EXPLANATORY STATEMENT
Select Legislative Instrument 2006 No. 45
Minute No. 10 of 2006 – Minister for Transport and Regional Services
Subject - Aviation Transport Security Act 2004
Aviation Transport Security Amendment Regulations 2006 (No. 2)
Section 133 of the Aviation Transport Security Act 2004 (the Act) provides, in part, that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for giving effect to the Act.
The Aviation Transport Security Regulations 2005 (the Principal Regulations) set out, in part, the eligibility requirements for a person to be issued with an Aviation Security Identification Card (ASIC) and the requirements for the display of an ASIC in secure areas of security controlled airports, with regular public transport (RPT) services.
The purpose of the proposed Regulations is to:
- provide that the assessment of a person’s criminal history certificate provided in relation to their ASIC application must be undertaken by the Secretary of the Department of Transport and Regional Services;
- provide for a process to notify the issuing body and the applicant of the outcome of the assessment;
- clarify that an airport operator may lawfully allow access to a secure area of a security controlled airport to a person who has received an exemption from the ASIC display requirements from the Secretary under existing regulation 3.08; and
- make a number of other minor amendments to the Principle Regulations.
Attachment A outlines the scope of the proposed Regulations.
Further details of the proposed Regulations are set out in Attachment B.
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 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
Consistent with the recommendations from Sir John Wheeler, in his review of airport security and policing at Australian airports, a number of changes have been made to strengthen the ASIC regime.
These changes have included the strengthening of the disqualifying criteria that determine whether a person is eligible to be issued with an ASIC by removing grandfathering provisions in relation to criminal offences and the inclusion of a pattern of criminality, which comes into effect on 6 March 2006. Additionally, the Government has announced the establishment of a Background Checking Division (BCD) in the Attorney-General’s Department, to be operational on 1 July 2007, to assess the criminal history certificates of all ASIC and Maritime Security Identification Cards (MSIC) applicants.
Strengthening the disqualifying criteria will greatly increase the complexities involved in assessing a person’s criminal history certificate and increase the likelihood of inconsistent assessments across the 191 ASIC issuing bodies. While the approval of the BCD will alleviate this problem, it will not be operational until 1 July 2007, exacerbating the risk that an ineligible person may be issued with an ASIC prior to that date.
To provide consistency for the assessment of a person’s criminal history certificate prior to the operation of the BCD, the proposed amendments to the Aviation Transport Security Regulations 2005 will enable the Background Checking Unit, established within the Department of Transport and Regional Services to assess criminal records for all new MSICs, to assess criminal records for ASIC applicants from 6 March 2006.
The Aviation Transport Security Regulations 2005 allow the Secretary of the Department of Transport and Regional Services discretion to provide an exemption from ASIC display requirements to certain persons in certain circumstances. Before issuing an exemption the Secretary must consider why the exemption is necessary, the likely effect of the proposed exemption on aviation security at the airport, the duration of the exemption (if given) and any other relevant issues. This exemption is from holding and displaying an ASIC in a secure area of a security controlled airport, with regular public transport operations. The proposed amendment would clarify that an exempted person does not have to display an ASIC to enter a secure area if a person does not have to display an ASIC once they have entered the secure area.
The proposed Regulations would amend the Aviation Transport Security Regulations 2005 (the Principle Regulations) to specify that:
- the reference to a background check is a reference to a criminal history check conducted by the Australian Federal Police (AFP), an assessment by the Secretary of the Department of Transport and Regional Services (the Secretary) of the criminal history certificate provided by the AFP, a security assessment conducted by the Australian Security Intelligence Organisation (ASIO) and an unlawful non-citizen check conducted by the Department of Immigration and Multicultural Affairs referred to as “DIMIA” in the Principle Regulations. [Note: “DIMIA” is defined in the Principle Regulations as the Department administered by the Minister who administers the Migration Act 1958];
- an ASIC application must be submitted in a form approved by the Secretary and must be accompanied by signed consent form/s from the applicant for the AFP to conduct a criminal records check and for the applicant’s personal information to be passed between the AFP, the Department, ASIO, the Civil Aviation Safety Authority, DIMIA and the issuing body;
- an issuing body may not issue an ASIC to a person unless it has received notification from the Secretary that the person does not have an adverse criminal record;
- if the Secretary determines that a person has an adverse criminal record, the Secretary must direct the issuing body not to issue the ASIC and notify the person that the issuing body has been directed not to issue the ASIC on the basis that he or she has an adverse criminal record;
- it is an offence for an issuing body to issue an ASIC following a direction from the Secretary not to issue the ASIC;
- an issuing body must advise the Secretary in writing of a decision to refuse to issue an ASIC to a person on the basis that he or she has failed to satisfy the criteria in relation to lawful non-citizen status or has been disqualified from holding a ASIC due to display infringements;
- if a person has an adverse security assessment, the Secretary must direct the issuing body not to issue the ASIC and notify the person that the issuing body has been directed not to issue the ASIC;
- if a person has a qualified security assessment and the Secretary is satisfied that the holding of an ASIC by the person would constitute a threat to aviation security, the Secretary may direct the issuing body not to issue the ASIC and notify the person that the issuing body has been directed not to issue the ASIC;
- an application may be made under the Administrative Appeals Tribunal Act 1975 for review of a decision of the Secretary to direct an issuing body not to issue an ASIC to a person;
- a number of definitions have the same meaning as in existing acts and regulations; and
- a person to whom the Secretary has given an exemption from ASIC display requirements is defined as an exempt person in relation to access to the airside area of a security controlled airport.
Extensive consultation has been undertaken with the aviation industry through regular regional consultative and industry forums - the Aviation Security Advisory Forum, Regional Industry Consultative Meetings and the Identity Working Group. These forums allow consultation with key stakeholders including the Australian Airports Association, the Regional Aviation Association of Australia, Recreational Aviation Australia, the Aircraft Owners and Pilots Association of Australia and ASIC Issuing Bodies. Consultation has indicated that the proposed amendments would be welcomed by industry.
ATTACHMENT B
Details of the proposed Aviation Transport Security Amendment Regulations 2006 (No. 2)
Regulation 1 - Name of Regulation
This regulation provides that the title of the Regulations is the Aviation Transport Security Amendment Regulations 2006 (No. 2).
Regulation 2 - Commencement
This regulation provides for the Regulations to commence on 6 March 2006 to align with the commencement of Schedule 2 to the Aviation Transport Security Amendment Regulations 2005 (No.5). Schedule 2 deals with strengthening the disqualifying criteria for the issue of ASICs to include a pattern of criminality for non-custodial aviation security relevant offences and provide for more frequent background checking where a lower level of criminal activity is evident.
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 Schedule 1.
Regulation 4 – Transitional
This regulation provides that the amendments made by items [3], [6], [7], [8], [9] and [10] of Schedule 1 apply to all ASIC applications that have been submitted to an ASIC issuing body, but have not been finalised before 6 March 2006, and all ASIC applications submitted to an ASIC issuing body after 5 March 2006.
Schedule 1 - Amendments
Items [1], [2] –regulation 3.13
The first proposed amendment is a technical drafting amendment to allow the insertion of an additional class of person to be defined as an exempt person for the purposes of Division 3.3.
The second proposed amendment provides that a person to whom the Secretary of the Department of Transport and Regional Services has given an exemption from ASIC display requirements under regulation 3.08, is defined as an exempt person for the purposes of Division 3.3. This is to provide no doubt that a person provided an exemption under regulation 3.08 from ASIC display requirements while they are in the secure area of a security controlled airport does not have to display an ASIC to enter the secure area.
Item [3] – regulation 6.02
The proposed amendment to subregulation 6.02(1) provides that the following four conditions must be satisfied in relation to a background checking, in relation to a person: the AFP conducting a criminal records check; an assessment by the Secretary of the Department of Transport and Regional Services of the criminal record certificate to determine whether the person has an adverse criminal record; a security assessment conducted by ASIO; and, if the person is not an Australian citizen, an assessment by DIMIA of the person’s unlawful citizen status.
The proposed amendment to subregulation 6.02(2) provides guidance as to the definition of an adverse criminal record that applies to this regulation.
Items [4], [5] –subregulation 6.26(2) and paragraphs 6.26(2)(a) and (b)
The proposed amendment to subregulation 6.26(2) specifies that an ASIC application must be in a form approved by the Secretary of the Department of Transport and Regional Services.
The proposed amendment to paragraphs 6.26(2)(a) and (b) provides that an ASIC application must be accompanied by signed consent form/s from the applicant for the AFP to conduct a criminal records check and for the applicant’s personal information to be passed between the Department of Transport and Regional Services, the AFP, ASIO, the Civil Aviation Safety Authority, DIMIA and the issuing body.
Item [6] –regulation 6.27A
The proposed subregulation 6.27A(1) provides that if an issuing body proposes to issue an ASIC to a person, the Secretary of the Department of Transport and Regional Services must conduct an assessment of the person’s criminal history certificate received from the AFP to determine whether the person has an adverse criminal record.
The proposed subregulation 6.27A(2) provides that if the Secretary of the Department of Transport and Regional Services determines that a person does not have an adverse criminal record, the Secretary must issue a notice to the issuing body informing it that the person does not have an adverse criminal record based on an assessment of the person’s criminal history certificate provided by the AFP.
The proposed paragraph 6.27A(3)(a) provides that if the Secretary of the Department of Transport and Regional Services determines that a person has an adverse criminal record, the Secretary must issue a notice to the issuing body that includes a statement that the person has an adverse criminal record and a direction not to issue the ASIC to the person.
The proposed paragraph 6.27A(3)(b) provides that if the Secretary of the Department of Transport and Regional Services determines that a person has an adverse criminal record, the Secretary must issue a notice to the person stating that the issuing body has been directed not to issue the ASIC on the basis that the person has an adverse criminal record.
The proposed subregulation 6.27A(4) provides that it is an offence (with a maximum penalty of 20 penalty unit) for an issuing body to issue an ASIC to a person in contravention of a direction under subparagraph (3)(a)(ii).
The proposed subregulation 6.27A(5) provides guidance as to the definition of an adverse criminal record that applies to this regulation.
Item [7] –paragraph 6.28(1)(d)
The proposed amendment to paragraph 6.28(1)(d) would have the effect that if the Secretary of the Department of Transport and Regional Services has issued a notice informing an issuing body that an applicant does not have an adverse criminal record, on the basis of an assessment of a criminal history certificate received from the AFP, and the applicant meets the other requirements under regulation 6.28, the issuing body may issue the person with an ASIC.
Item [8] –subparagraph 6.28(1)(e)(ii)
The proposed amendment to subparagraph 6.28(1)(e)(ii) is a technical consequential amendment to specify that directions issued by the Secretary of the Department of Transport and Regional Services to an issuing body in relation to qualified security assessments will be issued under subregulation 6.31(3) instead of subregulation 6.31(2).
Item [9] –subregulation 6.30(1)
The proposed amendment to subregulation 6.30(1) is a technical amendment consequential to item [7] above. It would remove the redundant reference to
6.28 (1)(d).
Item [10] –regulation 6.31
The proposed paragraph 6.31(1)(a) provides that if a security assessment of a person is an adverse security assessment, the Secretary must give the issuing body that proposes to issue the ASIC to the person a written direction not to issue the ASIC.
The proposed paragraph 6.31(1)(b) provides that if a security assessment of a person is an adverse security assessment, the Secretary must give the person a notice stating that the Secretary has directed the issuing body not to issue the ASIC to the person.
The proposed subregulation 6.31(2) provides that subregulation 6.31(3) applies if a security assessment of a person is a qualified security assessment.
The proposed paragraph 6.31(3)(a) provides that the Secretary may give the issuing body a written direction not to issue an ASIC to a person on the basis that the security assessment of the person is a qualified security assessment and the Secretary is satisfied that the holding of an ASIC by the person would constitute a threat to aviation security. That is, the Secretary has discretion and can choose whether to make a direction. If the Secretary does not issue such a direction then, provided the applicant meets the other requirements, the person can be issued with an ASIC.
The proposed paragraph 6.31(3)(b) provides that if the Secretary gives the ASIC issuing body a written direction not to issue an ASIC on the basis of a qualified security assessment, the Secretary must give the person a notice stating that the Secretary has directed the issuing body not to issue the ASIC to the person.
The proposed subregulation 6.31(4) provides that it is an offence (with a maximum penalty of 20 penalty units) for an issuing body to issue an ASIC to a person in contravention of a direction under paragraphs (1)(a) or (3)(a).
The proposed amendment subregulation 6.31(5) provides guidance that the definitions of ‘adverse security assessment’ and ‘qualified security assessment’ in regulation 6.31 have the same meanings as in Part IV of the Australian Security Intelligence Organisation Act 1979.
Item [11] –Paragraph 8.02(3)(aa)
The proposed paragraph 8.02(3)(aa) would have the effect that an application may be made under the Administrative Appeals Tribunal Act 1975 to the Tribunal for review of a decision of the Secretary of the Department of Transport and Regional Services to direct an issuing body not to issue an ASIC to a person.