Civil Aviation Amendment Regulations 2008 (No. 3)

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

Legislation au F2008L04642 Regulations Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

Select Legislative Instrument 2008 No. 272

 

 
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.   

 

 

Overview

The Aviation Transport Security Amendment Regulations 2008 (No. 3) were enacted to address the legislative anomaly whereby air security officers (ASOs) were authorised to have a weapon on board a prescribed aircraft but were not explicitly permitted to discharge it for the purpose of safeguarding against unlawful interference with aviation. This gap was previously addressed by legislative exemptions issued by the Civil Aviation Safety Authority (CASA) under the Civil Aviation Regulations 1988, which were set to expire on 30 June 2009. The Regulations amend the Aviation Transport Security Regulations 2005 to provide a permanent authority for ASOs to lawfully discharge their firearms on board a prescribed aircraft, ensuring they can respond to incidents of unlawful interference both domestically and extraterritorially. The Regulations also amend the Civil Aviation Regulations 1988 and the Civil Aviation Safety Regulations 1998 to provide ASOs with a defence to a prosecution for discharging a firearm on board an aircraft, and to clarify the source of ammunition for ASOs, respectively. These amendments were made under the authority of the Minister for Infrastructure, Transport, Regional Development and Local Government and were settled in consultation with the Attorney-General’s Department and CASA.

Scope and Application

The Aviation Transport Security Amendment Regulations 2008 (No. 3) and related Civil Aviation Amendment Regulations 2008 (No. 3) and Civil Aviation Safety Amendment Regulations 2008 (No. 2) amend the existing legislative framework to ensure that air security officers (ASOs) have the lawful authority to discharge their firearms on board a prescribed aircraft to prevent or respond to acts of unlawful interference with aviation. These regulations apply to both Australian and foreign ASOs, thereby extending their reach to include any aircraft engaged in Australian international carriage. The amendments respond to the current reliance on legislative exemptions under the Civil Aviation Regulations 1988, which are set to expire on 30 June 2009. The new regulations provide a permanent legislative basis for the use of firearms by ASOs, ensuring their actions are legally protected both within Australia and extraterritorially. The amendments also ensure consistency in the application of these provisions across different regulatory instruments, aligning the authority of ASOs under the Aviation Transport Security Regulations 2005, Civil Aviation Regulations 1988, and Civil Aviation Safety Regulations 1998. These legislative changes were settled in consultation with the Attorney-General’s Department and the Civil Aviation Safety Authority.

Key Provisions

The main operative sections of these regulations focus on allowing air security officers to lawfully use firearms on board a prescribed aircraft when necessary to prevent or respond to acts of unlawful interference with aviation, with the amendments having extraterritorial effect. Specifically, regulation 4.59A of the Aviation Transport Security Regulations 2005 has been inserted to provide air security officers with a permanent legal authority to discharge their firearms on board aircraft. This amendment rectifies a previous anomaly where air security officers were permitted to carry firearms on board aircraft but were not legally authorised to discharge them, a gap previously addressed through periodic legislative exemptions that are set to expire on 30 June 2009. Furthermore, the Civil Aviation Regulations 1988 and the Civil Aviation Safety Regulations 1998 have been amended to reflect and support these changes, ensuring consistency and clarity in the legal framework governing the use of firearms by air security officers. The obligations imposed by these regulations are primarily on air security officers, requiring them to adhere to the newly established legal framework for the use of firearms on board aircraft. This includes understanding and complying with the conditions under which they may lawfully discharge their firearms, which is for the purpose of preventing or responding to acts of unlawful interference with aviation. Additionally, these regulations mandate that the ammunition used by air security officers must be issued by either the Australian Federal Police for Australian air security officers or a relevant foreign government for foreign air security officers, ensuring a uniform approach to the equipment and procedures used by both domestic and international officers. The regulations also address potential breaches and the associated penalties. While the primary focus is on providing clarity and legal authority for air security officers, the omission of certain exemptions and the introduction of new legal provisions mean that any failure to comply with the new regulations could result in prosecution under the Civil Aviation Regulations 1988. Specifically, discharging a firearm on board an aircraft without authorisation could constitute an offence, potentially leading to legal consequences. However, the regulations do not specify particular penalties; thus, any prosecution would likely rely on existing provisions within the Civil Aviation Act 1988 and the Criminal Code Act 1995, which could include fines or imprisonment depending on the severity of the offence and the discretion of the court.

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Aviation Law
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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.