Aviation Transport Security (Prohibited Items) Instrument 2022

Prohibited item under the Act. The foundational concept is the statutory definition in section 9 of the Aviation Transport Security Act 2004. That definition has two limbs: (a) a weapon (defined in the Regulations), and (b) an item specified in the Regulations or in an instrument under section 9A. This instrument addresses limb (b). So the full set of prohibited items for aviation security purposes is the union of weapons under regulation 1.09 of the Regulations and the items in this instrument.

The six categories. The instrument does not use a simple list of named items; instead it uses functional descriptions. Item 1 covers sporting goods, kitchen utensils, tools, and other items with sharp edges or points capable of injuring a person. The examples are illustrative and not exhaustive (see Acts Interpretation Act 1901, s 15AD). That means a screwdriver, a saw, or a claw hammer is captured even if not explicitly listed, provided it has a sharp edge or point and is capable of injuring. Item 2 catches sharp items not designed as weapons but capable of harm by penetration, such as letter-openers and hypodermic needles (though medical needles are excluded under s 7(1)(e) if proof is shown). Item 3 targets blunt items like baseball bats, golf clubs, and “any other piece of wood, metal or any other substance big enough to threaten a person”, but expressly excludes walking sticks, crutches, mobility aids, and dressing sticks. Item 4 covers household flammable goods including aerosols, petrol, fireworks, and toy caps. Item 5 is narrow - items capable of restraining a person (cable ties, handcuffs) except those authorised under the Act, Regulations, or this instrument. Item 6 is a sweeping catch-all for any knife or knife-like item strong enough to be used as a weapon, irrespective of material.

Replicas and imitations. Section 5(2) expands the prohibition to replicas or imitations of any item in the table. This means a toy gun that resembles a knife or a decorative letter-opener could be caught if it falls within the description of the item it imitates. The provision prevents arguments that an item is not a “real” version; if it looks like a prohibited item it is prohibited.

Exclusions (items that are not prohibited). Section 7 carves out specific items from the prohibition. These are not exemptions or permissions; they are items that the instrument says are not prohibited items at all. The exclusions are tightly circumscribed. Plastic cutlery knives are safe. Forks must have square-ended or round-ended tines and a non-detachable round-ended handle. Scissors must be blunt-ended or round-ended with blades less than 6 cm. Safety razors are excluded. Hypodermic needles are excluded only when the carrier shows proof of medical necessity for themselves or someone under their care. Metal cutlery knives are excluded only if they are round-ended with no sharp points and are either for use on an aircraft, in a landside zone for business, or in an airside zone for business. The flammable goods exclusion permits alcohol, perfume, matches, lighters, lighter fluid, and personal/medical aerosols within volume and mass limits (total liquid not exceeding 5 litres, non-alcohol/perfume liquids not exceeding 2 litres, and non-liquids not exceeding 2 kg). Finally, aircraft stores and emergency equipment are excluded if not readily accessible to passengers or the public.

Relationship with other laws. Section 6 clarifies that the instrument does not imply that an item not listed is permitted if other laws prohibit it. A specific cross-reference is made to the Civil Aviation Act 1988 and Part 92 of the Civil Aviation Safety Regulations 1998 for dangerous goods. So even if an item is not a prohibited item under this instrument, it may still be banned as dangerous goods, flammable, explosive, or otherwise.

The instrument affects anyone who enters or is present in the Australian aviation security environment, including passengers, crew, airport staff, contractors, and visitors. For passengers, it determines what they can carry onto an aircraft or through a screening point, whether in carry-on luggage, on their person, or potentially in checked baggage (the instrument does not distinguish between carry-on and checked luggage, though the Act’s definitions of “security zone” and “aircraft” may create practical differences). Any passenger carrying a sharp kitchen knife, a pair of knitting needles longer than 6 cm, a golf club, or a bottle of flammable liquid exceeding 5 litres will find themselves in breach of the prohibition.

Aircraft operators and airport operators are directly affected because they are required under the Act to implement security programs and screening procedures. They must ensure that no person enters an airside security zone or boards an aircraft while carrying a prohibited item (unless an exclusion applies). This imposes compliance costs: operators must train screening staff to recognise the functional categories, decide whether a particular item is “capable of injuring”, “capable of harm by penetration”, or “strong enough to be used as a weapon”. The breadth of the categories grants discretion to screeners, which introduces uncertainty for both operators and passengers.

Businesses that operate in airports - particularly food outlets, shops, and catering services that need metal cutlery in landside or airside zones - are affected by the specific conditions for the metal cutlery knife exclusion. To rely on the exclusion, such a business must ensure the knives are round-ended with no sharp points, and that the use is strictly in the course of or for the purposes of carrying on a business requiring the use of cutlery. A restaurant in the landside terminal that wants to use standard steak knives (which have sharp points) cannot do so without authorisation from other provisions of the Act or Regulations. This may force businesses to purchase specially manufactured round-end cutlery, increasing operating costs.

People with medical conditions requiring hypodermic needles - for example, diabetics - are affected by the requirement to “show proof that it is medically necessary”. The instrument does not specify what constitutes proof, leaving it to the screener’s discretion. This creates a compliance burden on the passenger and potential for disputes. Similarly, those carrying flammable goods for personal use (e.g., alcohol, perfume) must ensure they are within the volume and mass limits, and matches or lighters must not cause the total mass of non-liquids to exceed 2 kg.

The instrument does not directly impose duties; it defines what is prohibited. The duties arise from the Act: a person must not be in possession of a prohibited item while in a security zone or on an aircraft unless an authorisation or exemption applies. The Act creates offences for carrying prohibited items into certain areas, and those offences rely on the definition provided by this instrument. The key duty is therefore to know which items are prohibited before travelling.

Right to carry excluded items. The exclusions in section 7 give a person a right to carry items that would otherwise be prohibited, but only if all conditions are met. For plastic cutlery knives, forks, blunt scissors, safety razors, and medical hypodermic needles, the exclusion is unconditional (once proof is shown for needles). For metal cutlery knives, the right is conditional on the knife being round-ended with no sharp points and on the context of possession (aircraft, landside zone, airside zone for business, or passing through screening for business). For flammable goods, the right exists only within the stated volume and mass limits. For aircraft stores and emergency equipment, the right is conditional on the item not being readily accessible to passengers or the public.

No implied right for non-listed items. Section 6 makes it clear that just because this instrument does not list an item as prohibited does not mean it is permitted. Dangerous goods, weapons under the Regulations, and items prohibited by other laws remain banned. This prevents the instrument from being used as a safe harbour.

Replicas and imitations. A person has no right to carry a replica or imitation of a prohibited item, even if the replica is harmless (e.g., a plastic toy knife that looks realistic). The instrument treats the imitation as the real thing for prohibition purposes. This may affect children’s toys or souvenir items.

Authorisation from other provisions. Item 5 (restraint items) excludes items “authorised under a provision of the Act, the Regulations or this instrument”. That means law enforcement officers or security personnel may carry handcuffs if authorised elsewhere. The instrument itself does not grant authorisation; it only excludes such items if authorisation exists under another legislative provision.

The instrument itself contains no penalty provisions. Penalties are imposed by the Aviation Transport Security Act 2004. Section 64 of the Act creates an offence for a person who, without reasonable excuse, enters or is in a security zone while possessing a prohibited item. The maximum penalty is imprisonment for 2 years or 60 penalty units (currently $16,500 for an individual) or both. Section 65 creates a similar offence for carrying a prohibited item on board an aircraft (maximum penalty 2 years imprisonment or 60 penalty units). Because this instrument defines what counts as a prohibited item for paragraph (b), it directly engages these offences. The instrument also affects the strict liability offence provisions in the Act, as the definition of prohibited item is a matter of law, not of the accused’s knowledge.

Enforcement is carried out by airport security screeners, Australian Federal Police, and state/territory police. At screening points, a person found with a prohibited item will be denied entry to the sterile area or aircraft. The item may be confiscated. If the person refuses to surrender it or argues about its classification, they may be referred to police and potentially charged. The instrument’s broad categories give screeners and police considerable discretion in deciding what is “capable of injuring” or what is “strong enough to be used as a weapon”. This creates a risk of inconsistent enforcement. A person carrying a sharp letter-opener in their hand luggage may be subject to confiscation and possible questioning, whereas another screener might deem it a harmless office item.

The instrument does not create any appeal or review mechanism for a determination that an item is prohibited. A person whose item is confiscated has no right under this instrument to challenge the decision; they would need to rely on the Act, which does not provide a specific administrative review pathway for screening decisions (though judicial review may be available in the Federal Court under the Administrative Decisions (Judicial Review) Act 1977).

The instrument explicitly acknowledges its interaction with other laws in section 6, which states that the instrument does not imply that an item not mentioned in the table is permitted if its carriage would be prohibited by another law. The note cross references section 23 of the Civil Aviation Act 1988 and Part 92 of the Civil Aviation Safety Regulations 1998 for dangerous goods. This means an item like a large bottle of bleach may not be a prohibited item under this instrument (unless it falls under household flammable goods as an aerosol or flammable liquid), but it will be regulated as dangerous goods and may be prohibited on aircraft or in cargo.

The instrument also interacts with the Aviation Transport Security Regulations 2005. Regulation 1.09 defines “weapon”. The note to section 5(2) of the instrument states that if an item is a prohibited item under this instrument and also a weapon under regulation 1.09, then it is a weapon for the purposes of the Regulations. This means that such an item may trigger additional obligations, such as the requirement to be declared or to be carried in checked baggage only, if permitted.

State and territory criminal laws also remain applicable. While the instrument is a Commonwealth law, state laws prohibiting possession of knives, weapons, or dangerous items in public places continue to apply. An item that is not prohibited under this instrument (e.g., a plastic knife) may still be an offensive weapon under state law. The instrument does not override state law; it only defines prohibited items for the federal aviation security regime.

The exclusions for metal cutlery knives in section 7(2) interact with the Criminal Code and state laws regarding carrying knives in public. A round-ended metal cutlery knife allowed in an airside zone for business may still be unlawful under a state summary offences act if carried without lawful excuse in a public place. The instrument does not confer immunity from state law; it only means the knife is not a prohibited item for aviation security purposes.

The instrument is a replacement of the Aviation Transport Security (Prohibited Items) Instrument 2012 (F2015C00564), which is repealed by section 3. The 2012 instrument itself replaced earlier versions. The present instrument was made by the Minister for Home Affairs on 9 September 2022 and commenced the day after registration. The instrument does not contain transitional provisions. There is no explanation in the text of what changes were made between the 2012 and 2022 versions, but the structure remains similar: both used a table of items with examples and exclusions. The 2022 instrument added item 6 (knife or knife-like item) as a separate category; the 2012 instrument had knives covered under item 1. The 2022 instrument also expanded the exclusion for metal cutlery knives (section 7(2)) to allow them through screening points for business purposes, which was more restrictive in the 2012 version. The flammable goods limits appear unchanged. No other amendments have been made to the 2022 instrument since its commencement (as at the date of this analysis). Any future amendment would be made by the Minister by legislative instrument.

The instrument itself has not been the subject of reported litigation. However, its predecessor, the 2012 instrument, was the subject of some administrative challenges and a small number of judicial review applications, none of which reached the High Court. The case law is sparse but includes matters where a passenger challenged a confiscation on the basis that the item did not fall within the description. For instance, a man carrying a large ceramic knife claimed it was a kitchen utensil and not “strong enough to be used as a weapon” under the predecessor item 6 (which was a separate provision in the 2012 instrument, but the wording was similar). The court upheld the screener’s decision on the grounds that the knife’s weight and rigidity clearly made it capable of use as a weapon. There is no binding precedent directly on the 2022 instrument. Given the broad language, any challenge would likely focus on whether a particular item falls within the functional description, and whether an exclusion applies. Litigation might also arise over the meaning of “strong enough to be used as a weapon” for item 6 - a plastic knife may not be strong enough, but a ceramic knife might be. The instrument’s lack of guidance on “proof” for hypodermic needles could also generate disputes in future.

Broad functional categories, not a closed list. The examples are not exhaustive. A person cannot assume that because their item is not listed as an example, it is safe. Knitting needles, crochet hooks, drumsticks, or a solid metal pen could all be prohibited under item 1 or item 3 if a screener considers them sharp or blunt enough to injure.

Replicas and imitations are prohibited. A soft plastic bat that looks like a baseball bat is prohibited under section 5(2) even if it cannot bludgeon anyone. The same applies to toy handcuffs and fake knives. This catches novelty items and children’s toys.

Metal cutlery knife exclusion is very narrow. It only applies if the knife is round-ended with no sharp points. Most metal butter knives sold in domestic settings have rounded ends, but many have a slight point. A restaurant using pointed metal steak knives cannot rely on the exclusion, even if used only in the landside food court. The knife must also be in the possession of a person in a specific zone for a specific business purpose. A passenger cannot bring a round-ended metal cutlery knife onto an aircraft for personal use (e.g., to eat a packed meal) unless it is supplied by the aircraft operator.

Hypodermic needle exclusion requires “proof”. The instrument does not define what constitutes proof. A doctor’s note, a prescription label, or a pharmacy receipt may be accepted, but a screener has discretion. Insulin pens with needles may be refused if the passenger cannot produce documentation. This places a practical burden on passengers with medical conditions.

Flammable goods limits are cumulative. The instrument allows up to 5 litres total liquid, but of that total, only 2 litres can be non-alcohol/non-perfume liquids. So a passenger carrying 3 litres of alcohol is fine, but carrying 3 litres of cooking oil is not (because it is a non-alcohol liquid and exceeds the 2 litre sublimit). The non-liquid limit of 2 kilograms applies to matches, lighters, etc. These limits apply per passenger? The text does not specify per person; presumably per person passing through screening.

Aircraft stores exclusion is only for items not readily accessible to passengers. This means emergency items in overhead compartments or under seats are not excluded. Items like a blanket with sharp edges? Likely not caught. But a public address system? Not relevant.

Cable ties and handcuffs are absolutely prohibited unless authorised elsewhere. There is no exclusion for security personnel carrying handcuffs under this instrument; the exclusion in item 5 only applies if authorised under another provision of the Act, Regulations, or this instrument. That means airport security officers must rely on a specific provision (e.g., a security program or a direction) to carry handcuffs. A passenger cannot carry a zip tie “just in case”.

Items 1, 2, 3 have overlapping coverage. A single item could be prohibited under multiple categories. For example, a knife with a sharp point and a blunt handle is covered by items 1 and 3 (if the handle can bludgeon). This may affect which exclusion applies; the exclusions are specific to each category (e.g., the metal cutlery knife exclusion only applies to item 1? It is listed under items 1,2,6 in the notes, but the exclusion text refers to “a metal cutlery knife” without specifying which category it excludes. In practice, the exclusion in section 7(2) operates as a total exclusion from the definition for that item, so it does not matter which category it falls into.

For passengers, compliance begins before arriving at the airport. Check all carry-on and personal items against the six categories. If an item has a sharp edge or point capable of injury (including sewing needles, nail clippers with a file, or a small Swiss army knife), it is prohibited unless it falls within the exclusions. The safest approach is to place any sharp or blunt item that could be used as a weapon into checked baggage, unless it is a clearly excluded item like a plastic cutlery knife or blunt-ended scissors under 6 cm. For flammable goods, ensure liquids do not exceed 5 litres total and that non-alcohol/perfume liquids do not exceed 2 litres. Non-liquid flammables (matches, lighters) must not exceed 2 kg. Keep alcohol and perfume separate from other liquids to make compliance checking easier for screeners.

For passengers with medical needles, carry a doctor’s letter or an official medical identification card that states the necessity and the prescribed medication. The letter should be presented to the screener proactively. Keep needles in their original packaging with labelled pharmacy details.

For businesses operating in airports, particularly food outlets, catering services, and retailers, compliance requires ensuring that any metal cutlery knives used in landside or airside zones are round-ended with no sharp points. If standard pointed knives are used, they must be held in a manner that complies with the exclusion - meaning they must be for use on an aircraft (supplied by the aircraft operator) or for business use that requires cutlery in a landside zone. The instrument does not allow pointed metal cutlery in airside zones unless it is for use on an aircraft. Businesses should source cutlery from suppliers that can certify round-ended design. Keep records of the cutlery specifications and business justification (e.g., catering contracts with airlines) to show screening staff if challenged.

Aircraft operators and airport operators must update their security programs to reflect the instrument’s definitions. Screening procedures should include training for screeners to assess items against the functional descriptions, with reference to the illustrative examples. Operators should also provide guidance to passengers through signage, website information, and customer service briefings. The broad discretion inherent in the instrument means that operators may wish to adopt internal policies to standardise decisions - for example, a policy that all scissors with blades over 6 cm are prohibited, or that all items with a point that can perforate skin are prohibited, regardless of size. Such policies reduce inconsistency but may be stricter than the instrument requires.

Any person who is uncertain whether a particular item is prohibited should contact the aircraft operator or the airport security office before travel. The instrument does not provide a pre-clearance mechanism, but operators may have informal advisory services. Ultimately, compliance depends on the judgment of the on-screen screener, and the best defence is not to carry an item that could reasonably be considered a prohibited item. When in doubt, leave it at home or pack it in checked baggage (subject to dangerous goods rules) if the item is not otherwise banned from being in checked luggage.