Commonwealth Numbered Regulations - Explanatory Statements

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AVIATION TRANSPORT SECURITY AMENDMENT REGULATIONS 2008 (NO. 1) (SLI NO 58 OF 2008)

 

EXPLANATORY STATEMENT

 

Select Legislative Instrument 2008 No. 58

 

 
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. 1)

 

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 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 provides, in part, that the regulations may, for the purposes of safeguarding against unlawful interference with aviation, prescribe requirements in relation to screening and may deal with the circumstances in which baggage must be cleared in order to be taken onto an aircraft.

The proposed Regulations would amend the Aviation Transport Security Regulations 2005 (the Regulations) to mandate checked baggage screening (CBS) for all domestic screened air services. Currently, checked baggage is screened only on domestic screened air services that operate from the eleven designated airports (i.e. Adelaide, Alice Springs, Brisbane, Cairns, Canberra, Coolangatta, Darwin, Hobart, Melbourne, Perth and Sydney). All other domestic airports that receive screened air services are currently only required to screen passengers and their carry-on baggage.

 

CBS will be required on all screened air services from the date that a notice is served on the person required to conduct the screening at an airport. These notices will be served shortly after these Regulations are made. CBS will continue on all services for which it is currently required.

 

It is not possible to deploy x-ray equipment at newly affected airports in the short term so they will be required to undertake CBS by means of random explosive trace detection (ETD) until x-ray equipment can be installed. These interim arrangements will cease on 1 December 2008 from which date all airports required to conduct CBS are expected to have x-ray equipment deployed.

 

Airports not currently required to conduct CBS are aware of the proposed Regulations and are already voluntarily undertaking CBS.

 

The introduction of 100 percent domestic CBS is an extension of the current baggage screening arrangements and enhances security at regional airports throughout

 

Australia. It mitigates the threat posed by having baggage loaded into the hold of a jet aircraft that has not been subjected to machine x-ray screening or ETD. Since the advent of aircraft hijackings in the 1960s and the destruction of Pan Am Flight 103 over Lockerbie, Scotland in 1988 as a result of an explosive device concealed in a suitcase which was loaded into the cargo hold, the screening of checked baggage has become a minimum global standard for ensuring the security of passenger aircraft.

 

Extensive consultation has been undertaken with aviation industry participants including all affected airlines and airports, the Australian Airports Association and the Regional Aviation Association of Australia through the Department’s major consultative mechanism, the Aviation Security Advisory Forum. Numerous site visits and other meetings and forums have also taken place.

 

A Regulatory Impact Statement is not required for the amendment regulations because they are of a minor or machinery nature. The compliance costing is discussed at Attachment A

 

Attachment B explains the background to domestic CBS and the offences created by the proposed Regulations.

 

Attachment C explains each clause of the proposed Regulations.

 

The Act specifies no conditions that need to be satisfied before the power to make the proposed Regulations may be exercised.

 

The proposed Regulations would be a Legislative Instrument for the purposes of the Legislative Instruments Act 2003.

 

The proposed Regulations would commence the day after they are registered on the Federal Register of Legislative Instruments.

 

The Minute recommends that Regulations be made in the form proposed.

 

 

 

Authority: Section 133 of the

Aviation Transport Security Act 2004

 

 


ATTACHMENT A

REGULATION IMPACT STATEMENT

The Office of Best Practice Regulation has advised that no Regulation Impact Statement is required for these amendments because they are of a minor or machinery nature.

The extension of the current CBS arrangements to include all domestic screened air services is likely to have a medium level short-term impact on business, particularly for airlines and airports affected by the new measures.

BUSINESS COST CALCULATOR

The extension of the current CBS measures will not impact the 11 ‘designated’ airports in Australia as they have been required to screen all domestic checked baggage since 1 August 2007 under subregulation 4.29(3) of the Regulations. Furthermore, 29 regional and remote airports who currently only undertake passenger and carry-on baggage screening are receiving Australian Government funding to purchase x-ray screening machines.

The Australian Government has provided funding for the extension of CBS to regional airports for the following reasons;

·          To maintain the viability of small regional airports; and

·          The airports identified to receive the proposed funding have a limited capacity to pay for the required measures; and

·          The proposed Government funding will assist airports meeting specific criteria to address screening inconsistencies, without impacting on the regional economy or connectivity of regional Australians.

Three factors were considered when developing funding options for CBS:

·          equity; and

·          competitive neutrality; and

·          capacity of the airport to fund additional screening measures

Competitive neutrality was chosen as the preferred option for 100 percent funding of ETD machines for 26 airports as the interim measure. Scaled funding was then utilised for the funding of CBS x-ray machines based on outbound passenger movements.

The costs to airport operators will be moderate in the short term, falling to low in the medium to long term as the equipment and screeners become more efficient and the process is streamlined. Additionally, as more screened air services (jets) utilise the airport, revenue will increase and the costs of operating the CBS equipment will be offset. The principal costs to business are expected to involve the initial expenses of capital works to facilitate the CBS equipment and the training of screeners and any short-term operational expenses incurred. The most significant financial costs will apply to those airports that wish to receive screened air services (i.e. jet aircraft) in the

 

future as these airports must ensure they meet the requirements under the extended CBS arrangements without any Australian Government funding.

The Business Cost Calculator was used to estimate the likely change in compliance costs to business. The funding will be provided over four fiscal years as illustrated below;

Current funding:

 

2007-08

2008-09

2009-10

2010-11

Total

Funding Allocated

$9.1254m

$5.870m

$0.496m

$0.503m

$15.994m

 

Additional Costing Information:

Two of the screening airports will not receive any funding through the grant scheme. These are Argyle Airport (although listed as a screening airport, it does not have any jet RPT movements) and Ravensthorpe Airport (it will not continue with jet RPT movements following completion of a construction project).

ETD machines will be provided at 26 of the airports, 1 machine at 21 of the airports and 2 machines at 5 of the airports. The cost per machine is estimated to be $60,000. Airports to receive 100 percent ETD funding are: Avalon, Ayers Rock, Ballina, Broome, Christmas Island, Cocos Island, Coffs Harbour, Gove, Hamilton Island, Hervey Bay, Kalgoorlie, Karratha, Kununurra, Launceston, Learmonth, Mackay, Maroochydore, Mount Isa, Newman, Norfolk Island, Paraburdoo, Port Hedland, Proserpine, Rockhampton, Townsville and Williamtown.

CBS machines will be provided at 18 of the airports based on competitive neutrality. The cost per CBS machine is estimated to be $600,000 subject to operational requirements. Airports to receive 100 percent CBS funding are: Ayers Rock, Ballina, Broome, Christmas Island, Cocos Island, Coffs Harbour, Gove, Hamilton Island, Hervey Bay, Kalgoorlie, Karratha, Kununurra, Learmonth, Mount Isa, Newman, Paraburdoo, Port Hedland and Proserpine.

Airports with greater than 300,000 outbound passenger movements per year will not receive funding for CBS. Norfolk Island will also not receive funding for a CBS machine as it already has one in place.

Additional ongoing costs that impact business are unable to be determined due to operational considerations and individual airport requirements. Unforseen costs or impacts on business also cannot be determined due to the particular operating requirements at each airport and the nature of the aviation security environment.

 

ATTACHMENT B

 

 

Aviation Transport Security Amendment Regulations 2008 (No. 1)

 

 

OVERVIEW OF DOMESTIC CHECKED BAGGAGE SCREENING

Schedule 1 amends the Aviation Transport Security Regulations 2005 (the Regulations) to mandate 100 percent checked baggage screening (CBS) on screened air services at all airports where domestic screened air services operate.

Airports affected by the new CBS measures

All domestic airports where screened air services currently operate will be affected by the extension of the current CBS arrangements.

Transitional arrangements

As regional airports are significantly affected by these extended CBS measures, they will require a period of time to purchase, install and test x-ray scanning machines that are in accordance with a notice made under Regulation 4.17, which allows the Secretary to specify, by written notice, methods, techniques and equipment to be used for screening.

During this period CBS will be conducted by random and continuous explosive trace detection (ETD). This process involves wiping the bag with a small piece of test paper and using an explosives detection machine to check for any traces of explosive residue that may originate from a variety of sources, including military-grade plastic explosives, ammunition and fireworks.

A similar process is currently used for carry-on baggage which is being undertaken by some airports as an extra layer of protection against explosives being carried on board an aircraft.

Arrangements from 1 December 2008

From 1 December 2008, CBS will apply to all domestic screened air services. The onus is on airports and airlines operating to airports that do not currently have CBS facilities to ensure an appropriate screening authority and the necessary equipment are ready to operate from 1 December 2008. Any airport that wishes to attract screened air services (i.e. jets operating an RPT operation) will have to comply with the enhanced CBS measures.

These measures will also apply to baggage that is be loaded onto any aircraft that departs from the same apron and within the operational period as the screened air service. For example, a turbo-prop aircraft that is not usually considered a screened air service but is scheduled to depart (from the same apron) and within 30 minutes of the departure or arrival of a screened air service (jet RPT service) at a security-controlled airport will be considered a screened air service and will be subject to the new CBS requirements.

 

SCOPE OF THE REGULATIONS

These amendments to the Regulations mandate 100 percent CBS at all domestic airports that receive screened air services and prescribe the following:

·               The responsibility of the screening authority to ensure that baggage is cleared either by screening or by virtue of another method allowed by the Regulations, for example a notice issued by the Secretary under paragraph 42(2)(b) or (c) of the Act.

·               The requirement for the aircraft operator to only load checked baggage that has been cleared.

·               The requirement for a screening authority to supervise and control all checked baggage and not allow any foreign items to be placed in or on any cleared baggage during the ‘supervision and control period.’ That period begins when the baggage is cleared and ends when the baggage is checked in.

·               Regulation 4.23 – aircraft operator loading checked baggage that has not been cleared. The aircraft operator commits an offence if they are operating a screened air service and the aircraft operator knowingly loads an item of baggage onto the aircraft that has not been cleared in accordance with a notice issued under regulation 4.17. Penalty: 50 penalty units

For the physical element of an offence (i.e conduct or a result of conduct), intention is the standard fault element for criminal offences. However, other fault elements may be specified for a particular physical element of an offence. In regards to regulation 4.24, the fault element is to be ‘knowledge’ on the basis that the aircraft operator (including its baggage handling agents/contractors) have knowledge of the processes for handling and loading baggage. Aircraft operators are aware of the result if they were to load baggage that has not been cleared, onto an aircraft.

·               Regulation 4.24 – failure of screening authority to supervise and control. The screening authority commits an offence if it does not have appropriate procedures in place to ensure an item cannot be placed in or on any cleared baggage during the supervision and control period. Penalty: 50 penalty units.


ATTACHMENT C

Details of the proposed Aviation Transport Security Amendment Regulations 2008 (No. 1)

Regulation 1 – Name of Regulations

The title of the Regulations is the Aviation Transport Security Amendment Regulations 2008 (No. 1).

Regulation 2 – Commencement

The Regulations commence on the day after they are registered.

Regulation 3 – Amendment of Aviation Transport Security Regulations 2005

The Aviation Transport Security Regulations 2005 are amended as set out in Schedule 1.

Schedule 1 – Amendments

Item [1] – Subregulation 4.19(1)

Item 1 inserts a new Note into subregulation 4.19(1) in relation to the requirements for the control and supervision of baggage before it is checked allowed by new regulation 4.24A.

Item [2] – New regulations 4.23 and 4.24.

Item 2 substitutes current regulations 4.23 and 4.24 with new regulations 4.23 and 4.24.

New regulation 4.23

For paragraph 44(2)(f) , which allows, in part, that the regulations may deal with the circumstances in which baggage must be cleared in order to be taken onto an aircraft and subsection 44(4) of the Act which allows that regulations made under this section may prescribe penalties for offences against those regulations, new regulation 4.23 creates an offence where an aircraft operator loads an item of baggage onto an aircraft knowing that the item has not been cleared.

If it were to eventuate that the aircraft operator was of the understanding that the baggage had been cleared by the screening authority but in fact the screening authority had not screened the baggage, then the screening authority would commit an offence under regulation 4.17. For new regulation 4.23 the aircraft operator of a screened air service includes those aircraft operators in regional and rural areas of Australia where smaller non-jet aircraft depart from the same apron as a screened air service and within 30 minutes of a screened air service departing or arriving at the airport.

New regulation 4.24

For paragraph 44(2)(l) which allows, in part, that the regulations may deal with the supervision and control measures for ensuring that goods, including baggage, that

 

have received clearance remain cleared in areas or zones that are not cleared areas or cleared zones; and subsection 44(4) of the Act, new regulation 4.24 creates an offence where a screening authority fails to supervise and control baggage. This provision is designed to ensure that cleared baggage maintains its cleared status and cannot be interfered with during the supervision and control period.

Item [3] – Regulations 4.29 to 4.35

These regulations will be omitted.

Regulations 4.31, 4.32 and 4.34 ceased to have effect at the end of 31 July 3007.

The requirements currently contained in regulations 4.29 and 4.33 will be set out in a notice made under regulation 4.17, which allows the Secretary to specify, by written notice, methods, techniques and equipment to be used for screening.

The provisions contained in regulation 4.30 are contained in new regulation 4.23.

 


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