Chapter 2
Provisions and issues
2.1
This chapter sets out the key provisions of the Aviation Crimes and Policing
Legislation Amendment Bill 2010 (the Bill). The Bill contains two schedules.
Revised definitions
2.2
The proposed legislation seeks to update the definition of a
Commonwealth aerodrome, which is currently:
...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
Federal airport; and includes any building, structure, installation or
equipment in that area, or on the land that forms the Federal airport, that is
provided for use in connection with the operation of that area or land as an
aerodrome or Federal airport, as the case may be.[1]
2.3
Schedule 1 proposes to replace the term 'Federal airport' in the
definition of 'Commonwealth aerodrome'. 'Federal airport', a term originally
derived from the repealed Federal Airports Corporation Act 1986, would be
replaced with 'a core regulated airport' within the meaning of the Airports
Act 1996.[2]
2.4
Airports that fall within the definition are: Sydney (Kingsford-Smith),
Sydney West (Badgery's Creek); Melbourne (Tullamarine); Brisbane; Perth; Adelaide;
Gold Coast; Hobart; Launceston; Alice Springs; Canberra; Darwin; Townsville;
and any airport specified in the regulations, where the site of the airport is
a Commonwealth place.
2.5
The definition has been framed to apply the relevant sections of the Bill
to significant airports for which there is clear constitutional power for the
offences contained in the Bill to apply, principally because the airports are
Commonwealth places or are in a territory.
2.6
A definition of 'serious harm' is also included to give effect to new offences
proposed by the Bill.
Increased penalties
2.7
The Bill proposes various changes to the Crimes (Aviation) Act 1991 (the
Act) to increase penalties for a number of offences. Under the proposal,
maximum penalties for some aviation-related crimes would increase. Determination
of the proposed penalty for each offence has been undertaken in line with
considerations spelt out in the Guide to Framing Commonwealth Offences, Civil
Penalties and Enforcement Powers.[3]
The government argues that these proposed changes would allow these offences to
carry appropriate penalties. They fall into three general categories of
penalties which have been increased to 20 years, 14 years and 10 years
respectively.
2.8
According to the Explanatory Memorandum (EM), these increased maximum
penalties would improve consistency between the Act and other similar Commonwealth
legislation. The changes would also ensure the consistency of penalties
relating to offences within the same tier[4],
and hence similar levels of potential seriousness.[5]
Penalties increased to 20 years
2.9
The offences listed in this section fall within tier two of the
categorisation system outlined in the EM. Tier two offences are described as
follows:
The offences in this tier all carry a serious aggravating
element of interference with the operation or safety of an aircraft or airport.
These offences typically involve the creation of significant danger to whole
groups of people.[6]
2.10
The maximum penalties of five offences are increased to 20 years
imprisonment.
2.11
Item 6 amends the maximum penalty for the offence of intentionally
prejudicing the safe operation of an aircraft. The maximum penalty would be
increased from 14 years to 20 years imprisonment.
2.12
Item 8 amends the maximum penalty for the offence of assaulting,
threatening or intimidating a crew member onboard an aircraft interfering with
his or her ability to perform function or duties. The maximum penalty would be
increased from 14 years to 20 years imprisonment.
2.13
Item 16 amends the maximum penalty for the offence of endangering an
aircraft in flight in Australian territory or by an Australian citizen. The
maximum penalty would be increased from 14 years to 20 years imprisonment.
2.14
Item 17 amends the maximum penalty for the offence of endangering the
safety of an aircraft in flight, or an air navigation facility so as to affect
the safety of an aircraft in flight. The maximum penalty would be increased
from 7 years to 20 years imprisonment.
2.15
Item 18 amends the maximum penalty for the offence of using a substance
or thing to commit an act of violence at a prescribed airport, where the act
causes or is likely to cause injury or death and endanger the safe operation of
the airport. The maximum penalty would be increased from 15 years to 20 years
imprisonment.
Penalties increased to 14 years
2.16
Tier three offences would attract a maximum penalty of 14 years of
imprisonment. Tier three offences are described as follows:
Offences contained within this tier deal with actions
involving or actions against aircraft and aviation environments. Many offences
have the aggravating element of danger or harm to an individual but unlike the
more serious tier one and two offences, none require proof of recklessness as
to the safety of human life or proof of danger to whole groups of people.[7]
2.17
Item 19 amends the maximum penalty for the offence of destroying or
disrupting facilities or services of a prescribed airport, or destroying or
seriously damaging any aircraft at a prescribed airport so as to endanger life
or the safe operation of the airport. The maximum penalty would be increased
from 10 years to 14 years imprisonment.
2.18
Item 20 amends the maximum penalty for the offence of endangering the
safety of a Commonwealth aerodrome or air navigation facility or those within
its limits. The maximum penalty would be increased from 7 to 14 years
imprisonment.
Penalties increased to 10 years
2.19
Tier four offences would attract a maximum penalty of 10 years
imprisonment. The EM described this tier as including 'catch-all' offences
which do not have the more serious, aggravating elements of the higher penalty
offences.[8]
Six offences within this category are affected by the Bill.
2.20
Item 5 amends the maximum penalty for the offence of taking or
exercising control of a Division 3 aircraft. The maximum penalty would be
increased from 7 years to 10 years imprisonment.[9]
2.21
Item 10 amends the maximum penalty for the offence of recklessly
endangering the safety of an aircraft. The maximum penalty would be increased
from 7 years to 10 years imprisonment.
2.22
Item 12 would amend the maximum penalty for the offence of carrying or
placing dangerous goods onboard an aircraft. The maximum penalty for this
offence would be increased from 7 years to 10 years imprisonment. The default
maximum fine that would apply to this offence under the Crimes Act would be 600
penalty units ($66,000).
2.23
Items 14 and 15 would amend the maximum penalties for hoax and threat
offences. The maximum penalties for these offences would be increased from 2
years to 10 years imprisonment. The default maximum fine that would apply to
this offence under the Crimes Act would be 600 penalty units ($66,000). Currently,
the maximum penalty of 2 years is significantly lower that the penalty for
other hoax offences contained in Commonwealth legislation.
2.24
Item 21 amends the maximum penalty for the offence of threatening to
damage a Commonwealth aerodrome or air navigation facility or harm those
within. Item 22 amends the maximum penalty for the offence of making a false
statement about taking control or endangering the safety of a Commonwealth
aerodrome or air navigation facility or harming persons within. The maximum
penalties for both offences have been increased from 2 years to 10 years imprisonment.
New offences
2.25
Schedule 1 of the Bill also proposes three new aviation-related offences.
They are intended to ensure that an appropriate range of offences are
applicable in the airport environment and the aviation sector.[10]
2.26
The new offences are based on existing offences in the Act. In one case,
a lower-level version of the offence is established, while in the other two
cases, an aggravated version of the offence (i.e. likely to endanger life or
cause serious harm) is created.
Assault of an aircraft crew member
2.27
Item 7 inserts a new section 20A into the Act to create a new general
offence of assaulting, threatening with violence or intimidating an aircraft
crew member. The maximum penalty for this offence would be 10 years
imprisonment. In essence, this is a lower level version of the existing offence
of assaulting, threatening with violence or otherwise intimidating a member of
the aircrew, which requires that the offence results in the interference with
the member's performance of functions or duties connected with the operation of
the aircraft. This is not a requirement for the new, more general offence.
2.28
Item 9 provides for alternative verdicts for offences against the
existing higher level section. If a person is not found guilty of the existing higher
level assault offence, he or she may still be found guilty of the more general
offence of assaulting crew proposed by the Bill.
2.29
Under the current legislation it is necessary to prove that an act of
assault has interfered with the capacity of a crew member to perform their function
or duty. Through the creation of this new offence, it would no longer be
necessary to find a person guilty of such an offence which requires proof that
the defendant’s conduct impeded a crew member’s ability to perform their
function or duties. The EM argues that the 'liability for such an assault
should not depend on the crew member's ability to perform his or her duties.'[11]
Endangering safety of an aircraft
2.30
Item 11 inserts a new section 22A into the Act. The section creates a
new offence of recklessly endangering the safety of an aircraft likely to
endanger life or cause harm to an individual. The maximum penalty for this
offence would be 14 years imprisonment.
2.31
The offence detailed in section 22A is an aggravated offence provision
following on from the existing lower penalty offence of endangering the safety
of an aircraft (section 22). The proposed offence deals with more serious
actions, where the act in question carries the potential or risk of causing
serious harm or endangering life. The higher penalty level takes this into
account.
2.32
As with the assault offence described above, a clause has been added that
provides for alternative verdicts for offences against this subsection. A
person may be found not guilty under subsection 22A(1) (an offence likely to
endanger a person's life or cause serious harm), but may still be found guilty
under section 22 (endangering the safety of an aircraft).
Having dangerous goods onboard an
aircraft
2.33
Item 13 inserts a new section 23A into the Act. The section creates a
new offence of direct or indirect possession or placing of dangerous goods
onboard an aircraft giving rise to death or serious harm to an individual. The
maximum penalty that would apply for this offence is 14 years imprisonment.
2.34
The offence in section 23A is an aggravated offence provision following
on from the lower penalty offence of carrying or placing of dangerous goods
onboard an aircraft.
2.35
This item also provides for alternative verdicts for offences against
this subsection. A person may be found not guilty under subsection 23A(1) (engaging
in an act likely to endanger a person's life or cause serious harm), but may
still be found guilty under section 23(1) (carrying, placing or delivering
dangerous goods).
Policing at airports
2.36
In January 2009, the Australian Government commissioned Mr Roger Beale
AO to conduct an audit of policing in Australia. The audit was established to
examine and report on Commonwealth law enforcement arrangements including
Australian Federal Police (AFP) capabilities.
2.37
On 18 December 2009, the Minister for Home Affairs, The Hon Brendan
O'Connor MP, released New Realities: National Policing in the 21st
Century—Federal Audit of Police Capabilities (Beale Audit) and outlined the
government's response to the recommendations contained within.[12]
This included reforms to strengthen major airport policing in Australia. Central
to these reforms was the announcement of a new model for the policing of
Australia's 11 major airports—Adelaide, Alice Springs, Brisbane, Cairns,
Canberra, Darwin, Gold Coast, Hobart, Melbourne, Perth and Sydney.
2.38
With respect to the AFP's aviation function, the Beale Audit recommended
replacing the current 'hybrid' or 'unified policing model' with an 'All-In'
policing model. It argued that given the Commonwealth's international
obligations, its broader responsibilities for the regulation of aviation and
airports and its legal capacity in relation to Australia's principal airports, the
'All-In' model provides the most effective integrated airport policing
capability.[13]
The audit recommended the Commonwealth:
...vigorously pursue the replacement of the existing Unified
Policing Model with an 'All In' model under which the Commonwealth accepts the
responsibility of funding and staffing nationally coordinated airport security
and policing services, noting that this will likely take several years before
being fully operational. It should take any legislative action, or pursue the
renegotiation of arrangements in a number of states and territories, to ensure
that the powers of AFP members policing airports are clear and adequate to the
task.[14]
2.39
Certain aspects of this Bill provide amendments that support the move
towards an 'All-In' policing model. As described in Chapter 1, it amends two
acts: the Commonwealth Places (Application of Laws) Act 1970 (Copal Act)
and the Australian Federal Police Act 1979 to provide AFP members with
the powers to investigate offences committed at certain airports.
2.40
Amendments to the Copal Act overcome a technical anomaly that renders
standard AFP arrest and search powers unavailable to the AFP when dealing with
state offences that are applied as Commonwealth law in airports that are
Commonwealth places. The EM argues that under the current arrangements the AFP
lack the appropriate range of powers to conduct investigations in these
situations.[15]
2.41
The standard powers that will be enabled by the Bill include the powers
to search, gather information and arrest, seize and condemn forfeitable goods,
institute proceedings in respect of offences, remand and discharge defendants
and engage in 'forensic procedures'.[16]
2.42
In his Second Reading Speech, Minister Brendan O'Connor provided an
example of how these changes would provide an officer with a 'fully-sworn'
presence:
For example, if a murder, assault or theft occurs at Sydney
or Melbourne airport, this is a state offence that applies as Commonwealth law
because these are Commonwealth places. These amendments will ensure standard
AFP powers—such as arrest and search—are available in response. Handling of
these cases is also governed by protocols between the Australian Federal Police
and state and territory police.
The amendment to the AFP Act removes doubt as to the legal
basis for AFP members to be appointed as members or special constables of state
and territory police forces. The bill also makes clear the legal basis for AFP
members to be appointed as members of police forces or other law enforcement
agencies of foreign countries.
Conferral of special constable status is an important tool
for cooperation between police forces, and gives a member of a force the powers
of another police force, subject to appropriate controls and accountabilities. The
amendments make clear that AFP members can participate in these arrangements.[17]
2.43
Item 1 of Schedule 2 explicitly allows AFP members and special members
to be appointed (sworn in) as members or special constables to state and territory
police forces and other law enforcement agencies of foreign countries. While
this is an existing practice, the amendment will clarify the legal basis for
this to occur.[18]
Issues raised in submissions
2.44
The committee received a total of nine submissions to the inquiry, and
the issues they raise are summarised in this section.
2.45
The Bill was given general support by the Police Federation of Australia
(PFA), Qantas, the Civil Aviation Safety Authority (CASA), South Australia
Police, the Attorney-General's Department and the Australian Crime Commission.
The New South Wales Council for Civil Liberties, the New South Wales Department
of Premier and Cabinet and Victoria Police raised several issues with the Bill.
Changes to policing arrangements
2.46
As noted above, the Bill includes provisions that amend legislation in
line with the Australian Government's stated intention to move to an 'All-In'
airport policing model, as recommended by the Beale Audit. These provisions
were supported by PFA, Qantas, South Australia Police and the Australian Crime
Commission.
2.47
Both PFA and Qantas were of the view that the current policing
arrangements were not effective and that the proposed changes would be an
improvement.
2.48
PFA informed the committee that they had previously examined police
resources at the eleven major airports and concluded that the Unified Policing
Model was failing. PFA's conclusion was that airport policing should be
reformed to give the AFP sole responsibility at major airports.[19]
PFA therefore supported the Bill.
2.49
Qantas noted statements it had made previously to the effect that the
current resource deployment arrangements contributed to sub-optimal security
outcomes. Qantas therefore welcomed the proposed changes.[20]
2.50
The Australian Crime Commission (ACC) supported the proposed changes to
policing contained in the Bill, on the grounds that it would improve ACC
operations, stating:
In particular, [Schedule 2] Item 1, which deals with the
appointment of members to other police forces, will pave the way in
Commonwealth law for ACC staff who are AFP Special Members and AFP members on
secondment to the ACC to acquire additional powers as needed to effectively
participate in ACC operations and investigations that concern offences against
both State and Commonwealth laws.[21]
2.51
The New South Wales Department of Premier and Cabinet (DPC) informed the
committee that the New South Wales Police Force (NSW Police) had advised them
that the proposed changes in the Bill were uncontentious.[22]
However, DPC raised some concerns with the committee regarding the proposed
transition to an 'All-In' policing model, which is facilitated by the Bill.
2.52
Firstly, DPC drew the committee's attention to existing mixed model
cooperative arrangements for the policing of Sydney Airport between the NSW
Police and the AFP, which are contained in a Memorandum of Understanding (MOU) and
Letter of Exchange, with provision for a number of NSW Police operational
interests at Sydney Airport.[23]
2.53
DPC was of the view that these documents would require careful review to
ensure that NSW Police's interests were protected during and after the
transition to the 'All-In' model. These interests include emergency and
incident management, security, information exchange and responding to serious
and mandatory reportable crimes at the airport.[24]
2.54
Victoria Police raised a similar issue, highlighting the need to
consider the investigation of serious crimes using state offences. Victoria
Police's submission specifically noted the need to develop investigation
protocols as part of the transition to the new policing model.[25]
2.55
A second issue related to the transition to the 'All-In' model raised by
DPC was the management of large scale emergencies at Sydney Airport. Currently,
this responsibility falls to NSW Police. DPC noted that if the AFP assumed
responsibility for all policing at Sydney Airport, this could include
responsibility for emergency management. As this issue is not addressed in the
current Bill, DPC recommended further discussion on the issue by the agencies
involved.[26]
2.56
In its submission to the committee, the Attorney-General’s Department
submitted that:
As part of the implementation of the ‘All-In’ model, it is
expected that [the MOU and Letters of Exchange] will be reviewed and
renegotiated to ensure that the responsibility for future responses and
investigations remain[s] effective...[i]t is expected that the AFP and State and
territory police will continue to work closely together to maintain public
safety and efficiently use resources in response to serious crimes. In the case
of serious state offences and critical incidents, it is anticipated that the
current arrangements in operation would continue to apply.[27]
2.57
The Department also submitted that:
Effective transition to the ‘All-In’ model is heavily reliant
on the relationships that are already in place between the AFP and State and
Territory police. The ‘All-In’ model will be implemented in close consultation
with the States and Territories over the next two to four years. As the
transition progresses, all jurisdictions will be consulted in relation to
timing and transitional arrangements.[28]
2.58
The committee notes that the successful introduction of the 'All-In'
policing model will naturally require the kind of ongoing discussion and
cooperation between government agencies that has been promised by the
Attorney-General’s Department. The committee is satisfied that the particular
measures included in the proposed legislation are sound, and that transition
challenges appear manageable.
Increased penalties
2.59
The increased penalties for aviation crimes that would be established by
the Bill were specifically referred to in submissions by Qantas, CASA, and the
NSW Council for Civil Liberties.
2.60
Qantas and CASA supported the increased penalties. CASA informed the
committee that it would shortly be reviewing civil aviation legislation,
including the Civil Aviation Act 1988. This review would include
ensuring that the offence provisions in that legislation also carried
appropriate penalties.[29]
2.61
The NSW Council for Civil Liberties (CCL) was of the view that the
increased penalties were unlikely to result in a commensurately increased
deterrent effect.[30]
CCL questioned whether the proposed penalties reflected the seriousness of the
offences, noting that the Explanatory Memorandum did not make any arguments
justifying the increases on that ground.[31]
2.62
The Attorney-General’s Department submitted that, at least in respect of
offences involving intimidation:
Intimidation in some cases could be highly disruptive, a
threat to safety and warrant a higher penalty given that an aircraft is a
confined space, often includes children and aged passengers and the crew has
other duties which are also relevant to safety. These circumstances mean that
the consequences of the commission of the offence are particularly dangerous and
damaging.[32]
2.63
The Department also pointed out that incidents would be investigated by
the AFP for assessment as to their seriousness, and that the AFP may choose not
to send a matter on to prosecution. In the event a matter is prosecuted and a
conviction recorded, the Court retains the discretion to impose a penalty
appropriate in the circumstances of the individual case.[33]
2.64
The committee is of the opinion that given the seriousness of the crimes
involved the increased penalties are warranted.
Creation of new offences
2.65
In addition to the point raised above, CCL was also concerned by the new
general offence of assaulting, threatening with violence or intimidating a crew
member, with a maximum penalty of 10 years. CCL questioned the unqualified
nature of 'intimidation' and noted that a person may therefore be subject to
conviction for behaving with justified annoyance, such as by shouting or
threatening to inform the crew member's employer.
2.66
The Attorney-General’s Department’s response to this observation was
that:
Aggressive behaviour directed against aircraft crew members,
particularly in instances where the behaviour is intimidating or escalates into
an assault, may well be captured by this offence. However, this kind of
behaviour would only be subject to this offence if in fact it did intimidate an
aircraft crew member. General annoyance and frustration could be expressed
about a problem in a range of ways without it necessarily being intimidating
and falling within the provision.[34]
2.67
The committee is inclined to agree with the CCL that the unqualified nature
of intimidation may capture behaviour of a kind that should not fall within an
offence carrying a maximum penalty of 10 years imprisonment. The committee is
therefore of the opinion that further guidance as to the appropriate
application of the intimidation provision be given in the EM.
Recommendation 1
2.68
The committee recommends that the Explanatory Memorandum to the Bill be amended,
so as to include examples of behaviour that would, and would not, be considered
intimidation, to provide guidance on the appropriate limit of the application
of the offence established by item 7.
2.69
On the basis of the submissions provided over the course of the inquiry,
the committee is satisfied, with the exception of the issue raised in paragraph
2.65, that the Bill will improve aviation security through the proposed changes
to policing, offences and penalty structure.
Recommendation 2
2.70
The committee recommends that, subject to the preceding recommendation,
the Senate pass the Bill.
Senator Trish Crossin
Chair
Navigation: Previous Page | Contents | Next Page