EXPLANATORY STATEMENT
Select Legislative Instrument 2008 No. 271
Issued by the Authority of the Minister for Infrastructure, Transport, Regional Development and Local Government
Aviation Transport Security Act 2004
Civil Aviation Act 1988
Aviation Transport Security Amendment Regulations 2008 (No. 3)
Civil Aviation Amendment Regulations 2008 (No. 3)
Civil Aviation Safety Amendment Regulations 2008 (No. 2)
Section 133 of the Aviation Transport Security Act 2004 (the ATSA) 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.
More specifically, section 52 of the ATSA provides, in part, that 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.
Section 134 of the ATSA extends the regulation making power under the ATSA to allow regulations to be made with extraterritorial effect. Regulations would only have extraterritorial operation if so expressed, and would only apply to Australian aircraft or aircraft engaged in Australian international carriage, and the crew and passengers on board these aircraft.
Subsection 98(1) of the Civil Aviation Act 1988 (the CAA) provides, in part, 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 Regulations amend the Aviation Transport Security Regulations 2005 (the ATSR) to permit an air security officer to lawfully discharge his or her weapon while on board a prescribed air service, if it is for the purpose of preventing, or responding to, an act of unlawful interference with aviation. This provision has extraterritorial effect.
The ATSR does not currently contain a provision that specifically permits the lawful discharge of a firearm on board an aircraft by an air security officer. Instead, the authority for air security officers to use their firearms on board aircraft is currently derived from legislative exemptions issued by the Civil Aviation Safety Authority (CASA), pursuant to regulation 144 of the Civil Aviation Regulations 1988 (the CAR). The exemptions effectively allow an on duty air security officer to carry ammunition and discharge a firearm in an aircraft without the risk of prosecution. The current exemptions will expire on 30 June 2009.
The Regulations also amend both the CAR and the Civil Aviation Safety Regulations 1998 (the CASR), consequential to the amendments made to the ATSR.
Details of the amendment to the ATSR are set out Attachment A.
Details of the amendments to the CAR and the CASR are set out in Attachment B and Attachment C respectively.
The Regulations are legislative instruments for the purposes of the Legislative Instruments Act 2003.
The amendments contained in the Aviation Transport Security Amendment Regulations 2008 (No. 3) commenced on the day after they were registered on the Federal Register of Legislative Instruments.
The amendments contained in the Civil Aviation Amendment Regulations 2008 (No. 3) and the Civil Aviation Safety Amendment Regulations 2008 (No. 2) commenced immediately after the commencement of the Aviation Transport Security Amendment Regulations 2008 (No. 3).
These amendments have been settled in consultation with relevant Government agencies, namely, the Attorney-General’s Department and the Civil Aviation Safety Authority.
ATTACHMENT A
Details of the Aviation Transport Security Amendment Regulations 2008 (No. 3)
Regulation 1 – Name of Regulations
The title of the Regulations is the Aviation Transport Security Amendment Regulations 2008 (No. 3).
Regulation 2 – Commencement
This regulation provides for the Regulations to commence on the day after they are registered.
Regulation 3 – Amendment of Aviation Transport Security Regulations 2005
The Aviation Transport Security Regulations 2005 are amended as set out in Schedule 1.
Schedule 1 – Amendments
Item [1] – After regulation 4.59
Item [1] inserts a new regulation 4.59A in Division 4.2 of Part 7 of the ATSR, which authorises an air security officer (ASO) to lawfully use a firearm on board a prescribed aircraft for the purpose of safeguarding against unlawful interference with aviation.
Currently, the ATSR authorise ASOs to have a weapon in their possession on board a prescribed aircraft (subregulation 4.59(1)), but does not authorise ASOs to lawfully discharge their firearm on board an aircraft. Periodic legislative exemptions have been issued under the CAR to address this anomaly to allow ASOs to use their firearm on board prescribed aircraft. However, the exemptions expire on 30 June 2009.
This amendment provides ASOs with a permanent authority to lawfully discharge their firearms under new regulation 4.59A of the ATSR.
Subregulation 4.59A(2) makes it clear that new regulation 4.59A applies extraterritorially in relation to prescribed aircraft that are Australian aircraft, or aircraft (other than Australian aircraft) engaged in Australian international carriage. This ensures that if, for example, an aviation incident occurs on board an Australian aircraft while outside Australian territory, an on-duty ASO is able to respond to the incident without the risk of prosecution under Australian law.
ATTACHMENT B
Details of the Civil Aviation Amendment Regulations 2008 (No. 3)
Regulation 1 – Name of Regulations
The title of the Regulations is the Civil Aviation Amendment Regulations 2008 (No. 3).
Regulation 2 – Commencement
The Regulations commence immediately after the commencement of regulation 4.59A of the Aviation Transport Security Regulations 2005.
Regulation 3 – Amendment of Civil Aviation Regulations 1988
The Civil Aviation Regulations 1988 are amended as set out in Schedule 1.
Schedule 1 – Amendments
Item [1] – Subregulation 144(3), note
Item [1] omits the note after subregulation 144(3), a minor technical amendment consequential on item [2].
Item [2] – After subregulation 144(3)
Currently it is an offence under subregulation 144(1) of the CAR to discharge a firearm while on board an aircraft. It is a defence to subregulation 144(1) if the person has written permission from CASA (subregulation 144(3)). As noted above, the current CASA notices permitting ASOs to discharge their firearms on board aircraft expire after 30 June 2009. This means that an ASO who discharges his or her firearm on board an aircraft after 30 June 2009 would be committing an offence under regulation 144 of the CAR.
Item [2] inserts a new subregulation 144(4) which provides ASOs with a defence to a prosecution under subregulation 144(1).
Note 1 under subregulation 144(4) refers the reader to new regulation 4.59A of the ATSR which deals with the lawful use of firearms by ASOs on board aircraft for the purpose of safeguarding against unlawful interference with aviation.
Note 2 under subregulation 144(4) makes it clear that a defendant bears the evidential burden in relation to the defence provided under subregulations 144(3) and (4) of the CAR, pursuant to subsection 13.3(3) of the Criminal Code.
ATTACHMENT C
Details of the Civil Aviation Safety Amendment Regulations 2008 (No. 2)
Regulation 1 – Name of Regulations
The title of the Regulations is the Civil Aviation Safety Amendment Regulations 2008 (No. 2).
Regulation 2 – Commencement
The Regulations commence immediately after the commencement of regulation 4.59A of the Aviation Transport Security Regulations 2005.
Regulation 3 – Amendment of Civil Aviation Safety Regulations 1998
The Civil Aviation Safety Regulations 1998 are amended as set out in Schedule 1.
Schedule 1 – Amendments
Item [1] – Regulation 92.195
This amendment clarifies that the ammunition required by an ASO in the performance of his or her duty would be issued by:
(i) the Australian Federal Police for Australian ASOs; or
(ii) a relevant foreign government for foreign ASOs.
Item [1] is a minor technical amendment consequential on item [2].
Item [2] – Dictionary, definition of air security officer
Item [2] is a minor technical amendment which amends the definition of an ‘air security officer’ in the Dictionary of the CASR. The effect of the amendment is to capture foreign ASOs in the definition
This amendment is consequential to the amendments to the ATSR. It ensures that the rules affecting ASOs under the ATSR and the CASR apply equally to both domestic and foreign ASOs.