Federal Register of Legislation - Australian Government

Primary content

SLI 2007 No. 170 Regulations as made
These Regulations amend the Aviation Transport Security Regulations 2005.
Administered by: DOTARS
Exempt from sunsetting by the Legislative Instruments Regulations 2004 Sch 3 item 5
Registered 26 Jun 2007
Tabling HistoryDate
Tabled HR07-Aug-2007
Tabled Senate07-Aug-2007
Date of repeal 19 Mar 2014
Repealed by Infrastructure and Regional Development (Spent and Redundant Instruments) Repeal Regulation 2014

Aviation Transport Security Amendment Regulations 2007 (No. 2)1

Select Legislative Instrument 2007 No. 170

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 21 June 2007

P. M. JEFFERY

Governor‑General

By His Excellency’s Command

MARK VAILE


Contents

                        1     Name of Regulations                                                        2

                        2     Commencement                                                              2

                        3     Amendment of Aviation Transport Security Regulations 2005 2

Schedule 1             Amendments commencing on 1 July 2007                    3

Schedule 2             Amendments commencing on 3 September 2007        11

 

 


 

1              Name of Regulations

                These Regulations are the Aviation Transport Security Amendment Regulations 2007 (No. 2).

2              Commencement

                These Regulations commence as follows:

                 (a)     on 1 July 2007 — regulations 1 to 3 and Schedule 1;

                (b)     on 3 September 2007 — Schedule 2.

3              Amendment of Aviation Transport Security Regulations 2005

                Schedules 1 and 2 amend the Aviation Transport Security Regulations 2005.


Schedule 1        Amendments commencing on 1 July 2007

(regulation 3)

  

[1]           Regulation 3.06

substitute

3.06        Members of a defence force

         (1)   This regulation applies to a member of:

                (a)    the Australian Defence Force (ADF); and

               (b)                a visiting force, within the meaning of the Defence (Visiting Forces) Act 1963, on training, exercises or operations with the ADF.

         (2)   Despite regulation 3.03, a member of a defence force to whom this regulation applies need not display an ASIC in a secure area if the member:

                (a)    is on duty and involved:

                          (i)    in the operation of an aircraft; or

                         (ii)    in supporting the operation of an aircraft; and

               (b)    is in uniform or other role appropriate clothing; and

                (c)    displays proper identification as a member of a defence force.

[2]           Regulation 6.01

omit

In this Part:

insert

         (1)   In this Part:

adverse criminal record, in relation to a person, has the meaning given in subregulation (2).

[3]           Regulation 6.01, after definition of ASIO

insert

AusCheck scheme means the scheme prescribed for the purposes of section 8 of the AusCheck Act 2007.

[4]           Regulation 6.01, paragraph (a) of the definition of conviction

substitute

                (a)    a spent conviction (within the meaning given by subsection 85ZM (2) of that Act) if Division 3 of Part VIIC of that Act applies to the person; or

[5]           Regulation 6.01, after definition of conviction

insert

Note 1   Under the definition of conviction in subsection 85ZM (1) of the Crimes Act 1914, a person is also taken to have been convicted of an offence if the person has been convicted of the offence but no conviction has been recorded, and if a court has taken the offence into account in sentencing the person for another offence (see paragraphs 85ZM (1) (b) and (c)).

Note 2   Under Part VIIC of the Crimes Act 1914, if a person receives a free and absolute pardon for an offence against a law of the Commonwealth or a Territory because the person was wrongly convicted of the offence, the person is taken for all purposes never to have been convicted (see section 85ZR ).

Note 3   In certain circumstances, Division 3 of Part VIIC of the Crimes Act 1914 ceases to apply to a person in relation to a spent conviction if Division 4 (Convictions of further offences) applies.

Note 4   Under the Crimes Act 1914, a person need not disclose convictions that:

(a)   have been quashed (see section 85ZT); or

(b)   are spent (see section 85ZV).

Note 5   Convictions for offences under Part 2 of the Crimes (Aviation) Act 1991 or Part 5.3 of the Criminal Code do not become spent for an authority assessing whether to issue the convicted person with an ASIC (see the Crimes Act 1914, paragraph 85ZZH (k), and the Crimes Regulations 1990, regulation 8 and Schedule 4).

[6]           Regulation 6.01, after definition of issuing body

insert

operational need means a requirement for frequent access:

                (a)    to all or part of a secure area of an airport where persons are required to display an ASIC; and

               (b)    for the operation of the airport or an aircraft.

[7]           Regulation 6.01, after definition of program purposes

insert

qualified criminal record, in relation to a person, has the meaning given in subregulation (3).

[8]           Regulation 6.01, before definition of security assessment

insert

Secretary AGD means the Secretary who is responsible for administering the AusCheck scheme.

[9]           Regulation 6.01, notes 1 to 4 after definition of sentence

omit

[10]         After subregulation 6.01 (1)

insert

         (2)   A person has an adverse criminal record if the person:

                (a)    has been convicted of an aviation‑security‑relevant offence and sentenced to imprisonment; or

               (b)    in the case of a person who has been convicted twice or more of aviation‑security‑relevant offences, but no sentence of imprisonment was imposed — received 1 of those convictions within the 12 months ending on the date when the relevant background check was conducted.

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

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

               (b)    did not receive a sentence of imprisonment for any of those convictions; and

                (c)    did not receive any of those convictions within the 12 months ending on the date when the relevant background check was conducted.

[11]         Paragraph 6.02 (c)

substitute

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

               (d)    an assessment, under the AusCheck scheme, of information about any of the matters mentioned in section 5 of the AusCheck Act 2007.

[12]         After subregulation 6.04 (3)

insert

      (3A)   A flight crew licence issued to a person by a foreign country that is a party to the Convention on International Civil Aviation is a secondary identification document if it includes a photograph of the person and is presented with the person’s valid passport.

[13]         After subregulation 6.04 (5)

insert

         (6)   A driver’s licence issued to a person under the laws of another country is a tertiary identification document if it includes a photograph of the person and is presented with the person’s valid passport.

[14]         Subregulations 6.17 (1) and (2)

omit

operational requirement

insert

operational need

[15]         Paragraphs 6.23 (2) (c) and (4) (b)

omit

operational requirement

insert

operational need

[16]         Regulation 6.26A, definition of adverse criminal record

omit

[17]         Subregulation 6.26 (1)

substitute

         (1)   A person who has an operational need may apply to an issuing body for the issue of an ASIC.

[18]         Subregulation 6.26 (2)

omit

The application must be in a form approved by the Secretary and,

insert

If a background check is not to be performed under the AusCheck scheme, the application,

[19]         After regulation 6.27

insert

6.27AA   Application for background check

         (1)   An issuing body may apply to the Secretary AGD for a background check on:

                (a)    an applicant for an ASIC, if the issuing body proposes to issue an ASIC to the person; or

               (b)    a person employed by the issuing body to issue ASICs.

         (2)   An issuing body may apply to the Secretary AGD for a background check on a person employed by the issuing body to issue ASICs:

                (a)    before the person begins to issue ASICs; and

               (b)    every 2 years afterwards.

[20]         Before subregulation 6.27A (1)

insert

      (1A)   This regulation applies if a background check is not performed under the AusCheck scheme.

[21]         Subregulation 6.28 (2A)

substitute

      (2A)   For paragraph (1) (d), if a background check involving an assessment of a person’s criminal history is performed under the AusCheck scheme, the criterion about the notice is satisfied if the issuing body receives a notice from the Secretary AGD that the person does not have an adverse criminal record.

[22]         Subregulation 6.29 (1), including the note

substitute

         (1)   If a person is not eligible to be issued an ASIC only because he or she:

                (a)    has an adverse criminal record; or

               (b)    is disqualified under regulation 6.48 from holding an ASIC;

an issuing body may apply to the Secretary, in writing, for approval to issue an ASIC to the person.

[23]         Subregulation 6.29 (5)

omit

of paragraph 6.28 (1) (d),

insert

the person’s adverse criminal record prevents him or her being issued with an ASIC,

[24]         Before subregulation 6.31 (1)

insert

      (1A)   Subregulation (1) applies if a background check is not performed under the AusCheck scheme.

[25]         After subregulation 6.35 (3)

insert

      (3A)   The replacement permanent ASIC number must be unique among ASICs issued by the issuing body.

[26]         Subregulation 6.42A (3), definition of qualified criminal record

omit

[27]         Subregulation 6.42D (3)

omit

[28]         Paragraph 6.43 (2) (f)

substitute

                (e)    the holder no longer has an operational need to enter a secure area.

[29]         Subregulation 6.44 (1)

omit

(c), (d), or (e),

insert

(c) or (d),

[30]         Paragraph 6.45 (1) (d)

substitute

               (d)    the holder no longer has an operational need to enter the relevant secure area.

Schedule 2        Amendments commencing on 3 September 2007

(regulation 3) 

[1]           Regulation 6.01, before definition of conviction

insert

background check, for an individual, means an assessment, under the AusCheck scheme, of information about any of the matters mentioned in section 5 of the AusCheck Act 2007.

[2]           Regulation 6.02

omit

[3]           Regulation 6.26 

substitute

6.26        ASICs — application for issue

                A person who has an operational need may apply to an issuing body for the issue of an ASIC.

[4]           Regulation 6.27A

omit

[5]           Regulation 6.28

substitute

6.27B     Transitional arrangement  — assessment of criminal history

                Despite the repeal of regulation 6.27A, that regulation continues to apply if, before 3 September 2007:

                (a)    the AFP received a request from an issuing body for a criminal records check to be conducted in relation to a person; and

               (b)    the Secretary has not completed an assessment to decide if the person has an adverse criminal record.

6.28        ASICs — issue

         (1)   Subject to subregulations (3) and (4) and regulations 6.29 and 6.31, an issuing body may issue an ASIC to a person only if:

                (a)    the person has an operational need for an ASIC; and

               (b)    the person has confirmed his or her identity by showing the issuing body:

                          (i)    a primary identification document; and

                         (ii)    either:

                                   (A)     a secondary identification document; or

                                   (B)     2 tertiary identification documents; and

                (c)    either:

                          (i)    the person has shown the issuing body his or her Australian birth certificate, Australian passport or Australian naturalisation certificate; or

                         (ii)    the issuing body is satisfied that the person is not an unlawful non‑citizen; and

               (d)    the issuing body has received a notice from the Secretary AGD stating that:

                          (i)    the Secretary AGD has conducted an assessment under the AusCheck scheme to decide if the person has an adverse criminal record or a qualified criminal record; and

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

                (e)    the issuing body has been notified in writing that a security assessment of the person has been made, and:

                          (i)    the assessment was not adverse; or

                         (ii)    if the assessment was qualified — the issuing body has received a notice from the Secretary that an ASIC may be issued because the person is not a threat to aviation safety; and

                (f)    the person is not disqualified under regulation 6.48 from holding an ASIC.

Penalty:   50 penalty units.

         (2)   An offence against subregulation (1) is an offence of strict liability.

         (3)   The issuing body may issue an ASIC to a person who is under 18 if the person meets the criteria in paragraphs (1) (a), (b), (c) and (f).

         (4)   The issuing body may issue an ASIC to a person who holds a security designated authorisation that is less than 2 years old if the person meets the criteria in paragraphs (1) (d), (e) and (f).

Note   The ASIC remains valid for 2 years after completion of the relevant background check — see subregulation 6.32 (2).

         (5)   An issuing body may issue an ASIC on a condition, but must notify the holder in writing what the condition is.

         (6)   In particular, a condition may be that a background check of the holder be conducted more often than required by these Regulations.

         (7)   If an issuing body is told by the Secretary AGD that a person has a qualified criminal record, any ASIC that is issued to the person is to be on the condition that the person must have a further background check conducted within 12 months after the first background check.

[6]           Regulation 6.31

substitute

6.31        Persons the subject of qualified security assessments

         (1)   This regulation applies if a security assessment of a person is a qualified security assessment.

         (2)   If the Secretary is satisfied that the holding of an ASIC by the person would not constitute a threat to aviation security, the Secretary must give the issuing body a written notice stating that an ASIC may be issued because the person is not a threat to aviation security.

         (3)   If the Secretary is satisfied that the holding of an ASIC by the person would constitute a threat to aviation security the Secretary must give the issuing body a written direction not to issue the ASIC to the person.

         (4)   The Secretary must give the person a notice stating that the Secretary has given the issuing body a notice under subregulation (2) or a direction under subregulation (3).

         (5)   An issuing body must not issue an ASIC to a person in contravention of a direction under subregulation (3).

Penalty:   20 penalty units.

         (6)   In this regulation:

qualified security assessment has the same meaning as in Part IV of the Australian Security Intelligence Organisation Act 1979.

Note   For a person’s notification and review rights in relation to a security assessment — see the Australian Security Intelligence Organisation Act 1979, section 38.

6.31A      Provision of information to Secretary AGD

                If the Secretary makes a decision under regulation 6.29 or 6.31, the Secretary must tell the Secretary AGD about the decision.

[7]           Regulation 6.42A, note

omit

[8]           Regulation 6.54, note

omit

under this Part


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.