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SLI 2006 No. 100 Regulations as made
These Regulations amend the Aviation Transport Security Regulations 2005 to review the eligibility of existing Aviation Security Identity Card holders against strengthened criteria.
Administered by: DOTARS
Exempt from sunsetting by the Legislative Instruments Regulations 2004 Sch 3 item 5
Registered 10 May 2006
Tabling HistoryDate
Tabled HR11-May-2006
Tabled Senate13-Jun-2006
Date of repeal 19 Mar 2014
Repealed by Infrastructure and Regional Development (Spent and Redundant Instruments) Repeal Regulation 2014

Aviation Transport Security Amendment Regulations 2006 (No. 3)1

Select Legislative Instrument 2006 No. 100

I, PHILIP MICHAEL JEFFERY, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Aviation Transport Security Act 2004.

Dated 8 May 2006

P. M. JEFFERY

Governor-General

By His Excellency’s Command

WARREN TRUSS


1              Name of Regulations

                These Regulations are the Aviation Transport Security Amendment Regulations 2006 (No. 3).

2              Commencement

                These Regulations commence on the day after they are registered.

3              Amendment of Aviation Transport Security Regulations 2005

                Schedule 1 amends the Aviation Transport Security Regulations 2005.


Schedule 1        Amendments

(regulation 3)

  

[1]           Regulation 6.02 

substitute

6.02        Background checking

                A reference in this Part to background checking, in relation to a person, is a reference to any of the following:

                (a)    the AFP conducting a criminal records check in relation to the person;

               (b)    a security assessment conducted by ASIO in relation to the person;

                (c)    if the person is not an Australian citizen, DIMIA determining whether the person is an unlawful non-citizen.

[2]           Before regulation 6.26, in Division 6.5

insert

Subdivision 6.5.1        Definition for this Division

6.26A      Definition

                In this Division:

adverse criminal record has the same meaning as in subregulation 6.28 (2A).

Subdivision 6.5.2        Issue and form of ASICs and VICs

[3]           Subparagraph 6.27A (3) (a) (i)

substitute

                          (i)    a statement that:

                                   (A)     the Secretary has conducted an assessment, based on a criminal history certificate received from the AFP, to determine whether the person has an adverse criminal record; and

                                   (B)     based on the criminal history certificate, the person has an adverse criminal record; and

[4]           Paragraph 6.27A (3) (b)

omit

because

insert

because, based on a criminal history certificate received from the AFP,

[5]           Subregulation 6.27A (5)

omit

[6]           Subparagraph 6.28 (1) (d) (ii)

substitute

                         (ii)    based on the criminal history certificate, the person does not have an adverse criminal record; and

[7]           After regulation 6.42

insert

Subdivision 6.5.3        ASIC holders whose applications were determined before 6 March 2006

6.42A      Overview of Subdivision

         (1)   This Subdivision deals with transitional ASIC holders.

         (2)   This Subdivision allows the Secretary:

                (a)    to ask issuing bodies to provide personal information about each transitional ASIC holder so that the AFP may conduct a criminal records check in relation to each of those holders; and

               (b)    to assess the criminal record of each transitional ASIC holder who has a criminal record to determine whether he or she has an adverse criminal record or a qualified criminal record; and

                (c)    to direct the issuing body that issued the ASIC held by any transitional ASIC holder who has an adverse criminal record or a qualified criminal record to be cancelled.

         (3)   In this Subdivision:

qualified criminal record has the meaning given in subregulation 6.42D (3).

transitional ASIC holder means a person:

                (a)    who is the holder of an ASIC; and

               (b)    in relation to whom the Secretary has not conducted an assessment, under subregulation 6.27A (1), to determine whether the person has an adverse criminal record.

Note   Regulation 6.27A commenced on 6 March 2006. It applies only in relation to an application for the issue of an ASIC:

(a)   made, but not finally determined before 6 March 2006; or

(b)   made after 5 March 2006.

6.42B     Gathering information for assessment of criminal records of transitional ASIC holders

         (1)   As soon as practicable after the commencement of this regulation, the Secretary must give the issuing body that issued an ASIC to a transitional ASIC holder a notice to provide specified personal information about the holder to the Secretary.

         (2)   As soon as practicable after the issuing body receives the Secretary’s notice, the issuing body must give the Secretary the information specified in the notice, in a form approved by the Secretary.

         (3)   As soon as practicable after the Secretary receives the information from the issuing body, the Secretary must give the AFP a written request for:

                (a)    a criminal records check to be conducted in relation to the holder; and

               (b)    either:

                          (i)    if the holder has a criminal record — a criminal history certificate to be made in relation to the holder; or

                         (ii)    if the holder does not have a criminal record — written notice to the effect that the holder does not have a criminal record.

6.42C     Authorisation of disclosures of personal information for assessment of criminal records of transitional ASIC holders

         (1)   For the purpose of enabling the AFP to conduct a criminal records check in relation to a transitional ASIC holder:

                (a)    the issuing body that issued the ASIC to the holder is authorised to disclose personal information about the holder to the Secretary; and

               (b)    the Secretary is authorised to disclose personal information about the holder to the AFP.

         (2)   For the purpose of conducting the criminal records check, the AFP is authorised to disclose personal information about the holder to the police force or police service of each State and Territory.

         (3)   For the purpose of enabling the Secretary to determine whether the holder has an adverse criminal record, a qualified criminal record, or no criminal record:

                (a)    the AFP is authorised to disclose personal information about the holder to the Secretary; and

               (b)    the police force or police service of each State and Territory is authorised to disclose personal information about the holder to the AFP.

         (4)   For the purposes of giving a notice to the issuing body under subregulation 6.42E (2), 6.42F (2) or 6.42G (2), the Secretary is authorised to disclose to the issuing body personal information about the holder received from the AFP.

6.42D     Assessment of criminal records of transitional ASIC holders

         (1)   This regulation applies if the Secretary receives a criminal history certificate from the AFP in response to a request made under subregulation 6.42B (3) in relation to a transitional ASIC holder.

         (2)   As soon as practicable after receiving the certificate, the Secretary must conduct an assessment, based on the criminal history certificate, to determine whether the holder has:

                (a)    an adverse criminal record; or

               (b)    a qualified criminal record.

         (3)   A person has a qualified criminal record if:

                (a)    the person has been convicted twice or more of aviation-security-relevant offences; and

               (b)    no sentence of imprisonment was imposed for any of those convictions; and

                (c)    none of those convictions occurred within the 12 months ending on the date when the criminal history certificate was made.

6.42E      Notice about transitional ASIC holders without relevant criminal records

         (1)   This regulation applies in relation to a transitional ASIC holder if:

                (a)    in response to a request by the Secretary under subregulation 6.42B (3) in relation to the holder, the Secretary receives written notice from the AFP to the effect that the holder does not have a criminal record; or

               (b)    the Secretary determines, under subregulation 6.42D (2), that the holder does not have an adverse criminal record or a qualified criminal record.

         (2)   The Secretary must give the issuing body that issued the ASIC to the holder:

                (a)    a notice stating that the Secretary has received written notice from the AFP to the effect that the holder does not have a criminal record; or

               (b)    a notice stating that:

                          (i)    the Secretary has conducted an assessment, based on a criminal history certificate received from the AFP, to determine whether the holder has an adverse criminal record or a qualified criminal record; and

                         (ii)    based on the criminal history certificate, the holder does not have an adverse criminal record or a qualified criminal record.

6.42F      ASICs held by transitional ASIC holders with adverse criminal records

         (1)   This regulation applies if the Secretary determines, under subregulation 6.42D (2), that a transitional ASIC holder has an adverse criminal record.

         (2)   The Secretary must give the issuing body that issued the ASIC to the holder a notice that includes:

                (a)    a statement that:

                          (i)    the Secretary has conducted an assessment, based on a criminal history certificate received from the AFP, to determine whether the holder has an adverse criminal record; and

                         (ii)    based on the criminal history certificate, the holder has an adverse criminal record; and

               (b)    a direction to cancel the ASIC.

         (3)   In addition, the Secretary must give the holder a notice stating that the Secretary has given the issuing body a direction to cancel the ASIC because, based on a criminal history certificate received from the AFP, the holder has an adverse criminal record.

Note   Section 27A of the Administrative Appeals Tribunal Act 1975 requires a person who makes a reviewable decision to give a person whose interests are affected by the decision notice of the making of the decision and of the person’s right to have the decision reviewed.

6.42G     ASICs held by transitional ASIC holders with qualified criminal records

         (1)   This regulation applies if:

                (a)    the Secretary determines, under subregulation 6.42D (2), that a transitional ASIC holder has a qualified criminal record; and

               (b)    the ASIC held by the holder has an expiry date that is later than 12 months after the end of the month in which the criminal history certificate was made.

         (2)   The Secretary must give the issuing body that issued the ASIC to the holder a notice that includes:

                (a)    a statement that:

                          (i)    the Secretary has conducted an assessment, based on a criminal history certificate received from the AFP, to determine whether the holder has a qualified criminal record; and

                         (ii)    based on the criminal history certificate, the holder has a qualified criminal record; and

               (b)    a direction to cancel the ASIC; and

                (c)    permission to issue another ASIC to the holder subject to the condition that the other ASIC has an expiry date that is not later than 12 months after the end of the month in which the criminal history certificate was made.

         (3)   In addition, the Secretary must give the holder a notice stating that the Secretary has given the issuing body:

                (a)    a direction to cancel the ASIC because, based on a criminal history certificate received from the AFP, the holder has a qualified criminal record; and

               (b)    permission to issue another ASIC to the holder subject to the condition that the other ASIC has an expiry date that is not later than 12 months after the end of the month in which the criminal history certificate was made.

Note   Section 27A of the Administrative Appeals Tribunal Act 1975 requires a person who makes a reviewable decision to give a person whose interests are affected by the decision notice of the making of the decision and of the person’s right to have the decision reviewed.

Subdivision 6.5.4        Cancellation and other matters concerning ASICs and VICs

[8]           After paragraph 6.43 (2) (a)

insert

              (aa)    the body has received a notice that includes:

                          (i)    a statement that:

                                   (A)     the Secretary has conducted an assessment, based on a criminal history certificate received from the AFP, to determine whether the person has an adverse criminal record or a qualified criminal record; and

                                   (B)     based on the criminal history certificate, the person has an adverse criminal record or a qualified criminal record; and

                         (ii)    a direction to cancel the ASIC; or

[9]           After regulation 6.43

insert

6.43A      Exempting issuing bodies from giving effect to directions to cancel ASICs

         (1)   If the Secretary has given an issuing body a direction to cancel an ASIC based on a criminal history certificate received from the AFP, the issuing body may apply to the Secretary, in writing, for an exemption from giving effect to the direction.

         (2)   If the Secretary needs more information to deal with an application, the Secretary may ask the issuing body, in writing, to provide the information.

         (3)   Within 30 days after receiving an application (or, if the Secretary has asked for information under subregulation (2), 30 days after receiving the information), the Secretary must give the issuing body a notice that states:

                (a)    whether the issuing body is exempted from giving effect to the direction; and

               (b)    if the Secretary refuses to exempt the issuing body from giving effect to the direction, the reasons for the decision.

Note   Section 27A of the Administrative Appeals Tribunal Act 1975 requires a person who makes a reviewable decision to give a person whose interests are affected by the decision notice of the making of the decision and of the person’s right to have the decision reviewed.

         (4)   If the Secretary has not given the issuing body the notice mentioned in subregulation (3) within the period allowed by that subregulation, the Secretary is taken to have refused to exempt the issuing body from giving effect to the direction.

         (5)   Before deciding whether to exempt the issuing body from giving effect to the direction, the Secretary must consider:

                (a)    the nature of the offence, or offences, of which the holder was convicted; and

               (b)    any other matter that the Secretary knows about and considers relevant.

         (6)   The Secretary may give the issuing body an exemption from giving effect to the direction subject to a condition, and if the Secretary does so, he or she must state the condition in the notice mentioned in subregulation (3).

[10]         Paragraph 8.02 (3) (b)

omit

ASIC.

insert

ASIC; or

[11]         After paragraph 8.02 (3) (b)

insert

                (c)    to direct an issuing body to cancel an ASIC; or

               (d)    to refuse to exempt an issuing body from giving effect to a direction from the Secretary to cancel an ASIC.


Note

1.       All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See www.frli.gov.au.