Aviation Transport Security Amendment Regulations 2010 (No. )

Schedule 1 Amendments

(regulation 3)

[1] Regulation 1.03, after definition of photograph

insert

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

[2] Paragraph 1.05 (1) (b)

substitute

(b) not expired, suspended or cancelled; and

[3] Subregulation 3.07 (1), after the definition of cargo facilitator

insert

medical transport facilitator means a person who is an employee, contractor or volunteer of a State or Territory ambulance service and is at a security controlled airport for the purpose of assisting with the movement of:

(a) a sick or injured passenger to or from an aircraft; or

(b) medical cargo.

[4] After subregulation 3.07 (2)

insert

(2A) Despite regulation 3.03, a medical transport facilitator is not required to display an ASIC in the secure area if he or she, while in the secure area, is supervised by an ASIC holder who is authorised by the operator of the aircraft on which the medical cargo or sick or injured passenger is or will be carried.

(2B) For subregulation (2A), a medical transport facilitator is supervised if the ASIC holder:

(a) escorts or accompanies the medical transport facilitator at all times when the medical transport facilitator is in the secure area; or

(b) watches the medical transport facilitator at all times when the medical transport facilitator is in the secure area.

[5] Subregulation 3.07 (3)

omit

ensure that, as far as practicable, a cargo

insert

ensure that a cargo

[6] After subregulation 3.07 (3)

insert

(3A) An aircraft operator must ensure that a medical transport facilitator does not enter, or stay in, a secure area of an airport unless the medical transport facilitator:

(a) holds and properly displays a valid ASIC; or

(b) is supervised by a person mentioned in subregulation (2A).

Penalty: 10 penalty units.

[7] Subregulation 3.07 (4)

after

subregulation (3)

insert

or (3A)

[8] Regulation 3.13, definition of exempt person, paragraph (c)

substitute

(c) an employee, contractor or volunteer of an ambulance, rescue or fire service or a state or territory emergency service who is responding to an emergency in Australia or overseas; or

(ca) a person acting under the direction of a person mentioned in paragraph (c) during an emergency; or

[9] Paragraph 3.18 (1) (b)

substitute

(b) an employee, contractor or volunteer of an ambulance, rescue or fire service or a state or territory emergency service who is responding to an emergency in Australia or overseas;

[10] Subregulation 3.18 (2)

omit

(1) (a) or (b).

insert

(1) (a), (b) or (c).

[11] Paragraph 6.23 (2) (j)

substitute

(j) if the ASIC is cancelled and the cancellation is set aside by the Secretary or set aside (however described) by the Administrative Appeals Tribunal:

(i) the date the cancellation is set aside; and

(ii) if the holder returns the ASIC to the issuing body after the cancellation — the date the body returns the ASIC to the holder;

(k) if the ASIC is suspended:

(i) the date the issuing body tells the holder about the suspension; and

(ii) the date the holder returns the ASIC to the issuing body; and

(iii) if the suspension period ends under subregulation 6.42C (3) — the date the body returns the ASIC to the holder;

(l) if applicable, the date on which the ASIC was reported lost, stolen or destroyed;

(m) if applicable, the date on which the ASIC is returned to the to the issuing body.

[12] Division 6.5, heading

substitute

Division 6.5 ASIC and VICs — issue, expiry, suspension and cancellation

[13] Regulation 6.26A

substitute

6.26A Definitions

In this Division:

AusCheck facility means the facility made available by the Secretary AGD in accordance with regulation 13 of the AusCheck Regulations 2007.

ICAO 3‑letter code, for an airport, means the second, third and fourth letters of the ICAO 4‑letter code for the airport.

[14] Paragraph 6.27AA (1) (b)

omit

ASICs.

insert

ASICs; or

[15] After paragraph 6.27AA (1) (b)

insert

[16] After subregulation 6.27AA (2)

insert

(3) The Secretary may apply to the Secretary AGD for a background check on the holder of an ASIC if the Secretary considers on reasonable grounds that the holder:

(a) has been convicted of an aviation-security-relevant offence; or

(b) constitutes a threat to aviation security.

(4) In considering the matter mentioned in paragraph (3) (a) or (b), the Secretary must take into account:

(a) any information given to the Secretary by the holder of the ASIC or the issuing body of the ASIC; and

(b) any information given to the Secretary by the Secretary AGD or a law enforcement agency (however described) about the holder; and

[17] Subregulation 6.28 (1)

omit

subregulations (3) and (4)

insert

subregulations (3), (4), (4A), (4D) and (4H)

[18] Subregulation 6.28 (4), note

omit

[19] After subregulation 6.28 (4)

insert

(4A) Subject to subregulation (4G), an issuing body may issue an ASIC to a person if:

(a) the person had his or her ASIC cancelled under paragraph 6.43 (2) (e) or subregulation 6.43 (4A) or 6.47 (2); and

(b) the person had returned the cancelled ASIC to the issuing body that issued the ASIC or, if the cancelled ASIC was lost, stolen or destroyed, has complied with regulation 6.46; and

(i) the person gives the issuing body a statutory declaration that states:

(A) the reason why his or her ASIC was cancelled; and

(B) that, since his or her background checks were completed, he or she has not been convicted of an aviation-security-relevant offence; and

(ii) the issuing body lodges a request for the issue of an ASIC using the facility made available by the Secretary AGD in accordance with the AusCheck facility.

(4B) An issuing body commits an offence if the issuing body issues an ASIC in contravention of subregulation (4A).

Penalty: 50 penalty units.

(4C) An offence against subregulation (4B) is an offence of strict liability.

(4D) Subject to subregulation (4G), an issuing body may issue an ASIC to a person if:

(a) the person held an ASIC that:

(i) has expired; and

(ii) had an expiry date less than the maximum period permitted for the person by regulation 6.32; and

(b) the person has complied with regulation 6.45 or 6.46; and

(i) the person gives the issuing body a statutory declaration that states:

(A) that, since his or her background checks were completed, he or she has not been convicted of an aviation-security-relevant offence; and

(B) any relevant circumstances of the person that have changed since the expired ASIC was issued; and

(ii) the issuing body lodges a request for the issue of an ASIC using the Auscheck facility.

(4E) An issuing body commits an offence if the issuing body issues an ASIC in contravention of subregulation (4D).

Penalty: 50 penalty units.

(4F) An offence against subregulation (4E) is an offence of strict liability.

(4G) Before an ASIC is issued under subregulation (4A) or (4D), the issuing body must ensure that:

(a) the person meets the criteria in paragraphs (1) (a), (b) and (c); and

(b) if the cancelled or expired ASIC was issued subject to a condition under subregulation 6.29 (6) or regulation 6.43D — the ASIC to be issued is subject to the same condition.

Note See regulation 6.32 for when the ASIC must expire.

(4H) The issuing body may issue an ASIC to a person who had his or her ASIC cancelled under paragraph 6.43 (2) (da).

Note See regulation 6.32 for when the ASIC must expire.

[20] Subregulation 6.28 (6), at the foot

insert

Note See regulation 6.32 for when the ASIC must expire.

[21] Subregulation 6.28 (7)

omit

[22] Subregulation 6.29 (1)

after

an issuing body

insert

or the person

[23] After subregulation 6.29 (1)

insert

(1A) An application under subregulation (1) must be made:

(a) for an issuing body — before the end of 28 days after the issuing body is advised of the outcome of the applicant’s background check under regulation 9 of the AusCheck Regulations 2007; or

(b) for the person — before the end of 28 days after the person:

(i) is told under subregulation 8 (6) of the AusCheck Regulations 2007 that the advice of the outcome of his or her background check would include unfavourable criminal history advice; or

(ii) is disqualified under regulation 6.48 from holding an ASIC.

(1B) The Secretary may, on application in writing by an issuing body or the person, extend the time for making the application.

[24] Subregulation 6.29 (2)

after

issuing body

insert

or the person

[25] Paragraphs 6.29 (3) (a) and (b), excluding the note

substitute

(a) decide whether to approve, or refuse to approve, the issuing of the ASIC; and

(b) if the Secretary decides to approve the issuing of the ASIC — tell the following persons, in writing, about the decision:

(i) the person who applied for the ASIC;

(ii) the issuing body;

(iii) the Secretary AGD; and

(i) tell the person who applied for the ASIC, in writing, about the decision and the reasons for it; and

(ii) if the application mentioned in subregulation (1) was made by an issuing body — tell the issuing body, in writing, about the decision.

[26] Subregulation 6.29 (6)

after

issuing body

insert

and the person

[27] After regulation 6.29

insert

6.29A AusCheck facility to be used when issuing an ASIC

An issuing body issuing an ASIC under regulation 6.28 or 6.29 must use the AusCheck facility.

Penalty: 10 penalty units.

[28] Subregulation 6.31 (1), at the foot

insert

Note For a person’s notification and review rights in relation to a qualified security assessment, see section 38 and Division 4 of Part IV of the Australian Security Intelligence Organisation Act 1979.

[29] Subregulation 6.31 (6), including the note

omit

[30] Subregulation 6.32 (2)

substitute

(2) Subject to subregulations (3) and (4), the expiry must not be later than 2 years after the last day of the month in which the background check, undertaken when the person applied for the ASIC, was completed.

Note For the meaning of background check, see regulation 6.01.

[31] Subregulation 6.32 (4)

substitute

(4) If an ASIC is issued to a person who has a qualified criminal record, the expiry must not be later than 12 months after the last day of the month in which the background check, undertaken when the person applied for the ASIC, was completed.

Note For the meaning of background check, see regulation 6.01.

[32] After subregulation 6.32 (4)

insert

(5) If an ASIC is cancelled under paragraph 6.43 (2) (ba) or (d) and the cancellation is set aside (however described) by the Secretary or the Administrative Appeals Tribunal, the ASIC expires on the earlier of:

(a) the date it would have expired if it had not been cancelled; or

(b) if a condition imposed under regulation 6.43D sets an earlier expiry date — that date.

[33] Subregulation 6.35 (1)

omit

a temporary ASIC has been issued to him or her and

[34] Subregulation 6.35 (4)

relocate as subregulation (2A)

[35] Subregulation 6.38 (6)

substitute

(6) An issuing body or agent must not knowingly issue a VIC to a person who:

(a) has been refused an ASIC; or

(b) is the holder of an ASIC that has been suspended under regulation 6.42A; or

Penalty: 100 penalty units.

[36] Regulation 6.41

substitute

(1) If the holder of an ASIC is convicted and sentenced for an aviation-security-relevant offence, the holder must notify the issuing body or the Secretary AGD in writing of the following matters within 7 days:

(a) his or her name, date of birth and residential address;

(b) the number of his or her ASIC or ASICs;

(d) the court in which he or she was convicted;

(e) whether he or she gives consent for:

(i) his or her identity to be confirmed; and

(ii) a new background check to be undertaken; and

(ii) the outcome of the background check to be provided to the issuing body, if the outcome will adversely affect his or her ability to continue holding the ASIC.

Penalty: 50 penalty units.

Note For the meaning of aviation-security-relevant offence and background check, see regulation 6.01.

(2) The issuing body or the Secretary AGD may, if not satisfied that all of the information mentioned in subregulation (1) has been provided, request that the holder provide that information within 14 days.

(3) For paragraph (1) (e), consent is given if the holder gives consent and information requested to confirm his or her identity to:

(a) if the holder notified the issuing body under subregulation (1) — the issuing body; or

(b) if the holder notified the Secretary AGD under subregulation (1) — the Secretary AGD.

(4) The Secretary AGD must tell the issuing body if the holder:

(a) notifies the Secretary AGD under subregulation (1); and

(b) does not:

(i) give his or her consent under paragraph (1) (e); or

(ii) comply with:

(A) all of the requirements of subregulation (1); and

(B) any request under subregulation (2) within 14 days after the request.

[37] After regulation 6.41

insert

6.41A Obligation on issuing body notified under regulation 6.41

If an issuing body is notified under regulation 6.41 by the holder of an ASIC, the issuing body must apply to the Secretary AGD for a background check on the holder not later than 2 working days after the holder:

(a) notifies his or her consent under paragraph 6.41 (1) (e); and

(b) provides any information requested under subregulation 6.41 (2).

Penalty: 100 penalty units.

[38] Subdivision 6.5.4, heading

substitute

Subdivision 6.5.4 Suspension, cancellation and other matters concerning ASICs and VICs

[39] After regulation 6.42, in Subdivision 6.5.4

insert

6.42A Suspension of ASICs — Secretary’s direction

(1) The Secretary may direct an issuing body, in writing, to suspend an ASIC if the holder of the ASIC:

(a) is convicted of an aviation-security-relevant offence; and

(b) has not yet been sentenced for the offence; and

(2) In deciding whether the holder constitutes a threat to aviation security, the Secretary must consider:

(a) the type of offence for which the holder was convicted and the circumstances in which the offence was committed; and

(b) the effect the suspension may have on the holder’s employment; and

(d) whether the holder is employed in a landside security zone or airside area; and

(e) anything else relevant that the Secretary knows about.

(3) If the Secretary makes a direction under subregulation (1), the Secretary must tell the Secretary AGD, in writing, about the direction.

6.42B Suspension of ASIC by issuing body

(1) An issuing body must immediately suspend an ASIC issued by the body if directed to do so by the Secretary.

Penalty: 100 penalty units.

(2) As soon as practicable after the issuing body suspends the ASIC, the body must tell the holder of the ASIC, in writing, that the ASIC has been suspended and the reasons for the suspension.

Penalty: 100 penalty units.

(3) The suspension takes effect when the holder is told about the suspension.

(4) The holder of the ASIC must return the ASIC to the issuing body for the ASIC not later than 7 days after the holder is told in writing that the ASIC has been suspended.

Penalty: 10 penalty units.

(5) An offence against subregulation (4) is an offence of strict liability.

6.42C Period of suspension of ASIC

(1) This regulation applies if:

(a) an ASIC is suspended under regulation 6.42B; and

(b) the holder is sentenced for the offence; and

(2) An ASIC is suspended until it is cancelled under regulation 6.43 if:

(a) the holder has an adverse criminal record; or

(b) the holder has a qualified criminal record and his or her ASIC is to expire later than 1 year after the last day of the month in which the background check, undertaken when the holder applied for his or her ASIC, was completed.

(3) If subregulation (2) does not apply to the ASIC holder, the ASIC is suspended until the day after the issuing body is informed of the outcome of the holder’s background check.

6.42D Suspension of temporary ASIC

(1) This regulation applies if a person holds:

(a) an ASIC that is suspended under regulation 6.42B; and

(b) a temporary ASIC.

(2) The temporary ASIC is suspended:

(a) when the ASIC is suspended under regulation 6.42B; and

(b) for the period the ASIC is suspended.

6.42E Report to Secretary of suspension of ASIC

(1) If an issuing body suspends an ASIC, the body must, not later than 7 days after the ASIC is suspended, tell the Secretary, in writing:

(a) about the suspension; and

(b) the name, date of birth and residential address of the holder of the ASIC; and

(2) The Secretary may tell the holder’s employer that the ASIC has been suspended if the Secretary considers on reasonable grounds that doing so may help to prevent unlawful interference with aviation.

[40] Paragraph 6.43 (2) (aa)

omit

[41] After paragraph 6.43 (2) (b)

insert

(ba) the Secretary or the Secretary AGD has notified the issuing body in writing that the holder is the subject of a qualified security assessment; or

[42] Paragraph 6.43 (2) (d)

substitute

(d) the issuing body has received a notice from the Secretary AGD that the holder has an adverse criminal record; or

(da) the issuing body has received a notice from the Secretary AGD that the holder has a qualified criminal record and the holder’s ASIC is to expire later than 1 year after the last day of the month in which the background check, undertaken when the holder applied for his or her ASIC, was completed; or

(db) the holder does not consent to a background check or does not comply with subregulation 6.41 (1) and, if requested, subregulation 6.41 (2); or

[43] After subregulation 6.43 (3)

insert

(3A) An issuing body commits an offence if the issuing body is required to cancel an ASIC under subregulation (2) or (3) and fails to do so.

Penalty: 100 penalty units.

(3B) An issuing body must cancel a VIC issued by the body if:

(a) the holder of the VIC also holds an ASIC; and

(b) the Secretary has directed the issuing body to suspend the ASIC under regulation 6.42A.

(3C) An issuing body commits an offence if the issuing body is required to cancel a VIC under subregulation (3B) and fails to do so.

Penalty: 100 penalty units.

[44] After subregulation 6.43 (4)

insert

(4A) An issuing body may cancel an ASIC issued by the body if:

(a) the ASIC included a condition that it would be cancelled if the holder changed employer, contractor for services or volunteer organisation; and

(b) the holder changed employer, contractor for services or volunteer organisation.

[45] Subregulation 6.43 (6), including the note

substitute

(6) As soon as practicable after an issuing body cancels an ASIC or VIC under subregulation (2), (3), (3B), (4) or (4A), the issuing body must:

(a) tell the holder, in writing, that the card has been cancelled and the reasons for the cancellation; and

(b) if the card is an ASIC — tell the Secretary AGD about the cancellation, using the AusCheck facility.

Penalty: 10 penalty units.

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.

[46] Regulation 6.43A

substitute

6.43A Reinstatement of cancelled ASIC — application

(1) This regulation applies if an ASIC is cancelled by an issuing body in accordance with paragraph 6.43 (2) (ba) or (d).

(2) The former holder of the ASIC or the issuing body may apply to the Secretary, in writing, for the cancellation to be set aside.

(3) The application must be made not later than 28 days after the former holder of the ASIC is told about the cancellation.

(4) The Secretary may, on application in writing by the former holder of the ASIC or the issuing body, extend the time for making the application.

(5) If the Secretary needs more information to deal with an application, the Secretary may ask the former holder of the ASIC or the issuing body, in writing, for the information.

6.43B Reinstatement of ASIC cancelled for qualified security assessment — Secretary’s decision

(1) This regulation applies if:

(a) an ASIC is cancelled in accordance with paragraph 6.43 (2) (ba); and

(b) the Secretary receives:

(i) an application mentioned in subregulation 6.43A (2) from the former holder of the ASIC or the issuing body for the ASIC; or

(ii) any information for which the Secretary asks the former holder of the ASIC or the issuing body under subregulation 6.43A (5).

(2) If the Secretary is satisfied on reasonable grounds that setting aside the cancellation of the ASIC would not constitute a threat to aviation security, the Secretary must set aside the cancellation.

(3) If the Secretary is satisfied on reasonable grounds that setting aside the cancellation of the ASIC would constitute a threat to aviation security, the Secretary must refuse to set aside the cancellation.

(4) Subject to subregulation (5), within 30 days after the Secretary receives the application or, if subparagraph (1) (b) (ii) applies, within 30 days after the Secretary receives the information, the Secretary must:

(a) decide whether to set aside the cancellation of the ASIC; and

(b) if the Secretary decides to set aside the cancellation — tell the following persons, in writing, about the decision and any condition under regulation 6.43D to which the setting aside is subject:

(i) the former holder of the ASIC;

(ii) the issuing body;

(iii) the Secretary AGD; and

(i) tell the former holder of the ASIC, in writing, about the decision and the reasons for it; and

(ii) if the application mentioned in subregulation 6.43A (2) was made by the issuing body — tell the issuing body, in writing, about the decision.

(5) The Secretary may extend the period for making a decision mentioned in paragraph (4) (a) by a further period not exceeding 60 days if the Secretary:

(a) tells the person who made the application mentioned in subregulation 6.43A (2), in writing, about extending the period for making the decision; and

(b) tells the person mentioned in paragraph (a) within 30 days after the Secretary receives the application or, if subparagraph (1) (b) (ii) applies, within 30 days after the Secretary receives the requested information.

(6) If the Secretary does not make a decision mentioned in paragraph (4) (a) within the period mentioned in subregulation (4) or, if the period is extended under subregulation (5), within the extended period, the Secretary is taken to have refused to set aside the cancellation of the ASIC.

6.43C Reinstatement of ASIC cancelled for adverse criminal record — Secretary’s decision

(1) This regulation applies if:

(a) an ASIC is cancelled in accordance with paragraph 6.43 (2) (d); and

(b) the Secretary receives:

(i) an application mentioned in subregulation 6.43A (2) from the former holder of the ASIC or the issuing body for the ASIC; or

(ii) any information for which the Secretary asks the former holder of the ASIC or the issuing body under subregulation 6.43A (5).

(2) Within 30 days after the Secretary receives the application or, if subparagraph (1) (b) (ii) applies, within 30 days after the Secretary receives the information, the Secretary must:

(a) decide whether there is a threat to aviation security if the cancellation of the ASIC was set aside; and

(b) decide whether to set aside the cancellation of the ASIC; and

(c) if the Secretary decides to set aside the cancellation — tell the following persons, in writing, about the decision and any condition under regulation 6.43D to which the setting aside is subject:

(i) the former holder of the ASIC;

(ii) the issuing body;

(iii) the Secretary AGD; and

(d) if the Secretary refuses to set aside the cancellation:

(i) tell the former holder of the ASIC, in writing, about the decision and the reasons for it; and

(ii) if the application mentioned in subregulation 6.43A (2) was made by the issuing body — tell the issuing body, in writing, about the decision.

(3) Before making a decision mentioned in paragraph (2) (a), the Secretary must consider:

(a) the type and length of any term of imprisonment imposed on the former holder; and

(b) if the former holder has served the term, or part of the term — how long it is, and the former holder’s conduct, since the term was served; and

(d) whether the former holder was convicted of the offence before becoming the holder of an ASIC; and

(e) the effect on the former holder’s employment of cancellation of the ASIC; and

(f) the location of the secure area where the former holder was employed; and

(g) whether the former holder is or was employed in a landside security zone or airside area; and

(h) anything else relevant that the Secretary knows about.

(4) If the Secretary does not make a decision mentioned in paragraph (2) (b) within the period mentioned in subregulation (2), the Secretary is taken to have refused to set aside the cancellation of the ASIC.

6.43D Reinstatement of ASIC subject to condition

The Secretary may set aside a cancellation mentioned in regulation 6.43B or 6.43C subject to a condition.

Example

A condition that background checking is conducted at stated intervals.

6.43E When issuing body must reinstate cancelled ASIC

If an issuing body is notified by the Secretary under subparagraph 6.43B (4) (b) (ii) or 6.43C (2) (c) (ii), the issuing body must:

(a) reinstate to the former holder his or her ASIC; and

(b) tell the Secretary AGD about the ASIC being reinstated, using the AusCheck facility.

Penalty: 10 penalty units.

[47] Subregulation 8.02 (3), heading

substitute

Decisions in relation to issue, suspension and cancellation of ASICs

[48] Paragraph 8.02 (3) (a)

substitute

(a) to refuse to approve the issue of an ASIC; or

[49] Paragraph 8.02 (3) (d)

omit

ASIC.

insert

ASIC; or

[50] After paragraph 8.02 (3) (d)

insert

(e) to direct the suspension of an ASIC; or

(f) to give the issuing body for an ASIC a direction under subregulation 6.31 (3); or

(g) to refuse to set aside the cancellation of an ASIC under regulation 6.43B or 6.43C; or

(h) to set aside the cancellation of an ASIC subject to a condition under regulation 6.43D.