EXPLANATORY STATEMENT
Select Legislative Instrument 2007 No. 170
Issued by the Authority of the Minister for Transport and Regional Services
Aviation Transport Security Act 2004
Aviation Transport Security Amendment Regulations 2007 (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 carrying out or giving effect to the Act.
Paragraphs 36(2)(a), 37(2)(a) and 38(2)(a) of the Act provide that matters that may be dealt with by regulations include access to airside and landside areas and security zones (including conditions of entry, the issue and use of security passes and other identification systems).
The Aviation Transport Security Regulations 2005 (the Principal Regulations), in part, prescribe the necessary requirements for the issue of an Aviation Security Identification Card (ASIC).
The Regulations:
- describe AusCheck, the new division of the Attorney-General’s Department, as the coordinating body for background checking of ASIC applicants;
- provide for a staged transition of the background checking process for ASICs from the Department of Transport and Regional Services to AusCheck;
- formalise an exemption from ASIC display requirements for Australian Defence Force (ADF) personnel under certain conditions;
- clarify the use of unique identification numbers on replacement ASICs; and
- permit foreign ASIC applicants to use additional identification documents in order to verify their identity in their application.
Attachment A outlines the scope of the Regulations.
Further details of the Regulations are set out in Attachment B.
Regulations 1 to 3 of and Schedule 1 to the Regulations commences on 1 July 2007. Schedule 2 to the Regulations commence on 3 September 2007.
ATTACHMENT A
Scope of the Aviation Transport Security Amendment Regulations 2007 (No. 2)
The Regulations amend the Aviation Transport Security Regulations 2005 (the Principal Regulations) to specify that:
- between 1 July 2007 and 3 September 2007 a transitional period allows either the Secretary of the Department of Transport and Regional Services (Secretary DOTARS) or the Secretary of the Attorney-General’s Department (Secretary AGD) to conduct background checks for Aviation Security Identification Card (ASIC) applicants;
- from 3 September 2007, all new ASIC applicants’ background checks will be coordinated by the Secretary AGD under the AusCheck Scheme. Applications that were received by the Australian Federal Police before this date will still be assessed by the Secretary DOTARS until their completion;
- the amendment to the definition of background check is consistent with the AusCheck Act 2007 definition. Other additional definition amendments are included to assist in the interpretation of the Principal Regulations;
- administrative processes surrounding the assessment and notification of criminal history and security assessments (except qualified security assessments) are removed from the Principal Regulations to avoid duplication with the AusCheck Regulations 2007.
- for persons with a qualified security assessment, the Secretary DOTARS is still required to determine if that person is a threat to aviation security. The Secretary DOTARS will notify the issuing body, applicant and if appropriate, the Secretary AGD of the decision.
- ASIC issuing bodies may apply for a background check for a person who is either applying for an ASIC or is hired by the issuing body to issue ASICs. Before a person may issue ASICs and at least every two years thereafter, they must have been background checked against the criteria in the Principal Regulations;
- when a replacement ASIC is issued to a person, that ASIC must have a number, unique to that issuing body;
- persons that have a lower level pattern of criminal history than is the case for an ‘adverse criminal record’ and who require background checking every 12 months will be known as having a ‘qualified criminal record’;
- under certain conditions members of the ADF and associated forces are exempt from the ASIC display requirements; and
- foreign ASIC applicants may use photographic flight crew licences issued by an International Civil Aviation Organization contracting state or foreign photographic drivers licences as secondary or tertiary identification documents respectively, on the condition that they are presented with a valid passport.
ASIC applicants are currently assessed by the Secretary DOTARS against a specified criteria outlined in the Principal Regulations.
On 1 July 2007, a new division within the Attorney-General’s Department (AGD), AusCheck, will commence coordinating the background checks for applicants of ASICs. AusCheck will notify issuing bodies and applicants of the outcomes of assessments and maintain an up-to-date database of all ASIC applicants and cardholders.
A transition period between 1 July 2007 and 3 September 2007 will allow both AusCheck and the Secretary DOTARS to conduct the background checks until AusCheck is fully operational on 3 September 2007. AusCheck will conduct the background checks under the AusCheck Scheme against the criteria outlined in the Principal Regulations and the AusCheck Regulations 2007. The Secretary DOTARS will continue to conduct the background checks as it has done so previously until the end of the transition period. The Department of Transport and Regional Services will retain policy responsibility for the criteria set out in the Principal Regulations for determining whether a person has an adverse criminal record or qualified criminal record.
The Australian Defence Force (ADF) has a temporary exemption, due to expire 30 June 2007, from displaying ASICs in secure areas. The amendments formalize this exemption in the Principal Regulations. The permanent exemption from the requirement to display an ASIC in the secure areas of security controlled airports is for:
a) ADF members; and
b) visiting force members, who are on training, exercises or operations with the ADF.
The exemption is subject to the condition that the member is:
- on duty, and involved in the operation of an aircraft, or involved in supporting the operation of an aircraft; and
- in uniform or other role appropriate clothing; and
- displaying proper identification as a member of a defence force.
Foreign applicants for ASICs and flight crew licences experience difficulties supplying appropriate identification documents in accordance with the Principal Regulations as the documents that are permitted are primarily Australian identification documents. The amendments address the issues faced by foreign ASIC applicants and allow foreign applicants who provide valid passports as primary identification documents, the ability to use additional items as proof of identity. These additional items include:
- a photographic flight crew licence issued by an ICAO Contracting State as a secondary identification document; or
- a photographic foreign driver’s licence as a tertiary identification document.
During the preparation of the Regulations, the Government consulted with ASIC issuing bodies.
ATTACHMENT B
Details of the Aviation Transport Security Amendment Regulations 2007 (No. 2)
Regulation 1 – Name of Regulations
This regulation provides that the title of the Regulations is the Aviation Transport Security Amendment Regulations 2007 (No. 2)
Regulation 2 – Commencement
This regulation provides for regulations 1 to 3 of and Schedule 1 of the Regulations to commence on 1 July 2007 and provides for the transition period leading up to the full operation of AusCheck on 3 September 2007. The transition period allows both the Secretary of the Department of Transport and Regional Services (Secretary DOTARS) and the Secretary of the Attorney-General’s Department (Secretary AGD) to conduct background checks to satisfy ASIC applicant eligibility requirements. Schedule 1 also contains other minor amendments to the Aviation Transport Security Regulations 2005 (the Principal Regulations) that are not relevant to AusCheck’s commencement.
This regulation also provides that Schedule 2 commences on 3 September 2007. This marks the end of the transition period when AusCheck will be fully operational and responsible for all new Aviation Security Identification Card (ASIC) applicants’ background checks.
Regulation 3 – Amendment of Aviation Transport Security Regulations 2005
This regulation provides that the Principal Regulations are amended as set out in Schedule 1 and Schedule 2.
Schedule 1 – Amendments commencing on 1 July 2007
Item [1] – Regulation 3.06
The amendment to regulation 3.06 provides a conditional exemption from the display requirements for Australian Defence Force (ADF) members and visiting force members associated with the ADF. This item expands the current exemption under regulation 3.06 for ADF members who were on duty guarding an aircraft, to those involved in the operation of an aircraft or in supporting the operation of an aircraft. This item formalises a temporary exemption held by the ADF, under regulation 3.08, that expires on 30 June 2007.
Item [2] – Regulation 6.01
This amendment to regulation 6.01 relocates the description of ‘adverse criminal record’ to the definition section of Part 6 for ease of reference.
Item [3] – Regulation 6.01, after definition of ASIO
This definition provides guidance that, for the purposes of Part 6, the definition of ‘AusCheck Scheme’ is the scheme prescribed in section 8 of the AusCheck Act 2007.
Item [4] – Regulation 6.01, paragraph (a) of the definition of conviction
The amendment to the definition of ‘conviction’ provides guidance to clarify how spent convictions within the Crimes Act 1914 are applicable to Part 6 of the Principal Regulations. The intention is to make it clear that, when a background check is conducted, a conviction which would otherwise be spent may be taken into account if there has been another conviction during the waiting period.
Item [5] – Regulation 6.01, after definition of conviction
The addition of notes to regulation 6.01 aids in the interpretation of the definition of ‘conviction’.
Item [6] - Regulation 6.01, after definition of issuing body
This item provides a definition of ‘operational need’ for the purposes of Part 6 of the Principal Regulations. A person has an operational need for an ASIC if they require frequent access to secure parts of an airport that requires the display of an ASIC. These airports are security controlled airports with regular public transport operations. The person’s duties or requirement to access the secure area must be related to the operation of an airport or an aircraft.
Item [7] – Regulation 6.01, after definition of program purposes
This amendment to regulation 6.01 adopts the definition of ‘qualified criminal record’ which was previously only used for transitional ASIC holders and allows for a background check to assess against the criteria for both an ‘adverse criminal record’ and a ‘qualified criminal record’.
Item [8] – Regulation 6.01, before definition of security assessment
This amendment clarifies that references to the ‘Secretary AGD’ within Part 6 of the Principal Regulations refer to the Secretary AGD who is responsible for administering the AusCheck Scheme.
Item [9] - Regulation 6.01, notes 1-4 after definition of sentence
The amendment to regulation 6.01 omits notes 1-4 which are to be more appropriately inserted after that term.
Item [10] – After regulation 6.01
These amendments to regulation 6.01 relocate the definitions of ‘adverse criminal record’ and ‘qualified criminal record’ to the beginning of Part 6. The definitions have been amended so as to make it clear that when considering whether there has been any convictions in the previous 12 months this is to be considered from the date of the relevant background check.
Item [11] – Paragraph 6.02 (c)
The amendment to regulation 6.02 provides for background checks that will be conducted under the AusCheck Scheme by the Secretary AGD. For checks conducted by the Secretary AGD, references to background checks are assessments of the items specified in section 5 of the AusCheck Act 2007. Background checks that are conducted by the Secretary DOTARS retain the original definition.
Item [12] – After subregulation 6.04 (3)
Subregulation 6.03 (3A) provides for foreign ASIC applicants that experience difficulties supplying the required identification documents in accordance with the Principal Regulations. The amendment allows a foreign applicant the ability to use a photographic flight crew licence issued by an International Civil Aviation Organization contracting State as a secondary identification document on the condition that they provide a valid passport as a primary identification document.
Item [13] – After subregulation 6.04 (5)
Subregulation 6.04 (6) provides for foreign ASIC applicants that experience difficulties supplying the required identification documents in accordance with the Principal Regulations. The amendment allows a foreign applicant the ability to use a photographic foreign driver’s licence as a tertiary identification document on the condition that they provide a valid passport as a primary identification document.
Item [14] – Subregulations 6.17 (1) and (2)
These amendments ensure the consistent use of the term ‘operational need’.
Item [15] – Paragraphs 6.23 (2) (c) and (4) (b)
These amendments ensure the consistent use of the term ‘operational need’.
Item [16] – Subregulation 6.26 (1)
The amendment to subregulation 6.26 (1) removes reference to the requirement for frequent access to secure areas at an airport, as the effect of the definition of ‘operational need’ renders this subregulation redundant.
Item [17] – Subregulation 6.26 (2)
The amendment to subregulation 6.26 (2) is to ensure ASIC applicants that are being background checked by the Secretary DOTARS, and not under the AusCheck scheme, continue to provide the required consent documents.
Item [18] – Regulation 6.26A, definition of adverse criminal record
This is a technical drafting amendment to allow for the relocation of the ‘adverse criminal record’ definition to regulation 6.01 in item [2].
Item [19] – After regulation 6.27
Regulation 6.27AA provides issuing bodies the ability to apply for a background check through the AusCheck Scheme.
Subregulation 6.26AA (1) clarifies the triggers that require an issuing body to apply the Secretary AGD for a background check. These triggers are when an issue body proposes to issue an ASIC to an applicant and/or when a person is employed to issue ASICs.
Subregulation 6.26AA (2) provides guidance for when a person employed to issue ASICs must be background checked. A person employed to issue ASICs must have a background check before they begin to issue ASICs and every 2 years thereafter, unless required to have a background check earlier, for example, because they have a qualified criminal record and are required to have a background check every year.
Item [20] – Before subregulation 6.27A (1)
Subregulation 6.27A (1A) is to enable the Secretary DOTARS to continue assessing background checks for ASIC applicants who are not being assessed through the AusCheck Scheme until 3 September 2007. The administrative process for assessment under the AusCheck Scheme, including the giving of notices, is provided for in the AusCheck Regulations 2007. The processes outlined in regulation 6.27A do not apply to the Secretary AGD when conducting a background check under the Auscheck Scheme.
Item [21] – Subregulation 6.28 (2A)
Subregulation 6.28 (2A) omits the definition of ‘adverse criminal record’. This definition is relocated to regulation 6.01 (2) as described in item [10]. The amendment also allows a notice given under paragraph 6.28(1) (d) by the Secretary AGD to be an acceptable form of notification that a person does not have an adverse criminal record.
Item [22] – Subregulation 6.29 (1), including the note
The amendment to subregulation 6.29 (1) permits an issuing body to apply to the Secretary DOTARS for approval to issue an ASIC to a person that has either an adverse criminal record or is disqualified under regulation 6.48 from holding an ASIC. The effect of the amendment is that an issuing body may apply to the Secretary DOTARS whether the assessment of the person’s criminal history was made by the Secretary DOTARS or under the AusCheck Scheme.
Item [23] Subregulation 6.29 (5)
The amendment to subregulation 6.29 (5) removes the reference to paragraph 6.28 (1) (d) and instead describes the reason for the ineligibility for an ASIC. This is consequential to the transitional period where the assessment of a person’s criminal history may have been either undertaken by the Secretary DOTARS or under the AusCheck Scheme.
Item [24] – Before subregulation 6.31 (1)
The new subregulation 6.31(1A) ensures that subregulation 6.31 (1) only applies to those ASIC applicants who’s background check is being assessed by the Secretary DOTARS and not through the AusCheck Scheme.
Item [25] – After subregulation 6.35 (3)
Subregulation 6.35 (3A) describes that a replacement ASIC, due for example to being lost, stolen or destroyed, must have a new identifying number, unique to the issuing body. This is to make it clear that a replacement ASIC must not bear the original number given upon initial issue.
Item [26] – Subregulation 6.42A (3), definition of qualified criminal record
The omission of subregulation 6.42A (3) is consequential of the relocation of the definition of ‘qualified criminal record’ to subregulation 6.01 (3) as outlined in item [10].
Item [27] – Subregulation 6.42D (3)
The omission of subregulation 6.42D (3) is consequential to the relocation of the definition of ‘qualified criminal record’ to subregulation 6.01 (3) as outlined in item [10].
Item [28] – Paragraph 6.43 (2) (f)
The amendment to paragraph 6.43(2)(f) is a technical drafting amendment to correct a discrepancy in the Principal Regulations of the omission of subregulation (e). The amendment also ensures the consistent use of the term ‘operational need’. This amendment does not alter the outcome of the Principal Regulations.
Item [29] – Subregulation 6.44 (1)
The amendment to subregulation 6.44 (1) is a technical drafting amendment, consequential to the amendment to paragraph 6.43 (2) (f) in item [28].
Item [30] – Paragraph 6.45 (1) (d)
The amendment to paragraph 6.45 (1) (d) ensures the consistent use of the term ‘operational need’.
Schedule 2 – Amendments commencing on 3 September 2007
Item [1] – Regulation 6.01, before definition of conviction
The amendment to regulation 6.01 provides guidance that the definition for ‘background checks’ is an assessment of any of the items specified in section 5 of the AusCheck Act 2007. The amendment omits paragraphs of the definition that were relevant when the Secretary DOTARS was conducting background checks.
Item [2] – Regulation 6.02
The omission of regulation 6.02 is a technical drafting amendment to allow for the relocation of the description of a ‘background check’ to the definition section of regulation 6.01 as outlined in item [1] of Schedule 2.
Item [3] – Regulation 6.26
The amendment to subregulation 6.26 (1) omits words which will be unnecessary with the definition of ‘operational need’ inserted by item [6] in Schedule 1.
The amendment omits subregulation 6.26 (2). This is consequential to the Secretary AGD becoming responsible for ASIC applicants being aware of how their personal information will be used and disclosed. This information is included in the AusCheck Regulations 2007.
Item [4] – Regulation 6.27A
The amendment omits regulation 6.27A, which relates to the administrative process of the Secretary DOTARS conducting assessments of criminal history certificates. This is due to the assessment of criminal histories being conducted by the Secretary AGD, under the AusCheck Scheme. The administration process involved in this assessment is outlined in the AusCheck Regulations 2007.
Item [5] – Regulation 6.28
This item would insert a new regulation 6.27B and amend current regulation 6.28. Regulation 6.27B applies to issuing bodies that applied to the Australian Federal Police prior to 3 September 2007 for a background check of an ASIC applicant. The Secretary DOTARS will continue to process these applications under the Principal Regulations that applied previous to 3 September 2007 until the process is completed.
Regulation 6.28 describes ASIC issue requirements that must be satisfied before the issuing body can issue an ASIC. The amendments to regulation 6.28 clarifies that the Secretary AGD is responsible for background checking and that the relevant notices to the issuing body regarding criminal history are provided by the Secretary AGD.
Notification of adverse or non-adverse security assessments will be notified by the Secretary AGD, however, the Secretary DOTARS will notify issuing bodies of the eligibility for an ASIC of a person who has a qualified security assessment.
The amendment to subregulation 6.28 (7) requires that a person that has a qualified criminal record must be background checked every 12 months. This amendment to subregulation 6.28(7) does not materially alter the effect of the Principal Regulations.
The amendment to subregulation 6.28 (7) requires that a person that has a qualified criminal record must be background checked every 12 months. This amendment to subregulation 6.28(7) does not materially alter the effect of the Principal Regulations.
Item [6] – Regulation 6.31
The amendment to regulation 6.31 removes the administration process surrounding persons with adverse security assessments. This role is now the responsibility of the Secretary AGD. The AusCheck Regulations 2007 provides for the administration process involved with adverse security assessments. The assessment of whether a person who has a qualified security assessment is a threat to aviation security remains with the Secretary DOTARS who will notify the applicant, issuing body and Secretary AGD of the decision of whether the person is a threat to aviation security.
Item [7] – After regulation 6.31
The new regulation 6.31A requires the Secretary DOTARS to inform the Secretary AGD, if a decision has been made to approve the issue or refuse to approve the issue an ASIC to a person who has an adverse criminal record or if a decision has been made that a person with a qualified security assessment is or is not considered a threat to the security of aviation transport.
Item [8] – Regulation 6.42A, note
The amendment to regulation 6.42A omits the note as it is no longer required due to the completion of the review of transitional ASIC holders.
Item [9] – Regulation 6.54, note
The amendment to the note in regulation 6.54 omits the words ‘under this Part’. Due to background checks being conducted under the AusCheck Act 2007 the reference to ‘under this Part’ is no longer an accurate reflection of the process.