Commonwealth Numbered Regulations - Explanatory Statements

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AVIATION TRANSPORT SECURITY AMENDMENT REGULATION 2012 (NO. 4) (SLI NO 134 OF 2012)

EXPLANATORY STATEMENT

 

Select Legislative Instrument 2012 No. 134

 

Issued by the Authority of the Minister for Infrastructure and Transport

 

Subject -          Aviation Transport Security Act 2004

 

                        Aviation Transport Security Amendment Regulation 2012 (No. 4)

 

The Aviation Transport Security Act 2004 (the Act) and the Aviation Transport Security Regulations 2005 (the Principal Regulations) establish a regulatory framework to safeguard against unlawful interference with aviation.

 

Section 133 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.

 

Section 44 of the Act 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 are required to be cleared.

 

The purpose of the Regulation is to amend the Principal Regulations to further support the implementation of the airport security classification system by:

 

*         ensuring that people disembarking at security controlled airports are treated according to the type of screening they have undergone; and

*         clarifying the ways in which persons may be cleared before boarding screened air services.

 

The airport security classification system, introduced by the Aviation Transport Security Amendment (2009 Measures No. 1) Act 2010, allows the Government to group security controlled airports into categories with similar operating environments and threat and risk profiles. This enables each airport to be subject to proportional application of aviation security requirements.

 

The Regulation amends the Principal Regulations to reflect the different levels of security screening applied at airports across Australia and ensures that the integrity of cleared areas at higher categorised security controlled airports is maintained.

 

The Regulation amends the Principal Regulations to:

 

 

Consultation with industry and other stakeholders occurred as part of the broader airport security classification system policy through an industry-government working group and the Regional Industry Consultative Meeting, hosted by the Department of Infrastructure and Transport.

 

Details of the Regulation are set out in the Attachment.

 

The Act specifies no 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 the day after it is registered.

 

 

                                                                  Authority:         Section 133 of the Aviation

Transport Security Act 2004

ATTACHMENT

 

Details of the Aviation Transport Security Amendment Regulation 2012 (No. 4)

 

Section 1 - Name of Regulation

 

This section provides that the title of the Regulation is the Aviation Transport Security Amendment Regulation 2012 (No. 4).

 

Section 2 - Commencement

 

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

 

Section 3 - Amendment of Aviation Transport Security Regulations 2005

 

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

 

Schedule 1 - Amendments

 

Item [1] - Paragraph 3.20(3)(e)

 

This item inserts 'subregulation 4.09(3) or' into paragraph 3.20(3)(e). This clarifies that an aviation industry participant responsible for a sterile area (a zone on the landside of a security controlled airport that persons ordinarily enter before boarding aircraft where security controls apply) is not committing an offence by allowing a person who receives clearance under subregulation 4.09(3) to enter a sterile area other than through a screening point.

 

Item [2] - Regulation 4.08 and Regulation 4.09

 

This item substitutes a new regulation 4.08. The new regulation prescribes that persons must be cleared before boarding screened air services. The new regulation removes the word screened to reflect that a person may be cleared after receiving clearance without being screened under certain circumstances.

 

This item also substitutes a new regulation 4.09. The new regulation prescribes that a person must receive clearance before entering a sterile area or enhanced inspection area (a zone on the airside of a security controlled airport where security controls apply). It allows, however, for persons disembarking from certain screened air services to receive clearance without being screened.

 

Where all persons on board an aircraft receive clearance at a category 1 to 4 airport before boarding, they are able to disembark into a sterile area or enhanced inspection area at any airport without being screened again. Where all persons on board an aircraft received clearance at a category 1 to 5 airport, they only receive clearance to disembark into a sterile area or enhanced inspection area without being screened at category 5 airports.

Text Box: Statement of Compatibility with Human Rights Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 Aviation Transport Security Amendment Regulation 2012 (No. 4) 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 Regulation supports the implementation of the airport security classification system by: • ensuring that people disembarking at security controlled airports are treated according to the type of screening they have undergone; and • clarifying the ways in which persons may be cleared before boarding screened air services. Human rights implications The Regulation may affect the right to freedom of movement. The Regulation may limit this freedom by imposing a condition of entry on persons disembarking some screened air services into cleared areas of security controlled airports. Formerly persons disembarking from all screened air services were free to enter cleared areas without being screened again. The Regulation limits persons disembarking from screened air services on which all passengers received clearance at a category 5 airport or higher to only freely entering cleared areas at category 5 airports. If they wish to disembark into cleared areas at category 1 to 4 airports, they will be subject to re-screening. The impact on the right to freedom of movement arising from the Regulation is minimal. Prior to 1 July 2012, passengers on the affected air services were not screened and were therefore subject to screening into cleared areas when disembarking into security controlled airports. This minimal impact is necessary for the protection of national security. Persons who receive clearance at category 5 airports are not screened in the same manner as those who depart from category 1 to 4 airports. It is important to maintain the integrity of cleared areas at those higher categorised airports to continue safeguarding against unlawful interference with aviation.
 

Text Box: Conclusion The Legislative Instrument is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate. The Hon Anthony Albanese MP Minister for Infrastructure and Transport  

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