House of Representatives

Explanatory Memorandum

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

OUTLINE

1. The Crimes Legislation Amendment (Police Powers at Airports) Bill 2019 (the Bill) amends the Crimes Act 1914 (the Crimes Act) to enhance police powers at Australia's major airports, including by enabling constables and protective service officers (PSOs)^[1] to:

•

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

•

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

•

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

2. Specifically, the Bill allows constables and PSOs to issue these directions at major airports only in appropriate circumstances.

3. An identity check direction may be issued where the constable or PSO:

•

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

•

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.

4. A move-on direction may be issued where the constable or PSO:

•

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

•

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

•

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.

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

6. The Bill also amends the Crimes Act to:

•

allow the relevant Minister to determine, by legislative instrument, a major airport at which a constable or PSO can issue the new directions (section 3UO)

•

set out the types of evidence that a person must provide in order to comply with an identity check (subsection 3UP(2))

•

establish duties that a constable or PSO must fulfil in issuing an identity check or move-on direction (section 3UT), and

•

introduce offences for failing to comply with a direction given by a constable or PSO, or failing to comply with the duties of a constable or PSO in issuing an identity check or move-on direction (for example, the duty to inform the subject of a direction that it may be an offence not to comply with the direction) (section 3UU).

PURPOSE

7. The purpose of the Bill is to enhance powers at major airports to ensure constables and 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.

8. 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 serious and organised crime groups seeking to expand their operations in activities such as illicit drug trafficking, at a domestic and international level.

9. Schedule 1 of the Bill will broaden existing identity check provisions in the Crimes Act and create offences and powers relating to identity check, move-on and ancillary directions. These amendments will ensure that constables and PSOs are empowered to proactively manage and disrupt potential security and criminal threats in the aviation environment.

FINANCIAL IMPACT STATEMENT

10. The measures in this Bill will have no impact on Government revenue.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

11. A statement of compatibility with human rights has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 and is at Attachment A.

NOTES ON INDIVIDUAL CLAUSES

Clause 1 - Short title

1. Clause 1 provides for the Act to be cited as the Crimes Legislation Amendment (Police Powers at Airports) Act 2019.

Clause 2 - Commencement

2. Clause 2 of the Bill sets out the times at which the various provisions of the Act commence.

3. Subclause 2(1) of the Bill provides that each provision of the Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

4. The table at subclause 2(1) provides that the Act commences on a day or days to be fixed by Proclamation, or the day after a six month period beginning on the day the Act receives Royal Assent.

5. The note in subclause 2(1) makes it clear that the table relates only to the provisions of the Act as originally enacted. The table will not be amended to deal with any later amendments to the Act.

6. Subclause 2(2) of the Bill provides that any information in column 3 of the table is not part of the Act. Information may be inserted in column 3, or information in it may be edited, in any published version of the Act. There is currently no information in column 3 of the table.

Clause 3 - Schedules

7. Clause 3 of the Bill provides that legislation that is specified in a Schedule to the Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the Act has effect according to its terms.

8. The purpose of this clause is to clarify that Schedule 1 to the Bill sets out the amendments to the Act, and that the particular provisions mentioned in that Schedule are amended in accordance with the particular items in that Schedule.

Schedule 1 - Amendments

Part 1 - Main amendments

Crimes Act 1914

Item 1 - Division 3B of Part IAA

9. This item repeals current Division 3B of Part IAA of the Crimes Act 1914 (the Crimes Act) and replaces it with new Division 3B of Part IAA - 'Identity information requirements, and move-on powers, at airports'.

New section 3UL - Definitions - Division 3B

10. This item inserts definitions for the purposes of new Division 3B.

11. The term government photographic identity document is defined as an identity document that provides photographic identification of a person that is issued by a Commonwealth, State or Territory government or a foreign government.

12. The term identity document is defined as a document that evidences or indicates a person's identity or an aspect of a person's identity, such as a driver's licence, birth certificate, credit card or identity card. This does not include a document prescribed by regulation for the purposes of the definition of identity document.

13. The term major airport refers to new section 3UM, which lists the airports that are major airports for the purposes of new Division 3B, including the area of land, buildings, structures, installations and equipment that comprise the airport.

14. The term protective service officer (PSO) is defined as a PSO within the meaning of the Australian Federal Police Act 1979 (AFP Act). The Australian Federal Police (AFP) has confirmed that, given their increasing role in the aviation environment, there is a need to include PSOs in the category of personnel that are authorised to issue identity check, move-on and ancillary directions at major airports.

15. PSOs have powers under Divisions 3 and 4 of Part II of the AFP Act. These powers can be exercised in relation to a number of offences under the Crimes Act and the Criminal Code Act 1995 (Criminal Code). Division 3 of Part 5 of the Aviation Transport Security Act 2004 also provides PSOs with extensive powers in relation to security controlled airports.

16. The term public order and safe operation refers to new section 3UN, which states that 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.

17. The term relevant criminal activity refers to new subsection 3UQ(2), which states that relevant criminal activity is criminal activity involving the commission of a Commonwealth offence, a Territory offence or a State offence having a federal aspect that is punishable by imprisonment for 12 months or more. State offence having a federal aspect is defined in section 3AA of the Crimes Act.

18. The term senior police officer refers to new subsection 3UQ(6), which states that a senior police officer is a constable having the rank of sergeant or an equivalent rank, or higher, or with formal authorisation to act as a constable having such a rank. Under new section 3UQ, senior police officers must authorise a move-on direction that excludes a person from a specified or any specified major airport, or prevents them from taking a specified flight or any specified flight to or from a major airport, for a period greater than 12 hours. The intention is to ensure the new framework for issuing move-on directions at major airports contains appropriate safeguards and senior police officers are directly engaged where a longer period of exclusion is viewed as necessary.

New section 3UM - Meaning of major airport

19. New section 3UM inserts a definition for the term major airport.

20. Paragraphs 3UM(1)(a)-(l) provide that Adelaide Airport, Alice Springs Airport, Brisbane Airport, Canberra Airport, Darwin International Airport, Gold Coast Airport, Hobart International Airport, Launceston Airport, Melbourne (Tullamarine) Airport, Perth Airport, Sydney (Kingsford-Smith) Airport, and Townsville Airport are major airports for the purposes of new Division 3B. Paragraph 3UM(1)(m) further provides that an airport determined by the Minister under new section 3UO is a major airport.

21. The list of airports in paragraphs 3UM(1)(a)-(l) have been selected on the basis of operational advice from the AFP, taking into account the risk profile of these airports and the prevailing threat environment, and include all airports at which the AFP has a permanent policing presence.

22. Subsection 3UM(2) describes the areas of land, buildings, structures, installations and equipment that comprise a major airport, and at which the new powers in new Division 3B can be exercised.

23. Paragraphs 3UM(2)(a)-(b) provide that a reference to a major airport includes a reference to a place made up of the land described in relation to the airport in:

•

regulations made for the purposes of the definition of airport site in section 5 of the Airports Act 1996 (Airports Act) for an airport mentioned in paragraphs (1)(a) to (l), or

•

the determination made by the Minister for an airport determined under new section 3UO.

24. The regulations made for the purposes of the definition of airport site in the Airports Act prescribe the relevant certificates of title for land that makes up each of the airports mentioned in paragraphs 3UM(1)(a)-(l). The Department of Infrastructure, Transport, Cities and Regional Development, which administers the Airports Act, has been consulted in relation to the definition of major airport. These Regulations are subject to disallowance, enabling the Parliament to have a continued opportunity for scrutiny in relation to the land which is to form part of a major airport for the purposes of this item.

25. Paragraph 3UM(2)(c) provides that any buildings, structures, installations or equipment situated on the land are also part of the major airport. This paragraph clarifies that relevant powers under sections 3UP, 3UQ and 3US may be exercised anywhere within the airport's boundaries, including car parks, hangars and terminals of a major airport.

New section 3UN - Meaning of public order and safe operation

26. New section 3UN inserts a definition for the term public order and safe operation of a major airport.

27. Subsection 3UN(1) provides that, for the purposes of new Division 3B, the public order and safe operation of a major airport means:

•

the public order of the airport, or flights to and from the airport, or

•

the safety of persons at the airport, or on flights to or from the airport, or

•

the safe operation of the airport, or flights to and from the airport.

28. This definition empowers police to issue identity check and move-on directions for the purposes of detecting, preventing or disrupting any act that may cause risks to the public order and safe operation of a major airport or flights to and from the airport, or the safety of any person at these airports or on these flights.

29. Subsection 3UN(2) provides that a person's right to engage lawfully in advocacy, protest, dissent or industrial action is not, by itself, to be regarded as prejudicial to the public order and safe operation of a major airport. However, the identity check and move-on directions in sections 3UP and 3UQ of the Bill may be exercised if a person engaging in these activities causes risks to the public order and safe operation of a major airport or flights to and from a major airport, or the safety of any person at these airports or on these flights.

30. The measures in the Bill are not intended to interfere with the right to peaceful assembly and do not permit constables or PSOs to use the powers to disrupt or quell a protest that is peaceful and does not disrupt the public order or safe operation of a major airport.

New section 3UO - Determination of airports

31. New section 3UO enables the Minister to determine airports at which the new powers in new Division 3B can be exercised ('determined airports'), including a description of land in relation to the determined airport.

32. New section 3UO gives the Minister flexibility in determining an airport, other than a constitutional airport, where a constable or PSO should be empowered to issue identity check, move-on and ancillary directions, based on the airport's risk profile and/or the prevailing threat environment. This provision recognises that major airports in Australia are a high-profile and high-impact target for terrorism and serious and organised crime, and this threat applies regardless of an airport's status as a constitutional airport.

33. In determining an airport to be a major airport, the Minister must describe the land in relation to the airport, for the purposes of paragraph 3UM(2)(b). The relevant powers under section 3UP, 3UQ and 3US may be exercised anywhere within the determined airport's boundaries, as described by the Minister, including car parks, hangars and terminals.

34. Under subsection 3UM(2), new Division 3B applies in relation to a determined airport only if the airport is ordinarily used for the purpose of flights that start or end in a Territory, or flights between Australia and a foreign country, or between one Australian State and another State, in which aircraft are used in the course of trade or commerce, for the carriage of passengers. Under this provision, new Division 3B will not apply to a determined airport which is used exclusively for intrastate flights.

35. The powers in new sections 3UP, 3UQ and 3US in relation to determined airports are directly linked to the security of territorial, interstate and international air travel, which rely on the Commonwealth Parliament's power under section 122 of the Constitution to make laws with respect to Territories, and its power under paragraph 51(i) to make laws with respect to trade and commerce with other countries, and between the States.

36. A constable or PSO may exercise the powers in new sections 3UP, 3UQ and 3US if a determined airport is ordinarily used for any of purposes identified in subsection 3UO(2). Such a purpose will exist where the determined airport is ordinarily used for international or interstate flights, or flights that start or end in a Territory - for example, that at the time of exercise of the power, such flights are regularly scheduled at the airport. A constable or PSO is not required to have any level of knowledge or belief of a specific connection between the subject of the exercise of the powers and the purposes provided in subsection 3UO(2).

37. Subsection 3UO(3) provides that new Division 3B may apply in relation to an airport determined by the Minister, even if the airport is also used for a purpose other than a purpose identified in subsection 3UO(2). This ensures that, where an airport is used for the purpose of flights that start or end in a Territory, but is also used for intrastate flights, this airport may still be a determined airport under new section 3UO.

New section 3UP - Identity information at airports

38. New section 3UP sets out the circumstances in which a constable or PSO may direct a person at a major airport to provide proof of their identity, and identifies the types of evidence that a person must produce in response to an identity check direction.

39. Under existing subsection 3UM(1) of the Crimes Act, a constable can only direct a person to provide evidence of their identity at a constitutional airport where they suspect on reasonable grounds that the 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.

40. Expanding on the existing powers, subsection 3UP(1) provides that a constable or PSO may direct a person to give evidence of their identity if the direction is given at a major airport, and the constable or PSO:

•

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

•

considers on reasonable grounds that it is necessary to give the direction to safeguard the public order and safe operation of that airport or another major airport.

41. The term constable relies on the existing definition in subsection 3(1) of the Crimes Act and means a member or special member of the AFP or a member of the police force or police service of a State or Territory. The term protective service officer is defined as a PSO within the meaning of the AFP Act, as inserted by new section 3UL.

42. The new power in subsection 3UP(1) will enable a constable or PSO to engage with a person at the earliest opportunity to assess any potential threat, and will only be exercised where the officer has reasonable grounds that the subject of an identity direction meets the risk threshold set out in new paragraph 3UP(1)(b).

43. The introduction of broader identity checking powers is justified on the basis of the heightened threat environment, both in terms of national security and criminal risks, at Australia's major airports. Recent events overseas, and the disrupted plot in 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 serious and organised crime groups seeking to expand their operations in activities such as illicit drug trafficking, at a domestic and international level.

44. These powers seek to close a gap in existing Commonwealth law that allows people to scope potential vulnerabilities in security apparatus, with a limited 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, people that 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.

45. 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 subparagraphs 3UP(1)(b)(i) and (ii) 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 the public order or safe operation of a major airport.

46. The new power to issue an identity check direction in subparagraph 3UP(1)(b)(ii) is aimed at safeguarding the public order and safe operation of a major airport, by way of preventing, detecting and/or disrupting threats to major airport and flights to or from a major airport, or the safety of any person at these airports or on these flights. The public order and safe operation of a major airport, in this context, will extend to a range of disruptive conduct, such as drug trafficking, violent behaviour, extortion or any other activity that risks the safety of the public and the airport.

47. A person who has been subject to a direction under new section 3UP must comply with the direction. Subsection 3UP(2) sets out that a person may abide by a direction under subsection 3UP(1) by:

•

producing a government photographic identity document issued in relation to the person, or

•

producing another identity document in relation to the person or, if so directed by the constable or PSO, two different identity documents in relation to the person, or

•

if the person does not produce an identity document (or documents) as directed, giving the constable or PSO their name, address and date of birth.

48. The terms government photographic identity document and identity document are defined in new section 3UL. Under new subsection 3UP(2), in the first instance, a constable or PSO would request a person to provide proof of identity by producing a government photographic identity document. If the person does not have this form of identification, they can produce another identity document, or two different identity documents, to verify their identity - for example, a Medicare card, bank card, student identity card or airline boarding pass. In the absence of a government photographic identity document or identity document, a person could provide their name, address and date of birth.

49. This provision is intended to ensure this framework does not operate as a de-facto requirement to carry proof of identification at major airports, and seeks to address circumstances where a person might not have any form of government photographic identity document or identity document in their possession, or at all - for example, people under the age of 18 or the elderly.

New section 3UQ - Move-on directions at airports

50. New section 3UQ sets out the circumstances in which a constable or PSO may direct a person to leave the airport or any other specified major airport, and/or not to take a specified flight or any flight to or from any major airport, for up to 24 hours. Section 3UQ also includes safeguards on the use of the move-on power, including a requirement for a senior police officer to authorise a move-on direction that excludes a person for more than 12 hours, and a restriction on repeated move-on directions within 7 days.

51. Subsection 3UQ(1) enables constables and PSOs to issue a move-on direction at a major airport if the officer:

•

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

•

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

•

considers on reasonable grounds that it is necessary to give the direction to safeguard the public order and safe operation of that airport or another major airport.

52. 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 against 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 disruptive behaviour more generally.

53. 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.

54. Subparagraph 3UQ(1)(b)(i) supports the policy intent of the new provisions in new Division 3B by ensuring police can take appropriate action to address a person's contravention of an identity check or an ancillary direction at a major airport.

55. Allowing move-on directions to be issued in these instances is necessary to ensure that the central purpose of these orders cannot be frustrated by a person simply refusing to comply with them. If a constable or PSO is not permitted to issue a move-on direction in these circumstances, the person who refuses to abide by these orders would remain within the major airport, raising a potentially considerable risk to the public order and safe operation of the major airport.

56. 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 to consider that the direction 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 comply with a direction, it is necessary and proportionate to issue a move-on direction to ensure that the public order and safe operation of a major airport and flights to and from a major airport, or the safety of any person at these airports or on these flights, is preserved.

57. The identity check framework also ensures there are appropriate safeguards to prevent move-on powers from being rigidly exercised, including flexibility in the range of ways in which an identity check can be satisfied. In these circumstances, a move-on direction will only be issued where a constable or PSO has reasonable grounds to suspect a person has failed to comply with an identity check or ancillary direction, and they are not otherwise reasonably satisfied of the person's identity.

58. The ability to issue a move-on direction in the circumstances prescribed by subparagraphs 3UQ(1)(b)(ii) and 3UQ(1)(b)(iii) is intended to ensure that a constable or PSO can prevent or disrupt a criminal, safety and/or security threat they have identified at a major airport.

59. The fact that a constable or PSO must suspect or consider on reasonable grounds that these directions are necessary to achieve the objective of disrupting a criminal, safety or security threat ensures that these directions will be used in a manner proportionate to the threat.

60. Subsection 3UQ(2) defines relevant criminal activity for the purposes of subsection 3UQ(1). The definition provides that relevant criminal activity is criminal activity involving the commission of an offence against the law of the Commonwealth or a Territory, or a State having a federal aspect, which is punishable by imprisonment for 12 months or more. The threshold of a 12 month period of imprisonment reflects the seriousness of the criminal activity intended to be targeted and the risks that such activity pose to safety and/or security at major airports.

61. Under subsection 3UQ(3), a constable or PSO may give a written direction to a person requiring the person to do either or both of the following:

•

not to take a specified flight, or any flight, to or from that airport, or any specified major airport, for a specified period of no more than 24 hours after the direction is given, and/or

•

to leave the airport as soon as practicable, and not enter that airport, or any other specified major airport, for a specified period of no more than 24 hours after the direction is given.

62. The move-on power has been formulated to ensure that a constable or PSO can tailor their direction so that it is 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. Allowing 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 a threat may arise.

63. It is the intention that constables or PSOs will be exercising this discretion on a case-by-case basis, depending on the relevant circumstances. For example:

•

In response to an aggravated intoxicated passenger, a constable may issue a direction that the person leave and not re-enter the airport at which the incident occurred for 6 hours.

•

If a violent situation is likely to break out between a passenger arriving at a particular airport (person 1) and a person present at that airport (person 2), the constable may issue a direction that person 2 leave that particular airport for a 2 hour period surrounding the arrival of person 1's flight.

•

If a constable considers that a person poses a serious threat to the public order and safe operation of a major airport more generally, they may issue a direction that this person leave and not enter any major airport for 24 hours.

64. Subsection 3UQ(4) provides that a direction covering a period of more than 12 hours must only be given, or authorised by, a senior police officer. The senior police officer may authorise the direction orally or in writing. The note in subsection 3UQ(4) clarifies the operation of the restriction on repeated move-on directions within a 7 day period. This restriction is discussed below in relation to new subsection 3UQ(9).

65. Subsection 3UQ(5) provides that, if a senior police officer provides oral authorisation for a move-on direction, the senior police officer must record the authorisation in writing as soon as practicable afterwards.

66. Subsection 3UQ(6) defines a senior police officer as a constable with the rank of sergeant or an equivalent rank (or higher), or with formal authorisation to act as a constable having such a rank.

67. The intention of subsections 3UQ(4) and (9) is to ensure that a senior police officer is engaged where a constable or PSO identifies that a person poses a criminal, safety or security threat and/or risk of such significance and concern that its prevention and disruption requires exclusion from specified major airports and/or flights for more than 12 hours. In most cases, the operation of these provisions will ensure that two officers have turned their mind to the identified threat and whether the proposed exclusion is a proportionate response in the circumstances. It should be noted, however, that a senior police officer exercising a move-on direction in the first instance will be empowered to issue a move-on direction that excludes a person (as appropriate) for up to 24 hours.

68. Constables and PSOs will be appropriately trained in the exercise of these powers, including the use of move-on powers to address security, safety and criminal threats. Prior to exercising any of the powers in new Division 3B, officers must have reasonable grounds for considering that the legal threshold is met. This requirement ensures the powers will not be erroneously exercised and an appropriate assessment occurs every time a direction is issued. Officers exercising the powers will be subject to accountability mechanisms and will be required to record the use of these powers in accordance with existing procedures and requirements.

69. Subsection 3UQ(7) provides that a move-on direction must be given in a form approved in writing by the Minister. This requirement ensures that all move-on directions, regardless of whether they are issued by a constable or a PSO, will be issued in a consistent format and include the same types of information to assist the person subject to the direction.

70. Subsection 3UQ(8) provides that a form, approved by the Minister under subsection 3UQ(7), must, without limitation, include certain types of information to assist a person subject to a move-on direction to apply for judicial review or interlocutory orders in relation to the giving of the direction.

71. Paragraph 3UQ(8)(a) provides that the approved form for a move-on direction must include details to enable the person to contact a Federal Court registry in the State or Territory in which the direction is given, or a requirement for the constable or PSO to provide such details. These details could include, for example, a telephone number, address or a website which sets out the contact details for the relevant Federal Court registry.

72. Paragraph 3UQ(8)(b) provides that the form must include any other information that the Minister considers appropriate to assist the person subject to the move-on direction to apply for judicial review or interlocutory orders in relation to the direction. This information could include, for example, information relating to the process for making an urgent or expedited application for judicial review or interlocutory orders.

73. Subsection 3UQ(9) provides another safeguard by limiting the number of move-on directions that may be issued in relation a particular person within a specified time period.

74. This provision limits the move-on framework by specifying that only one subsequent direction (the later direction) can be given to a person within 7 days of the first move-on direction being issued. The later direction can only be given if:

•

another assessment is made and the legal requirements in subsection 3UQ(1) are satisfied

•

no more than one later move-on direction is given within the 7 day period

•

the direction is given or authorised by a senior police officer, and

•

the second period of exclusion would end no later than 7 days after the earlier direction was given.

75. An authorisation by a senior police officer for this purpose can be given orally or in writing. If a senior police officer provides such an authorisation orally, the senior police officer must record the authorisation in writing as soon as practicable afterwards.

New section 3UR - Move-on directions at airports - alternative constitutional scope

76. New section 3UR provides that, without limiting its effect apart from this section, section 3UQ also has the effect it would have if the definition of major airport in section 3UM did not include an airport determined by the Minister under section 3UO.

New section 3US - Stop and directions powers at airports

77. New section 3US ensures that identity check and move-on directions can be adequately enforced by allowing constables and PSOs to issue an ancillary direction that compels a person stop or do anything else at a major airport where there are reasonable grounds to consider that the direction is necessary to facilitate an identity check or move-on direction.

78. A constable or PSO must have reasonable grounds that the ancillary direction is necessary before it can be issued. This threshold 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 to be necessary on reasonable grounds.

79. For example, 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.

New section 3UT - Constables' and protective service officers' duties at airports

80. New section 3UT provides procedural fairness safeguards by inserting duties with which a constable or PSO must comply in exercising the new powers under new Division 3B.

81. Subsection 3UT(1) provides that a constable or PSO must comply with these duties when giving an identity check direction (under new section 3UP) or move-on direction (under new section 3UQ).

82. When issuing an identity check or move-on direction, a constable or PSO must comply with subsections 3UT(2) and (3). Under paragraph 3UT(2)(a) a constable or PSO must, if not in uniform, show the person evidence that the constable is a constable, or that the PSO is a PSO. Paragraph 3UT(2)(b) provides that a constable or PSO must comply with the requirements of subsection 3UT(3), if requested by the person.

83. Under paragraph 3UT(2)(c), a constable or PSO must inform the person that it may be an offence not to comply with the direction or to give a false or misleading document or false or misleading information in response to the direction.

84. Subsection 3UT(3) will apply if the subject of an identity check or move-on direction requests further information from the constable or PSO, either under subparagraph 3UT(2)(b) or otherwise. If requested, the constable or PSO must give the person their name (paragraph 3UT(3)(a)), the address of their place of duty (paragraph 3UT(3)(b)), their identification number (if any) (paragraph 3UT(3)(c)) and, if they have no identification number, their rank (paragraph 3UT(3)(d)).

85. The purpose of new section 3UT is to ensure persons are informed of the consequences of not complying with the request, or of providing false or misleading information. Section 3UT ensures that persons are made aware of the constable or PSO's authority under new Division 3B at the earliest opportunity.

86. The constable or PSO will commit an offence under subsection 3UU(3) if he or she does not comply with the requirements specified in new section 3UT.

Section 3UU - Directions at airports - offences

87. New section 3UU remakes (with amendments) the existing offence in section 3UN of the Crimes Act (identity check at airports), and introduces new offences for a person's failure to comply with a move-on or ancillary direction.

88. A person who has been subject to an identity check, move-on or ancillary direction must abide by the direction.

89. Under new section 3UU, a person will commit an offence if he or she fails to comply with the above directions and the requesting constable or PSO has complied with the duties that apply to the constable or PSO under new section 3UT. A person can fail to comply with a request under these sections if, for example, they refuse to provide evidence of their identity, they re-enter an airport or take a flight in contravention of a move-on direction, they fail to stop as requested, or if they do not provide an appropriate response in accordance with the relevant direction.

90. To establish that an offence under subsection 3UU(1) has been committed, the prosecution will need to prove beyond reasonable doubt that:

•

a constable or PSO issued a direction in accordance with new sections 3UP, 3UQ or 3US and the person was reckless as to this circumstance (this fault element will be applied under subsection 5.6(2) of the Criminal Code)

•

the person has intentionally engaged in conduct (intention will be applied under subsection 5.6(1) of the Criminal Code)

•

the person's conduct recklessly contravenes the direction (recklessness will be applied for this result under subsection 5.6(2) of the Criminal Code), and

•

the constable or PSO has not failed to comply with his or her duties in section 3UT (absolute liability attaches to this element).

91. Absolute liability is attached to the physical element that the constable or PSO has not failed to comply with his or her duties in section 3UT as this element is essentially a precondition of an offence and the state of mind of the defendant is not relevant (see p. 24 of the Guide to Framing Commonwealth Offences).

92. The offence in subsection 3UU(1) is punishable by a maximum penalty of 20 penalty units. This penalty is consistent with the penalty for the existing offence of failing to comply with an identity check in subsection 3UN(1) of the Crimes Act, as well as the penalty for the offences of refusing or failing to comply with a request to provide name and address in relation to preventative detention orders (section 105.21 of the Criminal Code) and protective service offences (section 14I of the AFP Act).

93. Note 1 in subsection 3UU(2) provides that absolute liability is dealt with in section 6.2 of the Criminal Code.

94. Note 2 in subsection 3UU(2) identifies that, for the purposes of committing an offence, a person may contravene the relevant direction by failing to comply with the direction. The intent is to place it beyond doubt that a failure to comply, regardless of whether this failure is explicit, is an offence.

95. Note 3 in subsection 3UU(2) provides that, in failing to comply with the request, a person may also be committing the more serious offences of giving or producing false or misleading information or documents under sections 137.1 and 137.2 of the Criminal Code (maximum penalty of 12 months imprisonment) or obstructing a Commonwealth public official under section 149.1 of the Criminal Code (maximum penalty of 2 years imprisonment).

96. Subsection 3UU(3) provides that a constable or PSO commits an offence if they fail to fulfil the duties contained in section 3UT. Those duties require the constable or PSO to provide the subject of a direction with evidence of their position as a constable or PSO, and to inform the person of the consequences of non-compliance with a direction.

97. The offence in subsection 3UU(3) is punishable by a maximum penalty of 5 penalty units. This penalty is consistent with the penalty for the existing offence of failing to comply with the duties of a constable in existing subsection 3UN(2) of the Crimes Act, as well as the penalty for a similar offence in subsection 105.21(4) of the Criminal Code.

98. Subsection 3UU(4) provides that the term engage in conduct, for the purposes of the offence in new section 3UU, means to do an act or omit to perform an act.

Part 2 - Other amendments

Australian Federal Police Act 1979

Item 2 - Subsection 4(1) (subparagraph (a)(i) of the definition of protective service offence )

99. This item amends subparagraph (a)(i) of the definition of protective service offence in subsection 4(1) of the AFP Act to insert a reference to new subsection 3UU(1) of the Crimes Act. The purpose of this amendment is to provide that the offence of contravening an identity check or move-on direction under subsection 3UU(1) is a protective service offence for the purposes of the AFP Act.

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:

•

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

•

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

•

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:

•

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

•

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:

•

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

•

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

•

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:

•

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

•

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

•

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:

•

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

•

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.