Senate

Revised Explanatory Memorandum

(Circulated by authority of the Minister for Justice, the Hon Michael Keenan MP)

Schedule 5 - Validating Airport Investigations

GENERAL OUTLINE

The purpose of Schedule 5 is to ensure that members of the Australian Federal Police, and special members, had access to the appropriate range of investigatory powers to investigate applied State offences in designated State airports from the 19 March 2014 until the 17 May 2014.

Subsection 5(3A) of the Commonwealth Places (Application of Laws) Act 1970 (the COPAL Act) allows the Australian Federal Police (AFP), or special members, to access certain standard investigatory powers set out in the Crimes Act 1914 (Cth) within designated state airports. This has been in place since 2011, following enactment of the Aviation Crimes and Policing Legislation Amendment Act 2011 which supported the 'all-in policing and security model', under which the AFP took responsibility for the policing and security of Australia's eleven major airports. The Commonwealth Places (Application of Laws) Regulations 1998 (1998 regulations) were updated at this time to prescribe designated state airports for the purposes of the COPAL Act. Designated state airports are Adelaide Airport, Brisbane Airport, Coolangatta (Gold Coast) Airport, Hobart Airport, Melbourne (Tullamarine) Airport, Perth Airport and Sydney (Kingsford Smith) Airport.

The 1998 regulations, as updated, were in force until 18 March 2014, at which time they were inadvertently repealed due to an administrative error as part of work on a recent omnibus repeal regulation, the Spent and Redundant Instruments Repeal Regulation 2014. The repeal of the 1998 regulations took effect on 19 March 2014.

The unavailability of these Commonwealth investigative powers was rectified through the making of the Commonwealth Places (Application of Laws) Regulation 2014 which came into force on 17 May 2014 and restored the prior definition of designated state airport.

The purpose of the retrospective validation of these powers is to address the anomaly that arises between 19 March 2014 and 16 May 2014, when these powers were inadvertently not available. These powers were available to the AFP for some three years prior to 19 March 2014, were intended to operate between 19 March 2014 and 16 May 2014 and have again been in force since 17 May 2014. These powers would not be unknown to individuals or the Australian public.

Item 1 - Definitions

This item defines a 'Commonwealth place' by reference to the definition in the Commonwealth Places (Application of Laws) Act 1970 (COPAL Act). Section 3 of the COPAL Act defines a 'Commonwealth place' as a place with respect to which the Parliament has exclusive power to make laws for the peace, order and good government of the Commonwealth by virtue of section 52 of the Constitution.

A 'designated State airport' is similarly explained by reference to the definition in the COPAL Act. Section 3 of the COPAL Act defines a 'designated State airport' as a Commonwealth place airport that is situated in a State or States and is prescribed by the regulations for the purposes of this definition. A designated airport will be prescribed as any one of the following airports: Adelaide Airport, Brisbane Airport, Coolangatta (Gold Coast) Airport, Hobart Airport, Melbourne (Tullamarine) Airport, Perth Airport and Sydney (Kingsford-Smith) Airport.

A 'member of the Australian Federal Police' is given the same meaning as in the Australian Federal Police Act 1979 (the AFP Act). Section 4 of the AFP Act defines 'a member of the Australian Federal Police' as the Commissioner of Police, a Deputy Commissioner of Police or an AFP employee in respect of whom the Commissioner has declared to be a member of the AFP under section 40B of the AFP Act.

The 'relevant Crimes Act provision' is given the same meaning as within the COPAL Act. Section 3 of the COPAL Act specifies particular provisions of the Crimes Act 1914 (Cth) which are available to the AFP when conducting the investigation of applied State offences. The provisions that apply are: Part IAA (dealing with search, information gathering, arrest and related powers), section 9 (which provides for the seizure and condemnation of forfeitable goods), section 13 (allowing the institution of proceedings in respect of offences), section 15 (dealing with the discharge of defendants) and Part ID (dealing with forensic procedures).

The 'relevant period' is explained as the period starting on 19 March 2014 and ending on 16 May 2014. This is intended to cover the period from when the Commonwealth Places (Application of Laws) Regulations 1998 were repealed on 19 March 2014 until when the Commonwealth Places (Application of Laws) Regulation 2014 came into effect on 17 May 2014.

The definition of 'special member' is given the same meaning as within the AFP Act. Section 4 defines a 'special member' as an AFP employee appointed by the Commissioner as a protective service officer of the AFP under section 40EB of the AFP Act.

Item 2 - Validating Airport Investigations

Item 2 validates the exercise of a relevant Crimes Act provision by a member of the AFP, or special member, during an investigation of an applied State offence in relation to a Commonwealth place that would otherwise have been invalid because the Commonwealth place was not a designated State airport. This retrospective application is limited to the period starting 19 March 2014 and ending on 16 May 2014 (the 'relevant period') and refers only to those Commonwealth places that were a designated State airport on the day after this relevant period. As explained in the note, this item means that the relevant Crimes Act provisions validly apply in relation to the thing done under subsection 5(3A) of the COPAL Act. Subsection (3) specifies that this does not affect rights or liabilities arising between parties to a proceeding that have commenced prior to the introduction of the Schedule to the extent that these rights or liabilities arose from an exercise of a Commonwealth power by a member of the AFP during an investigation of an applied State offence.

The purpose of this item is to address the anomaly that arises between 19 March 2014 and 16 May 2014, when powers under the relevant Crimes Act provisions were inadvertently not available. These powers were available to the AFP for some three years prior to 19 March 2014, were intended to operate between 19 March 2014 and 16 May 2014 and have again been in force since 17 May 2014. These powers would not be unknown to individuals or the Australian public.

Although alternative powers were available during the relevant time, including applied state police powers arising under section 9 of the Australian Federal Police Act 1979, the AFP was unaware of the need to confine itself to these powers for a portion of the repeal period. Retrospective validation of any exercise of these powers is therefore necessary to avoid uncertainty which may arise where Commonwealth investigative powers were relied upon. Retrospective validation would also avoid the potential for inequitable outcomes within the criminal justice system, based on whether a person was arrested within the eight week period when the investigative powers used by the AFP were not in force.

Item 3 - Compensation for acquisition of property

Item 3 specifies that the Commonwealth is liable to pay a reasonable amount of compensation in the event that the operation of this Schedule would result in the acquisition of property from a person other than on just terms. The person may institute proceedings in a court of competent jurisdiction in the event that the Commonwealth and the person do not agree on the amount of compensation. This is intended to cover instances where property may have been seized, for example for evidentiary purposes, during the 'relevant period' that gives rise to a damages claim.