An Act to safeguard against unlawful interference with aviation, and for other purposes
Part 1—Preliminary
Division 1—Short title and commencement
1 Short title
This Act may be cited as the Aviation Transport Security Act 2004.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table.
| Commencement information |
| Column 1 | Column 2 | Column 3 |
| Provision(s) | Commencement | Date/Details |
| 1. Sections 1 and 2 and anything in this Act not elsewhere covered by this table | The day on which this Act receives the Royal Assent | 10 March 2004 |
| 2. Sections 3 to 133 | A single day to be fixed by Proclamation, subject to subsection (3) | 10 March 2005 |
Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table is for additional information that is not part of this Act. This information may be included in any published version of this Act.
(3) If a provision covered by item 2 of the table does not commence within the period of 12 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.
Division 2—Purposes and simplified overview of this Act
3 Purposes of this Act
(1) The main purpose of this Act is to establish a regulatory framework to safeguard against unlawful interference with aviation.
Note: Division 10 of Part 4 has additional purposes (see section 74J).
(2) To achieve this purpose, this Act establishes minimum security requirements for civil aviation in Australia by imposing obligations on persons engaged in civil aviation related activities. In particular, it obliges certain aviation industry participants to develop, and comply with, aviation security programs.
(4) Another purpose of this Act is to meet Australia’s obligations under the Convention on International Civil Aviation (also known as the Chicago Convention).
Note: The Chicago Convention is set out in the Air Navigation Act 1920.
(5) It is not a purpose of this Act to prevent lawful advocacy, protest, dissent or industrial action that does not compromise aviation security.
4 Simplified overview of this Act
This Act establishes a number of mechanisms to safeguard against unlawful interference with aviation.
Part 2 requires aviation industry participants to have in place approved transport security programs. Such programs must detail how the participants will manage security for their operations.
Part 3 allows the Secretary to designate airports as security controlled airports and to establish airside and landside areas, security zones and event zones for those airports. Once established, the areas and zones are subject to requirements directed at safeguarding against unlawful interference with aviation.
Part 4 deals with a number of specific security measures, including screening, examination, on‑board security, persons in custody and offences in relation to weapons and prohibited items. It also allows the Minister to make a legislative instrument prohibiting the entry of specified kinds of cargo into Australian territory. It also allows the Secretary to give special security directions and control directions in certain circumstances. It also allows the Minister to determine a code regulating and authorising the use of optical surveillance devices at airports and on board aircraft.
Part 5 establishes the powers of officials acting under the Act. These officials are aviation security inspectors, law enforcement officers, airport security guards and screening officers.
Part 6 establishes reporting obligations in relation to aviation security incidents.
Part 7 allows the Secretary to require aviation industry participants to provide security compliance information and aviation security information.
Part 8 provides a range of enforcement mechanisms. These are infringement notices, enforcement orders, enforceable undertakings, injunctions and a demerit points system.
Part 9 provides for the review of certain decisions by the Administrative Appeals Tribunal.
Part 10 deals with miscellaneous matters.
Division 3—Application
5 Extension to Territories
This Act extends to every external Territory.
6 Geographical jurisdiction
Section 15.2 of the Criminal Code (extended geographical jurisdiction—category B) applies to an offence against this Act.
7 Act to bind Crown
(1) This Act binds the Crown in each of its capacities.
(2) This Act does not make the Crown in right of the Commonwealth liable to be prosecuted for an offence.
8 Act not to apply to state aircraft etc.
(1) Unless the contrary intention appears, this Act does not apply to, or in relation to:
(a) a state aircraft; or
(b) an aircraft that is leased to or chartered by, or is otherwise under the operational control of, the Australian Defence Force.
(2) A reference in this Act to an aviation industry participant does not include a reference to:
(a) the Australian Defence Force; or
(b) the Australian Federal Police; or
(c) the Australian Protective Service; or
(d) the police force of a State or Territory; or
(e) an Agency of the Commonwealth prescribed in the regulations.
Division 4—Definitions
9 Definitions
In this Act, unless the contrary intention appears:
accredited air cargo agent means a person accredited as an accredited air cargo agent in accordance with regulations made under section 44C.
acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.
Agency has the same meaning as in the Public Service Act 1999.
Agency Head has the same meaning as in the Public Service Act 1999.
aircraft has the same meaning as in the Civil Aviation Act 1988.
aircraft operator means a person who conducts, or offers to conduct, an air service.
airline has the meaning given by subsection 134(2).
airport has the meaning given by subsection 28(1).
airport operator means the operator of an airport.
airport security guard has the meaning given by subsection 91(1).
air service means a service of providing air transportation of people or goods, or both people and goods.
Airservices Australia means the body established by subsection 7(1) of the Air Services Act 1995.
airside area means an airside area established under subsection 29(1) and includes any airside security zone, and any airside event zone, established within the airside area.
airside event zone means an airside event zone established under subsection 31A(1).
airside security zone means an airside security zone established under subsection 30(1).
Australian aircraft has the same meaning as in the Air Services Act 1995.
Australian international carriage has the meaning given by subsection 134(2).
Australian operator has the meaning given by subsection 134(2).
Australian territory means:
(a) the territory of Australia and of every external Territory; and
(b) the territorial sea of Australia and of every external Territory; and
(c) the air space over any such territory or sea.
aviation industry participant means:
(a) an airport operator; or
(b) an aircraft operator; or
(c) a known consignor; or
(ca) a regulated agent; or
(d) a person who occupies or controls an area of an airport (whether under a lease, sublease or other arrangement); or
(e) a person (other than an aviation security inspector) appointed by the Secretary under this Act to perform a security function; or
(ea) Airservices Australia; or
(f) a contractor who provides services to a person mentioned in paragraphs (a) to (ea).
Note: The Australian Defence Force cannot be an aviation industry participant: see subsection 8(2).
aviation security incident has the meaning given by section 99.
aviation security information has the meaning given by subsection 111(1).
aviation security inspector means a person appointed under subsection 77(1).
baggage means any article or possession of a passenger of an aircraft, or crew member of an aircraft, that is to be carried on board that aircraft.
bilateral arrangement has the meaning given by subsection 134(2).
cargo means goods (other than baggage or stores) that:
(a) are transported by aircraft; or
(b) are intended to be transported by aircraft; or
(c) are, in accordance with the regulations, regarded as being reasonably likely to be transported by aircraft.
CASA has the same meaning as in the Civil Aviation Act 1988.
cleared:
(a) in relation to a person, has the meaning given by subsection 41(3); and
(b) in relation to goods (other than cargo), has the meaning given by subsection 42(3); and
(c) in relation to a vehicle, has the meaning given by subsection 43(3); and
(d) in relation to cargo, has the meaning given by subsection 44B(3).
cleared aircraft: an aircraft is a cleared aircraft if, under regulations made under Division 2 of Part 4, the only passengers who are allowed to board the aircraft are passengers who are cleared.
cleared area means an area that, under regulations made under Part 3 or 4, may be entered only by persons who have received clearance.
cleared zone means a zone that, under regulations made under Part 3 or 4, may be entered only by persons who have received clearance.
compliance control direction has the meaning given by subsection 74B(2).
confidentiality requirements has the meaning given by subsection 68(2).
critical facility has the meaning given by subsection 31(3).
critical structure has the meaning given by subsection 31(4).
damage, in relation to data, includes damage by erasure of data or addition of other data.
Defence Department means the Department of State that deals with defence and that is administered by the Minister administering section 1 of the Defence Act 1903.
Director of CASA has the same meaning as Director has in the Civil Aviation Act 1988.
eligible customs officer has the meaning given by subsection 89B(1).
employee, in relation to an aviation industry participant, means an individual:
(a) employed by the aviation industry participant; or
(b) engaged under a contract for services between the individual and the aviation industry participant.
enforcement order means an order made under section 119.
engage in conduct has the same meaning as in the Criminal Code.
examined, in relation to cargo, has the meaning given by subsection 44B(1).
Federal Court means the Federal Court of Australia.
Foreign Affairs Minister means the Minister administering the Diplomatic Privileges and Immunities Act 1967.
foreign country has the meaning given by subsection 134(2).
frisk search has the same meaning as in the Crimes Act 1914.
incident control direction has the meaning given by subsection 74D(3).
in flight has the same meaning as in the Crimes (Aviation) Act 1991.
in service, in relation to an aircraft, has the same meaning as in Article 2 of the Montreal Convention.
joint‑user area has the meaning given by subsection 28(5).
just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.
known consignor means a person approved as a known consignor in accordance with regulations made under section 44C.
landside area has the meaning given by subsection 29(3) and includes any landside security zone, and any landside event zone, established within the landside area.
landside event zone means a landside event zone established under subsection 33A(1).
landside security zone means a landside security zone established under subsection 32(1).
law enforcement officer has the meaning given by section 82.
Montreal Convention has the same meaning as in the Crimes (Aviation) Act 1991.
national security has the same meaning as in the National Security Information (Criminal and Civil Proceedings) Act 2004.
optical surveillance device has the same meaning as in the Surveillance Devices Act 2004.
ordinary search has the same meaning as in the Crimes Act 1914.
passenger includes an intending passenger.
person in custody has the meaning given by section 64.
person with incident reporting responsibilities has the meaning given by subsection 102(4).
pilot in command, in relation to an aircraft, means the pilot responsible for the operation and safety of the aircraft during the flight of the aircraft.
prescribed aircraft means an aircraft that:
(a) is being used for a prescribed air service; or
(b) is regularly used for prescribed air services.
prescribed air service means an air service prescribed in the regulations for the purposes of this definition.
prohibited item means an item that:
(a) could be used for unlawful interference with aviation; and
(b) is specified in an instrument under section 9A.
receive clearance:
(a) in relation to a person, has the meaning given by subsection 41(2); and
(b) in relation to goods (other than cargo), has the meaning given by subsection 42(2); and
(c) in relation to a vehicle, has the meaning given by subsection 43(2); and
(d) in relation to cargo, has the meaning given by subsection 44B(2).
regulated agent means a regulated air cargo agent or an accredited air cargo agent.
regulated air cargo agent means a person designated as a regulated air cargo agent in accordance with regulations made under section 44C.
screened:
(a) in relation to a person, has the meaning given by subsection 41(1); and
(b) in relation to goods (other than cargo), has the meaning given by subsection 42(1); and
(c) in relation to a vehicle, has the meaning given by subsection 43(1).
screening authority means a body corporate that is authorised or required to conduct screening by or under regulations made for the purposes of paragraph 44(2)(a).
screening officer has the meaning given by subsection 94(1).
screening point means a place where screening occurs.
Secretary means the Secretary of the Department.
security compliance information has the meaning given by subsection 109(1).
security controlled airport has the meaning given by subsection 28(2).
security designated authorisation has the meaning given by the regulations.
SES Band 3 employee has the meaning given by subsection 127A(4).
special security direction has the meaning given by subsection 67(2).
state aircraft has the same meaning as in the Air Navigation Act 1920.
stores means items that are to be carried on board an aircraft for use, sale or consumption on the aircraft.
this Act includes the regulations.
threaten: a person is taken to threaten to do an act if the person makes a statement, or does anything else, showing, or from which it could reasonably be inferred, that it is his or her intention to do the act.
Trade Minister means the Minister administering the Export Market Development Grants Act 1997.
transport security program means a program prepared for the purposes of Part 2.
unlawful interference with aviation has the meaning given by section 10.
vehicle does not include an aircraft.
weapon means:
(a) a firearm of any kind; or
(b) a thing prescribed by the regulations to be a weapon; or
(c) a device that, except for the absence of, or a defect in, a part of the device, would be a weapon of a kind mentioned in paragraph (a) or (b); or
(d) a device that is reasonably capable of being converted into a weapon of a kind mentioned in paragraph (a) or (b).
9A Prohibited items
The Minister may, by legislative instrument, specify items for the purposes of paragraph (b) of the definition of prohibited item in section 9.
Division 5—Unlawful interference with aviation
10 Meaning of unlawful interference with aviation
(1) Any of the following done, or attempted to be done, without lawful authority is an unlawful interference with aviation:
(a) taking control of an aircraft by force, or threat of force, or any other form of intimidation or by any trick or false pretence;
(b) destroying an aircraft that is in service;
(c) causing damage to an aircraft that is in service that puts the safety of the aircraft, or any person on board or outside the aircraft, at risk;
(d) doing anything on board an aircraft that is in service that puts the safety of the aircraft, or any person on board or outside the aircraft, at risk;
(e) placing, or causing to be placed, on board an aircraft that is in service anything that puts the safety of the aircraft, or any person on board or outside the aircraft, at risk;
(f) putting the safety of aircraft at risk by interfering with, damaging or destroying air navigation facilities;
(g) putting the safety of an aircraft at risk by communicating false or misleading information;
(h) committing an act at an airport, or causing any interference or damage, that puts the safe operation of the airport, or the safety of any person at the airport, at risk.
(2) However, unlawful interference with aviation does not include lawful advocacy, protest, dissent or industrial action that does not result in, or contribute to, an action of a kind mentioned in paragraphs (1)(a) to (h).
Division 6—General defences
10A General defences
Decisions of pilot in command
(1) A person does not commit an offence against this Act if:
(a) a physical element of the offence exists (whether directly or indirectly) because the pilot in command of an aircraft engaged in conduct in the operation or control of the aircraft; and
(b) without the existence of that physical element the person would not commit the offence; and
(c) the pilot engaged in the conduct to protect the safety or security of:
(i) the aircraft; or
(ii) the aircraft’s cargo; or
(iii) a person (whether on board the aircraft or not); or
(iv) another aircraft; or
(v) an airport, or an airport facility or other installation within an airport; and
(d) the conduct was reasonable in the circumstances.
Note: A defendant bears an evidential burden in relation to the matters in subsection (1) (see subsection 13.3(3) of the Criminal Code).
Special security directions
(2) If:
(a) a person is required to comply with a special security direction; and
(b) compliance with the direction would mean that the person commits an offence against, or otherwise contravenes a requirement of, this Act;
the person, in complying with the security direction, is taken not to have committed the offence or contravened the requirement.
Note: A defendant bears an evidential burden in relation to the matters in subsection (2) (see subsection 13.3(3) of the Criminal Code).
Control directions
(3) If:
(a) a person is required to comply with a compliance control direction or an incident control direction; and
(b) compliance with the direction would mean that the person commits an offence against, or otherwise contravenes a requirement of, this Act;
the person, in complying with the control direction, is taken not to have committed the offence or contravened the requirement.
Note: A defendant bears an evidential burden in relation to the matters in subsection (3) (see subsection 13.3(3) of the Criminal Code).
Part 2—Transport security programs
Division 1—Simplified overview of Part
11 Simplified overview of Part
Various aviation industry participants are required to have, and comply with, transport security programs. This is dealt with in Division 2.
Various other persons are required to comply with the transport security programs of aviation industry participants. This is dealt with in Division 3.
The content and form of transport security programs is dealt with in Division 4.
The approval of transport security programs by the Secretary is dealt with in Division 5. That Division also deals with the variation and revision of programs, and with the cancellation of the approval of programs.
Division 2—Aviation industry participants required to have programs
12 Who must have a program
(1) The following aviation industry participants are required to have a transport security program:
(a) an operator of a security controlled airport;
(b) an operator of a prescribed air service;
(c) a participant of a kind prescribed in the regulations.
(2) The Secretary may, by written notice given to an aviation industry participant, permit the participant to have more than one transport security program.
(3) The notice must specify the operations or locations to be covered by each program.
(4) If the participant has more than one program, the participant is required to have all of the programs specified in the notice.
13 Participants required to have programs to operate
(1) An aviation industry participant commits an offence if:
(a) the participant is required under section 12 to have a transport security program; and
(b) the participant operates as a participant of that kind; and
(c) there is not such a program in force for the participant.
Penalty: For an airport operator or an aircraft operator—200 penalty units.
For an aviation industry participant, other than an airport operator or an aircraft operator—100 penalty units.
(2) Subsection (1) does not apply if the participant has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
(3) Subsection (1) is an offence of strict liability.
14 Participants must comply with programs
(1) An aviation industry participant commits an offence if:
(a) there is a transport security program for the participant in force; and
(b) the participant fails to comply with the program.
Penalty: For an airport operator or an aircraft operator—200 penalty units.
For an aviation industry participant, other than an airport operator or an aircraft operator—100 penalty units.
(2) Subsection (1) does not apply if the participant has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
(3) Subsection (1) is an offence of strict liability.
Division 3—Complying with programs of other participants
15 Complying with transport security programs of other participants
(1) An aviation industry participant must not engage in conduct that hinders or obstructs compliance with the transport security program of another aviation industry participant.
(2) If:
(a) a transport security program for an aviation industry participant covers the activities of another aviation industry participant; and
(b) the other participant has been given the relevant parts of the program;
the other aviation industry participant must take all reasonable steps to comply with the program.
(3) If an aviation industry participant contravenes subsection (1) or (2), the participant does not commit an offence but may be subject to an enforcement order (see section 119) or an injunction under section 124.
Division 4—Content and form of programs
16 Content of programs
(1) A transport security program for an aviation industry participant must demonstrate that the participant:
(a) is aware of the participant’s general responsibility to contribute to the maintenance of aviation security; and
(b) has developed an integrated, responsible and proactive approach to managing aviation security; and
(c) is aware of, and has the capacity to meet, the specific obligations imposed on the participant under this Act; and
(d) has taken into account relevant features of the participant’s operation in developing activities and strategies for managing aviation security.
(2) A transport security program for an aviation industry participant must set out the following:
(a) how the participant will manage and co‑ordinate aviation security activities within the participant’s operation;
(b) how the participant will co‑ordinate the management of aviation security with other parties (including Commonwealth agencies) who have responsibilities for, or are connected with, aviation;
(c) the technology, equipment and procedures to be used by the participant to maintain aviation security;
(d) how the participant will respond to aviation security incidents;
(e) the practices and procedures to be used by the participant to protect security compliance information;
(f) the other aviation industry participants who are covered by, or operating under, the program;
(g) the consultation that was undertaken, in preparing the program, by the participant with the other aviation industry participants who are covered by, or operating under, the program.
(3) The regulations may prescribe other matters that are to be dealt with in one or more of the following:
(a) each transport security program;
(b) each transport security program for a particular kind of aviation industry participant;
(c) each transport security program for a particular class of a particular kind of aviation industry participant.
17 Form of programs etc.
(1) A transport security program must be:
(a) in writing; and
(b) prepared in accordance with any requirements set out in the regulations.
(2) An airport operator’s transport security program for a security controlled airport must be accompanied by:
(a) a map that shows the airside and landside areas, and any airside security zones and landside security zones, for the airport; and
(b) if the operator proposes changes to the areas or zones for the airport—a map that shows the proposed changes.
Division 5—Approving, revising and cancelling programs
18 Providing programs for approval
An aviation industry participant may give the Secretary a transport security program for the participant and request the Secretary to approve the program.
19 Approval
(1) If the Secretary is satisfied that the program adequately addresses the relevant requirements under Division 4, the Secretary must:
(a) approve the program; and
(b) give the participant written notice of the approval.
(2) If the Secretary is not satisfied that the program adequately addresses the relevant requirements under Division 4, the Secretary must:
(a) refuse to approve the program; and
(b) give the participant written notice of the refusal.
(3) In determining whether the program adequately addresses the relevant requirements under Division 4, the Secretary may take account of existing circumstances as they relate to aviation security.
Failure to approve program within consideration period
(4) If:
(a) an aviation industry participant gives the Secretary a transport security program; and
(b) the Secretary does not approve, or refuse to approve, the program within the consideration period;
the Secretary is taken to have refused to approve the program at the end of that period.
Note: An aviation industry participant may apply to the Administrative Appeals Tribunal for review of a decision to refuse to approve a transport security program under subsection (2) or (4): see section 126.
Secretary may request further information
(5) The Secretary may, by written notice given to the participant within the consideration period, request the participant to give the Secretary specified information relevant to the approval of the program.
(6) The notice must specify a period of not more than 45 days within which the information must be given. However, if more than one notice is given to the participant under subsection (5), the total of the periods specified in the notices must not exceed 45 days.
Consideration period
(7) The consideration period is the period of 60 days starting on the day on which the Secretary received the program, extended, for each notice given under subsection (5), by the number of days falling within the period:
(a) starting on the day on which the notice was given; and
(b) ending on:
(i) the day on which the information requested in that notice was received by the Secretary; or
(ii) if the information was not given within the period specified in that notice—the last day of that period.
20 When a program is in force
When program comes into force
(1) If the Secretary approves the transport security program, the program comes into force at the time specified in the notice of approval.
(2) However, if:
(a) the time specified in the notice is earlier than the time at which the notice was given; or
(b) no time is specified in the notice as the time when the program comes into force;
the program comes into force when the notice is given.
Period in which program remains in force
(3) The program remains in force for a period of 5 years or such lesser period as the Secretary specifies in the notice of approval (which must be at least 12 months), unless before the end of that period:
(a) the program is replaced under subsection 22(4) or 23(4); or
(b) the approval of the program is cancelled under this Division.
21 Secretary may direct participants to vary programs
(1) If:
(a) a transport security program for an aviation industry participant is in force; and
(b) the Secretary is no longer satisfied that the program adequately addresses the relevant requirements under Division 4;
the Secretary may, by written notice given to the participant, direct the participant to vary the program.
(2) However, the Secretary must not give a direction under subsection (1) unless the Secretary is satisfied that the program, as varied, would adequately address the relevant requirements under Division 4.
(3) In the notice, the Secretary must:
(a) set out the variation; and
(b) specify the period within which the participant must give the Secretary the program as varied.
(3A) If the participant gives the Secretary the program:
(a) varied in accordance with the direction; and
(b) within the specified period, or within any further period allowed by the Secretary;
the Secretary must, by written notice given to the participant, approve the variation. The variation comes into force when the notice is given.
Note: As the program is not replaced, the variation does not affect the period for which the program is in force. Subsection 20(3) deals with the period a transport security program is in force.
Example: A transport security program is approved on 1 January 2008. The Secretary does not specify in the notice of approval the period it is to be in force.
On 1 March 2011 a variation to the program comes into force.
The program (as now varied) will cease to be in force at the end of 31 December 2012 unless it is replaced or cancelled before then.
(4) If the participant does not give the Secretary the program:
(a) varied in accordance with the direction; and
(b) within the specified period, or within any further period allowed by the Secretary;
the Secretary must, by written notice given to the participant, cancel the approval of the program.
22 Participants may revise programs
(1) If a transport security program for an aviation industry participant (the existing program) is in force, the participant may, by written notice given to the Secretary, request the Secretary to approve another transport security program (the revised program) in its place.
(2) The notice must be accompanied by a copy of the revised program.
(3) If a request is made in accordance with this section, sections 19 and 20 apply in relation to the revised program.
(4) If the revised program comes into force, it replaces the existing program.
23 Secretary may direct participants to revise programs
(1) If:
(a) a transport security program for an aviation industry participant (the existing program) is in force; and
(b) the Secretary is no longer satisfied that the program adequately addresses the relevant requirements under Division 4:
(i) because there is a change in the circumstances that relate to aviation security; or
(ii) because there is a change in circumstances that could impact on aviation security; or
(iii) for some other reason;
the Secretary may, by written notice given to the participant, direct the participant to give the Secretary another transport security program (the revised program).
(2) The notice must specify the period within which the revised program must be given.
(2A) If the participant gives the Secretary the revised program within the specified period, or within any further period allowed by the Secretary, sections 19 and 20 apply in relation to the revised program.
(3) If the participant does not give the Secretary the revised program within the specified period, or within any further period allowed by the Secretary, the Secretary must, by written notice given to the participant, cancel the approval of the existing program.
(4) If the revised program comes into force, it replaces the existing program.
23A Secretary may approve alterations of programs
(1) An aviation industry participant may, in writing, request the Secretary to approve proposed alterations of a transport security program. The request must set out the proposed alterations.
(2) If the Secretary is satisfied:
(a) that it is appropriate to deal with all the proposed alterations under this section; and
(b) that the program as proposed to be altered adequately addresses the relevant requirements under Division 4;
the Secretary must:
(c) approve the alterations; and
(d) give the participant written notice of the approval.
(3) If the Secretary is not satisfied:
(a) that it is appropriate to deal with all the proposed alterations under this section; or
(b) that the program as proposed to be altered adequately addresses the relevant requirements under Division 4;
the Secretary must:
(c) refuse to approve the alterations; and
(d) give the participant written notice of the refusal.
(4) In determining whether the program as proposed to be altered adequately addresses the relevant requirements under Division 4, the Secretary may take account of existing circumstances as they relate to aviation security.
(5) If the Secretary approves alterations of a program, the alterations come into force at the time specified in the notice of approval.
Note: As the program is not replaced, the alterations do not affect the period for which the program is in force. Subsection 20(3) deals with the period a transport security program is in force.
Example: A transport security program is approved on 1 January 2008. The Secretary does not specify in the notice of approval the period it is to be in force.
On 1 March 2011 alterations to the program come into force.
The program (as now altered) will cease to be in force at the end of 31 December 2012 unless it is replaced or cancelled before then.
(6) However, the alterations come into force when the notice is given if:
(a) the time specified in the notice is earlier than the time at which the notice was given; or
(b) no time is specified in the notice as the time when the alterations come into force.
(7) If:
(a) an aviation industry participant requests the Secretary to approve alterations of a transport security program; and
(b) the Secretary does not approve, or refuse to approve, the alterations within the period of 60 days after the request was given;
the Secretary is taken to have refused to approve the alterations.
25 Cancelling inadequate programs
If:
(a) a transport security program for an aviation industry participant is in force; and
(b) the Secretary is no longer satisfied that the program adequately addresses the relevant requirements under Division 4; and
(c) the Secretary is satisfied that it is not appropriate to direct the participant to:
(i) vary the program under section 21; or
(ii) revise the program under section 23;
the Secretary must, by written notice given to the participant, cancel the approval of the program.
26 Cancelling for failure to comply
(1) If:
(a) a transport security program for an aviation industry participant is in force; and
(b) the participant has accumulated the number of demerit points prescribed by the regulations as the number necessary for the Secretary to be able to cancel the approval of the program;
the Secretary may, by written notice given to the participant, cancel the approval of the program.
Note: For the demerit points system, see Division 5 of Part 8.
(2) Before cancelling the approval of a program under subsection (1), the Secretary may, by written notice given to the participant, request the participant to show cause why the approval of the program should not be cancelled.
26A Cancelling transport security programs on request
If:
(a) a transport security program for an aviation industry participant is in force; and
(b) the participant makes a written request to the Secretary for the approval of the program to be cancelled;
the Secretary must, by written notice given to the participant, cancel the approval of the program.
Part 3—Airport areas and zones
Division 1—Simplified overview of Part
27 Simplified overview of Part
The Secretary may designate an airport as a security controlled airport and assign a category to that airport. A security controlled airport has an airside area and a landside area.
Airside security zones and airside event zones may be established within an airside area, and landside security zones and landside event zones within a landside area.
Regulations under Division 3 will detail the requirements applying to airside areas, airside security zones and airside event zones.
Regulations under Division 4 will detail the requirements applying to landside areas, landside security zones and landside event zones.
Regulations under Division 5 may create offences for causing disruption or interference in relation to security controlled airports.
Division 2—Establishment of areas and zones
28 Airports and security controlled airports
(1) An airport is an area of land or water (including any buildings, installations or equipment situated in the area) intended for use either wholly or partly in connection with the arrival, departure or movement of aircraft. It also includes any area that is controlled by the airport operator that is contiguous with such an area of land or water.
(2) The Secretary may, by notice published in the Gazette, declare that a particular airport, or a part of a particular airport, is a security controlled airport.
(3) The notice must include a map of the airport that shows the boundaries of the security controlled airport.
(4) However, the Secretary must not:
(a) include any area that is controlled exclusively by the Australian Defence Force within the boundaries of a security controlled airport; or
(b) include a joint‑user area within the boundaries of a security controlled airport without the agreement of the Secretary of the Defence Department.
(5) A joint‑user area is an area that is controlled jointly by the Australian Defence Force and one or more aviation industry participants.
(6) The Secretary may, by notice published in the Gazette, assign a particular security controlled airport a category prescribed under section 28A.
(7) If the Secretary publishes a notice under subsection (6) in relation to a security controlled airport, the Secretary must, by written notice given to the operator of the airport, specify the category assigned to the airport.
28A Categories of security controlled airports
The regulations may prescribe different categories of security controlled airports.
Note: Regulations under this Act (for example, regulations made for the purposes of Division 3 or 4) may make different provision with respect to different categories of security controlled airports: see subsection 33(3A) of the Acts Interpretation Act 1901.
29 Airport areas—airside and landside
Airside
(1) A notice published in the Gazette under subsection 28(2) must establish an airside area for the security controlled airport and show the boundaries of the airside area.
(2) The purpose of an airside area is to control access to operational areas of a security controlled airport.
Landside
(3) Any other area within the boundaries of the security controlled airport (as shown on the map published under subsection 28(3)) is the landside area of the security controlled airport.
30 Airside security zones
(1) The Secretary may, by written notice given to the operator of a security controlled airport, establish one or more airside security zones within the airside area of the airport. Each zone must be of a type prescribed under section 31.
(2) The notice must include a map of the airport that shows the boundaries of the airside security zones.
(2A) A notice commences:
(a) when the Secretary gives the notice to the airport operator; or
(b) if a time is specified in the notice—at that time.
The time specified must not be earlier than the time the notice is given.
(2B) Each airport security zone is in force from the commencement of the notice that establishes it.
(3) The purpose of airside security zones is to subject those zones, within the airside area of a security controlled airport, to stricter or more specialised controls than those applying generally to the airside area.
31 Types of airside security zones
(1) The regulations may prescribe different types of airside security zones.
(2) The purposes for which different types of airside security zones may be prescribed include, but are not limited to, the following:
(a) controlling the movement of people, vehicles and goods within airside areas;
(b) restricting access to airside security zones within airside areas;
(c) providing cleared zones;
(d) preventing interference with aircraft (including unattended aircraft);
(e) ensuring the security of the following:
(i) air traffic control facilities;
(ii) fuel storage areas;
(iii) general aviation areas;
(iv) cargo and baggage handling facilities;
(v) navigational aids;
(va) fire stations and other emergency service facilities;
(vi) critical facilities and critical structures.
(3) A facility is a critical facility if interference with, or damage to, the facility could put the safe operation of an airport or an aircraft at risk.
(4) A structure is a critical structure if interference with, or damage to, the structure could put the safe operation of an airport or an aircraft at risk.
31A Airside event zones
Establishing airside event zones
(1) The Secretary may, by written notice given to the operator of a security controlled airport, establish one or more airside event zones within the airside area of the airport. Each zone must be of a type prescribed under section 31B.
(2) The notice must include a map of the airport that shows the boundaries of each airside event zone.
(3) For each airside event zone, the notice may specify the period (or periods) during which the zone is in force. If no period is specified, the zone is in force from the commencement of the notice.
(4) A notice commences:
(a) when the Secretary gives the notice to the airport operator; or
(b) if a time is specified in the notice—at that time.
The time specified must not be earlier than the time the notice is given.
Purpose of airside event zones
(5) Subject to subsection (6), the purpose of airside event zones is to subject those zones, within the airside area of a security controlled airport, to controls some or all of which are different from those applying generally to the airside area.
(6) If the whole or a part of an airside event zone is within an airside security zone, the purpose of the airside event zone is to subject the zone to controls some or all of which are different from:
(a) controls applying generally to the airside security zone; and
(b) controls applying generally to the airside area.
Requirements applying in airside event zones
(7) The following requirements do not apply in relation to an airside event zone while the zone is in force:
(a) the requirements prescribed in relation to the airside area;
(b) if the whole or a part of the zone is within an airside security zone—the requirements prescribed in relation to the airside security zone.
(8) To avoid doubt, if an airside event zone ceases to be in force at a particular time, the area previously within the airside event zone is, from that time, subject to controls that apply generally to that area.
31B Types of airside event zones
(1) The regulations may prescribe different types of airside event zones.
(2) The purposes for which different types of airside event zones may be prescribed include, but are not limited to, the following:
(a) managing different types of events within airside areas;
(b) controlling the movement of people, vehicles and goods within airside areas;
(c) restricting access to airside event zones within airside areas;
(d) providing cleared zones;
(e) preventing interference with aircraft (including unattended aircraft);
(f) ensuring the security of the following:
(i) air traffic control facilities;
(ii) fuel storage areas;
(iii) general aviation areas;
(iv) cargo and baggage handling facilities;
(v) navigational aids;
(vi) fire stations and other emergency service facilities;
(vii) critical facilities and critical structures.
32 Landside security zones
(1) The Secretary may, by written notice given to the operator of a security controlled airport, establish one or more landside security zones within the landside area of the airport. Each zone must be of a type prescribed under section 33.
(2) The notice must include a map of the airport that shows the boundaries of the landside security zones.
(2A) A notice commences:
(a) when the Secretary gives the notice to the airport operator; or
(b) at the time specified in the notice.
The time specified in the notice must not be earlier than the time the notice is given.
(2B) Each landside security zone is in force from the commencement of the notice that establishes it.
(3) The purpose of landside security zones is to subject those zones, within the landside area of a security controlled airport, to stricter or more specialised controls than those applying generally to the landside area.
33 Types of landside security zones
(1) The regulations may prescribe different types of landside security zones.
(2) The purposes for which different types of landside security zones may be prescribed include, but are not limited to, the following:
(a) controlling the movement of people, vehicles and goods within landside areas;
(b) restricting access to landside security zones within landside areas;
(c) providing cleared zones;
(d) preventing interference with aircraft (including unattended aircraft);
(e) ensuring the security of the following:
(i) air traffic control facilities;
(ii) fuel storage areas;
(iii) general aviation areas;
(iv) cargo and baggage handling facilities;
(v) navigational aids;
(va) fire stations and other emergency service facilities;
(vi) critical facilities and critical structures.
33A Landside event zones
Establishing landside event zones
(1) The Secretary may, by written notice given to the operator of a security controlled airport, establish one or more landside event zones within the landside area of the airport. Each zone must be of a type prescribed under section 33B.
(2) The notice must include a map of the airport that shows the boundaries of the landside event zones.
(3) For each landside event zone, the notice may specify the period (or periods) during which the zone is in force. If no period is specified, the zone is in force from the commencement of the notice.
(4) A notice commences:
(a) when the Secretary gives the notice to the airport operator; or
(b) if a time is specified in the notice—at that time.
The time specified must not be earlier than the time the notice is given.
Purpose of landside event zones
(5) Subject to subsection (6), the purpose of landside event zones is to subject those zones, within the landside area of a security controlled airport, to controls some or all of which are different from those applying generally to the landside area.
(6) If the whole or a part of a landside event zone is within a landside security zone, the purpose of the landside event zone is to subject the zone to controls some or all of which are different from:
(a) controls applying generally to the landside security zone; and
(b) controls applying generally to the landside area.
Requirements applying in landside event zones
(7) The following requirements do not apply in relation to a landside event zone while the zone is in force:
(a) the requirements prescribed in relation to the landside area;
(b) if the whole or a part of the zone is within a landside security zone—the requirements prescribed in relation to the landside security zone.
(8) To avoid doubt, if a landside event zone ceases to be in force at a particular time, the area previously within the landside event zone is, from that time, subject to controls that apply generally to that area.
33B Types of landside event zones
(1) The regulations may prescribe different types of landside event zones.
(2) The purposes for which different types of landside event zones may be prescribed include, but are not limited to, the following:
(a) managing different types of events within landside areas;
(b) controlling the movement of people, vehicles and goods within landside areas;
(c) restricting access to landside event zones within landside areas;
(d) providing cleared zones;
(e) preventing interference with aircraft (including unattended aircraft);
(f) ensuring the security of the following:
(i) air traffic control facilities;
(ii) fuel storage areas;
(iii) general aviation areas;
(iv) cargo and baggage handling facilities;
(v) navigational aids;
(vi) fire stations and other emergency service facilities;
(vii) critical facilities and critical structures.
34 Matters to be considered in establishing areas and zones
In establishing an airside area, an airside security zone or a landside security zone within a security controlled airport, the Secretary must have regard to the purpose of the area or zone, and take into account:
(a) the views of the airport operator; and
(b) the existing physical features of the airport (including buildings); and
(c) the existing operational features of the airport.
Division 3—Control of airside areas and zones
35 Requirements for airside areas
(1) The regulations may, for the purposes of safeguarding against unlawful interference with aviation, prescribe requirements in relation to the airside area of a security controlled airport.
(2) Without limiting the matters that may be dealt with by regulations made under subsection (1), the regulations may deal with the following:
(a) access to the airside area (including conditions of entry, the issue and use of security passes and other identification systems);
(b) the patrolling of the airside area;
(c) the provision of lighting, fencing and storage facilities;
(d) the identification or marking of the airside area;
(e) the approval of building works within, or adjacent to, the airside area;
(f) the screening of people, vehicles or goods (other than cargo) for entry to, or that are in, the airside area;
(fa) requirements relating to the entry of cargo to the airside area;
(g) the security checking (including background checking) of persons who have access to the airside area;
(h) the movement, management or operation of aircraft, vehicles and other machinery in the airside area;
(i) the maintenance of the integrity of the airside area;
(j) access to aircraft (including unattended aircraft) from the airside area;
(k) the management of people and goods (including the management of unaccompanied, unidentified or suspicious goods) in the airside area;
(l) the management (including the sale or disposal) of vehicles or goods abandoned in the airside area.
(3) Regulations made under this section may prescribe penalties for offences against those regulations. The penalties must not exceed:
(a) for an offence committed by an airport operator or an aircraft operator—200 penalty units; or
(b) for an offence committed by an aviation industry participant, other than a participant covered by paragraph (a) or (c)—100 penalty units; or
(c) for an offence committed by an accredited air cargo agent or any other person—50 penalty units.
36 Requirements for airside security zones
(1) The regulations may, for the purposes of safeguarding against unlawful interference with aviation, prescribe requirements in relation to each type of airside security zone.
(2) Without limiting the matters that may be dealt with by regulations made under subsection (1), the regulations may deal with the following:
(a) access to airside security zones (including conditions of entry, the issue and use of security passes and other identification systems);
(b) the patrolling of airside security zones;
(c) the provision of lighting, fencing and storage facilities;
(d) the identification or marking of airside security zones;
(e) the approval of building works within, or adjacent to, airside security zones;
(f) the screening of people, vehicles or goods (other than cargo) for entry to, or that are in, airside security zones;
(fa) requirements relating to the entry of cargo to airside security zones;
(g) the security checking (including background checking) of persons who have access to airside security zones;
(h) the movement, management or operation of aircraft, vehicles and other machinery in airside security zones;
(i) the maintenance of the integrity of airside security zones;
(j) access to aircraft (including unattended aircraft) from airside security zones;
(k) the management of people and goods (including the management of unaccompanied, unidentified or suspicious goods) in airside security zones;
(l) the management (including the sale or disposal) of vehicles or goods abandoned in airside security zones.
(3) Regulations made under this section may prescribe penalties for offences against those regulations. The penalties must not exceed:
(a) for an offence committed by an airport operator or an aircraft operator—200 penalty units; or
(b) for an offence committed by an aviation industry participant, other than an accredited air cargo agent or a participant covered by paragraph (a)—100 penalty units; or
(c) for an offence committed by an accredited air cargo agent or any other person—50 penalty units.
Note: If a body corporate is convicted of an offence against regulations made under this section, subsection 4B(3) of the Crimes Act 1914 allows a court to impose fines of up to 5 times the penalties stated above.
36A Requirements for airside event zones
(1) The regulations may, for the purposes of safeguarding against unlawful interference with aviation, prescribe requirements in relation to each type of airside event zone.
(2) Without limiting the matters that may be dealt with by regulations made under subsection (1), the regulations may deal with the following:
(a) access to airside event zones (including conditions of entry, the issue and use of security passes and other identification systems);
(b) the patrolling of airside event zones;
(c) the provision of lighting, fencing and storage facilities;
(d) the identification or marking of airside event zones;
(e) the approval of building works within, or adjacent to, airside event zones;
(f) the screening of people, vehicles or goods (other than cargo) for entry to, or that are in, airside event zones;
(fa) requirements relating to the entry of cargo to airside event zones;
(g) the security checking (including background checking) of persons who have access to airside event zones;
(h) the movement, management or operation of aircraft, vehicles and other machinery in airside event zones;
(i) the maintenance of the integrity of airside event zones;
(j) access to aircraft (including unattended aircraft) from airside event zones;
(k) the management of people and goods (including the management of unaccompanied, unidentified or suspicious goods) in airside event zones;
(l) the management (including the sale or disposal) of vehicles or goods abandoned in airside event zones.
(3) Regulations made under this section may prescribe penalties for offences against those regulations. The penalties must not exceed:
(a) for an offence committed by an airport operator or an aircraft operator—200 penalty units; or
(b) for an offence committed by an aviation industry participant, other than an accredited air cargo agent or a participant covered by paragraph (a)—100 penalty units; or
(c) for an offence committed by an accredited air cargo agent or any other person—50 penalty units.
Note: If a body corporate is convicted of an offence against regulations made under this section, subsection 4B(3) of the Crimes Act 1914 allows a court to impose fines of up to 5 times the penalties stated above.
Division 4—Control of landside areas and zones
37 Requirements for landside areas
(1) The regulations may, for the purposes of safeguarding against unlawful interference with aviation, prescribe requirements in relation to the landside area of a security controlled airport.
(2) Without limiting the matters that may be dealt with by regulations made under subsection (1), the regulations may deal with the following:
(a) access to the landside area (including conditions of entry, the issue and use of security passes and other identification systems);
(b) the patrolling of the landside area;
(c) the provision of lighting, fencing and storage facilities;
(d) the identification or marking of the landside area;
(e) the approval of building works within, or adjacent to, the landside area;
(f) the screening of people, vehicles or goods (other than cargo) for entry to the landside area;
(fa) requirements relating to the entry of cargo to the landside area;
(g) the security checking (including background checking) of persons who have access to the landside area;
(h) the movement, management or operation of aircraft, vehicles and other machinery in the landside area;
(i) the maintenance of the integrity of the landside area;
(j) access to aircraft (including unattended aircraft) from the landside area;
(k) the management of people and goods (including the management of unaccompanied, unidentified or suspicious goods) in the landside area;
(l) the management (including the sale or disposal) of vehicles or goods abandoned in the landside area.
(3) Regulations made under this section may prescribe penalties for offences against those regulations. The penalties must not exceed:
(a) for an offence committed by an airport operator or an aircraft operator—200 penalty units; or
(b) for an offence committed by an aviation industry participant, other than an accredited air cargo agent or a participant covered by paragraph (a)—100 penalty units; or
(c) for an offence committed by an accredited air cargo agent or any other person—50 penalty units.
Note: If a body corporate is convicted of an offence against regulations made under this section, subsection 4B(3) of the Crimes Act 1914 allows a court to impose fines of up to 5 times the penalties stated above.
38 Requirements for landside security zones
(1) The regulations may, for the purposes of safeguarding against unlawful interference with aviation, prescribe requirements in relation to each type of landside security zone.
(2) Without limiting the matters that may be dealt with by regulations made under subsection (1), the regulations may deal with the following:
(a) access to landside security zones (including conditions of entry, the issue and use of security passes and other identification systems);
(b) the patrolling of landside security zones;
(c) the provision of lighting, fencing and storage facilities;
(d) the identification or marking of landside security zones;
(e) the approval of building works within, or adjacent to, landside security zones;
(f) the screening of people, vehicles or goods (other than cargo) for entry to landside security zones;
(fa) requirements relating to the entry of cargo to landside security zones;
(g) the security checking (including background checking) of persons who have access to landside security zones;
(h) the movement, management or operation of aircraft, vehicles and other machinery in landside security zones;
(i) the maintenance of the integrity of landside security zones;
(j) access to aircraft (including unattended aircraft) from landside security zones;
(k) the management of people and goods (including the management of unaccompanied, unidentified or suspicious goods) in landside security zones;
(l) the management (including the sale or disposal) of vehicles or goods abandoned in landside security zones.
(3) Regulations made under this section may prescribe penalties for offences against those regulations. The penalties must not exceed:
(a) for an offence committed by an airport operator or an aircraft operator—200 penalty units; or
(b) for an offence committed by an aviation industry participant, other than an accredited air cargo agent or a participant covered by paragraph (a)—100 penalty units; or
(c) for an offence committed by an accredited air cargo agent or any other person—50 penalty units.
Note: If a body corporate is convicted of an offence against regulations made under this section, subsection 4B(3) of the Crimes Act 1914 allows a court to impose fines of up to 5 times the penalties stated above.
38A Requirements for landside event zones
(1) The regulations may, for the purposes of safeguarding against unlawful interference with aviation, prescribe requirements in relation to each type of landside event zone.
(2) Without limiting the matters that may be dealt with by regulations made under subsection (1), the regulations may deal with the following:
(a) access to landside event zones (including conditions of entry, the issue and use of security passes and other identification systems);
(b) the patrolling of landside event zones;
(c) the provision of lighting, fencing and storage facilities;
(d) the identification or marking of landside event zones;
(e) the approval of building works within, or adjacent to, landside event zones;
(f) the screening of people, vehicles or goods (other than cargo) for entry to landside event zones;
(fa) requirements relating to the entry of cargo to landside event zones;
(g) the security checking (including background checking) of persons who have access to landside event zones;
(h) the movement, management or operation of aircraft, vehicles and other machinery in landside event zones;
(i) the maintenance of the integrity of landside event zones;
(j) access to aircraft (including unattended aircraft) from landside event zones;
(k) the management of people and goods (including the management of unaccompanied, unidentified or suspicious goods) in landside event zones;
(l) the management (including the sale or disposal) of vehicles or goods abandoned in landside event zones.
(3) Regulations made under this section may prescribe penalties for offences against those regulations. The penalties must not exceed:
(a) for an offence committed by an airport operator or an aircraft operator—200 penalty units; or
(b) for an offence committed by an aviation industry participant, other than an accredited air cargo agent or a participant covered by paragraph (a)—100 penalty units; or
(c) for an offence committed by an accredited air cargo agent or any other person—50 penalty units.
Note: If a body corporate is convicted of an offence against regulations made under this section, subsection 4B(3) of the Crimes Act 1914 allows a court to impose fines of up to 5 times the penalties stated above.
Division 5—Offences for causing disruption or interference in relation to security controlled airports
38B Offences for causing disruption or interference in relation to security controlled airports
(1) The regulations may prescribe offences in relation to the disruption to or interference with the activities of an airport operator of a security controlled airport, or the activities of an aircraft operator at a security controlled airport, if:
(a) that airport is located in a Commonwealth place or in a Territory; or
(b) that operator is a corporation to which paragraph 51(xx) of the Constitution applies; or
(c) those activities take place in the course of, or in relation to, trade or commerce:
(i) between Australia and places outside Australia; or
(ii) among the States; or
(iii) within a Territory, between a State and a Territory or between 2 Territories.
The penalties prescribed by the regulations for the offences must not exceed 50 penalty units.
(2) The offences prescribed by the regulations may relate to conduct that occurs outside the boundaries of a security controlled airport.
(3) Subsection (2) does not limit subsection (1).
Part 4—Other security measures
Division 1—Simplified overview of Part
39 Simplified overview of Part
In addition to the requirements relating to areas and zones covered in Part 3, specific requirements are imposed in relation to a range of other matters. These are covered by this Part.
The matters (and the relevant Divisions) are as follows:
(a) screening and clearing (Division 2);
(aa) examining and clearing (Division 2A);
(b) weapons (Division 3);
(c) prohibited items (Division 4);
(d) on‑board security (Division 5);
(e) persons in custody (Division 6);
(ea) prohibiting the entry of specified kinds of cargo (Division 6A);
(f) special security directions (Division 7);
(g) control directions (Division 8);
(h) security status checking (Division 9).
Division 2—Screening and clearing
40 Simplified overview of Division
Access to aircraft, areas and zones at an airport may be restricted to persons, goods (other than cargo) and vehicles that have received clearance. Where access is restricted in this way, the aircraft, area or zone is said to be cleared.
In most cases, receiving clearance will require going through a screening process.
This Division deals with:
(a) requirements for receiving clearance; and
(b) requirements and procedures for screening.
This Division does not deal with cargo. Cargo is dealt with in Division 2A.
41 Screening and clearing people
(1) A person is screened when the person undergoes screening in accordance with regulations made under section 44:
(a) in preparation for boarding an aircraft; or
(b) in order to enter or remain in an area or zone within a security controlled airport.
(2) A person receives clearance if:
(a) after being screened, the person is allowed, by a screening officer, to pass through the screening point; or
(b) the person passes through the screening point and the regulations provide, or the Secretary by written notice provides, that the person may pass through that screening point without being screened; or
(c) the person enters a cleared area, a cleared zone or a cleared aircraft other than through a screening point and the regulations provide, or the Secretary by written notice provides, that the person may enter the area, zone or aircraft that way.
(3) A person is cleared at a particular time if:
(a) the person has received clearance; and
(b) since receiving clearance, the person has at all times been in a cleared area, a cleared zone or a cleared aircraft.
(4) For the purposes of paragraph (3)(b), a person is taken to be in a cleared area or cleared zone if the person is under the supervision or control prescribed in the regulations.
(5) To avoid doubt:
(a) a notice under paragraph (2)(b) may provide that a class of persons may pass through a screening point without being screened; and
(b) a notice under paragraph (2)(c) may provide that a class of persons may enter a cleared area, a cleared zone or a cleared aircraft other than through a screening point.
41A Consent to screening procedures
(1) If:
(a) a person is at a screening point; and
(b) the person must receive clearance in order:
(i) to board an aircraft; or
(ii) to enter or remain in an area or zone of a security controlled airport that is referred to in Division 2 of Part 3;
the person is taken, for all purposes, to consent to each screening procedure that may be conducted at the screening point in accordance with regulations made under section 44.
(2) Subsection (1) does not apply to a screening procedure if:
(a) the procedure is a frisk search; or
(b) the person refuses to undergo the procedure.
42 Screening and clearing goods (other than cargo)
(1) Goods are screened when the goods undergo screening in accordance with regulations made under section 44:
(a) in preparation for being taken on board an aircraft; or
(b) in order to be taken into or remain in an area or zone within a security controlled airport.
(2) Goods receive clearance if:
(a) after being screened, the goods are allowed, by a screening officer, to pass through the screening point; or
(b) the goods pass through the screening point and the regulations provide, or the Secretary by written notice provides, that the goods may pass through that screening point without being screened; or
(c) the goods enter a cleared area, a cleared zone or a cleared aircraft other than through a screening point and the regulations provide, or the Secretary by written notice provides, that the goods may enter the area, zone or aircraft that way.
(3) Goods are cleared at a particular time if:
(a) the goods have received clearance; and
(b) since receiving clearance, the goods have at all times been in a cleared area, a cleared zone or a cleared aircraft.
(4) For the purposes of paragraph (3)(b), goods are taken to be in a cleared area or cleared zone if the goods are under the supervision or control prescribed in the regulations.
(5) To avoid doubt:
(a) a notice under paragraph (2)(b) may provide that a class of goods may pass through a screening point without being screened; and
(b) a notice under paragraph (2)(c) may provide that a class of goods may enter a cleared area, a cleared zone or a cleared aircraft other than through a screening point.
(6) In this section:
goods includes baggage but does not include cargo.
Note: Division 2A deals with the examination and clearance of cargo.
43 Screening and clearing vehicles
(1) A vehicle is screened when the vehicle undergoes screening in accordance with regulations made under section 44:
(a) in preparation for being taken on board an aircraft; or
(b) in order to enter or remain in an area or zone within a security controlled airport.
(2) A vehicle receives clearance if:
(a) after being screened, the vehicle is allowed, by a screening officer, to pass through the screening point; or
(b) the vehicle passes through the screening point and the regulations provide, or the Secretary by written notice provides, that the vehicle may pass through that screening point without being screened; or
(c) the vehicle enters a cleared area, a cleared zone or a cleared aircraft other than through a screening point and the regulations provide, or the Secretary by written notice provides, that the vehicle may enter the area, zone or aircraft that way.
(3) A vehicle is cleared at a particular time if:
(a) the vehicle has received clearance; and
(b) since receiving clearance, the vehicle has at all times been in a cleared area, a cleared zone or a cleared aircraft.
(4) For the purposes of paragraph (3)(b), a vehicle is taken to be in a cleared area or cleared zone if the vehicle is under the supervision or control prescribed in the regulations.
(5) To avoid doubt:
(a) a notice under paragraph (2)(b) may provide that a class of vehicles may pass through a screening point without being screened; and
(b) a notice under paragraph (2)(c) may provide that a class of vehicles may enter a cleared area, a cleared zone or a cleared aircraft other than through a screening point.
44 Requirements for screening and clearing
(1) The regulations may, for the purposes of safeguarding against unlawful interference with aviation, prescribe requirements in relation to one or more of the following:
(a) screening;
(b) receiving clearance;
(c) the circumstances in which persons, goods (other than cargo) or vehicles are required to be cleared;
(2) Without limiting the matters that may be dealt with by regulations made under subsection (1), the regulations may deal with the following:
(a) the persons who are authorised or required to conduct screening;
(aa) the persons or things that must not pass through a screening point;
(b) the things to be detected by screening;
(c) the procedures for dealing with things detected by screening;
(d) the circumstances in which persons must be cleared in order to:
(i) board an aircraft; or
(ii) enter a landside security zone, a landside event zone, an airside area, an airside security zone or an airside event zone;
(e) the circumstances in which goods, other than baggage and cargo, must be cleared in order to be taken:
(i) onto an aircraft; or
(ii) into a landside security zone, a landside event zone, an airside area, an airside security zone or an airside event zone;
(f) the circumstances in which baggage must be cleared in order to be taken:
(i) onto an aircraft; or
(ii) into a landside security zone, a landside event zone, an airside area, an airside security zone or an airside event zone;
(h) the circumstances in which vehicles must be cleared in order to be taken;
(i) onto an aircraft; or
(ii) into a landside security zone, a landside event zone, an airside area, an airside security zone or an airside event zone;
(i) the places where screening is to be conducted;
(j) the methods, techniques and equipment to be used for screening;
(k) the notices that are to be displayed in places where screening is to be conducted;
(l) the supervision and control measures for ensuring that persons, goods (other than cargo) and vehicles that have received clearance remain cleared in areas or zones that are not cleared areas or cleared zones;
Note: Regulations made under subsection 94(2) must prescribe training and qualification requirements for screening officers and set out requirements in relation to the form, issue and use of identity cards.
(3) Regulations made under paragraph (2)(a), (2)(aa), (2)(i) or (2)(j) may provide that some or all of the matters set out in that paragraph are to be specified in written notices made by the Secretary. Such a notice may provide that the notice is only to be given to the persons, or classes of persons, specified in the notice.
(3A) Without limiting paragraph (2)(j), the equipment to be used for screening may include the following:
(a) metal detection equipment;
(b) explosive trace detection equipment;
(c) body scanning equipment such as an active millimetre wave body scanner.
(3B) If:
(a) body scanning equipment is to be used for the screening of a person; and
(b) the equipment produces an image of the person;
the image must only be a generic body image that is gender‑neutral and from which the person cannot be identified.
(3C) If body scanning equipment is to be used for the screening of a person, the equipment must not store or transmit:
(a) an image of the person that is produced by the equipment; or
(b) personal information (within the meaning of the Privacy Act 1988) about the person.
(4) Regulations made under this section may prescribe penalties for offences against those regulations. The penalties must not exceed:
(a) for an offence committed by an airport operator or an aircraft operator—200 penalty units; or
(b) for an offence committed by an aviation industry participant, other than an accredited air cargo agent or a participant covered by paragraph (a)—100 penalty units; or
(c) for an offence committed by an accredited air cargo agent or any other person—50 penalty units.
Note: If a body corporate is convicted of an offence against regulations made under this section, subsection 4B(3) of the Crimes Act 1914 allows a court to impose fines of up to 5 times the penalties stated above.
Division 2A—Examining and clearing cargo
44A Simplified overview of Division
The transport of cargo by aircraft may be restricted to cargo that has received clearance.
In most cases, cargo must be examined to receive clearance.
The regulations may provide for cargo to be examined by known consignors, regulated agents and aircraft operators.
This Division deals with:
(a) requirements for receiving clearance; and
(b) requirements and procedures for examination; and
(d) requirements relating to known consignors, regulated agents and aircraft operators.
44B Examining and clearing cargo
(1) Cargo is examined when the cargo undergoes examination, before being taken onto an aircraft, in accordance with regulations made under section 44C.
(2) Cargo receives clearance if:
(a) after being examined, the cargo has been handled in accordance with regulations, made under section 44C, that deal with how cargo that has been examined is to be handled in order to receive clearance; or
(b) the following subparagraphs are satisfied:
(i) regulations made under section 44C provide, or the Secretary by written notice provides, that the cargo may receive clearance without being examined;
(ii) the cargo has been handled in accordance with regulations, made under section 44C, that deal with how cargo that has not been examined is to be handled in order to receive clearance.
(3) Cargo is cleared at a particular time if:
(a) the cargo has received clearance; and
(b) since receiving clearance, the cargo has at all times been handled in accordance with regulations, made under section 44C, that deal with how cargo is to be handled after receiving clearance in order to maintain its status as cleared.
44C Requirements for examining and clearing cargo
(1) For the purposes of safeguarding against unlawful interference with aviation, the regulations may:
(a) prescribe requirements in relation to one or more of the following:
(i) examining cargo;
(iii) receiving clearance;
(iv) the circumstances in which cargo is required to be cleared; and
(aa) establish a scheme under which certain persons that carry on a business that includes handling, or making arrangements for transport, of cargo are approved as known consignors;
(b) establish a scheme under which certain persons that carry on a business that includes the handling, or making arrangements for the transport, of cargo are designated as regulated air cargo agents; and
Note: Regulated air cargo agents are a kind of regulated agent: see the definition of regulated agent in section 9.
(c) establish a scheme under which certain persons that carry on a business that includes the handling, or making arrangements for the transport, of cargo are accredited as accredited air cargo agents; and
Note: Accredited air cargo agents are a kind of regulated agent: see the definition of regulated agent in section 9.
(d) prescribe conditions that must be complied with by:
(i) all known consignors, all regulated agents or all aircraft operators; or
(ii) one or more specified classes of known consignors, regulated agents or aircraft operators; or
(iii) one or more specified known consignors, regulated agents or aircraft operators; and
(f) prohibit a person from carrying on a business to the extent that it consists of:
(i) handling cargo; or
(ii) making arrangements for the transport of cargo;
unless the person is a known consignor, a regulated agent or an aircraft operator; and
(g) prescribe training requirements for employees of:
(i) all known consignors or all regulated agents; or
(ii) one or more specified classes of known consignors or regulated agents; or
(iii) one or more specified known consignors or regulated agents.
(1A) The Secretary may, by legislative instrument, make a determination in relation to the matter covered by paragraph (1)(g).
(2) Without limiting subsection (1), the following matters may be dealt with by regulations made under that subsection:
(a) the examination of cargo by:
(i) all known consignors, all regulated agents or all aircraft operators; or
(ii) one or more specified classes of known consignors, regulated agents or aircraft operators; or
(iii) one or more specified known consignors, regulated agents or aircraft operators;
(b) the procedures for dealing with cargo examined as mentioned in paragraph (a);
(c) the places where examination is to be conducted;
(d) the methods, techniques and equipment to be used for examination;
(e) the things to be detected by examination;
(f) the procedures for dealing with things detected by examination;
(g) the circumstances in which cargo may receive clearance by:
(i) all known consignors, all regulated agents or all aircraft operators; or
(ii) one or more specified classes of known consignors, regulated agents or aircraft operators; or
(iii) one or more specified known consignors, regulated agents or aircraft operators;
(ga) how cargo is to be handled (including methods, techniques or equipment to be used) in order to receive clearance;
(gb) how cargo is to be handled (including methods, techniques or equipment to be used) after receiving clearance in order to maintain its status as cleared;
(h) the supervision and control measures for dealing with cargo that has received clearance;
(ha) the method for applying for approval as a known consignor and how such applications are dealt with;
(i) the method for designating a person as a regulated air cargo agent;
(j) the method of applying for accreditation as an accredited air cargo agent and how such applications are to be dealt with.
(3) Regulations made under paragraph (2)(a), (b), (c), (d), (e), (f), (g), (ga), (gb) or (h) may provide that some or all of the matters set out in that paragraph are to be specified in written notices made by the Secretary. Such a notice may provide that the notice is only to be given to the persons, or classes of persons, specified in the notice.
(3A) To avoid doubt, regulations or other legislative instruments dealing with the examination of cargo may provide for, or require, cargo to be opened, deconsolidated or unpacked (whether or not the owner of the cargo, or any other person, has consented).
(4) Regulations or other legislative instruments made for the purposes of this section may prescribe penalties for offences against those instruments. The penalties must not exceed:
(a) for an offence committed by an aircraft operator—200 penalty units; or
(b) for an offence committed by an aviation industry participant, other than an accredited air cargo agent or a participant covered by paragraph (a)—100 penalty units; or
(c) for an offence committed by an accredited air cargo agent or any other person—50 penalty units.
Note: If a body corporate is convicted of an offence against regulations made under this section, subsection 4B(3) of the Crimes Act 1914 allows a court to impose fines of up to 5 times the penalties stated above.
Division 3—Weapons
45 Simplified overview of Division
The control of weapons is an important aspect of preventing unlawful interference with aviation.
The possession or carriage of weapons is controlled:
(a) in airside areas, landside security zones and landside event zones;
(b) through screening points;
(c) on aircraft.
A person who has been authorised or permitted to have a weapon in his or her possession or under his or her control must comply with any conditions that have been imposed.
The regulations can also prescribe requirements in relation to the carriage and use of weapons.
46 Weapons in airside areas, landside security zones and landside event zones
Strict liability
(1) A person commits an offence if:
(a) the person is in an airside area, a landside security zone or a landside event zone; and
(b) the person has a weapon in his or her possession; and
(c) the person is not:
(i) a law enforcement officer; or
(ii) a member of the Australian Defence Force who is on duty; or
(iii) authorised by the regulations, or permitted in writing by the Secretary, to have the weapon in his or her possession in the airside area, landside security zone or landside event zone.
Penalty: 100 penalty units.
(2) Subsection (1) is an offence of strict liability.
General
(3) A person commits an offence if:
(a) the person is in an airside area, a landside security zone or a landside event zone; and
(b) the person has a weapon in his or her possession; and
(c) the person is not:
(i) a law enforcement officer; or
(ii) a member of the Australian Defence Force who is on duty; or
(iii) authorised by the regulations, or permitted in writing by the Secretary, to have the weapon in his or her possession in the airside area, landside security zone or landside event zone.
Penalty: Imprisonment for 7 years.
47 Carrying weapons through a screening point
Strict liability
(1) A person commits an offence if:
(a) the person passes through a screening point; and
(b) the person has a weapon in his or her possession when he or she passes through the screening point; and
(c) the person is not:
(i) a law enforcement officer; or
(ii) authorised by the regulations, or permitted in writing by the Secretary, to pass through the screening point with the weapon in his or her possession.
Penalty: 100 penalty units.
(2) Subsection (1) is an offence of strict liability.
General
(3) A person commits an offence if:
(a) the person passes through a screening point; and
(b) the person has a weapon in his or her possession when he or she passes through the screening point; and
(c) the person is not:
(i) a law enforcement officer; or
(ii) authorised by the regulations, or permitted in writing by the Secretary, to pass through the screening point with the weapon in his or her possession.
Penalty: Imprisonment for 7 years.
48 Weapons on board an aircraft—strict liability
(1) A person commits an offence if:
(a) the person is on board a prescribed aircraft; and
(b) the person:
(i) carries a weapon; or
(ii) otherwise has in his or her possession a weapon that is located at a place that is accessible to the person; and
(c) the person is not a law enforcement officer; and
(d) the carriage or possession of the weapon is not authorised by the regulations or permitted in writing by the Secretary; and
(e) neither of the following apply:
(i) the weapon is under the control of the pilot in command of the aircraft because the weapon forms part of the equipment of the aircraft in accordance with the operations manual for the aircraft;
(ii) the weapon is under the control of the pilot in command of the aircraft because an animal that could endanger the safety of the aircraft, or the safety of people on board the aircraft, is being carried on board the aircraft.
Penalty: 100 penalty units.
(2) Subsection (1) is an offence of strict liability.
Note: Carriage of weapons on an aircraft is also subject to provisions in the Civil Aviation Act 1988 and the Crimes (Aviation) Act 1991.
49 Weapons on board an aircraft—general
A person commits an offence if:
(a) the person is on board a prescribed aircraft; and
(b) the person:
(i) carries a weapon; or
(ii) otherwise has in his or her possession a weapon that is located at a place that is accessible to the person; and
(c) the person is not a law enforcement officer; and
(d) the carriage or possession of the weapon is not authorised by the regulations or permitted in writing by the Secretary; and
(e) neither of the following apply:
(i) the weapon is under the control of the pilot in command of the aircraft because the weapon forms part of the equipment of the aircraft in accordance with the operations manual for the aircraft;
(ii) the weapon is under the control of the pilot in command of the aircraft because an animal that could endanger the safety of the aircraft, or the safety of people on board the aircraft, is being carried on board the aircraft.
Penalty: Imprisonment for 7 years.
Note: Carriage of weapons on an aircraft is also subject to provisions in the Civil Aviation Act 1988 and the Crimes (Aviation) Act 1991.
50 Failure to comply with conditions
(1) A person commits an offence if:
(a) the person is on a prescribed aircraft or at a security controlled airport; and
(b) the person is authorised or permitted to have a weapon in his or her possession or under his or her control; and
(c) the person fails to comply with any conditions relating to the authorisation or permission.
Penalty: 50 penalty units.
(2) Subsection (1) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
(3) Subsection (1) is an offence of strict liability.
51 Secretary may permit by class
To avoid doubt, for the purposes of this Division, the Secretary may give permission in relation to particular conduct by giving permission to a class of persons.
52 Other weapons requirements
(1) 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.
(2) Without limiting the matters that may be dealt with by regulations made under subsection (1), the regulations may deal with the following:
(a) authorising the carriage of weapons on board a prescribed aircraft or in an airside security zone, an airside event zone, a landside security zone or a landside event zone;
(b) dealing with a person on a prescribed aircraft or at a security controlled airport who carries or uses a weapon, or is suspected of carrying or using a weapon, unlawfully;
(c) dealing with a weapon surrendered by a person on a prescribed aircraft or at a security controlled airport.
(3) Regulations made under this section may prescribe penalties for offences against those regulations. The penalties must not exceed:
(a) for an offence committed by an airport operator or an aircraft operator—200 penalty units; or
(b) for an offence committed by an aviation industry participant, other than an accredited air cargo agent or a participant covered by paragraph (a)—100 penalty units; or
(c) for an offence committed by an accredited air cargo agent or any other person—50 penalty units.
Note: If a body corporate is convicted of an offence against regulations made under this section, subsection 4B(3) of the Crimes Act 1914 allows a court to impose fines of up to 5 times the penalties stated above.
Division 4—Prohibited items
53 Simplified overview of Division
Things other than weapons may be used to interfere with aviation unlawfully.
This Division:
(a) allows regulations to prescribe such things as prohibited items; and
(b) establishes restrictions in relation to prohibited items that are similar to the restrictions which apply to weapons under Division 3 of this Part.
54 Prohibited items in airside security zones, airside event zones, landside security zones and landside event zones
Strict liability
(1) A person commits an offence if:
(a) the person is in an airside security zone, an airside event zone, a landside security zone or a landside event zone; and
(aa) the airside security zone, airside event zone, landside security zone or landside event zone is of a kind prescribed in the regulations for the purposes of this paragraph; and
(b) the person has a prohibited item in his or her possession; and
(c) the person is not:
(i) a law enforcement officer, an airport security guard or an aviation security inspector; or
(ii) a member of the Australian Defence Force who is on duty; or
(iii) authorised by the regulations, or permitted in writing by the Secretary, to have the prohibited item in his or her possession in the airside security zone, airside event zone, landside security zone or landside event zone.
Penalty: 20 penalty units.
(2) Subsection (1) is an offence of strict liability.
General
(3) A person commits an offence if:
(a) the person is in an airside security zone, an airside event zone, a landside security zone or a landside event zone; and
(aa) the airside security zone, airside event zone, landside security zone or landside event zone is of a kind prescribed in the regulations for the purposes of this paragraph; and
(b) the person has a prohibited item in his or her possession; and
(c) the person is not:
(i) a law enforcement officer, an airport security guard or an aviation security inspector; or
(ii) a member of the Australian Defence Force who is on duty; or
(iii) authorised by the regulations, or permitted in writing by the Secretary, to have the prohibited item in his or her possession in the airside security zone, airside event zone, landside security zone or landside event zone.
Penalty: Imprisonment for 2 years.
55 Carrying prohibited items through a screening point
Strict liability
(1) A person commits an offence if:
(a) the person passes through a screening point; and
(b) the person has a prohibited item in his or her possession when he or she passes through the screening point; and
(c) the person is not;
(i) a law enforcement officer, an airport security guard or an aviation security inspector; or
(ii) authorised by the regulations, or permitted in writing by the Secretary, to pass through the screening point with the prohibited item in his or her possession.
Penalty: 20 penalty units.
(2) Subsection (1) is an offence of strict liability.
General
(3) A person commits an offence if:
(a) the person passes through a screening point; and
(b) the person has a prohibited item in his or her possession when he or she passes through the screening point; and
(c) the person is not;
(i) a law enforcement officer, an airport security guard or an aviation security inspector; or
(ii) authorised by the regulations, or permitted in writing by the Secretary, to pass through the screening point with the prohibited item in his or her possession.
Penalty: Imprisonment for 2 years.
56 Prohibited items on board an aircraft—strict liability
(1) A person commits an offence if:
(a) the person is on board a prescribed aircraft; and
(b) the person:
(i) carries a prohibited item; or
(ii) otherwise has in his or her possession a prohibited item that is located at a place that is accessible to the person; and
(c) the person is not a law enforcement officer, an airport security guard or an aviation security inspector; and
(d) the carriage or possession of the prohibited item is not authorised by the regulations or permitted in writing by the Secretary; and
(e) neither of the following apply:
(i) the prohibited item is under the control of the pilot in command of the aircraft because the prohibited item forms part of the equipment of the aircraft in accordance with the operations manual for the aircraft;
(ii) the prohibited item is under the control of the pilot in command of the aircraft because an animal that could endanger the safety of the aircraft, or the safety of people on board the aircraft, is being carried on board the aircraft.
Penalty: 20 penalty units.
(2) Subsection (1) is an offence of strict liability.
57 Prohibited items on board an aircraft—general
A person commits an offence if:
(a) the person is on board a prescribed aircraft; and
(b) the person:
(i) carries a prohibited item; or
(ii) otherwise has in his or her possession a prohibited item that is located at a place that is accessible to the person; and
(c) the person is not a law enforcement officer, an airport security guard or an aviation security inspector; and
(d) the carriage or possession of the prohibited item is not authorised by the regulations or permitted in writing by the Secretary; and
(e) neither of the following apply:
(i) the prohibited item is under the control of the pilot in command of the aircraft because the prohibited item forms part of the equipment of the aircraft in accordance with the operations manual for the aircraft;
(ii) the prohibited item is under the control of the pilot in command of the aircraft because an animal that could endanger the safety of the aircraft, or the safety of people on board the aircraft, is being carried on board the aircraft.
Penalty: Imprisonment for 2 years.
58 Failure to comply with conditions
(1) A person commits an offence if:
(a) the person is on a prescribed aircraft or at a security controlled airport; and
(b) the person is authorised or permitted to have a prohibited item in his or her possession or under his or her control; and
(c) the person fails to comply with any conditions relating to the authorisation or permission.
Penalty: 50 penalty units.
(2) Subsection (1) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
(3) Subsection (1) is an offence of strict liability.
59 Secretary may permit by class
To avoid doubt, for the purposes of this Division, the Secretary may give permission in relation to particular conduct by giving permission to a class of persons.
60 Other prohibited items requirements
(1) The regulations may, for the purposes of safeguarding against unlawful interference with aviation, prescribe requirements in relation to the carriage and use of prohibited items on a prescribed aircraft or at a security controlled airport.
(2) Without limiting the matters that may be dealt with by regulations made under subsection (1), the regulations may deal with the following:
(a) authorising the carriage of prohibited items on a prescribed aircraft or in an airside security zone, an airside event zone, a landside security zone or a landside event zone;
(b) dealing with a person on a prescribed aircraft or at a security controlled airport who carries or uses a prohibited item, or is suspected of carrying or using a prohibited item, unlawfully;
(c) dealing with a prohibited item surrendered by a person on a prescribed aircraft or at a security controlled airport.
(3) Regulations made under this section may prescribe penalties for offences against those regulations. The penalties must not exceed:
(a) for an offence committed by an airport operator or an aircraft operator—200 penalty units; or
(b) for an offence committed by an aviation industry participant, other than an accredited air cargo agent or a participant covered by paragraph (a)—100 penalty units; or
(c) for an offence committed by an accredited air cargo agent or any other person—50 penalty units.
Note: If a body corporate is convicted of an offence against regulations made under this section, subsection 4B(3) of the Crimes Act 1914 allows a court to impose fines of up to 5 times the penalties stated above.
Division 5—On‑board security
61 Simplified overview of Division
This Division provides for regulations dealing with aircraft security, including control of passengers on board aircraft and management of baggage.
62 On‑board security
(1) The regulations may, for the purposes of safeguarding against unlawful interference with aviation, prescribe requirements in relation to the following:
(a) the management and control of passengers (including persons in custody) on board an aircraft;
(aa) the security features on an aircraft;
(b) pre‑flight checks of aircraft cabins and other parts of an aircraft;
(c) procedures to be used and measures to be taken in relation to baggage that is loaded, or is intended to be loaded, onto a prescribed aircraft;
(d) unattended aircraft.
(2) Regulations made under this section may prescribe penalties for offences against those regulations. The penalties must not exceed:
(a) for an offence committed by an airport operator or an aircraft operator—200 penalty units; or
(b) for an offence committed by an aviation industry participant, other than an accredited air cargo agent or a participant covered by paragraph (a)—100 penalty units; or
(c) for an offence committed by an accredited air cargo agent or any other person—50 penalty units.
Note: If a body corporate is convicted of an offence against regulations made under this section, subsection 4B(3) of the Crimes Act 1914 allows a court to impose fines of up to 5 times the penalties stated above.
Division 6—Persons in custody
63 Simplified overview of Division
This Division provides for regulations dealing with persons who are in custody under another Act and who are at airports or on aircraft. The regulations may include security arrangements in relation to such persons and the circumstances in which the pilot in command of an aircraft may refuse to allow such persons on board.
64 Meaning of person in custody
(1) A person on a prescribed aircraft or at a security controlled airport is a person in custody if he or she is in custody under another Act.
(2) The reference in subsection (1) to another Act includes a reference to a law of a State or Territory.
65 Requirements relating to persons in custody
(1) The regulations may, for the purposes of safeguarding against unlawful interference with aviation, prescribe requirements in relation to persons in custody on a prescribed aircraft or at a security controlled airport.
(2) Without limiting the matters that may be dealt with by regulations made under subsection (1), the regulations may deal with the following:
(a) the circumstances in which a person who is in custody may be on a prescribed aircraft or at a security controlled airport;
(b) the security arrangements, including escort arrangements, that must be implemented in relation to persons in custody on a prescribed aircraft, or at a security controlled airport, and the persons who must implement those arrangements;
(c) information about a person in custody that must be provided to the operator of the relevant prescribed aircraft or security controlled airport;
(d) information about a person in custody who is to be on a prescribed aircraft that must be provided to the pilot in command of the aircraft;
(e) the circumstances in which the operator of a prescribed aircraft, or the pilot in command of a prescribed aircraft, may refuse to allow a person in custody to be on the aircraft;
(f) the circumstances in which the operator of a security controlled airport may refuse to allow a person in custody to be at the airport;
(g) the number of persons in custody that may be on a prescribed aircraft, or at a security controlled airport, at any one time.
(3) Regulations made under this section may prescribe penalties for offences against those regulations. The penalties must not exceed:
(a) for an offence committed by an airport operator or an aircraft operator—200 penalty units; or
(b) for an offence committed by an aviation industry participant, other than an accredited air cargo agent or a participant covered by paragraph (a)—100 penalty units; or
(c) for an offence committed by an accredited air cargo agent or any other person—50 penalty units.
Division 6A—Prohibiting entry of certain cargo into Australian territory
65A Simplified overview of Division
This Division allows the Minister to make a legislative instrument prohibiting the entry of specified kinds of cargo into Australian territory.
Failing to comply with such an instrument is an offence.
65B Minister may prohibit entry of certain kinds of cargo into Australian territory
(1) For the purposes of safeguarding against unlawful interference with aviation, the Minister may, by legislative instrument, prohibit the entry of specified kinds of cargo into Australian territory.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
(2) Without limiting subsection (1), an instrument under that subsection may relate to all or any of the following:
(a) some or all of a class of persons to whom this 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;
(f) cargo that comes within a specified weight range.
(3) The Minister must, before making an instrument, consult the Foreign Affairs Minister and the Trade Minister.
Note: For other consultation requirements, see Part 3 of the Legislation Act 2003.
65C Failure to comply with prohibition
(1) A person commits an offence if:
(a) the Minister has made an instrument under section 65B; and
(b) the instrument applies to the person; and
(c) the person fails to comply with the instrument.
Penalty: For an aircraft operator—200 penalty units.
For any other aviation industry participant—100 penalty units.
(2) Subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Division 7—Special security directions
66 Simplified overview of Division
Special circumstances may arise that require additional security measures beyond those otherwise required under this Act.
This Division allows the Secretary to address such circumstances by issuing special security directions. The Division establishes time limits for such special security directions. As a general rule, a special security direction ceases to have effect after it has been in force for 3 months.
Failing to comply with a special security direction is an offence.
In addition, disclosing such a direction in certain circumstances is also an offence.
67 Secretary may give special security directions
(1) If:
(a) a specific threat of unlawful interference with aviation is made or exists; or
(b) there is a change in the nature of an existing general threat of unlawful interference with aviation;
the Secretary may, in writing, direct that additional security measures be taken or complied with.
(2) A direction under subsection (1) is a special security direction.
68 Confidentiality requirements
(1) A special security direction may set out restrictions in relation to the disclosure of the direction.
(2) Such restrictions are confidentiality requirements.
69 Persons to whom special security directions may be given
(1) A special security direction may be given to one or more of the following:
(a) an APS employee in the Department;
(b) a member of the staff of CASA;
(c) a member of the staff of Airservices Australia;
(d) an aviation industry participant or an employee of an aviation industry participant;
(e) passengers;
(f) persons, other than persons mentioned in paragraphs (a) to (e), who are within the boundaries of a security controlled airport.
(2) For the purposes of giving a special security direction to persons mentioned in paragraph (1)(e) or (f), the Secretary is taken to have given a written direction to the persons if the direction is clearly displayed at a place where the direction is to be complied with by those persons.
70 When a special security direction is in force
(1) A special security direction comes into force at the time specified in the direction.
(2) However:
(a) if:
(i) there is no time specified; or
(ii) the specified time is before the time when the direction is given;
the direction comes into force 24 hours after it is given; or
(b) if the specified time is later than the beginning of the seventh day after the direction is given, the direction comes into force at the start of that day.
(3) A special security direction remains in force until:
(a) it is revoked in writing by the Secretary; or
(b) it ceases to have effect under subsection (6) of this section or subsection 71(2).
(4) If the Secretary has displayed a special security direction under subsection 69(2) and either:
(a) the Secretary revokes the direction; or
(b) the direction ceases to have effect under subsection (6) of this section or subsection 71(2);
the Secretary must remove the displayed direction.
(5) A special security direction made under paragraph 67(1)(a) must be revoked when the specific threat no longer exists.
(6) If not revoked earlier, a special security direction ceases to be in force when it has been in force for a continuous period of 3 months.
71 Secretary may extend direction for further 3 months
(1) Despite subsection 70(6), a special security direction that has been in force for a continuous period of 3 months does not cease to be in force if, before the period ends, the Secretary:
(a) consults with the person to whom the direction has been given; and
(b) gives the person written notice that the direction is to remain in force.
(2) If not revoked earlier, a special security direction that remains in force under subsection (1) ceases to be in force when it has been in force for a continuous period of 6 months.
(3) Paragraph (1)(a) of this section does not apply in relation to a direction that has been given to a person covered by paragraph 69(1)(e) or (f).
72 Certain directions not to be re‑made for 6 months
If:
(a) a special security direction (the original direction) has been given to a person; and
(b) the original direction ceases to be in force because it has been in force for a continuous period of 6 months (see subsection 71(2));
the Secretary must not give a special security direction to the person that is the same as, or substantially similar to, the original direction during the period of 6 months after the original direction ceases to be in force.
73 Failure to comply with special security directions
(1) A person commits an offence if:
(a) a special security direction is given to the person; and
(b) the direction is in force; and
(c) the person fails to comply with the direction; and
(d) the failure is not a failure to comply with confidentiality requirements.
Penalty: For an airport operator or an aircraft operator—200 penalty units.
For an aviation industry participant, other than an airport operator, an aircraft operator or an accredited air cargo agent—100 penalty units.
For an accredited air cargo agent—50 penalty units.
(2) Subsection (1) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
(3) Subsection (1) is an offence of strict liability.
74 Failure to comply with confidentiality requirements
(1) A person commits an offence if:
(a) a special security direction is given to the person; and
(b) the direction is in force; and
(c) the person fails to comply with confidentiality requirements in the direction; and
(d) the failure is not due to a disclosure made to a court or a tribunal, or to an authority or person that has the power to require the production of documents or the answering of questions.
Penalty: 20 penalty units.
(2) Subsection (1) is an offence of strict liability.
Division 8—Control directions
74A Simplified overview of Division
Compliance control directions can be used:
(a) to control the movement of aircraft that are not in flight; or
(b) in relation to security controlled airports.
Compliance control directions, given by aviation security inspectors, are used to ensure compliance with this Act. They may be given to aircraft operators, operators of security controlled airports, screening authorities, pilots in command or screening officers.
Incident control directions can be used to control the movement of aircraft. Incident control directions, given by the Secretary, are used in response to aviation security incidents. They may be given to aircraft operators or pilots in command.
Failing to comply with a compliance control direction or an incident control direction is an offence.
74B Compliance control directions
(1) An aviation security inspector may direct the aircraft operator for, or the pilot in command of, a prescribed aircraft that:
(a) is in Australian territory; and
(b) is not in flight;
to take specified action in relation to the aircraft.
(1A) An aviation security inspector may direct the operator of a security controlled airport to take specified action in relation to the airport.
(1B) An aviation security inspector may direct a screening authority or a screening officer to take specified action in relation to a screening point at a security controlled airport.
(2) A direction under subsection (1), (1A) or (1B) is a compliance control direction.
(3) However, an aviation security inspector must not give a compliance control direction unless the direction is necessary for ensuring compliance with this Act.
(4) The action that an aircraft operator or pilot in command may be directed to take under subsection (1) includes, but is not limited to, the following:
(a) holding the aircraft in a particular position until specified actions are taken or until a specified event occurs;
(b) taking particular actions, or ensuring that particular actions are taken, on or in relation to the aircraft;
(c) taking particular actions, or ensuring that particular actions are taken, in relation to a person or thing on, or to be carried by, the aircraft;
(d) allowing an aviation security inspector to inspect the aircraft.
(4A) The action that an operator of a security controlled airport may be directed to take under subsection (1A) includes, but is not limited to, taking particular actions, or ensuring that particular actions are taken, in relation to persons or things in specified areas or zones of the airport.
(4B) The action that a screening authority or a screening officer may be directed to take under subsection (1B) includes, but is not limited to, taking particular actions, or ensuring that particular actions are taken, in relation to screening or re‑screening particular passengers, goods or vehicles.
(5) The regulations may prescribe requirements for, or in relation to, the giving of compliance control directions.
74C Failure to comply with compliance control directions
(1) A person commits an offence if:
(a) a compliance control direction is given to the person; and
(b) the person fails to comply with the direction.
Penalty: For an aircraft operator, an operator of a security controlled airport or a screening authority—200 penalty units.
For a pilot in command or a screening officer—50 penalty units.
(2) Subsection (1) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
74D Incident control directions
Australian aircraft
(1) The Secretary may direct the aircraft operator for, or the pilot in command of, an Australian aircraft to take specified action in relation to the aircraft.
Foreign aircraft
(2) The Secretary may direct the aircraft operator for, or the pilot in command of, an aircraft that:
(a) is not an Australian aircraft; and
(b) is in Australian territory;
to take specified action in relation to the aircraft.
(3) A direction under subsection (1) or (2) is an incident control direction.
(4) However, the Secretary must not give an incident control direction unless the Secretary reasonably believes that the direction is an appropriate or necessary response to an aviation security incident.
(5) The action that an aircraft operator or pilot in command may be directed to take under subsection (1) or (2) includes, but is not limited to, the following:
(a) taking particular actions, or ensuring that particular actions are taken, on or in relation to the aircraft;
(b) taking particular actions, or ensuring that particular actions are taken, in relation to a person or thing on, or to be carried by, the aircraft;
(c) holding the aircraft in a particular position or within a particular area until specified actions are taken or until a specified event occurs;
(d) ensuring that the aircraft leaves a particular place or a particular area;
(e) ensuring that the aircraft lands at a particular place or within a particular area;
(f) ensuring that the aircraft lands outside a particular area.
(6) The regulations may prescribe requirements for, or in relation to, the giving of incident control directions.
74E Failure to comply with incident control directions
(1) A person commits an offence if:
(a) an incident control direction is given to the person; and
(b) the person fails to comply with the direction.
Penalty: For an aircraft operator—1,000 penalty units.
For a pilot in command—100 penalty units.
(2) Subsection (1) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
Division 9—Security status checking
74F Simplified overview of Division
This Division will facilitate the security status checking of applicants for, and holders of, certain authorisations.
The Division enables an adverse security status determination to be made in respect of a person. If a determination is made, any such authorisation that the person has applied for will be refused, and any such authorisation that the person holds will be cancelled or suspended.
The regulations will prescribe details relating to security status checking and the making of adverse security status determinations.
74G Secretary may determine that a person has an adverse aviation security status
(1) The Secretary may determine in writing that a person has an adverse aviation security status.
(2) If the Secretary makes such a determination, the Secretary must give a copy of the determination to the following:
(a) the person;
(b) CASA.
(3) As soon as reasonably practicable after such a determination is made, CASA must:
(a) if the person is an applicant for a security designated authorisation—refuse the application under this paragraph; or
(b) if the person is the holder of a security designated authorisation—suspend or cancel the authorisation under this paragraph.
(4) The exercise of the power to determine that a person has an adverse aviation security status is taken to be prescribed administrative action in respect of the person for the purposes of Part IV of the Australian Security Intelligence Organisation Act 1979.
74H Regulations
(1) Regulations may be made:
(a) providing for matters to which the Secretary must have regard for the purposes of deciding whether or not to determine that a person has an adverse aviation security status; and
(b) specifying circumstances in which the Secretary must determine that a person has an adverse aviation security status; and
(c) specifying circumstances in which the Secretary may determine that a person has an adverse aviation security status; and
(d) providing for matters relating to the carrying out of security status checking; and
(e) authorising the use or disclosure of information (including personal information within the meaning of the Privacy Act 1988) for the purposes of, or in relation to, security status checking; and
(f) specifying procedures and other matters relating to the determination of applications for security designated authorisations, including, but not limited to, delaying the determination of such applications pending the outcome of security status checking; and
(g) specifying procedures and other matters relating to the issue, suspension or cancellation by CASA of security designated authorisations or the refusal by CASA to issue security designated authorisations; and
(h) providing that applicants for, or holders of, security designated authorisations may request security status checking to be undertaken; and
(i) specifying the consequences of a failure to make a request of a kind mentioned in regulations under paragraph (h); and
(j) providing for the collection of fees by CASA on behalf of the Commonwealth, being fees prescribed by the regulations for the purposes of this Division; and
(k) conferring the function of determining under subsection 74G(1) that a person has an adverse security status upon CASA (in addition to, but not instead of, the Secretary); and
(l) empowering the Director of CASA to delegate all or any of CASA’s functions and powers under this Division to a person holding, or performing the duties of, an office or position within CASA that is at a level equivalent to that of an SES employee; and
(m) in relation to any other matter related to the operation of this Division.
(2) If regulations under paragraph (1)(k) are in force:
(a) references in section 74G and in this section to the Secretary are to be taken to include references to CASA; and
(b) paragraph 74G(2)(b) does not apply to a determination by CASA under subsection 74G(1); and
(c) paragraph 126(1)(f) has effect as if the reference in subsection 126(1) to the Secretary included a reference to CASA.
74I Division operates despite the Civil Aviation Act 1988
This Division has effect despite anything in the Civil Aviation Act 1988 or regulations under that Act.
Division 10—Optical surveillance devices
74J Purposes of this Division
In addition to the purposes of this Act, the purposes of this Division include the following:
(a) preventing and detecting contraventions of, or offences against:
(i) this Act; or
(ii) any other law of the Commonwealth;
at airports or on board aircraft;
(b) safeguarding Commonwealth interests.
74K Minister may determine code
(1) For the purposes of this Division, the Minister may, by legislative instrument, determine a code that regulates and authorises, despite any law of a State or a Territory, the use of optical surveillance devices by aviation industry participants:
(a) at a security controlled airport; or
(b) on board an aircraft that:
(i) is at a security controlled airport; or
(ii) is a prescribed aircraft; or
(c) in a vehicle that:
(i) is on board an aircraft covered by paragraph (b); or
(ii) is at a security controlled airport.
(2) The code may also regulate and authorise the use or disclosure of a signal, image or other information obtained by the use of the optical surveillance devices.
(3) Regulations made for the purposes of this section may prescribe penalties for offences against the code. The penalties must not exceed 50 penalty units.
Part 5—Powers of officials
Division 1—Simplified overview of Part
75 Simplified overview of Part
Certain persons are given particular powers and responsibilities under this Act. Some of these people are required to have specific qualifications and meet other requirements. This is to ensure that only appropriate people have these powers.
The types of persons (and the relevant Divisions) are as follows:
(a) aviation security inspectors (Division 2);
(b) law enforcement officers (Division 3);
(ba) eligible customs officers (Division 3A);
(c) airport security guards (Division 4);
(d) screening officers (Division 5).
Division 2—Aviation security inspectors
76 Simplified overview of Division
Employees in the Department and law enforcement officers can be appointed as aviation security inspectors.
Aviation security inspectors are given a range of powers that they can exercise to determine whether a person is complying with this Act.
Each aviation security inspector is to be issued with an identity card. The regulations may provide for the form, issue and use of those cards.
77 Appointment
(1) The Secretary may appoint an APS employee in the Department or a law enforcement officer to be an aviation security inspector.
(2) The appointment must be in writing.
78 Identity cards
(1) The Secretary must issue each aviation security inspector with an identity card.
(2) The regulations may set out requirements in relation to the form, issue and use of identity cards.
(3) The regulations may provide that the identity card may be combined with another identity card.
79 Powers of aviation security inspectors—general
(1) An aviation security inspector may exercise the powers set out in subsection (2) for the following purposes:
(a) determining whether a person is complying with this Act;
(b) investigating a possible contravention of this Act.
(2) For the purposes set out in subsection (1), an aviation security inspector may:
(a) enter and inspect a security controlled airport; or
(b) enter and inspect:
(i) any area, building (other than a residence) or vehicle under the control of an aviation industry participant; or
(ii) if an aviation industry participant operates from a residence or a part of a residence—the residence or the part of the residence from which the participant operates; or
(c) inspect equipment in a place or vehicle mentioned in paragraph (a) or (b); or
(d) observe the operating procedures of an aviation industry participant; or
(e) discuss those procedures with an employee of the aviation industry participant or with another aviation industry participant; or
(f) inspect, photograph or copy a document or record made or kept by an aviation industry participant; or
(g) operate equipment at a place mentioned in paragraph (a) or (b) for the purposes of gaining access to a document or record made or kept by an aviation industry participant.
(3) An aviation security inspector may exercise a power mentioned in subsection (2):
(a) if the power is exercised within the boundaries of a security controlled airport—at any time and without notice; or
(aa) if the power is exercised outside the boundaries of a security controlled airport but is one to which subsection (3A) applies—at any time and without notice; or
(b) otherwise—after giving the aviation industry participant concerned reasonable notice.
(3A) This subsection applies to the following powers:
(a) a power covered by subparagraph (2)(b)(i);
(b) a power covered by paragraph (2)(c), to the extent that it relates to subparagraph (2)(b)(i);
(c) a power covered by paragraph (2)(d) or (e);
(d) a power covered by paragraph (2)(f), to the extent that the document or record is found in the exercise of a power covered by paragraph (a), (b) or (e) of this subsection;
(e) a power covered by paragraph (2)(g), to the extent that it relates to subparagraph (2)(b)(i).
(4) However, in exercising a power under this section, an aviation security inspector must not subject a person to greater indignity than is necessary and reasonable for the exercise of the power.
(5) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct hinders or obstructs an aviation security inspector in the exercise of a power under this section.
Penalty: 50 penalty units.
(6) Subsection (5) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).
(7) Subsection (5) is an offence of strict liability.
80 Powers of aviation security inspectors—aircraft
(1) An aviation security inspector may exercise the powers set out in subsection (2) for the following purposes:
(a) determining whether a person is complying with this Act;
(b) investigating a possible contravention of this Act.
Note: Aviation security inspectors are also able to give compliance control directions: see section 74B.
(2) For the purposes set out in subsection (1), an aviation security inspector may:
(a) enter and inspect an aircraft operator’s aircraft at a security controlled airport; or
(b) inspect equipment in the aircraft; or
(c) observe operating procedures for the aircraft (whether carried out by the crew or some other person); or
(d) discuss those procedures with a person carrying them out or with another aviation industry participant; or
(e) inspect, photograph or copy a document or record held in the aircraft that relates to a passenger or an item of cargo.
(3) An aviation security inspector may exercise a power mentioned in subsection (2) after giving the aircraft operator reasonable notice.
(4) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct hinders or obstructs an aviation security inspector in the exercise of a power under this section.
Penalty: 50 penalty units.
(5) Subsection (4) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code).
(6) Subsection (4) is an offence of strict liability.
Division 3—Law enforcement officers
81 Simplified overview of Division
This Division provides police and protective service officers with special authority to:
(a) stop and search people and vehicles at airports;
(b) remove people from an aircraft or an airport, or from an area or zone of an airport, if they do not leave when requested to do so;
(c) remove vehicles from an airport, or from an area or zone of an airport, if the officer is unable to have the vehicle removed by the person in control of it.
The Division establishes restrictions on this authority, such as requiring the officer to explain why a search is to be made and limiting the amount of force that may be used.
A person who does not leave when requested to do so by a law enforcement officer commits an offence, as does a person who hinders or obstructs an officer exercising powers under this Division.
82 Law enforcement officers
Each of the following who is on duty at a security controlled airport is a law enforcement officer:
(a) a member of:
(i) the Australian Federal Police; or
(ii) the police force of a State or a Territory;
(b) a protective service officer (within the meaning of the Australian Federal Police Act 1979);
(c) a special protective service officer (within the meaning of the Australian Federal Police Act 1979) who has the same powers as a protective service officer.
83 Access to airports by law enforcement officers
A law enforcement officer may enter, and remain in, any part of a security controlled airport at any time.
84 Stopping and searching people
(1) If a law enforcement officer reasonably believes that it is necessary to do so for the purposes of safeguarding against unlawful interference with aviation, the law enforcement officer may stop a person who is in an airside area and conduct an ordinary search or a frisk search of the person.
(1A) An ordinary search or a frisk search of a person under subsection (1) must, if practicable, be conducted by a person of the same sex as the person being searched.
(2) If a law enforcement officer stops a person under subsection (1), the officer must:
(a) identify himself or herself as a law enforcement officer to the person; and
(b) tell the person why the person has been stopped; and
(c) if the person is to be searched—tell the person why the person is to be searched.
(3) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct hinders or obstructs a law enforcement officer in the exercise of a power under subsection (1).
Penalty for an offence against this subsection: Imprisonment for 2 years.
85 Stopping and searching vehicles
(1) If a law enforcement officer reasonably believes that it is necessary to do so for the purposes of safeguarding against unlawful interference with aviation, the law enforcement officer may do either or both of the following in an airside area:
(a) require the driver of a vehicle to stop the vehicle;
(b) search the vehicle.
(2) If a law enforcement officer stops a vehicle under subsection (1), the law enforcement officer must:
(a) identify himself or herself as a law enforcement officer to the driver of the vehicle; and
(b) tell the driver why the vehicle has been stopped; and
(c) if the vehicle is to be searched—tell the driver why the vehicle is to be searched.
(3) Before a law enforcement officer searches a vehicle under subsection (1) that was not stopped by the officer, the officer must, if there is a driver or person in control of the vehicle present:
(a) identify himself or herself as a law enforcement officer to the driver or person; and
(b) tell the driver or person why the vehicle is to be searched.
(4) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct hinders or obstructs a law enforcement officer in the exercise of a power under subsection (1).
Penalty for an offence against this subsection: Imprisonment for 2 years.
86 Requests to leave areas or zones
(1) If a law enforcement officer reasonably suspects that a person on a prescribed aircraft, or in an area or zone of a security controlled airport, is committing, or has committed, an offence against this Act, the officer may request the person to leave:
(a) the aircraft; or
(b) the area or zone; or
(c) the airport.
(2) A person commits an offence if:
(a) a request has been made to the person under subsection (1); and
(b) the person fails to comply with the request.
Penalty for an offence against this subsection: 50 penalty units.
87 Removing people from aircraft, airports, areas or zones
(1) If:
(a) a request to leave an aircraft, an airport or an area or zone has been made to a person under section 86; and
(b) the person fails to comply with the request;
a law enforcement officer may remove the person from the aircraft, the airport or the area or zone.
(2) A law enforcement officer must not use more force, or subject the person to greater indignity, than is necessary and reasonable to remove the person from the aircraft, the airport or the area or zone.
88 Removing vehicles from areas or zones
(1) If a law enforcement officer reasonably suspects that:
(a) a vehicle in or near an area or zone of a security controlled airport presents a risk to aviation security; or
(b) a vehicle is in an area or zone of a security controlled airport without proper authorisation;
the law enforcement officer may remove the vehicle.
(2) However, the law enforcement officer must not remove the vehicle without making reasonable efforts to have the person in control of the vehicle remove the vehicle.
(3) The law enforcement officer:
(a) must not use more force, or subject a person to greater indignity, than is necessary and reasonable to remove the vehicle from the area or zone; and
(b) must make reasonable efforts to avoid damaging the vehicle.
89 Other law enforcement powers not affected
This Act does not, by implication, limit the exercise of the powers a law enforcement officer has apart from this Act.
Division 3A—Eligible customs officers
89A Simplified overview of Division
This Division provides certain customs officers with powers to:
(a) stop and search persons and vehicles at airports; and
(b) request persons to leave an aircraft, an airport or an area or zone of an airport; and
(c) restrain and detain persons until the persons can be dealt with by a law enforcement officer; and
(d) remove vehicles from an airport, or from an area or zone of an airport, if the customs officer is unable to have the vehicle removed by the person in control of it.
This Division establishes restrictions on these powers, such as requiring the customs officer to explain why a search is to be made and limiting the amount of force that may be used.
A person who does not leave an aircraft or an airport, or an area or zone of an airport, when requested to do so by the customs officer commits an offence, as does a person who hinders or obstructs the officer exercising powers under this Division.
89B Eligible customs officers
(1) An eligible customs officer is a person who:
(a) is an officer of Customs within the meaning of subsection 4(1) of the Customs Act 1901; and
(b) is on duty at a security controlled airport; and
(c) satisfies the training and qualification requirements prescribed by the regulations for the purposes of this paragraph.
(2) The regulations may prescribe the following for eligible customs officers:
(a) requirements in relation to the form, issue and use of identity cards;
(b) requirements in relation to uniforms.
89C Stopping and searching persons
(1) If an eligible customs officer reasonably believes that it is necessary to do so for the purposes of safeguarding against unlawful interference with aviation, the officer may stop a person who is in an airside area and conduct an ordinary search or a frisk search of the person.
(2) An ordinary search or a frisk search of a person under subsection (1) must, if practicable, be conducted by a person of the same sex as the person being searched.
(3) If an eligible customs officer stops a person under subsection (1), the officer must:
(a) identify himself or herself as an eligible customs officer to the person; and
(b) tell the person why the person has been stopped; and
(c) if the person is to be searched—tell the person why the person is to be searched.
(4) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct hinders or obstructs an eligible customs officer in the exercise of a power under subsection (1).
Penalty for an offence against this subsection: Imprisonment for 2 years.
89D Stopping and searching vehicles
(1) If an eligible customs officer reasonably believes that it is necessary to do so for the purposes of safeguarding against unlawful interference with aviation, the officer may do either or both of the following in an airside area:
(a) require the driver of a vehicle to stop the vehicle;
(b) search the vehicle.
(2) If an eligible customs officer stops a vehicle under subsection (1), the officer must:
(a) identify himself or herself as an eligible customs officer to the driver of the vehicle; and
(b) tell the driver why the vehicle has been stopped; and
(c) if the vehicle is to be searched—tell the driver why the vehicle is to be searched.
(3) Before an eligible customs officer searches a vehicle under subsection (1) that was not stopped by the officer, the officer must, if there is a driver or person in control of the vehicle present:
(a) identify himself or herself as an eligible customs officer to the driver or person; and
(b) tell the driver or person why the vehicle is to be searched.
(4) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct hinders or obstructs an eligible customs officer in the exercise of a power under subsection (1).
Penalty for an offence against this subsection: Imprisonment for 2 years.
89E Requests to leave aircraft, airport or areas or zones
(1) If an eligible customs officer reasonably suspects that a person on a prescribed aircraft, or in an area or zone of a security controlled airport, is committing, or has committed, an offence against this Act, the officer may request the person to leave:
(a) the aircraft; or
(b) the area or zone; or
(c) the airport.
(2) A person commits an offence if:
(a) a request has been made to the person under subsection (1); and
(b) the person fails to comply with the request.
Penalty for an offence against this subsection: 50 penalty units.
89F Power to physically restrain persons
(1) If an eligible customs officer reasonably suspects that a person in an area or zone of a security controlled airport is committing, or has committed, an offence against this Act, the officer may physically restrain the person.
(2) If a person is restrained under subsection (1), the eligible customs officer may detain the person until the person can be dealt with by a law enforcement officer.
(3) In exercising a power under subsection (1) or (2), an eligible customs officer must not use more force, or subject a person to greater indignity, than is necessary and reasonable.
89G Removing vehicles from areas or zones
(1) If an eligible customs officer reasonably suspects that:
(a) a vehicle in or near an area or zone of a security controlled airport presents a risk to aviation security; or
(b) a vehicle is in an area or zone of a security controlled airport without proper authorisation;
the officer may remove the vehicle.
(2) However, the eligible customs officer must not remove the vehicle without making reasonable efforts to have the person in control of the vehicle remove the vehicle.
(3) The eligible customs officer:
(a) must not use more force, or subject a person to greater indignity, than is necessary and reasonable to remove the vehicle from the area or zone; and
(b) must make reasonable efforts to avoid damaging the vehicle.
89H Other powers not affected
This Act does not, by implication, limit the exercise of the powers an eligible customs officer has apart from this Act.
Division 4—Airport security guards
90 Simplified overview of Division
This Division gives airport security guards a limited power to restrain and detain persons. Airport security guards may only detain a person until the person can be dealt with by a law enforcement officer and their ability to use force is restricted.
Regulations must establish requirements to be met before a person can become an airport security guard.
91 Airport security guards
(1) An airport security guard is a person who:
(a) satisfies the training and qualification requirements and any other requirements prescribed in the regulations for airport security guards; and
(b) is on duty at a security controlled airport; and
(c) is not a law enforcement officer; and
(d) is not an eligible customs officer.
(2) The regulations must prescribe the following for airport security guards:
(a) training and qualification requirements;
(b) requirements in relation to the form, issue and use of identity cards.
(3) The regulations may prescribe the following for airport security guards:
(a) requirements in relation to uniforms;
(b) any other requirements.
92 Airport security guards’ power to physically restrain persons
(1) An airport security guard may physically restrain a person if:
(a) the airport security guard reasonably suspects that the person is committing, or has committed, an offence against this Act; and
(b) the airport security guard reasonably believes it is necessary to do so in order to:
(i) ensure that a person who is not cleared is not in a cleared area or a cleared zone; or
(ii) maintain the integrity of a landside security zone, a landside event zone, an airside area, an airside security zone or an airside event zone.
(2) If a person is restrained under subsection (1), the airport security guard may detain the person until the person can be dealt with by a law enforcement officer.
(3) In exercising a power under subsection (1) or (2), an airport security guard must not use more force, or subject a person to greater indignity, than is necessary and reasonable.
Division 5—Screening officers
93 Simplified overview of Division
A screening officer may request a person to remove items of clothing or undergo a frisk search for screening purposes—but may not require this. However, if a person refuses to comply with such a request and the screening officer is unable to screen the person properly, the screening officer must refuse to allow the person to pass the screening point.
To protect the integrity of cleared areas and zones, screening officers are provided with similar restraint and detention powers to those of airport security guards.
94 Screening officers
(1) A person who is authorised or required to conduct screening is a screening officer.
(2) The regulations must prescribe the following for screening officers:
(a) training and qualification requirements;
(b) requirements in relation to the form, issue and use of identity cards.
(3) The regulations may prescribe the following for screening officers:
(a) requirements in relation to uniforms;
(b) any other requirements.
95 Screening powers
(1) If a screening officer considers it necessary in order to screen a person properly, the screening officer may request the person to remove any item of the person’s clothing.
(2) The screening officer must not:
(a) require the person to remove any clothing; or
(b) remove or cause the removal of any of the person’s clothing.
Penalty: 50 penalty units.
(3) Subsection (2) does not apply if the officer has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).
(4) Subsection (2) is an offence of strict liability.
(5) If:
(a) a screening officer requests a person to remove an item of clothing under subsection (1); and
(b) the person refuses to comply with the request; and
(c) the person refuses:
(i) to be screened in a private room by a screening officer of the same sex as the person; or
(ii) to remove the item of clothing during that screening; and
(d) the refusals mean that it is not possible to screen the person properly;
the screening officer must refuse to allow the person to pass through the screening point.
95B Screening powers—frisk search as an additional screening procedure
(1) If:
(a) a person undergoes a screening procedure; and
(b) the results of that procedure indicate that additional screening procedures are necessary in order to screen the person properly;
a screening officer may request the person to undergo a frisk search.
(2) If a screening officer conducts a frisk search following a request under subsection (1), the screening officer may conduct the search only to the extent necessary to complete the proper screening of the person.
(3) A screening officer must not:
(a) require a person to undergo a frisk search under this section; or
(b) conduct a frisk search of a person under this section without the person’s consent; or
(c) contravene subsection (2).
Penalty: 50 penalty units.
(4) Subsection (3) does not apply if the officer has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).
(5) Subsection (3) is an offence of strict liability.
(6) If:
(a) a screening officer requests a person to undergo a frisk search under subsection (1); and
(b) the person refuses to comply with the request; and
(c) the person refuses:
(i) to be screened in a private room by a screening officer of the same sex as the person; or
(ii) to undergo a frisk search during that screening; and
(d) the refusals mean that it is not possible to screen the person properly;
the screening officer must refuse to allow the person to pass through the screening point.
95C Screening powers—frisk search general power
(1) If a screening officer considers it necessary in order to screen a person properly, the screening officer may request the person to undergo a frisk search.
(2) If a screening officer conducts a frisk search following a request under subsection (1), the screening officer may conduct the search only to the extent necessary to complete the proper screening of the person.
(3) A screening officer must not:
(a) require a person to undergo a frisk search under this section; or
(b) conduct a frisk search of a person under this section without the person’s consent; or
(c) contravene subsection (2).
Penalty: 50 penalty units.
(4) Subsection (3) does not apply if the officer has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).
(5) Subsection (3) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(6) If:
(a) a screening officer requests a person to undergo a frisk search under subsection (1); and
(b) the person refuses to comply with the request; and
(c) the person refuses to undergo a frisk search in a private room by a screening officer of the same sex as the person; and
(d) the refusals mean that it is not possible to screen the person properly;
the screening officer must refuse to allow the person to pass through the screening point.
96 Screening officers’ power to physically restrain persons
(1) A screening officer may physically restrain a person if:
(a) the screening officer reasonably suspects that the person is committing, or has committed, an offence against this Act; and
(b) the screening officer reasonably believes it is necessary to do so in order to:
(i) ensure that a person who is not cleared is not in a cleared area or a cleared zone; or
(ii) maintain the integrity of a cleared area or a cleared zone.
(2) If a person is restrained under subsection (1), the screening officer may detain the person until the person can be dealt with by a law enforcement officer.
97 Exercise of powers by screening officers
In exercising a power under this Division, a screening officer must not use more force, or subject a person to greater indignity, than is necessary and reasonable.
Part 6—Reporting aviation security incidents
Division 1—Simplified overview of Part
98 Simplified overview of Part
It is important, for aviation security, to ensure that all aviation security incidents are appropriately reported.
This Part establishes requirements to report aviation security incidents and provides for the form and content of such reports.
Division 2—Meaning of aviation security incident
99 Meaning of aviation security incident
Each of the following is an aviation security incident:
(a) a threat of unlawful interference with aviation;
(b) an unlawful interference with aviation.
Division 3—Certain people must report incidents
100 Airport operators
(1) An aviation industry participant who is an airport operator commits an offence if:
(a) the participant becomes aware of an aviation security incident; and
(b) the participant fails to report the incident as required by section 104 as soon as possible.
Penalty: 200 penalty units.
(2) Subsection (1) does not apply in relation to a report that must be made to a particular person if:
(a) the participant believes, on reasonable grounds, that the person is already aware of the incident; or
(b) the participant has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matters in subsection (2) (see subsection 13.3(3) of the Criminal Code).
(3) Subsection (1) is an offence of strict liability.
101 Aircraft operators
(1) An aviation industry participant who is an aircraft operator commits an offence if:
(a) the participant becomes aware of an aviation security incident; and
(b) the participant fails to report the incident as required by section 105 as soon as possible.
Penalty: 200 penalty units.
(2) Subsection (1) does not apply in relation to a report that must be made to a particular person if:
(a) the participant believes, on reasonable grounds, that the person is already aware of the incident; or
(b) the participant has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matters in subsection (2) (see subsection 13.3(3) of the Criminal Code).
(3) Subsection (1) is an offence of strict liability.
102 Persons with incident reporting responsibilities
(1) A person with incident reporting responsibilities commits an offence if:
(a) the person becomes aware of an aviation security incident; and
(b) the person fails to report the incident as required by section 106 as soon as possible.
Penalty: For a person with incident reporting responsibilities who is an aviation industry participant, other than an accredited air cargo agent—100 penalty units.
For any other person with incident reporting responsibilities—50 penalty units.
(2) Subsection (1) does not apply in relation to a report that must be made to a particular person (the person to be notified) if:
(a) the person with incident reporting responsibilities believes, on reasonable grounds, that the person to be notified is already aware of the incident; or
(b) the person with incident reporting responsibilities has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matters in subsection (2) (see subsection 13.3(3) of the Criminal Code).
(3) Subsection (1) is an offence of strict liability.
(4) Each of the following is a person with incident reporting responsibilities:
(a) an aviation security inspector;
(b) an airport security guard;
(c) a screening officer;
(d) an aviation industry participant other than a participant who is:
(i) an airport operator; or
(ii) an aircraft operator; or
(iii) an employee (within the definition of employee in section 9) of another aviation industry participant.
103 Employees
(1) An employee of an aviation industry participant commits an offence if:
(a) the employee becomes aware of an aviation security incident; and
(b) the employee fails to report the incident to the aviation industry participant as soon as possible.
Penalty: 50 penalty units.
(2) Subsection (1) does not apply if the employee has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
(3) Subsection (1) is an offence of strict liability.
Division 4—Reporting requirements
104 Reporting by airport operators
(1) Aviation industry participants who are airport operators must report aviation security incidents in accordance with this section.
(2) An incident that relates to the airport of another operator must be reported to that other operator.
(3) An incident that relates to the aircraft of an aircraft operator must be reported to the aircraft operator.
(4) An incident that relates to the airport of the airport operator must be reported to:
(a) the Secretary; and
(b) the Australian Federal Police or the police force of a State or a Territory; and
(c) if it relates to a part of an airport of the operator for which a lease or licence has been granted to another person—that other person.
(5) However, the operator is not required to report under paragraph (4)(c) if the incident:
(a) relates to the airport in general; and
(b) is not specifically directed at the part of the airport for which the lease or licence has been granted.
105 Reporting by aircraft operators
(1) Aviation industry participants who are aircraft operators must report aviation security incidents in accordance with this section.
(2) An incident that relates to an airport must be reported to the operator of the airport.
(3) An incident that relates to the aircraft of another aircraft operator must be reported to that other operator.
(4) An incident that relates to an aircraft of the aircraft operator must be reported to:
(a) the Secretary; and
(b) the Australian Federal Police or the police force of a State or a Territory.
(5) An incident that relates to an aircraft of the aircraft operator and is:
(a) an unlawful interference with aviation; or
(b) a threat of unlawful interference with aviation that is assessed by the operator as credible; or
(c) a threat of unlawful interference with aviation that the operator is unable to assess;
must be reported to:
(d) if the aircraft is in flight—Airservices Australia; or
(e) if the aircraft is at an airport—the operator of the airport.
106 Reporting by persons with incident reporting responsibilities
(1) A person with incident reporting responsibilities must report aviation security incidents in accordance with this section.
(2) Each incident must be reported to the Secretary.
(3) An incident that relates to the airport of an airport operator must be reported to the airport operator.
(4) An incident that relates to the aircraft of an aircraft operator must be reported to the aircraft operator.
Division 5—Form and content of reports
107 How reports are to be made
(1) The Secretary may, by legislative instrument, specify either or both of the following:
(a) information that must be included in a report required by this Part;
(b) the way in which the report must be made.
(3) If:
(a) a person reports an aviation security incident; and
(b) the report does not comply with any requirements that are in force under subsection (1) when the report is made;
the report is taken, for the purposes of this Part, not to have been made.
Part 7—Information‑gathering
Division 1—Simplified overview of Part
108 Simplified overview of Part
It is important, for aviation security, for the Secretary to be able to collect certain information.
Division 2 gives the Secretary the power to require security compliance information but limits the use of the information in certain proceedings.
Division 3 gives the Secretary the power to require aviation security information but limits the use of the information in certain proceedings.
Division 2—Secretary may require security compliance information
109 Secretary may require security compliance information
(1) Information that relates to compliance, or failure to comply, with this Act is security compliance information.
(2) If the Secretary believes, on reasonable grounds, that an aviation industry participant has security compliance information, the Secretary may, by written notice given to the participant, require the participant to give the information to the Secretary.
(3) The information must be given within the period and in the form and manner specified in the notice. The period must not be less than 14 days.
(4) Without limiting subsection (3), the Secretary may specify in the notice any one or more of the following ways for the participant to give the information:
(a) orally;
(b) in writing;
(c) by electronic transmission.
(5) A person commits an offence if the person fails to comply with a notice under subsection (2).
Penalty for an offence against this subsection: 45 penalty units.
110 Self‑incrimination
(1) A person is not excused from giving security compliance information under section 109 on the ground that the information might tend to incriminate the person or expose the person to a penalty.
(2) However, if the person is a natural person:
(a) the information; and
(b) the giving of the information; and
(c) any information, document or thing obtained as a direct or indirect consequence of giving the information;
are not admissible in evidence against the person in a criminal proceeding, or any other proceeding for the recovery of a penalty, other than a proceeding under section 137.1 or 137.2 of the Criminal Code that relates to the giving of the information.
Division 3—Secretary may require aviation security information
111 Secretary may require aviation security information
(1) Information that is not security compliance information and is prescribed by the regulations for the purposes of this section is aviation security information.
(2) Without limiting the kinds of information that may be prescribed by regulations made under subsection (1), the regulations may prescribe the following kinds of information as aviation security information:
(a) statistics relating to the screening of people, vehicles, goods or cargo for entry to cleared areas or cleared zones;
(b) statistics relating to the people, vehicles, goods or cargo that go through a screening process and:
(i) receive clearance as a result of going through the screening process; or
(ii) do not receive clearance as a result of going through the screening process and the reason or reasons for not receiving clearance;
(c) information about activities undertaken, or to be undertaken, to ensure that people, vehicles, goods or cargo that have not received clearance are not in cleared areas or cleared zones;
(d) information about activities undertaken, or to be undertaken, at an airport for the purposes of safeguarding against unlawful interferences with aviation;
(e) information about the controls that apply, or will apply, to airside areas, airside security zones, airside event zones, landside areas, landside security zones or landside event zones.
(3) If the Secretary believes, on reasonable grounds, that an aviation industry participant has aviation security information, the Secretary may, by written notice given to the participant, require the participant to give the information to the Secretary.
(4) The information must be given within the period and in the form and manner specified in the notice. The period must not be less than 14 days.
(5) Without limiting subsection (4), the Secretary may specify in the notice any one or more of the following ways for the participant to give the information:
(a) orally;
(b) in writing;
(c) by electronic transmission.
(6) A person commits an offence if the person fails to comply with a notice under subsection (3).
Penalty for an offence against this subsection: 45 penalty units.
112 Self‑incrimination
(1) A person is not excused from giving aviation security information under section 111 on the ground that the information might tend to incriminate the person or expose the person to a penalty.
(2) However, if the person is a natural person:
(a) the information; and
(b) the giving of the information; and
(c) any information, document or thing obtained as a direct or indirect consequence of giving the information;
are not admissible in evidence against the person in a criminal proceeding, or any other proceeding for the recovery of a penalty, other than a proceeding under section 137.1 or 137.2 of the Criminal Code that relates to the giving of the information.
Part 8—Enforcement
Division 1—Simplified overview of Part
116 Simplified overview of Part
To ensure that persons comply with their obligations under this Act, many provisions throughout the Act provide for criminal offences. To provide flexibility in enforcing this Act, there is also a range of enforcement options that can be used as an alternative to, or in addition to, criminal prosecution. These enforcement options are covered by this Part.
The enforcement options (and the relevant Divisions) are as follows:
(a) infringement notices (Division 2);
(b) enforcement orders (Division 3);
(c) enforceable undertakings (Division 3A);
(d) injunctions (Division 4);
(e) demerit points system (Division 5).
Division 2—Infringement notices
117 Infringement notices
(1) The regulations may make provision enabling a person who is alleged to have committed an offence against this Act, other than an offence against subsection 13(1), 46(3) or 47(3) or section 49, to pay a penalty to the Commonwealth as an alternative to prosecution.
(2) The penalty must not exceed one‑fifth of the maximum fine that a court could impose on the person as a penalty for that offence.
Division 3—Enforcement orders
118 Simplified overview of Division
The Secretary may make enforcement orders requiring specified people to take specified actions, where the Secretary is of the opinion that the person has contravened this Act.
A person who contravenes an enforcement order may be subject to an injunction.
119 Secretary may make enforcement orders
(1) The Secretary may make a written order (an enforcement order):
(a) prohibiting or restricting specified activities by the aviation industry participant named in the enforcement order; or
(b) requiring the aviation industry participant named in the enforcement order to take specified action.
(2) The Secretary may only make an enforcement order if he or she reasonably believes that:
(a) the aviation industry participant named in the enforcement order has contravened this Act; and
(b) it is necessary to make the order to safeguard against unlawful interference with aviation.
(3) The enforcement order must:
(a) bear a clear and direct relationship to the contravention; and
(b) be proportionate to the contravention.
(4) The enforcement order must not require the payment of money to the Secretary (or any other person) other than an amount of money that is already recoverable at law.
120 Commencement and duration of enforcement orders
(1) An enforcement order comes into force:
(a) if a commencement time that is after the day on which the order is given to the aviation industry participant concerned is specified in the order—at that time; or
(b) otherwise—at the beginning of the seventh day after it is given to the aviation industry participant concerned.
(2) The order remains in force:
(a) for the period (if any) specified in the order; or
(b) until it is revoked by the Secretary.
121 Reviews of enforcement orders
(1) The Secretary must:
(a) at intervals of not more than 3 months, review the enforcement order; and
(b) after each review, confirm, vary or revoke the order by instrument in writing.
(2) The Secretary must revoke the order unless he or she is satisfied that the order is still needed to safeguard against unlawful interference with aviation.
(3) The Secretary must not vary the order unless he or she is satisfied that the order as varied:
(a) adequately safeguards against unlawful interference with aviation; and
(b) meets the requirements set out in subsections 119(3) and (4).
(4) If an order is varied, the order continues in force as varied.
122 Notice of enforcement orders
(1) As soon as practicable after making or reviewing an enforcement order, the Secretary must cause the aviation industry participant named in the order to be informed of the making of the order, or the decision on the review, as the case requires.
(2) Failure to comply with this section does not affect the validity of the order.
123 Complying with enforcement orders
(1) A person must not engage in conduct that contravenes an enforcement order.
(2) If a person contravenes subsection (1), the person does not commit an offence but may be subject to an injunction under section 124.
Division 3A—Enforceable undertakings
123A Acceptance of undertakings
(1) The Secretary may accept any of the following undertakings:
(a) a written undertaking given by an aviation industry participant that the participant will, in order to comply with this Act, take specified action;
(b) a written undertaking given by an aviation industry participant that the participant will, in order to comply with this Act, refrain from taking specified action;
(c) a written undertaking given by an aviation industry participant that the participant will take specified action directed towards ensuring that the participant does not contravene this Act, or is unlikely to contravene this Act, in the future.
(2) The undertaking must be expressed to be an undertaking under this section.
(3) The participant may withdraw or vary the undertaking at any time, but only with the written consent of the Secretary.
(4) The Secretary may, by written notice given to the participant, cancel the undertaking.
123B Enforcement of undertakings
(1) If:
(a) an aviation industry participant has given an undertaking under section 123A; and
(b) the undertaking has not been withdrawn or cancelled; and
(c) the Secretary considers that the participant has breached the undertaking;
the Secretary may apply to the Federal Court for an order under subsection (2).
(2) If the Federal Court is satisfied that the participant has breached the undertaking, the Court may make any or all of the following orders:
(a) an order directing the participant to comply with the undertaking;
(b) an order directing the participant to pay to the Commonwealth an amount up to the amount of any financial benefit that the participant has obtained directly or indirectly and that is reasonably attributable to the breach;
(c) any order that the Court considers appropriate directing the participant to compensate any other person who has suffered loss or damage as a result of the breach;
(d) any other order that the Court considers appropriate.
Division 4—Injunctions
124 Injunctions
(1) If a person has engaged, is engaging or is proposing to engage in any conduct in contravention of this Act, the Federal Court may, on the application of the Secretary, grant an injunction:
(a) restraining the person from engaging in the conduct; or
(b) requiring the person to do an act or thing.
(2) On an application, the court may, if it thinks it appropriate, grant an injunction by consent of all parties to the proceedings, whether or not the court is satisfied that the person has engaged, is engaging or is proposing to engage in any conduct in contravention of this Act.
(3) The court may, if it thinks it desirable, grant an interim injunction pending its determination of an application.
(4) The court is not to require the Secretary or anyone else, as a condition of granting an interim injunction, to give an undertaking as to damages.
(5) The court may discharge or vary an injunction it has granted.
(6) The power to grant or vary an injunction restraining a person from engaging in conduct may be exercised:
(a) whether or not it appears to the court that the person intends to engage again, or to continue to engage, in such conduct; and
(b) whether or not the person has previously engaged in such conduct.
(7) The power to grant or vary an injunction requiring a person to do an act or thing may be exercised:
(a) whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and
(b) whether or not the person has previously refused or failed to do that act or thing and whether or not there is an imminent danger of substantial damage to any person if the person refuses or fails to do that act or thing.
Division 5—Demerit points system
125 Demerit points
(1) The regulations may establish a system (the demerit points system) under which the approval of a transport security program of an aviation industry participant who accrues a prescribed number of demerit points may be cancelled.
Note: Section 26 deals with the cancellation of the approval of programs under the demerit points system.
(2) The demerit points system must only allow demerit points to be accrued if an aviation industry participant:
(a) is convicted or found guilty of an offence against this Act; or
(b) under a scheme established under regulations made under section 117, pays a penalty to the Commonwealth as an alternative to prosecution.
(3) Without limiting the scheme that may be established under subsection (1), the scheme may provide that different provisions apply to different kinds of aviation industry participants or to different classes of participants within a kind of aviation industry participant.
Part 9—Review of decisions
126 Review of decisions by Administrative Appeals Tribunal
(1) Application may be made to the Administrative Appeals Tribunal for a review of a decision by the Secretary:
(a) to refuse to approve a transport security program under subsection 19(2) or (4); or
(b) to direct a participant to vary a program under section 21; or
(c) to direct a participant to revise a program under section 23; or
(ca) to refuse to approve alterations of a program under section 23A; or
(d) to cancel a transport security program under section 25 or 26; or
(e) to declare that a particular airport, or a part of a particular airport, is a security controlled airport under subsection 28(2); or
(ea) to assign a category to a particular security controlled airport under subsection 28(6); or
(f) to determine under subsection 74G(1) that a person has an adverse aviation security status.
(2) To avoid doubt, paragraph (1)(f) does not permit the Administrative Appeals Tribunal to review an adverse security assessment or a qualified security assessment other than in accordance with the provisions of the Australian Security Intelligence Organisation Act 1979 and the Administrative Appeals Tribunal Act 1975.
(3) In subsection (2):
adverse security assessment and qualified security assessment have the same meanings as in the Australian Security Intelligence Organisation Act 1979.
Note: Section 27A of the Administrative Appeals Tribunal Act 1975 requires the decision‑maker to notify persons whose interests are affected by the decision of the making of the decision and their right to have the decision reviewed. In so notifying, the decision‑maker must have regard to the Code of Practice determined under section 27B of that Act.
Part 10—Miscellaneous
127 Delegation
(1) The Secretary may, by writing, delegate all or any of his or her powers and functions under this Act to a person of the following kind:
(a) an SES employee, or acting SES employee, in the Department;
(aa) an SES employee in the Attorney‑General’s Department;
(b) the Agency Head of an Agency that carries on activities that relate to national security.
(1A) However, a delegation under paragraph (1)(b) has no effect unless the Agency Head of the Agency agrees to the delegation.
(2) The Secretary may, by writing, delegate all or any of his or her powers and functions under this Act, other than powers or functions under:
(a) subsection 71(1); or
(b) Division 3 or 3A of Part 8;
to an APS employee in the Department.
(2A) The Secretary may, by writing, delegate all or any of his or her powers and functions under Division 9 of Part 4 to a person holding, or performing the duties of, an office or position within CASA that is at a level equivalent to that of an SES employee.
(3) In exercising powers or functions under a delegation, the delegate must comply with any directions of the Secretary.
(4) In this section:
Attorney‑General’s Department means the Department administered by the Minister who administers the Crimes Act 1914.
127A Sub‑delegation
(1) If the Secretary delegates a power or function to the Agency Head of an Agency under paragraph 127(1)(b), the Agency Head may, by writing, sub‑delegate the power or function to an SES Band 3 employee in the Agency.
(2) Sections 34AA, 34AB and 34A of the Acts Interpretation Act 1901 apply in relation to the sub‑delegation in a corresponding way to the way in which they apply to a delegation.
(3) In exercising powers or functions under a sub‑delegation, the delegate must comply with any directions of the Agency Head of the Agency.
(4) An SES Band 3 employee is an SES employee with a classification of Senior Executive Band 3, and includes an SES employee who has been temporarily assigned duties that have been allocated a classification of Senior Executive Band 3.
128 Compensation for damage to electronic equipment
(1) This section applies if:
(a) as a result of electronic equipment being operated as mentioned in section 79:
(i) damage is caused to the equipment; or
(ii) the data recorded on the equipment is damaged; or
(iii) programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and
(b) the damage or corruption occurs because:
(i) insufficient care was exercised in selecting the person who was to operate the equipment; or
(ii) insufficient care was exercised by the person operating the equipment.
(2) The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.
(3) However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in the Federal Court of Australia for such reasonable amount of compensation as the Court determines.
(4) In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier’s employees and agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.
(5) Compensation is payable out of money appropriated by the Parliament.
129 Compensation for acquisition of property
(1) If:
(a) apart from this section, the operation of this Act would result in the acquisition of property from a person otherwise than on just terms; and
(b) the acquisition would be invalid because of paragraph 51(xxxi) of the Constitution;
then the Commonwealth is liable to pay compensation of a reasonable amount to the person in respect of the acquisition.
(2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may take proceedings in the Federal Court for the recovery from the Commonwealth of such reasonable amount of compensation as the Court determines.
(3) Compensation is payable out of money appropriated by the Parliament.
130 Part 11 of the Airports Act 1996
Part 11 of the Airports Act 1996 has no effect to the extent to which it is inconsistent with this Act (including regulations under this Act).
131 Scope of immunities and privileges
(1) Subject to this section, this Act does not affect an immunity or privilege that is conferred by or under the Consular Privileges and Immunities Act 1972, the Defence (Visiting Forces) Act 1963, the Diplomatic Privileges and Immunities Act 1967, the Foreign States Immunities Act 1985 or any other Act.
Screening and clearing
(2) An immunity or privilege (other than one that is accorded to diplomatic bags) conferred by or under an Act referred to in subsection (1) does not limit the application of provisions of this Act which specify requirements for screening or for receiving clearance.
132 Severability—additional effect of Act
(1) Without limiting its effect apart from this section, this Act also has effect as provided by this section.
(2) This Act also has the effect that it would have if its operation were expressly confined to acts or omissions of corporations to which paragraph 51(xx) of the Constitution applies.
(3) This Act also has the effect that it would have if its operation were expressly confined to acts or omissions that occur at Commonwealth places.
(4) This Act also has the effect that it would have if its operation were expressly confined to acts or omissions taking place in the course of, or in relation to, trade or commerce:
(a) between Australia and places outside Australia; or
(b) among the States; or
(c) within a Territory, between a State and a Territory or between 2 Territories.
(5) This Act also has the effect that it would have if its operation were expressly confined to acts or omissions taking place in a Territory.
(6) This Act also has the effect that it would have if its operation were expressly confined to acts or omissions taking place outside Australia.
(7) This Act also has the effect that it would have if its operation were expressly confined to matters:
(a) in relation to which the Commonwealth is under an obligation under an international agreement; or
(b) that are of international concern.
133 Regulations
(1) The Governor‑General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
Note: See section 134 for the extra‑territorial operation of regulations.
(2) Without limiting subsection (1), the regulations may:
(a) prescribe fees in respect of matters under this Act (including the regulations); and
(b) prescribe penalties of not more than 50 penalty units for offences against the regulations.
(3) Paragraph (2)(b) does not limit any provision in this Act that provides for the regulations to prescribe penalties higher than 50 penalty units.
134 Extra‑territorial operation of regulations
(1) Any provisions of the regulations may be expressed to apply to and in relation to any of the following:
(a) Australian aircraft;
(b) aircraft (other than Australian aircraft) engaged in Australian international carriage;
(c) passengers on board, and members of the crew of, aircraft referred to in paragraph (a) or (b);
while the aircraft are outside Australian territory.
(2) In this Act:
airline means a person engaged in the provision of air services.
Australian international carriage means the carriage of passengers or cargo, or both passengers and cargo, whether within or outside Australian territory, by an aircraft that:
(a) is operated by an airline that is designated, nominated or otherwise similarly authorised by Australia under a bilateral arrangement to engage in such carriage; or
(b) is operated by an airline incorporated in Australia; or
(c) is operated by an airline having its principal place of business in Australia; or
(d) is operated by an Australian operator and is subject to section 15A or 17 of the Air Navigation Act 1920; or
(e) is operated jointly by:
(i) an airline referred to in paragraph (a), (b) or (c); and
(ii) another person;
but is under the control of the airline referred to in subparagraph (i) of this paragraph; or
(f) is subject to section 15A or 17 of the Air Navigation Act 1920 and is operated jointly by:
(i) an Australian operator; and
(ii) another person;
but is under the control of the Australian operator.
Australian operator means an aircraft operator who:
(a) if the operator is an individual:
(i) is an Australian citizen; or
(ii) is ordinarily resident in Australia; or
(b) if the operator is a body corporate:
(i) is incorporated in Australia; or
(ii) has its principal place of business in Australia.
bilateral arrangement means an agreement or arrangement between:
(a) Australia, or an entity or organisation nominated or otherwise similarly authorised by Australia to enter into the agreement or arrangement; and
(b) a foreign country;
under which the carriage by air of passengers or cargo, or both passengers and cargo, between Australia and the foreign country is permitted.
foreign country includes any region:
(a) that is part of a foreign country; or
(b) that is under the protection of a foreign country; or
(c) for whose international relations a foreign country is responsible.
(3) For the purposes of this section:
(a) an aircraft is taken to be subject to section 15A of the Air Navigation Act 1920 if the aircraft would be taken to be subject to that section under paragraph 27(3)(c) of that Act; and
(b) an aircraft is taken to be subject to section 17 of the Air Navigation Act 1920 if the aircraft would be taken to be subject to that section under paragraph 27(3)(d) of that Act.