Aviation Transport Security Amendment Regulations 2009 (No. 5)

Administered by Department of Infrastructure, Transport, Regional Development, Communications, Sport and the Arts

Legislation au F2009L04406 Regulations Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

Select Legislative Instrument 2009 No. 377

 

 
Issued by the Authority of the Minister for Infrastructure, Transport, Regional Development and Local Government
 
Aviation Transport Security Act 2004
 
Aviation Transport Security Amendment Regulations 2009 (No. 5)

 

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.

 

More specifically, section 62 of the Act provides, in part, that the regulations may, for the purposes of safeguarding against unlawful interference with aviation, prescribe requirements in relation to baggage that is loaded, or is intended to be loaded, onto a prescribed aircraft.

 

The Aviation Transport Security Regulations 2005 (the Principal Regulations) require that items of checked baggage be removed from an aircraft following a flight diversion, where the passenger who checked the baggage in does not re-board or remain onboard the aircraft.  However, where it can be demonstrated that a passenger could not have influenced a flight diversion, there is no security impediment for the baggage to remain on board the aircraft without the passenger (owner of the baggage) also onboard.

 

The Aviation Transport Security Amendment Regulations 2009 (the Regulations) amend the Principal Regulations to permit an operator of a prescribed air service to keep an item of checked baggage onboard an aircraft following diversion of the flight from its scheduled destination to an alternative destination, where the passenger who checked the baggage in does not re-board, or remain on board the aircraft. 

 

The Regulations apply in those circumstances where an aircraft has been diverted by the pilot in command due to:

  • meteorological conditions;
  • aircraft or equipment malfunction;
  • a direction given by air traffic control, the Civil Aviation Safety Authority or the Secretary of the Department of Infrastructure, Transport, Regional Development and Local Government (the Secretary);
  • an emergency at the destination airport;
  • curfew restrictions; or,
  • concerns with the aircraft’s fuel supply.

 

Limiting the provision of the Regulations to these circumstances satisfies security considerations, because the passengers on the flight do not have the opportunity to influence the decision to divert the flight.  The Secretary also has the power to approve, on a case-by-case basis, items of checked baggage that may remain onboard an aircraft following a flight diversion.

 

A Regulation Impact Statement is not required for the Regulations because they have low or no impact on business.

 

The Regulations have been settled in consultation with aircraft operators.

 

Details of the amendment to the Principal Regulations are set out Attachment A.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The Regulations commenced on the day after they were registered on the Federal Register of Legislative Instruments.

 

 

 

 


ATTACHMENT A

 

Details of the Aviation Transport Security Amendment Regulations 2009 (No. 5)

Regulation 1 – Name of Regulations

 

The title of the Regulations is the Aviation Transport Security Amendment Regulations 2009 (No. 5).

 

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] – Regulation 1.03

 

This amendment inserts the definition for “air traffic control”.

 

Item [2] – Subparagraph 2.38(a)(ii)

 

Regulation 2.38 prescribes what an aircraft operator’s Transport Security Program must include for passenger and baggage reconciliation.  This amendment inserts subparagraph 2.38(a)(ii) which permits checked baggage to remain onboard aircraft in certain circumstances.

 

Item [3] – Paragraph 4.21(4)(c)  

 

This amendment is a minor drafting amendment which replaces the word connect with match.

 

Item [4] – Paragraph 4.21(7)(b)

 

This amendment is a minor drafting amendment and is consequential to Item [5] below.

 

Item [5] – After paragraph 4.21(7)(b)

 

This amendment inserts subparagraph 4.21(7)(c) which expands the passenger to checked baggage reconciliation requirements to include the new provision inserted by Item [6] below.

 

Item [6] – After regulation 4.21   

 

Prior to the commencement of these Regulations, in cases of flight diversions, an aircraft operator had to remove items of checked baggage no matter what the reason for the diversion, if the passenger who checked the baggage in did not re-board or remain onboard the aircraft.  In circumstances where a passenger has no control over an aircraft diverting to an alternative airport there are no security reasons for the removal of such checked baggage.  Item [6] inserts a new regulation 4.21A which rectifies this anomaly.  

 

This regulation permits an operator of a prescribed air service to keep an item of checked baggage onboard an aircraft following diversion of the flight from its scheduled destination to an alternative destination, where the passenger who checked the baggage in does not re-board, or remain on board, the aircraft.  This will apply only where a flight has diverted due to:

  • meteorological conditions;
  • aircraft or equipment malfunction;
  • a direction given by air traffic control, the Civil Aviation Safety Authority or the Secretary;
  • an emergency at the destination airport;
  • curfew restrictions; or,
  • concerns with the aircraft’s fuel supply. 

 

If a flight has diverted for any other reason, the Secretary may give an approval for an item of checked baggage to remain onboard provided there are no safety or security concerns.  This approval must be given prior to the aircraft departing from the airport to which the flight has diverted.  In all other cases such items of checked baggage must be removed from the aircraft prior to departure.

 

  

 

 

 

 

 

Overview

The Aviation Transport Security Amendment Regulations 2009 (No. 5) were introduced to amend the Aviation Transport Security Regulations 2005 under the authority of the Minister for Infrastructure, Transport, Regional Development and Local Government. This amendment responds to a specific gap identified in the existing regulations concerning the handling of checked baggage when flights are diverted from their scheduled destinations. The primary objective of the amendment is to address security concerns while maintaining operational efficiency by allowing checked baggage to remain onboard in certain diversion scenarios where the passenger cannot influence the diversion, thereby reducing unnecessary administrative burdens on airlines and airports. These regulations were enacted to ensure that security protocols are appropriately balanced with practical considerations in the aviation industry. The enacted body responsible for these regulations is the Parliament of Australia, through the Aviation Transport Security Act 2004, which established the framework for aviation security regulations. The policy objective behind these amendments is to enhance the security of civil aviation in Australia by ensuring that baggage handling procedures are both effective and practical, thereby facilitating smoother operations during unforeseen flight diversions without compromising safety and security.

Scope and Application

The Aviation Transport Security Amendment Regulations 2009 (No. 5) amend the Aviation Transport Security Regulations 2005, which implement the Aviation Transport Security Act 2004. The Act establishes a regulatory framework to protect the security of civil aviation in Australia, and applies to the Commonwealth, its agencies, and to the provision of services, including air transport services, that are subject to the Act. The Regulations are made under the authority of the Minister for Infrastructure, Transport, Regional Development and Local Government, and apply to operators of prescribed air services within Australia and its territories. The Regulations permit an operator of a prescribed air service to keep an item of checked baggage onboard an aircraft following the diversion of the flight from its scheduled destination to an alternative destination, where the passenger who checked the baggage in does not re-board or remain onboard the aircraft. This applies only where a flight has diverted due to meteorological conditions, aircraft or equipment malfunction, a direction given by air traffic control, the Civil Aviation Safety Authority or the Secretary, an emergency at the destination airport, curfew restrictions, or concerns with the aircraft’s fuel supply. In all other cases, such items of checked baggage must be removed from the aircraft prior to departure. The Secretary may give an approval for an item of checked baggage to remain onboard provided there are no safety or security concerns, and this approval must be given prior to the aircraft departing from the airport to which the flight has diverted. The Regulations have been settled in consultation with aircraft operators and have been determined to have low or no impact on business, thus a Regulation Impact Statement is not required. The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003, and commenced on the day after they were registered on the Federal Register of Legislative Instruments.

Key Provisions

The Aviation Transport Security Amendment Regulations 2009 (No. 5) primarily amend the existing Aviation Transport Security Regulations 2005, providing specific circumstances under which checked baggage can remain onboard an aircraft following a flight diversion. Regulation 2.38(a)(ii) introduces a new subparagraph, allowing an operator of a prescribed air service to retain checked baggage on the aircraft if the passenger who checked in the baggage does not re-board or remain on board (ATS Reg 2009 No. 5, reg 4.21A). This applies to diversions due to meteorological conditions, aircraft or equipment malfunction, directions from air traffic control, the Civil Aviation Safety Authority or the Secretary, an emergency at the destination airport, curfew restrictions, or concerns with the aircraft’s fuel supply (ATS Reg 2009 No. 5, reg 4.21A). For diversions due to other reasons, the Secretary may approve the retention of checked baggage if there are no safety or security concerns, provided this approval is given before the aircraft departs from the diverted airport (ATS Reg 2009 No. 5, reg 4.21A). These Regulations impose obligations on aircraft operators to reconcile passenger and baggage records in compliance with the amended regulations. Specifically, operators must ensure that checked baggage remains onboard only under the specified circumstances and must remove such baggage if the conditions are not met (ATS Reg 2009 No. 5, reg 4.21A). Additionally, the Secretary has the authority to approve, on a case-by-case basis, the retention of checked baggage in exceptional circumstances where none of the specified reasons for diversion apply (ATS Reg 2009 No. 5, reg 4.21A). The Regulations do not explicitly outline specific offences, penalties, or consequences for breaches. However, non-compliance with the amended provisions regarding the retention of checked baggage could potentially lead to regulatory action under the broader framework of the Aviation Transport Security Act 2004. This could include administrative penalties, enforcement actions, or other legal repercussions as deemed necessary by the relevant authorities to ensure compliance with aviation security regulations (ATS Act 2004, s 133). The Act provides for enforcement mechanisms that can be invoked to address breaches, ensuring the security of civil aviation is maintained.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.