Crimes Legislation Amendment (Police Powers at Airports) Bill 2018 - Commentary on Ministerial Responses [2018] AUSStaCSBSD 237 (17 October 2018)

• Crimes Legislation Amendment (Police Powers at Airports) Bill 2018
• Trespass on personal rights and liberties 14

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Crimes Legislation Amendment (Police Powers at Airports) Bill 2018

Purpose	This bill seeks to amend the Crimes Act 1914 to allow constables and protective service officers to: • direct a person to produce evidence of their identity; • direct a person to leave airport premises and/or not take a specified flight or any flight, for up to 24 hours; and • direct a person to stop or do anything else necessary to facilitate an identity check or move-on direction
Portfolio	Home Affairs
Introduced	House of Representatives on 12 September 2018
Bill status	Before the House of Representatives

Trespass on personal rights and liberties ^[14]

2.39 In Scrutiny Digest 11 of 2018^[15] the committee requested the minister's advice as to:

• the circumstances in which it is envisaged the powers in proposed sections 3UN, 3UO and 3UQ (identification, stop and move-on directions powers) would be exercised to ensure the 'good order' of an airport, its premises, and flights, and the need for such powers; and

• whether these circumstances would extend beyond ensuring safety or disrupting or preventing criminal activity; in particular, whether the powers may be exercised to disrupt or quell a peaceful protest.

Minister's response^[16]

2.40 The minister advised:

Circumstances where proposed powers may be exercised
Airports, and the aviation network more broadly, are known targets for terrorists and for serious and organised crime groups seeking to expand their operations in activities such as illicit drug trafficking, both within Australia and abroad. The Crimes Legislation Amendment (Police Powers at Airports) Bill 2018 (the Bill) will address these risks by giving police broader powers to assess and disrupt potential criminal activity and threats to aviation security, and identify the individuals involved. The powers proposed in the Bill provide a consistent approach across Australia's major airports, with the agility to address circumstances which current police powers within airports do not.
For example, police intelligence or observations may indicate that a person is behaving suspiciously in the airport - such as a person taking photos or videos of security screening points. The proposed powers under 3UN, 3UO and 3UQ will allow police to direct a person to stop, request the identification of individuals involved and, where appropriate, direct the individual to move on from the airport environment, immediately disrupting their activities, and allowing time for further investigations to occur. Under the current framework, police are unable to request the identification of persons engaging in suspicious conduct at airports without a reasonable suspicion that an offence has been, is being, or will be committed.
These powers will ensure police can respond to serious threats that arise in the aviation environment in a more tailored and proportionate way. For example, police may issue a move-on direction to exclude known members of an Outlaw Motorcycle Gang (OMCG) from the arrivals hall of an airport for a period of two hours, in circumstances where police have intelligence about an incoming flight carrying rival gang members. In such a situation, police are unlikely to meet the threshold of reasonable suspicion that a crime will be committed, but there is a strong possibility that there may be a disruption to the good order of the airport, which can be prevented by directing the OMCG members to move on from the airport premises.
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.
Further explanation of the definition of aviation security
Section 3UL of the Bill inserts a definition for the term aviation security. For the purposes of Division 38, aviation security includes the good order and safe operation of a major airport and its premises, and flights to and from a major airport.
The definition of aviation security, and the inclusion of the term 'good order', is designed to ensure that aviation security is interpreted in accordance with its ordinary meaning, and captures a wide range of disruptive behaviour that poses a risk to others in the aviation environment (including, but not limited to, criminal conduct). Threats to aviation security, in this context will extend to a range of conduct, such as acts of terrorism, drug trafficking, violent behaviour, extortion, or any other activity that is disruptive to, or risks the safety of, the public and the airport. As outlined above, the Bill does not give police the ability to use the new powers to disrupt or quell a peaceful protest.
Safeguards against misuse of powers
It is also important to note that there are various safeguards on the use of the proposed powers, including those prescribed in the Bill, and those arising from other Commonwealth, State and Territory legislation, as well as the policies, procedures and specialist training of the Australian Federal Police (AFP).
For example, the Bill includes a requirement for a senior police officer to authorise a move-on direction that excludes a person for more than twelve hours or a subsequent direction within seven days, and a restriction on more than two move-on directions in relation to the same person within a seven day period. Further, as prescribed by the Bill, police will be required to issue a written move-on direction which details a person's exclusion from any or specified flights and/or airports.
The most important safeguard built into the Bill is that, to issue a direction, police must consider that there are reasonable grounds for doing so which are linked to criminal activity or aviation security. This 'reasonable grounds' requirement ensures that directions are based on actionable observations or intelligence relevant to aviation security or criminal conduct.
Commonwealth officers exercising these powers are also bound by Commonwealth anti-discrimination legislation, such as the Privacy Act 1998, the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992 and the Age Discrimination Act 2004. State and Territory police officers are also bound by similar legislation within their own jurisdictions.
Finally, the policies, procedures and specialist training of the AFP will ensure that the proposed identity checking, stop and move-on directions are properly exercised, and that each use of the powers is recorded appropriately. Members of the AFP are appropriately trained in Behavioural Assessment and Security Questioning to identify known behavioural traits displayed by people who are about to commit a criminal act, and to ask targeted questions of persons of interest, without prejudice or discrimination.
Police officers are also bound by professional standards that preclude them from using their powers in a discriminatory fashion. The AFP Code of Conduct, for example, requires all AFP appointees to act without discrimination or harassment in the course of AFP duties. A breach of this Code may lead to disciplinary action, including termination.

Committee comment

2.41 The committee thanks the minister for this response. The committee notes the minister's advice that under the current framework, police are unable to request the identification of persons engaging in suspicious conduct at airports without a reasonable suspicion that an offence has been, is being, or will be, committed, and that the proposed powers will ensure that police can respond to serious threats that arise in the aviation environment in a more tailored and proportionate way.

2.42 The committee further notes the minister's advice that the inclusion of the term 'good order' in the definition of 'aviation security' is designed to ensure that 'aviation security' is interpreted in accordance with its ordinary meaning, and captures a wide range of disruptive behaviour that poses a risk to others in the aviation environment (including, but not limited to, criminal conduct). The committee welcomes the advice that a peaceful protest would not be considered a threat to aviation security, and consequently the AFP would not be able to use the new powers to disrupt or quell a peaceful protest.

2.43 Finally, the committee notes the minister's advice that there are various safeguards in place in relation to the proposed powers, including statutory safeguards under the bill and other legislation, and the policies, procedures and specialist training of the AFP. The committee notes the advice that the powers to issue directions would be subject to a requirement that the relevant officer consider that there are 'reasonable grounds' for doing so which are linked to criminal activity or aviation security, which will ensure that directions are based on actionable observations or intelligence related to aviation security or criminal conduct.

2.44 While noting this advice, the committee remains concerned that the bill would confer on the AFP broad powers 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 identified threat to safety. In this regard, the committee notes that while the minister's response indicates that 'aviation security' is intended to capture behaviours that pose a risk to others in the aviation environment, there is nothing on the face of the bill that would limit the exercise of the powers in proposed sections 3UN, 3UO and 3UQ to situations where criminal activity or a threat to safety is identified, particularly given that 'aviation security' includes the 'good order' of the airport and flights.

2.45 The committee welcomes the advice that the bill does not give police the ability to use the new powers to disrupt or quell a peaceful protest. However, noting that the powers in proposed sections 3UN, 3UO and 3UQ would allow the AFP to give directions to safeguard the 'good order' of an airport, the committee considers, for the sake of certainty, it would be appropriate to make it clear on the face of the bill that such powers may not be used to disrupt or quell a peaceful protest.

2.46 The committee requests that the key information provided by the minister be included in the explanatory memorandum, noting the importance of this document as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.47 The committee considers, in line with the minister's advice that the bill does not give police the ability to use the new powers to disrupt or quell a peaceful protest, that it would be appropriate for the bill to be amended to provide that proposed Division 3B does not give a constable or protective service officer the power to disrupt or quell a peaceful protest at a major airport or its premises or on flights to and from a major airport.

2.48 The committee otherwise draws its scrutiny concerns to the attention of senators, and leaves to the Senate as a whole the appropriateness of conferring on the Australian Federal Police broad powers to direct persons to produce identity documents, vacate airports and related premises, and abstain from taking particular flights, to ensure the 'good order' of an airport.

2.1

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[14] Schedule 1, items 2 and 5. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).

[15] Senate Scrutiny of Bills Committee, Scrutiny Digest 11 of 2018, at pp. 13-15.

[16] The minister responded to the committee's comments in a letter 8 October 2018. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 12 of 2018 available at: www.aph.gov.au/senate_scrutiny_digest