Movement of persons in custody

The Aviation Transport Security Regulations 2005 (ATSR) establishes a regulatory framework for the transport of persons in custody by air.

A person is a person in custody (a PIC) for the purpose of this framework if he or she is in custody under an Act, including a law of a State or Territory, and needs to travel by air. Different requirements apply to a person who is in custody under the Migration Act 1958 (Cth) (Migration Act) and those who are in custody other than under the Migration Act.

A custodial agency is the government agency that has responsibility for the person in custody. The custodial agency for a person in custody under the Migration Act is the Department of Immigration and Border Protection. For a person in custody other than under the Migration Act, the custodial agency can be any agency listed under regulation 4.83(1) of the ATSR.

Transport security program (TSP) requirements

All aircraft operators who intend to carry PICs must include measures and procedures to ensure on board security when carrying PICs in their TSP.

More detailed information on TSP requirements can be found in the aircraft operator TSP template.

Escort arrangements

If a PIC needs to travel on a prescribed air service, such as a chartered jet aircraft or an international regular public transport (RPT) service, the custodial agency responsible for the person must notify the operator of the proposed air service (the aircraft operator) and provide them with information about the person travelling. This information must be provided using the Department's approved form (provided below). The custodial agency must also notify operators of security-controlled airports of any ‘dangerous’ PICs moving through their airport.

Aircraft operators are entitled to request additional information from the custodial agency and have the right to refuse to carry a PIC, even where the custodial agency complies with all the necessary requirements.

Whether an aircraft operator will carry a PIC, and under what escort arrangements, is to be decided between the aircraft operator and the custodial agency, as they are best placed to identify and manage any associated security risk. The Department does not play any role in these decisions.

Supervised departures (immigration purposes only)

A supervised departure involves the unescorted departure from Australia of non-citizens who are cooperating in the departure process and any associated domestic travel for the purpose of that departure.

The person departing must be in immigration detention, and under the supervision of an officer under the Migration Act, until the point of departure from Australia.

The Department of Immigration and Border Protection must seek permission from the aircraft operator, using the approved form, no less than six hours before the intended start of the flight (unless a shorter time period is agreed with the operator).

Flight involving the movement of non-dangerous PICs

Non-dangerous PICs require an escort unless otherwise agreed between the aircraft operator and the custodial agency. The number of escorts required is a matter for agreement between the aircraft operator and the custodial agency.

Flight involving the movement of a dangerous PIC

If a dangerous PIC is to be carried on a flight, an escort is required at all times when the person is on the aircraft or at a security controlled airport. There must be at least two escorts for each dangerous PIC, and at least one of the escorts must be of the same sex as the PIC.

The custodial agency is responsible for providing the escorts, unless the custodial agency and the aircraft operator agree that the aircraft operator will provide the escorts. The escorts must be law enforcement officers or persons of a kind agreed to between the aircraft operator and the custodial agency, but they cannot be crew members of the aircraft on which the PIC is travelling.

Non-standard movements

A flight involves a ‘non-standard movement’ if:

  • more than 2 escorted PICs are travelling on the flight (unless they are a family unit);
  • more than one escorted dangerous PIC is travelling on the flight; or
  • an individual escort is responsible for both a dangerous PIC and at least one other PIC.

If a flight involves a non-standard movement, the PICs cannot be carried unless the aircraft operator and the custodial agency (or agencies) have agreed on the escort arrangements for the PICs. There is no set number of escorts required.

Definition of a ‘dangerous’ person

A person is considered dangerous for the purpose of the ATSR if they have been convicted of an offence or charged with an offence and the charge is still to be resolved. This means that if someone has been charged with an offence and later acquitted, they do not fall within the definition of ‘dangerous’.

The full definition of a ‘dangerous’ person is spelt out in the ATSR:

  1. A person being moved under the Migration Act is dangerous if any of the three requirements under reg 4.75(1) are satisfied.
  2. A person being moved other than under the Migration Act is dangerous if any of the three requirements under reg 4.83(2) are satisfied.

Notice of proposed movement of one or more persons in custody—use of the approved form

All custodial agencies must use the form approved by the Department PDF: 1094 KB ReadSpeaker to notify aircraft and airport operators of the proposed movement of PICs where the PIC is being escorted or is undertaking a supervised departure.

Additionally, the operator of a prescribed air service on which a PIC is to be carried must notify the aircraft's pilot in command of the following before the aircraft's departure:

  1. that a person in custody is to be carried on the aircraft
  2. the conditions under which the person is to be carried.

One form may be used for multiple PICs.

Type of movementPart/s of the approved form that must be completedProvided toWhen
Reg 4.76
Supervised departures (under Migration Act)
Parts A—E, H and J Aircraft operator No later than 6 hours before the intended start of the flight (unless agreed with the aircraft operator to be later)
Reg 4.77
Escorted domestic travel of non-dangerous PIC (under Migration Act)
Parts A—E, H and J Aircraft operator No later than 24 hours before the intended start of the flight (unless agreed with the aircraft operator to be later)
Reg 4.78
Escorted international travel of non-dangerous PIC (under Migration Act)
Parts A—E, H and J Aircraft operator No later than 48 hours before the intended start of the flight (unless agreed with the aircraft operator to be later)
Reg 4.79
Escorted travel of dangerous PICs (under Migration Act)
Parts A—E, H and J Aircraft operator

Copy of the form with the aircraft operator's signature must also be given to the operator of any security controlled airport through which the PIC will be moving
No later than 48 hours before the intended start of the flight (unless agreed with the aircraft operator to be later)

No later than 12 hours before the PIC's intended arrival at the airport (unless agreed with the airport operator to be later)
Reg 4.84
Escorted travel of a PIC (not under the Migration Act)
Parts A—E, H and J Aircraft operator

If the PIC is dangerous, a copy of the form with the aircraft operator's signature must also be given to the operator of any security controlled airport through which the PIC will be moving
No later than 48 hours before the intended start of the flight (unless agreed with the aircraft operator to be later)

No later than 12 hours before the PIC's intended arrival at the airport (unless agreed with the airport operator to be later)