AVIATION TRANSPORT SECURITY AMENDMENT (SCREENING AND CLEARANCE) REGULATION 2016 (F2016L01624) EXPLANATORY STATEMENT

Commonwealth Numbered Regulations - Explanatory Statements

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AVIATION TRANSPORT SECURITY AMENDMENT (SCREENING AND CLEARANCE) REGULATION 2016 (F2016L01624)

EXPLANATORY STATEMENT

 

(Issued by the Authority of the Minister for Infrastructure and Regional Development)

 

Subject ¾

Aviation Transport Security Act 2004

 

 

Aviation Transport Security Amendment (Screening and Clearance) Regulation 2016

The Aviation Transport Security Act 2004 (the Act) establishes 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, not inconsistent with the Act, 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.  Section 44 of the Act provides for regulations to be made relating to screening, receiving clearance and the circumstances in which persons, goods (other than cargo) or vehicles are required to be cleared.

The purpose of the Aviation Transport Security Amendment (Screening and Clearance) Regulation 2016 (the Regulation) is to remove inconsistencies in the wording of the screening and clearance provisions of the Aviation Transport Security Regulations 2005 (the Principal Regulations) and to remove unintentional constraints on the Secretary of the Department of Infrastructure and Regional Development's powers to issue notices. Specifically, the Regulation will make it clear that:

*         passengers who have been cleared by the Secretary through a notice are not required to undergo security screening, as screening is established by the Act and the Regulations as a means to gain clearance; and

*         the Secretary has the power to exempt liquid, aerosol and gel (LAG) items from LAG restrictions and enable them to pass into a cleared area, such as the sterile area of an airport, without first passing through a screening point.

No consultation was undertaken for the Regulation, as the changes are minor and technical in nature and seek only to remove inconsistencies in the Regulations and clarify the existing powers of the Secretary. 

The Office of Best Practice Regulation (OBPR) was consulted and advised that a Regulation Impact Statement is not required (OBPR reference: 21057) as the changes will have minor regulatory impacts.

A Statement of Compatibility with Human Rights is set out in Attachment A.

The Act does not specify any conditions that need to be satisfied before the power to make the Regulation may be exercised.

The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

The Regulation commences on the day after it is registered on the Federal Register of Legislative Instruments.

Details of the Regulation are set out in Attachment B.

                                                       Authority:  Subsection 133(1) of the
  Aviation Transport Security Act 2004

 

ATTACHMENT A

 

Statement of Compatibility with Human Rights

 

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

 

Aviation Transport Security Amendment (Screening and Clearance) Regulation 2016

 

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the Legislative Instrument

 

The legislative instrument will amend the Principal Regulations to remove inconsistencies in the wording of the screening and clearance provisions and to remove unintentional constraints on the Secretary of the Department of Infrastructure and Regional Development's powers to issue notices. Specifically, the proposed amendments will clarify that the Secretary has the power to issue notices that:

 

a)      Clear transit passengers and their baggage, thereby exempting them from the requirement for screening.

 

b)      Exempt specific liquid, aerosol and gel (LAG) items from the LAG restrictions established by the Principal Regulations, and permit them to enter a cleared area

without first passing through a screening point.

 

Human rights implications

 

This Legislative Instrument does not engage any of the applicable rights or freedoms.

 

Conclusion

 

This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.

 

 

 

 

DARREN CHESTER

Minister for Infrastructure and Transport

 


 

ATTACHMENT B

Details of the proposed Aviation Transport Security Amendment (Screening and Clearance) Regulation 2016

Section 1 - Name of Regulations

This section provides that the title of the Regulation is the Aviation Transport Security Amendment (Screening and Clearance) Regulation 2016.

 

Section 2 - Commencement

 

This section provides for the Regulation to commence on the day after it is registered.

 

Section 3- Authority

 

This section provides that the Regulation is made under the
Aviation Transport Security Act 2004 (the Act).

 

Section 4 - Schedules

 

This section provides that the Aviation Transport Security Regulations 2005 are amended as set out in Schedule 1.

 

Schedule 1 - Amendments

 

Item [1] - Subregulation 4.13(6)

 

This technical amendment will replace the word 'screened' with the word 'cleared' and replace the phrase 're-boards the aircraft' with 'before the aircraft departs', requiring all transit passengers and their carry-on baggage to be cleared before an aircraft departs an airport. 

 

Item [2] - Regulation 4.22A (paragraph (a) of the definition of exempt person)

 

This technical amendment will insert the term 'is cleared to pass' and remove the reference to regulation 4.10.  This confirms that persons cleared by the Secretary or otherwise authorised, such as under regulation 4.10, are exempt from the requirement for LAG screening.

 

Item [3] - Regulation 4.22A (after the definition of exempt person)

 

This note clarifies that the reference to 'cleared' at Regulation 4.22A is a reference to clearance, as outlined at paragraph 41(2)(b) and subsection 41(3) of the Act.  This further confirms that the Secretary is permitted to exempt persons from the requirement for LAG screening, through issuing a notice.

 


 

Item [4] - Subregulation 4.22C(1)

 

This minor amendment will replace the reference to 'subregulations (2) to (5)' with 'subregulations (1A) to (5)', to give effect to the insertion of subregulation (1A).

 

Item [5] - After Subregulation 4.22C(1)

 

The insertion of this subregulation and note confirms that if the Secretary provides a notice under paragraph 42(2)(c) of the Act, the goods receive clearance and are not considered to be LAG goods.  This authorises these goods to enter a cleared area, a cleared zone or cleared aircraft without being affected by LAG regulations, including the requirement for LAG screening. 

 

Item [6] - Subregulation 4.22C(5)

 

This change corrects a longstanding minor error, whereby the subregulation did not specify which notice under regulation 4.22Q it refers to.  The change confirms that the notice being referred to is a 4.22Q(1) notice, which allows the Secretary to exempt goods from being treated as a LAG product under the Regulations.

 

Item [7] - Subregulation 4.22M(1)(b)

 

This minor amendment will remove the term 'without being screened' and insert the term 'without being cleared'.  This confirms that airports will not be committing an offence if they do not arrange for the screening of persons already cleared by the Secretary.

 


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