Aviation Transport Security Amendment Regulations 2008 (No. 2)1
Select Legislative Instrument 2008 No. 190
I, QUENTIN BRYCE, 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 18 September 2008
QUENTIN BRYCE
Governor‑General
By Her Excellency’s Command
ANTHONY ALBANESE
Minister for Infrastructure, Transport, Regional Development and Local Government
1 Name of Regulations
These Regulations are the Aviation Transport Security Amendment Regulations 2008 (No. 2).
2 Commencement
These Regulations commence on 1 October 2008.
3 Amendment of Aviation Transport Security Regulations 2005
Schedule 1 amends the Aviation Transport Security Regulations 2005.
Schedule 1 Amendments
(regulation 3)
[1] Regulation 1.03, before definition of Act
insert
AACA means accredited air cargo agent.
AACA security program means the security program:
(a) provided by the Secretary under regulation 4.49; or
(b) approved by the Secretary under regulation 4.50.
[2] Paragraph 2.51 (4) (b)
omit
[3] subregulation 2.55 (1)
substitute
(1) The TSP must set out, for each of the RACA’s sites as appropriate to the operations at those sites, the security measures and procedures to be used within the site, including measures and procedures:
(a) to control access to sites and maintain the integrity of access control systems; and
(b) to deter and detect unauthorised access into the airside area by people, aircraft, vehicles or things; and
(c) to deter and detect unauthorised access into the airside security zone by people, aircraft, vehicles or things; and
(d) to deter and detect unauthorised access into a landside security zone by people, vehicles or things; and
(e) to deter and detect unauthorised access into sites (including cargo handling areas covered by the TSP) by people, vehicles or things; and
(f) to ensure the security of passwords, keys and key lists, electronic access cards and other security privileges; and
(g) to ensure all security equipment is appropriately maintained and calibrated, including measures for managing and recording details of equipment maintenance programs; and
(h) to ensure that any vehicles used in the transport of cargo are secured adequately; and
(i) for the examination of cargo.
[4] Regulation 2.56
omit
[5] Regulation 2.59
substitute
2.59 Content of RACA’s TSP — limit on persons covered
The TSP must only cover an aviation industry participant that is an agent or subsidiary of the RACA, or has a contract with the RACA to provide a service for the movement or handling of cargo or the making of arrangements for the movement or handling of cargo.
[6] Subregulations 4.40 (3) and (4)
substitute
(3) A RACA, an aircraft operator or an AACA must conduct the examination in accordance with:
(a) the RACA or aircraft operator’s TSP, or the AACA’s security program; or
(b) if a written notice is issued by the Secretary under subregulation (4) — the written notice.
(4) For subsection 44C (3) of the Act, the Secretary may issue one or more written notices to the persons mentioned in subregulation (6).
[7] Subregulations 4.40 (6) and (7)
substitute
(6) The Secretary may issue a notice under subregulation (4) to:
(a) all RACAs, all AACAs or all aircraft operators; or
(b) one or more specified class of RACA, AACA or aircraft operator; or
(c) one or more RACA, AACA or aircraft operator.
(7) For paragraph (6) (b), a specified class may include a class that is identified by reference to the kind of site at which a RACA, an AACA or an aircraft operator is examining cargo.
(8) A RACA, an AACA or an aircraft operator to whom a notice is issued under subregulation (4) must comply with the notice.
Penalty: 50 penalty units.
(9) A contravention of subregulation (8) is an offence of strict liability.
[8] Subparagraph 4.43 (2) (b) (ii)
substitute
(ii) the full name of each partner; and
(iii) if the partnership trades under another name, the trading name;
[9] Paragraph 4.43 (2) (f)
omit
registration.
insert
registration;
[10] After paragraph 4.43 (2) (f)
insert
(g) details of any previous RACA designation or AACA accreditation and, if the designation or accreditation had been revoked, the reasons for the revocation.
[11] Paragraphs 4.44 (1) (d) and (e)
substitute
(d) the RACA has failed to comply with:
(i) a direction under section 21 or 23 of the Act; or
(ii) a special security direction under section 73 of the Act; or
(e) the RACA has failed to comply with its TSP or does not have a TSP approved by the Secretary; or
[12] After subregulation 4.44 (2)
insert
(3) The designation of a person as a RACA is automatically revoked if the person is accredited as an AACA.
[13] After regulation 4.45
insert
4.45A Failure to notify changes
(1) A RACA commits an offence in relation to information contained in an application under regulation 4.43 which resulted in its designation as a RACA under subregulation 4.43 (4) if:
(a) the information has changed since the RACA was designated; and
(b) the RACA has not notified the Secretary of the change within 7 working days after becoming aware of the change.
Penalty: 20 penalty units.
(2) Subregulation (1) is an offence of strict liability.
[14] Regulation 4.46
substitute
4.46 Disclosure of information
(1) In this regulation:
approved person means an aviation industry participant or an AACA.
security program means the following:
(a) if the approved person is an aviation industry participant — the aviation industry participant’s TSP;
(b) if the approved person is an AACA — the AACA’s security program.
(2) An approved person commits an offence if:
(a) the approved person discloses to another person security measures and procedures to be applied to cargo; and
(b) the disclosure is not in accordance with a security program.
Penalty: 50 penalty units.
(3) An approved person commits an offence if:
(a) the approved person discloses to another person security measures and procedures that will not be applied to cargo; and
(b) the disclosure is not in accordance with a security program.
Penalty: 50 penalty units.
(4) An approved person commits an offence if:
(a) the approved person discloses to another person details about the airline or flight on which particular cargo will be carried; and
(b) the disclosure is not in accordance with a security program.
Penalty: 50 penalty units.
(5) An approved person must make a record of persons who are given airline or flight information under subregulation (4).
(6) An approved person who contravenes subregulation (5) commits an offence.
Penalty: 20 penalty units.
(7) An approved person must keep a record mentioned in subregulation (5) for 90 days.
(8) An approved person who contravenes subregulation (7) commits an offence.
Penalty: 20 penalty units.
[15] After Subdivision 4.1A.2
insert
Subdivision 4.1A.3 Accrediting accredited air cargo agents
4.47 Accredited air cargo agents
For paragraph 44C (2) (j) of the Act, a person is an AACA if:
(a) the person carries on a business that includes the handling, or making arrangements for the transport, of cargo; and
(b) the person is accredited by the Secretary as an AACA under this Subdivision.
4.48 Applying for accreditation
(1) A person carrying on a business, or intending to carry on a business, that includes the handling, or making arrangements for the transport, of cargo, may apply in writing to the Secretary to be accredited as an AACA.
(2) The application must contain the following information:
(a) if the applicant is a company:
(i) the name of the company; and
(ii) the ACN of the company; and
(iii) if the company trades under another name, the trading name;
(b) if the applicant is a partnership:
(i) the name of the partnership; and
(ii) the full name of each partner; and
(iii) if the partnership trades under another name, the trading name;
(c) if the applicant is an incorporated association:
(i) the name of the association; and
(ii) the full name of each member of the association; and
(iii) if the association trades under another name, the trading name;
(d) in any other case:
(i) the applicant’s full name; and
(ii) if the applicant trades under another name, the trading name;
(e) the postal address, street address, telephone number, fax number (if any) and email address (if any) of the applicant’s principal office in Australia and each of the applicant’s sites in Australia that will be covered by the applicant’s AACA security program;
(f) if the applicant has a business name registered under the law of a State or Territory — the business name and its registration number;
(g) details of any previous AACA accreditation or RACA designation and, if the accreditation or designation had been revoked, the reasons for the revocation;
(h) if the applicant is not already handling, or making arrangements for the transport of, cargo — evidence of an intent to carry on a business that includes the handling, or making arrangements for the transport, of cargo.
Note Any change to the information provided under subregulation (2) must be notified to the Secretary within 7 working days of the AACA becoming aware of the change, see regulation 4.51H.
4.49 Secretary to provide AACA security program
(1) The Secretary must provide an applicant for accreditation with an AACA security program that:
(a) is appropriate for the kind of business that is carried on by the applicant; and
(b) addresses the requirements set out in regulation 4.51F.
(2) An applicant may, in relation to the AACA security program provided by the Secretary:
(a) accept the program and notify the Secretary that it wishes to proceed with its application; or
(b) reject the program and notify the Secretary that it wishes to withdraw its application; or
(c) within 7 days of receiving the program, make a request to the Secretary to amend the program.
(3) An applicant that withdraws its application under paragraph (2) (b) must return the program and destroy any copies of the program within 7 days of notifying the Secretary.
(4) An applicant who contravenes subregulation (3) commits an offence.
Penalty: 10 penalty units.
(5) Subregulation (4) is an offence of strict liability.
(6) An applicant that requests an amendment of the program must give the Secretary:
(a) written details of the proposed amendment; and
(b) written reasons why the proposed amendment is required.
4.50 Consideration of amended AACA security program
(1) In considering a request under paragraph 4.49 (2) (c), the Secretary must take into account:
(a) whether the proposed amended program addresses the requirements set out in regulation 4.51F; and
(b) existing circumstances as they relate to aviation security; and
(c) the current use of the AACA security program by business of the kind carried on by the applicant; and
(d) the efficient administration of the AACA scheme.
(2) After considering the request and the matters mentioned in subregulation (1), the Secretary must:
(a) decide to approve or reject the request; and
(b) give the applicant written notice of the decision within 14 days of making the decision.
(3) If the Secretary does not make a decision under subregulation (2) within 60 days of a request being made under paragraph 4.49 (2) (c), the Secretary is taken to have rejected the amendment.
(4) An amendment to an AACA security program that is approved by the Secretary may be provided by the Secretary to other applicants for accreditation or to other AACAs.
4.51 Consideration of the application
In making a decision on an application under regulation 4.48, the Secretary may take into account:
(a) anything in the application submitted by the applicant to the Secretary; and
(b) any further information provided by the applicant under subregulation 4.51A (2); and
(c) the nature of the applicant’s business and whether it would be more appropriate for the applicant to be designated as a RACA.
4.51A Decision on application
(1) The Secretary may, in relation to an application made by an applicant under regulation 4.48:
(a) accredit the applicant on the condition that the applicant comply with the AACA security program issued to the applicant by the Secretary; or
(b) accredit the applicant on the condition that the applicant comply with the amended AACA security program requested by the applicant and approved by the Secretary; or
(c) refuse to accredit the applicant; or
(d) refuse to accredit the applicant and advise the applicant to apply to the Secretary for designation as a RACA.
(2) Before making a decision under subregulation (1) the Secretary may request, in writing, that the applicant provide further information.
(3) The Secretary must notify the applicant in writing of the decision on the application within 14 days of making the decision and, if the decision is to refuse the application, give the applicant reasons for the decision.
(4) The Secretary is taken to have made a decision to refuse to accredit the applicant if the Secretary does not make a decision on the application:
(a) if the applicant had not commenced business at the time of making the application — within the period of 90 days after the application is made; or
(b) in any other case — within the period of 60 days after the application is made.
(5) If the Secretary has requested further information under subregulation (2), the period starting on the day of the request and ending on the day the applicant provides the information is not to be counted for the purpose of subregulation (4).
4.51B Duration of accreditation
(1) An AACA’s accreditation commences on the day stated in the notice of decision given under subregulation 4.51A (3) and continues in force until revoked under regulation 4.51D.
(2) The notice of decision must not state a day for commencement of accreditation that is a day earlier than the day on which a person commences carrying on a business that includes the handling, or making arrangements for the transport, of cargo.
4.51C Action by Secretary in relation to the accreditation
(1) If there is a change to an AACA’s operations resulting in the AACA no longer carrying on business in accordance with the requirements of its AACA security program, the Secretary may issue a notice in writing to the AACA in accordance with subregulation (2).
(2) The notice may propose one or more of the following actions:
(a) that the AACA agree to restrict its activities to those that are in accordance with the AACA security program provided to it by the Secretary;
(b) that the AACA agree to the Secretary imposing a condition on the AACA’s accreditation relating to activities that are not in accordance with the AACA’s security program;
(c) that the AACA agree to comply with a different AACA security program;
(d) that the AACA apply to be designated as a RACA;
(e) that the AACA’s accreditation be cancelled.
(3) The AACA must notify the Secretary in writing within 14 days of receiving the notice if it accepts the proposed action or which, if any, of the actions proposed in the notice it will accept.
(4) If an AACA accepts the action proposed under paragraph (2) (e), the AACA is taken to have requested a revocation under paragraph 4.51D (2) (f).
4.51D Revocation of accreditation
(1) The Secretary may, at any time by notice in writing, immediately revoke the accreditation of a person as an AACA if it is in the interests of aviation security to do so.
(2) The Secretary may also revoke the accreditation of a person as an AACA if:
(a) any information given in the AACA’s application is false; or
(b) the AACA’s business no longer includes handling, or making arrangements for transporting of, cargo; or
(c) the AACA has not given notice of a change as required by regulation 4.51H; or
(d) the AACA has failed to comply with the AACA’s security program; or
(e) the AACA does not respond to a notice under regulation 4.51C within the time provided in that regulation; or
(f) the AACA has asked the Secretary, in writing, to revoke the AACA’s accreditation.
(3) Before revoking the AACA’s accreditation under paragraph (2) (a), (b), (c), (d) or (e), the Secretary must notify the AACA in writing of the Secretary’s intention to revoke the AACA’s accreditation and the reasons for the intended revocation.
(4) The Secretary must give the AACA at least 14 days from the day on which the Secretary notifies the AACA of his or her intention under subregulation (3) in which to make a submission as to why the accreditation should not be revoked.
(5) The Secretary must:
(a) consider any submission made by the AACA in response to a notice under subregulation (3) before making a decision about the revocation; and
(b) provide the AACA with written notification of the Secretary’s decision within 28 days of receiving the submission.
(6) If the Secretary does not make a decision under paragraph (5) (b) within 28 days of receiving the submission, the Secretary is taken to have revoked the AACA’s accreditation.
(7) The accreditation of a person as an AACA is automatically revoked if the person is designated as a RACA.
4.51E Secretary’s list of AACAs
(1) The Secretary must keep a list of persons accredited as AACAs.
(2) The Secretary may publish the list.
Subdivision 4.1A.4 AACA security programs
4.51F What AACA security program must contain
The AACA security program provided by the Secretary under regulation 4.49 must set out the following requirements under the program, as relevant to the kind of business to which the program applies:
(a) details of the kind of business to which the program applies;
(b) the measures and procedures to deter and detect the unauthorised carriage of explosives and to prevent acts of unlawful interference with aviation;
(c) the methods to prevent unauthorised persons from having access to cargo;
(d) the measures and procedures for the handling and treatment of suspect cargo;
(e) the measures to prevent the unauthorised disclosure of information regarding security measures to be applied to cargo;
(f) the measures to prevent aircraft operator and flight information from being revealed to those without a need to know;
(g) details of persons who may be given information mentioned in paragraph (f) and how it is to be given to such a person;
(h) the measures and procedures to control access to the AACA’s sites and maintain the integrity of access control systems;
(i) the measures and procedures to ensure that any vehicles used in the transport of cargo are secured adequately;
(j) the measures and procedures for the examination of cargo;
(k) details of the training to be undertaken by AACA employees;
(l) the circumstances and measures for reporting aviation security incidents to the Secretary, including the information that must be set out in the report and the method of reporting.
Subdivision 4.1A.5 Offences
4.51G AACA must comply with security program
(1) An AACA commits an offence if:
(a) there is an AACA security program that is currently in force for the AACA; and
(b) the AACA fails to comply with the program.
Penalty: 50 penalty units.
(2) For paragraph (1) (a), if the Secretary gives the AACA a replacement program, that replacement program is the program in force for the AACA.
(3) Subregulation (1) does not apply if the AACA has a reasonable excuse.
Note A defendant bears an evidential burden in relation to the matter in subregulation (3), see subsection 13.3 (3) of the Criminal Code.
(4) Subregulation (1) is an offence of strict liability.
4.51H Failure to notify changes
(1) An AACA commits an offence in relation to information contained in an application under regulation 4.48 which resulted in its accreditation as an AACA under subregulation 4.51A (1) if:
(a) the information has changed since the AACA was accredited; and
(b) the AACA has not notified the Secretary of the change within 14 working days after becoming aware of the change.
Penalty: 20 penalty units.
(2) Subregulation (1) is an offence of strict liability.
[16] After regulation 8.04
insert
8.05 Review of decisions in relation to AACAs
Application may be made under the AAT Act to the Tribunal for review of a decision by the Secretary:
(a) to refuse to accredit a person as an AACA; or
(b) to revoke an AACA’s accreditation; or
(c) to refuse to accept amendments to an AACA security program.
Note
1. All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See http://www.frli.gov.au.
