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Australia
AVIATION TRANSPORT SECURITY AMENDMENT REGULATIONS 2011 (NO. 2) (SLI NO 264 OF 2011) EXPLANATORY STATEMENT

AVIATION TRANSPORT SECURITY AMENDMENT REGULATIONS 2011 (NO. 2) (SLI NO 264 OF 2011)

EXPLANATORY STATEMENT

Select Legislative Instrument 2011 No. 264

Minister for Infrastructure and Transport

 

Subject -          Aviation Transport Security Act 2004

 

                        Aviation Transport Security Amendment Regulations 2011 (No. 2)

 

The Aviation Transport Security Act 2004 (the Act) establishes a regulatory framework to safeguard against unlawful interference with aviation.  To achieve this purpose, the Act establishes minimum security requirements for the Australian aviation industry by imposing obligations on persons engaged in certain aviation activities.

 

Subsection 133(1) of the Act provides the Governor General may make regulations 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.

 

Section 28A of the Act provides regulations may be made to prescribe different categories of security controlled airports.  Subsection 28(6) allows the Secretary to place an airport in a category prescribed in the regulations.

 

The Aviation Transport Security Regulations 2005 (the Principal Regulations) set out the requirements for transport security programs and ensure these plans address specific matters to achieve aviation security outcomes as specified in the Act.  In addition, the Principal Regulations outline a number of measures that must be undertaken in order to ensure the achievement of the aviation security outcomes including requirements for specific security equipment and the screening of people and other things.

 

The Regulations amend the Principal Regulations to establish an airport security classification system stemming from the National Aviation White Paper - Flight Path to the Future (Aviation White Paper).  This noted the Australian Government's intention to amend the Aviation Transport Security Act 2004 (the Act) to enable security controlled airports to be designated according to risk profiles. 

 

The Government considers these changes will provide effective security outcomes, meeting requirements of industry and the travelling public.  This undertaking was met by amending sections 28 and 28A of the Act in April 2010, providing for the grouping of airports into bands with similar operating environments and threat and risk profiles following the assessment of relevant factors.  This enables each airport to be subject to proportional application of aviation security requirements relevant to the threat and risk profile at a point in time.

The Aviation White Paper also announced maximum takeoff weight (MTOW) would replace method of propulsion as the trigger for screening of regular public transport (RPT) and open charter air services.  MTOW is an important component within airport classification policy as the MTOW of an aircraft correlates strongly to its security risk profile. 

This change in the determinant of screening requirements and the adoption of a more targeted allocation of screening methods and technique will provide an enhanced aviation security outcome and will require a number of airports to commence security screening.

The transition of airports from unscreened to screened is supported in the classification system through allowing the Secretary to prescribe different measures for each band of airport.

 

Specifically, the proposed Regulations:

  1. Introduce a seven tiered airport security classification system; and
  2. Make minor consequential amendments to the Principal Regulations.

 

Extensive consultation was undertaken during the development of the airport security classification system.  In December 2010 the Department of Infrastructure and Transport (the department) released a discussion paper canvassing a proposed airport classification model.  The paper was circulated directly to aviation industry participants and made available on the departmental website for public information. 

Submissions were invited with a closing date of 25 February 2011.  The department received a total of 18 submissions from state and local government agencies, airport operators, airlines and representative groups.  Additional consultation regarding the proposed model has been undertaken by the department through the Aviation Security Advisory Forum, the Regional Industry Consultative Meeting and the Aviation Security Employee Consultative Forum.  In addition, departmental representatives attended and presented at Australian Airports Association meetings in Brisbane, Melbourne, Sydney, Emerald, Whyalla and Kununurra.

 

Airports required to commence screening as a result of the White Paper decision have been consulted on the scope of the draft Amendment Regulations through an industry-government working group formed to address issues around the commencement of screening and the airport classification process.  Regional airports have been consulted through the regional industry consultative meeting hosted by the Department of Infrastructure and Transport (the Department) and held on 18 November 2011.  Additionally, the Department has written to all airports advising indicative categories and seeking any comment.  The Amendment Regulations will not have any direct effect on airports already conducting security screening.  Because an overview of the objectives, content and form of the draft regulations have been discussed in these fora, targeted consultation on the draft Amendment Regulations has not been undertaken with the major airports.

 

Details of the Regulations are set out in the Attachment.

 

The Act specifies no conditions that need to be met before the power to make the proposed Regulations may be exercised.

 

The Regulations commence the day after the Regulations are registered on the Federal Register of Legislative Instruments.  This affords airport operators adequate time to implement systems modifications to comply with the Principal Regulations as amended. 

 

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

 

Authority:       Subsection 133(1) of the Aviation Transport Security Act 2004


ATTACHMENT

 

Details of the proposed Aviation Transport Security Amendment Regulations 2011 (No. 2)

 

Regulation 1 - Name of Regulations

This regulation provides that the title of the Regulations is the Aviation Transport Security Amendment Regulations 2011 (No. 2).

 

Regulation 2 - Commencement

These Regulations commence on the day after they are registered.

 

Regulation 3 - Amendment of Aviation Transport Security Regulations 2005

This regulation provides that Schedule 1 amends the Aviation Transport Security Regulations 2005 (the Principal Regulations).

Schedule 1 - Amendments commencing on the day after registration

 

Item [1] - Regulation 2.03

This amendment corrects a minor drafting anomaly in the regulation where regulation 2.03 should reference paragraph 12(1)(c) of the Aviation Transport Security Act 2004.

 

Item [2] - Before Division 3.1

Division 3.1A Security controlled airports - categories

This new division sets out the airport security classification system and criteria to be considered by the Secretary when placing an airport in a category.  The purpose of this system is to allow differentiation between different classes of airports for the purposes of applying security measures including measures related to the screening and clearance of passengers.

 

3.01A - Definitions

This regulation sets out definitions for closed charter operation and maximum weight consistent with other provisions in the Principal Regulations.  This regulation provides a definition for revenue passenger consistent with the definition accepted by the International Civil Aviation Organisation and the Australian Government Bureau of Infrastructure, Transport and Regional Economics.

 

This regulation also sets out the way an average of annual revenue passengers is calculated over three years and the way an annual average is calculated in situations where the airport has been operating for less than three years.

 

3.01B - Categories of security controlled airports

This regulation sets out seven categories of security controlled airport.  These categories are intended to constitute classes of persons for the purposes of serving a notice prescribing the methods, equipment and techniques to be used for screening as set out in section 44 of the Act and regulation 4.17 of the Principal Regulations.

Category 1 includes designated airports as defined in the Principal Regulations.  This category is intended to cover all existing international gateway airports as well as the highest risk domestic airports.  This band ensures that Australia continues to meet its obligations outlined in the International Civil Aviation Organization (ICAO) Convention on International Civil Aviation, Annex 17 (Annex 17). 

 

Category 2 includes airports to or from which an international air service operates that are not designated airports.  The measures applied in this band meet Australia's obligations outlined in the ICAO Annex 17 while allowing the application of different security practices appropriate to these airports.  

Category 3 includes all airports not in a higher category that are serviced by Regular Public Transport (RPT) or open charter aircraft 30,000 kg MTOW or more.  In addition, the band captures airports serviced by RPT and open charter aircraft between 20,000 and 30,000 kg MTOW with an annual average of 50,000 or more departing revenue passengers.  This band will minimise disruption to the existing screened airports by retaining the existing security measures and practices for these airports.  Passengers screened at band three airports will be permitted to enter the sterile area at other band three airports as well as at airports in bands four and five.

Category 4 includes airports not included in a higher category that are serviced by RPT and open charter aircraft of at least 20,000 kg MTOW but less than 30,000 kg MTOW and with an annual average of at least 30,000 but less than 50,000 departing revenue passengers.  This category captures airports transitioning from clearance measures undertaken in band five to full screening required in band three.  Passengers cleared in these airports will be permitted to enter the sterile area of a band three airport but their checked baggage will be required to undergo re-screening prior to being loaded onto an ongoing service.  Passengers will also be permitted to enter the sterile area at other band four airports and at band five airports.

 

Category 5 includes airports not included in a higher category that are serviced by RPT and open charter aircraft of at least 20,000 kg MTOW but less than 30,000 kg MTOW and with an annual average of less than 30,000 departing revenue passengers.  Passengers screened at category 5 airports will require re-screening prior to entering the sterile area at a higher classification airport.

Category 6 includes airports not included in a higher category that are serviced by aircraft with a MTOW of at least 5,700 kg but less than 20,000 kg that are undertaking open charter and RPT flights.  This category also includes security controlled airports serviced by closed charter operations at or above 10,750 kg MTOW that do not fall into a higher classification.  These air services are not required to undergo security screening, except in the instance of increased threat specifically or to the network.

 

Category 7 includes Airports for which the Secretary is satisfied the operator is temporarily unable to comply with the security screening requirements that apply to the category that the airport would otherwise be assigned to.  The purpose of this category is to allow the allocation of specific and customised security screening requirements to each airport in the category for a limited period while an airport prepares to transition into the nominal category as indicated in the regulations.

 

3.01C - Criteria to be considered by Secretary

This regulation sets out the criteria the Secretary may consider when making decisions about the placement of airports into categories.  This regulation notes the option for airports to appeal a decision of the Secretary made under subsection 28(6) of the Act.

Generally, airports will be placed into a classification band as indicated at regulation 3.01B.  The information the Secretary may consider is set out to clarify the decision making process where an airport is placed into a classification other than the default set out at regulation 3.01B.

 

Regulation 3.01C sets out the factors for consideration with respect to the general operating environment at an airport. 

 

Subregulation 3.01C(2) provides certainty to industry about the things the Secretary may be considering around the airport environment and broad flight operations when making a decision about the placement of an airport in a classification band. 

 

(a)      whether the airport is a designated airport.  Designated airports receive the highest security focus under the Act and Principal  Regulations.  It is intended the airport security classification system retains this approach.

 

(b)      whether an international air service operates to or from the airport.  Security measures at international airports are guided by principles set out in the ICAO Annex 17 agreement.  It is intended this system does not interfere with any international treaty obligations.

 

(c)      whether aircraft operate regular public transport operations or open charter operations to or from the airport.  Regular public transport and open charter operations are treated differently from closed charter operations under the current Act and Principal Regulations (for example, closed charter flights are generally not required to be security screened).  Consideration of the type of air services flying to and from the airport is important when determining appropriate security measures for these flights and airports.

 

(i)       the maximum weight of those aircraft.  Maximum weight correlates strongly to damage caused by an aircraft colliding with an object.  The Act and Principal Regulations currently apply differing degrees of security measures based on maximum weight.  This provision clarifies the Secretary may consider the maximum weight of aircraft in line with existing practices.

 

(ii)     the average number of revenue passengers that depart the airport each year as part of those operations.  Departing annual revenue passengers provide a coarse indication of the size and scale of operations at an airport.  High volume airports generally receive larger aircraft and are located in and around major population bases.  In turn, the disruption of a high volume airport could have significant economic consequences for Australia.  This provision highlights to industry that the Secretary may consider the volume of passengers as a key determinant when placing an airport in a classification band and ensures the decision making process is consistent with practices set out at regulation 3.01B.

 

(d)     whether aircraft operate closed charter operations to or from the airport, and if so, the maximum weight of those aircraft.  While closed charter operations are subject to different security measures than open charter and regular public transport services, careful consideration of security measures at closed charter airports may be required as the size of aircraft carrying out these services increases.  This provision clarifies to industry that the Secretary may consider whether airports with aircraft providing closed charter services should be declared to be security controlled and therefore subject to certain security measures such as the requirement to hold a Transport Security Program.

 

Subregulation 3.01C(3) provides certainty to industry about the criteria the Secretary may consider around the ability of an airport to carry out specific security activities when making a decision about the placement of an airport in a classification band. 

 

(a)      whether the design of the existing terminal at the airport will prevent the airport operator from complying with particular security screening requirements.  This provision demonstrates that the Secretary may consider whether an airport would be able to comply with certain security measures and the practicalities of mandating certain security requirements.

 

(b)      whether it is practicable for temporary facilities to be installed at the airport so that the airport operator can comply with particular security screening requirements.  In some cases it may be appropriate for the erection of temporary facilities or structures to house security screening equipment and provide an appropriate waiting area for cleared passengers.  This provision clarifies that the Secretary may consider the practicality of requiring security screening at an airport where screening could be carried out in a place other than an established terminal building. 

 

(c)      the operational environment of the airport including:

 

(i)       the types of aircraft operating to and from the airport.  This provision clarifies that the Secretary may consider the size, propulsion type, make and model of aircraft as well as whether the aircraft is fixed or rotary wing.

 

(ii)     the services those aircraft provide.  In some cases, it is appropriate to apply different security measures for higher or lower risk services.  This provision clarifies that the Secretary may consider the type of services provided by aircraft arriving at, or departing from the airport (for example, movement of persons in custody or medical services). 

 

(iii)   the services available at the airport, such as refuelling and maintenance services.  The presence of additional on airport services may necessitate additional security provisions.  This provision clarifies that the Secretary may consider the on airport services available when deciding about the classification of an airport.

 

(d)     the number of departing revenue passengers, as described.  It is intended the Secretary could consider projected growth or contraction of passenger numbers when making a decision about the classification of an airport.  The combined subsections of this provision clarifies that the Secretary could consider a historical and projected trend in departing revenue passenger numbers when making a decision about placing an airport in a classification band. 

 

(e)      the ability of the screening authority to provide and operate screening equipment and provide particular screening services.  In making a decision about the placement of an airport in a category, it is intended the Secretary could consider the ability of the screening authority at that airport to provide and operate the required equipment to the required standard and the ability of the screening authority to provide security screening services.  The combined provisions in this paragraph provide clarity and certainty to industry that the Secretary may consider these factors when making a decision about placing an airport in a category.

 

(f)       when the airport operator expects to be able to start complying with particular security screening requirements.  This provision clarifies that the Secretary may consider the likely amount of time required for an airport to transition from unscreened to screened or to a higher level of screening.  In particular, by considering likely timeframes, the Secretary can place an airport in a category for an appropriate period of time.

 

(g)      Social and financial implications, as described.  This provision clarifies that the Secretary may consider whether requiring particular security measures would lead to untenable social implications for local communities relying on air services.  In effect, this provision allows the Secretary to vary security requirements at a particular airport if the imposition of particular security requirements would lead to the loss of essential community services such as medical access.

 

(h)      Anything else relevant.  This provision clarifies that nothing in the above criteria limit the ability of the Secretary to consider any matter considered relevant. 

 

Item [3] - Subregulation 4.02(1)

This amendment clarifies the maximum weight for the commencement of security screening requirements is a threshold, over which security screening must be carried out. 

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