EXPLANATORY STATEMENT
Issued by the authority of the Minister for Home Affairs
Aviation Transport Security Act 2004
Aviation Transport Security (Prohibited Cargo—Yemen) Instrument 2026
Legislative authority
The Aviation Transport Security Act 2004 (the Act) establishes a regulatory framework to safeguard against unlawful interference with aviation transport in Australia. 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 aviation transport in Australia by imposing obligations on persons engaged in civil aviation-related activities, including activities related to the handling and transport of air cargo.
Subsection 65B(1) of the Act empowers the Minister, by legislative instrument, to prohibit the entry of specified kinds of cargo into Australian territory for the purposes of safeguarding against unlawful interference with aviation transport.
This instrument repeals and replaces the Aviation Transport Security (Prohibited Cargo—Yemen) Instrument 2015. That instrument is scheduled to sunset on 1 April 2026. The Aviation Transport Security (Prohibited Cargo—Yemen) Instrument 2026 substantively remakes the matters specified in the 2015 Instrument for the purposes of section 65B of the Act.
Subsection 33(3) of the Acts Interpretation Act 1901 provides that, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws) the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend or vary any such instrument.
Background
Division 6A of the Act allows the Minister to make a legislative instrument prohibiting the entry of specified kinds of cargo into Australian territory. A failure to comply with such an instrument is an offence under this division.
Subsection 65B(1) allows the Minister by legislative instrument to prohibit the entry of specified kinds of cargo into Australian territory for the purposes of safeguarding against unlawful interference with aviation.
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.
Purpose and effect
The purpose of the Aviation Transport Security (Prohibited Cargo—Yemen) Instrument 2026 (2026 Instrument) is to prohibit all cargo originating from, or transiting through, the Republic of Yemen from entry into Australian territory.
The Aviation Transport Security (Prohibited Cargo—Yemen) Instrument 2015 (the Previous Instrument) is scheduled to sunset on 1 April 2026. If not repealed and replaced by the 2026 Instrument, the Previous Instrument would be automatically repealed on 1 April 2026 by operation of Part 4 of the Legislation Act 2003 (Legislation Act).
The 2026 Instrument substantially replicates the matters specified in the Previous Instrument, and will continue to safeguard against unlawful interference with aviation by prohibiting the entry of specified cargo into Australian territory. Broadly, the instrument prescribes that cargo that originates from or has transited through the Republic of Yemen should not enter Australian territory.
This instrument applies to aviation industry participants, as defined in section 9 of the Act.
Where the instrument applies to a person, failure to comply with the instrument is an offence under section 65C of the Act.
Consultation
The Minister for Home Affairs consulted the Foreign Affairs Minister and the Trade Minister before making the instrument, as required by subsection 65B(2) of the Act. The Department also undertook consultation with the Department of Foreign Affairs and Trade in relation to the instrument. No concerns were raised in relation to the instrument, which substantively remakes and maintains the effect of the Previous Instrument.
Details and operations
Details of the Instrument are set out in Attachment A.
The Instrument is a disallowable legislative instrument under section 42 of the Legislation Act.
The Instrument commences on 1 April 2026.
Other matters
A Statement of Compatibility with Human Rights has been prepared in relation to the instrument and is at Attachment B.
Attachment A
Details of the Aviation Transport Security (Prohibited Cargo—Yemen) Instrument 2026
Section 1 Name
This section provides that the name of the instrument is the Aviation Transport Security (Prohibited Cargo—Yemen) Instrument 2026.
Section 2 Commencement
This section has the effect that the 2026 Instrument commences on 1 April 2026.
Section 3 Authority
Section 3 provides that the authority to make the 2026 Instrument is subsection 65B(1) of the Aviation Transport Security Act 2004 (the Act).
Section 4 Definitions
Section 4 provides the meaning for defined terms used in the 2026 Instrument.
The note at the start of section 4 provides that certain definitions used in the 2026 Instrument, being the definitions of ‘Australian territory’, ‘aviation industry participants’ and ‘cargo’ are defined in the Act.
The term Act means the Aviation Transport Security Act 2004.
Section 5 Application
Section 5 provides that the instrument applies to aviation industry participants. The term “aviation industry participant” is defined in section 9 of the Act to mean:
- an airport operator;
- an aircraft operator;
- a known consignor;
- a regulated agent;
- a person who occupies or controls an area of an airport (whether under a lease, sublease or other arrangement);
- a person (other than an aviation security inspector) appointed by the Secretary under this Act to perform a security function;
- Airservices Australia; or
- a contractor who provides services to a person mentioned above.
Section 9 of the Act also provides definitions for the other terms mentioned above. Paragraph 65C(1)(b) of the Act relevantly provides that one of the physical elements of the offence under subsection 65C(1) is that the person is a person to whom an instrument made under section 65B of the Act by the Minister.
Section 6 Prohibited Cargo
Section 6 provides that a person to whom the instrument applies must not bring, or cause to be brought, into Australian territory cargo that has originated from, or has transited through, the Republic.
Section 7 Schedules
Section 7 provides that each instrument that is specified in a Schedule to the 2026 Instrument is amended or repealed as set out in the applicable items in the Schedule concerned and that any other item in a Schedule to the 2026 Instrument has effect according to its terms.
Schedule 1 Repeals
Item 1 of Schedule 1 to the 2026 Instrument has the effect of repealing the Aviation Transport Security (Prohibited Cargo—Yemen) Instrument 2015.
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—Yemen) Instrument 2026
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
The 2026 Instrument replicates the Previous Instrument. The instrument prescribes that cargo that originates from or has transited through the Republic of Yemen should not enter Australian territory. The 2026 Instrument will continue to safeguard the Australian aviation industry against unlawful interference with aviation by prohibiting the entry of specified air cargo into Australian territory.
Human rights implications
This Disallowable Legislative Instrument does not engage any of the applicable rights or freedoms. The prohibition on cargo originating from Yemen applies only to air cargo and does not affect the ability of people living in Australia to receive goods from Yemen by sea, rail or land freight. Nor does the prohibition apply to passengers or their baggage. As such, 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 Yemen to receive goods from Yemen.
Conclusion
This Disallowable Legislative Instrument is compatible with human rights as it does not raise any human rights issues.
The Hon Tony Burke MP
Minister for Home Affairs