EXPLANATORY STATEMENT
Aviation Transport Security Act 2004
Aviation Transport Security (Prohibited cargo – Afghanistan) Instrument 2022
The Aviation Transport Security Act 2004 (the Act) gives effect to Australia’s obligations under Annex 17 to the Convention on International Civil Aviation (Chicago Convention) by establishing a regulatory framework to safeguard against unlawful interference with aviation in Australia. The Act establishes minimum security requirements for civil aviation in Australia by imposing obligations on persons engaged in civil aviation-related activities, including activities related to the handling and transport of air cargo.
Legislative Authority
Subsection 65B(1) of the Act allows the Minister to prohibit the entry of specified kinds of cargo into Australian territory for the purposes of safeguarding against unlawful interference with aviation. Relevantly, subsection 65B(2) specifies that, without limiting subsection 65B(1), an instrument made under that subsection may relate to all or any of the following:
(a) some or all of a class of persons to whom the Act applies;
(b) cargo originating from a particular country;
(c) cargo transiting through a particular country;
(d) cargo packaged in a particular way;
(e) cargo that meets, or is more or less than, a specified weight; and
(f) cargo that comes within a specified weight range.
Failure to comply with an instrument made by the Minister under section 65B is a strict liability offence under section 65C of the Act.
Purpose
The purpose of the Aviation Transport Security (Prohibited cargo – Afghanistan) Instrument 2022 (the Instrument), made under section 65B of the Act, is to prohibit all cargo originating from, or transiting through, Afghanistan from entry into Australian territory, except for certain specified items of cargo or cargo that has been examined and cleared at specified last ports of call airports. The prohibition reflects the tenuous nature of the security situation in Afghanistan since the withdrawal of coalition troops in 2021.
The instrument imposes a general prohibition on cargo originating from, or transiting through, Afghanistan, and specifies items of cargo that are exceptions to the prohibition, including items of cargo that are specified in a list according to type and cargo that has been examined and cleared at one of the specified last ports of call airports.
The Australian Government has arrangements in place with the specified last ports of call airports that permit Australian officials to inspect cargo examination measures and security procedures that ensure air cargo security is maintained in last port of call airports to safeguard against unlawful interference with aviation.
The prohibition and exceptions set out in this instrument applies to aviation industry participants as defined in the Act.
Consultation
In accordance with the requirements of subsection 65B(3) of the Act, the Minister for Home Affairs has consulted with the Minister for Foreign Affairs and the Minister for Trade before making the instrument.
At the date this instrument came into effect, no country has formally recognised the Taliban as the government of Afghanistan. For the purposes of paragraph 15J(2)(e) of the Legislation Act 2003, no consultation was undertaken with the self-declared de facto government of Afghanistan as the prohibition set out in this instrument is required as a matter of urgency to safeguard against unlawful interference with aviation.
Similarly, at the date this instrument came into effect, few open charter international commercial flights were departing from Afghanistan. As a consequence, no consultation was undertaken with aviation industry participants in the countries in which the last port of call airports are located. In relation to introducing the new prohibition and exceptions to it, consultation was not considered necessary as the prohibition and exceptions are consistent with measures imposed by like-minded regulators internationally.
The Office of Best Practice Regulation (OBPR) has been consulted in relation to the making of the instrument. OBPR has advised that a Regulation Impact Statement is not required (OBPR Reference Number: 21-01095).
The Instrument is a legislative instrument for the purpose of the Legislation Act 2003.
The Instrument commences on the day after registration.
Details of the Instrument are set out in Attachment A.
A Statement of Compatibility with Human Rights has been completed for the Instrument and is at Attachment B.
Authority:
Subsection 65B(1)
Aviation Transport Security Act 2004
Attachment A
Detail of the Aviation Transport Security (Prohibited cargo – Afghanistan) Instrument 2022
Section 1 – Name of Instrument
This section provides that the name of the instrument is the Aviation Transport Security (Prohibited cargo – Afghanistan) Instrument 2022.
Section 2 – Commencement
This section provides that the instrument commences on the day after it is registered, on the Federal Register of Legislation.
Section 3 – Definitions
This section provides the definition of terms used in the instrument. These terms are used in section 4 of the instrument and refer to items of cargo that are exceptions to the prohibition and concepts and screening devices referred to in relation to an exception to the prohibition.
Terms used in subsection 4(2) – Items of cargo
The term biological tissue is defined to mean an item of cargo that consists only of biological matter that is an aggregate of cells and cell products forming a definite kind of structural material in an animal or plant, or biological substances or samples, and the necessary packaging to ship the biological matter, substance or sample.
This definition is followed by a note to remind the reader that paragraph 23(b) of the Acts Interpretation Act 1901 provides that words in the singular number include the plural, and words in the plural number include the singular. The intention is to make clear that the definition applies to the item of cargo equally regardless of whether there is a single item of biological matter, a biological sample or a biological substance or multiple items of one, or one of each type or multiple items of each type.
For example, a box containing one item of human biological matter, four items of animal biological substances and thirty each of plant and animal biological samples, and the necessary shipping packaging, would be biological tissue for the purposes of subsection 4(2) of this instrument.
While this type of item of cargo is an exception to the prohibition, international air transport of biological tissue may be regulated by other agencies and may be required to be packaged and labelled according to any International Air Transport Association (IATA) requirements and/or accompanied by a declaration from an IATA approved packager.
The term government article is defined to mean an item of cargo that:
- is sent by the Commonwealth or an authority of the Commonwealth; and
- bears on its face a security classification; and
- bears a security classification that is referred to in the protective security policy applicable to the Australian Government when the article is sent.
The term human remains is defined to mean an item of cargo which meets all of the following requirements:
- the item consists only of human remains and necessary packaging; and
- the sender of the item is a funeral director; and
- the airline transporting the item has sighted a copy of the death certificate of the person to whom the human remains relate.
While this type of item of cargo is an exception to the prohibition, requirements for international air transport of human remains may be regulated by other agencies, and may also require compliance with any IATA Guidelines on the handling of human remains enshrined in the law of the country from which the remains are to be shipped, or the country the human remains are transiting through.
The term letter product is defined to mean an item of cargo that has all of the following characteristics:
- it weighs 500 g or less;
- it contains only flexible items, nothing rigid or inflexible;
- its longest dimension is 360 mm or less.
- its second longest dimension is 260 mm or less;
- its shortest dimension is 20 mm or less.
The characteristic relating to flexible items is followed by two examples. The first example is an example of flexible items and includes thick cardboard used to protect items from being bent or crushed, and the second example is an example of rigid or inflexible items and includes pens, keys, USBs or CDs.
The term small item is defined to mean an item of cargo that weighs 250 g or less, and is 5 mm or less in its shortest dimension and its maximum weight. A small item is distinguished from a letter product by virtue of its smallest dimension. A letter product may weigh 250 g or less but may be of larger dimension.
The purpose and effect of the above definitions is to provide meaning for terms used to describe items of cargo referred to in subsection 4(2) of the instrument which deals with the first exception to the prohibition set out in subsection 4(1).
Terms used in subsection 4(3) - Concepts
The term last port of call airport is defined to mean an airport that is the last international port that the aircraft departs from before landing in Australian territory. At the time this instrument came into effect there were no direct commercial flights from Afghanistan to Australian territory. This means that any journey from Afghanistan to Australia by air would require transit through an airport in another country, which would be the last port of call airport.
The term security controls is defined to mean requirements or procedures that, under the laws applying at the last port of call airport, must be applied to detect the presence of explosives in items of cargo. Security controls are similar requirements or procedures to those applied in Australia and are consistent with Australia’s outbound air cargo examination requirements.
The purpose and effect of the above definitions is to provide meaning for terms used to describe concepts referred to in subsection 4(3) of the instrument which deals with the second exception to the prohibition set out in subsection 4(1).
Terms used in subsection 4(4) – Screening devices
The term ETD equipment (explosive trace detection equipment) is defined to mean technology used to detect and indicate, by audible or visual alarm, the presence of an explosive material. ETD equipment is also used in Australia to examine air cargo, and the use of the term is consistent with Australia’s outbound air cargo security requirements.
The term X-ray observation equipment is defined to mean screening X-ray equipment that has a threat image projection system capability; and can differentiate between organic and inorganic material; and can display metals, inorganic material and organic material in different colours. X-ray observation equipment is also used in Australia to examine air cargo, and the use of the term is consistent with Australia’s outbound air cargo security requirements.
The purpose and effect of the above definitions is to provide meaning for terms used to describe cargo examination or screening devices referred to in subsection 4(4) of the instrument which deals with the security controls referred to in subsection 4(3).
Section 4 – Prohibited Cargo
Subsection 4(1) prohibits aviation industry participants from bringing, or causing to be brought, into Australian territory cargo that has originated from, or transited through, Afghanistan.
Subsection 4(2) provides an exception to the prohibition in subsection 4(1) for cargo of the following types:
- a letter product;
- a small item;
- a live animal (and the necessary packaging used to ship the animal);
- human remains;
- biological tissue;
- dangerous goods that are permitted, under section 23 of the Civil Aviation Act 1988, to be carried on board an aircraft (and necessary packaging);
- a government article;
- a diplomatic bag.
The purpose and effect of subsection 4(2) is to permit the carriage of these types of cargo into Australia by air without examination as they present a low risk to unlawful interference with aviation and are generally unable to be examined at the last ports of call airports listed at subsection 4(3). These exemptions are consistent with Australia’s outbound air cargo security requirements.
Subsection 4(3) provides an additional exception to the prohibition in subsection 4(1) for cargo that, since originating from, or transiting through, Afghanistan, has been examined and cleared under security controls at one of the last port of call airports listed below:
- Vancouver International Airport in Canada;
- Narita Airport Tokyo or Osaka International Airport in Japan;
- Hong Kong International Airport; or Shanghai Pudong International Airport in the People’s Republic of China;
- O.R. Tambo International Airport, Johannesburg in the Republic of South Africa;
- Changi International Airport in Singapore;
- Suvarnabhumi International Airport, Bangkok in Thailand;
- Dubai International Airport in the United Arab Emirates; or
- Honolulu International Airport; or Los Angeles International Airport in the United States of America.
The purpose and effect of subsection 4(3) is to ensure that air cargo destined for Australia that originates, or transits through, Afghanistan is subject to appropriate security controls at trusted last port of call airports to protect Australian aviation from unlawful interference. The security controls applied at these last port of call airports are similar to those applied in Australia for export air cargo.
Subsection 4(4) provides that for subsection (3), examined under security controls means examination using either X-ray observation equipment or ETD equipment, or by performing a physical examination in accordance with subsection (5).
The purpose and effect of subsection 4(4) is to specify that one of those types of examination must be used at a last port of call airport when examining items of cargo under security controls.
Subsection 4(5) provides that physical examination (referred to in subsection 4(4)) includes the item being deconsolidated or unpacked into the smallest box, carton or other unit into which it can be deconsolidated or unpacked; and that each unit is examined in the following way:
- the sides, top and bottom of the unit, including packaging, are checked for hidden compartments and for signs that the piece has been tampered with;
- the unit is opened and all areas of the interior of the unit are searched;
- the contents of the unit are searched systematically, layer by layer;
- the search of the interior areas and the contents of the unit proceeds in a sequence that ensures that every area of the unit and all its contents are thoroughly inspected.
The purpose and effect of subsection 4(5) is to specify the process that must be followed when performing a physical examination to examine items of cargo under security controls at a last port of call airport, if physical examination is the method used under subsection 4(4).
ATTACHMENT B
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Aviation Transport Security (Prohibited Cargo –Afghanistan) Instrument 2022
This Disallowable Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Disallowable Legislative Instrument
This Disallowable Legislative Instrument (the Instrument) prohibits all cargo originating from, or transiting through, the Islamic Republic of Afghanistan (Afghanistan) from entry into Australian territory, with exceptions for certain types of cargo and cargo that has been examined and cleared under security controls at one of the specified last port of call airports. There are currently no direct commercial flights from Afghanistan to Australian territory, so all flights stop at a last port of call airport before travel to Australia.
The prohibition is a preventative security measure, aimed at safeguarding unlawful interference with aviation, and reflects the tenuous nature of the security situation in Afghanistan since the withdrawal of coalition troops in 2021.
The prohibition on air cargo originating from, or transiting through, Afghanistan does not apply to cargo of specified types that do not present a risk to aviation security. The excepted types of cargo are:
- a letter product;
- a small item;
- a live animal and the necessary packaging to ship the animal;
- human remains;
- biological tissue;
- dangerous goods that are permitted, under section 23 of the Civil Aviation Act 1988, to be carried on board an aircraft and the necessary packaging to ship the goods;
- a government article;
- an item of cargo in a diplomatic bag.
The terms letter product, small item, human remains, biological tissue, and government article are defined in section 3 of the Instrument.
The prohibition on air cargo originating from, or transiting through, Afghanistan also does not apply to cargo that has been examined and cleared under security controls in one of the specified last port of call airports (as defined in section 3 of the Instrument), which are listed in section 4(3) of the Instrument as follows:
- Vancouver International Airport in Canada;
- Narita Airport Tokyo or Osaka International Airport in Japan;
- Hong Kong International Airport or Shanghai Pudong International Airport in the People’s Republic of China;
- O.R. Tambo International Airport, Johannesburg in the Republic of South Africa;
- Changi International Airport in Singapore;
- Suvarnabhumi International Airport, Bangkok in Thailand;
- Dubai International Airport in the United Arab Emirates; or
- Honolulu International Airport or Los Angeles International Airport in the United States of America.
The specified last port of call airports are in locations where a high standard of examination is performed and where Australia has strong relationships with industry participants on air cargo security matters, including access to information on how cargo is examined and handled in those countries.
To meet the requirements of this exception to the prohibition, the Instrument specifies that examined under security controls means examination using X-ray observation equipment or ETD (explosive trace detection) equipment (both defined in section 3 of the Instrument) or physical examination in accordance with subsection 4(5) of the Instrument.
Human rights implications
This Disallowable Legislative Instrument does not engage any of the rights or freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
The prohibition on cargo originating from Afghanistan applies only to air cargo and does not affect the ability of people living in Australia to receive goods from Afghanistan by sea, rail or land freight. Nor does the prohibition apply to passengers or their baggage, and is subject to exceptions for certain specified cargo types. The Instrument does not engage or limit the right to equality or non-discrimination through disproportionately effecting the ability of people living in Australia who originate from Afghanistan to receive goods from Afghanistan. Conclusion
This Disallowable Legislative Instrument is compatible with human rights as it does not raise any human rights issues.
The Honourable Karen Andrews MP, Minister for Home Affairs