An Act to safeguard against unlawful interference with aviation,
and for other purposes
Part 1—Preliminary
Division 1—Short title and commencement
1
Short title [see
Note 1]
This Act may be cited as the Aviation
Transport Security Act 2004.
2
Commencement
(1) Each provision of this Act specified in
column 1 of the table commences, or is taken to have commenced, on the day or
at the time specified in column 2 of the table.
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Commencement
information
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Column 1
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Column 2
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Column 3
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Provision(s)
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Commencement
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Date/Details
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1. Sections 1 and 2 and anything in this Act not
elsewhere covered by this table
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The day on which this Act receives the Royal Assent
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10 March 2004
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2. Sections 3 to 133
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A single day to be fixed by Proclamation, subject to subsection (3)
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10 March 2005
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Note: This table relates only to the provisions of
this Act as originally passed by the Parliament and assented to. It will not be
expanded to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table is for additional
information that is not part of this Act. This information may be included in
any published version of this Act.
(3) If a provision covered by item 2 of
the table does not commence within the period of 12 months beginning on the day
on which this Act receives the Royal Assent, it commences on the first day
after the end of that period.
Division 2—Purposes and simplified overview of this Act
3
Purposes of this Act
(1) The main purpose of this Act is to
establish a regulatory framework to safeguard against unlawful interference
with aviation.
Note: Division 10 of Part 4 has additional
purposes (see section 74J).
(2) To achieve this purpose, this Act
establishes minimum security requirements for civil aviation in Australia by imposing obligations on persons engaged in civil aviation related activities.
In particular, it obliges certain aviation industry participants to develop,
and comply with, aviation security programs.
(4) Another purpose of this Act is to meet Australia’s obligations under the Convention on International Aviation (also known as the
Chicago Convention).
Note: The Chicago Convention is set out in the Air
Navigation Act 1920.
(5) It is not a purpose of this Act to
prevent lawful advocacy, protest, dissent or industrial action that does not
compromise aviation security.
4
Simplified overview of this Act
This Act establishes a number of
mechanisms to safeguard against unlawful interference with aviation.
Part 2 requires aviation industry
participants to have in place approved transport security programs. Such
programs must detail how the participants will manage security for their
operations.
Part 3
allows the Secretary to designate airports as security controlled airports and
to establish airside and landside areas, security zones and event zones for
those airports. Once established, the areas and zones are subject to
requirements directed at safeguarding against unlawful interference with
aviation.
Part 4 deals with a number of
specific security measures, including screening, examination, certification, on‑board
security, persons in custody and offences in relation to weapons and prohibited
items. It also allows the Secretary to give special security directions and
control directions in certain circumstances. It also allows the Minister to
determine a code regulating and authorising the use of optical surveillance
devices at airports and on board aircraft.
Part 5 establishes the powers of
officials acting under the Act. These officials are aviation security
inspectors, law enforcement officers, airport security guards and screening
officers.
Part 6 establishes reporting
obligations in relation to aviation security incidents.
Part 7 allows the Secretary to
require aviation industry participants to provide security compliance
information and aviation security information.
Part 8 provides a range of
enforcement mechanisms. These are infringement notices, enforcement orders, enforceable
undertakings, injunctions and a demerit points system.
Part 9 provides for the review of
certain decisions by the Administrative Appeals Tribunal.
Part 10 deals with miscellaneous
matters.
Division 3—Application
5
Extension to Territories
This Act extends to every external
Territory.
6
Geographical jurisdiction
Section 15.2 of the Criminal
Code (extended geographical jurisdiction—category B) applies to an offence
against this Act.
7 Act
to bind Crown
(1) This Act binds the Crown in each of its
capacities.
(2) This Act does not make the Crown in right
of the Commonwealth liable to be prosecuted for an offence.
8 Act
not to apply to state aircraft etc.
(1) Unless the contrary intention appears,
this Act does not apply to, or in relation to:
(a) a state aircraft; or
(b) an aircraft that is leased to or
chartered by, or is otherwise under the operational control of, the Australian
Defence Force.
(2) A reference in this Act to an aviation
industry participant does not include a reference to:
(a) the Australian Defence Force; or
(b) the Australian Federal Police; or
(c) the Australian Protective Service;
or
(d) the police force of a State or
Territory; or
(e) an Agency of the Commonwealth
prescribed in the regulations.
Division 4—Definitions
9
Definitions
In this Act, unless the contrary
intention appears:
accredited air cargo agent means a person
accredited as an accredited air cargo agent in accordance with regulations made
under section 44C.
acquisition of property has the same meaning
as in paragraph 51(xxxi) of the Constitution.
Agency has the same meaning as in the Public
Service Act 1999.
Agency Head has the same meaning as in the Public
Service Act 1999.
aircraft has the same meaning as in the Civil
Aviation Act 1988.
aircraft operator means a person who
conducts, or offers to conduct, an air service.
airline has the meaning given by subsection
134(2).
airport has the meaning given by subsection
28(1).
airport operator means the operator of an
airport.
airport security guard has the meaning given
by subsection 91(1).
air service means a service of providing air
transportation of people or goods, or both people and goods.
Airservices Australia means the body
established by subsection 7(1) of the Air Services Act 1995.
airside area means an airside area
established under subsection 29(1) and includes any airside security zone, and
any airside event zone, established within the airside area.
airside event zone means an airside event
zone established under subsection 31A(1).
airside security zone means an airside
security zone established under subsection 30(1).
Australian aircraft has the same meaning as
in the Air Services Act 1995.
Australian international carriage has the
meaning given by subsection 134(2).
Australian operator has the meaning given by
subsection 134(2).
Australian territory means:
(a) the territory of Australia and of
every external Territory; and
(b) the territorial sea of Australia and of every external Territory; and
(c) the air space over any such
territory or sea.
aviation industry participant means:
(a) an airport operator; or
(b) an aircraft operator; or
(c) a regulated air cargo agent; or
(d) a person who occupies or controls
an area of an airport (whether under a lease, sublease or other arrangement);
or
(e) a person (other than an aviation
security inspector) appointed by the Secretary under this Act to perform a
security function; or
(ea) Airservices Australia; or
(f) a contractor who provides
services to a person mentioned in paragraphs (a) to (ea).
Note: The Australian Defence Force cannot be an
aviation industry participant: see subsection 8(2).
aviation security incident has the meaning
given by section 99.
aviation security information has the meaning
given by subsection 111(1).
aviation security inspector means a person
appointed under subsection 77(1).
baggage means any article or possession of a
passenger of an aircraft, or crew member of an aircraft, that is to be carried
on board that aircraft.
bilateral arrangement has the meaning given
by subsection 134(2).
cargo means goods (other than baggage or
stores) that:
(a) are transported by aircraft; or
(b) are intended to be transported by aircraft;
or
(c) are, in accordance with the
regulations, regarded as being reasonably likely to be transported by aircraft.
CASA has the same meaning as in the Civil
Aviation Act 1988.
certified, in relation to cargo, means
certified by a regulated air cargo agent, by an accredited air cargo agent or
by an aircraft operator for transport by aircraft in accordance with
regulations made under section 44C.
cleared:
(a) in relation to a person, has the
meaning given by subsection 41(3); and
(b) in relation to goods (other than
cargo), has the meaning given by subsection 42(3); and
(c) in relation to a vehicle, has the
meaning given by subsection 43(3); and
(d) in relation to cargo, has the
meaning given by subsection 44B(3).
cleared aircraft: an aircraft is a cleared
aircraft if, under regulations made under Division 2 of Part 4,
the only passengers who are allowed to board the aircraft are passengers who
are cleared.
cleared area means an area that, under
regulations made under Part 3 or 4, may be entered only by persons who
have received clearance.
cleared zone means a zone that, under
regulations made under Part 3 or 4, may be entered only by persons who
have received clearance.
compliance control direction has the meaning
given by subsection 74B(2).
confidentiality requirements has the meaning
given by subsection 68(2).
critical facility has the meaning given by
subsection 31(3).
critical structure has the meaning given by
subsection 31(4).
damage, in relation to data, includes damage
by erasure of data or addition of other data.
Defence Department means the Department of
State that deals with defence and that is administered by the Minister
administering section 1 of the Defence Act 1903.
Director of CASA has the same meaning as Director
has in the Civil Aviation Act 1988.
eligible customs officer has the meaning
given by subsection 89B(1).
employee means:
(a) in relation to an aviation
industry participant—an individual:
(i) employed by the
aviation industry participant; or
(ii) engaged under a
contract for services between the individual and the aviation industry
participant; and
(b) in relation to an accredited air
cargo agent—an individual:
(i) employed by the
accredited air cargo agent; or
(ii) engaged under a
contract for services between the individual and the accredited air cargo
agent.
enforcement order means an order made under
section 119.
engage in conduct has the same meaning as in
the Criminal Code.
examined, in relation to cargo, has the
meaning given by subsection 44B(1).
Federal Court means the Federal Court of
Australia.
foreign country has the meaning given by
subsection 134(2).
frisk search has the same meaning as in the Crimes
Act 1914.
incident control direction has the meaning
given by subsection 74D(3).
in flight has the same meaning as in the Crimes
(Aviation) Act 1991.
in service, in relation to an aircraft, has
the same meaning as in Article 2 of the Montreal Convention.
joint‑user area has the meaning given by
subsection 28(5).
just terms has the same meaning as in
paragraph 51(xxxi) of the Constitution.
landside area has the meaning given by
subsection 29(3) and includes any landside security zone, and any landside
event zone, established within the landside area.
landside event zone means a landside event
zone established under subsection 33A(1).
landside security zone means a landside
security zone established under subsection 32(1).
law enforcement officer has the meaning given
by section 82.
Montreal Convention has the same meaning as
in the Crimes (Aviation) Act 1991.
national security has the same meaning as in
the National Security Information (Criminal and Civil Proceedings) Act 2004.
optical surveillance device has the same
meaning as in the Surveillance Devices Act 2004.
ordinary search has the same meaning as in
the Crimes Act 1914.
passenger includes an intending passenger.
person in custody has the meaning given by
section 64.
person with incident reporting
responsibilities has the meaning given by subsection 102(4).
pilot in command, in relation to an aircraft,
means the pilot responsible for the operation and safety of the aircraft during
the flight of the aircraft.
prescribed aircraft
means an aircraft that:
(a) is being used for a prescribed air
service; or
(b) is regularly used for prescribed
air services.
prescribed air service means an air service
prescribed in the regulations for the purposes of this definition.
prohibited item means an item that:
(a) could be used for unlawful
interference with aviation; and
(b) is specified in an instrument
under section 9A.
receive clearance:
(a) in relation to a person, has the
meaning given by subsection 41(2); and
(b) in relation to goods (other than
cargo), has the meaning given by subsection 42(2); and
(c) in relation to a vehicle, has the
meaning given by subsection 43(2); and
(d) in relation to cargo, has the
meaning given by subsection 44B(2).
regulated air cargo agent means a person
designated as a regulated air cargo agent in accordance with regulations made
under section 44C.
screened:
(a) in relation to a person, has the
meaning given by subsection 41(1); and
(b) in relation to goods (other than
cargo), has the meaning given by subsection 42(1); and
(c) in relation to a vehicle, has the
meaning given by subsection 43(1).
screening authority means a body corporate
that is authorised or required to conduct screening by or under regulations
made for the purposes of paragraph 44(2)(a).
screening officer has the meaning given by
subsection 94(1).
screening point means a place where screening
occurs.
Secretary means the Secretary of the
Department.
security compliance information has the
meaning given by subsection 109(1).
security controlled airport has the meaning
given by subsection 28(2).
security designated authorisation has the
meaning given by the regulations.
SES Band 3 employee has the meaning given by
subsection 127A(4).
special security direction has the meaning
given by subsection 67(2).
state aircraft has the same meaning as in the
Air Navigation Act 1920.
stores means items that are to be carried on board
an aircraft for use, sale or consumption on the aircraft.
this Act includes the regulations.
threaten: a person is taken to threaten
to do an act if the person makes a statement, or does anything else, showing,
or from which it could reasonably be inferred, that it is his or her intention
to do the act.
transport security program means a program
prepared for the purposes of Part 2.
unlawful interference with aviation has the
meaning given by section 10.
vehicle does not include an aircraft.
weapon means:
(a) a firearm of any kind; or
(b) a
thing prescribed by the regulations to be a weapon; or
(c) a
device that, except for the absence of, or a defect in, a part of the device,
would be a weapon of a kind mentioned in paragraph (a) or (b); or
(d) a device
that is reasonably capable of being converted into a weapon of a kind mentioned
in paragraph (a) or (b).
9A
Prohibited items
The Minister may, by legislative
instrument, specify items for the purposes of paragraph (b) of the
definition of prohibited item in section 9.
Division 5—Unlawful interference with aviation
10
Meaning of unlawful interference with aviation
(1) Any of the following done, or attempted
to be done, without lawful authority is an unlawful interference with
aviation:
(a) taking control of an aircraft by
force, or threat of force, or any other form of intimidation or by any trick or
false pretence;
(b) destroying an aircraft that is in
service;
(c) causing damage to an aircraft that
is in service that puts the safety of the aircraft, or any person on board or
outside the aircraft, at risk;
(d) doing anything on board an
aircraft that is in service that puts the safety of the aircraft, or any person
on board or outside the aircraft, at risk;
(e) placing, or causing to be placed,
on board an aircraft that is in service anything that puts the safety of the
aircraft, or any person on board or outside the aircraft, at risk;
(f) putting the safety of aircraft at
risk by interfering with, damaging or destroying air navigation facilities;
(g) putting the safety of an aircraft
at risk by communicating false or misleading information;
(h) committing an act at an airport,
or causing any interference or damage, that puts the safe operation of the
airport, or the safety of any person at the airport, at risk.
(2) However, unlawful interference with
aviation does not include lawful advocacy, protest, dissent or
industrial action that does not result in, or contribute to, an action of a
kind mentioned in paragraphs (1)(a) to (h).
Division 6—General defences
10A
General defences
Decisions of pilot in command
(1) A person does not commit an offence
against this Act if:
(a) a physical element of the offence
exists (whether directly or indirectly) because the pilot in command of an
aircraft engaged in conduct in the operation or control of the aircraft; and
(b) without the existence of that
physical element the person would not commit the offence; and
(c) the pilot engaged in the conduct
to protect the safety or security of:
(i) the aircraft; or
(ii) the aircraft’s cargo;
or
(iii) a person (whether on
board the aircraft or not); or
(iv) another aircraft; or
(v) an airport, or an
airport facility or other installation within an airport; and
(d) the conduct was reasonable in the
circumstances.
Note: A defendant bears an evidential burden in
relation to the matters in subsection (1) (see subsection 13.3(3) of the Criminal
Code).
Special security directions
(2) If:
(a) a person is required to comply
with a special security direction; and
(b) compliance with the direction
would mean that the person commits an offence against, or otherwise contravenes
a requirement of, this Act;
the person, in complying with the security direction, is
taken not to have committed the offence or contravened the requirement.
Note: A defendant bears an evidential burden in
relation to the matters in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
Control directions
(3) If:
(a) a person is required to comply
with a compliance control direction or an incident control direction; and
(b) compliance with the direction
would mean that the person commits an offence against, or otherwise contravenes
a requirement of, this Act;
the person, in complying with the control direction, is
taken not to have committed the offence or contravened the requirement.
Note: A defendant bears an evidential burden in
relation to the matters in subsection (3) (see subsection 13.3(3) of the Criminal
Code).
Part 2—Transport security programs
Division 1—Simplified overview of Part
11
Simplified overview of Part
Various aviation industry participants
are required to have, and comply with, transport security programs. This is
dealt with in Division 2.
Various other persons are required to
comply with the transport security programs of aviation industry participants.
This is dealt with in Division 3.
The content and form of transport
security programs is dealt with in Division 4.
The approval of transport security
programs by the Secretary is dealt with in Division 5. That Division also
deals with the variation and revision of programs, and with the cancellation of
the approval of programs.
Division 2—Aviation industry participants required to have programs
12 Who
must have a program
(1) The following aviation industry participants
are required to have a transport security program:
(a) an operator of a security
controlled airport;
(b) an operator of a prescribed air
service;
(c) a participant of a kind prescribed
in the regulations.
(2) The Secretary may, by written notice
given to an aviation industry participant, permit the participant to have more
than one transport security program.
(3) The notice must specify the operations or
locations to be covered by each program.
(4) If the participant has more than one
program, the participant is required to have all of the programs specified in
the notice.
13
Participants required to have programs to operate
(1) An aviation industry participant commits
an offence if:
(a) the participant is required under
section 12 to have a transport security program; and
(b) the participant operates as a
participant of that kind; and
(c) there is not such a program in
force for the participant.
Penalty: For an airport operator or an aircraft operator—200
penalty units.
For an aviation industry participant, other than
an airport operator or an aircraft operator—100 penalty units.
(2) Subsection (1) does not apply if the
participant has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(3) Subsection (1) is an offence of
strict liability.
14
Participants must comply with programs
(1) An aviation industry participant commits
an offence if:
(a) there is a transport security
program for the participant in force; and
(b) the participant fails to comply
with the program.
Penalty: For an airport operator or an aircraft operator—200
penalty units.
For an aviation industry participant, other than
an airport operator or an aircraft operator—100 penalty units.
(2) Subsection (1) does not apply if the
participant has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(3) Subsection (1) is an offence of
strict liability.
Division 3—Complying with programs of other participants
15
Complying with transport security programs of other participants
(1) An aviation industry participant must not
engage in conduct that hinders or obstructs compliance with the transport
security program of another aviation industry participant.
(2) If:
(a) a transport security program for
an aviation industry participant covers the activities of another aviation
industry participant; and
(b) the other participant has been
given the relevant parts of the program;
the other aviation industry participant must take all
reasonable steps to comply with the program.
(3) If an aviation industry participant
contravenes subsection (1) or (2), the participant does not commit an
offence but may be subject to an enforcement order (see section 119) or an
injunction under section 124.
Division 4—Content and form of programs
16
Content of programs
(1) A transport security program for an
aviation industry participant must demonstrate that the participant:
(a) is aware of the participant’s
general responsibility to contribute to the maintenance of aviation security;
and
(b) has developed an integrated,
responsible and proactive approach to managing aviation security; and
(c) is aware of, and has the capacity
to meet, the specific obligations imposed on the participant under this Act;
and
(d) has taken into account relevant
features of the participant’s operation in developing activities and strategies
for managing aviation security.
(2) A transport security program for an
aviation industry participant must set out the following:
(a) how the participant will manage
and co‑ordinate aviation security activities within the participant’s
operation;
(b) how the participant will co‑ordinate
the management of aviation security with other parties (including Commonwealth
agencies) who have responsibilities for, or are connected with, aviation;
(c) the technology, equipment and
procedures to be used by the participant to maintain aviation security;
(d) how the participant will respond
to aviation security incidents;
(e) the practices and procedures to be
used by the participant to protect security compliance information;
(f) the other aviation industry
participants who are covered by, or operating under, the program;
(g) the consultation that was
undertaken, in preparing the program, by the participant with the other
aviation industry participants who are covered by, or operating under, the
program.
(3) The
regulations may prescribe other matters that are to be dealt with in one or
more of the following:
(a) each transport security program;
(b) each transport security program
for a particular kind of aviation industry participant;
(c) each transport security program
for a particular class of a particular kind of aviation industry participant.
17
Form of programs etc.
(1) A transport security program must be:
(a) in writing; and
(b) prepared in accordance with any
requirements set out in the regulations.
(2) An airport operator’s transport security
program for a security controlled airport must be accompanied by:
(a) a map that shows the airside and
landside areas, and any airside security zones and landside security zones, for
the airport; and
(b) if the operator proposes changes
to the areas or zones for the airport—a map that shows the proposed changes.
Division 5—Approving, revising and cancelling programs
18
Providing programs for approval
An aviation industry participant may
give the Secretary a transport security program for the participant and request
the Secretary to approve the program.
19
Approval
(1) If the Secretary is satisfied that the
program adequately addresses the relevant requirements under Division 4,
the Secretary must:
(a) approve the program; and
(b) give the participant written
notice of the approval.
(2) If the Secretary is not satisfied that
the program adequately addresses the relevant requirements under Division 4,
the Secretary must:
(a) refuse to approve the program; and
(b) give the participant written
notice of the refusal.
(3) In determining whether the program
adequately addresses the relevant requirements under Division 4, the
Secretary may take account of existing circumstances as they relate to aviation
security.
Failure to approve program within consideration period
(4) If:
(a) an aviation industry participant
gives the Secretary a transport security program; and
(b) the Secretary does not approve, or
refuse to approve, the program within the consideration period;
the Secretary is taken to have refused to approve the
program at the end of that period.
Note: An aviation industry participant may apply to
the Administrative Appeals Tribunal for review of a decision to refuse to
approve a transport security program under subsection (2) or (4): see
section 126.
Secretary may request further information
(5) The Secretary may, by written notice
given to the participant within the consideration period, request the
participant to give the Secretary specified information relevant to the
approval of the program.
(6) The notice must specify a period of not
more than 45 days within which the information must be given. However, if more
than one notice is given to the participant under subsection (5), the
total of the periods specified in the notices must not exceed 45 days.
Consideration period
(7) The consideration period is
the period of 60 days starting on the day on which the Secretary received the
program, extended, for each notice given under subsection (5), by the
number of days falling within the period:
(a) starting on the day on which the
notice was given; and
(b) ending on:
(i) the day on which the
information requested in that notice was received by the Secretary; or
(ii) if the information was
not given within the period specified in that notice—the last day of that
period.
20
When a program is in force
(1) If the Secretary approves the transport
security program, the program comes into force at the time specified in the
notice of approval.
(2) However,
if:
(a) the time specified in the notice
is earlier than the time at which the notice was given; or
(b) no time is specified in the notice
as the time when the program comes into force;
the program comes into force when the notice is given.
(3) The program remains in force for a period
of 5 years or such lesser period as the Secretary specifies in the notice of
approval (which must be at least 12 months), unless before the end of that
period:
(a) the program is replaced under
subsection 22(4) or 23(4); or
(b) the approval of the program is
cancelled under this Division.
21
Secretary may direct participants to vary programs
(1) If:
(a) a transport security program for
an aviation industry participant is in force; and
(b) the Secretary is no longer
satisfied that the program adequately addresses the relevant requirements under
Division 4;
the Secretary may, by written notice given to the
participant, direct the participant to vary the program.
(2) However, the Secretary must not give a
direction under subsection (1) unless the Secretary is satisfied that the
program, as varied, would adequately address the relevant requirements under
Division 4.
(3) In the notice, the Secretary must:
(a) set out the variation; and
(b) specify the period within which
the participant must give the Secretary the program as varied.
(3A) If the participant gives the Secretary the
program:
(a) varied in accordance with the
direction; and
(b) within the specified period, or
within any further period allowed by the Secretary;
the Secretary must, by written notice given to the
participant, approve the variation. The variation comes into force when the
notice is given.
Note: As the program is not replaced, the variation
does not affect the period for which the program is in force. Subsection 20(3)
deals with the period a transport security program is in force.
Example: A transport security program is approved on 1 January 2008. The Secretary does not specify in the notice of approval the period
it is to be in force.
On 1 March 2011 a variation to the program comes into force.
The program (as now varied) will
cease to be in force at the end of 31 December 2012 unless it is replaced or cancelled before then.
(4) If the participant does not give the
Secretary the program:
(a) varied in accordance with the
direction; and
(b) within the specified period, or
within any further period allowed by the Secretary;
the Secretary must, by written notice given to the
participant, cancel the approval of the program.
22
Participants may revise programs
(1) If a transport security program for an
aviation industry participant (the existing program) is in force,
the participant may, by written notice given to the Secretary, request the
Secretary to approve another transport security program (the revised program)
in its place.
(2) The notice must be accompanied by a copy
of the revised program.
(3) If a request is made in accordance with
this section, sections 19 and 20 apply in relation to the revised program.
(4) If the revised program comes into force,
it replaces the existing program.
23
Secretary may direct participants to revise programs
(1) If:
(a) a transport security program for
an aviation industry participant (the existing program) is in
force; and
(b) the Secretary is no longer
satisfied that the program adequately addresses the relevant requirements under
Division 4:
(i) because there is a
change in the circumstances that relate to aviation security; or
(ii) because there is a
change in circumstances that could impact on aviation security; or
(iii) for some other reason;
the Secretary may, by written notice given to the
participant, direct the participant to give the Secretary another transport
security program (the revised program).
(2) The notice must specify the period within
which the revised program must be given.
(2A) If the participant gives the Secretary the
revised program within the specified period, or within any further period
allowed by the Secretary, sections 19 and 20 apply in relation to the
revised program.
(3) If the participant does not give the
Secretary the revised program within the specified period, or within any
further period allowed by the Secretary, the Secretary must, by written notice
given to the participant, cancel the approval of the existing program.
(4) If the revised program comes into force,
it replaces the existing program.
23A
Secretary may approve alterations of programs
(1) An aviation industry participant may, in
writing, request the Secretary to approve proposed alterations of a transport
security program. The request must set out the proposed alterations.
(2) If the Secretary is satisfied:
(a) that it is appropriate to deal
with all the proposed alterations under this section; and
(b) that the program as proposed to be
altered adequately addresses the relevant requirements under Division 4;
the Secretary must:
(c) approve the alterations; and
(d) give the participant written
notice of the approval.
(3) If the Secretary is not satisfied:
(a) that it is appropriate to deal
with all the proposed alterations under this section; or
(b) that the program as proposed to be
altered adequately addresses the relevant requirements under Division 4;
the Secretary must:
(c) refuse to approve the alterations;
and
(d) give the participant written notice
of the refusal.
(4) In determining whether the program as
proposed to be altered adequately addresses the relevant requirements under
Division 4, the Secretary may take account of existing circumstances as
they relate to aviation security.
(5) If the Secretary approves alterations of
a program, the alterations come into force at the time specified in the notice
of approval.
Note: As the program is not replaced, the
alterations do not affect the period for which the program is in force.
Subsection 20(3) deals with the period a transport security program is in
force.
Example: A transport security program is approved on 1 January 2008. The Secretary does not specify in the notice of approval the period
it is to be in force.
On 1 March 2011 alterations to the program come into force.
The program (as now altered) will
cease to be in force at the end of 31 December 2012 unless it is replaced or cancelled before then.
(6) However, the alterations come into force
when the notice is given if:
(a) the time specified in the notice
is earlier than the time at which the notice was given; or
(b) no time is specified in the notice
as the time when the alterations come into force.
(7) If:
(a) an aviation industry participant
requests the Secretary to approve alterations of a transport security program;
and
(b) the Secretary does not approve, or
refuse to approve, the alterations within the period of 60 days after the
request was given;
the Secretary is taken to have refused to approve the
alterations.
25
Cancelling inadequate programs
If:
(a) a transport security program for
an aviation industry participant is in force; and
(b) the Secretary is no longer
satisfied that the program adequately addresses the relevant requirements under
Division 4; and
(c) the Secretary is satisfied that it
is not appropriate to direct the participant to:
(i) vary the program under
section 21; or
(ii) revise the program
under section 23;
the Secretary must, by written notice given to the
participant, cancel the approval of the program.
26
Cancelling for failure to comply
(1) If:
(a) a transport security program for
an aviation industry participant is in force; and
(b) the participant has accumulated
the number of demerit points prescribed by the regulations as the number necessary
for the Secretary to be able to cancel the approval of the program;
the Secretary may, by written notice given to the
participant, cancel the approval of the program.
Note: For the demerit points system, see Division 5
of Part 8.
(2) Before cancelling the approval of a
program under subsection (1), the Secretary may, by written notice given
to the participant, request the participant to show cause why the approval of
the program should not be cancelled.
26A
Cancelling transport security programs on request
If:
(a) a transport security program for
an aviation industry participant is in force; and
(b) the participant makes a written
request to the Secretary for the approval of the program to be cancelled;
the Secretary must, by written notice given to the
participant, cancel the approval of the program.
Part 3—Airport areas and zones
Division 1—Simplified overview of Part
27
Simplified overview of Part
The Secretary may designate an airport
as a security controlled airport and assign a category to that airport. A
security controlled airport has an airside area and a landside area.
Airside security zones and airside
event zones may be established within an airside area, and landside security
zones and landside event zones within a landside area.
Regulations under Division 3 will
detail the requirements applying to airside areas, airside security zones and
airside event zones.
Regulations under Division 4 will
detail the requirements applying to landside areas, landside security zones and
landside event zones.
Regulations under Division 5 may
create offences for causing disruption or interference in relation to security
controlled airports.
Division 2—Establishment of areas and zones
28
Airports and security controlled airports
(1) An airport is an area of
land or water (including any buildings, installations or equipment situated in
the area) intended for use either wholly or partly in connection with the
arrival, departure or movement of aircraft. It also includes any area that is
controlled by the airport operator that is contiguous with such an area of land
or water.
(2) The Secretary may, by notice published in
the Gazette, declare that a particular airport, or a part of a
particular airport, is a security controlled airport.
(3) The notice must include a map of the
airport that shows the boundaries of the security controlled airport.
(4) However, the Secretary must not:
(a) include any area that is
controlled exclusively by the Australian Defence Force within the boundaries of
a security controlled airport; or
(b) include a joint‑user area within
the boundaries of a security controlled airport without the agreement of the
Secretary of the Defence Department.
(5) A joint‑user area is an
area that is controlled jointly by the Australian Defence Force and one or more
aviation industry participants.
(6) The Secretary may, by notice published in
the Gazette, assign a particular security controlled airport a category
prescribed under section 28A.
(7) If the Secretary publishes a notice under
subsection (6) in relation to a security controlled airport, the Secretary
must, by written notice given to the operator of the airport, specify the
category assigned to the airport.
28A
Categories of security controlled airports
The regulations may prescribe different
categories of security controlled airports.
Note: Regulations under this Act (for example,
regulations made for the purposes of Division 3 or 4) may make different
provision with respect to different categories of security controlled airports:
see subsection 33(3A) of the Acts Interpretation Act 1901.
29
Airport areas—airside and landside
Airside
(1) A notice published in the Gazette
under subsection 28(2) must establish an airside area for the
security controlled airport and show the boundaries of the airside area.
(2) The purpose of an airside area is to
control access to operational areas of a security controlled airport.
Landside
(3) Any other area within the boundaries of
the security controlled airport (as shown on the map published under subsection
28(3)) is the landside area of the security controlled airport.
30
Airside security zones
(1) The Secretary may, by written notice
given to the operator of a security controlled airport, establish one or more airside
security zones within the airside area of the airport. Each zone must
be of a type prescribed under section 31.
(2) The notice must include a map of the
airport that shows the boundaries of the airside security zones.
(2A) A notice commences:
(a) when the Secretary gives the
notice to the airport operator; or
(b) if a time is specified in the
notice—at that time.
The time specified must not be earlier than the time the
notice is given.
(2B) Each airport security zone is in force from
the commencement of the notice that establishes it.
(3) The purpose of airside security zones is
to subject those zones, within the airside area of a security controlled
airport, to stricter or more specialised controls than those applying generally
to the airside area.
31
Types of airside security zones
(1) The regulations may prescribe different
types of airside security zones.
(2) The purposes for which different types of
airside security zones may be prescribed include, but are not limited to, the
following:
(a) controlling the movement of
people, vehicles and goods within airside areas;
(b) restricting access to airside
security zones within airside areas;
(c) providing cleared zones;
(d) preventing interference with
aircraft (including unattended aircraft);
(e) ensuring the security of the
following:
(i) air traffic control
facilities;
(ii) fuel storage areas;
(iii) general aviation
areas;
(iv) cargo and baggage
handling facilities;
(v) navigational aids;
(va) fire stations and other
emergency service facilities;
(vi) critical facilities and
critical structures.
(3) A facility is a critical facility
if interference with, or damage to, the facility could put the safe operation
of an airport or an aircraft at risk.
(4) A structure is a critical structure
if interference with, or damage to, the structure could put the safe operation
of an airport or an aircraft at risk.
31A
Airside event zones
Establishing airside event zones
(1) The Secretary may, by written notice
given to the operator of a security controlled airport, establish one or more airside
event zones within the airside area of the airport. Each zone must be
of a type prescribed under section 31B.
(2) The notice must include a map of the
airport that shows the boundaries of each airside event zone.
(3) For each airside event zone, the notice
may specify the period (or periods) during which the zone is in force. If no
period is specified, the zone is in force from the commencement of the notice.
(4) A notice commences:
(a) when the Secretary gives the
notice to the airport operator; or
(b) if a time is specified in the
notice—at that time.
The time specified must not be earlier than the time the
notice is given.
Purpose of airside event zones
(5) Subject to subsection (6), the
purpose of airside event zones is to subject those zones, within the airside
area of a security controlled airport, to controls some or all of which are
different from those applying generally to the airside area.
(6) If the whole or a part of an airside
event zone is within an airside security zone, the purpose of the airside event
zone is to subject the zone to controls some or all of which are different
from:
(a) controls applying generally to the
airside security zone; and
(b) controls applying generally to the
airside area.
Requirements applying in airside event zones
(7) The following requirements do not apply
in relation to an airside event zone while the zone is in force:
(a) the requirements prescribed in
relation to the airside area;
(b) if the whole or a part of the zone
is within an airside security zone—the requirements prescribed in relation to
the airside security zone.
(8) To avoid doubt, if an airside
event zone ceases to be in force at a particular time, the area previously
within the airside event zone is, from that time, subject to controls that
apply generally to that area.
31B
Types of airside event zones
(1) The regulations may prescribe different
types of airside event zones.
(2) The purposes for which different types of
airside event zones may be prescribed include, but are not limited to, the
following:
(a) managing different types of events
within airside areas;
(b) controlling the movement of
people, vehicles and goods within airside areas;
(c) restricting access to airside
event zones within airside areas;
(d) providing cleared zones;
(e) preventing interference with
aircraft (including unattended aircraft);
(f) ensuring the security of the
following:
(i) air traffic control
facilities;
(ii) fuel storage areas;
(iii) general aviation
areas;
(iv) cargo and baggage
handling facilities;
(v) navigational aids;
(vi) fire stations and other
emergency service facilities;
(vii) critical facilities and
critical structures.
32
Landside security zones
(1) The Secretary may, by written notice
given to the operator of a security controlled airport, establish one or more landside
security zones within the landside area of the airport. Each zone must
be of a type prescribed under section 33.
(2) The notice must include a map of the
airport that shows the boundaries of the landside security zones.
(2A) A notice commences:
(a) when the Secretary gives the
notice to the airport operator; or
(b) at the time specified in the
notice.
The time specified in the notice must not be earlier than
the time the notice is given.
(2B) Each landside security zone is in force
from the commencement of the notice that establishes it.
(3) The purpose of landside security zones is
to subject those zones, within the landside area of a security controlled
airport, to stricter or more specialised controls than those applying generally
to the landside area.
33
Types of landside security zones
(1) The regulations may prescribe different
types of landside security zones.
(2) The purposes for which different types of
landside security zones may be prescribed include, but are not limited to, the
following:
(a) controlling the movement of
people, vehicles and goods within landside areas;
(b) restricting access to landside
security zones within landside areas;
(c) providing cleared zones;
(d) preventing interference with
aircraft (including unattended aircraft);
(e) ensuring the security of the
following:
(i) air traffic control
facilities;
(ii) fuel storage areas;
(iii) general aviation
areas;
(iv) cargo and baggage
handling facilities;
(v) navigational aids;
(va) fire stations and other
emergency service facilities;
(vi) critical facilities and
critical structures.
33A
Landside event zones
Establishing landside event zones
(1) The Secretary may, by written notice
given to the operator of a security controlled airport, establish one or more landside
event zones within the landside area of the airport. Each zone must be
of a type prescribed under section 33B.
(2) The notice must include a map of the
airport that shows the boundaries of the landside event zones.
(3) For each landside event zone, the notice
may specify the period (or periods) during which the zone is in force. If no
period is specified, the zone is in force from the commencement of the notice.
(4) A notice commences:
(a) when the Secretary gives the
notice to the airport operator; or
(b) if a time is specified in the
notice—at that time.
The time specified must not be earlier than the time the
notice is given.
Purpose of landside event zones
(5) Subject to subsection (6), the
purpose of landside event zones is to subject those zones, within the landside
area of a security controlled airport, to controls some or all of which are
different from those applying generally to the landside area.
(6) If the whole or a part of a landside
event zone is within a landside security zone, the purpose of the landside
event zone is to subject the zone to controls some or all of which are
different from:
(a) controls applying generally to the
landside security zone; and
(b) controls applying generally to the
landside area.
Requirements applying in landside event zones
(7) The following requirements do not apply
in relation to a landside event zone while the zone is in force:
(a) the requirements prescribed in
relation to the landside area;
(b) if the whole or a part of the zone
is within a landside security zone—the requirements prescribed in relation to
the landside security zone.
(8) To avoid doubt, if a landside
event zone ceases to be in force at a particular time, the area previously
within the landside event zone is, from that time, subject to controls that
apply generally to that area.
33B
Types of landside event zones
(1) The regulations may prescribe different
types of landside event zones.
(2) The purposes for which different types of
landside event zones may be prescribed include, but are not limited to, the
following:
(a) managing different types of events
within landside areas;
(b) controlling the movement of
people, vehicles and goods within landside areas;
(c) restricting access to landside
event zones within landside areas;
(d) providing cleared zones;
(e) preventing interference with
aircraft (including unattended aircraft);
(f) ensuring the security of the
following:
(i) air traffic control
facilities;
(ii) fuel storage areas;
(iii) general aviation
areas;
(iv) cargo and baggage
handling facilities;
(v) navigational aids;
(vi) fire stations and other
emergency service facilities;
(vii) critical facilities and
critical structures.
34
Matters to be considered in establishing areas and zones
In establishing an airside area, an
airside security zone or a landside security zone within a security controlled
airport, the Secretary must have regard to the purpose of the area or zone, and
take into account:
(a) the views of the airport operator;
and
(b) the existing physical features of
the airport (including buildings); and
(c) the existing operational features
of the airport.
Division 3—Control of airside areas and zones
35
Requirements for airside areas
(1) The regulations may, for the purposes of
safeguarding against unlawful interference with aviation, prescribe
requirements in relation to the airside area of a security controlled airport.
(2) Without limiting the matters that may be
dealt with by regulations made under subsection (1), the regulations may
deal with the following:
(a) access to the airside area
(including conditions of entry, the issue and use of security passes and other
identification systems);
(b) the patrolling of the airside
area;
(c) the provision of lighting, fencing
and storage facilities;
(d) the identification or marking of
the airside area;
(e) the approval of building works
within, or adjacent to, the airside area;
(f) the screening of people, vehicles
or goods (other than cargo) for entry to the airside area;
(fa) requirements relating to the entry
of cargo to the airside area;
(g) the security checking (including
background checking) of persons who have access to the airside area;
(h) the movement, management or
operation of aircraft, vehicles and other machinery in the airside area;
(i) the maintenance of the integrity
of the airside area;
(j) access to aircraft (including
unattended aircraft) from the airside area;
(k) the management of people and goods
(including the management of unaccompanied, unidentified or suspicious goods)
in the airside area;
(l) the management (including the
sale or disposal) of vehicles or goods abandoned in the airside area.
(3) Regulations made under this section may
prescribe penalties for offences against those regulations. The penalties must
not exceed:
(a) for an offence committed by an
airport operator or an aircraft operator—200 penalty units; or
(b) for an offence committed by an
aviation industry participant, other than a participant covered by paragraph (a)—100
penalty units; or
(c) for an offence committed by any
other person—50 penalty units.
36
Requirements for airside security zones
(1) The regulations may, for the purposes of
safeguarding against unlawful interference with aviation, prescribe
requirements in relation to each type of airside security zone.
(2) Without limiting the matters that may be
dealt with by regulations made under subsection (1), the regulations may
deal with the following:
(a) access to airside security zones
(including conditions of entry, the issue and use of security passes and other
identification systems);
(b) the patrolling of airside security
zones;
(c) the provision of lighting, fencing
and storage facilities;
(d) the identification or marking of
airside security zones;
(e) the approval of building works
within, or adjacent to, airside security zones;
(f) the screening of people, vehicles
or goods (other than cargo) for entry to airside security zones;
(fa) requirements relating to the entry
of cargo to airside security zones;
(g) the security checking (including
background checking) of persons who have access to airside security zones;
(h) the movement, management or
operation of aircraft, vehicles and other machinery in airside security zones;
(i) the maintenance of the integrity
of airside security zones;
(j) access to aircraft (including
unattended aircraft) from airside security zones;
(k) the management of people and goods
(including the management of unaccompanied, unidentified or suspicious goods)
in airside security zones;
(l) the management (including the
sale or disposal) of vehicles or goods abandoned in airside security zones.
(3) Regulations
made under this section may prescribe penalties for offences against those
regulations. The penalties must not exceed:
(a) for an offence committed by an
airport operator or an aircraft operator—200 penalty units; or
(b) for an offence committed by an
aviation industry participant, other than a participant covered by paragraph (a)—100
penalty units; or
(c) for an offence committed by any
other person—50 penalty units.
Note: If a body corporate is convicted of an offence
against regulations made under this section, subsection 4B(3) of the Crimes
Act 1914 allows a court to impose fines of up to 5 times the penalties
stated above.
36A
Requirements for airside event zones
(1) The regulations may, for the purposes of
safeguarding against unlawful interference with aviation, prescribe
requirements in relation to each type of airside event zone.
(2) Without limiting the matters that may be
dealt with by regulations made under subsection (1), the regulations may
deal with the following:
(a) access to airside event zones
(including conditions of entry, the issue and use of security passes and other
identification systems);
(b) the patrolling of airside event
zones;
(c) the provision of lighting, fencing
and storage facilities;
(d) the identification or marking of
airside event zones;
(e) the approval of building works
within, or adjacent to, airside event zones;
(f) the screening of people, vehicles
or goods (other than cargo) for entry to airside event zones;
(fa) requirements relating to the entry
of cargo to airside event zones;
(g) the security checking (including
background checking) of persons who have access to airside event zones;
(h) the movement, management or
operation of aircraft, vehicles and other machinery in airside event zones;
(i) the maintenance of the integrity
of airside event zones;
(j) access to aircraft (including
unattended aircraft) from airside event zones;
(k) the management of people and goods
(including the management of unaccompanied, unidentified or suspicious goods)
in airside event zones;
(l) the management (including the
sale or disposal) of vehicles or goods abandoned in airside event zones.
(3) Regulations made under this section may
prescribe penalties for offences against those regulations. The penalties must
not exceed:
(a) for an offence committed by an
airport operator or an aircraft operator—200 penalty units; or
(b) for an offence committed by an
aviation industry participant, other than a participant covered by
paragraph (a)—100 penalty units; or
(c) for an offence committed by any
other person—50 penalty units.
Note: If a body corporate is convicted of an offence
against regulations made under this section, subsection 4B(3) of the Crimes
Act 1914 allows a court to impose fines of up to 5 times the penalties
stated above.
Division 4—Control of landside areas and zones
37
Requirements for landside areas
(1) 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.
(2) Without limiting the matters that may be
dealt with by regulations made under subsection (1), the regulations may
deal with the following:
(a) access to the landside area
(including conditions of entry, the issue and use of security passes and other
identification systems);
(b) the patrolling of the landside
area;
(c) the provision of lighting, fencing
and storage facilities;
(d) the identification or marking of
the landside area;
(e) the approval of building works
within, or adjacent to, the landside area;
(f) the screening of people, vehicles
or goods (other than cargo) for entry to the landside area;
(fa) requirements relating to the entry
of cargo to the landside area;
(g) the security checking (including
background checking) of persons who have access to the landside area;
(h) the movement, management or
operation of aircraft, vehicles and other machinery in the landside area;
(i) the maintenance of the integrity
of the landside area;
(j) access to aircraft (including
unattended aircraft) from the landside area;
(k) the management of people and goods
(including the management of unaccompanied, unidentified or suspicious goods)
in the landside area;
(l) the management (including the
sale or disposal) of vehicles or goods abandoned in the landside area.
(3) Regulations
made under this section may prescribe penalties for offences against those
regulations. The penalties must not exceed:
(a) for an offence committed by an
airport operator or an aircraft operator—200 penalty units; or
(b) for an offence committed by an
aviation industry participant, other than a participant covered by paragraph (a)—100
penalty units; or
(c) for an offence committed by any
other person—50 penalty units.
Note: If a body corporate is convicted of an offence
against regulations made under this section, subsection 4B(3) of the Crimes
Act 1914 allows a court to impose fines of up to 5 times the penalties
stated above.
38
Requirements for landside security zones
(1) The regulations may, for the purposes of
safeguarding against unlawful interference with aviation, prescribe
requirements in relation to each type of landside security zone.
(2) Without limiting the matters that may be
dealt with by regulations made under subsection (1), the regulations may
deal with the following:
(a) access to landside security zones
(including conditions of entry, the issue and use of security passes and other
identification systems);
(b) the patrolling of landside
security zones;
(c) the provision of lighting, fencing
and storage facilities;
(d) the identification or marking of
landside security zones;
(e) the approval of building works
within, or adjacent to, landside security zones;
(f) the screening of people, vehicles
or goods (other than cargo) for entry to landside security zones;
(fa) requirements relating to the entry
of cargo to landside security zones;
(g) the security checking (including
background checking) of persons who have access to landside security zones;
(h) the movement, management or
operation of aircraft, vehicles and other machinery in landside security zones;
(i) the maintenance of the integrity
of landside security zones;
(j) access to aircraft (including
unattended aircraft) from landside security zones;
(k) the management of people and goods
(including the management of unaccompanied, unidentified or suspicious goods)
in landside security zones;
(l) the management (including the
sale or disposal) of vehicles or goods abandoned in landside security zones.
(3) Regulations made under this section may
prescribe penalties for offences against those regulations. The penalties must
not exceed:
(a) for an offence committed by an
airport operator or an aircraft operator—200 penalty units; or
(b) for an offence committed by an
aviation industry participant, other than a participant covered by paragraph (a)—100
penalty units; or
(c) for an offence committed by any
other person—50 penalty units.
Note: If a body corporate is convicted of an offence
against regulations made under this section, subsection 4B(3) of the Crimes
Act 1914 allows a court to impose fines of up to 5 times the penalties
stated above.
38A
Requirements for landside event zones
(1) The regulations may, for the purposes of
safeguarding against unlawful interference with aviation, prescribe
requirements in relation to each type of landside event zone.
(2) Without limiting the matters that may be
dealt with by regulations made under subsection (1), the regulations may
deal with the following:
(a) access to landside event zones
(including conditions of entry, the issue and use of security passes and other
identification systems);
(b) the patrolling of landside event
zones;
(c) the provision of lighting, fencing
and storage facilities;
(d) the identification or marking of
landside event zones;
(e) the approval of building works
within, or adjacent to, landside event zones;
(f) the screening of people, vehicles
or goods (other than cargo) for entry to landside event zones;
(fa) requirements relating to the entry
of cargo to landside event zones;
(g) the security checking (including
background checking) of persons who have access to landside event zones;
(h) the movement, management or
operation of aircraft, vehicles and other machinery in landside event zones;
(i) the maintenance of the integrity
of landside event zones;
(j) access to aircraft (including
unattended aircraft) from landside event zones;
(k) the management of people and goods
(including the management of unaccompanied, unidentified or suspicious goods)
in landside event zones;
(l) the management (including the
sale or disposal) of vehicles or goods abandoned in landside event zones.
(3) Regulations made under this section may
prescribe penalties for offences against those regulations. The penalties must
not exceed:
(a) for an offence committed by an
airport operator or an aircraft operator—200 penalty units; or
(b) for an offence committed by an
aviation industry participant, other than a participant covered by
paragraph (a)—100 penalty units; or
(c) for an offence committed by any
other person—50 penalty units.
Note: If a body corporate is convicted of an offence
against regulations made under this section, subsection 4B(3) of the Crimes
Act 1914 allows a court to impose fines of up to 5 times the penalties
stated above.
Division 5—Offences for
causing disruption or interference in relation to security controlled airports
38B
Offences for causing disruption or interference in relation to security
controlled airports
(1) The regulations may prescribe offences in
relation to the disruption to or interference with the activities of an airport
operator of a security controlled airport, or the activities of an aircraft
operator at a security controlled airport, if:
(a) that airport is located in a
Commonwealth place or in a Territory; or
(b) that operator is a corporation to
which paragraph 51(xx) of the Constitution applies; or
(c) those activities take place in the
course of, or in relation to, trade or commerce:
(i) between Australia and places outside Australia; or
(ii) among the States; or
(iii) within a Territory,
between a State and a Territory or between 2 Territories.
The penalties prescribed by the regulations for the
offences must not exceed 50 penalty units.
(2) The offences prescribed by the
regulations may relate to conduct that occurs outside the boundaries of a
security controlled airport.
(3) Subsection (2) does not limit
subsection (1).
Part 4—Other security measures
Division 1—Simplified overview of Part
39
Simplified overview of Part
In addition to the requirements relating
to areas and zones covered in Part 3, specific requirements are imposed in
relation to a range of other matters. These are covered by this Part.
The matters (and the relevant
Divisions) are as follows:
(a) screening
and clearing (Division 2);
(aa) examining,
certifying and clearing (Division 2A);
(b) weapons
(Division 3);
(c) prohibited
items (Division 4);
(d) on‑board
security (Division 5);
(e) persons in
custody (Division 6);
(f) special
security directions (Division 7);
(g) control
directions (Division 8);
(h) security
status checking (Division 9).
Division 2—Screening and clearing
40
Simplified overview of Division
Access to aircraft, areas and zones at
an airport may be restricted to persons, goods (other than cargo) and vehicles
that have received clearance. Where access is restricted in this way, the
aircraft, area or zone is said to be cleared.
In most cases, receiving clearance
will require going through a screening process.
This Division deals with:
(a) requirements
for receiving clearance; and
(b) requirements
and procedures for screening.
This Division does not deal with
cargo. Cargo is dealt with in Division 2A.
41
Screening and clearing people
(1) A person is screened when
the person undergoes screening in accordance with regulations made under
section 44 in preparation for:
(a) boarding an aircraft; or
(b) entering an area or zone within a
security controlled airport.
(2) A person receives clearance
if:
(a) after being screened, the person
is allowed, by a screening officer, to pass through the screening point; or
(b) the person passes through the
screening point and the regulations provide, or the Secretary by written notice
provides, that the person may pass through that screening point without being
screened; or
(c) the person enters a cleared area,
a cleared zone or a cleared aircraft other than through a screening point and
the regulations provide, or the Secretary by written notice provides, that the
person may enter the area, zone or aircraft that way.
(3) A person is cleared at a
particular time if:
(a) the person has received clearance;
and
(b) since receiving clearance, the
person has at all times been in a cleared area, a cleared zone or a cleared
aircraft.
(4) For the purposes of paragraph (3)(b),
a person is taken to be in a cleared area or cleared zone if the person is
under the supervision or control prescribed in the regulations.
(5) To avoid doubt:
(a) a notice under paragraph (2)(b)
may provide that a class of persons may pass through a screening point without
being screened; and
(b) a notice under paragraph (2)(c)
may provide that a class of persons may enter a cleared area, a cleared zone or
a cleared aircraft other than through a screening point.
42
Screening and clearing goods (other than cargo)
(1) Goods are screened when the
goods undergo screening in accordance with regulations made under section 44
in preparation for:
(a) being taken on board an aircraft;
or
(b) being taken into an area or zone
within a security controlled airport.
(2) Goods receive clearance if:
(a) after being screened, the goods
are allowed, by a screening officer, to pass through the screening point; or
(b) the goods pass through the
screening point and the regulations provide, or the Secretary by written notice
provides, that the goods may pass through that screening point without being
screened; or
(c) the goods enter a cleared area, a
cleared zone or a cleared aircraft other than through a screening point and the
regulations provide, or the Secretary by written notice provides, that the
goods may enter the area, zone or aircraft that way.
(3) Goods are cleared at a
particular time if:
(a) the goods have received clearance;
and
(b) since receiving clearance, the
goods have at all times been in a cleared area, a cleared zone or a cleared
aircraft.
(4) For the purposes of paragraph (3)(b),
goods are taken to be in a cleared area or cleared zone if the goods are under
the supervision or control prescribed in the regulations.
(5) To avoid doubt:
(a) a notice under paragraph (2)(b)
may provide that a class of goods may pass through a screening point without
being screened; and
(b) a notice under paragraph (2)(c)
may provide that a class of goods may enter a cleared area, a cleared zone or a
cleared aircraft other than through a screening point.
(6) In this section:
goods includes baggage but does not include
cargo.
Note: Division 2A deals with the examination
and clearance of cargo.
43
Screening and clearing vehicles
(1) A vehicle is screened when
the vehicle undergoes screening in accordance with regulations made under
section 44 in preparation for:
(a) being taken on board an aircraft;
or
(b) entering an area or zone within a
security controlled airport.
(2) A vehicle receives clearance
if:
(a) after being screened, the vehicle
is allowed, by a screening officer, to pass through the screening point; or
(b) the vehicle passes through the
screening point and the regulations provide, or the Secretary by written notice
provides, that the vehicle may pass through that screening point without being
screened; or
(c) the vehicle enters a cleared area,
a cleared zone or a cleared aircraft other than through a screening point and
the regulations provide, or the Secretary by written notice provides, that the
vehicle may enter the area, zone or aircraft that way.
(3) A vehicle
is cleared at a particular time if:
(a) the vehicle has received
clearance; and
(b) since receiving clearance, the
vehicle has at all times been in a cleared area, a cleared zone or a cleared aircraft.
(4) For the purposes of paragraph (3)(b),
a vehicle is taken to be in a cleared area or cleared zone if the vehicle is
under the supervision or control prescribed in the regulations.
(5) To avoid doubt:
(a) a notice under paragraph (2)(b)
may provide that a class of vehicles may pass through a screening point without
being screened; and
(b) a notice under paragraph (2)(c)
may provide that a class of vehicles may enter a cleared area, a cleared zone
or a cleared aircraft other than through a screening point.
44
Requirements for screening and clearing
(1) The regulations may, for the purposes of
safeguarding against unlawful interference with aviation, prescribe
requirements in relation to one or more of the following:
(a) screening;
(b) receiving clearance;
(c) the circumstances in which
persons, goods (other than cargo) or vehicles are required to be cleared;
(2) Without limiting the matters that may be
dealt with by regulations made under subsection (1), the regulations may
deal with the following:
(a) the persons who are authorised or
required to conduct screening;
(aa) things that must not pass through
a screening point;
(b) the things to be detected by
screening;
(c) the procedures for dealing with
things detected by screening;
(d) the circumstances in which persons
must be cleared in order to:
(i) board an aircraft; or
(ii) enter a landside
security zone, a landside event zone, an airside area, an airside security zone
or an airside event zone;
(e) the circumstances in which goods,
other than baggage and cargo, must be cleared in order to be taken:
(i) onto an aircraft; or
(ii) into a landside
security zone, a landside event zone, an airside area, an airside security zone
or an airside event zone;
(f) the circumstances in which
baggage must be cleared in order to be taken:
(i) onto an aircraft; or
(ii) into a landside
security zone, a landside event zone, an airside area, an airside security zone
or an airside event zone;
(h) the circumstances in which
vehicles must be cleared in order to be taken;
(i) onto an aircraft; or
(ii) into a landside
security zone, a landside event zone, an airside area, an airside security zone
or an airside event zone;
(i) the places where screening is to
be conducted;
(j) the methods, techniques and
equipment to be used for screening;
(k) the notices that are to be
displayed in places where screening is to be conducted;
(l) the supervision and control
measures for ensuring that persons, goods (other than cargo) and vehicles that
have received clearance remain cleared in areas or zones that are not cleared
areas or cleared zones;
Note: Regulations made under subsection 94(2) must
prescribe training and qualification requirements for screening officers and
set out requirements in relation to the form, issue and use of identity cards.
(3) Regulations made under paragraph (2)(a),
(2)(aa) or (2)(j) may provide that some or all of the matters set out in that
paragraph are to be specified in written notices made by the Secretary. Such a
notice may provide that the notice is only to be given to the persons, or
classes of persons, specified in the notice.
(4) Regulations made under this section may
prescribe penalties for offences against those regulations. The penalties must
not exceed:
(a) for an offence committed by an
airport operator or an aircraft operator—200 penalty units; or
(b) for an offence committed by an
aviation industry participant, other than a participant covered by paragraph (a)—100
penalty units; or
(c) for an offence committed by any
other person—50 penalty units.
Note: If a body corporate is convicted of an offence
against regulations made under this section, subsection 4B(3) of the Crimes
Act 1914 allows a court to impose fines of up to 5 times the penalties
stated above.
Division 2A—Examining,
certifying and clearing cargo
44A
Simplified overview of Division
The transport of cargo by aircraft may
be restricted to cargo that has received clearance.
In most cases, cargo must be examined
and certified to receive clearance.
The regulations may provide for cargo
to be examined by regulated air cargo agents, accredited air cargo agents and
aircraft operators.
This Division deals with:
(a) requirements
for receiving clearance; and
(b) requirements
and procedures for examination; and
(c) requirements
for certification; and
(d) requirements
in relation to regulated air cargo agents, accredited air cargo agents and
aircraft operators.
44B
Examining, certifying and clearing cargo
(1) Cargo is examined when the
cargo undergoes examination, before being taken onto an aircraft, in accordance
with regulations made under section 44C.
(2) Cargo receives clearance
if:
(a) after being examined, the cargo is
certified; or
(b) the cargo is certified and the
regulations provide, or the Secretary by written notice provides, that the
cargo may be certified without being examined.
(3) Cargo is cleared at a
particular time if:
(a) the cargo has received clearance;
and
(b) since receiving clearance, the
cargo has at all times been dealt with as required by regulations made under
section 44C.
(4) To avoid doubt, a notice under paragraph (2)(b)
may provide that a class of cargo may be certified.
44C
Requirements for examining, certifying and clearing cargo
(1) For the purposes of safeguarding against
unlawful interference with aviation, the regulations may:
(a) prescribe requirements in relation
to one or more of the following:
(i) examining cargo;
(ii) certifying cargo;
(iii) receiving clearance;
(iv) the circumstances in
which cargo is required to be cleared; and
(b) establish a scheme under which
certain persons that carry on a business that includes the handling, or making
arrangements for the transport, of cargo are designated as regulated air cargo
agents; and
(c) establish a scheme under which
certain persons that carry on a business that includes the handling, or making
arrangements for the transport, of cargo are accredited as accredited air cargo
agents; and
(d) prescribe conditions that must be
complied with by:
(i) all regulated air
cargo agents, all accredited air cargo agents or all aircraft operators; or
(ii) one or more specified
classes of regulated air cargo agents, accredited air cargo agents or aircraft
operators; or
(iii) one or more specified
regulated air cargo agents, accredited air cargo agents or aircraft operators;
and
(e) require the following persons to
report aviation security incidents of which they become aware:
(i) all accredited air
cargo agents;
(ii) one or more specified
classes of accredited air cargo agents;
(iii) one or more specified
accredited air cargo agents; and
(f) prohibit a person from carrying
on a business to the extent that it consists of:
(i) handling cargo; or
(ii) making arrangements
for the transport of cargo;
unless the person is a regulated
air cargo agent, an accredited air cargo agent or an aircraft operator.
(2) Without limiting subsection (1), the
following matters may be dealt with by regulations made under that subsection:
(a) the examination of cargo by:
(i) all regulated air
cargo agents, all accredited air cargo agents or all aircraft operators; or
(ii) one or more specified
classes of regulated air cargo agents, accredited air cargo agents or aircraft
operators; or
(iii) one or more specified
regulated air cargo agents, accredited air cargo agents or aircraft operators;
(b) the procedures for dealing with
cargo examined as mentioned in paragraph (a);
(c) the places where examination is to
be conducted;
(d) the methods, techniques and
equipment to be used for examination;
(e) the things to be detected by
examination;
(f) the procedures for dealing with
things detected by examination;
(g) the circumstances in which cargo
may be certified by:
(i) all regulated air
cargo agents, all accredited air cargo agents or all aircraft operators; or
(ii) one or more specified
classes of regulated air cargo agents, accredited air cargo agents or aircraft
operators; or
(iii) one or more specified
regulated air cargo agents, accredited air cargo agents or aircraft operators;
(h) the supervision and control
measures for dealing with cargo that has received clearance;
(i) the method for designating a
person as a regulated air cargo agent;
(j) the method of applying for
accreditation as an accredited air cargo agent and how such applications are to
be dealt with.
(3) Regulations made under paragraph (2)(a),
(b), (d) or (g) may provide that some or all of the matters set out in that
paragraph are to be specified in written notices made by the Secretary. Such a
notice may provide that the notice is only to be given to the persons, or
classes of persons, specified in the notice.
(4) Regulations made under this section may
prescribe penalties for offences against those regulations. The penalties must
not exceed:
(a) for an offence committed by an
aircraft operator—200 penalty units; or
(b) for an offence committed by an
aviation industry participant, other than a participant covered by paragraph (a)—100
penalty units; or
(c) for an offence committed by any
other person—50 penalty units.
Note: If a body corporate is convicted of an offence
against regulations made under this section, subsection 4B(3) of the Crimes
Act 1914 allows a court to impose fines of up to 5 times the penalties
stated above.
Division 3—Weapons
45
Simplified overview of Division
The control of weapons is an important
aspect of preventing unlawful interference with aviation.
The possession or carriage of weapons
is controlled:
(a) in airside
areas, landside security zones and landside event zones;
(b) through
screening points;
(c) on aircraft.
A person who has been authorised or
permitted to have a weapon in his or her possession or under his or her control
must comply with any conditions that have been imposed.
The regulations can also prescribe
requirements in relation to the carriage and use of weapons.
46
Weapons in airside areas, landside security zones and landside event zones
Strict liability
(1) A person commits an offence if:
(a) the person is in an airside area,
a landside security zone or a landside event zone; and
(b) the person has a weapon in his or
her possession; and
(c) the person is not:
(i) a law enforcement
officer; or
(ii) a member of the
Australian Defence Force who is on duty; or
(iii) authorised by the
regulations, or permitted in writing by the Secretary, to have the weapon in
his or her possession in the airside area, landside security zone or landside
event zone.
Penalty: 100 penalty units.
(2) Subsection (1) is an offence of
strict liability.
General
(3) A person commits an offence if:
(a) the person is in an airside area,
a landside security zone or a landside event zone; and
(b) the person has a weapon in his or
her possession; and
(c) the person is not:
(i) a law enforcement
officer; or
(ii) a member of the Australian
Defence Force who is on duty; or
(iii) authorised by the
regulations, or permitted in writing by the Secretary, to have the weapon in
his or her possession in the airside area, landside security zone or landside
event zone.
Penalty: Imprisonment for 7 years.
47
Carrying weapons through a screening point
Strict liability
(1) A person commits an offence if:
(a) the person passes through a
screening point; and
(b) the person has a weapon in his or
her possession when he or she passes through the screening point; and
(c) the person is not:
(i) a law enforcement
officer; or
(ii) authorised by the
regulations, or permitted in writing by the Secretary, to pass through the
screening point with the weapon in his or her possession.
Penalty: 100 penalty units.
(2) Subsection (1) is an offence of
strict liability.
General
(3) A person commits an offence if:
(a) the person passes through a
screening point; and
(b) the person has a weapon in his or
her possession when he or she passes through the screening point; and
(c) the person is not:
(i) a law enforcement
officer; or
(ii) authorised by the
regulations, or permitted in writing by the Secretary, to pass through the
screening point with the weapon in his or her possession.
Penalty: Imprisonment for 7 years.
48
Weapons on board an aircraft—strict liability
(1) A person commits an offence if:
(a) the person is on board a
prescribed aircraft; and
(b) the person:
(i) carries a weapon; or
(ii) otherwise has in his
or her possession a weapon that is located at a place that is accessible to the
person; and
(c) the person is not a law
enforcement officer; and
(d) the carriage or possession of the
weapon is not authorised by the regulations or permitted in writing by the
Secretary; and
(e) neither of the following apply:
(i) the weapon is under
the control of the pilot in command of the aircraft because the weapon forms
part of the equipment of the aircraft in accordance with the operations manual
for the aircraft;
(ii) the weapon is under
the control of the pilot in command of the aircraft because an animal that
could endanger the safety of the aircraft, or the safety of people on board the
aircraft, is being carried on board the aircraft.
Penalty: 100 penalty units.
(2) Subsection (1) is an offence of
strict liability.
Note: Carriage of weapons on an aircraft is also
subject to provisions in the Civil Aviation Act 1988 and the Crimes
(Aviation) Act 1991.
49
Weapons on board an aircraft—general
A person commits an offence if:
(a) the person is on board a
prescribed aircraft; and
(b) the person:
(i) carries a weapon; or
(ii) otherwise has in his
or her possession a weapon that is located at a place that is accessible to the
person; and
(c) the person is not a law
enforcement officer; and
(d) the carriage or possession of the
weapon is not authorised by the regulations or permitted in writing by the
Secretary; and
(e) neither of the following apply:
(i) the weapon is under
the control of the pilot in command of the aircraft because the weapon forms
part of the equipment of the aircraft in accordance with the operations manual
for the aircraft;
(ii) the weapon is under
the control of the pilot in command of the aircraft because an animal that
could endanger the safety of the aircraft, or the safety of people on board the
aircraft, is being carried on board the aircraft.
Penalty: Imprisonment for 7 years.
Note: Carriage of weapons on an aircraft is also
subject to provisions in the Civil Aviation Act 1988 and the Crimes
(Aviation) Act 1991.
50 Failure
to comply with conditions
(1) A person commits an offence if:
(a) the person is on a prescribed
aircraft or at a security controlled airport; and
(b) the person is authorised or
permitted to have a weapon in his or her possession or under his or her
control; and
(c) the person fails to comply with
any conditions relating to the authorisation or permission.
Penalty: 50 penalty units.
(2) Subsection (1) does not apply if the
person has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(3) Subsection (1) is an offence of
strict liability.
51
Secretary may permit by class
To avoid doubt, for the purposes of this
Division, the Secretary may give permission in relation to particular conduct
by giving permission to a class of persons.
52
Other weapons requirements
(1) The regulations may, for the purposes of
safeguarding against unlawful interference with aviation, prescribe
requirements in relation to the carriage and use of weapons on a prescribed
aircraft or at a security controlled airport.
(2) Without limiting the matters that may be
dealt with by regulations made under subsection (1), the regulations may
deal with the following:
(a) authorising the carriage of
weapons on board a prescribed aircraft or in an airside security zone, an
airside event zone, a landside security zone or a landside event zone;
(b) dealing with a person on a
prescribed aircraft or at a security controlled airport who carries or uses a
weapon, or is suspected of carrying or using a weapon, unlawfully;
(c) dealing with a weapon surrendered
by a person on a prescribed aircraft or at a security controlled airport.
(3) Regulations made under this section may
prescribe penalties for offences against those regulations. The penalties must
not exceed:
(a) for an offence committed by an
airport operator or an aircraft operator—200 penalty units; or
(b) for an offence committed by an
aviation industry participant, other than a participant covered by paragraph (a)—100
penalty units; or
(c) for an offence committed by any
other person—50 penalty units.
Note: If a body corporate is convicted of an offence
against regulations made under this section, subsection 4B(3) of the Crimes
Act 1914 allows a court to impose fines of up to 5 times the penalties
stated above.
Division 4—Prohibited items
53
Simplified overview of Division
Things other than weapons may be used
to interfere with aviation unlawfully.
This Division:
(a) allows
regulations to prescribe such things as prohibited items; and
(b) establishes
restrictions in relation to prohibited items that are similar to the
restrictions which apply to weapons under Division 3 of this Part.
54 Prohibited
items in airside security zones, airside event zones, landside security zones
and landside event zones
Strict liability
(1) A person commits an offence if:
(a) the person is in an airside
security zone, an airside event zone, a landside security zone or a landside
event zone; and
(aa) the airside security zone, airside
event zone, landside security zone or landside event zone is of a kind
prescribed in the regulations for the purposes of this paragraph; and
(b) the person has a prohibited item
in his or her possession; and
(c) the person is not:
(i) a law enforcement
officer, an airport security guard or an aviation security inspector; or
(ii) a member of the
Australian Defence Force who is on duty; or
(iii) authorised by the
regulations, or permitted in writing by the Secretary, to have the prohibited
item in his or her possession in the airside security zone, airside event zone,
landside security zone or landside event zone.
Penalty: 20 penalty units.
(2) Subsection (1) is an offence of
strict liability.
General
(3) A person commits an offence if:
(a) the person is in an airside
security zone, an airside event zone, a landside security zone or a landside
event zone; and
(aa) the airside security zone, airside
event zone, landside security zone or landside event zone is of a kind
prescribed in the regulations for the purposes of this paragraph; and
(b) the person has a prohibited item
in his or her possession; and
(c) the person is not:
(i) a law enforcement
officer, an airport security guard or an aviation security inspector; or
(ii) a member of the
Australian Defence Force who is on duty; or
(iii) authorised by the
regulations, or permitted in writing by the Secretary, to have the prohibited
item in his or her possession in the airside security zone, airside event zone,
landside security zone or landside event zone.
Penalty: Imprisonment for 2 years.
55
Carrying prohibited items through a screening point
Strict liability
(1) A person commits an offence if:
(a) the person passes through a
screening point; and
(b) the person has a prohibited item
in his or her possession when he or she passes through the screening point; and
(c) the person is not;
(i) a law enforcement
officer, an airport security guard or an aviation security inspector; or
(ii) authorised by the
regulations, or permitted in writing by the Secretary, to pass through the
screening point with the prohibited item in his or her possession.
Penalty: 20 penalty units.
(2) Subsection (1) is an offence of
strict liability.
General
(3) A person commits an offence if:
(a) the person passes through a
screening point; and
(b) the person has a prohibited item
in his or her possession when he or she passes through the screening point; and
(c) the person is not;
(i) a law enforcement
officer, an airport security guard or an aviation security inspector; or
(ii) authorised by the
regulations, or permitted in writing by the Secretary, to pass through the
screening point with the prohibited item in his or her possession.
Penalty: Imprisonment for 2 years.
56 Prohibited
items on board an aircraft—strict liability
(1) A person commits an offence if:
(a) the person is on board a
prescribed aircraft; and
(b) the person:
(i) carries a prohibited
item; or
(ii) otherwise has in his
or her possession a prohibited item that is located at a place that is
accessible to the person; and
(c) the person is not a law
enforcement officer, an airport security guard or an aviation security
inspector; and
(d) the carriage or possession of the
prohibited item is not authorised by the regulations or permitted in writing by
the Secretary; and
(e) neither of the following apply:
(i) the prohibited item is
under the control of the pilot in command of the aircraft because the
prohibited item forms part of the equipment of the aircraft in accordance with
the operations manual for the aircraft;
(ii) the prohibited item is
under the control of the pilot in command of the aircraft because an animal
that could endanger the safety of the aircraft, or the safety of people on
board the aircraft, is being carried on board the aircraft.
Penalty: 20 penalty units.
(2) Subsection (1) is an offence of
strict liability.
57
Prohibited items on board an aircraft—general
A person commits an offence if:
(a) the person is on board a prescribed
aircraft; and
(b) the person:
(i) carries a prohibited
item; or
(ii) otherwise has in his
or her possession a prohibited item that is located at a place that is
accessible to the person; and
(c) the person is not a law
enforcement officer, an airport security guard or an aviation security
inspector; and
(d) the carriage or possession of the
prohibited item is not authorised by the regulations or permitted in writing by
the Secretary; and
(e) neither of the following apply:
(i) the prohibited item is
under the control of the pilot in command of the aircraft because the
prohibited item forms part of the equipment of the aircraft in accordance with
the operations manual for the aircraft;
(ii) the prohibited item is
under the control of the pilot in command of the aircraft because an animal
that could endanger the safety of the aircraft, or the safety of people on
board the aircraft, is being carried on board the aircraft.
Penalty: Imprisonment for 2 years.
58
Failure to comply with conditions
(1) A person commits an offence if:
(a) the person is on a prescribed
aircraft or at a security controlled airport; and
(b) the person is authorised or
permitted to have a prohibited item in his or her possession or under his or
her control; and
(c) the person fails to comply with
any conditions relating to the authorisation or permission.
Penalty: 50 penalty units.
(2) Subsection (1) does not apply if the
person has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(3) Subsection (1) is an offence of
strict liability.
59
Secretary may permit by class
To avoid doubt, for the purposes of this
Division, the Secretary may give permission in relation to particular conduct
by giving permission to a class of persons.
60
Other prohibited items requirements
(1) The regulations may, for the purposes of
safeguarding against unlawful interference with aviation, prescribe
requirements in relation to the carriage and use of prohibited items on a
prescribed aircraft or at a security controlled airport.
(2) Without limiting the matters that may be
dealt with by regulations made under subsection (1), the regulations may
deal with the following:
(a) authorising the carriage of
prohibited items on a prescribed aircraft or in an airside security zone, an
airside event zone, a landside security zone or a landside event zone;
(b) dealing with a person on a
prescribed aircraft or at a security controlled airport who carries or uses a
prohibited item, or is suspected of carrying or using a prohibited item,
unlawfully;
(c) dealing with a prohibited item
surrendered by a person on a prescribed aircraft or at a security controlled
airport.
(3) Regulations made under this section may
prescribe penalties for offences against those regulations. The penalties must
not exceed:
(a) for an offence committed by an
airport operator or an aircraft operator—200 penalty units; or
(b) for an offence committed by an
aviation industry participant, other than a participant covered by paragraph (a)—100
penalty units; or
(c) for an offence committed by any
other person—50 penalty units.
Note: If a body corporate is convicted of an offence
against regulations made under this section, subsection 4B(3) of the Crimes
Act 1914 allows a court to impose fines of up to 5 times the penalties
stated above.
Division 5—On‑board security
61
Simplified overview of Division
This Division provides for regulations
dealing with aircraft security, including control of passengers on board
aircraft and management of baggage.
62 On‑board
security
(1) The regulations may, for the purposes of
safeguarding against unlawful interference with aviation, prescribe
requirements in relation to the following:
(a) the management and control of
passengers (including persons in custody) on board an aircraft;
(aa) the security features on an
aircraft;
(b) pre‑flight checks of aircraft
cabins and other parts of an aircraft;
(c) procedures to be used and measures
to be taken in relation to baggage that is loaded, or is intended to be loaded,
onto a prescribed aircraft;
(d) unattended aircraft.
(2) Regulations made under this section may
prescribe penalties for offences against those regulations. The penalties must
not exceed:
(a) for an offence committed by an
airport operator or an aircraft operator—200 penalty units; or
(b) for an offence committed by an
aviation industry participant, other than a participant covered by paragraph (a)—100
penalty units; or
(c) for an offence committed by any
other person—50 penalty units.
Note: If a body corporate is convicted of an offence
against regulations made under this section, subsection 4B(3) of the Crimes
Act 1914 allows a court to impose fines of up to 5 times the penalties stated
above.
Division 6—Persons in custody
63
Simplified overview of Division
This Division provides for regulations
dealing with persons who are in custody under another Act and who are at
airports or on aircraft. The regulations may include security arrangements in
relation to such persons and the circumstances in which the pilot in command of
an aircraft may refuse to allow such persons on board.
64
Meaning of person in custody
(1) A person on a prescribed aircraft or at a
security controlled airport is a person in custody if he or she
is in custody under another Act.
(2) The reference in subsection (1) to
another Act includes a reference to a law of a State or Territory.
65
Requirements relating to persons in custody
(1) The regulations may, for the purposes of
safeguarding against unlawful interference with aviation, prescribe
requirements in relation to persons in custody on a prescribed aircraft or at a
security controlled airport.
(2) Without limiting the matters that may be
dealt with by regulations made under subsection (1), the regulations may
deal with the following:
(a) the circumstances in which a
person who is in custody may be on a prescribed aircraft or at a security
controlled airport;
(b) the security arrangements,
including escort arrangements, that must be implemented in relation to persons
in custody on a prescribed aircraft, or at a security controlled airport, and
the persons who must implement those arrangements;
(c) information about a person in
custody that must be provided to the operator of the relevant prescribed
aircraft or security controlled airport;
(d) information about a person in
custody who is to be on a prescribed aircraft that must be provided to the
pilot in command of the aircraft;
(e) the circumstances in which the
operator of a prescribed aircraft, or the pilot in command of a prescribed
aircraft, may refuse to allow a person in custody to be on the aircraft;
(f) the circumstances in which the
operator of a security controlled airport may refuse to allow a person in
custody to be at the airport;
(g) the number of persons in custody
that may be on a prescribed aircraft, or at a security controlled airport, at
any one time.
(3) Regulations made under this section may
prescribe penalties for offences against those regulations. The penalties must
not exceed:
(a) for an offence committed by an
airport operator or an aircraft operator—200 penalty units; or
(b) for an offence committed by an
aviation industry participant, other than a participant covered by paragraph (a)—100
penalty units; or
(c) for an offence committed by any
other person—50 penalty units.
Division 7—Special security directions
66
Simplified overview of Division
Special circumstances may arise that
require additional security measures beyond those otherwise required under this
Act.
This Division allows the Secretary to
address such circumstances by issuing special security directions. The Division
establishes time limits for such special security directions. As a general
rule, a special security direction ceases to have effect after it has been in
force for 3 months.
Failing to comply with a special
security direction is an offence.
In addition, disclosing such a
direction in certain circumstances is also an offence.
67
Secretary may give special security directions
(1) If:
(a) a specific threat of unlawful
interference with aviation is made or exists; or
(b) there is a change in the nature of
an existing general threat of unlawful interference with aviation;
the Secretary may, in writing, direct that additional
security measures be taken or complied with.
(2) A direction under subsection (1) is
a special security direction.
68
Confidentiality requirements
(1) A special security direction may set out
restrictions in relation to the disclosure of the direction.
(2) Such restrictions are confidentiality
requirements.
69
Persons to whom special security directions may be given
(1) A special security direction may be given
to one or more of the following:
(a) an APS employee in the Department;
(b) a member of the staff of CASA;
(c) a member of the staff of
Airservices Australia;
(d) an aviation industry participant
or an employee of an aviation industry participant;
(e) passengers;
(f) persons, other than persons
mentioned in paragraphs (a) to (e), who are within the boundaries of a
security controlled airport.
(2) For the purposes of giving a special
security direction to persons mentioned in paragraph (1)(e) or (f), the
Secretary is taken to have given a written direction to the persons if the
direction is clearly displayed at a place where the direction is to be complied
with by those persons.
70
When a special security direction is in force
(1) A special security direction comes into
force at the time specified in the direction.
(2) However:
(a) if:
(i) there is no time
specified; or
(ii) the specified time is
before the time when the direction is given;
the direction comes into force
24 hours after it is given; or
(b) if the specified time is later
than the beginning of the seventh day after the direction is given, the
direction comes into force at the start of that day.
(3) A special security direction remains in
force until:
(a) it is revoked in writing by the
Secretary; or
(b) it ceases to have effect under subsection (6)
of this section or subsection 71(2).
(4) If the Secretary has displayed a special
security direction under subsection 69(2) and either:
(a) the Secretary revokes the
direction; or
(b) the direction ceases to have
effect under subsection (6) of this section or subsection 71(2);
the Secretary must remove the displayed direction.
(5) A special security direction made under
paragraph 67(1)(a) must be revoked when the specific threat no longer exists.
(6) If not revoked earlier, a special
security direction ceases to be in force when it has been in force for a
continuous period of 3 months.
71
Secretary may extend direction for further 3 months
(1) Despite subsection 70(6), a special
security direction that has been in force for a continuous period of 3 months
does not cease to be in force if, before the period ends, the Secretary:
(a) consults with the person to whom
the direction has been given; and
(b) gives the person written notice
that the direction is to remain in force.
(2) If not revoked earlier, a special
security direction that remains in force under subsection (1) ceases to be
in force when it has been in force for a continuous period of 6 months.
(3) Paragraph (1)(a) of this section
does not apply in relation to a direction that has been given to a person
covered by paragraph 69(1)(e) or (f).
72
Certain directions not to be re‑made for 6 months
If:
(a) a special security direction (the original
direction) has been given to a person; and
(b) the original direction ceases to
be in force because it has been in force for a continuous period of 6 months
(see subsection 71(2));
the Secretary must not give a special security direction
to the person that is the same as, or substantially similar to, the original
direction during the period of 6 months after the original direction ceases to
be in force.
73
Failure to comply with special security directions
(1) A person commits an offence if:
(a) a special security direction is
given to the person; and
(b) the direction is in force; and
(c) the person fails to comply with
the direction; and
(d) the failure is not a failure to
comply with confidentiality requirements.
Penalty: For an airport operator or an aircraft operator—200
penalty units.
For an aviation industry participant, other than
an airport operator or an aircraft operator—100 penalty units.
For any other person—50 penalty units.
(2) Subsection (1) does not apply if the
person has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(3) Subsection (1) is an offence of
strict liability.
74
Failure to comply with confidentiality requirements
(1) A person commits an offence if:
(a) a special security direction is
given to the person; and
(b) the direction is in force; and
(c) the person fails to comply with
confidentiality requirements in the direction; and
(d) the failure is not due to a
disclosure made to a court or a tribunal, or to an authority or person that has
the power to require the production of documents or the answering of questions.
Penalty: 20 penalty units.
(2) Subsection (1) is an offence of
strict liability.
Division 8—Control directions
74A
Simplified overview of Division
Compliance control directions can be
used:
(a) to control
the movement of aircraft that are not in flight; or
(b) in relation
to security controlled airports.
Compliance control directions, given
by aviation security inspectors, are used to ensure compliance with this Act.
They may be given to aircraft operators, operators of security controlled
airports, screening authorities, pilots in command or screening officers.
Incident control directions can be
used to control the movement of aircraft. Incident control directions, given by
the Secretary, are used in response to aviation security incidents. They may be
given to aircraft operators or pilots in command.
Failing to comply with a compliance
control direction or an incident control direction is an offence.
74B
Compliance control directions
(1) An aviation security inspector may direct
the aircraft operator for, or the pilot in command of, a prescribed aircraft
that:
(a) is in Australian territory; and
(b) is not in flight;
to take specified action in relation to the aircraft.
(1A) An aviation security inspector may direct
the operator of a security controlled airport to take specified action in
relation to the airport.
(1B) An aviation security inspector may direct a
screening authority or a screening officer to take specified action in relation
to a screening point at a security controlled airport.
(2) A direction under subsection (1),
(1A) or (1B) is a compliance control direction.
(3) However, an aviation security inspector
must not give a compliance control direction unless the direction is necessary
for ensuring compliance with this Act.
(4) The action that an aircraft operator or
pilot in command may be directed to take under subsection (1) includes,
but is not limited to, the following:
(a) holding the aircraft in a particular
position until specified actions are taken or until a specified event occurs;
(b) taking particular actions, or
ensuring that particular actions are taken, on or in relation to the aircraft;
(c) taking particular actions, or
ensuring that particular actions are taken, in relation to a person or thing
on, or to be carried by, the aircraft;
(d) allowing an aviation security
inspector to inspect the aircraft.
(4A) The action that an operator of a security
controlled airport may be directed to take under subsection (1A) includes,
but is not limited to, taking particular actions, or ensuring that particular
actions are taken, in relation to persons or things in specified areas or zones
of the airport.
(4B) The action that a screening authority or a
screening officer may be directed to take under subsection (1B) includes,
but is not limited to, taking particular actions, or ensuring that particular
actions are taken, in relation to screening or re‑screening particular
passengers, goods or vehicles.
(5) The regulations may prescribe
requirements for, or in relation to, the giving of compliance control
directions.
74C
Failure to comply with compliance control directions
(1) A person commits an offence if:
(a) a compliance control direction is
given to the person; and
(b) the person fails to comply with
the direction.
Penalty: For an aircraft operator, an operator of a security
controlled airport or a screening authority—200 penalty units.
For a pilot in command or a screening officer—50
penalty units.
(2) Subsection (1) does not apply if the
person has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
74D
Incident control directions
Australian aircraft
(1) The Secretary may direct the aircraft
operator for, or the pilot in command of, an Australian aircraft to take
specified action in relation to the aircraft.
Foreign aircraft
(2) The Secretary may direct the aircraft
operator for, or the pilot in command of, an aircraft that:
(a) is not an Australian aircraft; and
(b) is in Australian territory;
to take specified action in relation to the aircraft.
(3) A direction under subsection (1) or
(2) is an incident control direction.
(4) However, the Secretary must not give an
incident control direction unless the Secretary reasonably believes that the
direction is an appropriate or necessary response to an aviation security
incident.
(5) The action that an aircraft operator or
pilot in command may be directed to take under subsection (1) or (2)
includes, but is not limited to, the following:
(a) taking particular actions, or
ensuring that particular actions are taken, on or in relation to the aircraft;
(b) taking particular actions, or
ensuring that particular actions are taken, in relation to a person or thing
on, or to be carried by, the aircraft;
(c) holding the aircraft in a
particular position or within a particular area until specified actions are
taken or until a specified event occurs;
(d) ensuring that the aircraft leaves
a particular place or a particular area;
(e) ensuring that the aircraft lands
at a particular place or within a particular area;
(f) ensuring that the aircraft lands
outside a particular area.
(6) The regulations may prescribe
requirements for, or in relation to, the giving of incident control directions.
74E
Failure to comply with incident control directions
(1) A person commits an offence if:
(a) an incident control direction is
given to the person; and
(b) the person fails to comply with
the direction.
Penalty: For an aircraft operator—1,000 penalty units.
For a pilot in command—100 penalty units.
(2) Subsection (1) does not apply if the
person has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
Division 9—Security status checking
74F
Simplified overview of Division
This Division will facilitate the
security status checking of applicants for, and holders of, certain
authorisations.
The Division enables an adverse
security status determination to be made in respect of a person. If a
determination is made, any such authorisation that the person has applied for
will be refused, and any such authorisation that the person holds will be
cancelled or suspended.
The regulations will prescribe details
relating to security status checking and the making of adverse security status
determinations.
74G
Secretary may determine that a person has an adverse aviation security status
(1) The Secretary may determine in writing
that a person has an adverse aviation security status.
(2) If the Secretary makes such a
determination, the Secretary must give a copy of the determination to the
following:
(a) the person;
(b) CASA.
(3) As soon as reasonably practicable after
such a determination is made, CASA must:
(a) if the person is an applicant for
a security designated authorisation—refuse the application under this
paragraph; or
(b) if the person is the holder of a
security designated authorisation—suspend or cancel the authorisation under
this paragraph.
(4) The exercise of the power to determine
that a person has an adverse aviation security status is taken to be prescribed
administrative action in respect of the person for the purposes of Part IV
of the Australian Security Intelligence Organisation Act 1979.
74H
Regulations
(1) Regulations may be made:
(a) providing for matters to which the
Secretary must have regard for the purposes of deciding whether or not to determine
that a person has an adverse aviation security status; and
(b) specifying circumstances in which
the Secretary must determine that a person has an adverse aviation security
status; and
(c) specifying circumstances in which
the Secretary may determine that a person has an adverse aviation security
status; and
(d) providing for matters relating to
the carrying out of security status checking; and
(e) authorising the use or disclosure
of information (including personal information within the meaning of the
Privacy Act 1988) for the purposes of, or in relation to, security status
checking; and
(f) specifying procedures and other
matters relating to the determination of applications for security designated
authorisations, including, but not limited to, delaying the determination of
such applications pending the outcome of security status checking; and
(g) specifying procedures and other
matters relating to the issue, suspension or cancellation by CASA of security
designated authorisations or the refusal by CASA to issue security designated
authorisations; and
(h) providing that applicants for, or
holders of, security designated authorisations may request security status
checking to be undertaken; and
(i) specifying the consequences of a
failure to make a request of a kind mentioned in regulations under paragraph (h);
and
(j) providing for the collection of
fees by CASA on behalf of the Commonwealth, being fees prescribed by the
regulations for the purposes of this Division; and
(k) conferring the function of
determining under subsection 74G(1) that a person has an adverse security
status upon CASA (in addition to, but not instead of, the Secretary); and
(l) empowering the Director of CASA
to delegate all or any of CASA’s functions and powers under this Division to a
person holding, or performing the duties of, an office or position within CASA
that is at a level equivalent to that of an SES employee; and
(m) in relation to any other matter
related to the operation of this Division.
(2) If regulations under paragraph (1)(k)
are in force:
(a) references in section 74G and
in this section to the Secretary are to be taken to include references to CASA;
and
(b) paragraph 74G(2)(b) does not apply
to a determination by CASA under subsection 74G(1); and
(c) paragraph 126(1)(f) has effect as
if the reference in subsection 126(1) to the Secretary included a reference to
CASA.
74I
Division operates despite the Civil Aviation Act 1988
This Division has effect despite
anything in the Civil Aviation Act 1988 or regulations under that Act.
Division 10—Optical surveillance devices
74J
Purposes of this Division
In addition to the purposes of this Act,
the purposes of this Division include the following:
(a) preventing and detecting
contraventions of, or offences against:
(i) this Act; or
(ii) any other law of the
Commonwealth;
at airports or on board
aircraft;
(b) safeguarding Commonwealth
interests.
74K
Minister may determine code
(1) For the purposes of this Division, the
Minister may, by legislative instrument, determine a code that regulates and
authorises, despite any law of a State or a Territory, the use of optical
surveillance devices by aviation industry participants:
(a) at a security controlled airport;
or
(b) on board an aircraft that:
(i) is at a security
controlled airport; or
(ii) is a prescribed
aircraft; or
(c) in a vehicle that:
(i) is on board an
aircraft covered by paragraph (b); or
(ii) is at a security
controlled airport.
(2) The code may also regulate and authorise
the use or disclosure of a signal, image or other information obtained by the
use of the optical surveillance devices.
(3) Regulations made for the purposes of this
section may prescribe penalties for offences against the code. The penalties
must not exceed 50 penalty units.
Part 5—Powers of officials
Division 1—Simplified overview of Part
75
Simplified overview of Part
Certain persons are given particular
powers and responsibilities under this Act. Some of these people are required
to have specific qualifications and meet other requirements. This is to ensure
that only appropriate people have these powers.
The types of persons (and the relevant
Divisions) are as follows:
(a) aviation
security inspectors (Division 2);
(b) law
enforcement officers (Division 3);
(ba) eligible
customs officers (Division 3A);
(c) airport
security guards (Division 4);
(d) screening
officers (Division 5).
Division 2—Aviation security inspectors
76
Simplified overview of Division
Employees in the Department and law
enforcement officers can be appointed as aviation security inspectors.
Aviation security inspectors are given
a range of powers that they can exercise to determine whether a person is
complying with this Act.
Each aviation security inspector is to
be issued with an identity card. The regulations may provide for the form,
issue and use of those cards.
77
Appointment
(1) The Secretary may appoint an APS employee
in the Department or a law enforcement officer to be an aviation security
inspector.
(2) The appointment must be in writing.
78
Identity cards
(1) The Secretary must issue each aviation
security inspector with an identity card.
(2) The regulations may set out requirements
in relation to the form, issue and use of identity cards.
(3) The regulations may provide that
the identity card may be combined with another identity card.
79
Powers of aviation security inspectors—general
(1) An aviation security inspector may
exercise the powers set out in subsection (2) for the following purposes:
(a) determining whether a person is
complying with this Act;
(b) investigating a possible
contravention of this Act.
(2) For the purposes set out in subsection (1),
an aviation security inspector may:
(a) enter and inspect a security
controlled airport; or
(b) enter and inspect:
(i) any area, building
(other than a residence) or vehicle under the control of an aviation industry
participant; or
(ii) if an aviation
industry participant operates from a residence or a part of a residence—the
residence or the part of the residence from which the participant operates; or
(c) enter and inspect:
(i) any area, building
(other than a residence) or vehicle under the control of an accredited air
cargo agent; or
(ii) if an accredited air
cargo agent operates from a residence or a part of a residence—the residence or
the part of the residence from which the agent operates; or
(d) inspect equipment in a place or
vehicle mentioned in paragraph (a), (b) or (c); or
(e) observe the operating procedures
of an aviation industry participant; or
(f) discuss those procedures with an
employee of the aviation industry participant or with another aviation industry
participant or an accredited air cargo agent; or
(g) observe the operating procedures
of an accredited air cargo agent; or
(h) discuss those procedures with an
employee of the accredited air cargo agent or with another accredited air cargo
agent or an aviation industry participant; or
(i) inspect, photograph or copy a
document or record made or kept by an aviation industry participant or an
accredited air cargo agent; or
(j) operate equipment at a place
mentioned in paragraph (a), (b) or (c) for the purposes of gaining access
to a document or record made or kept by an aviation industry participant; or
(k) operate equipment at a place
mentioned in paragraph (a), (b) or (c) for the purposes of gaining access
to a document or record made or kept by an accredited air cargo agent.
(3) An
aviation security inspector may exercise a power mentioned in subsection (2):
(a) if the power is exercised within
the boundaries of a security controlled airport—at any time and without notice;
or
(aa) if the power is exercised outside
the boundaries of a security controlled airport but is one to which
subsection (3A) applies—at any time and without notice; or
(b) otherwise—after giving the
aviation industry participant or accredited air cargo agent concerned (or both)
reasonable notice.
(3A) This subsection applies to the following
powers:
(a) a power covered by
subparagraph (2)(b)(i) or (c)(i);
(b) a power covered by
paragraph (2)(d), to the extent that it relates to
subparagraph (2)(b)(i) or (c)(i);
(c) a power covered by
paragraph (2)(e), (f), (g) or (h);
(d) a power covered by
paragraph (2)(i), to the extent that the document or record is found in
the exercise of a power covered by paragraph (a), (b) or (e) of this
subsection;
(e) a power covered by
paragraph (2)(j) or (k), to the extent that it relates to
subparagraph (2)(b)(i) or (c)(i).
(4) However, in exercising a power under this
section, an aviation security inspector must not subject a person to greater
indignity than is necessary and reasonable for the exercise of the power.
(5) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct hinders or obstructs
an aviation security inspector in the exercise of a power under this section.
Penalty: 50 penalty units.
(6) Subsection (5) does not apply if the
person has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal
Code).
(7) Subsection (5) is an offence of
strict liability.
80
Powers of aviation security inspectors—aircraft
(1) An aviation security inspector may
exercise the powers set out in subsection (2) for the following purposes:
(a) determining whether a person is
complying with this Act;
(b) investigating a possible
contravention of this Act.
Note: Aviation security inspectors are also able to
give compliance control directions: see section 74B.
(2) For the purposes set out in subsection (1),
an aviation security inspector may:
(a) enter and inspect an aircraft
operator’s aircraft at a security controlled airport; or
(b) inspect equipment in the aircraft;
or
(c) observe operating procedures for
the aircraft (whether carried out by the crew or some other person); or
(d) discuss those procedures with a
person carrying them out or with another aviation industry participant; or
(e) inspect, photograph or copy a
document or record held in the aircraft that relates to a passenger or an item
of cargo.
(3) An aviation security inspector may
exercise a power mentioned in subsection (2) after giving the aircraft
operator reasonable notice.
(4) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct hinders or obstructs
an aviation security inspector in the exercise of a power under this section.
Penalty: 50 penalty units.
(5) Subsection (4) does not apply if the
person has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal
Code).
(6) Subsection (4) is an offence of
strict liability.
Division 3—Law enforcement officers
81
Simplified overview of Division
This Division provides police and
protective service officers with special authority to:
(a) stop and
search people and vehicles at airports;
(b) remove people
from an aircraft or an airport, or from an area or zone of an airport, if they
do not leave when requested to do so;
(c) remove
vehicles from an airport, or from an area or zone of an airport, if the officer
is unable to have the vehicle removed by the person in control of it.
The Division establishes restrictions
on this authority, such as requiring the officer to explain why a search is to
be made and limiting the amount of force that may be used.
A person who does not leave when
requested to do so by a law enforcement officer commits an offence, as does a
person who hinders or obstructs an officer exercising powers under this
Division.
82 Law
enforcement officers
Each of the following who is on duty at
a security controlled airport is a law enforcement officer:
(a) a member of:
(i) the Australian Federal
Police; or
(ii) the police force of a
State or a Territory;
(b) a protective service officer
(within the meaning of the Australian Federal Police Act 1979);
(c) a special protective service
officer (within the meaning of the Australian Federal Police Act 1979)
who has the same powers as a protective service officer.
83
Access to airports by law enforcement officers
A law enforcement officer may enter, and
remain in, any part of a security controlled airport at any time.
84
Stopping and searching people
(1) If a law enforcement officer reasonably
believes that it is necessary to do so for the purposes of safeguarding against
unlawful interference with aviation, the law enforcement officer may stop a
person who is in an airside area and conduct an ordinary search or a frisk
search of the person.
(1A) An ordinary search or a frisk search of a
person under subsection (1) must, if practicable, be conducted by a person
of the same sex as the person being searched.
(2) If a law enforcement officer stops a
person under subsection (1), the officer must:
(a) identify himself or herself as a
law enforcement officer to the person; and
(b) tell the person why the person has
been stopped; and
(c) if the person is to be
searched—tell the person why the person is to be searched.
(3) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct hinders or obstructs a
law enforcement officer in the exercise of a power under subsection (1).
Penalty for an offence against this subsection: Imprisonment
for 2 years.
85
Stopping and searching vehicles
(1) If a law enforcement officer reasonably
believes that it is necessary to do so for the purposes of safeguarding against
unlawful interference with aviation, the law enforcement officer may do either
or both of the following in an airside area:
(a) require the driver of a vehicle to
stop the vehicle;
(b) search the vehicle.
(2) If a law enforcement officer stops a
vehicle under subsection (1), the law enforcement officer must:
(a) identify himself or herself as a
law enforcement officer to the driver of the vehicle; and
(b) tell the driver why the vehicle
has been stopped; and
(c) if the vehicle is to be
searched—tell the driver why the vehicle is to be searched.
(3) Before a law enforcement officer searches
a vehicle under subsection (1) that was not stopped by the officer, the
officer must, if there is a driver or person in control of the vehicle present:
(a) identify himself or herself as a
law enforcement officer to the driver or person; and
(b) tell the driver or person why the
vehicle is to be searched.
(4) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct hinders or obstructs a
law enforcement officer in the exercise of a power under subsection (1).
Penalty for an offence against this subsection: Imprisonment
for 2 years.
86
Requests to leave areas or zones
(1) If a law enforcement officer reasonably
suspects that a person on a prescribed aircraft, or in an area or zone of a
security controlled airport, is committing, or has committed, an offence
against this Act, the officer may request the person to leave:
(a) the aircraft; or
(b) the area or zone; or
(c) the airport.
(2) A person commits an offence if:
(a) a request has been made to the
person under subsection (1); and
(b) the person fails to comply with
the request.
Penalty for an offence against this subsection: 50 penalty
units.
87
Removing people from aircraft, airports, areas or zones
(1) If:
(a) a request to leave an aircraft, an
airport or an area or zone has been made to a person under section 86; and
(b) the person fails to comply with
the request;
a law enforcement officer may remove the person from the
aircraft, the airport or the area or zone.
(2) A law enforcement officer must not use
more force, or subject the person to greater indignity, than is necessary and
reasonable to remove the person from the aircraft, the airport or the area or
zone.
88
Removing vehicles from areas or zones
(1) If a law enforcement officer reasonably
suspects that:
(a) a vehicle in or near an area or
zone of a security controlled airport presents a risk to aviation security; or
(b) a vehicle is in an area or zone of
a security controlled airport without proper authorisation;
the law enforcement officer may remove the vehicle.
(2) However, the law enforcement officer must
not remove the vehicle without making reasonable efforts to have the person in
control of the vehicle remove the vehicle.
(3) The law enforcement officer:
(a) must not use more force, or
subject a person to greater indignity, than is necessary and reasonable to
remove the vehicle from the area or zone; and
(b) must make reasonable efforts to
avoid damaging the vehicle.
89
Other law enforcement powers not affected
This Act does not, by implication, limit
the exercise of the powers a law enforcement officer has apart from this Act.
Division 3A—Eligible
customs officers
89A
Simplified overview of Division
This Division provides certain customs
officers with powers to:
(a) stop and
search persons and vehicles at airports; and
(b) request
persons to leave an aircraft, an airport or an area or zone of an airport; and
(c) restrain and
detain persons until the persons can be dealt with by a law enforcement
officer; and
(d) remove
vehicles from an airport, or from an area or zone of an airport, if the customs
officer is unable to have the vehicle removed by the person in control of it.
This Division establishes restrictions
on these powers, such as requiring the customs officer to explain why a search
is to be made and limiting the amount of force that may be used.
A person who does not leave an
aircraft or an airport, or an area or zone of an airport, when requested to do
so by the customs officer commits an offence, as does a person who hinders or
obstructs the officer exercising powers under this Division.
89B
Eligible customs officers
(1) An eligible customs officer
is a person who:
(a) is an officer of Customs within
the meaning of subsection 4(1) of the Customs Act 1901; and
(b) is on duty at a security
controlled airport; and
(c) satisfies the training and
qualification requirements prescribed by the regulations for the purposes of
this paragraph.
(2) The regulations may prescribe the
following for eligible customs officers:
(a) requirements in relation to the
form, issue and use of identity cards;
(b) requirements in relation to
uniforms.
89C
Stopping and searching persons
(1) If an eligible customs officer reasonably
believes that it is necessary to do so for the purposes of safeguarding against
unlawful interference with aviation, the officer may stop a person who is in an
airside area and conduct an ordinary search or a frisk search of the person.
(2) An ordinary search or a frisk search of a
person under subsection (1) must, if practicable, be conducted by a person
of the same sex as the person being searched.
(3) If an eligible customs officer stops a
person under subsection (1), the officer must:
(a) identify himself or herself as an
eligible customs officer to the person; and
(b) tell the person why the person has
been stopped; and
(c) if the person is to be
searched—tell the person why the person is to be searched.
(4) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct hinders or obstructs
an eligible customs officer in the exercise of a power under
subsection (1).
Penalty for an offence against this subsection: Imprisonment
for 2 years.
89D
Stopping and searching vehicles
(1) If an eligible customs officer reasonably
believes that it is necessary to do so for the purposes of safeguarding against
unlawful interference with aviation, the officer may do either or both of the
following in an airside area:
(a) require the driver of a vehicle to
stop the vehicle;
(b) search the vehicle.
(2) If an eligible customs officer stops a
vehicle under subsection (1), the officer must:
(a) identify himself or herself as an
eligible customs officer to the driver of the vehicle; and
(b) tell the driver why the vehicle
has been stopped; and
(c) if the vehicle is to be searched—tell
the driver why the vehicle is to be searched.
(3) Before an eligible customs officer
searches a vehicle under subsection (1) that was not stopped by the
officer, the officer must, if there is a driver or person in control of the
vehicle present:
(a) identify himself or herself as an
eligible customs officer to the driver or person; and
(b) tell the driver or person why the
vehicle is to be searched.
(4) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct hinders or obstructs
an eligible customs officer in the exercise of a power under
subsection (1).
Penalty for an offence against this subsection: Imprisonment
for 2 years.
89E
Requests to leave aircraft, airport or areas or zones
(1) If an eligible customs officer reasonably
suspects that a person on a prescribed aircraft, or in an area or zone of a
security controlled airport, is committing, or has committed, an offence
against this Act, the officer may request the person to leave:
(a) the aircraft; or
(b) the area or zone; or
(c) the airport.
(2) A person commits an offence if:
(a) a request has been made to the
person under subsection (1); and
(b) the person fails to comply with
the request.
Penalty for an offence against this subsection: 50 penalty
units.
89F
Power to physically restrain persons
(1) If an eligible customs officer reasonably
suspects that a person in an area or zone of a security controlled airport is
committing, or has committed, an offence against this Act, the officer may
physically restrain the person.
(2) If a person is restrained under
subsection (1), the eligible customs officer may detain the person until
the person can be dealt with by a law enforcement officer.
(3) In exercising a power under
subsection (1) or (2), an eligible customs officer must not use more
force, or subject a person to greater indignity, than is necessary and
reasonable.
89G
Removing vehicles from areas or zones
(1) If an eligible customs officer reasonably
suspects that:
(a) a vehicle in or near an area or
zone of a security controlled airport presents a risk to aviation security; or
(b) a vehicle is in an area or zone of
a security controlled airport without proper authorisation;
the officer may remove the vehicle.
(2) However, the eligible customs officer
must not remove the vehicle without making reasonable efforts to have the
person in control of the vehicle remove the vehicle.
(3) The eligible customs officer:
(a) must not use more force, or
subject a person to greater indignity, than is necessary and reasonable to
remove the vehicle from the area or zone; and
(b) must make reasonable efforts to
avoid damaging the vehicle.
89H
Other powers not affected
This Act does not, by implication, limit
the exercise of the powers an eligible customs officer has apart from this Act.
Division 4—Airport security guards
90
Simplified overview of Division
This Division gives airport security
guards a limited power to restrain and detain persons. Airport security guards
may only detain a person until the person can be dealt with by a law
enforcement officer and their ability to use force is restricted.
Regulations must establish
requirements to be met before a person can become an airport security guard.
91
Airport security guards
(1) An airport security guard
is a person who:
(a) satisfies the training and
qualification requirements and any other requirements prescribed in the
regulations for airport security guards; and
(b) is on duty at a security
controlled airport; and
(c) is not a law enforcement officer;
and
(d) is not an eligible customs
officer.
(2) The regulations must prescribe the
following for airport security guards:
(a) training and qualification
requirements;
(b) requirements in relation to the
form, issue and use of identity cards.
(3) The regulations may prescribe the
following for airport security guards:
(a) requirements in relation to
uniforms;
(b) any other requirements.
92
Airport security guards’ power to physically restrain persons
(1) An airport security guard may physically
restrain a person if:
(a) the airport security guard
reasonably suspects that the person is committing, or has committed, an offence
against this Act; and
(b) the airport security guard
reasonably believes it is necessary to do so in order to:
(i) ensure that a person
who is not cleared is not in a cleared area or a cleared zone; or
(ii) maintain the integrity
of a landside security zone, a landside event zone, an airside area, an airside
security zone or an airside event zone.
(2) If a person is restrained under subsection (1),
the airport security guard may detain the person until the person can be dealt
with by a law enforcement officer.
(3) In exercising a power under subsection (1)
or (2), an airport security guard must not use more force, or subject a person
to greater indignity, than is necessary and reasonable.
Division 5—Screening officers
93
Simplified overview of Division
A screening officer may request a
person to remove items of clothing or undergo a frisk search for screening
purposes—but may not require this. However, if a person refuses to comply with
such a request and the screening officer is unable to screen the person
properly, the screening officer must refuse to allow the person to pass the
screening point.
To protect the integrity of cleared
areas and zones, screening officers are provided with similar restraint and
detention powers to those of airport security guards.
94
Screening officers
(1) A person who is authorised or required to
conduct screening is a screening officer.
(2) The regulations must prescribe the
following for screening officers:
(a) training and qualification
requirements;
(b) requirements in relation to the
form, issue and use of identity cards.
(3) The regulations may prescribe the
following for screening officers:
(a) requirements in relation to
uniforms;
(b) any other requirements.
95
Screening powers
(1) If a screening officer considers it
necessary in order to screen a person properly, the screening officer may
request the person to remove any item of the person’s clothing.
(2) The screening officer must not:
(a) require the person to remove any
clothing; or
(b) remove or cause the removal of any
of the person’s clothing.
Penalty: 50 penalty units.
(3) Subsection (2) does not apply if the
officer has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal
Code).
(4) Subsection (2) is an offence of
strict liability.
(5) If:
(a) a screening officer requests a
person to remove an item of clothing under subsection (1); and
(b) the person refuses to comply with
the request; and
(c) the person refuses:
(i) to be screened in a
private room by a screening officer of the same sex as the person; or
(ii) to remove the item of
clothing during that screening; and
(d) the refusals mean that it is not
possible to screen the person properly;
the screening officer must refuse to allow the person to
pass through the screening point.
95A
Screening powers—frisk search as an alternative screening procedure
If a person chooses to undergo a frisk
search as an alternative to another screening procedure, a screening officer
may frisk search the person to the extent necessary to screen the person
properly.
95B
Screening powers—frisk search as an additional screening procedure
(1) If:
(a) a person undergoes a screening
procedure; and
(b) the results of that procedure
indicate that additional screening procedures are necessary in order to screen
the person properly;
a screening officer may request the person to undergo a
frisk search.
(2) If a screening officer conducts a frisk
search following a request under subsection (1), the screening officer may
conduct the search only to the extent necessary to complete the proper
screening of the person.
(3) A screening officer must not:
(a) require a person to undergo a
frisk search under this section; or
(b) conduct a frisk search of a person
under this section without the person’s consent; or
(c) contravene subsection (2).
Penalty: 50 penalty units.
(4) Subsection (3) does not apply if the
officer has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal
Code).
(5) Subsection (3) is an offence of
strict liability.
(6) If:
(a) a screening officer requests a
person to undergo a frisk search under subsection (1); and
(b) the person refuses to comply with
the request; and
(c) the person refuses:
(i) to be screened in a private
room by a screening officer of the same sex as the person; or
(ii) to undergo a frisk
search during that screening; and
(d) the refusals mean that it is not
possible to screen the person properly;
the screening officer must refuse to allow the person to
pass through the screening point.
95C
Screening powers—frisk search general power
(1) If a screening officer considers it
necessary in order to screen a person properly, the screening officer may
request the person to undergo a frisk search.
(2) If a screening officer conducts a frisk
search following a request under subsection (1), the screening officer may
conduct the search only to the extent necessary to complete the proper
screening of the person.
(3) A screening officer must not:
(a) require a person to undergo a
frisk search under this section; or
(b) conduct a frisk search of a person
under this section without the person’s consent; or
(c) contravene subsection (2).
Penalty: 50 penalty units.
(4) Subsection (3) does not apply if the
officer has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal
Code).
(5) Subsection (3) is an offence of
strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
(6) If:
(a) a screening officer requests a
person to undergo a frisk search under subsection (1); and
(b) the person refuses to comply with
the request; and
(c) the person refuses to undergo a
frisk search in a private room by a screening officer of the same sex as the
person; and
(d) the refusals mean that it is not
possible to screen the person properly;
the screening officer must refuse to allow the person to
pass through the screening point.
96
Screening officers’ power to physically restrain persons
(1) A screening officer may physically
restrain a person if:
(a) the screening officer reasonably
suspects that the person is committing, or has committed, an offence against
this Act; and
(b) the screening officer reasonably
believes it is necessary to do so in order to:
(i) ensure that a person
who is not cleared is not in a cleared area or a cleared zone; or
(ii) maintain the integrity
of a cleared area or a cleared zone.
(2) If a person is restrained under subsection (1),
the screening officer may detain the person until the person can be dealt with
by a law enforcement officer.
97
Exercise of powers by screening officers
In exercising a power under this
Division, a screening officer must not use more force, or subject a person to
greater indignity, than is necessary and reasonable.
Part 6—Reporting aviation security incidents
Division 1—Simplified overview of Part
98
Simplified overview of Part
It is important, for aviation
security, to ensure that all aviation security incidents are appropriately
reported.
This Part establishes requirements to
report aviation security incidents and provides for the form and content of
such reports.
Division 2—Meaning of aviation security incident
99
Meaning of aviation security incident
Each of the following is an aviation
security incident:
(a) a threat of unlawful interference
with aviation;
(b) an unlawful interference with
aviation.
Division 3—Certain people must report incidents
100
Airport operators
(1) An aviation
industry participant who is an airport operator commits an offence if:
(a) the participant becomes aware of
an aviation security incident; and
(b) the participant fails to report
the incident as required by section 104 as soon as possible.
Penalty: 200 penalty units.
(2) Subsection (1) does not apply in
relation to a report that must be made to a particular person if:
(a) the participant believes, on
reasonable grounds, that the person is already aware of the incident; or
(b) the participant has a reasonable
excuse.
Note: A defendant bears an evidential burden in
relation to the matters in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(3) Subsection (1) is an offence of
strict liability.
101
Aircraft operators
(1) An
aviation industry participant who is an aircraft operator commits an offence
if:
(a) the participant becomes aware of
an aviation security incident; and
(b) the participant fails to report
the incident as required by section 105 as soon as possible.
Penalty: 200 penalty units.
(2) Subsection (1) does not apply in
relation to a report that must be made to a particular person if:
(a) the participant believes, on
reasonable grounds, that the person is already aware of the incident; or
(b) the participant has a reasonable
excuse.
Note: A defendant bears an evidential burden in
relation to the matters in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(3) Subsection (1) is an offence of
strict liability.
102
Persons with incident reporting responsibilities
(1) A person
with incident reporting responsibilities commits an offence if:
(a) the person becomes aware of an
aviation security incident; and
(b) the person fails to report the
incident as required by section 106 as soon as possible.
Penalty: For a person with incident reporting
responsibilities who is an aviation industry participant—100 penalty units.
For any other person with incident reporting
responsibilities—50 penalty units.
(2) Subsection (1) does not apply in
relation to a report that must be made to a particular person (the person
to be notified) if:
(a) the person with incident reporting
responsibilities believes, on reasonable grounds, that the person to be
notified is already aware of the incident; or
(b) the person with incident reporting
responsibilities has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matters in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(3) Subsection (1) is an offence of
strict liability.
(4) Each of the following is a person
with incident reporting responsibilities:
(a) an aviation security inspector;
(b) an airport security guard;
(c) a screening officer;
(d) an aviation industry participant
other than a participant who is:
(i) an airport operator;
or
(ii) an aircraft operator;
or
(iii) an employee (within
the definition of employee in section 9) of another aviation
industry participant.
103
Employees
(1) An employee of an aviation industry
participant commits an offence if:
(a) the employee becomes aware of an
aviation security incident; and
(b) the employee fails to report the
incident to the aviation industry participant as soon as possible.
Penalty: 50 penalty units.
(2) Subsection (1) does not apply if the
employee has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(3) Subsection (1) is an offence of
strict liability.
Division 4—Reporting requirements
104
Reporting by airport operators
(1) Aviation industry participants who are
airport operators must report aviation security incidents in accordance with
this section.
(2) An incident that relates to the airport
of another operator must be reported to that other operator.
(3) An incident that relates to the aircraft
of an aircraft operator must be reported to the aircraft operator.
(4) An incident that relates to the airport
of the airport operator must be reported to:
(a) the Secretary; and
(b) the Australian Federal Police or
the police force of a State or a Territory; and
(c) if it relates to a part of an
airport of the operator for which a lease or licence has been granted to
another person—that other person.
(5) However, the operator is not required to
report under paragraph (4)(c) if the incident:
(a) relates to the airport in general;
and
(b) is not specifically directed at
the part of the airport for which the lease or licence has been granted.
105
Reporting by aircraft operators
(1) Aviation industry participants who are
aircraft operators must report aviation security incidents in accordance with
this section.
(2) An incident that relates to an airport
must be reported to the operator of the airport.
(3) An incident that relates to the aircraft
of another aircraft operator must be reported to that other operator.
(4) An incident that relates to an aircraft
of the aircraft operator must be reported to:
(a) the Secretary; and
(b) the Australian Federal Police or
the police force of a State or a Territory.
(5) An incident that relates to an aircraft
of the aircraft operator and is:
(a) an unlawful interference with
aviation; or
(b) a threat of unlawful interference
with aviation that is assessed by the operator as credible; or
(c) a threat of unlawful interference
with aviation that the operator is unable to assess;
must be reported to:
(d) if the aircraft is in
flight—Airservices Australia; or
(e) if the aircraft is at an
airport—the operator of the airport.
106
Reporting by persons with incident reporting responsibilities
(1) A person with incident reporting
responsibilities must report aviation security incidents in
accordance with this section.
(2) Each incident must be reported to the
Secretary.
(3) An incident that relates to the airport
of an airport operator must be reported to the airport operator.
(4) An incident that relates to the aircraft
of an aircraft operator must be reported to the aircraft operator.
Division 5—Form and content of reports
107
How reports are to be made
(1) The Secretary may, by legislative
instrument, specify either or both of the following:
(a) information that must be included
in a report required by this Part;
(b) the way in which the report must
be made.
(3) If:
(a) a person reports an aviation
security incident; and
(b) the report does not comply with
any requirements that are in force under subsection (1) when the report is
made;
the report is taken, for the purposes of this Part, not to
have been made.
Part 7—Information‑gathering
Division 1—Simplified overview of Part
108
Simplified overview of Part
It is important, for aviation
security, for the Secretary to be able to collect certain information.
Division 2 gives the Secretary
the power to require security compliance information but limits the use of the
information in certain proceedings.
Division 3 gives the Secretary
the power to require aviation security information but limits the use of the
information in certain proceedings.
Division 2—Secretary may require security compliance information
109 Secretary
may require security compliance information
(1) Information that relates to compliance,
or failure to comply, with this Act is security compliance information.
(2) If the Secretary believes, on reasonable
grounds, that an aviation industry participant has security compliance
information, the Secretary may, by written notice given to the participant,
require the participant to give the information to the Secretary.
(3) The information must be given within the
period and in the form and manner specified in the notice. The period must not
be less than 14 days.
(4) Without limiting subsection (3), the
Secretary may specify in the notice any one or more of the following ways for
the participant to give the information:
(a) orally;
(b) in writing;
(c) by electronic transmission.
(5) A person commits an offence if the person
fails to comply with a notice under subsection (2).
Penalty for an offence against this subsection: 45 penalty
units.
110
Self‑incrimination
(1) A person is not excused from giving
security compliance information under section 109 on the ground that the
information might tend to incriminate the person or expose the person to a
penalty.
(2) However, if the person is a natural
person:
(a) the information; and
(b) the giving of the information; and
(c) any information, document or thing
obtained as a direct or indirect consequence of giving the information;
are not admissible in evidence against the person in a
criminal proceeding, or any other proceeding for the recovery of a penalty,
other than a proceeding under section 137.1 or 137.2 of the Criminal
Code that relates to the giving of the information.
Division 3—Secretary may require aviation security information
111
Secretary may require aviation security information
(1) Information that is not security
compliance information and is prescribed by the regulations for the purposes of
this section is aviation security information.
(2) Without limiting the kinds of information
that may be prescribed by regulations made under subsection (1), the
regulations may prescribe the following kinds of information as aviation
security information:
(a) statistics relating to the
screening of people, vehicles, goods or cargo for entry to cleared areas or
cleared zones;
(b) statistics relating to the people,
vehicles, goods or cargo that go through a screening process and:
(i) receive clearance as a
result of going through the screening process; or
(ii) do not receive
clearance as a result of going through the screening process and the reason or
reasons for not receiving clearance;
(c) information about activities
undertaken, or to be undertaken, to ensure that people, vehicles, goods or
cargo that have not received clearance are not in cleared areas or cleared
zones;
(d) information about activities
undertaken, or to be undertaken, at an airport for the purposes of safeguarding
against unlawful interferences with aviation;
(e) information about the controls
that apply, or will apply, to airside areas, airside security zones, airside
event zones, landside areas, landside security zones or landside event zones.
(3) If the Secretary believes, on reasonable
grounds, that an aviation industry participant has aviation security
information, the Secretary may, by written notice given to the participant,
require the participant to give the information to the Secretary.
(4) The information must be given within the
period and in the form and manner specified in the notice. The period must not
be less than 14 days.
(5) Without limiting subsection (4), the
Secretary may specify in the notice any one or more of the following ways for
the participant to give the information:
(a) orally;
(b) in writing;
(c) by electronic transmission.
(6) A person commits an offence if the person
fails to comply with a notice under subsection (3).
Penalty for an offence against this subsection: 45 penalty
units.
112
Self‑incrimination
(1) A person is not excused from giving
aviation security information under section 111 on the ground that the
information might tend to incriminate the person or expose the person to a
penalty.
(2) However, if the person is a natural
person:
(a) the information; and
(b) the giving of the information; and
(c) any information, document or thing
obtained as a direct or indirect consequence of giving the information;
are not admissible in evidence against the person in a
criminal proceeding, or any other proceeding for the recovery of a penalty,
other than a proceeding under section 137.1 or 137.2 of the Criminal
Code that relates to the giving of the information.
Part 8—Enforcement
Division 1—Simplified overview of Part
116
Simplified overview of Part
To ensure that persons comply with
their obligations under this Act, many provisions throughout the Act provide
for criminal offences. To provide flexibility in enforcing this Act, there is
also a range of enforcement options that can be used as an alternative to, or
in addition to, criminal prosecution. These enforcement options are covered by
this Part.
The enforcement options (and the
relevant Divisions) are as follows:
(a) infringement
notices (Division 2);
(b) enforcement
orders (Division 3);
(c) enforceable
undertakings (Division 3A);
(d) injunctions
(Division 4);
(e) demerit
points system (Division 5).
Division 2—Infringement notices
117
Infringement notices
(1) The regulations may make provision
enabling a person who is alleged to have committed an offence against this Act,
other than an offence against subsection 13(1), 46(3) or 47(3) or section 49,
to pay a penalty to the Commonwealth as an alternative to prosecution.
(2) The penalty must not exceed one‑fifth of
the maximum fine that a court could impose on the person as a penalty for that
offence.
Division 3—Enforcement orders
118
Simplified overview of Division
The Secretary may make enforcement
orders requiring specified people to take specified actions, where the
Secretary is of the opinion that the person has contravened this Act.
A person who contravenes an
enforcement order may be subject to an injunction.
119
Secretary may make enforcement orders
(1) The Secretary may make a written order
(an enforcement order):
(a) prohibiting or restricting
specified activities by the aviation industry participant named in the
enforcement order; or
(b) requiring the aviation industry
participant named in the enforcement order to take specified action.
(2) The Secretary may only make an
enforcement order if he or she reasonably believes that:
(a) the aviation industry participant
named in the enforcement order has contravened this Act; and
(b) it is necessary to make the order
to safeguard against unlawful interference with aviation.
(3) The enforcement order must:
(a) bear a clear and direct
relationship to the contravention; and
(b) be proportionate to the contravention.
(4) The enforcement order must not require
the payment of money to the Secretary (or any other person) other than an
amount of money that is already recoverable at law.
120
Commencement and duration of enforcement orders
(1) An
enforcement order comes into force:
(a) if a commencement time that is
after the day on which the order is given to the aviation industry participant
concerned is specified in the order—at that time; or
(b) otherwise—at the beginning of the
seventh day after it is given to the aviation industry participant concerned.
(2) The order remains in force:
(a) for the period (if any) specified
in the order; or
(b) until it is revoked by the
Secretary.
121
Reviews of enforcement orders
(1) The Secretary must:
(a) at intervals of not more than 3
months, review the enforcement order; and
(b) after each review, confirm, vary
or revoke the order by instrument in writing.
(2) The Secretary must revoke the order
unless he or she is satisfied that the order is still needed to safeguard
against unlawful interference with aviation.
(3) The Secretary must not vary the order
unless he or she is satisfied that the order as varied:
(a) adequately safeguards against
unlawful interference with aviation; and
(b) meets the requirements set out in
subsections 119(3) and (4).
(4) If an order is varied, the order
continues in force as varied.
122
Notice of enforcement orders
(1) As soon as practicable after making or
reviewing an enforcement order, the Secretary must cause the aviation industry
participant named in the order to be informed of the making of the order, or
the decision on the review, as the case requires.
(2) Failure to comply with this section does
not affect the validity of the order.
123
Complying with enforcement orders
(1) A person must not engage in conduct that
contravenes an enforcement order.
(2) If a person contravenes subsection (1),
the person does not commit an offence but may be subject to an injunction under
section 124.
Division 3A—Enforceable undertakings
123A
Acceptance of undertakings
(1) The Secretary may accept any of the
following undertakings:
(a) a written undertaking given by an
aviation industry participant that the participant will, in order to comply
with this Act, take specified action;
(b) a written undertaking given by an
aviation industry participant that the participant will, in order to comply
with this Act, refrain from taking specified action;
(c) a written undertaking given by an
aviation industry participant that the participant will take specified action
directed towards ensuring that the participant does not contravene this Act, or
is unlikely to contravene this Act, in the future.
(2) The undertaking must be expressed to be
an undertaking under this section.
(3) The participant may withdraw or vary the
undertaking at any time, but only with the written consent of the Secretary.
(4) The Secretary may, by written notice
given to the participant, cancel the undertaking.
123B
Enforcement of undertakings
(1) If:
(a) an aviation industry participant
has given an undertaking under section 123A; and
(b) the undertaking has not been
withdrawn or cancelled; and
(c) the Secretary considers that the
participant has breached the undertaking;
the Secretary may apply to the Federal Court for an order
under subsection (2).
(2) If the Federal Court is satisfied that
the participant has breached the undertaking, the Court may make any or all of
the following orders:
(a) an order directing the participant
to comply with the undertaking;
(b) an order directing the participant
to pay to the Commonwealth an amount up to the amount of any financial benefit
that the participant has obtained directly or indirectly and that is reasonably
attributable to the breach;
(c) any order that the Court considers
appropriate directing the participant to compensate any other person who has
suffered loss or damage as a result of the breach;
(d) any other order that the Court
considers appropriate.
Division 4—Injunctions
124
Injunctions
(1) If a person has engaged, is engaging or
is proposing to engage in any conduct in contravention of this Act, the Federal
Court may, on the application of the Secretary, grant an injunction:
(a) restraining the person from
engaging in the conduct; or
(b) requiring the person to do an act
or thing.
(2) On an application, the court may, if it
thinks it appropriate, grant an injunction by consent of all parties to the
proceedings, whether or not the court is satisfied that the person has engaged,
is engaging or is proposing to engage in any conduct in contravention of this
Act.
(3) The court may, if it thinks it desirable,
grant an interim injunction pending its determination of an application.
(4) The court is not to require the Secretary
or anyone else, as a condition of granting an interim injunction, to give an
undertaking as to damages.
(5) The court may discharge or vary an
injunction it has granted.
(6) The power to grant or vary an injunction
restraining a person from engaging in conduct may be exercised:
(a) whether or not it appears to the
court that the person intends to engage again, or to continue to engage, in
such conduct; and
(b) whether or not the person has
previously engaged in such conduct.
(7) The power to grant or vary an injunction
requiring a person to do an act or thing may be exercised:
(a) whether or not it appears to the
court that the person intends to refuse or fail again, or to continue to refuse
or fail, to do that act or thing; and
(b) whether or not the person has
previously refused or failed to do that act or thing and whether or not there
is an imminent danger of substantial damage to any person if the person refuses
or fails to do that act or thing.
Division 5—Demerit points system
125
Demerit points
(1) The regulations may establish a system
(the demerit points system) under which the approval of a
transport security program of an aviation industry participant who accrues a
prescribed number of demerit points may be cancelled.
Note: Section 26 deals with the cancellation of
the approval of programs under the demerit points system.
(2) The demerit points system must only allow
demerit points to be accrued if an aviation industry participant:
(a) is convicted or found guilty of an
offence against this Act; or
(b) under a scheme established under
regulations made under section 117, pays a penalty to the Commonwealth as
an alternative to prosecution.
(3) Without limiting the scheme that may be
established under subsection (1), the scheme may provide that different
provisions apply to different kinds of aviation industry participants or to
different classes of participants within a kind of aviation industry
participant.
Part 9—Review of decisions
126
Review of decisions by Administrative Appeals Tribunal
(1) Application may be made to the
Administrative Appeals Tribunal for a review of a decision by the Secretary:
(a) to refuse to approve a transport
security program under subsection 19(2) or (4); or
(b) to direct a participant to vary a
program under section 21; or
(c) to direct a participant to revise
a program under section 23; or
(ca) to refuse to approve alterations
of a program under section 23A; or
(d) to cancel a transport security
program under section 25 or 26; or
(e) to declare that a particular
airport, or a part of a particular airport, is a security controlled airport
under subsection 28(2); or
(ea) to assign a category to a
particular security controlled airport under subsection 28(6); or
(f) to determine under subsection
74G(1) that a person has an adverse aviation security status.
(2) To avoid doubt, paragraph (1)(f)
does not permit the Administrative Appeals Tribunal to review an adverse
security assessment or a qualified security assessment other than in accordance
with the provisions of the Australian Security Intelligence Organisation Act
1979 and the Administrative Appeals Tribunal Act 1975.
(3) In subsection (2):
adverse security assessment and qualified
security assessment have the same meanings as in the Australian
Security Intelligence Organisation Act 1979.
Note: Section 27A of the Administrative
Appeals Tribunal Act 1975 requires the decision‑maker to notify persons
whose interests are affected by the decision of the making of the decision and
their right to have the decision reviewed. In so notifying, the decision‑maker
must have regard to the Code of Practice determined under section 27B of
that Act.
Part 10—Miscellaneous
127
Delegation
(1) The Secretary may, by writing, delegate
all or any of his or her powers and functions under this Act to a person of the
following kind:
(a) an SES employee, or acting SES
employee, in the Department;
(aa) an SES employee in the Attorney‑General’s
Department;
(b) the Agency Head of an Agency that
carries on activities that relate to national security.
(1A) However, a delegation under
paragraph (1)(b) has no effect unless the Agency Head of the Agency agrees
to the delegation.
(2) The Secretary may, by writing, delegate
all or any of his or her powers and functions under this Act, other than powers
or functions under:
(a) subsection 71(1); or
(b) Division 3 or 3A of Part 8;
to an APS employee who holds, or is acting in, an
Executive Level 2, or equivalent, position in the Department.
(2A) The Secretary may, by writing, delegate all
or any of his or her powers and functions under Division 9 of Part 4
to a person holding, or performing the duties of, an office or position within
CASA that is at a level equivalent to that of an SES employee.
(3) In exercising powers or functions under a
delegation, the delegate must comply with any directions of the Secretary.
(4) In this section:
Attorney‑General’s Department means the
Department administered by the Minister who administers the Crimes Act 1914.
127A
Sub‑delegation
(1) If the Secretary delegates a power or
function to the Agency Head of an Agency under paragraph 127(1)(b), the Agency
Head may, by writing, sub‑delegate the power or function to an SES Band 3
employee in the Agency.
(2) Sections 34AA, 34AB and 34A of the Acts
Interpretation Act 1901 apply in relation to the sub‑delegation in a
corresponding way to the way in which they apply to a delegation.
(3) In exercising powers or functions under a
sub‑delegation, the delegate must comply with any directions of the Agency Head
of the Agency.
(4) An SES Band 3 employee is
an SES employee with a classification of Senior Executive Band 3, and includes
an SES employee who has been temporarily assigned duties that have been
allocated a classification of Senior Executive Band 3.
128
Compensation for damage to electronic equipment
(1) This section applies if:
(a) as a result of electronic
equipment being operated as mentioned in section 79:
(i) damage is caused to
the equipment; or
(ii) the data recorded on
the equipment is damaged; or
(iii) programs associated
with the use of the equipment, or with the use of the data, are damaged or
corrupted; and
(b) the damage or corruption occurs
because:
(i) insufficient care was
exercised in selecting the person who was to operate the equipment; or
(ii) insufficient care was
exercised by the person operating the equipment.
(2) The Commonwealth must pay the owner of
the equipment, or the user of the data or programs, such reasonable
compensation for the damage or corruption as the Commonwealth and the owner or
user agree on.
(3) However, if the owner or user and the
Commonwealth fail to agree, the owner or user may institute proceedings in the
Federal Court of Australia for such reasonable amount of compensation as the
Court determines.
(4) In determining the amount of compensation
payable, regard is to be had to whether the occupier of the premises, or the
occupier’s employees and agents, if they were available at the time, provided
any appropriate warning or guidance on the operation of the equipment.
(5) Compensation is payable out of money
appropriated by the Parliament.
129
Compensation for acquisition of property
(1) If:
(a) apart from this section, the
operation of this Act would result in the acquisition of property from a person
otherwise than on just terms; and
(b) the acquisition would be invalid
because of paragraph 51(xxxi) of the Constitution;
then the Commonwealth is liable to pay compensation of a
reasonable amount to the person in respect of the acquisition.
(2) If the Commonwealth and the person do not
agree on the amount of the compensation, the person may take proceedings in the
Federal Court for the recovery from the Commonwealth of such reasonable amount
of compensation as the Court determines.
(3) Compensation is payable out of money
appropriated by the Parliament.
130
Part 11 of the Airports Act 1996
Part 11 of the Airports Act 1996
has no effect to the extent to which it is inconsistent with this Act
(including regulations under this Act).
131
Scope of immunities and privileges
(1) Subject to this section, this Act does
not affect an immunity or privilege that is conferred by or under the Consular
Privileges and Immunities Act 1972, the Defence (Visiting Forces) Act
1963, the Diplomatic Privileges and Immunities Act 1967, the Foreign
States Immunities Act 1985 or any other Act.
Screening and clearing
(2) An immunity or privilege (other than one
that is accorded to diplomatic bags) conferred by or under an Act referred to
in subsection (1) does not limit the application of provisions of this Act
which specify requirements for screening or for receiving clearance.
132
Severability—additional effect of Act
(1) Without limiting its effect apart from
this section, this Act also has effect as provided by this section.
(2) This Act also has the effect that it
would have if its operation were expressly confined to acts or omissions of
corporations to which paragraph 51(xx) of the Constitution applies.
(3) This Act also has the effect that it
would have if its operation were expressly confined to acts or omissions that
occur at Commonwealth places.
(4) This Act also has the effect that it
would have if its operation were expressly confined to acts or omissions taking
place in the course of, or in relation to, trade or commerce:
(a) between Australia and places
outside Australia; or
(b) among the States; or
(c) within a Territory, between a
State and a Territory or between 2 Territories.
(5) This Act also has the effect that it
would have if its operation were expressly confined to acts or omissions taking
place in a Territory.
(6) This Act also has the effect that it
would have if its operation were expressly confined to acts or omissions taking
place outside Australia.
(7) This Act also has the effect that it
would have if its operation were expressly confined to matters:
(a) in relation to which the
Commonwealth is under an obligation under an international agreement; or
(b) that are of international concern.
133
Regulations
(1) The Governor‑General may make regulations
prescribing matters:
(a) required or permitted by this Act
to be prescribed; or
(b) necessary or convenient to be
prescribed for carrying out or giving effect to this Act.
Note: See section 134 for the extra‑territorial
operation of regulations.
(2) Without limiting subsection (1), the
regulations may:
(a) prescribe fees in respect of
matters under this Act (including the regulations); and
(b) prescribe penalties of not more
than 50 penalty units for offences against the regulations.
(3) Paragraph (2)(b) does not limit any
provision in this Act that provides for the regulations to prescribe penalties
higher than 50 penalty units.
134
Extra‑territorial operation of regulations
(1) Any provisions of the regulations may be
expressed to apply to and in relation to any of the following:
(a) Australian aircraft;
(b) aircraft (other than Australian
aircraft) engaged in Australian international carriage;
(c) passengers on board, and members
of the crew of, aircraft referred to in paragraph (a) or (b);
while the aircraft are outside Australian territory.
(2) In this Act:
airline means a person engaged in the
provision of air services.
Australian international carriage means the
carriage of passengers or freight, or both passengers and freight, whether
within or outside Australian territory, by an aircraft that:
(a) is operated by an airline that is
designated, nominated or otherwise similarly authorised by Australia under a
bilateral arrangement to engage in such carriage; or
(b) is operated by an airline incorporated
in Australia; or
(c) is operated by an airline having
its principal place of business in Australia; or
(d) is operated by an Australian
operator and is subject to section 15A or 17 of the Air Navigation Act
1920; or
(e) is operated jointly by:
(i) an airline referred to
in paragraph (a), (b) or (c); and
(ii) another person;
but is under the control of the
airline referred to in subparagraph (i) of this paragraph; or
(f) is subject to section 15A or
17 of the Air Navigation Act 1920 and is operated jointly by:
(i) an Australian
operator; and
(ii) another person;
but is under the control of the
Australian operator.
Australian operator means an aircraft
operator who:
(a) if the operator is an individual:
(i) is an Australian
citizen; or
(ii) is ordinarily resident
in Australia; or
(b) if the operator is a body
corporate:
(i) is incorporated in Australia; or
(ii) has its principal
place of business in Australia.
bilateral arrangement means an agreement or
arrangement between:
(a) Australia, or an entity or
organisation nominated or otherwise similarly authorised by Australia to enter
into the agreement or arrangement; and
(b) a foreign country;
under which the carriage by air of passengers or freight,
or both passengers and freight, between Australia and the foreign country is
permitted.
foreign country includes any region:
(a) that is part of a foreign country;
or
(b) that is under the protection of a
foreign country; or
(c) for whose international relations
a foreign country is responsible.
(3) For the purposes of this section:
(a) an aircraft is taken to be subject
to section 15A of the Air Navigation Act 1920 if the aircraft would
be taken to be subject to that section under paragraph 27(3)(c) of that Act;
and
(b) an aircraft is taken to be subject
to section 17 of the Air Navigation Act 1920 if the aircraft would
be taken to be subject to that section under paragraph 27(3)(d) of that Act.