Amendments to Aviation Security Laws Proposed by Parliament
On the 28th of November 2024, the Government introduced the Transport Security Amendment (Security of Australia’s Transport Sector) Bill 2024 (‘the Bill’) into Parliament to amend provisions in the Aviation Transport Security Act 2004 (‘the Act’).
The Bill was introduced as part of the Government’s response to the Independent Review into Australia’s Aviation and Maritime Transport Security Settings, which highlighted the emergence of new threats to aviation security in the 20 years since the commencement of the Act. The proposed amendments to the Act in response to these findings are outlined below.
Cyber security reporting requirements
One of the key amendments is the introduction of reporting obligations for Aviation Industry Participants (AIPs) in the event of cyber security breaches. Operators of security controlled airports, aircraft operators of prescribed air services and their respective employees will be obliged to report cyber security incidents that have either “relevant” or “significant” impacts on aviation assets. The Bill defines “aviation assets” as assets that are used in connection with the operation of an AIP and are owned or operated by an AIP. Further, the Bill distinguishes “relevant” impacts, being those which have an effect on the availability, integrity, reliability or confidentiality of aviation assets, from “significant” impacts, being those which materially disrupt the availability of essential goods and services provided by aviation assets.
Whilst the explanatory memorandum provides guidance that spam emails are not considered relevant or significant impacts, there is little indication of what forms of cyber security incidents will be reportable. Notwithstanding this lack of guidance, if an AIP fails to report a cyber security incident, they will incur significant fines of up to $66,000.
New requirements for transport security programs commencing after the enactment of the Bill
The Bill also proposes to increase the scope of transport security programs (TSP) in order to safeguard against unlawful or operational interference with aviation. The existing definition of “unlawful interference with aviation” under the Act will be expanded to include cyber security incidents which have, or are likely to have, a relevant impact on an aviation asset or a significant impact on the availability of an aviation asset.
A new concept of “operational interference with aviation” will be introduced, which refers to actions or the occurrence of hazards that result in a relevant interference with AIPs or aviation assets. The explanatory memorandum provides that the addition of “operational interference with aviation” is designed to mitigate risks that do not arise from unlawful means, such as supply chain hazards or natural hazards, or risks which arise through negligence or accident. However, lawful advocacy, protest, dissent or industrial action will not constitute either unlawful or operational interference with aviation.
Finally, TSPs not issued by the Secretary will also be required to provide annual statements of compliance detailing whether the AIP has observed the requirements of the program over the preceding 12 months. AIPs which fail to provide annual statements of compliance will incur penalties of up to $66,000 and may have their programs cancelled by the Secretary.
Other amendments:
The Bill also includes the following amendments to the Act
Increased Powers for Aviation Security Inspectors: security inspectors will be empowered to test security systems, including by using an item, weapon, or vehicle to test its detection, or by operating or connecting to equipment, including electronic equipment, in order to monitor compliance with the Act; and
Creation of a Demerit Point System:
A demerit point scheme will be introduced with demerit points issued for non-compliance. Potential consequences associated with the demerit points system include the cancellation of transport security programs and the revocation of a person’s approval as a known consignor, designation as a regulated air cargo agent, or accreditation as an accredited air cargo agent.
Norton White will keep clients updated about developments regarding the commencement of these changes.
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