EXPLANATORY STATEMENT

 

Selective Legislative Instrument 2010 No. 176

 

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

 

Subject - Aviation Transport Security Act 2004
Aviation Transport Security (Consequential Amendments and Transitional Provisions) Act 2004

Aviation Transport Security Amendment Regulations 2010 (No. 2)

 

Section 133 of the Aviation Transport Security Act 2004 (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 40 provides that access to aircraft may be restricted to persons, goods (other than cargo) and vehicles that have received clearance. In most cases, receiving clearance will require going through a screening process. More specifically, Section 44 provides that the Regulations may, for the purposes of safeguarding against unlawful interference with aviation, prescribe requirements in relation to screening, receiving clearance and the circumstances in which persons, goods (other than cargo) or vehicles are required to be cleared.

 

The Aviation Transport Security Regulations 2005 (ATSR) at regulation 4.02 prescribe that an aircraft that is operating an international air service that is a regular public transport operation or an open charter operation, or a jet operating a domestic air service that is a regular passenger transport operation, must be a cleared aircraft before departure.

The regulations amend the ATSR and replace means of propulsion with maximum weight for an aircraft as the primary determinant for an aircraft to be a cleared aircraft. This is required to give effect to key initiatives announced in the National Aviation Policy White Paper: Flight Path to the Future on 16 December 2009 and in the Strengthening Aviation Security Initiative announced on 9 February 2010 by the Prime Minister, the Minister for Infrastructure, Transport, Regional Development and Local Government, and the Minister for Home Affairs, which require:

a.       from 1 July 2010, passenger and checked baggage screening for all aircraft greater than 30,000kg maximum takeoff weight (MTOW) operating regular public transport (RPT) services; and

b.      extending passenger and checked baggage screening for all aircraft greater than 20,000kg MTOW operating RPT and prescribed air services by 1 July 2012 for all regular public transport air services and open charter services, and prescribed air services by 1 July 2014.

 

Attachment A explains the scope of the amendment to the ATSR and details of the regulations are set out in the Attachment B.

 

The regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The regulations commence on the day after they are registered on the federal Register of Legislative Instruments.

 

The amendments were developed in consultation with the aviation industry and are a result of consultative process undertaken to develop the National Aviation Policy White Paper: Flight Path to the Future. Discussions were also held through consultative forums including the Aviation Security Advisory Forum and Regional Industry consultative Meeting regulatory working groups.

 

 

 

 

 

 

 

ATTACHMENT A

 

Scope of the Regulations

The regulations update the Aviation Transport Security Regulations 2005 to replace means of propulsion with maximum weight of aircraft as the primary determinant for an aircraft to be a cleared aircraft. This will result in a phased implementation of maximum weight as the primary determinant for an aircraft to be a cleared aircraft and will provide a robust and defensible aviation security trigger.  Initially, a maximum weight of 30,000kg and above will be used, reducing to 20,000kg for RPT and open charter services from 1 July 2012 and no later than July 2014 for prescribed air services.

Rationale for Amendments

The growing potential for new model aircraft to be used as weapons against a ground target, or as a target for destruction itself, has increased with an increase in the use of larger turbo propeller powered aircraft between major and regional airports. The different screening requirements for these aircraft and those powered by jet turbine expose potential vulnerabilities in the current security regime.

Various aircraft factors have been considered as possible security triggers. Aircraft range, seating capacity, fuel load and speed have inconsistencies and potential variations which, if used as a trigger for screening, would be difficult to enforce.

Unscreened aircraft with a maximum weight equal to or greater than 20,000 kilograms taking off from any regional airport in Australia are able to easily reach iconic targets in Australian capital cities and elsewhere. Many of the regional airports these aircraft operate from are easily accessible by road or rail from capital cities. Any aircraft with a maximum weight of 20,000 kilograms can inflict catastrophic damage. Such aircraft operating from unscreened regional airports, represent a potentially exploitable vulnerability, and as such constitute attractive terrorist targets. This means some unscreened aircraft could be targeted by terrorists with the aim of causing mass casualties by destroying the aircraft in flight or by using the aircraft as a weapon.

Maximum weight, for an aircraft, would mean the gross maximum weight at takeoff that the manufacturer of the aircraft, or a person authorised by the Civil Aviation Safety Authority, certifies for structural safety or control of the aircraft.

 

ATTACHMENT B

 

Details of the Aviation Transport Security Amendment Regulations 2010 (No. 2)

 

Regulation 1 – Name of Regulations

 

The title of the Regulations is the Aviation Transport Security Amendment Regulations 2010 (No. 2).

 

Regulation 2 – Commencement

 

This regulation provides for the Regulations to 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 the Schedule.

 

Schedule – Amendments

 

Item [1] – subregulation 4.02(1)

 

Item [1] repeals and replaces current subregulation 4.02(1) of the ATSR and creates maximum weight of an aircraft as the primary determinant for an aircraft to be a cleared aircraft.

 

The effect of Item [1] is to replace method of propulsion with maximum weight for an aircraft as the primary determinant an aircraft to be a cleared aircraft, and provides for a phased implementation. Initially, a maximum weight of 30,000kg and above will be used commencing 1 July 2010, reducing to 20,000kg for regular public transport and open charter services from 1 July 2012 and no later than July 2014 for prescribed air services.

 

Item [1] creates a new subregulation 4.02(1A) definition “maximum weight”. Maximum weight, for an aircraft would mean the gross maximum weight at takeoff that the manufacturer of the aircraft, or a person authorised by the Civil Aviation Safety Authority, certifies for structural safety or control of the aircraft.