Commonwealth Numbered Regulations - Explanatory Statements

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AVIATION TRANSPORT SECURITY AMENDMENT (PERSONS IN CUSTODY) REGULATIONS 2017 (F2017L00440)

EXPLANATORY STATEMENT

Issued under the authority of the Minister for Infrastructure and Transport

The Aviation Transport Security Act 2004 (the Act) establishes a regulatory framework to safeguard against unlawful interference with civil aviation in Australia. The Act sets the minimum security requirements for civil aviation in Australia by imposing obligations on persons engaged in civil aviation related activities.

Subsection 64(1) of the Act defines a person in custody (PIC) as a person on a prescribed aircraft at a security controlled airport that is in custody under another Act. Section 65 of the Act provides that the regulations may prescribe requirements for persons in custody (PICs) on a prescribed aircraft or at a security controlled airport.

Subsection 133(1) of the Act provides 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.

Currently, the Aviation Transport Security Regulations 2005 (the Principal Regulations) impose obligations on government agencies that are responsible for transporting PICs. They are required to inform the operators of prescribed air services of intended PIC movements and seek the operator's consent to carry these persons. These government agencies (custodial agencies) must also seek the agreement of the Secretary of the Department administering the Act (the Secretary) for any intended PIC movements that differ from the standard arrangements set out in the Principal Regulations. This imposes regulatory burdens on custodial agencies and operators of prescribed air services without enhancing aviation security outcomes. Additionally, the current provisions transfer risk assessment decisions to the Secretary when the custodial agencies and operators are better placed to manage these.

The Aviation Transport Security Amendment (Persons in Custody) Regulations 2017 (the proposed Regulations) are intended to streamline and devolve the process for transporting PICs by removing the need for the Secretary's approval for certain arrangements. They also remove certain anomalies in the Principal Regulations and will ensure that Australia complies with its international obligations for transporting PICs under Annex 17 of the International Convention on Civil Aviation (the Chicago Convention).

The Regulations will:

a.       require operators of prescribed air services to include measures and procedures to manage the on-board security risks associated with transporting PICs in their transport security programs;

b.      amend the definition of a PIC that is dangerous for the purposes of Part 4, Division 4.5 of the Principal Regulations to ensure consistency with the outcomes of the spent conviction scheme;

c.       remove the requirement for the Secretary to approve certain types of PIC movements;

d.      remove Form 1 which is currently contained in the Schedule to the Principal Regulations. This form sets out the information that requesting agencies must provide to the operators of prescribed air services, and in some cases airport operators, about a PIC movement. The Secretary will now be required to approve the updated form and it will be placed on the Department of Infrastructure and Regional Development's (the Department's) website. It requires custodial agencies to provide further information and proposed mitigation measures for certain PIC movements so the operators of prescribed air services and airport operators can better assess the risk of transporting the PICs under the request;

e.       clarify how and when custodial agencies must provide Form 1 to airport operators and operators of prescribed air services. They Regulations will also clarify that custodial agencies do not have to provide information about PICs that would cause them to contravene Commonwealth, State or Territory law; and

f.       make other minor changes to the Principal Regulations to reflect changes in regulatory responsibilities.

Industry participants including aircraft operators, airport operators and pilot association were consulted on the proposed amendments. Many enforcement agencies were also consulted including State and Territory police and correctional agencies and commonwealth agencies. Industry and the government agencies were broadly supportive of the proposed measures.

The Office of Best Practice Regulation (OBPR) was consulted in relation to the making of the proposed Regulations.  The OBPR advised that a Regulatory Impact Statement is not required as the impact of the amendments on industry are minor and a small cost savings for government agencies and industry is anticipated (OBPR ID: 19721).

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

There are 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 Legislation Act 2003.

The Regulations commence the day after the end of the period of seven days beginning on the day the instrument is registered.

Details of the Regulations 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 (Persons in Custody) Regulations 2017

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 amends the Principal Regulations to:

*         require aircraft operators to include measures and procedures to manage the on-board security risks associated with transporting persons in custody (PICs) in their transport security programs;

*         amend the definition of a dangerous person that is dangerous for the purposes of Part 4, Division 4.5 of the Regulations to ensure consistency with the outcomes of the spent conviction scheme;

*         remove the requirement for the Secretary to approve certain types of PIC movements;

*         remove Form 1 which is currently contained in the Schedule to the Principal Regulations;

*         clarify how and when custodial agencies must provide Form 1 to airport and aircraft operators; and

*         make other minor changes to the Principal Regulations to reflect changes in regulatory responsibilities.

Human rights implications

This Legislative Instrument does not engage any of the applicable rights or freedoms. While there is a nexus to the right to humane treatment in detention, this Legislative Instrument does not limit this right in any way. This Legislative Instrument is used to communicate the escort arrangements for a person in custody on an aircraft or in an airport and the information the custodial agency is required to provide to the aircraft or airport operator. It is not responsible for setting out how persons in detention must be treated.

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 Aviation Transport Security Amendment (Persons in Custody) Regulations 2017

Section 1 - Name of Regulations

This section provides that the title of the Regulations is the Aviation Transport Security Amendment (Persons in Custody) Regulations 2017 (the Regulations).

Section 2 - Commencement

This section provides that the Regulations commence the day after the end of the period of seven days beginning on the day the proposed Regulations are registered.

Section 3 - Authority

This section provides that the Aviation Transport Security Amendment (Persons in Custody) Regulations 2017 is made under the Aviation Transport Security Act 2004 (the Act).

Section 4 - Schedule(s)

This section provides that the Aviation Transport Security Regulation 2005 (the Principal Regulations) be amended as set out in the Schedules to the Regulations.

Schedule 1 - Amendments

Item [1] - Regulation 1.03

The amendment introduces a definition of immigration detention into the Principal Regulations. This will add clarity to the regulations that refer to immigration detention.

Item [2] - Paragraph 2.35(h)

Item 2 repeals paragraph 2.35(h). This paragraph required any aircraft operator who carries out passenger or crew screening to include measures and procedures for handling suspect behaviour by a passenger in their transport security program (TSP). Regulation 2.39 now includes this requirement (see Item 4 below).

Item [3] - Regulation 2.39

Item 3 is administrative in nature and inserts a (1) before the words 'The TSP' to take into account the proposed addition of subregulation 2.39(2) in proposed Item 4 below.

Item [4] - At the end of regulation 2.39

Paragraph 2.39(1)(g) inserts the requirement for an aircraft operator to include measures and procedures for handling suspect behaviour by a passenger in their TSP, which was a requirement in paragraph 2.35(h). Additionally, subregulation 2.39(2) inserts the requirement for any aircraft operator who carries a person in custody (PIC) to include measures and procedures in their TSP to ensure on board security when carrying a PIC. Placing these requirements here, rather than at 2.35(h), means that all aircraft operators must include measures and procedures for handling suspect behaviour and PICs in their TSP, not just those that carry out passenger or crew screening.

This change ensures Australia will meet its obligations under chapter 4.7 of Annex 17 of the Chicago Convention, which requires contracting states to ensure that an aircraft operator's security programme includes measures and procedures to ensure safety on board when carrying passengers who are obliged to travel because they have been subject to judicial or administrative proceedings.

Item [5] - Division 4.5

Item 5 repeals Division 4.5 and substitutes in a new Division 4.5 - Movement of persons in custody.

Division 4.5 clearly outlines:

*         when a PIC is deemed dangerous;

*         the type of information that must be provided to the operator of a prescribed air service, the airport operator and the pilot in command of the aircraft;

*         the escort arrangements for non-dangerous PICs;

*         the escort arrangements for dangerous PICs;

*         when a flight involves a non-standard movement; and

*         the escort arrangements for a non-standard movement

Subdivision 4.5.1 - Movement of persons in custody - preliminary

Regulation 4.73

Regulation 4.73 includes five definitions. Inserting these definitions is intended to add clarity to many of the regulations that have been introduced under the amendments.

Approved form is a form approved under regulation 4.90. The form is a document approved by the Secretary administering the Act and Principal Regulations (the Secretary) and available on the Department of Infrastructure and Regional Development's (the Department's) website for industry use.

Custodial agency has a different meaning depending on whether the movement of PICs involves the Immigration Department (as defined in regulation 1.03 of the Principal Regulations) under subdivision 4.5.2, or an enforcement agency under subdivision 4.5.3. Similarly, dangerous has a different meaning depending on whether the PIC movement relates to the Immigration Department, or an enforcement agency.

Non-standard movement is defined in regulation 4.88. Regulation 4.88 outlines that a non-standard movement includes a movement of more than two PICs, a movement of more than one dangerous PIC or where an individual escort is responsible for a dangerous PIC and at least one other PIC.

Supervised departure refers to a person who until their unescorted departure, is in immigration detention, is supervised under the Migration Act 1958, is departing co-operatively, and is not an Australian citizen.

Subdivision 4.5.2 - Movement of persons in custody under the Migration Act

This subdivision contains the provisions for escort arrangements of PICs under the Migration Act. They outline when the approved form must be provided by the Immigration Department to the operator of a prescribed air service or airport operator. The provisions devolve the responsibility to approve escort arrangements for non-dangerous PICs down to the operator of a prescribed air service and the Immigration Department and describes the information that must be provided to the aircraft's pilot.

Regulation 4.74

This regulation explains that Subdivision 4.5.2 only applies in relation to the travel on a prescribed aircraft of a PIC under the Migration Act. It additionally clarifies that the subdivision does not apply to:

a)      a person who is taken into custody at a security controlled airport or on a prescribed aircraft;

b)      the departure of a person who has been refused entry at an airport and leaves Australia within 72 hours; or

c)      the departure of a person who holds a bridging visa and whose departure is monitored by the Immigration Department.

Regulation 4.75

Regulation 4.75 inserts a definition of a dangerous PIC for the purposes of Subdivision 4.5.2. The definition of a dangerous PIC under regulation 4.75 states that a PIC is dangerous if at least one of three requirements are met. Specifically, a person is dangerous under paragraph 4.75(1)(a) if the Immigration Department has assessed the PIC as being likely to commit an unlawful interference with aviation, or attempt escape. Alternatively, a person is dangerous under paragraphs 4.75(1)(b) and (c) if the Immigration Department is aware that the person has an unresolved charge, as defined in 4.75(2), involving violence against a person or serious damage to property, or the person has been convicted of an offence involving violence against a person or serious damage to property.

Regulation 4.76

This regulation applies to a PIC that is undertaking a flight for the purposes of a supervised departure. In this situation, the Immigration Department must give the operator of the prescribed air service written notice in the approved form at least six hours before the intended start of the flight or later if agreed to by the operator.

Regulation 4.77

This regulation applies to a PIC that is on a domestic flight, is in immigration detention, will be escorted, is not dangerous and is not undertaking the flight for the purposes of a supervised departure. In this situation, the Immigration Department must give the operator of the prescribed air service written notice in the approved form, at least 24 hours before the intended start of the flight or later if agreed to by the operator.

Regulation 4.78

This regulation applies to a PIC that is on an international flight, will be escorted on the flight and is not dangerous. In this situation, the Immigration Department must give the operator of the prescribed air service written notice in the approved form, at least 48 hours before the intended start of the flight or later if agreed to by the operator.

Regulation 4.79

This regulation applies to a PIC that is on a flight, will be escorted on the flight and is dangerous. In this situation, the Immigration Department must give the operator of the prescribed air service written notice in the approved form, at least 48 hours before the intended start of the flight or later if agreed to by the operator.

If the operator endorses their consent on the notice, the Immigration Department must ensure that a copy of the endorsed notice form is sent to the operator of each security controlled airport through which the PIC will travel. The Immigration Department must do this at least 12 hours before the PIC's intended arrival at the airport or later if agreed to by the airport operator.

Regulation 4.80

This regulation applies to a flight where a PIC is to be a passenger and the PIC is not dangerous. The regulation sets out that there is no set number of escorts required but the PIC must be escorted unless the Immigration Department and the operator of the prescribed air service agree otherwise. This agreement can be in any form the operator and Immigration Department decide on.

Regulation 4.81

This regulation requires the operator of a prescribed air service, on which a PIC is to be carried, to notify the aircraft's pilot before departure that there is a PIC to be carried on board the aircraft and the conditions under which the PIC is to be carried.

Subdivision 4.5.3 - Movement of persons in custody other than under the Migration Act

This subdivision contains the provisions for the escort arrangements of PICs other than under the Migration Act. They outline when the approved form must be filled out by the enforcement agency and provided to the operator of prescribed air services or to the airport operator. The provisions also devolve the responsibility to approve escort arrangements for non-dangerous PICs down to the operator and the enforcement agency and describes the information that must be provided to the aircraft's pilot.

Regulation 4.82

This regulation explains that Subdivision 4.5.3 only applies in relation to a PIC traveling on a prescribed aircraft under a law other than the Migration Act. It additionally clarifies that the subdivision does not apply to a person who is in custody because that person was taken into custody at a security controlled airport or on a prescribed aircraft.

Regulation 4.83

Subregulation 4.83(1) defines what enforcement agency means under subdivision 4.5.3. The main difference between this regulation and the definition of enforcement agency under the principal regulations is that there is an expanded explanation of an enforcement agency in the case of a PIC under the Fisheries Management Act 1991. Essentially, whoever has the person in custody will determine who the enforcement agency is. For example if the person who has the person in custody is a member of the Australian Federal Police then the enforcement agency is the Australian Federal Police, not the Australian Fisheries Management Authority, even if the person was taken into custody by the Australian Federal Police under the Fisheries Management Act 1991.

Subregulations 4.83(2) and 4.83(3) outline when a PIC is considered dangerous for the purposes of subdivision 4.5.3. Subregulation 4.83(2) states a PIC is dangerous if at least one of three requirements is met. A person is dangerous under paragraph 4.83(2)(a) if the enforcement agency has assessed the PIC as being likely to commit an unlawful interference with aviation, or attempt escape. Paragraph 4.83(2)(b) states a PIC is dangerous if the person has been charged with an offence that is an offence against a person or involving actual or threatened damage to property, the offence is punishable by imprisonment for five years or more and the charge is yet to be resolved, as defined in subregulation 4.83(3). Or the PIC is dangerous under paragraph 4.87(2)(c) if the person has been convicted of an offence against a person or involving actual or threatened damage to property, and the offence is punishable by 5 years imprisonment or more.

Regulation 4.84

This regulation applies to a PIC not under the Migration Act, who is on a flight and will be escorted. In this situation, the enforcement agency must give the operator of the prescribed air service written notice in the approved form, at least 48 hours before the intended start of the flight or later if agreed to by the operator.

If the PIC is dangerous, and the operator endorses their consents on the notice, the enforcement agency must ensure that a copy of the endorsed notice is sent to the operator of each security controlled airport through which the PIC will travel. They must do this at least 12 hours before the PIC's intended arrival at the airport or later if agreed to by the airport operator.

Regulation 4.85

Regulation 4.85 applies to a flight where a PIC is to be a passenger and the PIC is not dangerous. This regulation sets out that there is no set number of escorts required but the PIC must be escorted unless the enforcement agency and the operator of the prescribed air service agree otherwise. This agreement can be in any form the operator and the enforcement agency decide on.

Regulation 4.86

This regulation requires the operator of a prescribed air service, on which a PIC is to be carried, to notify the aircraft's pilot before departure that there is a PIC to be carried on board the aircraft and the conditions under which the PIC is to be carried.

Subdivision 4.5.4 - Movement of persons in custody - dangerous persons

Regulation 4.87

Regulation 4.87 sets out the escort arrangement for flights involving a movement of a dangerous PIC. This regulation provides that where a dangerous PIC is being transported, the custodial agency must ensure at least two escorts escort the dangerous PIC at all times. The regulation also outlines the requirements for a lawful escort of a dangerous PIC on a flight.

An escort is lawful if it involves at least two escorts, at least one escort is the same sex as the PIC, the escorts are law enforcement officers or persons of a kind agreed to and the escort is not crew members of the aircraft.

Subdivision 4.5.5 - Movement of persons in custody - non-standard movements

This subdivision defines a non-standard movement and outlines the escort arrangements for flights involving a non-standard movement.

Regulation 4.88

Subregulation 4.88(1) defines what the term 'non-standard movement' means. Under the regulation, a flight involves a non-standard movement if there will be more than two PICs on board, if there is more than one dangerous PIC on the flight, or if an individual escort is responsible for both a dangerous PIC and at least one other PIC.

Subregulation 4.87(2) outlines that the movement of a family unit, which might otherwise be considered part of a non-standard movement, will not be a non-standard movement if it satisfies certain requirements. These requirements are that there are more than two escorted persons travelling, in the custodial agency's opinion they are a family unit, none of the persons are dangerous, the operator of the prescribed air service and custodial agency have agreed on the escort arrangements for the persons and no other escorted persons are travelling on the flight.

Regulation 4.89

Regulation 4.89 ensures that a prescribed aircraft is not used for a flight that involves a non-standard movement unless the operator of a prescribed air service and the custodial agency or agencies for each PIC have agreed on the escort arrangements. Subregulation 4.89(3) clearly states that there is no set number of escorts required, however, the custodial agency and the operator of a prescribed air service may not agree to no escorts when a dangerous PIC is on board. Furthermore, before a decision on an escort arrangement is made, careful consideration must be given to the risk involved with the situation.

Subdivision 4.5.6 - Movement of persons in custody - miscellaneous

Regulation 4.90

The Secretary, under this regulation, may approve a form for a notice that is required to be given under this Division.

Regulation 4.91

Regulation 4.91 provides that where one or more of regulations 4.76, 4.77, 4.78, 4.79 and 4.84 apply to a flight in respect of two or more PICs, the custodial agency may provide the information required by those regulations about the PICs in a single notice, rather than fill out and provide a separate notice for each PIC.

Regulation 4.92

Regulation 4.92 provides clarity on the provision of information. It clarifies that nothing in the regulations requires a custodial agency to give any information to an operator, the disclosure of which would constitute an offence under any Commonwealth, State or Territory law.

Regulation 4.93

Regulation 4.93 provides that if a custodial agency discovers that any information the agency has given to an operator is incorrect or incomplete, the agency must give the correct or missing information to the operator as soon as practicable.

Item [6] - In the appropriate position in Part 10

Item 6 inserts 'Division 9 - Amendments made by the Aviation Transport Security Amendment (Persons in Custody) Regulations 2017' to the end of Part 10 and inserts regulation 10.23 underneath.

Regulation 10.23 states that the new requirements for a TSP under paragraphs 2.39(1)(g) and (2) would not need to be incorporated into a TSP unless the aviation industry participant submits a new TSP for approval, or submits a proposed variation or alteration of a TSP in force. To avoid doubt, the regulation ensures that there is no requirement for aviation industry participants who are involved in transporting PIC's, to resubmit a new TSPs to comply with the new requirements, they instead must incorporate the new requirements when they submit a new, varied or altered TSP.

The new requirements apply whether the submission for approval, variation or alteration of a TSP is made before, on or after the day of commencement.

Item [7] - Schedule

Item 7 repeals the Schedule under the Principal Regulations. The form that was contained in the Schedule will instead be approved by the Secretary and will be found on the Department's website.