79Powers of aviation security inspectors—general

#### 79 Powers of aviation security inspectors—general General powers (1) An aviation security inspector may exercise the powers set out in subsection (2) for the following purposes: (a) determining whether a person is complying with this Act; (b) investigating a possible contravention of this Act; (c) identifying the existence, or extent, of: (i) a flaw in an aviation security system; or (ii) a vulnerability in an aviation security system. (2) For the purposes set out in subsection (1), an aviation security inspector may: (a) enter and inspect a security controlled airport; or (b) enter and inspect: (i) any area, building (other than a residence) or vehicle under the control of an aviation industry participant; or (ii) if an aviation industry participant operates from a residence or a part of a residence—the residence or the part of the residence from which the participant operates; or (c) inspect equipment in a place or vehicle mentioned in paragraph (a) or (b); or (d) observe the operating procedures of an aviation industry participant; or (e) discuss those procedures with an employee of the aviation industry participant or with another aviation industry participant; or (f) inspect, photograph or copy a document or record made or kept by an aviation industry participant; or (g) operate equipment at a place mentioned in paragraph (a) or (b) for the purposes of gaining access to a document or record made or kept by an aviation industry participant; or (h) test a security system for a place or vehicle mentioned in paragraph (a) or (b) in accordance with the requirements prescribed by the regulations for the purposes of this paragraph, including by: (i) using an item, test weapon or vehicle to test its detection; and (ii) operating, or connecting to, equipment (including electronic equipment) located in the place or vehicle or at any other place in Australia. Note: An aviation security inspector must ensure that the exercise of the power under paragraph (h) does not seriously endanger the health or safety of any person, or the inspector will not be immune from civil or criminal liability (see subsection (9)). (2A) However, a power under paragraph (2)(h) may not be exercised unless regulations prescribing requirements for conducting tests of security systems have been made for the purposes of that paragraph and are in force. (2B) For the purposes of paragraph (2)(h), it is immaterial whether the testing of a security system for a place or vehicle mentioned in paragraph (2)(a) or (b) is done: (a) in the place or vehicle; or (b) at any other place in Australia. When notice required for exercise of powers (3) An aviation security inspector may exercise a power mentioned in subsection (2): (a) if the power is exercised within the boundaries of a security controlled airport—at any time and without notice; or (aa) if the power is exercised outside the boundaries of a security controlled airport but is one to which subsection (3A) applies—at any time and without notice; or (b) otherwise—after giving the aviation industry participant concerned reasonable notice. (3A) This subsection applies to the following powers: (a) a power covered by subparagraph (2)(b)(i); (b) a power covered by paragraph (2)(c), to the extent that it relates to subparagraph (2)(b)(i); (c) a power covered by paragraph (2)(d) or (e); (d) a power covered by paragraph (2)(f), to the extent that the document or record is found in the exercise of a power covered by paragraph (a), (b) or (e) of this subsection; (e) a power covered by paragraph (2)(g), to the extent that it relates to subparagraph (2)(b)(i); (f) a power covered by subparagraph (2)(h), to the extent that it relates to subparagraph (2)(b)(i). Offence (5) A person commits an offence if: (a) the person engages in conduct; and (b) the conduct hinders or obstructs an aviation security inspector in the exercise of a power under this section (other than paragraph (2)(h)). Penalty: 50 penalty units. (6) Subsection (5) does not apply if the person has a reasonable excuse. > Note 1: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code). > Note 2: The offence of obstructing a Commonwealth public official may also apply (see section 149.1 of the Criminal Code). (7) Subsection (5) is an offence of strict liability. Restrictions on exercise of power and immunity (8) In exercising a power under this section, an aviation security inspector must not subject a person to greater indignity than is necessary and reasonable for the exercise of the power. (9) An aviation security inspector is not subject to any civil or criminal liability under the law of the Commonwealth, a State or a Territory in relation to the exercise of a power under paragraph (2)(h) to the extent that the exercise of the power: (a) is in good faith; and (b) does not seriously endanger the health or safety of any person; and (c) does not result in significant loss of, or serious damage to, property. > Note: A defendant bears an evidential burden in relation to the matter in this subsection for a criminal proceeding (see subsection 13.3(3) of the Criminal Code). (10) A person who wishes to rely on subsection (9) in relation to a civil proceeding bears an evidential burden in relation to that matter. (11) In this section: > evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.