENT A

 

CONSULTATION

Consultation with industry regarding the AACA scheme began mid 2007. The (now) Department of Infrastructure, Transport, Regional Development and Local Government (the Department) engaged a contractor to undertake a telephone survey to seek to establish a national and representative industry profile of land transport operators involved in air cargo movement. The survey also sought to establish current levels of awareness of security requirements, attitudes towards security generally and attitudes towards requirements related to a mandatory security accreditation scheme in particular.

In February – March 2008, a more focussed consultation process on issues relating to the proposed Accredited Air Cargo Agent (AACA) scheme was undertaken by the Department facilitated by a contractor.

The 2008 consultation process involved a series of 16 workshops held across all six States and at a mix of metropolitan and regional venues. At these workshops attitudes were gauged and feedback sought relating to proposed requirements under the AACA scheme. Attendees included RACAs and potential AACAs. The Department was also represented.

Consultation has continued throughout the drafting of the amendment Regulations, with meetings held with affected industry members on the specific details of the regulations.

 

 

 

 

 

 

 

 

 

 

 

 

ATTACHMENT B

 

Details of the proposed Aviation Transport Security Amendment Regulations 2008 (No. 2)

 

Regulation 1 – Name of the Regulations

 

The title of the Regulations is the Aviation Transport Security Amendment Regulations 2008 (No. 2).

 

Regulation 2 – Commencement

 

The Regulations commence on 1 October 2008.

 

Regulation 3 – Amendment of Aviation Transport Security Regulations 2005

 

The Aviation Transport Security Regulations 2005 (the Principal Regulations) are amended as set out in Schedule 1.

 

Schedule 1 – Amendments

 

Item [1] – New definitions in regulation 1.03

Item 1 introduces definitions of Accredited Air Cargo Agent (AACA) and AACA security program into the Principal Regulations.

 

Item [2] – Omit paragraph 2.51 (4) (b)

Item 2 omits the requirement for RACA transport security programs to contain procedures for disclosure of information concerning security measures not to be applied to cargo; for example, disclosure to a consignor that their cargo will not be X-rayed. RACAs can continue to include details of these matters in transport security programs for the purposes of the replaced regulation 4.46,(see Item 14 below), however this amendment makes their inclusion voluntary. This allows a significant number of RACAs to reduce the scope of matters considered in preparing their Transport Security Program (TSP,) reducing unnecessary administration where RACA’s do not know or need to be able to disclose security measures that will not be applied to cargo.

 

Item [3] – Substitute subregulation 2.55 (1)

Item 3 limits the application of physical security and access control procedures which must be contained in a RACA transport security program to those matters that are applicable to the RACA's sites.

This provision also removes a requirement for RACA’s (TSP) to:

·        assess, identify and respond to unknown substances – this is considered an impractical requirement as unknown substances can be found at a large proportion of RACA facilities without presenting a risk; and

·        investigate, secure, and remove unattended or suspect vehicles, aircraft or things, including baggage and cargo – this is considered a requirement that is inconsistent with the nature of RACA operations and the assessed security threat. RACA’s are considered a potential conduit for committing an act of unlawful interference with aviation rather than being a primary target for direct attack. This requirement is primarily focused on preventing direct attack using a concealed explosive device.

Paragraph (i) requires RACA TSPs to include measures and procedures for the examination of cargo rather than measures and procedures for ‘preparing cargo for clearance’. This reduces ambiguity regarding what detail must be included in TSPs.

 

Item [4] - Omit regulation 2.56

Item 4 omits requirements for the control of firearms, other weapons and prohibited items to be contained in a RACA TSP. Removal of this requirement simplifies transport security programs whilst not impacting upon the security outcome. This is due to the existence of substantial security requirements for firearms and other weapons under other state and Commonwealth legislation.

 

Item [5] - Substitute regulation 2.59

Item 5 introduces limits on persons who can be covered in a RACA TSP, to those that act as an agent, subsidiary or contractor, of the RACA. The purpose of this is to prevent a RACA from covering others with whom they have little or no control or influence over. This will help prevent businesses from obtaining a covered status without implementing the security measures required under the TSP.

 

Item [6] – Substitute subregulations 4.40 (3) and (4)

Item 6 requires a RACA, Aircraft Operator or AACA to examine cargo in accordance with any written notices they have been issued, or if they have not been issued a notice either their TSP or AACA Security Program, whichever applies. This allows the Secretary of the Department of Infrastructure, Transport, Regional Development and Local Government to update examination requirements consistently as technology and the nature of the security threat necessitates it but also allows for individual examination requirements to be proposed by RACAs through their TSP. Subregulation (4) also provides for the Secretary to issue one or more written notices under item 7. This allows for additional requirements to be prescribed as needed without amending other notices, allowing for simpler administration.

 

Item [7] – Substitute subregulations 4.40 (6) and (7)

Item 7 prescribes who a notice may be issued to by the Secretary and establishes an obligation to comply with any Notice issued:

• Subregulation (6) includes an AACA as a type of person which may be issued with a written notice and provides that specific persons, classes or types of persons can be issued written notices.

• Subregulation (7) establishes that a class under subregulation (6) may be identified by reference to the kind of site from which the AACA, RACA or aircraft operator is operating.

• Subregulations (8) and (9) establishe a strict liability offence of 50 penalty units for failing to comply with a notice issued under subregulation (4). There are legitimate grounds for penalising a person/authority lacking ‘fault’ for failing to comply with a notice issued under the regulations. This is consistent with current regulations related to notices issued for the screening of passengers and baggage. The penalties for these offences do not exceed 60 penalty units, and are therefore aligned with the recommended penalty for strict liability offences as provided by the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.

 

Item [8] – Substitute subparagraph 4.43 (2) (b) (ii)

Item 8 prescribes the requirement for a RACA application to detail a trading name where the RACA is a partnership. This makes the requirements for partnerships consistent with those for other types of applicant such as companies.

 

Item [9] – Omit and insert in paragraph 4.43 (2) (f)

Item 9 makes a minor syntax change to allow item 10 to be added.

 

Item [10] – Insert new paragraph 4.43 (2) (g)

Item 10 inserts new paragraph 4.43 (2) (g) into the Principal Regulations and requires details of previous RACA designations and AACA accreditations and revocations to be advised when applying to become a RACA.

 

Item [11] – Substitute paragraphs 4.44 (1) (d) and (e)

Item 11 expands the grounds for revocation of RACA designation to include failure to comply with a special security direction, failure to comply with a TSP and not having a TSP.

 

Item [12] – Insert new subregulation 4.44 (3)

Item 12 inserts new subregulation 4.44 (3) into the Principal Regulations and provides for the automatic revocation of a RACA designation when a person is accredited as an AACA. This allows for more efficient administration and eliminates the possibility for a single person to be both an AACA and a RACA, with potentially conflicting obligations between his or her TSP and an AACA security program.

 

Item [13] – Insert new regulation 4.45A

Item 13 inserts new regulation 4.45A into the Principal Regulations and provides a new offence provision for failing to notify, within seven working days, a change to information contained in a RACA application which resulted in designation. There are legitimate grounds for penalising a person/authority lacking ‘fault’ for failing to notify the Secretary if information contained in an application changes. The penalties for these offences do not exceed 60 penalty units, and are therefore aligned with the recommended penalty for strict liability offences as provided by the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.

 

Item [14] - Substitute regulation 4.46

Item 14 introduces a replacement regulation 4.46, introducing offences for an Aviation Industry Participant (AIP) or an AACA to disclose to another person:

·        measures and procedures to be applied to cargo;

·        measures and procedures that will not be applied to cargo;

·        the airline or flight a particular cargo will be carried on

 

These offences only apply if the disclosure is not in accordance with the relevant TSP or AACA Security Program.

 

Item [15] – Insert new Subdivisions 4.1A.3, 4.1A.4 and 4.1A.5

Item 15 inserts new Subdivision 4.1A.3 concerning accredited air cargo agents, new Subdivision 4.1A.4 concerning AACA security programs and new Subdivision 4.1A.5 concerning offences into the Principal Regulations.

 

Regulation 4.47 – Accredited air cargo agent

New regulation 4.47 establishes a definition of an accredited air cargo agent, being a person who carries on a business that includes the handling, or making arrangements for the transport of cargo that has been accredited by the Secretary as an AACA.

 

Regulation 4.48 – Applying for accreditation

New regulation 4.48 deals with applications for accreditation as an accredited air cargo agent.

• Subregulation (1) provides that a person carrying on a business, or intending to carry on a business that includes the handling, or making arrangements for the transport of cargo may apply to be accredited as an AACA. The subregulation also requires the application to be made in writing to the Secretary.

• Subregulation (2) specifies information that the application must contain, including the legal/trading names of the applicant, contact information for principal offices and sites and any business names and numbers registered under state or Territory legislation. Details of previous AACA accreditation or RACA designation, and any revocation thereof, as well as any evidence to support an intention to carry on a business which includes the handling, or making arrangements for the handling of cargo, are also sought.

 

Regulation 4.49 – Secretary to provide AACA security program

New regulation 4.49 establishes arrangements for the Secretary to provide an applicant with an AACA security program.

• Subregulation (1) requires the Secretary to provide an applicant with a security program appropriate for its kind of business;

• Subregulation (2) allows an applicant to accept a security program from the Secretary, withdraw its application or request an amendment;

• Subregulation (3) and (4) establish a 10 penalty unit offence provision requiring an applicant who withdraws, to return or destroy the program and any copies of its application. There are legitimate grounds for penalising a person/authority lacking ‘fault’ for failing to return or destroy copies of their program. The penalties for these offences do not exceed 60 penalty units, and are therefore aligned with the recommended penalty for strict liability offences as provided by the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.

• Subregulation (5) establishes a strict liability offence for failing to comply with subregulation (4);

• Subregulation (6) requires an applicant that seeks an amendment to a program to provide written details of the amendment and the reason for it.

 

Regulation 4.50 – Consideration of amended AACA security program

New regulation 4.50 outlines the considerations to be made by the Secretary in the event that an applicant makes a request to amend the program.

• Subregulation (1) sets out the matters the Secretary must take into account including whether the amendment meets the program content requirements in regulation 4.51F, circumstances as they relate to aviation security, the current use of the program by other businesses of that kind and the efficient administration of the scheme.

• Subregulation (2) requires the Secretary to make a decision regarding the request and related matters and to provide notice of the decision within 14 days.

• Subregulation (3) details that a request under paragraph 4.49(2)(c) will be considered rejected if no decision is made within 60 days.

• Subregulation (4) allows the Secretary to provide an amended AACA security program to other AACAs or applicants.

 

Regulation 4.51 – Consideration of the application

New regulation 4.51 allows for the Secretary to take into account information provided by the applicant and the nature of the applicant’s business in considering an application to become an AACA. This includes consideration as to whether the applicant should instead be designated as a RACA.

 

Regulation 4.51A – Decision on application

New regulation 4.51A outlines the options available to the Secretary when deciding upon an applicant becoming an AACA.

• Subregulation (1) allows the Secretary to accredit an AACA conditional on it complying with the original program, amended program, or refuse to accredit the applicant, with the option to advise the applicant to apply to become a RACA.

• Subregulation (2) allows the Secretary to seek further information before making a decision on an application.

• Subregulation (3) requires the Secretary to notify an applicant in writing within 14 days of making a decision and outline any reasons for any refusal.

• Subregulation (4) outlines that an application is taken to be refused after 60 days if no decision is made, unless the applicant has not yet commenced business, in which case the application in taken to be refused after 90 days.

• Subregulation (5) outlines that the time period in which additional information has been requested but not yet provided is not to be considered for the purposes of the time period outlined in subregulation (4).

 

Regulation 4.51B – Duration of accreditation

New regulation 4.51B prescribes the duration of an AACA accreditation.

• Subregulation (1) outlines that accreditation is ongoing unless revoked.

• Subregulation (2) outlines that accreditation cannot commence prior to a person commencing business including handling or making arrangements for the transport of cargo. This means that a business that is intending to handle or make arrangements for the transport of cargo can apply for accreditation under subregulation 4.48 (1) above, however that accreditation will not commence until such time that it actually commences in the business.

 

Regulation 4.51C – Action by Secretary in relation to the accreditation

New regulation 4.51C prescribes the action which may be undertaken by the Secretary in relation to the accreditation where there is a change to an AACAs operations such that they are no longer in accordance with their program.

• Subregulation (1) allows the Secretary to issue a notice to an AACA where there has been a change to its operations resulting in the AACA no longer carrying on business in accordance with the requirements of its AACA security program.

• Subregulation (2) allows the notice to propose one or more actions to the AACA, including:

• agree to restrict its activities to those in accordance with the program;

• agree to the Secretary imposing conditions relating to those activities not covered by the program;

• agree to comply with a different program;

• apply to be designated as a RACA;

• cancellation of accreditation.

• Subregulation (3) requires an AACA to notify the Secretary within 14 days of any of the choices it accepts.

• Subregulation (4) details that accepting cancellation of accreditation can be taken as a request for revocation of accreditation.

 

Regulation 4.51D – Revocation of accreditation

New regulation 4.51D prescribes the circumstances for revoking the accreditation of an AACA.

• Subregulation (1) allows for the immediate revocation of accreditation if it is in the interests of aviation security.

• Subregulation (2) allows accreditation to be revoked if:

• any information given in the AACA’s application is false;

• the AACA’s business no longer includes handling, or making arrangements for transporting of, cargo;

• the AACA has not given notice of a change as required by regulation 4.51H;

• the AACA has failed to comply with the AACA’s security program;

• the AACA does not respond to a notice under regulation 4.51C within the time provided in that regulation; or

• the AACA has asked the Secretary, in writing, to revoke the AACA’s accreditation.

• Subregulation (3) requires the Secretary to provide prior notice in writing of an intention to revoke accreditation under paragraph (2) (a), (b), (c), (d) or (e) and the reasons for the intended revocation.

• Subregulation (4) requires the Secretary to provide 14 days for an AACA to make a submission in response to a notice under subregulation (3).

• Subregulation (5) requires the Secretary to consider any response received under subregulation (3) and provide notice of the Secretary’s decision within 28 days of receiving a submission.

• Subregulation (6) outlines that the Secretary is taken to have revoked accreditation if no decision has been made within 28 days of receiving a submission.

• Subregulation (7) establishes that AACA accreditation is revoked if they become a RACA. This allows for more efficient administration and eliminates the possibility for a single person to be both an AACA and a RACA, with potentially conflicting obligations between their TSP and AACA security program.

 

Regulation 4.51E – Secretary’s list of AACAs

Subregulations (1) and (2) of new regulation 4.51E provide that the Secretary must maintain a list of persons accredited as AACAs which may be published.

 

Regulation 4.51F – What the AACA security program must contain

New regulation 4.51F prescribes the requirements that a security program provided by the Secretary must contain as appropriate to the AACA’s business, including:

• the kind of business to which the program applies;

• the measures and procedures to deter and detect the unauthorised carriage of explosives and to prevent acts of unlawful interference with aviation;

• the methods to prevent unauthorised persons from having access to cargo;

• the measures and procedures for the handling and treatment of suspect cargo;

• the measures to prevent the unauthorised disclosure of information regarding security measures to be applied to cargo;

• the measures to prevent aircraft operator and flight information from being revealed to those without a need to know;

• details of persons who may be given information mentioned in the paragraph above and how it is to be given to such a person;

• the measures and procedures to control access to the AACA’s sites and maintain the integrity of access control systems;

• the measures and procedures to ensure that any vehicles used in the transport of cargo are secured adequately;

• the measures and procedures for the examination of cargo;

• details of the training to be undertaken by AACA employees;

• the circumstances and measures for reporting aviation security incidents to the Secretary, including the information that must be set out in the report and the method of reporting.

 

Regulation 4.51G – AACA must comply with security program

New regulation 4.51G prescribes that an AACA commits an offence if it does not comply with its security program. This offence is a strict liability of 50 penalty units but does not apply if the AACA has a reasonable excuse. It is appropriate to include the offence in these Regulations because the offence mirrors the existing offence in section 14 of the Aviation Transport Security Act 2004. The penalty for this offence is 50 penalty units, which is within the recommended limit for penalties specified in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.

 

Regulation 4.51H – Failure to notify changes

New regulation 4.51H establishes an offence for failure to notify the Secretary within 7 days of any changes to accreditation application information if that application resulted in accreditation. This is an offence of strict liability of 20 penalty units. There are legitimate grounds for penalising a person/authority lacking ‘fault’ for failing to notify the Secretary if information contained in an application changes. The penalties for these offences do not exceed 60 penalty units, and are therefore aligned with the recommended penalty for strict liability offences as provided by the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.

 

Item [16] – Insert regulation 8.05

Item 16 inserts new regulation 8.05 into the Principal Regulations and allows for the Administrative Appeals Tribunal (AAT) to review a decision by the Secretary under the AAT Act relating to refusing to accredit a person as an AACA, revoking accreditation or refusing to accept amendments to an AACA security program.