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.