Referral of the Bill
The Crimes Legislation Amendment (Police Powers at Airports) Bill 2018 (the Bill) was introduced into the House of Representatives by the Hon Peter Dutton MP, Minister for Home Affairs, on 12 September 2018.
In his Second Reading speech, the Minister said:
It is unfortunate but true that airports are terrorist targets. This was most clearly illustrated last July, when catastrophic consequences were avoided with the disruption of a terrorist plot targeting an international flight departing from Sydney …
The Crimes Legislation Amendment (Police Powers at Airports) Bill will help to ensure that Australia’s aviation network remains among the safest in the world. This bill will enable police officers to appropriately engage with people at Australia’s major airports in specified circumstances, to assess and disrupt potential security and criminal threats.
On 13 September 2018, the Minister for Home Affairs referred the Bill to the Parliamentary Joint Committee on Intelligence and Security (the Committee) for inquiry and report.
In his referral letter, the Minister noted that he had responsibility for the Australian Federal Police (AFP) and the Australian Security Intelligence Organisation (ASIO), and that
[g]iven the interoperability of the work of the national security agencies with respect to aviation security in circumstances covered by the Bill, I would appreciate the Committee’s consideration of this legislation.
The Committee agreed to undertake an inquiry into the Bill and provide Parliament with an advisory report.
Conduct of the inquiry
The Chair of the Committee, Mr Andrew Hastie MP, announced the commencement of the inquiry by media release on 17 September 2018, and invited written submissions to be sent to the Committee by 5 October 2018.
The Committee received 11 submissions, including four supplementary submissions and one confidential submission. Submissions are available on the Committee’s website. A list of submissions is at Appendix A.
The Committee held a public hearing in Canberra on Wednesday, 17 October 2018. A list of witnesses appearing at the hearing is included at Appendix B. Transcripts from the public hearings are available on the Committee’s website.
This report consists of two chapters:
This chapter sets out the context and conduct of the inquiry, discusses the rationale for the Bill and provides an overview of the current provisions in the Crimes Act 1914 (Crimes Act) that the Bill seeks to amend,
Chapter 2 examines the Bill in detail, addresses issues raised by submitters, and includes Committee comment and recommendations.
Current provisions under the Crimes Act 1914
The current Division 3B of Part IAA of the Crimes Act allows for a constable at a constitutional (or other) airport to request a person to provide evidence of their identity.
A constable is defined to be a ‘member or special member of the [AFP] or a member of the police force or police service of a State or Territory’.
A constitutional airport is defined by reference to section 3 of the Crimes (Aviation) Act 1991 and section 7 of the Airports Act 1996. It includes a Commonwealth aerodrome, being
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
a core regulated airport, defined to include Sydney (Kingsford‑Smith) Airport, Sydney West Airport, Melbourne (Tullamarine) Airport, Brisbane Airport, Perth Airport, Adelaide Airport, Gold Coast Airport, Hobart International Airport, Launceston Airport, Alice Springs Airport, Canberra Airport, Darwin International Airport and Townsville Airport.
It also includes ‘another airport, if the airport is in a Territory’.
A constable can only make a request if they reasonably suspect that the person has committed, is committing, or intends to commit, an offence punishable by a minimum 12 month jail term.
An individual who is the subject of an identity information request must give the constable evidence of their identity. This can be in the form of:
a government photographic identity document (for example, a passport or drivers licence, including those issued in a foreign country);
another identity document (if they are unable to produce a government photographic identity document); or
their name and address (if they are unable to produce documents under (a) and (b)).
Failure to comply with this request attracts a maximum penalty of $4200 (20 penalty units).
The Crimes Act also contains a maximum penalty of $1050 (five penalty units) for constables who fail to inform the person that it may be an offence not to comply with the request, or to give a false or misleading document or information in response to the request.
The same maximum penalty applies where, if the constable is not in uniform, they fail to give the person evidence that they are a constable. If requested by the person, the constable must provide,
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).
Rationale for the Bill
In his referral letter, the Minister for Home Affairs noted that the amendments proposed in the Bill were based on advice from the AFP that ‘current provisions for requesting evidence of identity are no longer fit-for-purpose’.
The Department of Home Affairs and the AFP identified limited and inconsistent abilities to ‘move-on’ individuals from airports as an issue with the current laws.
Inadequacies in current identity check powers
In its submission to the Committee, the Department of Home Affairs commented on the ‘inadequacy’ of the current framework to allow police to
adequately interact with people who may be engaging in suspicious conduct in an airport precinct, such as scoping the vulnerabilities of aviation security apparatus, as this conduct may not necessarily lead to a suspicion of involvement in the commission of a specific offence. The AFP has reported that the weaknesses identified in the current framework impact on its ability to assess and manage potential threats within airports.
In his second reading speech, the Minister for Home Affairs stated:
Police intelligence or observations that a person is behaving suspiciously in the airport—for example, by taking photos or videos of security screening points—will not always meet the current threshold. This is not satisfactory in today’s threat environment.
At the public hearing on 17 October 2018, the AFP Deputy Commissioner National Security used the example of the 2017 plot to blow up a plane departing Sydney Airport to highlight current inadequacies in the Crimes Act. The Deputy Commissioner noted that the individuals alleged to have been attempting to place a bomb on the plane
were acting suspiciously at the time, we understand, through looking back at CCTV and other footage that we have. In these circumstances [under the current legislation] … if our officers saw those people in the airport environment, we would not have the power to go and ask for their identification.
Limited and inconsistent ‘move-on’ powers
The Department of Home Affairs noted that the power to direct a person to ‘move-on’ from an airport was both limited and inconsistent under Australian laws. The move-on power is not currently contained in the Crimes Act, however, the Department noted that police had a limited power under the Aviation Transport Security Act 2004 to direct a person to move-on from an airport ‘if they reasonably suspect the person is committing or has committed an offence against the Act’. However, the Department pointed out that that power
may only be exercised for the purpose of safeguarding against unlawful interference with aviation, and does not extend to the commission of other offences or disruptive behaviour more generally.
The Department submitted that AFP officers at airports may also rely upon move-on directions available in limited circumstances under State or Territory legislation. In a supplementary submission, the Department explained that the ‘move-on’ powers vary between states and territories. For example, in Tasmania
a police officer may direct a person to leave a public place for not less than four hours … [c]omparatively, in the Northern Territory, a police officer is permitted to issue a move-on direction in relation to a place of area for up to 72 hours.
Not only do durations of move-on powers vary, but also thresholds. In the examples above:
The threshold for Tasmanian police to issue a move-on direction is that the officer ‘believes on reasonable grounds that the person is likely to commit a breach of the peace’.
In the Northern Territory, the requirement is that the officer must reasonably suspect that the person is about to commit an offence at the place or area.
In order to address these limitations, the Bill seeks to update Division 3B of Part IAA of the Crimes Act to provide additional powers for police at airports.
Amendments to the Act include:
broadening the scope of Division 3B to apply to AFP protective service officers (PSOs),
empowering constables and PSOs to direct individuals to ‘move-on’ from an airport,
empowering constables and PSOs to direct an individual not take a flight to or from a major airport for a specific period of up to 24 hours,
providing constables and PSOs with new grounds to issue a direction, based on safeguarding ‘aviation security’,
replacing the term ‘constitutional airport’ with ‘major airport’ under the definitions section to enable the Minister to add additional airports to be captured under Division 3B, and
defining ‘premises’ of an airport to ensure the relevant powers may be exercised anywhere on an airport site, or any building or structure on the site.