EXPLANATORY STATEMENT
Select Legislative Instrument 2012 No. 30
Subject – Aviation Transport Security Act 2004
Aviation Transport Security Amendment Regulation 2012 (No. 2)
The Aviation Transport Security Act 2004 (the Act) establishes a regulatory framework to protect the security of civil aviation in Australia.
Section 133 of the Act provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Act.
The Air Security Officer (ASO) program involves the placement of armed and specially trained Australian Federal Police (AFP) officers on select Australian domestic and international flights to safeguard Australian registered aircraft from in-flight attack. The Attorney-General’s Department has policy carriage of the ASO Program, and the AFP has responsibility for the operation of the program. The Department of Infrastructure and Transport manages some legislative provisions under the Aviation Transport Security Regulations 2005 (the Principal Regulations) affecting the ASO program.
The ASO Program is transitioning from a Protective Service Officer workforce to a sworn AFP police officer workforce. For this to occur, the definition of an ASO under regulation 1.03 of the Principal Regulations need to be amended. The proposed Regulation will expand the definition to also include members and special members of the AFP.
An outline of the proposed Regulation is set out in Attachment A.
Details on the Statement of Compatibility with Human Rights are set out in Attachment B.
The Act does not impose any conditions that need to be satisfied before the power to make the proposed Regulation may be exercised.
The proposed Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The proposed Regulation would commence on the day after it is registered on the Federal Register of Legislative Instruments.
The Department of Infrastructure and Transport consulted with the key stakeholders, the Attorney General’s Department and the Australian Federal Police.
ATTACHMENT A
Details of the proposed Aviation Transport Security Regulation 2012 (No. 2)
Regulation 1 – Name of Regulation
This regulation provides that the title of the Regulations is the Aviation Transport Security Amendment Regulation 2012 (No. 2).
Regulation 2 – Commencement
This regulation provides that the Regulations commence on the day after it is registered.
Regulation 3 – Amendment of Aviation Transport Security Regulations 2005
This regulation provides that the Principal Regulations are amended as set out in Schedule 1.
Schedule 1 – Amendments
[1] Regulation 1.03(a), definition of an Air Security Officer
This item amends the definition of an Air Security Officer to also include members and special members of the Australian Federal Police to cater for operational changes with the Australian Federal Police.
ATTACHMENT B
ATTACHMENT B
Overview
The Aviation Transport Security Amendment Regulation 2012 (No. 2) is a legislative instrument made under the Aviation Transport Security Act 2004, which establishes a regulatory framework to protect the security of civil aviation in Australia. Enacted by the Governor-General, this regulation aims to amend the definition of an Air Security Officer under the Aviation Transport Security Regulations 2005 to include members and special members of the Australian Federal Police. This amendment is necessary to facilitate the transition of the Air Security Officer program from a Protective Service Officer workforce to a sworn Australian Federal Police officer workforce. The Department of Infrastructure and Transport, in consultation with the Attorney-General’s Department and the Australian Federal Police, has overseen the development of this regulation to ensure it aligns with the operational changes within the Australian Federal Police. The regulation is intended to be consistent with the Act and is set to commence on the day after it is registered on the Federal Register of Legislative Instruments.
Scope and Application
The Aviation Transport Security Act 2004 (the Act) is a comprehensive legislative framework designed to ensure the security of civil aviation in Australia. The Act establishes the necessary regulatory mechanisms to protect Australian registered aircraft from potential threats, including in-flight attacks. It grants the Governor-General the authority to make regulations that are consistent with the Act, as outlined in section 133, which are essential for implementing the Act's provisions. The Act applies to persons, entities, and industries within the scope of civil aviation, including operators, passengers, and airport staff. The geographic reach of the Act is national, as it pertains to all civil aviation activities within Australia. The Act extends its application through subordinate instruments, such as the proposed Aviation Transport Security Amendment Regulation 2012 (No. 2), which seeks to update the definition of an Air Security Officer to include members and special members of the Australian Federal Police, reflecting the transition of the Air Security Officer program from a Protective Service Officer workforce to a sworn AFP police officer workforce. The regulation is set to commence on the day after its registration on the Federal Register of Legislative Instruments.
Key Provisions
The primary operative sections of the Aviation Transport Security Amendment Regulation 2012 (No. 2) (the "Regulation") include Regulation 1, which specifies the title of the Regulations as the "Aviation Transport Security Amendment Regulation 2002 (No. 2)"; Regulation 2, which states that the Regulations commence on the day after they are registered; and Regulation 3, which amends the definition of an Air Security Officer in the Aviation Transport Security Regulations 2005 (the "Principal Regulations"). Specifically, Schedule 1 of the Regulation amends regulation 1.03(a) of the Principal Regulations to include members and special members of the Australian Federal Police (AFP) within the definition of an Air Security Officer (section 1.03(a)). This amendment is necessary to accommodate the transition of the Air Security Officer (ASO) program from a workforce of Protective Service Officers to one comprised of sworn AFP officers.
The Regulation imposes specific obligations and requirements on the parties it governs. Primarily, it mandates that the definition of an ASO be expanded to include AFP members and special members. This change is integral for operational adjustments within the ASO program. The Department of Infrastructure and Transport, in collaboration with the Attorney-General’s Department and the AFP, ensures that the regulatory framework remains effective and relevant in light of these operational changes. These entities must ensure that all necessary modifications to training, deployment, and oversight of ASOs are implemented smoothly to maintain the security of Australian registered aircraft.
The Regulation does not explicitly outline specific offences, penalties, or consequences for breach within its text. However, any failure to comply with the amended definitions and requirements could potentially lead to significant security risks, given the critical role of ASOs in protecting civil aviation. The overarching Aviation Transport Security Act 2004 (the "Act") may impose penalties or sanctions for non-compliance with its provisions. Under the Act, breaches can result in substantial fines or imprisonment, depending on the severity of the offence and the discretion of the court. The maximum penalties are not detailed within the Regulation itself but are governed by the general provisions of the Act. It is crucial for all stakeholders to adhere strictly to the requirements to avoid any potential legal repercussions.