Commonwealth Numbered Regulations - Explanatory Statements

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AIR NAVIGATION REGULATIONS (AMENDMENT) 1995 NO. 342

EXPLANATORY STATEMENT

STATUTORY RULES 1995 No. 342

Issued by the authority of the Minister for Transport

Air Navigation Act 1920

Air Navigation Regulations (Amendment)

Subsection 26(1) of the Air Navigation Act 1920 provides that the Governor-General may make regulations, not inconsistent with the Act:

"(a)       prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act;

(b)       for the purpose of carrying out and giving effect to the Chicago Convention, as amended by the Protocols referred to in subsection 3A(2), any Annex to the Convention relating to international standards and recommended practices (being an Annex adopted in accordance with the Convention) and the Air Transit Agreement;..."

Paragraph 26(2)(a) of the Act provides that, without limiting the generality of the subsection (1), the regulations that may be made include regulations for or in relation to aviation security.

The proposed regulations (the Regulations), which amend the Air Navigation Regulations, wholly address aviation security issues. The Regulations achieve four primary objectives, as follows.

Consequential amendments

The Regulations introduce a number of consequential amendments to the Regulations arising out of the passage of the Transport Legislation Amendment Act (No. 2) 1995. The Act (amongst other matters) elevates a number of aviation security offences from the Air Navigation Regulations to the Air Navigation Act 1920.

These consequential amendments:

•       repeal the regulations that have been elevated to the Air Navigation Act 1920;

•       harmonise definitions as between the Air Navigation Regulations and the Air Navigation Act 1920; and

•       update references to regulations that have been elevated to the Air Navigation Act 1920.

Aviation security standards for the handling of international air cargo

The Regulations introduce new aviation security standards for the handling and carriage of Australian outbound international air cargo.

Introduction of this new policy initiative follows amendments to Annex 17 to the Convention on International Civil Aviation (the "Chicago Convention"), which specifies international standards and recommended practices to be implemented by Member States (including Australia) in relation to air cargo.

Under the proposed Regulations, cargo security controls are required to be applied either by the aircraft operator or by the air cargo agent handling the cargo, in compliance with a program (detailing the security controls and approved by the Secretary to the Department). In the event that the security controls are applied by the air cargo agent handling the cargo, the Regulations provide for these agents to be registered with the Secretary to the Department.

Pre-flight security checks of international aircraft

The Regulations, consistent with amendments to Annex 17 of the Chicago Convention, introduce a new policy initiative requiring aircraft operators to conduct preflight security checks of international commercial aircraft.

Additional policy initiatives

Finally, the Regulations introduce four additional (minor) new policy initiatives. These are:

•       the deletion of the compulsory requirement for operators of international regular public transport aircraft to provide a sterile area for their passengers under regulation 297F. This is consistent with the arrangements provided for in the Transport Legislation Amendment Act (No. 2) 1995, where aircraft operators may choose to adopt a sterile area (it is not compulsory) as one method of ensuring that their passengers are adequately screened, cleared and segregated prior to boarding large commercial aircraft;

•       the extension of existing security standards under regulation 297P (covering the carriage of persons in lawful custody in aircraft) to also cover persons in immigration detention, or under immigration supervision, for the purpose of ensuring that the persons are removed from Australia, are deported from Australia or otherwise leave Australia;

•       the insertion of a new power, for security officers at categorised airports, to be able to request persons, the officer reasonably believes have committed, are committing or may commit an offence under the Air Navigation Act 1920 or the Air Navigation Regulations, to identify themselves. Before requiring persons to identify themselves, the security officer must first produce his or her own identification card (or other form of identification) for the persons' inspection; and

•       the deletion of the requirement for aviation security co-ordinators, of categorised airports, to be full-time employees or have aviation security responsibilities as their full-time duties.

Offences

The Regulations introduce a small number of offences. Similar to aviation security offences contained in the Air Navigation Act 1920 and the Air Navigation Regulations, the offences proposed in the Regulations are designed to prevent instances of unlawful interference with aircraft (eg, hijacks and destruction of aircraft by terrorists) whilst the aircraft are operating within Australia. Penalties, specific to each offence, are proposed to be commensurate with the gravity of the aviation security offence to which the particular penalty relates.

There are essentially two types of offences contained in the Regulations:

•       offences relating to behaviour of members of the aviation industry (primarily airlines and airport operators). These are couched as strict liability offences which provide a reasonable excuse as a defence. Since these offences are concerned with ensuring public safety on aircraft, having these offences as strict liability offences accords with Commonwealth criminal law policy. Their significant nature makes it as important to discourage careless non-compliance as it is to prevent intentional and reckless breaches - either one has the potential to lead to a serious breach of the aviation security system; and

•       offences relating to behaviour of individuals not directly employed within the aviation industry (primarily air cargo agents, when handling air cargo). It is proposed for these offences to have the less stringent mental elements of intention and recklessness attached to them, as the offences are supported by a "registration" scheme for air cargo agents that is to be administered by the Secretary to the Department.

Under the Regulations, the Secretary has the power to "de-register" air cargo agents that breach provisions of the Regulations. The practical effect of such a "deregistration" is that the security controls applied by the agent are no longer able to be recognised by the airline carrying the international cargo. As a result, air cargo agents who breach the Regulations may be removed from the proposed cargo security scheme prior to prosecution. Careless non-compliance may be addressed quickly by this means.

Conclusion

The aviation industry and the air cargo industry have been consulted during the development of the Regulations, and their views have been fully considered. in general, they support the Regulations.

The Regulations commence on the same date of notification in the Gazette as the aviation security elements of the Transport Legislation Amendment Act (No. 2) 1995.

Details of the Regulations are set out in the Attachment.

Attachment

Details of Proposed Air Navigation Regulations (Amendment)

Clause 1 - Commencement

Clause 1.1 provides that the Regulations commence on the same date of notification in the Gazette as the aviation security elements of the Transport Legislation Amendment Act (No. 2) 1995.

Clause 2 - Amendment

Clause 2.1 provides that the Air Navigation Regulations are to be amended as per the Regulations.

Clause 3 - Regulation 5 (Interpretation)

The various clauses omit or amend definitions currently found in subregulation 5(l):

•       the definitions of "categorised airport", "charter aircraft", "Federal airport", 'flight", "operator", "protective service officer", "regular public transport aircraft", "regular public transport service", "screening", "security restricted area", "sterile area" and "weapon" are omitted.

Definitions for these terms will be elevated to the Air Navigation Act 1920, under the Transport Legislation Amendment Act (No. 2) 1995;

•       the definitions of "aerodrome", "Aeronautical Information Publications" (or "AIP"), "aeroplane", "aircraft component', "aircraft material", "Air Traffic Control", "Authority", "commercial operation" and "military aerodrome" are omitted.

Definitions for these terms are proposed to be omitted as the terms will no longer be used in the Air Navigation Regulations;

•       the definition of "cargo" is re-stated to harmonise with the concept adopted in amendments to Annex 17 to the Chicago Convention specifying international standards and recommended practices in relation to air cargo;

•       the definition of "international air service" is omitted and replaced with a definition for "scheduled international air service" that is identical in meaning.

This is a result of the proposal in the Regulations to replace references to the term "international air service" with "scheduled international air service" wherever occurring (please see clause 43);

•       subregulation 5(1A), which further defines the term "aircraft component", is omitted. The definition for this term is proposed to be omitted as the term is no longer used in the Regulations; and

•       subregulation 5(2), which further defines the terms "private operations", "charter operations" and "regular public transport operations", is omitted.

Definitions for the terms "charter operations" and "regular public transport operations" will be elevated to the Air Navigation Act 1920, under the Transport Legislation Amendment Act (No. 2) 1995. Regarding the term "private operations", the clauses insert a re-stated definition of the term in subregulation 5(1).

Clause 4 - New regulation 5A

Clause 4.1 inserts a further definition of the term "weapon" as new regulation 5A. Under new regulation 5A, a weapon includes a thing described in Schedule 1 of the Air Navigation Regulations.

In clause 3, the current definition of "weapon" in the Air Navigation Regulations is omitted, as the definition for this term will be elevated to the Air Navigation Act 1920, under the Transport Legislation Amendment Act (No. 2) 1995.

However, the current definition of "weapon" in the Air Navigation Regulations contains a provision that defines a weapon to include a thing described in Schedule 1. This provision is not contained in the definition under the Transport Legislation Amendment Act (No. 2) 1995. As a result, new regulation 5A will maintain the linkage between the definition of "weapon" and the items described in Schedule 1.

Clause 5 - Regulation 6 (Application of Regulations)

Clause 5.1 simplifies the Regulations, by removing the need to define a term that is used only once in the Regulations. Clause 5.1 replaces the term "military aerodromes" in regulation 6 with the text of the definition that is omitted under clause 3.1 ("an airport under the control of any part of the Defence Force").

Clause 6 - Regulation 119 (Carriage of weapons on aircraft)

Clause 6.1 omits regulation 119 as this provision will be elevated to the Air Navigation Act 1920, under the Transport Legislation Amendment Act (No. 2) 1995.

Clause 7 - Division 1A of Part XVIA (Aviation security and air services)

Clause 7.1 replaces the existing heading of this Division ("Aviation security and air services") with a new heading that is proposed as more representative of the Division's contents ("General").

Clause 8 - Regulation 297 (Interpretation)

Clause 8.1 omits definitions currently found in regulation 297:

•       the definitions of "airport", "airport security program", "aviation security program", "Corporation", "operator" (both definitions) and "uniformed security force" are omitted.

Definitions for these terms will be elevated to the Air Navigation Act 1920, under the Transport Legislation Amendment Act (No. 2) 1995; and

•       the definition of "working day" is omitted as the term will no longer be used in the Air Navigation Regulations.

Clause 9 - Regulation 297A (Report of threat to aviation security)

Clause 9.1 omits regulation 297A as this provision will be elevated to the Air Navigation Act 1920, under the Transport Legislation Amendment Act (No. 2) 1995.

Clause 10 - Regulation 297B (Report of unlawful interference)

Clause 10.1 omits regulation 297B as this provision will be elevated to the Air Navigation Act 1920, under the Transport Legislation Amendment Act (No. 2) 1995.

Clause 11 - Regulation 297C (Reports generally)

Clause 11.1 omits regulation 297C as this provision will be elevated to the Air Navigation Act 1920, under the Transport Legislation Amendment Act (No. 2) 1995.

Clause 12 - Regulation 297D (Screened passengers and their possessions)

Clause 12.1 omits regulation 297D as this provision will be elevated to the Air Navigation Act 1920, under the Transport Legislation Amendment Act (No. 2) 1995.

Clause 13 - Regulation 297E (Control of entry to sterile areas)

Clause 13.1 omits regulation 297E as this provision will be elevated to the Air Navigation Act 1920, under the Transport Legislation Amendment Act (No. 2) 1995.

Clause 14 - Regulation 297EA (Sterile areas: weapons)

Clause 14.1 omits regulation 297EA as this provision will be elevated to the Air Navigation Act 1920, under the Transport Legislation Amendment Act (No. 2) 1995.

Clause 15 - Regulation 297F (Sterile areas: international flights)

Clause 15.1 omits regulation 297F as it is proposed to delete the compulsory requirement for operators of international regular public transport aircraft to provide a sterile area. Under the provisions of the Transport Legislation Amendment Act (No. 2) 1995, aircraft operators may choose to adopt a sterile area as one method of ensuring that their passengers are adequately screened, cleared and segregated prior to boarding large commercial aircraft.

Clause 16 - Regulation 297G (Secretary may give directions)

Clause 16.1 omits regulation 297G as this provision will be elevated to the Air Navigation Act 1920, under the Transport Legislation Amendment Act (No. 2) 1995.

Clause 17 - Regulation 297H (Passenger baggage)

Clause 17.1 omits regulation 297H as this provision will be elevated to the Air Navigation Act 1920, under the Transport Legislation Amendment Act (No. 2) 1995.

Clause 18 - Regulation 297J (Private and charter-aircraft passengers)

Clause 18.1 updates a reference to subregulation 297D(c), to reflect the elevation of this subregulation to the Air Navigation Act 1920 under the Transport Legislation Amendment Act (No. 2) 1995.

Clause 19 - Regulation 297L (Authorised vehicles)

Clause 19.1 replaces the term "an area of an aerodrome to which access is restricted for the purposes of aviation security" with the more modern (and explicitly defined) term "a security restricted area".

Clause 20 - Regulation 297M (Aviation security signs)

Clause 20.1 updates a reference to regulation 297G, to reflect the elevation of this regulation to the Air Navigation Act 1920 under the Transport Legislation Amendment Act (No. 2) 1995.

Clause 20.2 updates a reference to the "Civil Aviation Authority" to "Airservices Australia", following a restructuring of Commonwealth aviation authorities.

Clause 20.3 corrects a minor drafting error in paragraph 297M(2)(e), by adding the word "or" at the end of the paragraph.

Clause 21 - Regulation 297P (Persons in lawful custody on an aircraft)

Regulation 297P currently establishes security standards for the carriage of persons in lawful custody in aircraft. For example, under regulation 297P, the aircraft operator must be informed in advance that the passenger is proposed to be carried. Persons in lawful custody are currently defined to comprise those persons who are compelled to be taken from one place to another in accordance with a law of Australia.

Clause 21.1 extends the operation of the security standards, specified under regulation 297P, to also cover persons in the custody, or under the supervision of, an "officer" (as defined under the Migration Act 1958) for the purpose of ensuring that the persons:

•       are removed from Australia;

•       are deported from Australia; or

•       otherwise leave Australia.

For the purposes of the Migration Act 1958, an "officer" means:

•       an officer of the Department of Immigration and Ethnic Affairs;

•       an officer of the Australian Customs Service;

•       protective service officer (of the Australian Protective Service);

•       member of the Australian Federal Police or of the police force of a State or Territory; or

•       any other person authorised by the Minister for Immigration and Ethnic Affairs to be an officer for the purposes of the Act.

Clause 22 - New Division 1AB of Part XVIA (Pre-flight security check)

Clause 22.1 inserts a new Division (exclusively dealing with aviation security) into Part XVIA of the Air Navigation Regulations.

The new Division introduces a new requirement for aircraft operators to conduct preflight security checks of the following types of aircraft:

•       all international regular public transport aircraft; and

•       international charter aircraft fitted to carry 38 or more passengers.

Under new Division 1AB, pre-flight security checks must be undertaken prior to the flight of the above types of aircraft, where:

•       the flight is the first flight after the aircraft underwent maintenance away from a passenger terminal building or a cargo terminal building; or

•       since the previous flight, the aircraft has not been sealed or placed under continuous surveillance. Notes on each of the provisions contained in this new Division follow.

Regulation 2970 - Interpretation

Regulation 2970 inserts definitions of terms used in new Division 1AB.

Under regulation 297Q, the term "pre-flight security check" is defined to mean a cheek of an aircraft for the purpose of ensuring that there are no weapons, explosives or incendiary devices located in areas reasonably accessible to passengers or crew.

In addition, the terms "originating flight' and "relevant aircraft" are defined, as they are used to describe the types of aircraft for which, and the circumstances under which, pre-flight security checks must be undertaken (as outlined above).

Regulation 297R - Aircraft operator to conduct Pre-flight security check

Regulation 297R requires aircraft operators to conduct pre-flight security checks, in relation to the types of aircraft and the circumstances outlined above. The pre-flight security check must include the following elements:

•       an inspection of the aircraft flight deck, passenger cabin, toilets, crew rest stations and catering and food preparation areas;

•       an inspection of the aircraft's storage facilities (eg, cupboards, passenger lockers, crew lockers and equipment lockers); and

•       an inspection of the exterior of the aircraft (including wheel wells).

The maximum penalty for aircraft operators failing to conduct pre-flight security checks is 50 penalty units (which corresponds to a maximum fine of $5,000 for individuals and $25,000 for corporations). This is a strict liability offence which provides reasonable excuse as a defence.

Regulation 297S - Procedure after Pre-flight security check

Regulation 297S requires aircraft operators to conduct the following procedures from the time immediately after the completion of the pre-flight security check until the start of the next flight:

•       seal the aircraft; or

•       place the aircraft under continuous surveillance;

for the purpose of preventing unauthorised access to the aircraft.

The maximum penalty for aircraft operators failing to conduct the above procedures is 50 penalty units (which corresponds to a maximum fine of $5,000 for individuals and $25,000 for corporations). This is a strict liability offence which provides reasonable excuse as a defence.

Clause 23 - Division 1 of Part XVIA (Aviation security programs)

Clause 23.1 omits Division 1 of Part XVIA (comprising regulations 298 to 309) as this Division will be elevated to the Air Navigation Act 1920, under the Transport Legislation Amendment Act (No. 2) 1995.

Clause 24 - New Division 2A of Part XVIA (international cargo)

Clause 24.1 inserts a new Division (exclusively dealing with aviation security) into Part XVIA of the Air Navigation Regulations. The Division introduces new aviation security standards for the handling and carriage of Australian outbound international air cargo.

Under new Division 2A, cargo security controls are required to be applied either by the aircraft operator carrying the cargo or by an air cargo agent who has been registered (or "listed") with the Secretary to the Department.

New Division 2A does not specify in detail the aviation security standards to be implemented for the handling of cargo. Instead, these standards will be detailed within the approved security program of.

•        each airline (provisions for the approval of security programs for airlines are already contained within the Air Navigation Regulations); and

•       each air cargo agent who elects to apply security controls on cargo.

Security programs will be negotiated separately with each airline and each agent, and all programs are required to be approved by the Secretary to the Department.

New Division 2A establishes the scheme of registration for those air cargo agents who elect to apply security controls on the cargo they handle. For example, new Division 2A specifies the procedures for applications of agents to be listed, for approvals of (and amendments to) cargo security programs and for the listing (and de-listing) of agents.

The practical effect of listing an air cargo agent is that the security controls applied by the agent are able to be recognised by the airline carrying the cargo, under the terms of the airline's own security program.

Notes on each of the provisions contained in this new Division follow.

Regulation 309A - Interpretation

Regulation 309A inserts definitions of terms used in new Division 2A:

•       "air cargo agent" means a person who carries on the business of handling Australian outbound international air cargo;

•       "handle" includes store and transport;

•       "international cargo" means cargo intended for carriage, on a charter or regular public transport aircraft, from Australia to an international destination;

•       "international cargo security program" means the program, held by an individual air cargo agent, that satisfies those matters specified under regulation 309D;

•       "list" means the list, maintained by the Secretary to the Department, of those air cargo agents who have elected to apply security controls on cargo and whose application to be listed has been approved by the Secretary under subregulation 309E(2);

•       "regulated agent" means an air cargo agent who is included in the list; and

•       "relevant aircraft" means a charter or regular public transport aircraft (this definition is used solely to support the definition of the term "international cargo").

Regulation 309B - Secretary to maintain list

Regulation 309B requires the Secretary to the Department to maintain the list. The list sets out the names and other particulars of those air cargo agents who:

•       have elected to apply security controls on the cargo they handle; and

•       whose application to be listed has been accepted by the Secretary under subregulation 309IE(2).

Regulation 309C - Application for inclusion in the list

Regulation 309C provides that an air cargo agent may apply to the Secretary to the Department to be included in the list. Regulation 309C also requires applications to set out the following particulars:

•       if the applicant is a company: the applicant's name, trading name (if different) and Australian Company Number;

•       if the applicant is a partnership: the applicant's name and trading name (if different), and the full name of each partner;

•       if the applicant is an unincorporated association: the applicant's name and trading name (if different), and the full name of each member;

•       in any other case (eg, sole trader): the applicant's full name and trading name (if different);

as well as the postal address, telephone number and facsimile number (if any) of:

•       the applicant's principal office in Australia; and

•       each of the applicant's places for handling international cargo in Australia

Applications must also set out the applicant's proposed international cargo security program.

If, after listing, it is found that an agent provided information in an application that is false in a material respect, the Secretary to the Department may de-list the agent, under regulation 309J.

In summary, an important element of regulation 309C is that air cargo agents must have a proposed international cargo security program before the agent may apply to the Secretary to the Department to be listed.

Regulation 309D - International cargo security programs

Regulation 309D specifies the minimum elements of a proposed international cargo security program. These minimum elements:

•       must be satisfied before the Secretary to the Department may include the air 'cargo agent, proposing the program, in the list under subregulation 309E(2); and

•       should continue to be satisfied after a regulated agent has been listed (ie, for as long as the regulated agent continues to be listed).

For example, the Secretary to the Department has the power, under regulation 309F, to direct amendments to a program where the program no longer satisfies these minimum elements.

An international cargo security program must include:

•       the equipment to be used; and

•       the procedures to be followed;

by the agent for the following purposes in relation to international cargo handled by the agent:

•       preventing the cargo from containing explosives or incendiary devices that could result in an unlawful interference with aviation;

•       preventing a persons from having unlawful access to the cargo (from the time from the cargo has been security cleared); and

•       ensuring that accurate records are kept of the details of the cargo as well as the security measures adopted to clear the cargo.

Regulation 309E - Decision on an application

Regulation 309E outlines the requirements the Secretary to the Department must satisfy when approving or rejecting applications from air cargo agents to be included in the list.

The practical effect of listing an air cargo agent is that the security controls applied by the agent are able to be recognised by the airline carrying the cargo, under the terms of the airline's own security program.

Under subregulation 309E(1), the Secretary must decide, whether or not to include an applicant in the list, within 30 days after receiving an application. The Secretary must inform the applicant of the decision (again, within 30 days after receiving the application). Notification of a decision to not list an applicant must include the reasons for the decision.

Under subregulation 309IE(2), the Secretary to the Department must decide to include an applicant in the list if the Secretary is reasonably satisfied that:

•       the applicant is a legal entity;

•       the applicant is an air cargo agent;

•       the applicant's proposed international cargo security program satisfies the minimum elements specified under regulation 309D; and

•       the inclusion of the applicant in the list does not pose a significant threat to aviation security;

and the applicant has agreed to advise the Secretary to the Department, within 30 days, of a material change of any matters specified in the agent's application for inclusion in the list provided under regulation 309C (with the exception of the agent's international cargo security program).

A regulated agent is not required to advise the Secretary to the Department, of a material change to the agent's international cargo security program under regulation 309E, as procedures for the amendment to programs are provided separately under regulations 309F and 309G.

In the event that:

•       the Secretary to the Department is no longer satisfied as to the matters specified under paragraph 309E(2)(a); or

•       a regulated agent fails to advise the Secretary to the Department, within 30 days, of a material change of any matters specified in the agent's application to be listed (with the exception of the agent's international cargo security program);

the Secretary to the Department may de-list the agent, under regulation 309J.

Regulation 309F - Amendment of program

Regulation 309F outlines the process by which the Secretary to the Department may require an amendment to a regulated agent's international cargo security program.

Under subregulation 309F(1), the Secretary may direct the regulated agent to amend the program if the Secretary is reasonably satisfied that the program is no longer adequate for any one or more of the program purposes set out in regulation 309D. Such a direction must be made by giving written notice to the regulated agent.

Under subregulation 309F(2), the notice must:

•       indicate the change required; and

•       specify the date before which the agent must submit an appropriately amended program to the Secretary to the Department.

It is not an offence for a regulated agent to fail to comply with a direction of the Secretary to the Department to amend the agent's program.

However, if a regulated agent intentionally or recklessly fails to comply with such a direction, the Secretary to the Department may de-list the agent, under regulation 309J.

Regulation 309G - Review of program by regulated agent

Regulation 309G outlines the process by which a regulated agent may propose an amendment to the agent's international cargo security program.

Under subregulation 309G(1), the regulated agent may review the program and may prepare and submit to the Secretary to the Department, for approval, a written amendment to the program.

Under subregulation 309G(2), the Secretary to the Department must decide, whether or not to approve the agent's amendment, within 30 days after receiving the amendment. The Secretary must inform the applicant of the decision (again, within 30 days after receiving the amendment). Notification of a decision to not approve an amendment must include the reasons for the decision.

Under subregulation 309G(3), the Secretary to the Department must approve the amendment if the Secretary is reasonably satisfied that the program, as amended, will:

•       be adequate for the program purposes specified under regulation 309D; or

•       be significantly more effective for those purposes.

Regulation 309H - Regulated agent to give effect to program

Subregulations 309H(1) and (2) require a regulated agent to give effect to the agent's international cargo security program.

The maximum penalty for regulated agents intentionally or recklessly failing to give effect to the agent's program is 50 penalty units (which corresponds to a maximum fine of $5,000 for individuals and $25,000 for corporations).

Subregulations 309H(3) and (4) allow the Secretary to the Department to exempt an agent, or a class of agents, in relation to an item, or a class of items, of international cargo, from the requirement to give effect to the agent's program. The exemption may be made subject to conditions that the Secretary reasonably thinks fit. The exemption may also be made upon receipt of an application from an agent, or otherwise.

In addition to the creation of the offence under subregulations 309H(1) and (2), if a regulated agent intentionally or recklessly fails to give effect to the agent's program, the Secretary to the Department may de-list the agent, under regulation 309J.

Regulation 309J - Secretary may remove regulated agent's name from the list

Regulation 309J outlines the circumstances in which the Secretary to the Department may de-list a regulated agent. The practical effect of de-listing an agent is that the security controls applied by the agent are no longer able to be recognised by the airline carrying the international cargo, under the terms of the airline's own security program. In such a case, the airline will be required to apply its own security controls on the cargo.

Under subregulation 309J(1), the Secretary to the Department may remove a regulated agent's name from the list if:

•       the regulated agent provides information, in the agent's application to be listed (submitted under regulation 309C), that is false in a material respect;

•       the Secretary is no longer satisfied as to the matters specified under paragraph 309IE(2)(a) in relation to the regulated agent (paragraph 309E(2)(a) outlines those matters in relation to which the Secretary must be satisfied prior to listing);

•       the regulated agent fails to advise the Secretary, within 30 days, of a material change of any matters specified in the agent's application to be listed that is submitted under regulation 309C (with the exception of the agent's international cargo security program);

•       the regulated agent intentionally or recklessly fails to comply with a direction of the Secretary to amend the agent's program under regulation 309F;

•       the regulated agent intentionally or recklessly fails to give effect to the agent's international cargo security program under regulation 309H;

•       the regulated agent intentionally or recklessly fails to comply with a direction of the Secretary, relating to a response to a threat of unlawful interference with aviation, under regulation 309K;

•       the regulated agent has asked, in writing, to be removed from the list; or

•       the Secretary is reasonably satisfied that the inclusion of the agent in the list poses a significant threat to aviation security.

Under subregulation 309J(2), if the Secretary to the Department decides to remove a regulated agent's name from the list, the Secretary must notify the agent in writing of the decision, and the reasons for the decision, within 14 days.

Under subregulations 309J(3) and (4), a de-listed agent may re-apply to the Secretary to the Department to be listed. The Secretary must include the agent in the list if:

•       the Secretary is reasonably satisfied as to the matters specified under subregulation 309IE(2) in relation to the regulated agent (subregulation 309E(2) outlines those matters about which the Secretary was satisfied prior to the original listing); and

•       the Secretary is reasonably satisfied that the circumstances, resulting in the agent's de-listing, no longer apply.

Regulation 309K - Secretary may give directions to regulated agent

Regulation 309K provides that the Secretary to the Department may direct a regulated agent in relation to measures and resources (specified in the direction) to be used in responding to a threat of unlawful interference with aviation, in relation to an aircraft or an airport.

Regulation 309K mirrors existing provisions, currently contained in the Air Navigation Regulations, that empower the Secretary to issue similar directions to members of the aviation industry (including airlines, airport operators and passengers, amongst other persons).

The maximum penalty for regulated agents intentionally or recklessly failing to comply with a direction of the Secretary is 50 penalty units (which corresponds to a maximum fine of $5,000 for individuals and $25,000 for corporations).

In addition to the offence under regulation 309K if a regulated agent intentionally or recklessly fails to comply with a direction of the Secretary, the Secretary to the Department may de-list the agent, under regulation 309J.

Regulation 309L - Notice in writing

Regulation 309L provides that a notice required, or permitted, to be given to a person under new Division 2A, may be:

•       given to the person personally;

•       posted to the person at the postal address last notified to the Secretary to the Department; or

•       faxed to the person at the fax number last notified to the Secretary to the Department.

Regulation 309M - Review by Tribunal of decisions under Division 3 of Part XVIA

Regulation 309M provides that the following decisions of the Secretary are appealable to the Administrative Appeals Tribunal:

•       to refuse to list an air cargo agent, under regulation 309E;

•       to direct an amendment to an international cargo security program, under regulation 309F;

•       to refuse to approve an amendment to an international cargo security program, proposed by the regulated agent, under regulation 309G;

•       to de-list a regulated agent, under regulation 309J; and

•       to direct a regulated agent in relation to measures and resources to be used in responding to a threat of unlawful interference with aviation, under regulation 309K.

The heading to regulation 309M specifies "Division 3", rather than "Division 2A". This is because the Divisions to Part XVIA of the Air Navigation Regulations will be renumbered under clause 44.1.

Clause 25 - Division 2 of Part XVIA (Aviation Security: General)

Clause 25.1 replaces the existing heading of this Division ("Aviation Security:

General") with a new heading that is proposed as more representative of the Division's contents (Towers of officers to enter and inspect etc.").

Clause 26 - Regulation 311C (Authorised officers: entry and inspection)

Clause 26.1 achieves two objectives, as follows.

First, clause 26.1 replaces the current regulation 311C with two new regulations (new regulation 311C and regulation 311CAA).

Currently, regulation 311C provides a power for officers of the Department, authorised by the Secretary to the Department, to enter and remain in areas of a categorised airport, and in aircraft, for the purposes of aviation security.

In practical terms, this provision is used to allow the conduct of regular aviation security audits, by authorised Departmental officers, of Australia's aviation industry. For example, the Department conducts regular audits of aircraft operators and airport operators to ensure that they comply with the aviation security standards specified under the Air Navigation Act 1920 and the Air Navigation Regulations.

It is proposed to extend the operation of the current regulation 311C to provide a power for authorised officers to also enter, and remain in, premises operated by those air cargo agents who elect to apply security controls on the cargo they handle and are listed with the Department (ie, regulated agents).

As a result, this first element of clause 26.1 is a consequential amendment to the introduction of aviation security standards, for the handling and carriage of Australian outbound international air cargo, under clause 24.1.

Second, clause 26.1 inserts a new regulation 311CAAA. Regulation 311CAAA inserts a new power, to be exercised by "security officers", to request that persons identify themselves, in the event that the security officer reasonably believes that the persons have committed, are committing or may commit an offence under the Air Navigation Act 1920 or the Air Navigation Regulations.

Notes on each of the provisions contained in this new Division follow.

Regulation 311C - Powers of authorised officers - general

Regulation 311C empowers "authorised officers" to exercise a range of powers for the purpose of determining whether persons are complying with the provisions of the Air Navigation Act 1920 or the Air Navigation Regulations.

Under existing provisions of the Air Navigation Regulations, "authorised officers" are those Departmental officers authorised for the purpose by the Secretary to the Department.

Authorised officers are empowered to exercise the following powers:

•       to enter and inspect a categorised airport or any area, building (except a domicile) or vehicle under the control of an aircraft operator, airport operator or regulated agent;

•       to inspect equipment in that airport, area, building or vehicle;

•       to observe operating procedures implemented by the aircraft operator, airport operator or regulated agent;

•       to discuss the procedures with employees of the aircraft operator, airport operator or regulated agent;

•       to inspect a document or record made or kept by the aircraft operator, airport operator or regulated agent; and

•       to take copies or photographs, at no expense to the aircraft operator, airport operator or regulated agent, of the document or record.

Under subregulation 311C(4), authorised officers may exercise their powers:

•       in relation to a categorised airport - at any time and without notice; or

•       in any other case (eg, the off-airport premises of a regulated agent) - at any reasonable time after giving notice to the relevant person.

Subregulation 311C(6) requires aircraft operators, airport operators and regulated agents to allow authorised officers to exercise their powers.

The maximum penalty for aircraft operators, airport operators or regulated agents, failing to allow authorised officers to exercise their powers, is 50 penalty units (which corresponds to a maximum fine of $5,000 for individuals and $25,000 for corporations). This is a strict liability offence which provides reasonable excuse as a defence.

Regulation 311CAA - Powers of authorised officers - aircraft

Regulation 311CAA empowers authorised officers to exercise additional powers relating to the entry of aircraft. Once again, the conduct of the powers are for the purpose of determining whether persons are complying with the provisions of the Air Navigation Act 1920 or the Air Navigation Regulations.

Authorised officers are empowered to exercise the following powers:

•       to enter and inspect an aircraft;

•       to inspect equipment in the aircraft;

•       to observe operating procedures for the aircraft implemented by the aircraft crew or other employees of the aircraft operator;

•       to discuss the procedures with the aircraft crew or other employees;

•       to inspect a document or record, held by the operator in the aircraft, that relates to a passenger, an intending passenger or an item of international cargo; and

•       to take copies or photographs, at no expense to the aircraft operator, of the document or record.

Subregulation 311CAA(3) requires aircraft operators to allow authorised officers to exercise their powers.

The maximum penalty for aircraft operators, failing to allow authorised officers to exercise their powers, is 50 penalty units (which corresponds to a maximum fine of $5,000 for individuals and $25,000 for corporations). This is a strict liability offence which provides reasonable excuse as a defence.

Regulation 311CAAA - Powers of authorised officers etc. - to require identification

Regulation 311CAAA requires persons to identify themselves to a "security officer", when requested to do so by the officer at a categorised airport.

For the purposes of regulation 311CAAA, "security officers" are defined to comprise:

•       Departmental officers authorised by the Secretary to the Department and holding the powers of entry specified in regulations 311C and 311CAA;

•       members of the categorised airport's uniformed security force; and

•       persons employed by the categorised airport for the purpose of airport security.

However, before a security officer may request that a person identify himself or herself under regulation 311CAAA, the security officer must first:

•       reasonably believe that the person has committed, is committing or may commit an offence under the Air Navigation Act 1920 or the Air Navigation Regulations; and

•       produce his or her identification card (or other form of identification) for the person's inspection.

The maximum penalty for persons refusing to identify themselves, upon the lawful request of a security officer, is 10 penalty units (which corresponds to a maximum fine of $1,000 for individuals). This is a strict liability offence which provides reasonable excuse as a defence.

In addition, the maximum penalty for persons intentionally or recklessly providing false identification to a security officer, following a lawful request, is also 10 penalty units (which corresponds to a maximum fine of $1,000 for individuals).

Clause 27 - Division 3 of Part XVIA (Airport security programs)

Clause 27.1 omits Division 3 of Part XVIA (comprising regulations 311CA to 311CBA) as this Division will be elevated to the Air Navigation Act 1920, under the Transport Legislation Amendment Act (No. 2) 1995.

Clause 28 - Regulation 311CC (Aerodrome categories)

Clause 28.1 omits regulation 311CC as this provision will be elevated to the Air Navigation Act 1920, under the Transport Legislation Amendment Act (No. 2) 1995.

Clause 29 - Division 4 of Part XVIA (Classification of aerodromes for aviation security)

Clause 29.1 replaces the existing heading of this Division ("Classification of aerodromes for aviation security") with a new heading that is proposed as more representative of the Division's contents ("Prescribed requirements for categorised airports").

Clause 30 - Regulation 311 CD (Aviation security: category 1 airports)

Clause 30.1 restates the requirement for operators of category 1 airports to implement the measures that are prescribed in the Air Navigation Regulations. The requirement is re-stated in a form that is consistent with provisions in the Transport Legislation Amendment Act (No. 2) 1995. As such, clause 30.1 is an amendment consequential to the Transport Legislation Amendment Act (No. 2) 1995.

Clauses 30.2, 30.3 and 30.4 replace the term "an area of an aerodrome to which access is restricted for the purposes of aviation security" with the more modern (and explicitly defined) term "a security restricted area of the airport".

Clause 30.5 deletes the requirement for aviation security co-ordinators, of category 1 airports, to be full-time employees or have aviation security matters as their full-time duties. Currently, under the Air Navigation Regulations, operators of category 1 airports must employ a full-time aviation security coordinator. It is proposed that part-time aviation security co-ordinators be acceptable for the purposes of the Air Navigation Regulations.

Clause 31 - Regulation 311CE (Aviation security: category 2 airports)

Clause 31.1 restates the requirement for operators of category 2 airports to implement the measures that are prescribed in the Air Navigation Regulations. The requirement is re-stated in a form that is consistent with provisions in the Transport Legislation Amendment Act (No. 2) 1995. As such, clause 31.1 is an amendment consequential to the Transport Legislation Amendment Act (No. 2) 1995.

Clauses 31.2, 31.3 and 31.4 replace the term "an area of an aerodrome to which access is restricted for the purposes of aviation security" with the more modern (and explicitly defined) term "a security restricted area of the airport".

Clause 31.5 deletes the requirement for aviation security co-ordinators, of category 2 airports, to be full-time employees or have aviation security matters as their full-time duties. Currently, under the Air Navigation Regulations, operators of category 2 airports must employ a full-time aviation security coordinator. It is proposed that part-time aviation security co-ordinators be acceptable for the purposes of the Air Navigation Regulations.

Clause 31.6 corrects a minor drafting error. The clause omits the second of two paragraphs numbered 311CE(n) and restates the paragraph as paragraph 311CE(o).

Clause 32 - Regulation 311CIF (Aviation security: category 3 airports)

Clause 32.1 restates the requirement for operators of category 3 airports to implement the measures that are prescribed in the Air Navigation Regulations. The requirement is re-stated in a form that is consistent with provisions in the Transport Legislation Amendment Act (No. 2) 1995. As such, clause 32.1 is an amendment consequential to the Transport Legislation Amendment Act (No. 2) 1995.

Clauses 32.2, 32.3 and 32.4 replace the term "an area of an aerodrome to which access is restricted for the purposes of aviation security" with the more modem (and explicitly defined) term "a security restricted area of the airport".

Clause 32.5 deletes the requirement for aviation security co-ordinators, of category 3 airports, to be full-time employees or have aviation security matters as their full-time duties. Currently, under the Air Navigation Regulations, operators of category 3 airports must employ a full-time aviation security coordinator. It is proposed that part-time aviation security co-ordinators be acceptable for the purposes of the Air Navigation Regulations.

Clause 33 - Regulation 311CG (Aviation security: category 4 airports)

Clause 33.1 restates the requirement for operators of category 4 airports to implement the measures that are prescribed in the Air Navigation Regulations. The requirement is re-stated in a form that is consistent with provisions in the Transport Legislation Amendment Act (No. 2) 1995. As such, clause 33.1 is an amendment consequential to the Transport Legislation Amendment Act (No. 2) 1995.

Clause 33.2 replaces the term "an area of an aerodrome to which access is restricted for the purposes of aviation security" with the more modem (and explicitly defined) term "a security restricted area of the airport".

Clause 33.3 deletes the requirement for aviation security co-ordinators, of category 4 airports, to be full-time employees or have aviation security matters as their full-time duties. Currently, under the Air Navigation Regulations, operators of category 4 airports must employ a full-time aviation security coordinator. It is proposed that parttime aviation security co-ordinators be acceptable for the purposes of the Air Navigation Regulations.

Clause 34 - Regulation 311CH (Aviation security: category 5 airports)

Clause 34.1 restates the requirement for operators of category 5 airports to implement the measures that are prescribed in the Air Navigation Regulations. The requirement is re-stated in a form that is consistent with provisions in the Transport Legislation Amendment Act (No. 2) 1995. As such, clause 34.1 is an amendment consequential to the Transport Legislation Amendment Act (No. 2) 1995.

Clause 35 - Regulation 311CK (Directions to apply prescribed measures or resources)

Clause 35.1 omits regulation 311CK as this provision will be elevated to the Air Navigation Act 1920, under the Transport Legislation Amendment Act (No. 2) 1995.

Clause 36 - Regulation 311CKA (Notice of certain decisions by the Secretary)

Clause 36.1 omits paragraph 311CKA(a). Currently, paragraph 311CKA(a) requires the Secretary to the Department of Transport, when classifying an aerodrome under regulation 311CC, to provide a copy of the instrument (by which the aerodrome is classified) to the airport operator.

Paragraph 311CKA(a) is to be deleted as the power to classify an aerodrome under regulation 311CC, and the corresponding requirement to provide notice to the aircraft operator, will be elevated to the Air Navigation Act 1920 under the Transport Legislation Amendment Act (No. 2) 1995 (please see clause 28).

Clause 37 - Division 4A of Part XVIA (Approval of certain works at airports)

Clause 37.1 omits Division 4A of Part XVIA (comprising regulation 311CKB) as this Division will be elevated to the Air Navigation Act 1920, under the Transport Legislation Amendment Act (No. 2) 1995.

Clause 38 - Regulation 311CM (Character requirements of security force personnel)

Clause 38.1 updates a reference to a term used in the Migration Act 1958, following an amendment to that Act.

Clause 39 - Regulation 315AA (Discharge of firearms)

Clause 39.1 omits regulation 315AA as this provision will be elevated to the Air Navigation Act 1920, under the Transport Legislation Amendment Act (No. 2) 1995.

Clause 40 - Regulation 320 (Evidence)

Clauses 40.1, 40.2, 40.3 and 40.4 update references to provisions that will be elevated to the Air Navigation Act 1920, under the Transport Legislation Amendment Act (No. 2) 1995.

Clause 41 - Schedule 1 (Weapons)

Clause 41.1 updates a reference, in Schedule 1, to the regulation used to define the term "weapon". As such clause 41.1 is an amendment consequential to clause 4.

Clause 42 - Further amendments - aerodromes

Clause 42.1 replaces the term "aerodrome" with the more modem term "airport" (wherever occurring).

Clause 43 - Further amendments - miscellaneous

Clause 43.1 proposes two amendments. First, clause 43.1 replaces the term "these Regulations" with the term "the Act or these Regulations" (wherever occurring). This is because, following the commencement of the Transport Legislation Amendment Act (No. 2) 1995, relevant aviation security provisions will be contained in both the Air Navigation Act 1920 and the Air Navigation Regulations.

Second, clause 43.1 replaces the term "international air service" with the term "scheduled international air service" (wherever occurring). This is because, following the commencement of the Transport Legislation Amendment Act (No. 2) 1995, the term "international air service" will conflict with terms used in the Air Navigation Act 1920.

Clause 44 - Further amendments - aerodromes

Clause 44.1 renumbers the Divisions of Part XVIA, so that consecutive numbers are adopted.


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