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Primary content

Regulations as made
This regulation amends the Aviation Transport Security Regulations 2005 to streamlines and devolves the process for transporting persons in custody (PICs) by removing the need for the Secretary’s approval for certain arrangements. They also remove certain anomalies and will ensure that Australia complies with its international obligations for transporting PICs under Annex 17 of the International Convention on Civil Aviation (the Chicago Convention).
Administered by: Infrastructure and Regional Development
Registered 18 Apr 2017
Tabling HistoryDate
Tabled HR09-May-2017
Tabled Senate09-May-2017
Date of repeal 26 Apr 2017
Repealed by Division 1 of Part 3 of Chapter 3 of the Legislation Act 2003
Table of contents.

 

Aviation Transport Security Amendment (Persons in Custody) Regulations 2017

I, General the Honourable Sir Peter Cosgrove AK MC (Ret’d), Governor‑General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following regulations.

Dated 13 April 2017

Peter Cosgrove

Governor‑General

By His Excellency’s Command

Darren Chester

Minister for Infrastructure and Transport

 

 

 

 

  

  


Contents

1............ Name............................................................................................................................. 1

2............ Commencement............................................................................................................. 1

3............ Authority....................................................................................................................... 1

4............ Schedules...................................................................................................................... 1

Schedule 1—Amendments                                                                                                                          2

Aviation Transport Security Regulations 2005                                                                               2

 


1  Name

                   This instrument is the Aviation Transport Security Amendment (Persons in Custody) Regulations 2017.

2  Commencement

             (1)  Each provision of this instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  The whole of this instrument

The day after the end of the period of 7 days beginning on the day this instrument is registered.

25 April 2017

Note:          This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.

             (2)  Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.

3  Authority

                   This instrument is made under the Aviation Transport Security Act 2004.

4  Schedules

                   Each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

Schedule 1Amendments

  

Aviation Transport Security Regulations 2005

1  Regulation 1.03

Insert:

immigration detention has the same meaning as in the Migration Act.

2  Paragraph 2.35(h)

Repeal the paragraph.

3  Regulation 2.39

Before “The TSP”, insert “(1)”.

4  At the end of regulation 2.39

Add:

             ; and (g)  measures and procedures for handling suspect behaviour by a passenger, including:

                              (i)  details of restraining devices that will be carried on board each aircraft and their location; and

                             (ii)  details of the crew members who are authorised to use restraints; and

                            (iii)  the procedures for reporting suspect behaviour by passengers.

             (2)  If an aircraft operator carries a person in custody as a passenger on an aircraft, the TSP must include measures and procedures to ensure on board security when carrying the person in custody.

5  Division 4.5

Repeal the Division, substitute:

Division 4.5Movement of persons in custody

Subdivision 4.5.1Movement of persons in custody—preliminary

4.73  Definitions

                   In this Division:

approved form means a form approved under regulation 4.90.

custodial agency, for a person in custody, means:

                     (a)  for a person in custody to whom Subdivision 4.5.2 applies—the Immigration Department; or

                     (b)  for a person in custody to whom Subdivision 4.5.3 applies—the enforcement agency for the person within the meaning of regulation 4.83(1).

dangerous:

                     (a)  for a person in custody to whom Subdivision 4.5.2 applies—has the meaning given by subregulation 4.75(1); and

                     (b)  for a person in custody to whom Subdivision 4.5.3 applies—has the meaning given by subregulation 4.83(2).

non‑standard movement, in relation to a flight of a prescribed aircraft, has the meaning given by regulation 4.88.

supervised departure, in relation to a person, means the unescorted departure from Australia of the person, where:

                     (a)  the person is not an Australian citizen; and

                     (b)  the person is cooperating in the departure process; and

                     (c)  until he or she departs from Australia, the person is:

                              (i)  in immigration detention; and

                             (ii)  under the supervision of an officer under the Migration Act.

Subdivision 4.5.2Movement of persons in custody under the Migration Act

4.74  Application of this Subdivision

             (1)  This Subdivision applies in relation to the travel, on a prescribed aircraft, of persons in custody under the Migration Act.

             (2)  This Subdivision does not apply to or in relation to:

                     (a)  a person who is in custody because that person has been taken into custody (otherwise than under the Migration Act) at a security controlled airport, or on a prescribed aircraft; or

                     (b)  the departure of a person who has been refused entry at an airport and leaves Australia within 72 hours; or

                     (c)  the departure from Australia of a person who holds a bridging visa (within the meaning of the Migration Act), and whose departure is monitored by the Immigration Department.

4.75  Meaning of dangerous for this Subdivision

             (1)  In this Subdivision, a person in custody is dangerous if:

                     (a)  the Immigration Department has assessed him or her as being:

                              (i)  likely to attempt to commit an unlawful interference with aviation; or

                             (ii)  likely to attempt to escape; or

                     (b)  the Immigration Department is aware that:

                              (i)  the person has been charged with an offence involving violence against a person or serious damage to property; and

                             (ii)  the charge is still to be resolved; or

                     (c)  the Immigration Department is aware that the person has been convicted of an offence involving violence against a person or serious damage to property.

             (2)  For the purposes of subparagraph (1)(b)(ii), a charge for an offence is resolved in relation to a person at the later of the following times:

                     (a)  when:

                              (i)  the charge is withdrawn; or

                             (ii)  the charge is dismissed; or

                            (iii)  the person is not committed on the charge following a committal hearing; or

                            (iv)  the person is acquitted of the offence; or

                             (v)  the person is sentenced for the offence; or

                            (vi)  the person is dealt with by being the subject of an order made as a consequence of a finding of guilt; or

                           (vii)  the charge is otherwise finally dealt with;

                     (b)  if an appeal relating to the charge is not lodged within the period for lodging such an appeal—when that period ends;

                     (c)  if an appeal relating to the charge is lodged—when the appeal lapses or is finally determined.

Despite paragraph (b), if an appeal relating to the charge is lodged after that period ends, the charge ceases to be resolved until that appeal lapses or is finally determined.

             (3)  Nothing in this regulation affects the operation of Part VIIC of the Crimes Act 1914.

Note:          Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.

4.76  Provision of information to operator of prescribed air service—supervised departures

             (1)  This regulation applies in relation to a flight of a prescribed aircraft if:

                     (a)  the aircraft is being used for a prescribed air service; and

                     (b)  a person in custody is to be a passenger on the flight; and

                     (c)  the person is undertaking the flight for the purposes of a supervised departure.

             (2)  The Immigration Department must give the operator of the prescribed air service a written notice relating to the person.

             (3)  A notice under this regulation must:

                     (a)  be in the approved form; and

                     (b)  include the information required by the form; and

                     (c)  be given not later than:

                              (i)  6 hours before the intended start of the flight; or

                             (ii)  if a later time is agreed to by the operator—that later time.

4.77  Provision of information to operator of prescribed air service—escorted domestic travel maintaining immigration detention

             (1)  This regulation applies in relation to a flight of a prescribed aircraft if:

                     (a)  the aircraft is being used for a prescribed air service; and

                     (b)  a person in custody is to be a passenger on the flight; and

                     (c)  the person:

                              (i)  is in immigration detention; and

                             (ii)  will be escorted on the flight; and

                            (iii)  is not dangerous; and

                     (d)  the flight is a domestic air service; and

                     (e)  the person is not undertaking the flight for the purposes of a supervised departure.

             (2)  The Immigration Department must give the operator of the prescribed air service a written notice relating to the person.

             (3)  A notice under this regulation must:

                     (a)  be in the approved form; and

                     (b)  include the information required by the form; and

                     (c)  be given not later than:

                              (i)  24 hours before the intended start of the flight; or

                             (ii)  if a later time is agreed to by the operator—that later time.

4.78  Provision of information to operator of prescribed air service—escorted international travel by non‑dangerous persons

             (1)  This regulation applies in relation to a flight of a prescribed aircraft if:

                     (a)  the aircraft is being used for a prescribed air service; and

                     (b)  a person in custody is to be a passenger on the flight; and

                     (c)  the person:

                              (i)  will be escorted on the flight; and

                             (ii)  is not dangerous; and

                     (d)  the flight is an international air service.

             (2)  The Immigration Department must give the operator of the prescribed air service a written notice relating to the person.

             (3)  A notice under this regulation must:

                     (a)  be in the approved form; and

                     (b)  include the information required by the form; and

                     (c)  be given not later than:

                              (i)  48 hours before the intended start of the flight; or

                             (ii)  if a later time is agreed to by the operator—that later time.

4.79  Provision of information to operator of prescribed air service and operator of security controlled airport—escorted travel by dangerous persons

             (1)  This regulation applies in relation to a flight of a prescribed aircraft if:

                     (a)  the aircraft is being used for a prescribed air service; and

                     (b)  a person in custody is to be a passenger on the flight; and

                     (c)  the person:

                              (i)  will be escorted on the flight; and

                             (ii)  is dangerous.

             (2)  The Immigration Department must give the operator of the prescribed air service a written notice relating to the person.

             (3)  A notice under subregulation (2) must:

                     (a)  be in the approved form; and

                     (b)  include the information required by the form; and

                     (c)  be given not later than:

                              (i)  48 hours before the intended start of the flight; or

                             (ii)  if a later time is agreed to by the operator—that later time.

             (4)  If the operator of the prescribed air service endorses the operator’s consent on the notice, the Immigration Department must:

                     (a)  ensure that a copy of the endorsed notice is sent to the operator of each security controlled airport through which the person will travel; and

                     (b)  do so not later than:

                              (i)  12 hours before the person’s intended arrival at the airport; or

                             (ii)  if a later time is agreed to by the operator of the security controlled airport—that later time.

4.80  Escort arrangements for flights involving movements of non‑dangerous persons

             (1)  This regulation applies in relation to a flight of a prescribed aircraft if:

                     (a)  the aircraft is being used for a prescribed air service; and

                     (b)  a person in custody is to be a passenger on the flight; and

                     (c)  the person is not dangerous.

             (2)  Such a person, or 2 or more such persons, must be escorted, unless the Immigration Department and the operator of the prescribed air service agree that the person or persons be unescorted.

             (3)  If the person or persons are escorted, there is no set number of escorts required.

4.81  Provision of information to prescribed aircraft’s pilot in command

                   The operator of a prescribed air service on which a person in custody is to be carried must notify the prescribed aircraft’s pilot in command of the following before the aircraft’s departure:

                     (a)  that a person in custody is to be carried on the aircraft;

                     (b)  the conditions under which the person is to be carried.

Subdivision 4.5.3Movement of persons in custody other than under the Migration Act

4.82  Application of this Subdivision

             (1)  This Subdivision applies in relation to the travel, on a prescribed aircraft, of persons in custody under a law other than the Migration Act.

             (2)  This Subdivision does not apply to or in relation to a person who is in custody because that person has been taken into custody at a security controlled airport, or on a prescribed aircraft.

4.83  Definitions for this Subdivision

             (1)  In this Subdivision:

enforcement agency means:

                     (a)  in the case of a person being moved from one custodial facility to another—the agency responsible for the custodial facility from which the person is being moved; or

                     (b)  in the case of a person in custody under the Fisheries Management Act 1991:

                              (i)  if the person who has the person in custody is an officer of Customs (within the meaning of the Customs Act 1901)—the Immigration Department; or

                             (ii)  if the person who has the person in custody is a member or special member of the Australian Federal Police—the Australian Federal Police; or

                            (iii)  if the person who has the person in custody is a member of the police force or police service of a State or Territory—the police force; or

                            (iv)  if the person who has the person in custody is a member of Australian Defence Force—the Australian Defence Force; or

                             (v)  in any other case—the Australian Fisheries Management Authority; or

                     (c)  in the case of a person (other than a person described in paragraph (a)) in custody under an Act other than the Fisheries Management Act 1991—the Australian Federal Police or the police force or police service of a State or Territory; or

                     (d)  in the case of a person (other than a person described in paragraph (a)) in custody under a law of a State or Territory—the police force or police service of the State or Territory.

             (2)  In this Subdivision, a person in custody is dangerous if:

                     (a)  the enforcement agency that has the person in custody (the relevant enforcement agency) has assessed him or her as being:

                              (i)  likely to attempt to commit an unlawful interference with aviation; or

                             (ii)  likely to attempt to escape; or

                     (b)  the person has been charged with an offence that:

                              (i)  is an offence against a person or involving actual or threatened damage to property; and

                             (ii)  is punishable by imprisonment for 5 years or more; and

                            (iii)  the charge is still to be resolved; or

                     (c)  the person has been convicted of an offence that:

                              (i)  is an offence against a person or involving actual or threatened damage to property; and

                             (ii)  the offence is punishable by imprisonment for 5 years or more.

             (3)  For the purposes of subparagraph (2)(b)(iii), a charge for an offence is resolved in relation to a person at the later of the following times:

                     (a)  when:

                              (i)  the charge is withdrawn; or

                             (ii)  the charge is dismissed; or

                            (iii)  the person is not committed on the charge following a committal hearing; or

                            (iv)  the person is acquitted of the offence; or

                             (v)  the person is sentenced for the offence; or

                            (vi)  the person is dealt with by being the subject of an order made as a consequence of a finding of guilt; or

                           (vii)  the charge is otherwise finally dealt with;

                     (b)  if an appeal relating to the charge is not lodged within the period for lodging such an appeal—when that period ends;

                     (c)  if an appeal relating to the charge is lodged—when the appeal lapses or is finally determined.

Despite paragraph (b), if an appeal relating to the charge is lodged after that period ends, the charge ceases to be resolved until that appeal lapses or is finally determined.

             (4)  Nothing in this regulation affects the operation of Part VIIC of the Crimes Act 1914.

Note:          Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.

4.84  Provision of information to operator of prescribed air service and operator of security controlled airport—escorted travel

             (1)  This regulation applies in relation to a flight of a prescribed aircraft if:

                     (a)  the aircraft is being used for a prescribed air service; and

                     (b)  a person in the custody of an enforcement agency is to be a passenger on the flight; and

                     (c)  the person will be escorted on the flight.

             (2)  The enforcement agency must give the operator of the prescribed air service a written notice relating to the person.

             (3)  A notice under subregulation (2) must:

                     (a)  be in the approved form; and

                     (b)  include the information required by the form; and

                     (c)  be given not later than:

                              (i)  48 hours before the intended start of the flight; or

                             (ii)  if a later time is agreed to by the operator—that later time.

             (4)  If:

                     (a)  the person in custody is dangerous; and

                     (b)  the operator of the prescribed air service endorses the operator’s consent on the notice;

the enforcement agency must:

                     (c)  ensure that a copy of the endorsed notice is sent to the operator of each security controlled airport through which the person will travel; and

                     (d)  do so not later than:

                              (i)  12 hours before the person’s arrival at the airport; or

                             (ii)  if a later time is agreed to by the operator of the security controlled airport—that later time.

4.85  Escort arrangements for flights involving movements of non‑dangerous persons

             (1)  This regulation applies in relation to a flight of a prescribed aircraft if:

                     (a)  the aircraft is being used for a prescribed air service; and

                     (b)  a person in custody is to be a passenger on the flight; and

                     (c)  the person is not dangerous.

             (2)  Such a person, or 2 or more such persons, must be escorted, unless the enforcement agency that has the person or persons in custody and the operator of the prescribed air service agree that the persons be unescorted.

             (3)  If the person or persons are escorted, there is no set number of escorts required.

4.86  Provision of information to prescribed aircraft’s pilot in command

                   The operator of a prescribed air service on which a person in custody is to be carried must notify the prescribed aircraft’s pilot in command of the following before the aircraft’s departure:

                     (a)  that a person in custody is to be carried on the aircraft;

                     (b)  the conditions under which the person is to be carried.

Subdivision 4.5.4Movement of persons in custody—dangerous persons

4.87  Required escort arrangements for flights involving movements of dangerous persons

             (1)  This regulation applies in relation to a flight of a prescribed aircraft if:

                     (a)  the aircraft is being used for a prescribed air service; and

                     (b)  a person in custody is to be a passenger on the flight; and

                     (c)  the person is dangerous.

             (2)  If the person in custody is travelling:

                     (a)  the person must be escorted at all times, when on the prescribed aircraft or at a security controlled airport, by at least 2 escorts; and

                     (b)  at least one of the escorts must be of the same sex as the person; and

                     (c)  the escorts:

                              (i)  must be law enforcement officers or persons of a kind agreed to between the operator of the prescribed air service and the custodial agency for the person in custody; and

                             (ii)  must not be crew members of the aircraft on which the person is travelling; and

                     (d)  the custodial agency must provide the escorts, unless the custodial agency and the operator of the prescribed air service agree that the operator will provide the escorts.

Subdivision 4.5.5Movement of persons in custody—non‑standard movements

4.88  Meaning of non‑standard movement

             (1)  A flight of a prescribed aircraft that is being used for a prescribed air service involves a non‑standard movement if:

                     (a)  more than 2 escorted persons in custody are travelling on the flight, other than in the circumstances mentioned in subregulation (2); or

                     (b)  more than one escorted person in custody who is dangerous is travelling on the flight; or

                     (c)  an individual escort is responsible for both:

                              (i)  a person in custody who is dangerous who is travelling on the flight; and

                             (ii)  one or more other persons in custody who are travelling on the flight.

             (2)  For the purposes of paragraph (1)(a), the circumstances are:

                     (a)  more than 2 escorted persons are travelling on the flight in the custody of a custodial agency; and

                     (b)  in the custodial agency’s opinion, those persons are all members of a family unit; and

                     (c)  none of the persons are dangerous; and

                     (d)  the operator of the prescribed air service and the custodial agency have agreed on escort arrangements for the persons to be carried on the aircraft; and

                     (e)  no other escorted persons are travelling on the flight.

4.89  Agreement on escort arrangements required for flights involving non‑standard movements

             (1)  This regulation applies in relation to a flight of a prescribed aircraft if:

                     (a)  the aircraft is being used for a prescribed air service; and

                     (b)  the flight involves a non‑standard movement.

             (2)  The aircraft must not be used for the flight unless:

                     (a)  the operator of the prescribed air service; and

                     (b)  the custodial agency or agencies for each person in custody travelling on the flight;

have agreed on escort arrangements for the persons in custody.

             (3)  To avoid doubt, for the purposes of subregulation (2) there is no set number of escorts required.

Subdivision 4.5.6Movement of persons in custody—miscellaneous

4.90  Approved forms

                   The Secretary may, in writing, approve a form for a notice that is required to be given under this Division.

4.91  Use of single notice for a flight carrying multiple persons in custody

                   If any one or more of regulations 4.76, 4.77, 4.78, 4.79 and 4.84 apply in relation to a flight of a prescribed aircraft in respect of 2 or more persons in custody, the custodial agency or agencies for the persons in custody may provide a single notice relating to all of the persons.

4.92  Interaction between criminal law and information obligations

                   To avoid doubt, nothing in this Division requires a custodial agency to give an operator of a prescribed air service or an airport operator any information the disclosure of which would constitute an offence under a law of the Commonwealth, a State or a Territory.

4.93  Incorrect or incomplete information

                   If a custodial agency finds out that any information that the agency has given to an operator of a prescribed air service or an airport operator is incorrect or incomplete, the agency must give the correct or missing information to the operator as soon as practicable.

6  In the appropriate position in Part 10

Insert:

Division 9Amendments made by the Aviation Transport Security Amendment (Persons in Custody) Regulations 2017

10.23  Amendments made by the Aviation Transport Security Amendment (Persons in Custody) Regulations 2017

                   The amendments made by items 2 to 4 of Schedule 1 to the Aviation Transport Security Amendment (Persons in Custody) Regulations 2017 apply in relation to the approval of a TSP, or of proposed alterations of a TSP, under section 19, 21 or 23A of the Act on or after the day the Schedule commences, whether:

                     (a)  the TSP is given to the Secretary under the Act before, on or after that day; or

                     (b)  the request under section 22 or 23A of the Act relating to the TSP is made before, on or after that day.

7  Schedule

Repeal the Schedule.