House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Home Affairs, the Hon Peter Dutton MP)

Attachment A - STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

1. This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

2. The Crimes Legislation Amendment (Police Powers at Airports) Bill 2019 (the Bill) amends the Crimes Act 1914 (the Crimes Act) to allow constables and protective service officers (PSOs ) ^[2] in major airports , in appropriate circumstances, to:

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direct a person to produce evidence of their identity ( 'identity check direction' ) (section 3UP)

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direct a person to leave the airport or any other specified major airport , and/or not take a specified flight or any flight from these airports, for up to 24 hours ( 'move-on direction' ) (section 3UQ), and

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direct a person to stop or do anything else necessary to facilitate an identity check or move-on direction ( 'ancillary direction' ) (section 3US).

3. The Bill introduces new offences for contravening these directions (subsection 3UU(1)). It also provides that constables and PSOs issuing these directions must inform the person of relevant offences and provide sufficient information to identify themselves as a constable or PSO (section 3UT). Breaching these requirements constitutes an offence under subsection 3UU(3).

4. These new powers are designed to keep the Australian public safe by ensuring that law enforcement have appropriate powers to address security, safety and criminal threats that arise in the aviation environment.

5. Recent events overseas, and the disrupted terrorist plot at Sydney International Airport (Kingsford-Smith), have shown that airports are a high-profile and high-impact target for terrorists. Airports can also be focal points for gang-related activity, such as illicit drug trafficking, and provide pathways for serious and organised crime groups to expand their operations at a domestic and international level.

6. Currently, constables and PSOs do not have adequate powers to engage with persons at airports to assess a potential risk or threat at the earliest opportunity.

7. While constables are currently able to direct a person to provide evidence of their identity at a constitutional airport under existing subsection 3UM(1) of the Crimes Act, this can only be done where the officer has a reasonable suspicion that a person has committed, is committing or intends to commit a Commonwealth, State or Territory offence that is punishable by imprisonment for 12 months or more. Under existing subsection 3UM(2) of the Crimes Act, a constable can only direct a person to provide evidence of their identity at an airport other than a constitutional airport where the officer reasonably suspects that the person has committed, is committing or intends to commit a Commonwealth offence that is punishable by imprisonment for 12 months or more.

8. In many cases, police will only meet the threshold of reasonable suspicion when illegal activity is imminent, reducing the likelihood that this activity will be detected and prevented. The ability to request identification is also not available where a person's conduct appears legal but, within the current threat environment, threatens to undermine the public order and safe operation of a major airport. In addition, the requirement to have a reasonable suspicion that a particular offence was, is being or will be committed will often not be satisfied where a person cannot be linked to a specific offence, but nevertheless appears to be preparing to engage in criminal conduct.

9. For example, a person who is photographing the position of key security apparatus at an airport will often be engaging in legal conduct. A constable or PSO who observes a person engaging in this conduct will often be unable to direct a person to provide evidence of their identity under the existing regime, as they cannot make out the elements of any particular offence on the evidence before them. Identifying this person, however, may be necessary to safeguard the public order and safe operation of a major airport where the terrorist threat level remains high, and the conduct appears to be directed towards the commission of criminal conduct more generally.

10. To facilitate early detection and disruption of dangerous or illegal activity, the Bill allows an identity check direction to be issued to a person at a major airport where a constable or PSO:

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suspects on reasonable grounds that the person has committed, is committing or intends to commit an offence against a law of the Commonwealth or a Territory, or a law of the State having a federal aspect , punishable by imprisonment for 12 months or more, or

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considers on reasonable grounds that it is necessary to give the direction to safeguard the public order and safe operation of a major airport or flights to and from a major airport , or the safety of any persons at the airport or on flights to and from the airport.

11. There is currently a limited power under Commonwealth law for police to direct a person to 'move on' from certain airports. This power, which can be found at section 86 of the Aviation Transport Security Act 2004 , allows law enforcement officers to move people on from a prescribed airport, security controlled airport or designated area or zone if they reasonably suspect the person is committing or has committed an offence under the Act. This 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 to disruptive behaviour more generally.

12. AFP officers may utilise a suite of move-on powers in airports, which are available under State and Territory legislation. The threshold for triggering these powers varies from jurisdiction to jurisdiction. 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, safety or security threats.

13. To ensure police have appropriate move-on powers to address risks that are unique to the aviation environment, the Bill allows a move-on direction to be issued to a person at a major airport where a constable or PSO:

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considers on reasonable grounds that a person has contravened an identity check or ancillary direction, and the officer is not reasonably satisfied of the person's identity, or

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suspects on reasonable grounds that it is necessary to give the direction to prevent or disrupt relevant criminal activity occurring at any major airport or in relation to a flight to or from any major airport , or

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considers on reasonable grounds that it is necessary to give the direction to safeguard the public order and safe operation of a major airport or flights to and from a major airport , or the safety of any persons at the airport or on flights to and from the airport.

14. The issuing of move-on direction of over 12 hours must be approved by a senior police officer and a maximum of two directions can be issued to a person within a 7 day period, provided that the above circumstances continue to exist at the time each direction is given (subsections 3UQ(4) and (9)).

15. To ensure that move-on and identity check directions can be adequately enforced, an ancillary direction can be issued to a person at a major airport where a constable or PSO considers on reasonable grounds that it is necessary to give the direction to facilitate an identity check or move-on direction.

Human rights implications

16. The human rights that may be of relevance to the Bill are those set out in Articles 2(1), 9, 12, 17, 21, 22 and 26 of the International Covenant on Civil and Political Rights (ICCPR), as well as Article 10 of the Convention on the Rights of the Child (CRC).

Articles 2(1) and 26 (ICCPR) - Equality and non-discrimination

17. Article 2(1) of the ICCPR requires Australia to respect and ensure to individuals the rights set out in the ICCPR without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 26 further provides:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

18. The measures in the Bill do not limit a person's right to equality and non-discrimination in accordance with Articles 2(1) and 26 of the ICCPR, as the circumstances in which a constable or PSO may lawfully exercise the proposed identity check, move-on and ancillary directions do not differ on the basis of a person's age, gender, ethnicity, religious background or any other status.

19. A PSO or constable issuing these directions will not be permitted to do so in a discriminatory fashion. To issue a direction, a constable or PSO must have reasonable grounds for doing so which are linked to criminal activity or the public order and safe operation of a major airport (see sections 3UP, 3UQ and 3US).

20. This 'reasonable grounds' requirement ensures that the proposed directions are only issued on the basis of objectively substantiated observations on actionable intelligence relevant to the public order and safe operation of a major airport or to criminal conduct. A direction cannot be issued in the absence of such grounds, ensuring that the powers prescribed in the Bill will only be exercised in accordance with a constable or PSO's perception of a security or safety risk or to preclude the commission of a crime. This requirement prevents a constable or PSO from issuing a direction solely on the basis of a person's age, ethnicity or religious background.

21. Commonwealth officers exercising these powers are also bound by Commonwealth anti-discrimination legislation including the Racial Discrimination Act 1975 , the Sex Discrimination Act 1984 , the Disability Discrimination Act 1992 and the Age Discrimination Act 2004. State and territory officers are also bound by similar legislation within their own jurisdictions. Broadly, anti-discrimination legislation prohibits officers from engaging in behaviour that constitutes discrimination and provides that all persons are to be equal before the law. These obligations, in conjunction with the safeguards prescribed in the Bill and provided through the training for constables and PSOs , will ensure that a person's right to equality before the law and to non-discrimination are not limited in a manner that is either directly or indirectly discriminatory.

22. 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. Officers that exercise the powers proposed in this Bill to target minority communities will be acting unlawfully and will be subject to the AFP's professional standards regime, which may result in disciplinary action, including termination.

23. Constables and PSOs also receive specialist training to identify potential threats in a non-discriminatory manner. Members of the AFP, for example, 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.

24. Accordingly, the measures in the Bill do not impact upon a person's right to equality and non-discrimination under the ICCPR.

Article 12 (ICCPR) and Article 10(2) (CRC) - Right to Freedom of Movement

25. Article 12(1) of the ICCPR provides that 'everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence'. Article 12(2) of the ICCPR states that 'everyone shall be free to leave any country, including his own'.

26. Pursuant to Article 12(3), these rights can be restricted by laws consistent with other rights in the ICCPR where it is necessary to protect national security, public order, public health or morals or and the rights and freedoms of others. Article 12(4) provides that 'no one shall be arbitrarily deprived of the right to enter his own country'.

27. Article 10(2) of the CRC relevantly provides that 'State parties shall respect the right of the child and his or her parent to leave any country, including their own, and to enter their own country. The right to leave any country shall be subject only to such restrictions as are prescribed by law and which are necessary to protect the national security, public order (ordre public ), public health or morals or the rights and freedoms of others and are consistent with the other rights recognized in the present Convention'.

28. The right to freedom of movement is engaged by the move-on and corresponding ancillary directions, which are capable of limiting the movement of a person in and out of major airports (including via flight). However, it is permissible to limit this right, as such limitations are prescribed by law, in the sense that they will be authorised by validly enacted provisions of the Crimes Act, and are rationally connected to achieving the legitimate objective of protecting national security, public order and the rights and freedoms of others.

29. The National Terrorism Threat Level has remained at 'Probable' since September 2014, based on credible intelligence assessed by Australian's security agencies that individuals or groups continue to have the intent and capability to conduct a terrorist attack in Australia. With this threat environment, airports and the aviation sector are an attractive high-profile and high-impact target for criminals and terrorists.

30. The proposed move-on and ancillary directions (sections 3UQ and 3US) achieve the legitimate objective of protecting national security by preventing terrorist acts and upholding public order by providing constables and PSOs with a mechanism to disrupt criminal activity and conduct that may pose a danger to others. These directions also protect the rights and freedoms of other persons at airports who may be affected by the behaviour of a person subject to a direction. These purposes are generally consistent with those of the ICCPR.

31. The move-on and ancillary directions not only serve permissible purposes under the ICCPR, but are also necessary, reasonable and proportionate in achieving these purposes.

Move-on directions

32. Move-on directions can only be issued where a constable or PSO:

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considers on reasonable grounds that a person has contravened an ancillary direction or an identity check direction and the constable or PSO is not reasonably satisfied of the person's identity, or

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suspects on reasonable grounds that it is necessary to give the direction to disrupt or prevent relevant criminal activity occurring at any major airport or in relation to a flight to or from any major airport , or

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considers on reasonable grounds that it is necessary to give the direction to safeguard the public order and safe operation of a major airport or flights to and from a major airport , or the safety of any persons at the airport or on flights to and from the airport.

33. The proposed move-on directions enable constables and PSOs to take the least rights restrictive approach, as the powers has been formulated to ensure that a constable or PSO must tailor their direction so that it is most appropriate in the circumstances and proportionate to the threat situation identified. Allowing a move-on direction to extend to specified airports or flights ensures that, should a threat only arise in relation to a particular flight or airport, the scope of the direction can be confined to the particular area where the threat may arise. Permitting a constable or PSO to issue the direction for up to 24 hours also allows the direction to be catered to only the necessary time period in which the threat may arise.

34. Move-on directions that are reasonably necessary to disrupt or prevent relevant criminal activity are also necessary to protect national security, public order and the rights and freedoms of others who may be subject to this criminal behaviour. Move-on directions which are reasonably necessary to safeguard the public order and safe operation of a major airport would also be necessary to safeguard national security, and protect 'public order' under the ICCPR and CRC, a concept which broadly includes 'not only the absence of disorder but also... public safety and the prevention of crime'. ^[3]

35. The fact that a constable or PSO must suspect or consider on reasonable grounds that these directions are necessary to achieve a permissible purpose also ensures that these directions will be used proportionally.

36. For example, if a constable or PSO is aware that there is a considerable risk that person 1, who is currently at a major airport , will engage in abusive or violent conduct towards person 2, who is arriving on an incoming flight, it may be reasonably necessary for the officer to issue a move-on direction to person 1 to ensure that they are not present at the airport around person 2's time of arrival.

37. Issuing a move-on direction preventing person 1 from attending any major airport for 12 hours, however, would likely be unnecessary to safeguard the public order and safe operation of a major airport , as the threat to public order remains confined to a specific situation in the specific airport.

38. A constable or PSO may also issue a move-on direction where they are not satisfied of a person's identity and have reasonable grounds to consider that this person has contravened an identity check or ancillary direction. Allowing move-on directions to be issued in these instances is necessary to ensure that the central purpose of these orders, namely to facilitate early detection of dangerous or illegal activity, cannot be frustrated by a person simply refusing to abide by a direction.

39. If a constable or PSO is not permitted to issue a move-on direction in these circumstances, a person who refuses to abide by the identity check or ancillary direction will be permitted to remain within the major airport or take a flight to or from these airports, causing a potentially considerable risk to the public order and safe operation of a major airport.

40. In this context, it is pertinent to note that an identity check direction can only be issued where a reasonable link can be established between the giving of the direction and safeguarding the public order and safe operation of a major airport , or the commission of an offence (see paragraph 3UP(1)(b)). Similarly, an ancillary direction can only be given where there are reasonable grounds that it is necessary to facilitate an identity check or move-on direction (see paragraph 3US(1)(b)). Where these grounds exist, and a person nevertheless refuses to abide by a direction, it is necessary and proportionate to issue a move-on direction to ensure that the public order and safe operation of the major airport is preserved.

Ancillary directions

41. As noted above, ancillary directions can be issued where a constable or PSO considers on reasonable grounds that it is necessary to give this direction to facilitate an identity check or move-on direction. While this order may impede a person's freedom of movement, it remains necessary and proportionate as a constable or PSO must have reasonable grounds that the direction is necessary before it can be issued.

42. This phrase 'reasonable grounds' gives rise to the fact that, in issuing ancillary directions, 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 to be necessary on reasonable grounds.

43. Ancillary directions do not permit a constable or PSO to detain a person for the purpose of exercising their power, or undertake any search and seizure of the person's property. The intention of an ancillary direction is purely to enable an officer to direct a person to undertake reasonable and necessary steps to facilitate the exercise of an identity check or move-on direction - for example, an officer could direct a person to step to the side of a public walkway while conducting an identity check to ensure they are not disrupting others' use of the airport.

44. As previously outlined, identity check and move-on directions can only be issued where a link to criminal conduct or aviation security can be established. Ancillary orders that facilitate identity check and move-on directions are therefore aligned with the underlying purposes of these orders and the ICCPR more generally, being necessary to protect national security, the public order and the rights and freedoms of others.

45. Further, the proposed move-on and ancillary powers may also protect the rights and freedoms of others present at an airport premises if, for example, a person's behaviour is affecting others use of the airport.

Conclusion

46. The measures in the Bill are compatible with the right to freedom of movement under Article 12 of the ICCPR and Article 10(2) of the CRC as, to the extent that the Bill limits this right, it does so in a manner which is lawful and proportionate to achieving the legitimate objectives of protecting national security, public order and the rights and freedoms of others.

Article 17 (ICCPR) - Prohibition on Arbitrary or Unlawful Interference with Privacy

47. Article 17 of the ICCPR accords everyone the right to protection against arbitrary or unlawful interference with their privacy, family, home or correspondence. Lawful interferences are permissible so long as they are authorised by law and are not arbitrary.

48. The United Nations Human Rights Committee (UNHRC) has expressed the view that, with respect to Article 17(1) of the ICCPR, 'the competent public authorities should only be able to call for such information relating to an individual's private life the knowledge of which is essential in the interests of society as understood under this Covenant'. ^[4]

49. The term 'unlawful' in Article 17 means no interference can take place except in cases authorised by law. What is 'arbitrary' will be determined by the circumstances of each case. In order for an interference not to be arbitrary, the interference must be for a reason consistent with the provisions, aims and objectives of the ICCPR and be reasonable in particular circumstances. The UNHRC has interpreted reasonableness in this context to imply that any interference with privacy must be proportionate to the end sought and be necessary in the circumstances of any given case.

50. The power to issue an identity check direction under section 3UP interacts with the prohibition on arbitrary or unlawful interference with privacy as it requires a person to produce evidence of identity if a constable or PSO:

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suspects on reasonable grounds that a person has committed, is committing or intends to commit an offence against the law of the Commonwealth, or a law of a State having a federal aspect, punishable by imprisonment for 12 months or more, or

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considers on reasonable grounds that it is necessary to give the direction to safeguard the public order and safe operation of a major airport or flights to and from a major airport , or the safety of any persons at the airport or on flights to and from the airport.

51. Similarly, the power to issue an ancillary direction under section 3US engages the prohibition on arbitrary or unlawful interference with privacy insofar as it facilitates the exercise of an identity check direction.

Would exercise of these directions amount to an unlawful or arbitrary interference with a person's privacy?

52. Even if identity check and corresponding ancillary directions amount to an interference with a person's privacy, this interference is not unlawful or arbitrary.

53. These directions are lawful in the sense that they will be authorised by validly enacted provisions of the Crimes Act.

54. The purpose of these directions aligns with the objectives of the ICCPR and are thus legitimate. The purpose of these directions is to enhance safety and security in airports in a context where aviation remains a high-profile, high-impact target for terrorists. Airports are also a focal point for gang-related activities such as illicit drug trafficking, as well as other serious and organised crime. In light of these threats, and the fact that identity check directions can only be issued where there is a reasonable link between the direction and addressing criminal behaviour or safety and/or security concerns (ancillary orders are similarly confined), these directions are issued for the legitimate purpose of preserving national security, public order and the rights and freedoms of others.

55. The identity check and ancillary directions are also reasonable, necessary and proportionate in achieving these legitimate objectives.

56. Identity check directions have a minimal impact on a person's privacy, merely requiring a person to produce a government photographic identity document or, failing this, up to two other identity documents or, failing this, to provide their name, address and date of birth (subsection 3UP(2)).

57. The ability to satisfy an identity check in a range of ways protects people who may not be carrying government issued photographic identification or other identity documents from committing an offence under subsection 3UU(1) and ensures the provision is not a de-facto requirement to carry identification at airports. No further conduct can be compelled under section 3UP. This interference with a person's privacy is proportionate to the stated objective of the direction, namely to enhance safety and security in airports, and preserve national security, public order and the rights and freedoms of others.

58. An identity check direction can be issued by a constable or PSO where they consider on reasonable grounds that it is necessary to give the direction to safeguard the public order and safe operation of a major airport. In these instances, the terms 'reasonable' and 'necessary' will ensure that the direction will be appropriate and proportionate to the activity it is seeking to prevent or disrupt, and will be implemented based on information available to police or an objective fact.

59. These powers seek to close a gap in existing Commonwealth law that allows people to scope potential vulnerabilities in security apparatus, where there is currently no ability for police to appropriately engage with individuals that are acting suspiciously at an airport. In many cases, suspicious conduct may not necessarily lead to a suspicion that a person is involved in a particular offence - for example, a person may not be travelling on an aircraft or picking up or dropping off a passenger but are regularly observed in the airport precinct for no clear reason. Without specific intelligence that an offence has been, is being, or will be committed, AFP officers have reported that, under the current framework, they are unable to assess potential threats within airports by directing a person to provide evidence of their identity.

60. Identity checks directions can also be issued where an constable or PSO suspects on reasonable grounds that a person has committed, is committing or intends to commit an offence against the law of the Commonwealth or a Territory, or a law of a State having a federal aspect , punishable by 12 months imprisonment or more (see subparagraph 3UP(1)(b)(i)).

61. This provision is based on the current provision at existing paragraph 3UM(1)(b) of the Crimes Act and is designed to ensure that a person who can be linked to current, future or previous serious criminal conduct can be identified to ensure that law enforcement is aware of their presence and any threat they may pose in a particular context.

62. AFP officers are trained in Behavioural Assessment and Security Questioning 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 subparagraphs 3UP(1)(b)(i) and (ii) will enable a constable or PSO to approach a person displaying known behavioural traits to request proof of identity to determine whether they pose a serious criminal risk, or a threat to the public order or safe operation of a major airport.

63. It is also pertinent to note that the handling of any information provided through an identity check and corresponding ancillary direction will be handled in accordance with applicable legislation. For example, the AFP will handle information in accordance with its obligations under the Privacy Act 1988.

64. A constable or PSO is also required to inform a person that it may be an offence not to comply with an identity check direction or to provide false or misleading information, and will be required to identify themselves, if requested by the person subject to the direction, or if the officer is not in uniform (section 3UT). This provision ensures that a person understands the nature of an identity check direction, reinforcing the proportionate and reasonable nature of these checks.

65. The ancillary power at paragraph 3US(2)(b) only enables the constable or PSO to require a person to stop or 'or 'do anything else' that they consider on reasonable grounds to be necessary to facilitate the exercise of a power under section 3UP (identity check directions). Since section 3UP(2) limits the ways in which a person can satisfy the identity direction, the ancillary powers at 3US(2)(b) can only be used to facilitate one of those means of evidencing identity.

66. These constraints ensure that the ancillary direction power is rationally connected to the identity check direction and the underlying objectives of this direction. It also ensures that this direction is proportionate, as a constable or PSO must choose the least intrusive means to ensure that an identity check is facilitated, as a more intrusive option is unlikely to be found to be necessary on reasonable grounds.

Conclusion

67. To the extent that the power to issue identity check and ancillary directions engages the prohibition on arbitrary or unlawful interference with privacy, any interference is not unlawful or arbitrary, and is reasonable, necessary and proportionate to achieving the legitimate objectives of preserving national security, public order and the rights and freedoms of others.

Article 9 (ICCPR) - Right to Security of the Person and Freedom from Arbitrary Detention

68. Article 9(1) of the ICCPR provides that every person 'has the right to liberty and security of person' and that no person 'shall be subjected to arbitrary arrest or detention.'

69. The ancillary direction powers prescribed in this Bill do not limit a person's right to security and freedom from arbitrary detention under Article 9(1) of the ICCPR, as the powers to not authorise a constable or PSO to arbitrarily or unlawfully arrest or detain a person under an ancillary direction (see section 3US).

70. An ancillary direction will only be issued by constables or PSOs where the officer considers on reasonable grounds that the exercise of these powers are necessary to facilitate an identity check direction or a move-on direction (see paragraphs 3US(1)(b) and (2)(b)). This ensures that a constable or PSO must choose the least intrusive means to ensure that these directions are facilitated, as a more intrusive option is unlikely to be found to be necessary on reasonable grounds.

71. These directions are designed to achieve narrowly defined outcomes, and detention will not be considered to be necessary on reasonable grounds to achieve these outcomes.

72. Identity check directions, for example, only compel a person to produce documentation or their name, address and date of birth (see subsection 3UP(2)), which would typically occur within seconds. Move-on directions, on the other hand, require a person to not take a specified flight, or leave and not re-enter a major airport , for a specified period of time (see subsection 3UQ(3)).

73. These directions are focused on moving a person on from a particular area, and do not enable detention of a person, which would be disproportionate, unnecessary and often counterproductive. In addition, detention of a person would not be permitted under the ancillary powers as it would not be reasonably necessary to ensure compliance with these directions.

74. As this Bill will only empower a constable or PSO to issue an ancillary direction if the officer considers it to be necessary on reasonable grounds, the ancillary powers cannot be exercised in a manner that is arbitrary or unlawful. The scope of the ancillary powers prescribed in this Bill therefore do not limit a person's right to security and freedom from arbitrary detention under Article 9 of the ICCPR.

Articles 21 and 22 - Right to Freedom of Assembly and Freedom of Association

75. Article 21 of the ICCPR provides that the right for persons to engage in peaceful assembly, including peaceful protest, shall be recognised. Article 22 of the ICCPR provide that each person has the right to freedom of association, including the right to partake in trade unions for the protection of that person's interests.

76. The rights to freedom of assembly and freedom of association are derogable, and may be restricted under the ICCPR in circumstances where such limitations are lawfully enacted and are necessary for the interests of national security or public safety, public order, and the protections of the rights and freedoms of others.

77. This Bill promotes the rights of freedom of assembly and freedom of association, by providing that a person's right to lawfully engage in advocacy, protest, dissent or industrial action will not, by itself, be regarded as prejudicial to the public order and safe operation of a major airport (see subsection 3UN(2).

78. The inclusion of this safeguard ensures that constables and PSOs will not be permitted to exercise the identity check, move-on and ancillary directions for the purposes of disrupting or quelling a peaceful protest or other form of peaceful assembly or association that is occurring at a major airport.

79. As such, this Bill does not limit a person's right to freedom of assembly and freedom of association under Articles 21 and 22 of the ICCPR, and promote the recognition and protection of these rights.

Conclusion

80. The measures in this Bill are compatible with the applicable human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. To the extent that these measures may limit those rights and freedoms, such limitations are reasonable, necessary and proportionate in achieving the legitimate objectives of preserving national security, public order and the rights and freedoms of others.