Download Federal Executive Council Handbook

EXPLANATORY STATEMENT
Select Legislative Instrument 2012 No. 67
Issued by the Authority of the Minister for Infrastructure and Transport
Aviation Transport Security Act 2004
Aviation Transport Security Amendment Regulation 2012 (No. 3)
The Aviation Transport Security Act 2004 (the Act) and the Aviation Transport
Security Regulations 2005 (the Principal Regulations) establish a regulatory
framework to safeguard against unlawful interference with aviation.
Section 133 of the Act provides that 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 44C of the Act provides that the regulations may, for the purposes of
safeguarding against unlawful interference with aviation, prescribe requirements in
relation to examining cargo, cargo receiving clearance and the circumstances in
which cargo is required to be cleared.
Part 1 of Schedule 1 to the Aviation Transport Security Amendment (Air Cargo) Act
2011 is to commence either by Proclamation or, in the absence of a Proclamation, six
months from the date of Royal Assent. The Aviation Transport Security Amendment
(Air Cargo) Act 2011 received Assent on 5 December 2011 and no Proclamation is
intended to be made, as a result Part 1, Schedule 1 will commence on 5 June 2012.
Upon commencement, the requirement for cargo to be certified will be removed from
the Act.
The Regulation amends the Principal Regulations to:
 support the amendments made to the Act by
o removing references to ‘certifying cargo’ from the Principal
Regulations,
o establishing the framework for examining and clearing cargo, and
o introducing security declarations (SD) and chain of custody
statements (ChOCS) as evidence of the security status of cargo prior
to being loaded onto an aircraft.
 remove a duplicated requirement for Regulated Air Cargo Agent’s (RACA)
Transport Security Programs (TSPs); and
 simplify the language in the requirement for the Secretary of the Department
of Infrastructure and Transport to give notice of a decision to revoke the
designation of a RACA.
Under the current regulatory framework, cargo is cleared when it is certified and
aircraft operators may certify cargo by loading that cargo onto the aircraft. The
Regulation will:
 allow cargo to be examined and cleared earlier in the supply chain;
 make it easier to identify the security status of the cargo;
 provide a greater level of assurance that cargo has been kept secure once
cleared; and

establish better mechanisms to allow for the secure transfer of cargo between
regulated industry participants, including Accredited Air Cargo Agents
(AACA).
The Commonwealth consulted publicly on a draft of these regulations throughout
February to March 2012. The purpose of the consultation was to take into account
stakeholder feedback on the draft regulations before they are finalised and ensure that
the changes created no unintended consequences for the industry or consumers. Issues
raised through the consultation process have, where required, been addressed.
Further background for the Regulation can be found at Attachment A. Details of the
Regulation are set out in Attachment B.
A Human Rights Statement in respect of the Regulation is included at Attachment C.
The Act specifies no conditions that need to be satisfied before the power to make the
Regulation may be exercised.
The Regulation is a legislative instrument for the purposes of the Legislative
Instruments Act 2003.
The Regulation commence on the commencement of Part 1 of Schedule 1 to the
Aviation Transport Security Amendment (Air Cargo) Act 2011 (5 June 2012).
Authority:
Section 133 of the
Aviation Transport Security Act 2004
2
ATTACHMENT A
Background
Under the current regulatory framework, cargo is cleared when it is certified and
aircraft operators may certify cargo by loading that cargo onto the aircraft.
Under the framework as established by the amendments made to the Act, cargo is
required to be examined and treated and then dealt with securely under section 44B
as amended by the Aviation Transport Security Amendment (Air Cargo) Act 2011 in
order to establish and maintain its cleared status.
Once regulated businesses have examined cargo (or determined cargo is exempt from
examination under paragraph 44B(2)(b)) and treated cargo, they are required to issue
a SD. A SD will be a statement that the cargo has been examined and treated. It will
be used by other regulated businesses handling the cargo to confirm that these
processes have been undertaken. It will be able to take any reasonable form as long
as it contains the relevant information; for example a document or electronic form.
At this point the cargo will have received clearance.
Once cargo has received clearance, for the cargo to be considered to be cleared and
remain cleared, a regulated business must then deal with the cargo in accordance
with its TSP or AACA Security Program. Dealing with cargo may include measures
such as preventing unauthorised access to the cargo and holding it in a manner that
makes tampering with the cargo obvious.
When a regulated business passes cargo on to another regulated business, they will
be required to issue a ChOCS for the cargo. Once a ChOCS has been issued by the
first business in the chain, the cargo will then be cleared. Subsequent regulated
businesses that handle the cargo will be required to handle the cargo in accordance
with their TSP or AACA Security Program and issue a ChOCS in order for the cargo
to retain its cleared security status. If the cargo is not kept secure and regardless of
whether a ChOCS has been issued, the cargo will lose its cleared security status and
will be required to be re-examined. This will provide assurance that the necessary
security measures have been implemented not only by the regulated business who
examines the cargo but also by every subsequent regulated business that handles the
cargo.
For cargo to retain its cleared status it can only be handled and transported by
regulated businesses—AACAs, operators of a prescribed air service or RACAs.
Non-regulated businesses such as ground handlers may load cleared cargo onto an
aircraft. However, it is an offence for a regulated business to cause a non-regulated
business to load uncleared cargo onto an aircraft.
3
ATTACHMENT B
Details of the Aviation Transport Security Amendment Regulation 2012 (No. 3)
Section 1 – Name of Regulation
This section provides that the title of the Regulation is the Aviation Transport
Security Amendment Regulation 2012 (No. 3)
Section 2 – Commencement
This section provides for the Regulation to commence on the commencement of Part
1 of Schedule 1 to the Aviation Transport Security Amendment (Air Cargo) Act 2011.
Section 3 – Variation
This section provides that the Aviation Transport Security Regulations 2005 are
amended as set out in Schedule 1.
Schedule 1 – Amendments
Item [1] - Regulation 1.03
This item inserts ‘chain of custody statement’ into the definitions. New regulation
4.41E provides the meaning of a ‘chain of custody statement’.
Item [2] - Regulation 1.03
This item inserts ‘class of regulated business’ into the definitions. A ‘class of
regulated business’ includes a regulated business identified by the kind of site or
facility where the regulated business examines cargo.
Item [3] - Regulation 1.03
This item inserts ‘regulated business’ into the definitions. A ‘regulated business’ is
defined as an accredited air cargo agent (AACA), an operator of a prescribed air
service, or a regulated air cargo agent (RACA).
Item [4] - Regulation 1.03
This item inserts ‘security contact officer’ into the definitions.
‘Security contact officer’ is incorporated into the definitions for easier reference.
Item [5] – Regulation 1.03
This item inserts ‘security declaration’ into the definitions.
New regulation 4.41D provides the meaning of a ‘security declaration’
Item [6] - Paragraph 2.50 (b)
4
This item removes the term ‘dealt with’ from this requirement and allow RACAs to
deliver cleared cargo to another regulated business.
The term ‘dealt with’ is removed because it is used specifically in the Aviation
Transport Security Act 2004 (the Act) for measures that apply after the cargo has
received clearance and prior to being cleared. The requirement that Transport
Security Programs (TSPs) provide for ‘methods to prevent unauthorised persons
from having access to the cargo’ applies to cargo at all times while it is in the
possession of the RACA.
This amendment allows RACAs to deliver cleared cargo to another regulated
business, including an AACA, another RACA or an aircraft operator.
Item [7] - Paragraph 2.54 (7) (b)
This item omits the requirement for the RACA to give the airport operator details of
the procedures to be used by the RACA to make known the location of airside areas,
airside security zones and landside security zones within the boundaries of the airport
as this detail is addressed by airport operators as required by paragraph 2.13(7)(b).
Item [8] - Paragraph 2.54 (7) (c)
This item inserts a change necessary as a consequence of the removal of paragraph
2.54(7)(b). This paragraph requires RACAs—whose facilities are located at a
security controlled airport—to give the airport operator details of ‘the procedures to
check the identity of persons who are authorised to have access to the facilities’.
Item [9] – Division 4.1A, heading
This item removes the term certifying from the heading of this division as it has been
removed from the Act.
Item [10] – Subdivision 4.1A.1
This item removes the existing regulations 4.40 (Examining Cargo) and 4.41
(Certifying and Clearing Cargo). It introduces regulations for examining and clearing
cargo to align with amendments made to the Act.
(i)
4.41A of Subdivision 4.1A.1 - Application of Subdivision 4.1A.1
This new regulation sets out the application of the Subdivision to apply to
international cargo defined under new regulation 4.41C and cargo specified in a
notice issued by the Secretary under new regulation 4.41J where that notice states
this subdivision must apply.
(ii)
4.41B of Subdivision 4.1A.1 - Purpose of Subdivision 4.1A.1
5
This new regulation sets out the provisions in the Act for examining and clearing
cargo bound for international destinations under which the amendments to
Subdivision 4.1A are prescribed.
(iii)
4.41C of Subdivision 4.1A.1 - Definitions for Subdivision
This new regulation provides the definition of international cargo as cargo that is
destined for a foreign country, but not transhipped cargo.
International cargo does not include transhipped cargo as this subdivision is not
intended to capture such types of cargo.
Transhipped cargo is defined as cargo that originates overseas, arrives at an
Australian airport on an aircraft operating an inbound international air service.
Furthermore, such cargo needs to remain onboard the aircraft or is transferred to
another aircraft operating an outbound international air service. If the cargo is
transferred, it would need to remain in the airside area of the airport during the
transfer.
(iv)
4.41D of Subdivision 4.1A.1 - Meaning of security declaration
This new regulation requires a ‘security declaration’ (SD) to be issued in order for
cargo to which this Subdivision applies to receive clearance under subsection 44B(2)
of the Act. The SD will be passed to each regulated business that handles the cargo
from the time when the SD is issued until the cargo is loaded on to a prescribed
aircraft.
A SD is a document that provides evidence that the regulated business has:
 examined and treated the cargo in its possession in accordance with their
TSP; or
 examined the cargo in its possession in accordance with a notice issued by
the Secretary under new regulation 4.41J and treated that cargo in accordance
with their TSP; or
 determined that the cargo in its possession is exempt from examination in
accordance with a notice issued by the Secretary under paragraph 44B(2)(b)
and treated that cargo in accordance with their TSP.
The content of the SD contains information to:
 identify the cargo -for example an air waybill number, connote number, Unit
Load Device (ULD) number, or other identifier that businesses handing the
cargo will understand; and
 state the name of the regulated business issuing the SD; and
 state the name and contact details of the individual issuing the SD on behalf
of the regulated business; and
 state the time and date the SD was issued; and
 declare that the cargo has received clearance.
(v)
4.41E of Subdivision 4.1A.1 - Meaning of chain of custody statement
6
This new regulation provides for a regulated business to issue a ‘chain of custody
statement’ (ChOCS) as evidence that cargo in its possession has been dealt with
securely from the time:
 the cargo received clearance to the time another regulated business takes
possession of it; or
 a regulated business takes possession of cleared cargo until the time the cargo
is passed to another regulated business
Where a ChOCS is issued by a regulated business as evidence that it has been dealt
with securely from the time when the cargo received clearance until the time another
regulated business takes possession, that ChOCS will be evidence that the cargo is
cleared for the purposes of subsection 44B(3) of the Act.
Where a ChOCS is issued by a regulated business as evidence that it has been dealt
with securely from the time the regulated business takes possession of cleared cargo
until the time the cargo is passed to another regulated business, the cargo is able to
maintain its cleared status.
The content of a ChOCS contains information to:
 identify the cargo—for example air waybill number, connote number, ULD
number or other identifier that businesses handing the cargo will understand;
and
 state the name of regulated business issuing the ChOCS; and
 state the name and contact details of individual issuing the ChOCS on behalf
of the regulated business; and
 state the time and date when the ChOCS was issued; and
 state the time and date when the regulated business took possession of the
cargo; and
 if the regulated business took possession of the cargo from a previous
regulated business and received an SD for that cargo, the ChOCS state that
the cargo has been held securely in accordance with the regulated businesses
TSP or AACA Security Program at all times when the regulated business has
been in possession of the cargo; or
 if the regulated business did not receive a SD for the cargo when they took
possession of that cargo, state that the regulated business issued a SD for the
cargo, and that the cargo has been held securely in accordance with the
regulated business’s TSP or AACA Security Program at all times after the SD
was issued.
(vi)
4.41F of Subdivision 4.1A.1 - Offence — issuing security declaration
This new regulation provides that a regulated business commits an offence if they
issue a SD under new regulation 4.41D without:
 when the cargo is exempt from examination because of a notice given to the
regulated business under paragraph 44B (2) (b) of the Act–having treated the
cargo in accordance with a TSP in force for the regulated business; or
 having examined the cargo in accordance with new regulation 4.41J and
treated the cargo in accordance with a TSP in force for the regulated business;
or
7

having examined and treated the cargo in accordance with a TSP in force for
the regulated business.
The fault element for each of the physical elements of the offence is to be strict
liability. The offence set out in this regulation will maintain the integrity of the new
regulatory framework by ensuring failure to make a SD in accordance with 4.41F
will help in preventing the loading of uncleared international cargo onto an aircraft.
The offence will ensure that there is an effective deterrent to contraventions. There
are legitimate grounds for penalising a regulated business lacking fault:
 It would be particularly difficult to prove fault in these circumstances as
extensive documentation regarding examination and treatment of cargo is
required to establish the fault elements of the regulated business.
 measures are to be put in place to ensure that it is placed on notice to guard
against the possibility of a contravention.
 if fault is required for this offence, significant resources would be needed for
enforcement and this will significantly impact on the resources available to
ensure the security of the air cargo supply chain.
(vii)
4.41G of Subdivision 4.1A.1 - Offence — issuing chain of custody
statement
This new regulation provides two offences to ensure the validity of a ChOCS.
The first offence provides that a regulated business commits an offence of strict
liability if it issues a ChOCS for cargo in its possession and it did not receive an SD
and a ChOCS when it took possession of the cargo, and it has not issued a SD for the
cargo. The second offence captures circumstances where a regulated business issues
a ChOCS for cargo in its possession but did not hold the cargo securely at all times in
accordance with its TSP or AACA Security Program. In this case, the cargo is no
longer cleared for the purposes of subsection 44B(3) of the Act and must be reexamined in order to re-enter the secure supply chain.
The fault element for each of the physical elements of the offence is to be strict
liability. The offence set out in this regulation will maintain the integrity of the new
regulatory framework by ensuring failure to make a SD in accordance with 4.41F
will help in preventing the loading of uncleared international cargo onto an aircraft.
The offence will ensure that there is an effective deterrent to contraventions. There
are legitimate grounds for penalising a regulated business lacking fault:
 It would be particularly difficult to prove fault in these circumstances as
extensive documentation regarding the handling and securing of cargo is
required to establish the fault elements of the regulated business.
 measures are to be put in place to ensure that it is placed on notice to guard
against the possibility of a contravention.
 if fault is required for this offence, significant resources would be needed for
enforcement and this will significantly impact on the resources available to
ensure the security of the air cargo supply chain.
A regulated business would be able to receive cargo that has not been cleared. Once
received, a regulated business would be able to choose to either clear the cargo and
issue a SD and the first ChOCS in the supply chain or choose to pass the cargo on as
cargo that has not been cleared. It is not an offence to pass the cargo on as cargo that
has not been cleared.
8
(viii) 4.41H of Subdivision 4.1A.1 - Offence — loading cargo on aircraft if no
security declaration or chain of custody statement
This new regulation provides that a regulated business commits an offence if firstly,
they load cargo, or enter into an agreement with a non-regulated business to load
cargo, onto a prescribed aircraft without both a SD and ChOCS. Secondly, this
offence will apply if the next time the cargo is to be unloaded it will be outside
Australia.
This offence should be read in conjunction with the definition of international cargo
under new regulation 4.41C. It is not an offence to load international cargo onto a
prescribed aircraft, where that cargo is to be unloaded at another Australian airport.
For example, if international cargo is loaded in Perth, then unloaded in Sydney
before being loaded on an aircraft departing for Auckland, then at the time of loading
in Perth it is not cargo that is to be unloaded outside Australia.
The fault element for each of the physical elements of the offence is to be strict
liability. The offence set out in this regulation will maintain the integrity of the new
regulatory framework by ensuring failure to make a SD in accordance with 4.41F
will help in preventing the loading of uncleared international cargo onto an aircraft.
The offence will ensure that there is an effective deterrent to contraventions. There
are legitimate grounds for penalising a regulated business lacking fault:
 It would be particularly difficult to prove fault in these circumstances as
extensive documentation regarding loading and unloading of cargo is
required to establish the fault elements of the regulated business.
 measures are to be put in place to ensure that it is placed on notice to guard
against the possibility of a contravention.
 if fault is required for this offence, significant resources would be needed for
enforcement and this will significantly impact on the resources available to
ensure the security of the air cargo supply chain.
(ix)
4.41J of Subdivision 4.1A.1A- Notice by Secretary
This new regulation replaces existing subregulations 4.40 (4)–(7). This allows the
Secretary to make a written notice to one or more regulated businesses about how
that regulated business is required to examine certain types of cargo. The notice may
state the types of cargo to be examined, the methods, the records to be kept,
techniques and equipment to be used for examining such cargo and the procedures
for handling such cargo after it has been examined.
The notice may direct that the requirements of subdivision 4.1A.1 apply to types of
cargo.
This regulation is also expressed to extend in relation to aircraft of the type specified
in section 134(1) of the Act, while they are outside of Australia.
(x)
4.41K of Subdivision 4.1A.1A - Offence — examination of cargo in
accordance with notice
This new regulation provides that a regulated business commits an offence if they
have been issued a notice for examining cargo under new regulation 4.41J but did not
examine such cargo in accordance with that notice.
9
This regulation would provide that a regulated business commits an offence if they
have been issued a notice for examining cargo under new regulation 4.41J but did not
examine such cargo in accordance with that notice.
The fault element for each of the physical elements of the offence is to be strict
liability. The offence set out in this regulation will maintain the integrity of the new
regulatory framework by ensuring failure to make a SD in accordance with 4.41F
will help in preventing the loading of uncleared international cargo onto an aircraft.
The offence will ensure that there is an effective deterrent to contraventions. There
are legitimate grounds for penalising a regulated business lacking fault:
 It would be particularly difficult to prove fault in these circumstances as
extensive documentation regarding examination and treatment is required to
establish the fault elements of the regulated business.
 measures are to be put in place to ensure that it is placed on notice to guard
against the possibility of a contravention.
 if fault is required for this offence, significant resources would be needed for
enforcement and this will significantly impact on the resources available to
ensure the security of the air cargo supply chain.
Item [11] Subregulations 4.44 (2) and (3)
This amendment clarifies the responsibilities in relation to the revocation of
designation as a RACA. There are no additional requirements; the wording is
simplified.
Item [12] Note, Paragraph 4.48
This note is removed as the relevant information can be found at existing regulation
4.51H.
10
ATTACHMENT C
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
Aviation Transport Security Amendment Regulation 2012 (No. 3)
This 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 Legislative Instrument
The Legislative Instrument supports the changes made to the Aviation Transport
Security Act 2004 by the Aviation Transport Security Amendment (Air Cargo) Act
2011.
The purpose of this legislative instrument is to establish a flexible framework for
examining and clearing cargo that can be done at any point in the supply chain and for
maintaining the integrity of secure cargo throughout the supply chain.
The Legislative Instrument achieves this purpose by allowing cargo to be examined
and cleared earlier in the supply chain, and establishing a system that makes it easier
to identify the security status of cargo.
The Legislative Instrument does not change the fundamental requirement of the
current legislative framework to examine and clear cargo.
Human rights implications
The legislative Instrument engages the following human right:
Presumption of innocence
There are four offences created in this Legislative instrument which are strict liability
offences. These strict liability offences engage the right to the presumption of
innocence, which is a fundamental principle of the common law and is contained in
article 14(2) of the International Covenant on Civil and Political Rights.
While these offences engage the right to the presumption of innocence there are
several elements that demonstrate the imposition on this right is reasonable and
proportionate.
The objective of these offences is to ensure the secure transport of Australia’s air
cargo. Including a provable fault element would likely undermine this objective, as it
would be difficult to prove fault in most instances. The strict liability offences ensure
that they are an effective deterrent to contraventions of the system created in this
legislative Instrument.
This Legislative Instrument puts systems in place that will be a necessary requirement
for any regulated business wishing to handle secure cargo. The offences created by
this Legislative Instrument relate to the proper implementation of this system. As such
11
the regulated business could be reasonably expected to know these obligations
because of the regulatory regime governing the industry.
In addition, regulated businesses are not subject to reliance on the actions of third
parties in relation to these offences.
The offences created by this Legislative Instrument are essentially regulatory in nature
and do not engage conduct that is inherently wrongful. Rather, as stated above, the
offences are created to support a system that provides a secure supply chain.
The strict liability offences are not severe. They are limited to 100 penalty units for
each offence and do not include imprisonment. The offences will be committed by the
regulated business and not employees of the regulated business.
Conclusion
The strict liability offences created in this Legislative Instrument impose reasonable
and proportionate limitations on the presumption of innocence.
The Hon Anthony Albanese MP
Minister for Infrastructure and Transport
12