Australia: Aviation security: legislation update

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Aviation Transport Security Amendment (Inbound Cargo Security Enhancement) Act 2013 (Cth)

The Aviation Transport Security Amendment (Inbound Cargo Security Enhancement) Act 2013 (Amendment Act) amends the Aviation Transport Security Act 2004 (Act). The Act is amended to enable the Minister to prohibit the carriage of certain cargo into Australian territory on an aircraft through the use of a "disallowable instrument". A disallowable instrument is defined in the Acts Interpretation Act 1901 asbeingan instrument that is gazetted in the Commonwealth of Australia Gazette and laid before each House of Parliament within 15 sitting days of the making of that instrument.

As detailed in the explanatory memorandum to the Amendment Act, the Amendment Act reflects the Government's desire to provide an effective response mechanism that, when exercised, creates greater certainty and transparency regarding international inbound air cargo. In particular, the Amendment Act creates a solid framework allowing for the Minister to prohibit certain types of inbound cargo through a disallowable instrument.

Pursuant to Section 65C of the Amendment Act, the carriage of prohibited cargo into Australian territory will constitute a strict liability offence, which in turn has significant human rights implications. A strict liability offence relates to an offence for which there is no fault elements for any of the physical elements of the offence and the defence of mistake of fact is available (section 6.1 of the Criminal Code Act 1995). Upon analysis of the offence under the Amendment Act, it is apparent that the provision engages the right to the presumption of innocence, which is fundamental to common law and contained in article 14(2) of the International Covenant on Civil and Political Rights.

Whilst the offence engages the right to the presumption of innocence, there are several elements that demonstrate the imposition of this right is both reasonable and proportionate. Given the potential consequences of the use of improvised explosive devices in air cargo, a strict liability offence is an appropriate deterrent against acts or omissions committed by aviation industry participants that may contribute to the success of an attack. Further, it would be particularly difficult to prove fault in circumstances of an attack using cargo, as extensive documentation regarding examination, handling and treatment of cargo is required to establish the fault elements of the applicable business. For this reason, the categorisation of the offence as a strict liability offence is appropriate.

The penalties for the strict liability offence do not include imprisonment and range from 100 to 200 penalty units. The penalty amount is intended to discourage non-compliance as well as ensure that industry and their personnel do everything that they can reasonably do to prevent the entry of prohibited cargo. Given the real threat posed by attacks using air cargo and the serious damage those attacks may inflict upon Australia and Australian interests, there is a need for significant penalties in order to deter aircraft operators and other aviation industry participants from non-compliance.

Customs and AusCheck Legislation Amendment (Organised Crime and Other Measures) Act 2013 (Cth)

This Act aims to mitigate vulnerabilities in Australia's aviation and maritime sectors that may be exploited by organised crime, through amendments to the Customs Act 1901, AusCheck Act 2007 and the Law Enforcement Integrity Commissioner Act 2006.

Through amendments to the Customs Act 1901, the Act purports to strengthen the cargo supply chain against criminal infiltrations. The amendments place reporting obligations and integrity tests on cargo terminal operators and handlers that loan and unload cargo and create new offences for using information from the International Cargo System to aid a criminal organisation. The amendments also enable the CEO of Customs and Border Protection to consider the refusal, suspension or cancellation of aviation and maritime security identification cards.

Through amendments to the AusCheck Act 2007, the Act purports to strengthen the ability of ASIC and MSIC schemes to mitigate national security threats, including serious and organised crime by authorising the Secretary of the Attorney-General's Department, through AusCheck, to suspend a person's ASIC or MSIC card (Card) if the person is charged with a serious offence. The power to suspend a person's card following charge with a serious offence builds upon existing Aviation and Maritime Regulations.

Amendments to the Law Enforcement Integrity Commissioner Act 2006 provide that the Deputy Speaker of the House of Representatives and the Deputy President and chair of Committees of the Senate are eligible for appointment to the Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity (PJC-ACLEI). This amendment aims to make membership eligibility for the PJC-ACLEI consistent with Parliamentary Committees with similar functions.

Aviation Transport Security Amendment Regulation 2013 (No. 1) (Cth)

The Aviation Transport Security Act 2004 and the Aviation Transport Security Regulations 2005 establish a regulatory framework to safeguard against unlawful interference with aviation.

The Aviation Transport Security Amendment Regulation 2013 (No. 1) amends the regulations so that the Secretary of the Department of Infrastructure and Transport is able to request that Visitor Identification Card (VIC) issuers provide the Secretary with statistical information on visitors to secure zones of security controlled airports.

The statistical information, while not exhaustively prescribed, may include the number of VICs issued and the number lost, stolen, destroyed or otherwise not returned to the issuer during a specified period. The information is not personal information that could be used to identify those people issued with a VIC.

The reporting requirement is triggered by the Secretary giving the VIC issuer written notice specifying the information the Secretary requires. VIC issuers are not expected to be able to provide an instantaneous report; however, the examples given in the regulation should be relied upon to ensure some level of preparedness in the event of a request.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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