Objective
2.1
The Crimes Legislation Amendment (Police Powers at Airports) Bill 2018 (the Bill) makes a number of amendments to Division 3B of Part IAA of the Crimes Act 1914 (Crimes Act). It also makes one amendment to the Australian Federal Police Act 1979 (AFP Act).
2.2
The Bill’s Explanatory Memorandum notes that the purpose of these changes is to ensure that constables and Australian Federal Police (AFP) protective service officers (PSOs)
can engage with persons at the earliest opportunity to assess any potential threat and/or risk to public safety, and direct a person to leave, or not to take flights to or from, these airports where appropriate.
2.3
In his referral letter to the Committee, the Minister for Home Affairs noted that the Bill would ‘enhance existing powers under the Crimes Act to enable police [including PSOs], at certain airports to direct a person to provide evidence of their identity under specified circumstances’. The Minister said the Bill will also empower officers to direct that a person leave an aviation premises, or not take a flight, for up to 24 hours.
2.4
An overview of the provisions of the Bill—in order of the proposed amendments—is provided on the following pages as follows:
definitions (section 3UL),
identity information directions (section 3UN),
move-on directions (section 3UO),
stop and ancillary request directions (section 3UQ),
duties of police (section 3UR), and
2.5
Responses from submitters, along with the Committee’s comments and recommendations, are included under each section.
Definitions
2.6
The Bill proposes amending existing section 3UL (Definitions—Division 3B) of the Crimes Act. The Bill repeals the definition of ‘constitutional airport’, and adds definitions for:
protective service officer, and
relevant criminal activity.
2.7
Each of these terms is considered below.
‘Major airport’
2.8
The Bill repeals the definition of ‘constitutional airport’. This is replaced under clause 4 of the Bill with the term ‘major airport’.
2.9
A major airport is defined to mean any of the following:
a.
a Commonwealth aerodrome within the meaning of the Crimes (Aviation) Act 1991,
b.
an airport in a Territory, and
c.
an airport determined by the Minister under proposed section 3UM of the Crimes Act.
2.10
This definition is similar to ‘constitutional airport’, as described in the previous chapter, but allows for the Minister to determine an airport under proposed section 3UM of the Crimes Act by legislative instrument ‘for the purposes of the definition of major airport in section 3UL’.
2.11
Under proposed section 3UM(2), the Minister can only make such a determination if the airport is ordinarily used for:
flights that start or end in a Territory,
flights between Australia and a foreign country in which aircraft are used in the course of trade or commerce, for the carriage of passengers, and
flights between one State and another State in which aircraft are used in the course of trade or commerce, for the carriage of passengers.
‘Aviation security’
2.12
The Bill adds the term ‘aviation security’ to section 3UL of the Crimes Act. Aviation security ‘includes the good order and safe operation of a major airport and its premises’, and ‘flights to and from a major airport’.
2.13
Aviation security is used as a threshold under proposed sections 3UN (identity information) and 3UO (move-on directions) by police officers who may issue directions if they consider on reasonable grounds that it is necessary to ‘safeguard aviation security’.
2.14
The Committee received two submissions raising concerns with the breadth of the definition of aviation security. The Law Council of Australia identified problems with the inclusion of the term ‘good order’ and the word ‘includes’. Both these terms are examined in detail below.
‘Good order’
2.15
The term ‘good order’ is not defined in the Crimes Act. The Bill’s Explanatory Memorandum states 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).
2.16
The Law Council of Australia submitted that because the term ‘good order’ is not defined, it creates
uncertainty and the potential for the powers to be exercised in a broad range of circumstances and at the discretion of constables or PSOs in an arbitrary and potentially ad hoc manner.
2.17
The Law Council went on to note that:
A key principle of the rule of law, is that the law must be both readily known and available, and certain and clear. The intended scope of the exercise of the powers should be unambiguous and key terms should be defined so that they do not inadvertently capture a wide range of benign conduct and overly depend on police discretion to determine their scope. This is particularly so where, in the absence of suspicion of criminal behaviour or a threat to security and safety, an individual’s liberty may be interfered with to, for example, produce identity documents, vacate airports and related premises, and abstain from taking flights.
2.18
The Law Council expressed concern that the powers could be exercised in a broad range of circumstances, ‘including for example to intervene or prevent a peaceful protest’.
2.19
Australian Lawyers for Human Rights (ALHR) submitted that the term aviation security was ‘defined very widely’ and that
‘good order’ is an insufficient basis for granting powers to police which infringe both traditional common law rights and freedoms and human rights.
2.20
The Department of Home Affairs responded that the term ‘good order’ was
analogous with the concept of public order under the International Covenant on Civil and Political Rights [ICCPR] … which has been interpreted broadly as including ‘not only the absence of disorder but also … public safety and the prevention of crime’.
2.21
However, at the public hearing on 17 October 2018, the Law Council argued the contrary, stating that ‘good order’ was not
the equivalent of or analogous to the concept of public order under international law, in particular the ICCPR. We would like to make that point straight up.
2.22
The Law Council went on to note that
under the ICCPR, public safety means protection against danger to the safety of persons to their life or physical integrity or serious damage to their property … including good order goes a long way further than public safety.
2.23
At the public hearing, the Committee asked the AFP whether the definition of ‘aviation security’ could be confined to safety considerations and disrupting or preventing criminal activity or suspected criminal activity.
2.24
The AFP stated that it wanted the powers to allow for ‘pre-emptive’ engagement with individuals to ensure police do not have to wait to ‘see whether someone committed the offence, or is going to damage something or do something’, but rather:
It’s our suspicions of the behaviour of the person that are not within the norm that we’re seeking to just identify who that person is. That way we can either discount them from continuing to do some behaviour that is criminal or unlawful, versus allowing them to just have to be observed from a distance until we see that behaviour.
Right to peaceful protest and assembly
2.25
With regards to the term ‘good order’, the Department of Home Affairs submitted that the measures in the Bill were ‘not intended to interfere with the right to peaceful assembly and do not give police the ability to use the powers to disrupt or quell a protest that is peaceful and does not disrupt the safe operation of the airport’.
2.26
However, the Law Council of Australia said the Department’s suggestion was not ‘expressly excluded from this definition here. It’s simply not in the Bill’.
2.27
The Law Council noted it had seen savings provisions applied to such rights in other legislation. For example, the Aviation Transport Security Act 2004 contains a subsection specifically stating that
unlawful interference with aviation does not include lawful advocacy, protest, dissent or industrial action that does not result in or contribute to an action of a kind mentioned in [the offence].
2.28
During the public hearing, the Committee asked the Department whether the Bill could include a savings provision to ensure the powers in the Bill do not interfere with peaceful assembly or give police the ability to use the powers to disrupt or quell a protest that is peaceful and does not disrupt the safe operation of the airport. The Department responded that
a constable or officer could not direct a person participating in peaceful protest to move on unless they thought it necessary (on reasonable grounds) to do so based on the criteria in 3UO(1)(b). Therefore the savings provision is not necessarily warranted, but would require an exception for specified conduct if it were to be recommended.
‘Includes’
2.29
At the public hearing on 17 October 2018, the Law Council of Australia further noted that in the definition of ‘aviation security’, the term ‘good order’ comes after the word ‘includes’. The Council noted that aviation security was in fact
not even limited to ‘the good order and safe operation of’. We have focused our attention on ‘good order’, but we say the problem is also with the use of the word ‘includes’, because it could go well beyond good order.
…
The reading of this term means that ‘good order’ can be read separately to ‘safe operation’ of the major airport, particularly because of the use of that word ‘includes’ also.
2.30
The Committee asked the Department of Home Affairs about the Law Council’s point that ‘includes’ indicates that aviation security is not limited to good order and safe operation, and that it makes the provision vague and too general.
2.31
The Department responded that
Part of including some information about that and making the definition inclusive around good order and safe operation was to give further context to what might be taken into account. It is difficult to define, but the nature of the threats that we face are difficult to enumerate in a list. So, it’s important that the officers have a reasonable basis for exercising the powers. They have to link it to aviation security, and the training they receive is what helps them to bridge that gap.
‘Premises’
2.32
The term ‘premises’ of an airport is added to proposed section 3UL of the Crimes Act, and means ‘the airport’s premises within the meaning of Part 18 of the Airports Act 1996’. Airport premises is defined under section 239 of the Airports Act 1996 to mean
(a) an airport site, if there is an airport lease for the airport; or
(b) a building or other structure on such a site;
and includes a part of any such premises.
2.33
The Explanatory Memorandum notes that the term premises has been added to ensure ‘relevant powers under new sections 3UN, 3UO and 3UQ may be exercised anywhere on an airport site, or any building or structure on the site – for example the car park, hangars, terminal or runway of the airport premises’.
‘Protective service officer’
2.34
The term ‘protective service officer’ has been added as a class of officers who can exercise the power to give directions. PSOs are defined under the the AFP Act.
2.35
The Committee provided the Department with a question on notice on the role of a PSO, and the differences between a PSO and a constable. The Department responded that the
main difference between constables and PSOs is that constables may exercise powers in relation to criminal offences generally, while PSOs may exercise powers in the course of their protection duties only’.
2.36
In terms of training, the Department noted that a PSO recruit course is approximately 14 weeks, while an AFP Member recruit course is approximately 24 weeks. AFP Members and PSO’s undertake the same ongoing training in instances where they are performing the same duties or operating under the same legislation.
‘Relevant criminal activity’
2.37
The final proposed amendment to section 3UL of the Crimes Act is to add the term ‘relevant criminal activity’, which is defined in section 3UO to be criminal activity involving the commission of an offence that is punishable by imprisonment for 12 months or more, against the law of the Commonwealth, or a law of a State having a federal aspect.
Committee Comment
2.38
The Committee has concerns with the undefined scope of ‘aviation security’. The Committee recommends the Government amend the definition of ‘aviation security’ to specify the scope of activities to which the term applies.
2.39
The Committee recommends the Government amend the definition of ‘aviation security’ in proposed section 3UL of the Crimes Legislation Amendment (Police Powers at Airports) Bill 2018 to specify the scope of activities to which the term applies.
2.40
The Committee further recommends that a savings provision be included to ensure that the directions powers do not interfere with the right to peaceful assembly, or give police the ability to use the powers to disrupt or quell a protest that is peaceful and does not disrupt the safe operation of the airport. This recommendation is in line with the intent of the Bill, outlined in the Department’s supplementary submission.
2.41
The Committee recommends that the Crimes Legislation Amendment (Police Powers at Airports) Bill 2018 be amended to include a savings provision to ensure the move-on powers do not interfere with the right to peaceful assembly, or give police the ability to use the powers to disrupt or quell a protest that is peaceful and does not disrupt the safe operation of an airport.
Identity information directions
2.42
Proposed section 3UN (Identity information at airports) replaces and expands on the current section 3UM of the Crimes Act and enables both constables and PSOs to direct a person to provide evidence of their identity while on the premises of a major airport.
2.43
The Department of Home Affairs noted that where police
observe conduct that gives rise to suspicion of a terrorism offence, the priority is always to arrest the person. This includes acts done in preparation for, or planning, terrorist acts. However, police may observe other behaviour that is unusual in the context of the airports and may be an indicator of a risk to aviation security, including in the context of terrorism. For example:
Police observe a person spending a significant period of time in an elevated section of a major airport. The person is not near a boarding gate and police confirm there are no flights experiencing major delays at the time. The person appears to be on constant alert, watching the security screening process and taking notes.
Police detect a person entering and exiting a major airport on several occasions over the course of a week. CCTV shows the person does not arrive by taxi or public transport, nor do they drive and park their vehicle. Police observe the person leaving the airport on foot towards the direction of nearby hotels. The person is not employed at the airport and is not displaying an Aviation Security Identity Card.
2.44
According to Explanatory Memorandum, the new power will enable a constable or PSO to engage with a person at the earliest opportunity to assess any potential threat.
2.45
The Department noted that the current identity checking power
is generally used less than ten times a year at each of the major airports. However this figure is impacted by the restrictiveness of the current legislative threshold and the availability of applied State powers in some jurisdictions.
2.46
At the public hearing on 17 October 2018, the Department further noted that the proposed provisions do not enable an ‘unfettered checking power for police’:
The Bill only gives police the power to exercise the new identity checking powers based on clear criteria in the legislation and relying on their specialist expertise and training. The Bill does not impose a de facto requirement for people to carry proof of identification when present in airports.
Overview of the provisions
Who can issue an identity information direction?
2.47
Both constables and PSOs will be able to issue an identity information direction. As noted earlier in this chapter, a constable means a ‘member or special member of the AFP or a member of the police force or police service of a State or Territory’.
2.48
While the AFP has a presence at every major airport in Australia except Hobart, according to the Department,
state and territory police do not have a permanent uniformed presence at airports. They may attend at an airport upon request of airport management or individuals.
2.49
The Bill’s Explanatory Memorandum notes that
AFP officers are trained in Behavioural Assessment and Security Questioning (BASQ) to identify known behavioural traits displayed by people who are about to commit a crime or terrorist activity, and to ask targeted questions of persons of interest. It is the intention that [identity information directions] will enable a constable or PSO to approach a person displaying known behavioural traits and direct the person to provide proof of identity to determine whether they pose a serious criminal risk, or a threat to aviation security.
2.50
The Police Federation of Australia supported the proposal to give PSOs these powers. The Federation noted it does not generally
support the expansion of police style powers beyond fully sworn police officers. However, as PSO’s play a vital role in Australia’s aviation network, we do support the proposal to allow the proposed enhanced powers for police, identified in this Bill, to be extended to PSOs.
Threshold for issuing an identity information direction
2.51
Under the proposed new section, in order for a constable or PSO to request identify information, they must:
a.
give the direction on the premises of a major airport; and
b.
suspect on reasonable grounds that the person has committed, is committing or intends to commit an offence against a law of the Commonwealth, or a law of a State having a federal aspect, punishable by imprisonment for 12 months or more; or
c.
consider on reasonable grounds that it is necessary to give the direction to safeguard aviation security.
2.52
The Department of Home Affairs advised the Committee that the
proposed identity check, move-on and ancillary directions will apply equally to all persons within a major airport regardless of age, gender, ethnicity, religious background or other status. A constable or PSO issuing these directions is required to do so in a non-discriminatory fashion. The AFP Code of Conduct, for example, requires AFP appointees (including constables and PSOs) to act without discrimination and harassment in the course of their duties.
How is an identity information direction issued?
2.53
According to the Department, ‘identification directions may be given orally’. There is no requirement for them to be issued in writing.
Obligations on a person who is issued an identity information direction
2.54
If directed to provide evidence of identity, a person must:
produce a government photographic identity document. This is defined under the existing provisions in the Crimes Act to mean an identity document providing photographic identification of a person that is issued by the government of the Commonwealth or a State or Territory or the government of a foreign country or part of a foreign country, or
if the person does not have a government photographic identity document, they must supply up to two identity documents such as a driver’s licence, birth certificate, credit card or identity card, or
if they fail to do this, they must give the constable or PSO the person’s name, address and date of birth.
Issues raised – identity information directions
Breadth of scope
2.55
As noted earlier in this chapter, the broad definition of ‘aviation security’ was of concern to some submitters in relation to the power to issue a direction to give identity information. The Queensland Council for Civil Liberties (QCCL) submitted that although the Crimes Act already allows police to request suspects at airports to identify themselves, ‘the amendments greatly expand the reasons for which identification can be requested’. Australian Lawyers for Human Rights (ALHR) agreed.
2.56
The definition of ‘good order’ within the term ‘aviation security’ has been addressed earlier in this chapter, along with the Committee’s recommendation to narrow the definition of aviation security.
Police profiling
2.57
Submitters also raised concerns with the use of the BASQ tool to enable the police to approach a person displaying known behavioural traits.
2.58
ALHR noted that while BASQ
can be of great assistance when used by experts, there is evidence that it can often be abused, whether intentionally or not, to target minorities and reinforce stereotyping.
2.59
QCCL submitted that ‘these [BASQ] assessment tools have been shown to have no basis in science’. The QCCL pointed to a study undertaken by the United States Government Audit Office that concluded, with respect to the observation tools used in US aviation security, that
[a]vailable evidence does not support whether behavioral indicators, which are used in the Transportation Security Administration’s … Screening of Passengers by Observation Techniques … program, can be used to identify persons who may pose a risk to aviation security.
2.60
Another submitter suggested that ‘if behaviour observation is adopted it should be done by independent officers’.
2.61
The Committee asked the Department of Home Affairs to consider some of these concerns in relation to the use of BASQ. The Committee questioned whether both PSOs and constables received the same BASQ training, and what assurances could be provided that BASQ would not be used inadvertently to target minority communities. The Department responded that the
initial level one BASQ training course includes three days of formal training in theory and practice. Ongoing practical on the job training is also delivered. The course itself is continually refined in accordance with identified best practice. There is no difference between BASQ training for Constables or PSOs.
The AFP’s BASQ course was developed in 2011, from training material provided to the AFP by the Centre for Protection of National Infrastructure (CPNI), United Kingdom, and is based upon 31 identifiable behaviours, which all have been extensively tested to be culturally neutral by CPNI, Portsmouth University and Essex Police Force.
… Officers that use the powers in this Bill to target minority communities will be acting unlawfully and subject to the AFP’s professional standards regime.
Committee Comment
2.62
Subject to implementing the Committee’s recommendation earlier in this chapter in relation to the definition of ‘aviation security’, the Committee considers the provisions of proposed section 3UN are appropriate, and largely mirror the existing legislation.
2.63
The Committee notes concerns raised by submitters on the use of behavioural tools to profile individuals at airports. However, the Committee is satisfied that the use of BASQ will assist constables and PSOs to identify known behavioural traits displayed by people who may be about to commit a crime or terrorist activity, and to ask targeted questions to persons of interest.
2.64
The Committee considers that, providing the definition of aviation security is amended as recommended earlier in this chapter, the threshold required to undertake an identity check will mean that constables and PSOs will be unable to undertake random profiling of individuals in order to request evidence of their identity.
2.65
The Committee notes that training in BASQ applies equally to AFP officers and PSOs. The Committee further notes that the AFP is subject to a ‘comprehensive complaints and oversight regime, with reporting requirements and complaint mechanisms (with both internal and external oversight)’.
2.66
However, to provide assurance that these powers are not overused, the Committee recommends that AFP keep records of the number of occasions on which identity check directions are given, and that these figures are made public by the AFP on an annual basis.
2.67
The Committee recommends that the Australian Federal Police be required to record the number of occasions on which an identity information direction is issued under proposed section 3UN of the Crimes Legislation Amendment (Police Powers at Airports) Bill 2018. Such records—detailing the number of identity check directions issued at each major airport—should be made public on an annual basis.
Move-on directions
2.68
Proposed section 3UO (Move-on directions at airports) of the Crimes Act creates new ‘move-on’ powers for police and PSOs. The Bill’s Explanatory Memorandum notes that
AFP officers may utilise a suite of move-on powers in airports, which are available under State and Territory legislation. … Implementation of a Commonwealth framework for move-on directions will ensure police have access to consistent and targeted powers across Australia to exclude a person from the aviation environment in order to prevent and/or disrupt criminal or security threats.
2.69
The Department of Home Affairs noted that such move-on powers
are intended to be exercised where the constable or officer is not satisfied the threshold is met to arrest a person, but nevertheless considers on reasonable grounds that the person needs to leave the premises to safeguard aviation security, disrupt or prevent serious criminal activity, or due to failure to comply with an identity check or ancillary direction. While a move-on direction may limit a person’s liberty of movement, such a direction is likely to be less intrusive than taking a person into detention or arresting them.
2.70
The Police Federation of Australia supported the introduction of move-on directions. It noted that move-on powers
under state and territory legislation varies from jurisdiction to jurisdiction, so the implementation of a Commonwealth framework for airports will ensure national consistency.
Overview of the provisions
Who can issue a move-on direction?
2.71
Both constables and PSOs can issue a move-on direction.
Threshold for issuing a move-on direction
2.72
Under 3UO(1), a move-on direction may be given on the premises of a major airport if the constable or PSO:
considers on reasonable grounds that the person has contravened an identity information direction under proposed section 3UN, or an ancillary direction under proposed section 3UQ (stop and directions powers at airports - see below) and is not reasonably satisfied of the person’s identity;
suspects on reasonable grounds that it is necessary to give the direction to prevent or disrupt relevant criminal activity occurring on the premises of any major airport, or in relation to a flight to or from any major airport; or
considers on reasonable grounds that it is necessary to give the direction to safeguard aviation security.
2.73
Relevant criminal activity is defined under proposed section 3UO(2) as criminal activity involving the commission of an offence punishable by a prison sentence of 12 months or more. The offence must be either against a Commonwealth law, or against a State law with a federal aspect.
Types of move-on directions that can be given
2.74
Proposed section 3UO(3) establishes the types of move-on directions constables and PSOs can give:
The first is to prevent a person from taking a specified flight, or any flight, to or from any specified major airport for a specified period not greater than 24 hours, and
The second requires a person to leave an airport premises as soon as practicable, and not enter that airport premises, or any other specified major airport, for a specified period of no more than 24 hours.
How are move-on directions given?
2.75
‘Move-on’ directions must be provided to the person in writing.
How are move-on directions authorised?
2.76
Move-on directions do not require authorisation by a senior officer unless the direction is for 12 hours or more. In that case, authorisation for the direction must be given by a senior police officer either orally or in writing. The term ‘senior police officer’ is defined in clause 3UO(5) as having the rank of sergeant or an equivalent rank, or higher, or performing the duties of a constable having such a rank.
2.77
The Bill contains a provision to ensure that a move-on direction can only be given to a person once in a seven day period. It is, however, possible to issue a second later direction if the following conditions are met:
a.
the subject of the direction continues to satisfy the requirements of clause 3UO(1), and
b.
the second direction is given, or authorised, by a senior officer, and
c.
no more than one later direction is given within the seven day period, and
d.
the second direction covers a period that would end no later than 7 days after the earlier direction was given, at the same time of day at the place at which the earlier direction was given.
Issues raised – move-on directions
Judicial review
2.78
The Law Council of Australia noted ‘significant economic implications’ that may be imposed on a person in the event they were the subject of a move-on direction. The Council recommended that
the power should 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.
2.79
In response, the Department of Home Affairs noted the Bill does not preclude a person from initiating civil proceedings to seek damages or compensation from losses resulting from an improper use of the directions powers. The Department said that
providing for an expedited judicial review process in the Bill would be difficult, if not impossible, to practically implement and may have significant resourcing implications for Australian courts.
For example, if an expedited judicial review mechanism was introduced, a court would need to consider the legal merits of a move-on direction before the subject of the direction incurred a loss, or before the period of his or her exclusion from the airport lapsed – in many cases, particularly if the subject was attending the airport for the purposes of taking a flight, this could be a matter of a few hours (and a maximum of 24 hours in any case).
2.80
During the public hearing, the Committee asked the Law Council about the practicalities of judicial review and whether it was the Council’s intent for such review to take place ‘on the spot’ or at some stage after the direction had been issued and the loss incurred. The Council said it recognised that
there are practical impediments to there being such a proposed power of judicial review and that it probably could not take place on the spot, and so there would necessarily be some time lag.
2.81
The Law Council went on to note that
what we are seeking is merely that it be very clear from the legislation that that avenue is there and available. We know that when these powers are exercised, they will be exercised on the spot. The person won’t have notice of it. In what we envisage to be the rare circumstance that there’s a need for challenge, they will need to be able to do it quickly. That’s why we say it should be made clear in the legislation.
2.82
In relation to the Department’s concerns that providing expedited judicial review may have ‘significant resourcing implications for Australian courts’, the Committee asked the Department to quantify how often move-on powers may be used. The Department responded that at the major airports,
AFP Members have access to applied State laws, including move-on powers by way of Commonwealth Places (Application of Laws) Act 1970. Since the State-based move on powers are not airport specific, and are not consistent across the jurisdictions they have varied utility at airports. For example, in the last year:
Section 175 of the Crimes Act 1900 (ACT) has been used twice at Canberra Airport in the last year.
Section 17A(1) of the Summary Offences Act 1953 (SA), which relies on trespass, has been used six times at Adelaide Airport in the last year.
Sections 6 and 9 of the Summary Offences Act 1966 (Vic) are used a number of times a week at Melbourne Airport.
We do not have access to data on how many times per year state and territory police may have used move on powers at Australian airports, but note that state and territory police do not have permanent uniformed presence at airports. They may attend at an airport upon request of airport management or individuals.
Authorisation levels
2.83
At the public hearing, the Committee questioned whether the authorisation levels required to issue and approve a move-on direction were appropriate.
2.84
The Committee noted that approval for a move-on direction would only be required from a senior officer if the duration of a move-on direction is greater than 12 hours or a second direction will be issued in a seven-day period. The Committee questioned whether senior officer authorisation should be required for all move-on directions.
2.85
The Department responded that
the requirement to obtain senior level authorisation before executing move-on powers in the first instance would delay steps being taken to remove a person from the airport in situations where the person is considered to be a risk to aviation security.
2.86
The Law Council of Australia recommended tightening proposed section 3UO(5)(b) of the Crimes Act in order to provide ‘clarity as to who may be a senior police officer with the power to authorise a move-on direction that is greater than 12 hours or a second direction issued in a seven-day period’.
2.87
The Council submitted that
proposed paragraph 3UO(5)(b) would define a senior police officer as a constable with the rank of sergeant or an equivalent rank (or higher), or performing the duties of a constable having such a rank ... It is not clear what this may relate to and therefore who may be considered a senior police officer. Proposed paragraph 3UO(5)(b) of the Bill should be amended to clearly articulate what kind of officers may be considered to be performing the duties of sergeant or an equivalent rank (or higher).
2.88
The Department of Home Affairs responded that the phrase
“performing the duties of a constable having such a rank” is included in the Bill to ensure the nationally consistent applicability of the proposed powers where a constable may be performing higher duties, temporarily acting as a sergeant or an equivalent rank (or higher) with formal approval from their employer.
Committee Comment
2.89
The Committee has considered the Law Council of Australia’s recommendation to include an expedited judicial review mechanism in the legislation to allow an individual to appeal a move-on direction.
2.90
The Committee understands that a move-on direction may potentially result in an individual suffering financial loss through, for example, cancellation of airfares and travel arrangements, or from being barred from an airport where an individual may be engaging in business activities.
2.91
The Committee notes that individuals are able to initiate civil proceedings to seek damages or compensation for losses incurred as a result of the use of the directions powers.
2.92
In rare circumstances where an urgent personal or commercial situation exists and an individual may seek to challenge the direction, there should be capacity for an expedited judicial review process.
2.93
The Committee notes that an expedited review process may not be sufficient to prevent a person from missing a flight or from leaving an airport for a period of time following a move-on direction. Nevertheless, the Committee considers an expedited judicial review process should be available.
2.94
The Committee therefore recommends that the Crimes Legislation Amendment (Police Powers at Airports) Bill 2018 be amended to include, in certain restricted circumstances, the right to seek urgent or expedited review.
2.95
The Committee recommends that the Crimes Legislation Amendment (Police Powers at Airports) Bill 2018 be amended to include, in certain restricted circumstances, the right to seek urgent or expedited judicial review.
2.96
With regards to move-on directions, the Committee has concerns regarding the authorisation process. The Committee notes the submission from the Law Council regarding clarification of the definition of senior police officer.
2.97
The Committee recommends that the Bill be amended to provide clarity around the definition of a senior police officer. This may include, for example, reference to circumstances where a constable may be performing higher duties, temporarily acting as a sergeant or an equivalent rank (or higher) with formal approval from their employer.
2.98
The Committee recommends that the Crimes Legislation Amendment (Police Powers at Airports) Bill 2018 be amended to clarify the definition of senior police officer under proposed section 3UO(5)(b) of the Bill.
2.99
To provide the public with a level of assurance that these new powers are being used appropriately and proportionately, the Committee recommends that the Australian Federal Police be required to record the number of occasions on which a move-on direction is issued under proposed section 3UO of Bill. Such records—detailing the total number of move-on directions issued at each major airport, and the number of move-on directions that resulted in an individual missing a flight—should be made public on an annual basis.
2.100
The Committee recommends that the Australian Federal Police be required to record the number of occasions on which a move-on direction is issued under proposed section 3UO of the Crimes Legislation Amendment (Police Powers at Airports) Bill 2018. Such records—detailing the number of move-on directions issued at each major airport, and the number of move-on directions at each major airport that resulted in an individual missing a flight—should be made public on an annual basis.
2.101
The Committee also notes it is proposed that senior police officers may authorise a move-on direction of more than 12 hours orally or in writing. The Committee considers that, given the intrusiveness of such a direction, approvals should be given in writing wherever possible. In urgent situations where it is impracticable to provide written authorisation, the Committee considers that oral authorisation must be documented in writing as soon as practicable.
2.102
The Committee recommends that Crimes Legislation Amendment (Police Powers at Airports) Bill 2018 be amended to ensure that, in circumstances where a senior police officer provides oral authorisation for a move-on direction, the authorisation is documented in writing as soon as practicable.
Stop and ancillary request directions
2.103
The final direction under the Bill is the power under proposed section 3UQ (Stop and directions powers at airports) of the Crimes Act. Proposed section 3UQ allows a constable or PSO to direct a person to ‘stop’. They may also request a person to do ‘anything else the constable considers on reasonable grounds to be necessary’ to obtain identity information or issue move-on directions.
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The Explanatory Memorandum notes the threshold of ‘necessary’
ensures that a constable or PSO must choose the least intrusive means to ensure that an identity check or move-on direction can be facilitated, as a more intrusive option is unlikely to be found necessary on reasonable grounds.
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The Explanatory Memorandum goes on to provide an example of how such a direction could be used. It explains that
an officer could direct a person to step to the side to ensure they are not disrupting the airport walkway, provide contact details for a parent, guardian or friend to corroborate their identity, or identify a travelling companion that could verify their identity or reasons for being in an airport. This provision will not enable an officer to detain a person for the purpose of exercising their powers, or undertake any search and seizure of the person’s property. The intent of the provision is purely to enable an officer to direct a person to undertake reasonable and necessary steps to facilitate the exercise of the constable or PSO’s identity check and move-on directions.
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The Law Council of Australia’s comments with regards to judicial review of ‘move-on’ directions also apply to these stop and ancillary directions. The Council recommended that consideration be given to providing for the judicial review of ‘the ancillary powers used to do anything necessary to facilitate the proposed powers’.
Committee Comment
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The Committee notes that the powers under proposed section 3UQ of the Crimes Act do not authorise searches of an individual or seizure of their property. Rather, the power is designed to assist a constable or PSO to exercise move-on and identity check directions.
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As such, the Committee does not consider it necessary to provide for expedited judicial review of these powers. However, the Committee notes that any expedited judicial review of a move-on direction may also consider how constables or PSO’s issued and conducted the stop and ancillary directions powers.
Police duties
2.109
Proposed section 3UR (constables’ and protective service officers’ duties at airports) is based on the current sections 3UM(4) and 3UM(5) of the Crimes Act. It requires that constables and PSOs comply with proposed section 3UR when issuing identity information or move-on directions.
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Proposed section 3UR(2) requires a plain clothes constable or PSO to show the person evidence that they are an officer or constable. Further, they must inform the individual that it may be an offence if they do not comply with a direction, or if they provide false or misleading information when responding to a direction.
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If not in uniform, proposed section 3UR(3) of the Bill requires the constable or PSO to give the individual the following information, upon request:
the address of the constable’s place of duty,
the constable’s identification number (if any),
the constable’s rank (if the constable has no identification number).
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Australian Lawyers for Human Rights (ALHR) expressed concerns that the Bill required plain clothes officers to provide identification when requested, but not uniformed officers. ALHR submitted that
it is unreasonable not to apply this requirement also to a constable or officer who is in uniform. While there may be other legislation that requires a constable or officer in uniform to give their name, rank etc as required in section 3UR(3) (some of which information might also be apparent from name tags etc), it is recommended that this point also be clarified in this part of the Crimes Act, to avoid any implication to the contrary.
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In a supplementary submission, the Department confirmed that
under section 40YC of the AFP Act, all AFP appointees are required to give a person their name, place of duty and identification number if the person is complaining or proposes to complain about an action of the AFP appointee.
…
Section 3UR of the Bill will ensure that plain clothes officers are also clearly identifiable when using the new powers.
Committee Comment
2.114
The Committee is satisfied that—like plain clothes officers—uniformed constables and PSOs issuing directions under the Bill at major airports would also be required to provide their name, place of duty, or identification number if requested by virtue of the AFP Act.
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However, proposed section 3US creates an offence for plain clothes constables and PSO’s who do not provide this information when asked. The Committee recommends that uniformed officers should be specified in proposed section 3UR in order to ensure they are also captured under the proposed section 3US offence.
2.116
The Committee recommends that proposed section 3UR of the Crimes Legislation Amendment (Police Powers at Airports) Bill 2018 be amended to ensure that obligations to provide information if requested apply equally to uniformed and plain clothes constables and Australian Federal Police protective service officers.
Offences
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Proposed section 3US (Directions at airports—offences) creates two offences. Both offences largely mirror the current section 3UN of the Act, but reflect the extension of powers and responsibilities to PSOs in addition to constables.
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The first offence under proposed section 3US(1) applies to individuals who fail to comply with a direction to provide identification, a direction to stop or a direction to move-on, and subsequently engage in conduct contravening that direction. The maximum punishment is 20 penalty units ($4200). This proposed penalty is the same as the penalty for the similar offence under current section 3UN(1) of the Act.
2.119
Absolute liability applies to proposed section 3US(1)(d), that ‘the constable or officer complies with subsection 3UR(2)’ (constables’ and protective service officers’ duties at airports).
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One submitter noted that ‘the application of absolute liability is unnecessary and adds insult to injury’. The Department responded that
a constable or officer’s compliance with his or her duties in subsection 3UR(2) is a precondition that must be met before a direction is given. The state of mind of the defendant as to the officer’s compliance should not be a relevant consideration in their criminal liability for failing to abide by a direction.
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The second offence is aimed at constables and PSOs who engage in conduct that breaches their requirements under proposed section 3UR(2). The maximum punishment is five penalty units ($1050). This proposed penalty is the same as the penalty for the same offence under current section 3UN(1) of the Crimes Act.
Committee Comment
2.122
The Committee supports the proposed offences provisions, noting that the penalties are based on existing provisions under section 3UN of the Act.
Other amendments
2.123
The final clause in the Bill, clause 6, makes a minor amendment to the definition of a protective service offence under the AFP Act. This amendment ensures that the offence under proposed section 3US(1) is a protective service offence for the purposes of the AFP Act.
Concluding comments
2.124
Overall, the Committee is satisfied with the provisions contained in the Bill, and subject to the recommendations listed in this report, the Committee recommends that the Crimes Legislation Amendment (Police Powers at Airports) Bill 2018 be passed.
2.125
The Committee recommends that, subject to the recommendations in this report, the Crimes Legislation Amendment (Police Powers at Airports) Bill 2018 be passed.
Mr Andrew Hastie MP
Chair
February 2019