ASIC Card rejection – then discretionary application.
All pilots entering a so called ‘security controlled airport’ are required to carry and display on themselves, an ASIC – Aviation Security Identification Card - colloquially referred to as an ASIC Card.
Recently I had a case involving the time period for which an ASIC was issued pursuant to a discretionary issue of that card. People might be interested to better understand the possibility of the ASIC issuing notwithstanding a first instance rejection.
The issuing of an ASIC is a Commonwealth jurisdiction. The Aviation Transport Security Act 2004 is the relevant legislation. It is said to have the purpose of establishing a regulatory framework to safeguard against unlawful interference with aviation. Under this Act the Aviation Transport Safety Regulations 2005 were issued (I refer to these as Regs). These Regulations deal with ASICs.
If your application for an ASIC is routine you will be issued with a two-year card. If born overseas you now need your birth certificate from that country and you need to prove your citizenship (notwithstanding your holding of an Australian passport). It also now doesn’t matter that you have held an ASIC since they first issued. Assuming all is in order, you will receive the industry standard two-year card.
After submitting your application for the ASIC to your issuing body, various checks are performed on your suitability to hold the ASIC. It is a detailed checking system carried out by Commonwealth agencies who might check what landscape you have been moving in and where you are today. These checks are regulated under the Auscheck Act 2007 and the Regulations thereunder, currently the Auscheck Regulations 2017. Importantly, if you think you may have an issue, it is best to say so up front on your application. It is easier to deal with a discretionary issue of an ASIC when you have a record which at first glance might not exclude you, but you declare it, rather than taking a punt the agencies will not find your issue. Honesty is paramount in the issuing of an ASIC.
An Adverse Criminal Record is defined under the Regs (6.01) –
A person has an adverse criminal record if the person:
(a) has been convicted of an aviation-security-relevant offence and sentenced to imprisonment; or
(b) in the case of a person who has been convicted twice or more of aviation-security-relevant offences, but no sentence of imprisonment was imposed--received 1 of those convictions within the 12 months ending on the date when the relevant background check was conducted.
The powers that be are interested to see if you have any “aviation security relevant offence” and have been sentenced to imprisonment (this includes suspended sentences), as defined in Reg 6.01. These are offences (from anywhere in the world) which are aviation security relevant, namely:
• Dishonesty
• Violence or a threat of violence
• Intentional damage to property or a threat to do so
• Narcotics or drugs
• Offences against the Government – treachery, sabotage, enticing mutiny, assisting prisoners of war to escape, unlawful drilling, interfering with political liberty. These are
offences said to be defined in Part II of the Commonwealth Crimes Act 1914 However, at the time of writing this, there is no Part 11 in that Act.
• Hijacking and other aircraft specific offences (Part II of the Crimes (Aviation)Act 1991
• Terrorism (Part 5.3 of the Criminal Code (Comm).
• Offences involving explosives.
Spent convictions need not be revealed unless they relate to termism. A conviction is spent if it is at least ten years since the conviction, except if sentenced to more than 30 months jail, in which case it is never spent (s.85ZM Crimes Act 1914). Therefore, there is no need to reveal a conviction if it is spent. If you have an ‘Aviation security relevant offence’ you can expect some feedback.
There are situations where an applicant for an ASIC or on a renewal is technically caught within the definition of “adverse criminal record,” but you might still be able to obtain and ASIC. There exists a provision whereby one can apply for a discretionary issue of an ASIC. This is done by applying to the Secretary of the Department of Home Affairs pursuant to Reg 6.29. This provision permits the issuing body or the applicant to apply for an ASIC if otherwise excluded because of an “adverse criminal record.”
The Secretary has authority to issue you with an ASIC after considering these things;
• the nature of the offence,
• the term of imprisonment,
• the person’s conduct since being released on a bond or from jail, including employment history,
• and anything else, the Secretary knows about,
The application for a Reg 6.29 ASIC must be made within 28 days of receiving news that you are an unfavourable applicant.
The Secretary may impose conditions on your Reg 6.29 ASIC. I maintain that these conditions have to be related to maintaining validity of the ASIC and do not include issuing a card for a shorter period than the industry standard two years (but my opinion is not yet tested). A condition touching on maintaining validity might be, obtaining a police record check every 6 months instead of the applicant themselves reporting (or not reporting as might be alleged), a relevant offence during the currency of the ASIC.
If an application is made to the Secretary and it is not successful or an unworkable condition is imposed, the applicant can challenge that decision in the AAT.
C McKeown
July 2021