EXPLANATORY STATEMENT

 

Select Legislative Instrument 2010 No. 200

 

 

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 2010 (No. 3)

 

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.

 

More specifically, section 44 of the Act provides, in part, that the regulations may, for the purposes of safeguarding against unlawful interference with aviation, prescribe requirements in relation to:

a)      screening;

b)      receiving clearance; and

c)      the circumstances in which persons, goods (other than cargo) or vehicles are required to be cleared.

 

In addition, section 37 of the Act provides that the regulations may, for the purposes of safeguarding against unlawful interference with aviation, prescribe requirements in relation to the landside area of a security controlled airport and include regulations relating to access to a landside area.

 

The Regulations would amend the Aviation Transport Security Regulations 2005 (the Principal Regulations) to strengthen some liquid, aerosol and gel (LAG) restrictions while also amending other restrictions to assist passengers to travel with certain LAG items.

 

The Principal Regulations currently:

·        do not prohibit persons, who can enter a sterile area other than through a screening point, from carrying an oversize LAG item with them into a LAGs Cleared Area. This is inconsistent with the LAGs requirements for passengers;

·        do not include any requirements for security tamper evident bags (STEBs);

·        require that passengers must disembark from the aircraft at a transit stop and take all their carry-on possessions with them. This results in passengers having to surrender any oversize LAG items, which are not permitted LAG items, when they pass through a transit LAGs screening point;

·        do not permit liquids over two litres being carried into the cabin of an aircraft which is inconsistent with Customs duty free allowances and the Dangerous Goods Regulations of the Civil Aviation Safety Authority (CASA);

·        exempt certain items, such as blood products and samples, from being considered LAG items, but does not exempt materials or containers needed to maintain the temperature, quality or integrity of these items; and

·        include a definition of an exempt duty free item which only requires LAG items be gate delivered to be considered an exempt duty free item rather than also specifying that the item needed to be purchased within the secure area of an airport.

 

The Regulations amend the Principal Regulations to:

·        make it an offence for those persons who can enter a sterile area other than through a screening point to carry an oversize LAG item, unless it is a permissible LAG, into a LAGs Cleared Area;

·        require that the duty free retailers located within the sterile area of an Australian international airport and who choose to provide STEBs to passengers, only provide STEBs that meet the International Civil Aviation Organization (ICAO) specifications and security requirements;

·        permit a passenger to leave oversize LAG items onboard an approved flight at a transit stop either at the last port of call (LPOC) (where permitted by the legislation in that country) or at the transit stop at an Australian airport;

·        permit a person to carry five litres of liquid into the cabin of an aircraft to bring the Principal Regulation in line with Customs duty free allowances and CASA’s Dangerous Goods Regulations;

·        exempt a material or container used to maintain the temperature, quality or integrity of a specific list items from being considered a LAG item; and

·        tighten the definition of an exempt duty free item to specify that only LAG items purchased within the secure area of an airport are to be collected by the passenger at the boarding gate and permitted on the flight to Australia.

 

A Regulation Impact Statement is not required for the Regulations because they have low or no impact on business.

 

The Regulations have been settled in consultation with aircraft operators.

 

Details of the amendment to the Principal Regulations are set out Attachment A.

 

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

 

The Regulations commenced on the day after they were registered on the Federal Register of Legislative Instruments.

 

 

 

 

 

ATTACHMENT A

 

Details of the Aviation Transport Security Amendment Regulations 2010 (No. 3)

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the Aviation Transport Security Amendment Regulations 2010 (No. 3).

 

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

 

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

 

Schedule 1 – Amendments

 

Item [1] – Regulation 1.03, definition of exempt duty free item

 

This amendment tightens the definition of an exempt duty free item to specify that only LAG items that have been purchased at an airport, subjected to security screening upon entry to the airport and protected by a process of supply chain security are to be allowed into the cabin of aircraft flying to Australia.

 

Item [2] – Regulation 1.03, definition of exempt duty free item

 

This amendment amends the definition of an exempt duty free item. This amendment assists passengers in certain circumstances to leave oversize LAGs onboard an aircraft at a transit stop. This amendment removes the requirement that a LAG item needs to be purchased at the last port of call airport before Australia and would insert the new requirement that a LAG item needs to be purchased at an airport on the trip to Australia.

 

Item [3] – Regulation 1.03, after definition of grey ASIC

 

This amendment inserts the definition of the International Civil Aviation Organization (ICAO) into the list of definitions. ICAO is referred to in later Regulations as the organisation responsible for the detailing the specifications relating to security tamper evident bags (STEBs).

 

Item [4] – Regulation 1.03, definition of LAGs Cleared Area

 

This amendment replaces the definition of a LAGs Cleared Area with an amended definition. The new definition better defines the area that is a LAGs Cleared Area and outlines that the area can be entered by an entrance other than a LAGs screening point by those persons permitted to do so.

 

Item [5] – Regulation 1.03, after definition of open charter operation

 

This amendment inserts the definition of a permitted item into the list of definitions. A permitted item is a LAG product that meets the requirements under

subregulation 4.13A(1) and is an item that may be left onboard an aircraft, operating an approved air service, at a transit stop.

 

Item [6] – Regulation 1.03, after definition of secure area including the note

 

This amendment inserts the definition of a security tamper evident bag (STEB) into the list of definitions. A STEB is a bag with tamper evident features into which LAG products can be placed. Placing an item in a STEB provides a sign that the product within the bag has not been tampered with. The definition would be set out under new regulation 4.22R as inserted by item [19] below.

 

Item [7] –Paragraph 1.07(8)(a)

 

This amendment replaces the current allowance of two litres of liquid with the new allowance of five litres to bring the Principal Regulations in line with Customs duty free allowances and the Dangerous Goods Regulations of the Civil Aviation Safety Authority (CASA). This amendment will mean that passengers with bottles of liquid over two litres, such as duty free liquor, will not have to surrender the items at a screening point when transferring from an international to a domestic flight.

 

Item [8] – Regulation 4.11

 

This amendment replaces the current regulation 4.11 with an amended regulation 4.11. Two new subregulations regarding impermissible LAG products are included which are aimed at prohibiting the persons covered by regulation 4.11 from taking impermissible LAG products with them into a LAGs Cleared Area. This change is required as the Principal Regulations do not currently make it an offence for those persons who are permitted to enter a sterile area, other than through a screening point, to carry LAG items into a LAGs Cleared Area. This is inconsistent with the requirements for passengers who are required to surrender any oversize LAG items, which are not exempt LAGs, when they enter the LAGs Cleared Area through the screening point.

 

The amended regulation 4.11 also includes the drafting amendments of the insertion of subheadings and the combining of the subregulations relating to access to the sterile area and enhanced inspection areas. The drafting amendments will make the regulation clearer and more comprehendible for the reader.

 

Item [9] – Subregulation 4.13(3)

 

This amendment amends subregulation 4.13(3) to insert new references to other applicable subregulations. The insertion of the references is required to refer a person to the other subregulations so that they read all the provisions that may have an effect on them.

 

 

 

 

Item [10] – After regulation 4.13

 

This amendment inserts a new regulation 4.13A into the Principal Regulations. The new regulation permits a passenger to leave certain oversize LAG items onboard approved flights at a transit stop either at the LPOC before the flight reaches Australia or at the transit stop at an Australian airport. The Principal Regulations currently require that, for inbound international flights to Australia, all the carry-on possessions of a passenger must be removed from an aircraft at a transit stop and rescreened prior to the passenger reboarding the aircraft for the onward journey. These requirements mean that when a passenger is rescreened, any LAG items greater than 100 millilitres in their possession, unless the LAG item is an exempt LAG item, needs to be surrendered.

 

Item [11] – Paragraph 4.22C(2)(e)

 

This minor drafting amendment replaces the full stop after the word health in subparagraph 4.22C(2)(e) with a semicolon in order for the list of subparagraphs to continue.

 

Item [12] – After paragraph 4.22C(2)(e)

 

This amendment inserts a new paragraph 4.22C(2)(f) to permit materials or containers to be used to maintain the temperature, quality or integrity of items listed in subparagraphs (2)(a) to (e). The Principal Regulations currently exempt items, such as biological tissues, blood products and samples and substances for medical research and reproductive health from being considered LAG products. However, some of these items require material or containers to maintain their temperature, quality or integrity. This amendment will allow materials or containers, such as an ice pack, to pass through a LAGs screening point if they are being used to maintain the temperature, quality or integrity of the specific list of items.

 

Item [13] – After subregulation 4.22C(2)

 

This amendment inserts a new subregulation 4.22C(2A) to specify the items that are not considered to be LAG items and which can be taken into a LAGs cleared area by those persons who may enter a LAGs Cleared Area other than through a screening point. This list would specify the LAG items that are permitted LAG items and that the applicable person can carry into the LAGs Cleared Area.

 

Item [14] – Subparagraph 4.22E(1)(b)(iii)

 

This minor drafting amendment replaces the full stop after the word flight in subparagraph 4.22E(1)(b)(iii) with a semicolon in order for the list of subparagraphs to continue.

 

Item [15] – After subparagraph 4.22E(1)(b)(iii)

 

This amendment inserts the option of a permitted item into the list of subparagraphs. The insertion of a permitted item into the list will allow for a permitted LAG items to remain onboard an aircraft during a transit stop as outlined under item [10] above.

 

 

 

Item [16] – Subparagraph 4.22F(1)(b)(iii)

 

This minor drafting amendment replaces the full stop after the word flight in subparagraph 4.22F(1)(b)(iii) with a semicolon in order for the list of subparagraphs to continue.

 

Item [17] – After subparagraph 4.22F(1)(b)(iii)

 

This amendment inserts the option of a permitted item into the list of subparagraphs. The insertion of a permitted item into the list will allow for a permitted LAG items to remain onboard an aircraft during a transit stop as outlined under item [10] above.

 

Item [18] – After regulation 4.22H

 

This amendment inserts a new regulation 4.22HA to specify the offence provision for taking an impermissible LAG item into a LAGs Cleared Area through an entrance other than a screening point. This offence provision applies to those persons under regulation 4.11 who can enter a sterile area other than a screening point. The offence is an offence of strict liability for which the penalty is 20 penalty units. It is already an offence for persons to carry a non-exempt LAG item through a screening point into a LAGs Cleared Area.

 

Item [19] – After Subdivision 4.1.1A

 

This regulation inserts a new Subdivision 4.1.1B including new regulations 4.22R, 4.22S and 4.22T to specify the requirements for STEBs. The new regulations specify:

·        the definitions for ICAO and STEB;

·        the security requirements for the delivery, storage and use of STEBs; and

·        the offence for the supply of non-compliant STEBs when a business represents another bag to a customer as being a STEB.

 

A STEB is a bag with tamper evident features into which oversize LAG purchases can be placed. The placement of oversize LAGs in a STEB may assist passengers to transit an overseas airport without having to surrender their purchase when undergoing security screening. This is because a STEB and the attached receipt offers an assurance that an item was purchased in a secure area of an airport and has not been tampered with since purchase. Guidelines for the design and security requirements for STEBs have been developed by ICAO of which Australia is a member state. Some of the ICAO requirements for STEBs include the bag being kept in a secure location at the point of sale or storeroom. The offence provision is to ensure retailers do not supply a

non-compliant bag to customers as a non compliant bag could lead to a passenger having to surrender their LAG items in the bag when transiting an overseas airport. The penalty for an offence under this provision is 20 penalty units.