EXPLANATORY STATEMENT
Select Legislative Instrument 2005 No. 320
Issued by the Authority of the Minister for Transport and Regional Services
Subject - Aviation Transport Security Act 2004
Aviation Transport Security Amendment Regulations 2005 (No. 5)
Section 133 of the Aviation Transport Security Act 2004 (the Act) provides that the Governor-General may make regulations prescribing matters required or permitted by that Act to be prescribed, or necessary or convenient to be prescribed for giving effect to that Act and prescribe fees in respect of matters under that Act (including the regulations).
The Aviation Transport Security Regulations 2005 (the Principal Regulations) set out the issue and display requirements for Aviation Security Identification Cards (ASICs) in secure areas of security controlled airports, with regular public transport (RPT) services.
The purpose of the proposed Regulations is to:
- strengthen the disqualifying criteria for the issue of ASICs to include a pattern of criminality for non-custodial aviation security relevant offences and provide more frequent background checking where a lower level of criminality activity is evident;
- remove the mechanism whereby a person with a security designated authorisation (pilot, engineer and special pilot licence) may be issued with an ASIC without undergoing the more rigorous ASIC background checking processes;
- require persons under the age of 18 who are issued with a security designated authorisation to request or obtain a current aviation security status check within three months of their 18th birthday for their security designated authorisations to remain valid; and
- technical clarification of some of the regulations.
Attachment A outlines the scope of the proposed Regulations.
Further details of the proposed Regulations are set out in Attachment B.
Extensive consultations with key stakeholders in both metropolitan and regional and rural Australia have been undertaken through industry forums which have indicated that the amendments will be welcomed by industry.
The Act does not specify any conditions that need to be satisfied before the power to make the proposed Regulations may be exercised.
The proposed regulations would be a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The proposed regulations 1 to 3 and Schedule 1 would commence on 1 January 2006 and Schedule 2 would commence on 6 March 2006.
The Minute recommends that Regulations be made in the form proposed.
Authority:
Section 133 of the Aviation Transport Security Act 2004
ATTACHMENT A
The proposed Regulations would amend the Aviation Transport Security Regulations 2005 to specify that:
- the definition of imprisonment includes periodic detention, home based detention and detention until the rising of a court, but does not include an obligation to perform community service;
- a person who holds a security designated authorisation that is less than 2 years old, may be issued with an aviation security identification card (ASIC) for a period of 2 years following the successful completion of an ASIC background check;
- a person under the age of 18 who is issued with a security designated authorisation must request or obtain a current aviation security status check within 3 months of their 18th birthday for the security designated authorisation to remain valid;
- an individual would be disqualified from holding an ASIC where they have a criminal pattern of two or more non-custodial convictions for aviation security relevant offences and one or more of those convictions occurred in the 12 months prior to the relevant background check;
- an ASIC may be issued, conditional on further background checking being undertaken within 12 months, if an individual has two or more non-custodial convictions for aviation security relevant offences that are more than 12 months old prior to the relevant background check;
- the expiry date of an ASIC issued to an individual where more frequent background checks are required must be no longer than 12 months; and
- minor clarification has been made to some of the regulations without changing their effect.
ATTACHMENT B
Details of the proposed Aviation Transport Security Amendment Regulations 2005 (No. 5)
Regulation 1 - Name of Regulation
This regulation provides that the title of the Regulations is the Aviation Transport Security Amendment Regulations 2005 (No. 5).
Regulation 2 - Commencement
This regulation provides for regulations 1 to 3 and Schedule 1 to commence on
1 January 2006.
This regulation also provides for Schedule 2 to commence on 6 March 2006 to allow for further consultation with industry on the implementation of the proposed Regulations.
Regulation 3 - Amendment of the Aviation Transport Security Regulations 2005
This regulation provides that the Aviation Transport Security Regulations 2005 (‘the Principal Regulations’) are amended as set out in Schedules 1 and 2.
Schedule 1 - Amendments
Items [1], [2] -regulation 6.01
The first proposed amendment is a technical drafting change to insert the definition of the Hague Convention that has been removed from regulation 6.05 to co-locate it with the other definitions of Part 6 of the Principal Regulations. The effect has not been altered.
The second proposed amendment inserts a new definition of imprisonment for Part 6 of the Principal Regulations. The definition includes periodic detention, home based detention and detention until the rising of a court, but does not include an obligation to perform community service.
Item [3] -regulation 6.05
The proposed amendment to regulation 6.05 is a technical drafting change to remove the definition of the Hague Convention to co-locate it with the other definitions of Part 6 of the Principal Regulations and to provide a clearer reading text. The effect has not been altered.
Item [4] -subregulations 6.28(4) and 6.28(4), note
The proposed amendment to subregulation 6.28(4) provides that a person who holds a security designated authorisation that is less than 2 years old may be issued with an ASIC despite paragraphs 6.28(1)(a), (b) and (c) as long as he or she meets the criteria in paragraphs 6.28(2)(d), (e) and (f). This will ensure that all persons issued with an ASIC do not have an adverse criminal record and have not been disqualified from holding an ASIC for contravening display requirements.
The proposed inclusion of the note to subregulation 6.28(4) provides extra guidance that an ASIC issued to a person on the basis of subregulation 6.28(4) will only remain valid for two years following the completion of the relevant background check.
Item [5] -subregulation 6.32(2)
The proposed amendment to subregulation 6.32(2) would rectify a drafting error and clarify that the expiry of an ASIC must not be later than 2 years after the day on which the relevant background checks of the holder were completed.
Item [6] –regulation 6.55
The proposed amendment to subregulations 6.55(1), (2), and (3), are technical drafting changes to provide a clearer reading text. The effect has not been altered.
The proposed amendment to subregulation 6.55(4) provides that a person, issued with a security designated authorisation while under the age of 18, must request or obtain an aviation security status check within 3 months of their 18th birthday for their security designated authorisation to remain valid.
Schedule 2 - Amendments
Items [1], [2] -subregulations 6.28(2A) and 6.28(6)
The proposed amendment to subregulation 6.28(2A) provides that an individual would also be disqualified from holding an ASIC where they have a criminal pattern of two or more non-custodial convictions of aviation security related offences and one or more of the convictions occurred in the 12 months prior to the relevant background check.
The proposed new subregulation 6.28(6) provides that if an individual has two or more non-custodial convictions of aviation security related offences, that occurred more than 12 months prior to the relevant background check, an ASIC may be issued to that person conditional on the individual having a further background check within 12 months.
This will provide more frequent background checking of individuals who have a pattern of non-custodial offences.
Items [3], [4] -subregulations 6.32(2) and 6.32(4)
The proposed amendment to subregulation 6.32(2) provides that the expiry date of an ASIC is subject to subregulations 6.32(3) and (4).
The proposed new subregulation 6.32(4) provides that an ASIC issued to a person under subregulation 6.28(7) must expire no later than 12 months after the completion of the relevant background checks. This will ensure that any person issued with a conditional ASIC will be required to undergo further background checking within the required timeframe.
Item [5] –paragraphs 6.43(2)(d) and (e)
The proposed amendment to paragraphs 6.43(2)(d) and (e) are technical drafting changes to provide a clearer reading text. The effect has not been altered.