Warren Truss (Wide Bay, National Party, Shadow Minister for Infrastructure and Transport and Local Government) Share this | Link to this | Hansard source

The Aviation Legislation Amendment (2008 Measures No. 1) Bill 2008 amends the Aviation Transport Security Act 2004 and the Civil Aviation Act 1988 to provide a more robust legal basis for air security officers to lawfully discharge their firearms on board aircraft. The air security officer program was introduced by the coalition government in December 2001 to address the threats of terrorism in the skies following the September 11 attacks. The presence of armed covert officers on domestic and international flights is part of a multilevel approach to enhancing security on flights in and from Australia. This measure is complemented by enhanced airport security procedures—better and more thorough screening, the presence of Australian Federal Police at airports and other security efforts. The air security officer program is another line of defence to ensure that the skies are safe for travellers.

Since December 2001, air security officers have been placed on a number of domestic and international flights to provide security for the Australian travelling public against the threat of hijackings. Many countries have similar programs, and the air security officer program introduced by the previous government meets international best practice. Australia also cooperates with the United States and other countries in the Asia-Pacific region to maintain security on board aircraft. Air security officers are highly trained in negotiation skills and defensive tactics, and the use of firearms is always intended to be employed as a last resort. The officers are trained to respond appropriately and in accordance with the level of threat. Thankfully, there have been no incidents requiring an air security officer to discharge their firearm. Perhaps this is a testament to the effectiveness of the scheme. Certainly, it is a program which the coalition regards as a legitimate and necessary component of aviation security.

At the moment, the legislative basis by which air security officers may lawfully discharge a firearm on an aircraft occurs via the periodic issuance of notices under regulation 144 of the Civil Aviation Regulations 1988 by the Civil Aviation Safety Authority. These regulations permit air security officers to carry and discharge a firearm in the legal conduct of their duty without risk of prosecution. It has been suggested that the legal basis for this arrangement is unnecessarily cumbersome. The provision of such notices may also be inconsistent with the intent of the Civil Aviation Act 1988.

To provide greater certainty regarding the lawful conduct of air security officers, the legislation before us proposes to amend the Aviation Transport Security Act 2004 and the Civil Aviation Act 1988 so that new regulations can be made under this legislation to permit air security officers to lawfully discharge their firearms without risk of prosecution. These amendments would also permit an extraterritorial provision applying to Australian aircraft or aircraft engaged in Australian international carriage. This is to permit an air security officer to lawfully discharge a firearm on board an Australian aircraft outside Australian territory.

The opposition supports the air security program and any legislative effort to improve its efficient functioning. It was, as I mentioned earlier, an initiative of the former government. It is an initiative that is valuable and should be maintained. I therefore in this debate call on the Rudd Labor government to guarantee its future. To do so would be a sign that it takes this component of aviation security seriously. I raise this point in the light of what is at best disturbing ambivalence from the Rudd Labor government regarding the air security officer program. Earlier this year, there was a spate of media articles flagging that the number of air security officers was to be cut by one-third. The media reports also claim that the Rudd Labor government will reduce the rest periods that air security officers are permitted to take at the end of long-haul flights and that it is considering plans to rotate air security officers to other areas of the Australian Federal Police for periods of three months—in other words, to take them out of their fundamental role. Obviously, these measures will seriously compromise the capacity of air security officers to protect the flight deck in a security emergency. Unfortunately, the response of the government to these concerns has been totally inadequate. It has simply failed to give any assurances about the continuation of this program. For example, I note that the recent budget failed to offer explicit funding for the air security officer program beyond this financial year, and I am informed that redundancy offers are currently being circulated to air security officers. This is clear evidence that the numbers are being reduced.

I also note the evasive answers offered by Senator Ludwig in the other place in response to some specific questions by the shadow Attorney-General, Senator Brandis. On 14 February this year, during questions without notice, Senator Ludwig failed to provide any assurance that the Rudd government would not cut the air security program by the levels flagged in the media—in other words, by at least a third. Instead, the representative of the Attorney-General in the other place couched his answers in weasel words by citing ‘operational requirements’. However, in spite of his attempts to fudge, he did admit that there had been changes in the presence of air security officers on international flights. So I ask the government again: will it guarantee the future of the air security officer program? Are the changes cited by Senator Ludwig simply code words for ‘reductions’? Will the government keep the air security program at the level of the previous coalition government? Or does the government intend to play fast and loose with the security of the air-travelling public and cut the initiative further?

I appreciate that the operation of this program depends, at least to some extent, on it being secret, on people not knowing which flights the security officers are travelling on, because no-one has suggested that the nation can reasonably bear the cost of there being an officer of this nature on every aircraft. So there does need to be some level of confidentiality about the operations. But, if the service is not being reduced, if the government has nothing to hide, it could at least come out and guarantee that the service is being maintained at the levels that applied in the past and that there will be no reduction in the number of security officers being employed. Why are redundancy offers currently being circulated amongst employees? Unless the government can give some confident assurances to the people of Australia that this program is not being wound back, the public will have a right to be at least deeply suspicious that a veil of confidentiality is being used to cover up a sinister winding-back of this program. Who knows what risks there may be to the Australian travelling public?

I now turn to some of the particulars of the bill. I noted earlier that the coalition is happy to support any legislative amendment to make more efficient and effective the functioning of the air security officer program. One question I do have concerns the application of any extraterritorial regulation made under the Aviation Transport Security Act 2004. In raising this matter, I accept the need for an extraterritorial provision to apply to air services officers on an aircraft outside Australian territory. However, the opposition is concerned that such a provision will not lead to additional Australian regulatory requirements on overseas airlines in foreign jurisdictions. I refer specifically to section 134 of the bill, which states:

(1)

Any provisions of the regulations may be expressed to apply to and in relation to any of the following:

(a)

Australian aircraft;

(b)

aircraft (other than Australian aircraft) engaged in Australian international carriage;

(c)

passengers on board, and members of the crew of, aircraft referred to in paragraph (a) or (b);while the aircraft are outside Australian territory.

Clearly, the above provision surpasses the current extraterritorial provision under section 6 of the Aviation Transport Security Act, which is limited to Australia aircraft and then on board the aircraft. I am concerned that the proposed wording may provide a precedent for the Office of Transport Security to tie any regulation to both Australian and foreign airlines’ overseas operations in the air and on the ground. This matter had been raised with the opposition by the aviation industry, who are unhappy with the response that they have received from the Office of Transport Security to these concerns. As a consequence, I seek an assurance from the Minister for Infrastructure, Transport, Regional Development and Local Government that any extraterritorial regulation made under these new regulations will be solely in the context of the operation of the air security officers and that this legislation will not become a precedent to impose any further domestic obligation on overseas airline operations, both in the air and on the ground. I informed the minister’s office during the briefing that he provided to my staff on Monday that I would be raising this issue. I hope therefore that in his summary in response to this debate he can provide extra advice on the intent of section 134 of the bill and assurances that this will not be used to create a whole new precedent for and a whole new method of making regulations for the aviation industry.

Pending that assurance, the opposition are happy to support the bill. We strongly support the operation of the air security officer program. The fact that the Australian aviation sector has been free of terrorist incidents is important, and undoubtedly the presence of air security officers provides a deterrent to those of ill intent who threaten danger to our aviation industry. So I support the legislation but I do seek an assurance from the minister about the way in which the regulations will particularly apply. I would also strongly urge the government to give the Australian travelling public confidence that they have no plans to wind back this program, there will not be cuts to its budget, they are not seeking to reduce the number of air security officers and this program will be maintained as an important part of Australia’s line against terrorism in aviation in this country.

Darren Cheeseman (Corangamite, Australian Labor Party) Share this | Link to this | Hansard source

The Aviation Legislation Amendment (2008 Measures No. 1) Bill 2008 deals with some of the harsh realities that our society must now face. It puts in place new regulations to be made under the Aviation Transport Security Regulations 2005 to permit air security officers, otherwise known as ASOs, to use their firearms on board aircraft in Australian territory or on board Australian aircraft in foreign territory. Of course, this must occur within the course of their duties. The situation today is that ASOs using their firearms cannot do so without the risk of prosecution. This bill will change both the Aviation Transport Security Act 2004 and the Civil Aviation Act 1988 to allow the use of firearms by ASOs under these conditions.

This is indeed a tough amendment. It is a complicated amendment but it is an amendment that as a member of parliament you do have to give some additional thought and attention to. These laws are for extreme circumstances. The fact is that, while 9-11 style incidents occur rarely and we do the best we can to prevent them, they do happen. They have happened and, in my view, they will happen again unless we take clear steps to prevent them. When they occur we need to have the laws in place to deal with the situation and protect our citizens, and we need to have the laws in place to protect the innocent citizens from other countries who may be visiting our country or on our aeroplanes operated out of our country.

I want to go through a little detail on the ASO program. The ASO program involves the placement of covert armed security officers on select domestic and international flights to protect the flight deck. The Attorney-General’s Department has carriage of the ASO program, with the Office of Transport Security providing transport policy input and managing legislation provisions that support the program. Currently, the ASO program is underpinned by the ATSA, the Aviation Transport Security Regulations 2005 and the Civil Aviation Regulations 1988. These regulations and the acts under which they are made effectively permit an ASO to engage in conduct necessary for the performance of duties that would otherwise be contrary to Commonwealth legislation—for example, the possession of a firearm on an aircraft.

There is no point having these laws and regulations without the personnel carrying them out clearly understanding what their position is. The purpose of the ASOs is for security on aircraft. At the moment the ASOs know that under the current regulatory environment they run the risk of being sued. In an extreme crisis situation such as these people are being trained for, there needs to be clarity around their rights and responsibilities. The situation at present is dealt with by CASA issuing periodic notices. The current notice expires on 30 June 2008. The AGD, CASA and the OTS have agreed that these notices should not be renewed as they imply that it is safe to discharge a firearm on board an aircraft. It would be much better to replace the notices with new regulations under the ATSR to provide a more appropriate basis to deal with the discharge of firearms.

The other important matter in this bill is the operation of these regulations in places other than Australia. ASOs operate internationally and it is important these provisions are given effect internationally, or ‘extraterritorially’, as the terminology has it. The Australian Government Solicitor has said that the ATSA, and thereby any regulations made under it, does not currently have extraterritorial operation. Therefore, also contained in this bill are provisions giving powers under the ATSA to enable regulations to have effect extraterritorially. The specific effect of this is that these regulations will now apply to Australian aircraft or aircraft engaged in Australian international carriage and the crew and passengers on board these aircraft.

Leaving aside the technical aspects of this bill, it is pretty simple. It is about providing a greater level of security for our flying public. The program which this bill forms only a part of involves the placement of covert armed security officers on select domestic and international flights to protect the flight deck and personnel. It is a sad comment on our society that we now have to take these measures. I sincerely wish it were otherwise. But we all know that today we live in a world where, for whatever reason, people arrive at or are driven to beliefs and actions that are so extreme they will do anything to get a point across or to pursue their beliefs. We know that aircraft are being targeted now as potential weapons of mass destruction, with innocent passengers’ lives treated as inconsequential. September 11 showed the reality of the risk and the horrific impact on thousands of families when there is not in place a strong aviation security system. This bill is part of an improved security system to protect the innocent against such attacks. I commend this bill to the House.

Jason Clare (Blaxland, Australian Labor Party) Share this | Link to this | Hansard source

There are no prizes for guessing what day air security became a major political issue in this country. When on September 11 2001 three hijacked planes struck domestic United States targets and a fourth crashed after passengers sought to retake control of the aeroplane, the world changed. The parliament was quick to pass measures to strengthen air security in this country. By 19 October 2001, the minister had announced new measures to protect air security, including placing air security officers on domestic and international flights. The air security officer program commenced in December 2001, with air security officers deployed to fly on domestic flights. To date, the program has expanded to also cover some international flights to Singapore and the United States. Air security officers are specially trained AFP officers who are armed when travelling and travel in teams of two or more. The pilot is the only person on board, other than the air security officers themselves, who is aware that there are armed security officers on board. According to the AFP, the integrity of the program relies on these ASOs blending in with other travellers. The random and covert nature of these deployments is considered to be an important deterrent to any attack on board a flight.

Unfortunately, the threats that air security officers work to prevent are very real. On 29 May 2003, a Qantas Boeing 717 flight from Melbourne to Launceston was the scene of an onboard knife attack that injured two crew members and two passengers. Thankfully, the assailant was subdued before doing any further damage. But these threats need to be prevented, and air security officers need to be empowered to do their job of protecting airline crew and the travelling public.

So what does the Aviation Legislation Amendment (2008 Measures No. 1) Bill 2008 do? The measures in this bill will permit air security officers to lawfully discharge their firearms on board an aircraft in Australian territory or on board an Australian aircraft in foreign territory. The lawful discharge of a firearm can only occur in the course of their duties—and that is an important point to make—in preventing unlawful interference with an aircraft. Unlawful discharge risks prosecution. The system, as I understand it, will be equivalent to that which applies to police officers.

Before becoming a member of parliament, for four years I was an adviser to the police minister in New South Wales. I got some experience working in the area of police powers and worked with the Police Association and the police service in New South Wales to make sure that police had the powers they needed to do their job. Those powers included those following the implementation of the new gun laws across the country in 1996, which were measures—very good measures—introduced by the Howard government. There was also the introduction of other laws, like move-on powers, knife law legislation and drug house laws. The important point is that the people who have an obligation to protect us must be given the powers they need to do their job. They need to be given the skills and the resources that they need. I know the member for Werriwa would concur with that, having worked in this area as well.

Existing regulations do not allow an air security officer to discharge a firearm in an aircraft without the risk of prosecution. Obviously, this puts them in a pretty unworkable position, and that legislative defect has until now been addressed by the periodic issuing of notices under regulation 144 of the Civil Aviation Regulations. This bill moves the existing set of regulations from the safety legislation framework to the air security legislative framework. The bill also deals with the complicated extraterritorial issues created by the air security officers program. Extraterritoriality refers to the effect of the laws that apply beyond our national jurisdiction. The Australian Government Solicitor has advised that the Aviation Transport Security Act, and thereby any regulations made under the act, does not currently have extraterritorial operation. This means that, unless the act is amended to enable regulations to have extraterritorial effect, a regulation cannot be made under the Aviation Transport Security Regulations to permit an Australian air security officer to lawfully discharge a firearm on board an Australian aircraft outside Australian territory. The bill will amend the regulation, making the power under the Aviation Transport Security Act to enable the making of regulations that have extraterritorial operation. The amendment will be modelled on existing section 27 of the Air Navigation Act 1920. Under this approach, regulations will only have extraterritorial operation if specified and will only apply to Australian aircraft or aircraft engaged in Australian international carriage and the crew and passengers on board those aircraft.

The bill also makes a small technical amendment to the Civil Aviation Act. Section 23 of the act currently says that an aircraft or person must not, amongst other things, carry dangerous goods on board an aircraft except in accordance with the Civil Aviation Act or with the written permission of the Civil Aviation Safety Authority. So a minor technical amendment to section 23 is required to make it clear that an aircraft or person must not carry dangerous goods on board an aircraft except in accordance with the Civil Aviation Act or with the written permission of the Civil Aviation Safety Authority or in accordance with the Aviation Transport Security Regulations.

We all have a duty to ensure that passenger aircraft in this country are as safe as possible and, in a post September 11 environment, the air safety officer program is an important part of ensuring this safety and protecting aircraft crews and the public from threats that could eventuate midflight. I hope that air safety officers never have to discharge a firearm on board an Australian plane, but I am glad that there are men and women who are willing, trained and able to do so if the need arises. The least we can do as legislators is to ensure that they are not in the position of being prosecuted for doing so. These laws provide quite properly for the exceptional and terrible circumstance where it is necessary for them to discharge their weapon to protect passengers, the crew and the safety of an aircraft. I think that is appropriate and I think it is the least that we can do. I commend the bill to the House.

Anthony Albanese (Grayndler, Australian Labor Party, Leader of the House) Share this | Link to this | Hansard source

in reply—I rise to thank members for their comments on and contributions to the debate on the Aviation Legislation Amendment (2008 Measures No. 1) Bill 2008. Australia’s aviation security regulatory framework has multiple layers of protection to ensure passengers in our aviation industry are safeguarded and it is able to respond quickly to threats of unlawful interference with a plane. This bill makes technical amendments which will enhance the air security officer program. The air security officer program places covert armed security officers on select domestic and international flights to protect the flight deck. Currently air security officers are allowed to discharge firearms on board an aircraft through exemptions granted under safety legislation. The government is concerned that providing ongoing exemptions for officers under safety legislation is inconsistent with the purpose of safety legislation. This is because the exemptions imply that it is safe to discharge a firearm on board an aircraft. To fix this, the bill amends the regulation-making power under the Aviation Transport Security Act 2004.

Currently, section 6 of the act allows offences to be created under the act for all aircraft engaged in Australian international carriage. However, it does not allow regulations that would overcome offence provisions containing other legislation, such as an offence for discharging a firearm as contained in the Crimes (Aviation) Act 1991. The proposed new section 134 creates a regulation-making power sufficient to address this problem within the geographical coverage of the current offence-making power. This will allow regulations to be made permitting on-duty air security officers to lawfully discharge their firearms on board an aircraft in the Australian territory or on an Australian aircraft in foreign territory if it is for the purpose of preventing or responding to an act of unlawful interference with aviation.

This bill will provide an appropriate and permanent basis to deal with the lawful discharge of firearms by air security officers under aviation security legislation. I note that the Board of Airline Representatives of Australia have expressed concern that this amendment extends the powers of the Aviation Transport Security Act into operations that are currently not subject to the act. I can assure the Board of Airline Representatives of Australia that the government does not intend to use aviation security legislation to interfere with the legitimate operations of airlines beyond the minimum necessary to ensure the secure operation of Australian aviation. I commend the bill to the House.

Question agreed to.

Bill read a second time.

Ordered that the bill be reported to the House without amendment.