BILLS DIGEST NO. 48, 2018–19              29 November 2018

Crimes Legislation Amendment (Police Powers at Airports) Bill 2018

Cat Barker
Foreign Affairs, Defence and Security Section

Monica Biddington
Law and Bills Digest Section

Date introduced: 12 September 2018

House:  House of Representatives

Portfolio: Home Affairs

Commencement: On proclamation or six months after Royal Assent, whichever occurs first.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at November 2018.

The Bills Digest at a glance

The Crimes Legislation Amendment (Police Powers at Airports) Bill 2018 (the Bill) will amend the Crimes Act 1914 to:

•         expand existing police powers to require identity information from a person at a major airport

•         introduce new move-on powers for police under which they may give a written direction to a person at a major airport that the person not take a flight, or leave the airport premises as soon as possible

•         introduce new powers for police to give a direction to a person at a major airport that the person stop or do anything else considered necessary to facilitate the exercise of the identity information request or move-on powers

•         allow the Minister to determine by legislative instrument that certain airports are major airports for the purposes of the exercise of powers outlined above.

While the existing identity-checking power may only be exercised by a constable, the expanded and new powers in the Bill will be available to constables and Australian Federal Police (AFP) protective service officers (PSOs). Contravening a direction will be an offence.

Background

The Bill follows an airport security review that was ordered in August 2017, shortly after the disruption in July 2017 of an alleged plot to bring down a plane leaving from Sydney airport. The report of the review has not been made public.

Thresholds for exercise of powers

Contrary to reporting at the time the expanded identity-checking power was announced, it will not permit random identity checks. Thresholds will apply to each of the proposed powers, and a person not carrying identification can instead provide personal information. However, one of the circumstances in which the expanded identity-checking powers and proposed move-on powers may be exercised is where an officer considers on reasonable grounds that it is necessary to ‘safeguard aviation security’. Aviation security is defined to include the ‘good order and safe operation’ of a major airport and its premises and flights to and from a major airport. The inclusion of ‘good order’ in this definition takes the circumstances in which these powers may be exercised beyond those where a potential threat to safety or security has been identified. Parliamentarians may wish to consider whether the definition of aviation security could be more clearly directed to the circumstances in which the Government intends these powers to be available. Alternatively, consideration could be given to the inclusion of limits on the proposed move-on powers to address concerns that they could be used to disrupt a peaceful protest.

Accountability and oversight

Move-on directions must be given in writing. A direction covering a period of more than 12 hours must be given or authorised by a senior police officer. No more than two move-on directions may be given within a seven day period, and if a second direction is given, it must be given or authorised by a senior police officer, and must not end more than seven days after the first direction was given.

Enhanced and additional safeguards that could be considered include requiring all move-on directions to be authorised by a senior police officer, clarifying on the face of the legislation that judicial review of move-on directions is available, and providing for records of the use of move-on powers to be inspected and reported on by the Commonwealth Ombudsman.

Purpose of the Bill

The purpose of the Crimes Legislation Amendment (Police Powers at Airports) Bill 2018 (the Bill) is to amend the Crimes Act to:

•       expand existing police powers to require identity information from a person at a major airport

•       introduce new move-on powers for police under which they may give a written direction to a person at a major airport that the person not take a flight, or leave the airport premises as soon as possible

•       introduce new powers for police to give a direction to a person at a major airport that the person stop or do anything else considered necessary to facilitate the exercise of the identity information request or move-on powers

•       allow the Minister to determine by legislative instrument that certain airports are major airports for the purposes of the exercise of powers outlined above

•       replace the existing offence of failing to comply with an identification request with an offence of contravening an identification or move-on direction, or a direction to stop or do anything else considered necessary to facilitate the exercise of the identity information request or move-on powers.

While the existing identity-checking power may only be exercised by a constable, the expanded and new powers in the Bill will be available to constables and AFP PSOs.[1] The Bill will also amend the Australian Federal Police Act 1979 to enable PSOs to exercise powers in relation to the new offence of contravening a direction.

Background

The 2018–19 Budget included a $293.6 million package designed to improve aviation, air cargo and international mail security to protect Australia against ‘persistent and evolving terrorist, national security and criminal threats’.[2] Included as part of the Budget package was $121.9 million to ‘increase the presence and specialist capabilities of the Australian Federal Police and the Australian Border Force at nine major domestic and international airports’ (including an additional 140 AFP Counter Terrorist First Response officers and 50 officers to provide tactical intelligence and other support) and $50.1 million for security enhancements at 64 regional airports.[3] The Government stated that to complement this package, it would introduce legislation to provide the AFP with ‘broader powers to conduct identity checks at airports and to order a person to “move on” from airport premises where needed’.[4]

The funding package and the legislative measures in the Bill follow on from an airport security review that was ordered shortly after the disruption in July 2017 of an alleged plot to bring down a plane leaving from Sydney airport. Mahmoud and Khaled Khayat were arrested on 29 July 2017 and charged with preparing for or planning a terrorist act, specifically planning to detonate an improvised explosive device on an Etihad flight.[5] Both men pleaded not guilty and are due to face trial in March 2019.[6]

Additional security measures, including additional screening of luggage, were put in place at Sydney airport on 27 July 2017, and extended to all major Australian airports shortly afterwards.[7]

On 8 August 2017, the Government directed the Inspector of Transport Security to conduct a review of security at Australia’s security regulated airports. The Inspector sought submissions from airports, major airlines, aviation peak bodies and several Government departments, and reported to the Government in late November 2017.[8] The report has not been made public, but the Department of Home Affairs (DoHA) states that the review informed the measures in the 2018–19 Budget package.[9] While the review was still underway, some media outlets reported that plans to give police greater powers to require identification documents and question people at airports, and to order them to leave, or alternatively to require photo identification for domestic flights, were under consideration by the Government.[10]

After announcing the intent to broaden police powers at airports earlier the same month, on 15 May 2018 the Minister for Home Affairs stated:

There's certain conditions that need to be met at the moment before police can ask for that identification. Which is an absurdity and it’s an issue that the police have raised with us. So we're addressing an anomaly and a deficiency in the law at the moment. There are two elements in it. One is in relation to requests for identification, if somebody is within the airport precinct, and the ability to move somebody on from an airport precinct, if it's believed they're involved in certain criminal activities. So that’s essentially the two elements of it.[11]

Based on that description and an interview that the Prime Minister gave in which he stated that police would conduct random identity checks,[12] the proposal was interpreted to mean that police would be able to require anyone in an airport to provide proof of identity at any time, and was criticised by some on that basis.[13] However, that will not be the case under the changes included in the Bill. There will still be a threshold that must be met before police can request evidence of a person’s identity, but it will be broadened to include circumstances where an officer considers on reasonable grounds that it is necessary to safeguard ‘aviation security’ (a term defined in the Bill), in addition to those where an officer reasonably suspects the commission of an offence. Thresholds will also apply to the proposed move-on powers. While the appropriateness of the proposed thresholds and related definitions may be a matter for debate, the Bill will not permit the exercise of powers without cause. As is currently the case, a person not carrying any form of identification will be able to provide personal details instead.

Committee consideration

Parliamentary Joint Committee on Intelligence and Security

The Bill has been referred to the Parliamentary Joint Committee on Intelligence and Security for inquiry and report. Details of the inquiry are at the inquiry homepage. Information provided in submissions to the inquiry is included in the ‘Position of major interest groups’ and ‘Key issues and provisions’ sections of this Digest.

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) was concerned about the availability of the expanded and new powers in the Bill for the purpose of safeguarding aviation security, given the broad definition of aviation security proposed in the Bill.[14] The Committee noted that the proposed definition includes the ‘good order’ as well as the safe operation of a major airport and its premises and flights to and from the airport, and that there was nothing on the face of the Bill to limit the powers to situations where criminal activity or a threat to safety had been identified:

It is not clear to the committee as to the necessity for such broad powers to safeguard the 'good order' of an airport or flight, particularly as it would appear such powers may be used to direct persons to produce identity documents, vacate airports and related premises, and abstain from taking flights, in circumstances where there is no suspicion of criminal activity and no threat to safety; for example, to disrupt or to quell a peaceful protest. The committee is therefore concerned that allowing constables and PSOs to exercise powers to protect 'aviation security' may unduly trespass on individuals' rights to privacy, free speech and free movement, particularly where the powers are exercised to promote 'good order'.[15]

The Committee sought the Minister’s advice on the circumstances in which it is anticipated the powers would be exercised to ensure ‘good order’ and the need for such powers, and on whether those circumstances would extend beyond ensuring safety and preventing or disrupting criminal activity to include disrupting or quelling a peaceful protest.[16]

The Minister for Home Affairs provided that information, and stated:

Police will not be able to use the proposed powers to disrupt or quell a peaceful protest, as a peaceful protest would not pose a threat to aviation security, including the good order and safe operation of the airport, or involve the commission of a serious criminal offence.[17]

The Committee welcomed the Minister’s advice but considered that this should be made clear on the face of the provisions, and recommended that the Bill be amended accordingly.[18]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights (PJCHR) reported on the Bill in October 2018. The Committee was concerned about the breadth of the provisions, including the definition of aviation security and the power to direct a person ‘to do anything else’ considered necessary to facilitate the exercise of the identity-checking or move-on powers.[19]

In relation to the right to privacy, the Committee sought the Minister’s advice on:

•       whether the identity-checking powers are proportionate to the stated objective of the Bill and

•       whether the power to direct a person ‘to do anything else’ considered on reasonable grounds to be necessary to facilitate the exercise of the identity-checking or move-on powers is rationally connected to achieving, and proportionate to, the stated objective of the Bill.[20]

In relation to the right to freedom of movement, the Committee sought the Minister’s advice on:

•       whether there is ‘reasoning or evidence that establishes that the stated objective addresses a pressing or substantial concern or whether the proposed changes are otherwise aimed at achieving a legitimate objective’ and

•       whether the limitation on the right to freedom of movement is proportionate, including whether the move-on and ancillary directions powers are sufficiently circumscribed and accompanied by adequate safeguards.[21]

The Committee noted that the Statement of Compatibility did not address whether the power to direct a person to stop or do anything else considered on reasonable grounds to be necessary to facilitate the exercise of the identity-checking or move-on powers may engage and limit the right to liberty. It sought the Minister’s advice on whether the power is compatible with that right.[22]

In relation to the right to equality and non-discrimination, the Committee asked the Minister for:

•       advice on whether the proposed powers are sufficiently circumscribed and accompanied by adequate safeguards to ensure that they are exercised in a non-discriminatory manner and

•       a copy of the AFP Code of Conduct, additional information on Behaviour Assessment and Security Questioning, and ‘any other relevant information as to the professional standards and training that applies to AFP members and protective services officers to ensure that the powers in the bill will be exercised in a non-discriminatory manner’.[23]

The Committee noted that the Statement of Compatibility did not address whether the measures in the Bill may engage and limit the rights to freedom of expression and freedom of assembly. It considered that the Bill may do so, due to the broad definition of aviation security and the inclusion in that definition of the ‘good order’ of major airports and flights to and from those airports. It sought the Minister’s advice on the compatibility of the Bill with those rights, including:

·         whether there is reasoning or evidence that establishes that the stated objective addresses a pressing or substantial concern or whether the proposed changes are otherwise aimed at achieving a legitimate objective;

·         whether there is a rational connection between the limitation and that objective; and

·         whether the limitation is a reasonable and proportionate measure for the achievement of that objective.[24]

Following consideration of the Minister’s response, the PJCHR was of the view that:

•       ‘there is a significant risk that the powers may operate in a way that may not be proportionate’ with respect to the limitations on the rights to privacy and freedom of movement. This was due to ‘the risk that “good order” could capture a broader range of conduct than is strictly necessary to achieve the legitimate objectives of the bill’[25]

•       the powers appear to be compatible with the right to liberty[26]

•       the powers are likely to be compatible with the right to equality and non-discrimination, but that their use should be monitored to ensure that this was the case in practice and[27]

•       the powers ‘may operate in a way that may not be a proportionate limitation on the right to freedom of expression and assembly’ [emphasis added] (again, due to the breadth of the term ‘good order’).[28]

Policy position of non-government parties/independents

The Australian Labor Party (ALP) has reserved its position on the Bill. When the proposal was first announced, the Shadow Attorney-General, Mark Dreyfus, stated that the ALP wanted to see the Bill before determining a position, but that if it was a change that police and security agencies considered necessary, it was something the party would ‘seriously consider’.[29] The Leader of the Opposition, Bill Shorten, stated that the ALP would approach the proposal with a ‘constructive mindset’.[30] When the Bill was introduced, Mr Dreyfus indicated that the ALP would reach a position on the Bill once it had been examined by the PJCIS.[31]

The Australian Greens oppose the Bill. When the Government first announced it would be giving the AFP broader powers to request proof of identity at airports, justice spokesperson, Senator Nick McKim, called for the proposal to be resisted, and stated: ‘Demanding people produce documents on the spot is a hallmark of police states’.[32] This position was restated when the Bill was introduced.[33]

Senator Rex Patrick of the Centre Alliance considers the measures in the Bill to be problematic, pointing to the possibility of their use being focused on particular ethnic and religious groups and a lack of redress available to people prevented from catching a flight, as well as the incremental impact of successive tranches of national security legislation.[34]

Senator Derryn Hinch supported the proposal when it was announced, stating that the powers were ‘regrettable but now necessary. As long as it doesn’t degenerate into racial profiling as we’ve seen in the US’.[35]

In questioning at Senate Estimates hearings, Senator Leyonhjelm appeared to suggest that it might be preferable to require people taking domestic flights to provide identification at check-in instead of expanding police powers.[36]

At the time of publication of this Bills Digest, there was no public indication of the policy position of any other non-government parties and independents on the Bill.

Position of major interest groups

Civil society

Like the Scrutiny of Bills Committee and the PJCHR, the Law Council of Australia (LCA) and Australian Lawyers for Human Rights (ALHR) were concerned about the inclusion of ‘good order’ in the definition of aviation security and recommended that the definition be amended to exclude that term.[37] The LCA considered that where the proposed powers are exercised to ensure good order, they ‘may unnecessarily and disproportionately interfere with an individual’s right to privacy, free speech and free movement’.[38]

ALHR opposed the move-on powers in proposed section 3UO of the Crimes Act and the power in proposed section 3UQ to give a direction that a person stop or do anything else considered necessary to facilitate the exercise of the identity-checking or move-on powers, and recommended that they be removed from the Bill. It pointed to existing legislative powers to prevent suspicious people from boarding flights, and the ability for airlines to prevent a person from taking a flight, and raised concerns about racial, ethnic or religious profiling.[39]

The LCA noted the significant inconvenience and financial impact that people subject to move-on directions, including directions not to take a particular flight, may face. It recommended that directions not to take flights be ‘subject to a very specific power of urgent or expedited review, with an authority to the reviewing officer, presumably a judicial officer, to order compensation’.[40] It also recommended that consideration be given to providing for judicial review of all move-on directions and directions to stop or do anything else considered necessary to facilitate the exercise of the identity-checking or move-on powers.[41]

The Queensland Council for Civil Liberties (QCCL) opposed the proposed expansion of the identity-checking powers to include the purpose of safeguarding aviation security, arguing that the provision will now be ‘so vague as to be beyond effective scrutiny and thus random’.[42] It also opposed the move-on powers, and recommended that the Bill be ‘rejected as excessive and likely to be counter-productive’.[43]

The Australian Council for Civil Liberties and the Australian Lawyers Alliance raised concerns when the expanded powers were announced in May 2018 (and interpreted to allow the exercise of powers without a threshold), but do not appear to have commented on the Bill as introduced.[44]

Police Federation

The Police Federation of Australia stated that it does not normally support the extension of police-style powers beyond fully sworn officers, but that it supports the powers in the Bill being available to PSOs because they ‘play a vital role in Australia’s aviation network’.[45]

AFP PSOs provide protective services for Australian Commonwealth interests in Australia (including at Parliament House, Defence sites and major airports) and overseas (including at Australian diplomatic posts).[46] PSOs have certain powers, including those of arrest and search, in relation to particular offences where those offences relate to a person, place or thing in respect of which the AFP is performing protective service functions (referred to as protective service offences).[47] However, they do not have the full range of investigative powers available to sworn AFP officers under legislation such as the Crimes Act. The only power PSOs currently have under the Crimes Act is that of requiring a person found upon prohibited Commonwealth land to provide his or her name and address.[48]

Financial implications

The Explanatory Memorandum states that the Bill will have no impact on Government revenue.[49]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government acknowledges that the Bill will engage the right to freedom of movement and the prohibition on arbitrary or unlawful interference with privacy, and considers that the Bill is compatible with those and other applicable human rights and freedoms.[50] However, as noted above under ‘Committee consideration’, the PJCHR considered that the limitations on some of those rights may not be proportionate.

Key issues and provisions

Major airports

In 2012, the Crimes Act was amended to insert new Division 3B into Part IAA, which gave police powers to require identity information at a constitutional airport, where a constable reasonably suspects that the person has committed, is committing or intends to commit a Commonwealth, state or territory offence punishable by imprisonment of 12 months or more.[51] At the time of the introduction of those offences, no concerns were raised to the Senate Standing Committee on Legal and Constitutional Affairs, which inquired into the Bill.[52]

The amendments in the current Bill will firstly repeal the term constitutional airport and replace it with major airport.[53] This will broaden the scope of the airports that can be captured by the legislation. Explicitly, other than the terminology change, the Minister will be able to determine, by legislative instrument, that an airport is to be defined as a major airport.[54]

The following airports are included within the new definition of major airport (being (a) a Commonwealth aerodrome within the meaning of the Crimes (Aviation) Act 1991 or (b) an airport in a Territory):

•       Sydney (Kingsford-Smith) Airport

•       Sydney West Airport

•       Melbourne (Tullamarine) Airport

•       Brisbane Airport

•       Adelaide Airport

•       Gold Coast Airport

•       Hobart International Airport

•       Launceston Airport

•       Alice Springs Airport

•       Canberra Airport

•       Darwin International Airport

•       Perth Airport

•       Townsville Airport.[55]

The Bill will allow the Minster to add any other airport, including a regional airport, to this list, under proposed section 3UM.[56] The section will apply only if the airport is ordinarily used for:

•       flights that start or end in a territory

•       passenger flights between Australia and a foreign country and

•       interstate passenger flights (proposed subsection 3UM(2)).

Directions to provide evidence of identity

As noted above, section 3UM of the Crimes Act currently allows a constable to request evidence of a person’s identity if the request is made at a constitutional airport and the constable reasonably suspects that the person has committed, is committing or intends to commit an offence against a Commonwealth, state or territory law that is punishable by imprisonment for 12 months or more.[57]

Section 3UM will be repealed and replaced with proposed section 3UN, which will expand the identification powers by also allowing directions to be given:

•       by PSOs (as well as constables)

•       if a constable or PSO considers on reasonable grounds that the direction is necessary to safeguard aviation security and

•       at airports determined by the Minister to be major airports.

Proposed section 3UN will also allow officers to request more evidence of identity than is currently the case.

Safeguarding aviation security

Under proposed subparagraph 3UN(1)(b)(ii) a constable or PSO will be able to direct a person on the premises of a major airport to provide evidence of his or her identity if the officer considers on reasonable grounds that giving the direction is necessary to safeguard aviation security. Aviation security will be defined in section 3UL of the Crimes Act to include:

the good order and safe operation of:

              (a)              a major airport and its premises; and

              (b)              flights to and from a major airport.[58]

The Explanatory Memorandum states that it is intended that the term aviation security is interpreted in accordance with its ordinary meaning, ‘but also captures a wide range of disruptive behaviour that poses a risk to others in the aviation environment (including, but not limited to, criminal conduct)’.[59] However, as noted by the Scrutiny of Bills Committee, the PJCHR, the LCA and ALHR, the inclusion of ‘good order’ in this definition takes the circumstances in which this and the proposed move-on powers in the Bill may be exercised beyond those where a potential threat to safety or security has been identified.[60] The examples provided by the Government of circumstances intended to be captured each appear to relate either to criminal activity or public or personal safety.[61] Accordingly, parliamentarians may wish to consider whether the definition could be more clearly directed to the purposes for which the Government intends these powers to be available.[62]

Threshold for issuing direction

Proposed subparagraph 3UN(1)(b)(i) allows a constable or PSO to direct a person to give evidence of the person’s identity if the constable or officer suspects on reasonable grounds that the person has committed, is committing or intends to commit a Commonwealth offence or a state offence with a federal aspect, punishable by imprisonment for 12 months or more. In contrast, proposed subparagraph 3UN(1)(b)(ii) allows the constable or PSO to direct a person to give evidence of their identity if the constable or officer considers on reasonable grounds that the direction is necessary to safeguard aviation security.

When legislation prescribes that there must be ‘reasonable grounds’ for a state of mind, it ‘requires the existence of facts which are sufficient to induce that state of mind in a reasonable person’.[63] As set out above, the state of mind required differs between proposed subparagraphs 3UN(1)(b)(i) and (ii), the former requiring a suspicion and the latter requiring the officer to consider that the relevant requirement exists.

In George v Rockett, the Full Bench of the High Court stated:

Suspicion, as Lord Devlin said in Hussien v. Chong Fook Kam (1970) AC 942, at p 948, "in its ordinary meaning is a state of conjecture or surmise where proof is lacking: 'I suspect but I cannot prove.'" The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown.[64]

In contrast, a requirement to ‘consider on reasonable grounds’ has been held to be analogous to ‘believes on reasonable grounds’[65] and to require:

first, that the relevant belief or opinion be actually held by the responsible entity; and, second, that facts exist that are sufficient to induce the belief or opinion in a reasonable person.[66]

Evidence of identity

A person directed to provide evidence of his or her identity may satisfy that requirement by producing a government photographic identity document issued to them, or otherwise another identity document (or, if so directed, two different identity documents).[67] If the person does not produce an identity document or documents, he or she must give the constable or officer his or her name, address and date of birth.[68] This mirrors existing requirements, except that constables may not currently require two different identity documents and people not providing documents are not currently required to provide a date of birth.[69]

Given that the identity documents people would be likely to most commonly use (passports and drivers licences) include a person’s date of birth, this inclusion seems reasonable. The ability to request two identity documents if the person does not provide a government photographic identity document is broadly consistent with the 100 point identification system used by banks and for some government purposes, under which documents such as passports and drivers licences are worth more points than those such as Medicare and credit cards.[70]

Move-on directions

The Crimes Act does not currently contain move-on powers. The Explanatory Memorandum notes that AFP officers can use move-on powers under state and territory laws, but that the thresholds for those powers differ across jurisdictions. It also notes police may direct a person to move on from premises of certain airports under section 86 of the Aviation Transport Security Act 2004, but that this power may only be exercised if an officer reasonably suspects that a person is committing or has committed an offence against that Act.[71] The Bill will provide move-on powers for constables and PSOs at major airports that are broader than those under the Aviation Transport Security Act and are consistent across all jurisdictions.

Threshold for directions

Proposed subsection 3UO(1) of the Crimes Act will allow a constable or PSO to give a person a direction at a major airport if the constable or PSO:

•       considers on reasonable grounds that the person has contravened a direction given under:

–      proposed section 3UN (to provide evidence of his or her identity) or

–      proposed section 3UQ (to stop or do anything else considered necessary to facilitate the exercise of the identity information request or move-on powers)

and the constable or PSO is not reasonably satisfied of the person’s identity

•       suspects on reasonable grounds that giving the direction is necessary to prevent or disrupt relevant criminal activity occurring on the premises of a major airport or in relation to a flight to or from a major airport and/or

•       considers on reasonable grounds that giving the direction is necessary to safeguard aviation security.[72]

Relevant criminal activity will mean activity involving the commission of a Commonwealth offence, or a state offence that has a federal aspect, that is punishable by imprisonment for 12 months or more.[73]

Types of directions

Under proposed subsection 3UO(3), directions will be able to require a person to:

•       not take a specified flight, or any flight, to or from the airport at which it is given or another specified major airport, for a specified period of up to 24 hours from when the direction is given and/or

•       leave the airport premises as soon as practicable and not enter those premises, or the premises of any other specified major airport, for a specified period of up to 24 hours from when the direction is given.

Conditions and limitations on giving directions

Directions given under proposed section 3UO must be given in writing.[74]

A direction covering a period of more than 12 hours must be given or authorised by a senior police officer (a constable who has a rank of sergeant (or equivalent) or higher, or is performing the duties of a constable with such a rank).[75]

No more than two directions may be given under proposed section 3UO within a seven day period.[76] If a second direction is given, it must be given or authorised by a senior police officer, and must not end more than seven days after the first direction was given.[77]

Safeguarding aviation security

As identified above with respect to directions to provide evidence of identity, the inclusion of ‘good order’ in the definition of aviation security takes the circumstances in which this power may be exercised beyond those where a potential threat to safety or security has been identified.

It is possible that the inclusion of good order in that definition may reflect a desire to be consistent with the purposes for which move-on powers may be exercised under some state legislation. For example, in Queensland, a police officer may exercise move-on powers if a person is in a public place and the officer reasonably suspects that:

•       the person’s behaviour is or has been:

(a)              causing anxiety to a person entering, at or leaving the place, reasonably arising in all the circumstances; or

(b)              interfering with trade or business at the place by unnecessarily obstructing, hindering or impeding someone entering, at or leaving the place; or

(c)              disorderly, indecent, offensive, or threatening to someone entering, at or leaving the place; or

(d)              disrupting the peaceable and orderly conduct of any event, entertainment or gathering at the place.

or

•       the person’s presence is or has been:

(a)              causing anxiety to a person entering, at, or leaving the place, reasonably arising in all the circumstances; or

(b)              interfering with trade or business at the place by unnecessarily obstructing, hindering or impeding someone entering, at or leaving the place; or

(c)              disrupting the peaceable and orderly conduct of any event, entertainment or gathering at the place.[78]

However, the breadth of that power is tempered somewhat by several limitations. The power does not apply to an authorised public assembly under the Peaceful Assembly Act 1992 (Qld), may only be used in relation to interfering with trade or business if the occupier of the premises complains about the person’s behaviour or presence, and directions may only interfere with a person’s right of peaceful assembly if it is reasonably necessary in the interests of public safety, public order or the protection of the rights and freedoms of other persons.[79]

Should additional limitations and safeguards apply to the proposed move-on powers?

As is the case in Queensland, restrictions on the application of move-on powers with respect to peaceful assembly or protest are included in other state laws. In New South Wales (NSW), police may not give move-on directions in relation to an industrial dispute, and may only give such directions in relation to a procession, organised assembly or an apparently genuine protest in limited circumstances (such as a serious risk to the safety of a person).[80] In Victoria, move-on directions cannot be given to a person picketing a place of employment, demonstrating or protesting about a particular issue or ‘speaking, bearing or otherwise identifying with a banner, placard or sign or otherwise behaving in a way that is apparently intended to publicise the person's view about a particular issue’.[81] There is also a limitation on the definition of unlawful interference with aviation in the Aviation Transport Security Act 2004 which provides that it does not generally include ‘lawful advocacy, protest, dissent or industrial action’.[82] Given that the Government advised that the powers in the Bill ‘are not intended to interfere with the right to peaceful assembly and do not give police the ability to … disrupt or quell a protest that is peaceful and does not disrupt the safe operation of the airport’, consideration could be given to the inclusion of a similar limitation on the proposed move-on powers in the Bill.[83]

As noted above, move-on directions covering a period of more than 12 hours or which are the second within a seven day period must be given or authorised by a senior police officer. DoHA submitted that this will mean that ‘two officers have turned their mind to the identified threat and whether the proposed exclusion is a proportionate response in the circumstances’.[84] However, this will not always be the case. If such directions are originally given by a senior police officer, they will require no additional authorisation, even if the same officer gives both of the move-on directions within a seven day period. Consideration could be given to amendments that would require move-on directions given by a senior officer that cover a period of more than 12 hours or which are the second within a seven day period to be authorised by another senior officer. Given the potential inconvenience and expense that may be associated with complying with move-on directions covering less than 12 hours, consideration could also be given to requiring all move-on directions to be issued or authorised by a senior police officer.

Move-on directions will be required to be given in writing, and DoHA stated:

Records of the use of the proposed identity checking and move-on powers will be kept in accordance with the AFP’s policies on records management. This will be supported by a standard operating procedure, which stipulates the process for constables and PSOs to adhere to when issuing an identity check or move-on direction.[85]

It may be preferable to make some provision for the keeping of records about the use of the move-on powers in the Crimes Act, with the detail dealt with in a standard operating procedure. Consideration could also be given to requiring regular inspections of and reporting on those records by the Ombudsman, as occurs with several other law enforcement powers.[86]

It is possible that a person subject to a move-on direction could be significantly inconvenienced and/or impacted financially (for example, by being prevented from taking a particular flight or any flight within a certain period). DoHA’s submission to the inquiry into the Bill stated that a person given a move-on (or identity check) direction will be entitled to complain to AFP Professional Standards if he or she is concerned that an officer has acted outside authority, and that where a complaint is substantiated the officer could face disciplinary action, including termination.[87] Its supplementary submission further noted that it would be open to a person to initiate civil proceedings ‘to seek damages or compensation for losses incurred as a result of improper use’ of the proposed powers.[88] It is not apparent how an airline might deal with such situations. An airline may provide a person with an alternative flight at no cost or reduced cost if the person can provide evidence that he or she was unable to take a scheduled flight in order to comply with a move-on direction.

The LCA recommended that provision be made for judicial review (on application) of move-on directions and directions to stop or do anything else considered necessary to facilitate the exercise of the identity-checking or move-on powers, with an expedited review process for directions not to take flights. It recommended that the reviewer be given the power to order compensation.[89] In response, DoHA stated that judicial review will be available, but that providing for an expedited process for the powers in the Bill would be ‘difficult, if not impossible, to practically implement and may have significant resourcing implications for Australian courts’.[90]

Directions to stop or do other things necessary for exercise of other powers

Under proposed section 3UQ, a constable or PSO will be able to direct a person to stop or to do anything else that the officer considers on reasonable grounds to be necessary to facilitate the exercise of the identity-checking or move-on powers in proposed sections 3UN and 3UO. A direction may be given if the officer considers on reasonable grounds that it is necessary to facilitate the exercise of one of those powers.

Obligations of constables and PSOs

As is currently the case for existing powers to require evidence of identity, under proposed section 3UR, a constable or PSO will be required to fulfil certain requirements before giving a direction under proposed section 3UN or 3UO (but not under proposed section 3UQ). The officer will be required to inform the person that failure to comply, or the provision of false or misleading information or documents, may be an offence. If the officer is not in uniform, the officer must also show the person evidence that he or she is a constable or PSO, and provide certain information (including the officer’s name or identification number) if the person so requests.[91]

Offences

Under proposed section 3US, offences will apply to:

•       persons, for (intentionally) contravening a direction given under proposed section 3UN, 3UO, or 3UQ (for which the maximum penalty for an individual will be 20 penalty units (currently $4,200) and

•       constables and PSOs, for (intentionally) breaching the requirements of proposed section 3UR (for which the maximum penalty will be five penalty units (currently $1,050).[92]

These offences are both comparable to those that currently apply in existing section 3UN of the Crimes Act (which will be repealed by the Bill), and carry the same maximum penalties.

PSO powers

As noted above, under the Australian Federal Police Act, PSOs have certain powers, including those of arrest and search, in relation to particular offences, referred to as protective service offences.[93]

Item 6 of Schedule 1 will amend the definition of protective service offence in subsection 4(1) of the Australian Federal Police Act to include an offence against proposed subsection 3US(1) (contravening a direction given under proposed section 3UN, 3UO, or 3UQ).

Concluding comments

While thresholds will apply to each of the new and expanded powers proposed in the Bill, the inclusion of the ‘good order’ of airports and flights in the definition of aviation security takes the circumstances in which the identity checking and move-on powers may be exercised beyond those where a potential threat to safety or security has been identified. Parliamentarians may wish to consider whether the definition could be more clearly directed to the circumstances in which the Government intends these powers to be available. Alternatively, consideration could be given to the inclusion of limits on the proposed move-on powers, similar to those in state laws, to address concerns that they could be used to disrupt a peaceful protest.

The Bill will require all move-on directions to be given in writing, and require some orders to be given or authorised by a senior police officer. Given the potential financial implications and inconvenience associated with complying with such directions, consideration could be given to enhanced and additional safeguards such as requiring all move-on directions to be authorised by a senior police officer, clarifying on the face of the legislation that judicial review of move-on directions is available, and providing for records of the use of move-on powers to be inspected and reported on by the Commonwealth Ombudsman.

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[1].              Constable is defined in section 3 of the Crimes Act 1914 to mean ‘a member or special member of the Australian Federal Police or a member of the police force or police service of a State or Territory’. Protective service officer will mean such an officer within the meaning of the Australian Federal Police Act 1979 (definition inserted into section 3UL of the Crimes Act by item 4 of Schedule 1 of the Bill).

[2].              P Dutton (Minister for Home Affairs), Budget 2018: keeping Australians safe, media release, 8 May 2018.

[3].              Ibid.; Australian Government, Budget measures: budget paper no. 2: 2018–19, p. 128 (quote taken from this source).

[4].              Dutton, Budget 2018: keeping Australians safe, op. cit.

[5].              Australian Federal Police (AFP), Four arrested in major counter terrorism operation, media release, 29 July 2018; AFP, Two Sydney men charged over planned terrorist acts, media release, 3 August 2017; R Stuart and L Hall, ‘Sydney terror plotters “tried to blow up Etihad plane, unleash poison gas attack”’, ABC News, updated 4 August 2017; D Wroe, ‘Dutton thanks Israel after tip helped foil alleged terror plot’, The Canberra Times, 23 February 2018, p. 14.
The AFP has said that Mahmoud and Khaled’s brother Amer, in whose luggage the bomb was initially placed, had no knowledge of the plot. Lebanese authorities claim otherwise, and as at 11 October 2018, Amer remained in custody in Lebanon while the matter is considered by a military tribunal: A Harvey, ‘Tarek Khayat: Islamic State commander and suspected Etihad plane bomb plot leader sentenced to death’, ABC News, updated 11 October 2018.
Another of their brothers, Tarek, is alleged to have put Mahmoud and Khaled in touch with an Islamic State ‘controller’ who helped the brothers prepare for the planned attack. Tarek is a Lebanese citizen. In October 2018, he was sentenced to death by an Iraqi court for being a financial officer for Islamic State (the charges did not relate to the alleged Australian plot, in which he denied involvement): Harvey, ‘Tarek Khayat: Islamic State commander and suspected Etihad plane bomb plot leader sentenced to death’, op. cit.; E Whinnett, ‘Death sentence for doll bomb accused’, The Daily Telegraph, 10 October 2018, p. 3, ProQuest database.

[6].              M Brown, ‘Brothers plead not guilty to Sydney airport meat grinder bomb plot’, ABC News, updated 4 May 2018.

[7].              M Turnbull (Prime Minister), Press Conference with the Minister for Justice, the Hon. Michael Keenan MP, Commissioner of the Australian Federal Police, Andrew Colvin APM OAM and New South Wales Police Commissioner Mick Fuller APM, media release, 30 July 2017.

[8].              Department of Home Affairs (DoHA), ‘Review into security at Australian security regulated airports’, DoHA website (retrieved from the National Library of Australia’s Australian Government Web Archive).

[9].              Ibid.

[10].              R Viellaris, ‘Airport security starts in terminal’, The Courier Mail, 21 August 2017, p. 5; A Probyn and J Norman, ‘Government moves to bolster domestic airport security with photo identification requirements’, ABC News, updated 5 October 2017.

[11].              P Dutton in M Turnbull (Prime Minister), Doorstop with the Minister for Home Affairs, the Hon. Peter Dutton MP and the Minister for Law Enforcement and Cyber Security, the Hon. Angus Taylor MP, media release, 15 May 2018.

[12].              M Turnbull (Prime Minister), Transcript of interview with Neil Mitchell, media release, 15 May 2018.

[13].              See for example R Sarre, ‘Why random identification checks at airports are a bad idea’, The Conversation, 22 May 2018; P Hatch and F Hunter, ‘Police airport ID laws branded “authoritarian”’, The Sydney Morning Herald, 16 May 2018, p. 7; Australian Lawyers for Human Rights (ALHR), Human rights lawyers raise alarms about new powers given to border police, media release, 17 May 2018.

[14].              Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee), Scrutiny digest, 11, 2018, The Senate, 19 September 2018, p. 14.

[15].              Ibid.

[16].              Ibid., p. 15.

[17].              Scrutiny of Bills Committee, Scrutiny digest, 12, 2018, The Senate, 17 October 2018, pp. 79–80 (quote taken from p. 80).

[18].              Ibid., pp. 82–83.

[19].              Parliamentary Joint Committee on Human Rights (PJCHR), Human rights scrutiny report, 11, 16 October 2018, pp. 9–23.

[20].              Ibid., pp. 12–15.

[21].              Ibid., pp. 15–19 (quote taken from p. 19).

[22].              Ibid., pp. 18–19.

[23].              Ibid., pp. 19–22 (quote taken from p. 22).

[24].              Ibid., pp. 22–23 (quote taken from p. 23).

[25].              Parliamentary Joint Committee on Human Rights (PJCHR), Human rights scrutiny report, 12, 27 November 2018, pp. 60–69 (quotes taken from pp. 63, 68–69).

[26].              Ibid., pp. 67–69.

[27].              Ibid., pp. 70–72.

[28].              Ibid., pp. 73–76.

[29].              M Dreyfus (Shadow Attorney-General) in K Middleton, ‘Ex-ABF chief questions Dutton's ID powers’, The Saturday Paper, 19 May 2018.

[30].              N Christian, ‘Malcolm Turnbull has defended new airport security measures, but critics fear they will increase racial profiling’, SBS News, updated 15 May 2018.

[31].              F Hunter, ‘Fines or imprisonment for travellers if they do not comply with new police powers at airports’, The Sydney Morning Herald (online edition), 12 September 2018.

[32].              N McKim (Greens justice spokesperson), Dutton’s “papers please” plans must be resisted, media release, 15 May 2018.

[33].              N McKim (Greens justice spokesperson), Dutton's "papers please" laws another attack on rights, media release, 12 September 2018.

[34].              R Patrick, ‘Dutton’s airport ID checks are ripe for abuse and take us closer to a police state’, The Guardian, 9 October 2018.

[35].              D Hinch in Christian, ‘Malcolm Turnbull has defended new airport security measures, but critics fear they will increase racial profiling’, op. cit. See also Senate Legal and Constitutional Affairs Legislation Committee, Official committee Hansard, 23 May 2018, p. 24.

[36].              Senate Legal and Constitutional Affairs Legislation Committee, Official committee Hansard, 23 May 2018, pp. 34–35.

[37].              Law Council of Australia (LCA), Submission to Parliamentary Joint Committee on Intelligence and Security (PJCIS), Inquiry into the Crimes Legislation Amendment (Police Powers at Airports) Bill 2018, 12 October 2018, pp. 2–3; Australian Lawyers for Human Rights (ALHR), Submission to PJCIS, Inquiry into the Crimes Legislation Amendment (Police Powers at Airports) Bill 2018, 5 October 2018, pp. 2–3, 5; PJCIS, Official committee Hansard, (proof), 17 October 2018, pp. 1–4

[38].              LCA, Submission to PJCIS, op. cit., p. 2.

[39].              ALHR, Submission to PJCIS, op. cit., pp. 3–5.

[40].              LCA, Submission to PJCIS, op. cit., p. 3.

[41].              Ibid.

[42].              Queensland Council for Civil Liberties, Submission to PJCIS, 12 October 2018.

[43].              Ibid.

[44].              Hatch and Hunter, ‘Police airport ID laws branded “authoritarian”’, op. cit; ‘Civil liberty groups worried airport laws will cause racial profiling’, RN Breakfast, ABC, 16 May 2018 (Hamish McDonald interview with Terry O’Gorman, President of the Australian Council for Civil Liberties, audio only).

[45].              Police Federation of Australia, Submission to PJCIS, Inquiry into the Crimes Legislation Amendment (Police Powers at Airports) Bill 2018, 8 October 2018.

[46].              Australian Federal Police (AFP), ‘Protection’, ‘AFP Airport Operations’, ‘Protective Service Officer Program’ and ‘Your job as a Protective Service Officer’, AFP website.

[47].              Australian Federal Police Act 1979, subsection 4(1), section 8A and Divisions 3 and 4 of Part II.

[48].              Crimes Act, section 89.

[49].              Explanatory Memorandum, Crimes Legislation Amendment (Police Powers at Airports) Bill 2018, p. 3.

[50].              The Statement of Compatibility with Human Rights can be found at page 16 of the Explanatory Memorandum to the Bill.

[51].              Division 3B was inserted by the Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Act 2012.

[52].              Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Bill 2012 [Provisions], The Senate, Canberra, 19 November 2012, p. 5.

[53].              Items 3 and 4 of Schedule 1.

[54].              The determination power is introduced by item 5 of Schedule 1, proposed section 3UM.

[55].              The Crimes (Aviation) Act 1991 defines a Commonwealth aerodrome as:
(a)              an area of land or water in Australia that is owned by the Commonwealth and used, or intended for use, either wholly or partly, for, or in connection with, the arrival, departure or other movement of aircraft; or
(b) a core regulated airport within the meaning of the Airports Act 1996.

              and includes any building, structure, installation or equipment in that area, or on the land that forms the core regulated airport, that is provided for use in connection with the operation of that area or land as an aerodrome or airport. This list is taken from the Airports Act 1996, section 7.

[56].              Determinations under proposed section 3UM will be legislative instruments.

[57].              A constable may also currently request evidence of a person’s identity at an airport other than a constitutional airport if he or she reasonably suspects that the person has committed, is committing or intends to commit a Commonwealth offence that is punishable by imprisonment for 12 months or more. Under the Bill, evidence of a person’s identity may be required from a person at a major airport in relation to a Commonwealth offence, or a state offence with a federal aspect, that is punishable by imprisonment for 12 months or more: proposed subparagraph 3UN(1)(b)(i).

[58].              Item 2 of Schedule 1 will insert this definition into section 3UL.

[59].              Explanatory Memorandum, p. 5.

[60].              Scrutiny of Bills Committee, Scrutiny digest, op. cit., p. 14; PJCHR, Human rights scrutiny report, 11, 2018, op. cit., pp. 14,
17–18, 22–23; LCA, Submission to PJCIS, op. cit., pp. 2–3; ALHR, Submission to PJCIS, op. cit., pp. 2–3.

[61].              See: Explanatory Memorandum, pp. 8–9, 11–12; PJCIS, Official committee Hansard, (proof), 17 October 2018, pp. 10–14; Scrutiny of Bills Committee, Scrutiny digest, 12, 2018, op. cit., pp. 79–81.

[62].              It is possible that the inclusion of good order may reflect a desire to be consistent with the purposes for which move-on powers may be exercised under some state legislation. See further under ‘Move on directions’ below.

[63].              George v Rockett [1990] HCA 26; (1990) 170 CLR 104 (20 June 1990), Mason CJ and Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ at [8].

[64].              George v Rockett [1990] HCA 26; (1990) 170 CLR 104 (20 June 1990), Mason CJ and Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ at [8].

[65].              ING Funds Management v ANZ Nominees [2009] NSWSC 243 (3 April 2009) at [102], quoted with approval in Androvitsaneas v Members First Broker Network [2013] VSCA 212 (16 August 2013) [84] and followed in Re Great Southern Managers Australia Limited (receivers and managers appointed) (in liq) [2009] VSC 627, [21] (Davies J); Re Timbercorp Securities [2010] VSC 50; (2010) 77 ACSR 291, [15] (Davies J); Premium Income Funds Group Inc v Wellington Capital [2011] FCA 698; (2011) 84 ACSR 600 Gordon J); Re Elders Forestry Management Limited [2012] VSC 287; (2012) 90 ACSR 573, [58] (Robson J).

[66].              Ibid.

[67].              Proposed paragraphs 3UN(2)(a) and (b). Government photographic identity document and identity document are defined in section 3UL of the Crimes Act. The Bill will not amend the current definitions.

[68].              Proposed paragraph 3UN(2)(c).

[69].              The current identity information requirements are contained in section 3UM of the Crimes Act 1914.

[70].              See for example: Commonwealth Bank of Australia (CBA), ‘What documents do you need for an in-branch id check?’, CBA website; South Australia Police (SAPOL), ‘100 point identification’, SAPOL website.

[71].              Explanatory Memorandum, p. 10.

[72].              The requirements relating to ‘suspects on reasonable grounds’ and ‘considers on reasonable grounds’ are discussed above.

[73].              Proposed subsection 3UO(2). Federal aspect, in relation to state offences, is defined in subsection 3AA(1) of the Crimes Act.

[74].              Proposed subsections 3UO(1) and (3).

[75].              Proposed subsections 3UO(4) and (5).

[76].              Proposed paragraph 3UO(6)(c).

[77].              Proposed paragraphs 3UO(6)(b) and (d).

[78].              Police Powers and Responsibilities Act 2000 (Qld), sections 44 and 46–48. Limitations apply in section 45 and subsections 46(2), (2A) and (3), 47(2), (2A) and (3), and 48(2).

[79].              Ibid., section 45 and subsections 46(3), 47(3) and 48(2).

[80].              Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), section 200.

[81].              Summary Offences Act 1966 (Vic), subsection 6(5).

[82].              Aviation Transport Security Act 2004, subsection 10(2). These things do fall within the definition of unlawful interference with aviation if they result in or contribute to certain actions (such as taking control of an aircraft by force, destroying an aircraft that is in service or ‘doing anything on board an aircraft that is in service that puts the safety of the aircraft, or any person on board or outside the aircraft, at risk’).

[83].              DoHA, Supplementary submission to PJCIS, Inquiry into the Crimes Legislation Amendment (Police Powers at Airports) Bill 2018, n.d., p. 5. See also the Minister’s response to the Scrutiny of Bills Committee: Scrutiny of Bills Committee, Scrutiny digest, 12, 2018, op. cit., pp. 79–80.

[84].              DoHA, Submission to PJCIS, Inquiry into the Crimes Legislation Amendment (Police Powers at Airports) Bill 2018, n.d., p. 5.

[85].              Ibid., p. 6.

[86].              For details, see Commonwealth Ombudsman, ‘Our inspections role’, Commonwealth Ombudsman website.

[87].              DoHA, Submission to PJCIS, op. cit., p. 6. AFP Professional Standards deals with complaints in accordance with Part V of the Australian Federal Police Act 1979, which also gives the Commonwealth Ombudsman a role in determining the kinds of conduct to be included in different categories of conduct and requires the Ombudsman to conduct annual and ad hoc reviews of AFP’s administration of Part V of the Act.

[88].              DoHA, Supplementary submission to PJCIS, op. cit., p. 5.

[89].              LCA, Submission to PJCIS, op. cit., p. 3. PJCIS, Official committee Hansard, (proof), 17 October 2018, pp. 2–3.

[90].              DoHA, Supplementary submission to PJCIS, op. cit., p. 5. Mark Dreyfus noted in a PJCIS hearing that Australian courts ‘have out-of-hours arrangements and duty judges for the very purpose of dealing with urgent interim injunction applications’: PJCIS, Official committee Hansard, (proof), 17 October 2018, p. 3.

[91].              Proposed section 3UR.

[92].              The first offence will apply if the person engages in conduct and the conduct contravenes a direction; the second will apply where the constable or PSO engages in conduct and the conduct breaches a requirement. A prosecutor will need to prove that the person, constable or PSO intentionally engaged in conduct due to the application of default fault elements under section 5.6 of the Criminal Code Act 1995. For further detail about all of the physical and fault elements that will need to be proven for each offence, see pages 14–15 of the Explanatory Memorandum.

[93].              Australian Federal Police Act, subsection 4(1) and Divisions 3 and 4 of Part II.