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2016-2017-2018
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
CRIMES LEGISLATION AMENDMENT (POLICE POWERS AT AIRPORTS) BILL 2018
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Home Affairs, the Hon Peter Dutton MP)
1
Crimes Legislation Amendment (Police Powers at Airports) Bill 2018
OUTLINE
1. The Crimes Legislation Amendment (Police Powers at Airports) Bill 2018 (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 3UN)
direct a person to leave the airport premises or the premises of any 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 3UO), and
direct a person to stop or do anything else necessary to facilitate an identity check or
move-on direction ('ancillary direction') (section 3UQ).
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 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
aviation security.
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 on the premises of 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
aviation security.
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.
1
Constable means a member or special member of the Australian Federal Police or a member of the police force
or police service of a State or Territory (subsection 3(1) of the Crimes Act). Protective service officer means a
special member of the Australian Federal Police (sections 4 and 40EA of the Australian Federal Police Act
1979).
2
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 3UM)
set out the types of evidence that a person must provide in order to comply with an
identity check (subsection 3UN(2))
establish duties that a constable or PSO must fulfil in issuing an identity check or
move-on direction (section 3UR), 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 3US).
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, 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.
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.
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CRIMES LEGISLATION AMENDMENT (POLICE POWERS AT AIRPORTS) BILL
2018
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 2018.
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.
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Schedule 1 - Amendments
Part 1 - Main amendments
Crimes Act 1914
Item 1 Division 3B of Part IAA (heading)
9. This item is a consequential amendment that repeals the current heading for Division
3B of Part IAA of the Crimes Act 1914 (the Crimes Act) and replaces it with a new heading -
'Identity information requirements, and move-on powers, at airports'.
Item 2 Section 3UL
10. This item inserts a definition for the term aviation security.
11. For the purposes of Division 3B, aviation security includes the good order and safe
operation of a major airport and its premises, and flights to and from a major airport. The
intent is to ensure the term aviation security is interpreted in accordance with its ordinary
meaning, but also captures a wide range of disruptive behaviour that poses a risk to others in
the aviation environment (including, but not limited to, criminal conduct).
12. Identity check and move-on directions can be issued under new sections 3UN and
3UO where there are reasonable grounds that these directions are necessary to safeguard
aviation security.
Item 3 Section 3UL (definition of constitutional airport)
13. This item repeals the definition of constitutional airport. This item is consequential to
Item 4 which inserts a definition of major airport.
Item 4 At the end of section 3UL
14. This item inserts definitions of major airport, premises, protective service officer,
relevant criminal activity and senior police officer.
15. The term major airport expands upon the repealed definition of constitutional airport
in the Crimes Act to reflect the new ability for the Minister to determine, by way of
legislative instrument, that a particular airport falls within the definition of a major airport
(as provided for in new section 3UM). The term major airport otherwise mirrors the repealed
definition of constitutional airport.
16. The first component of the term major airport (at paragraph (a) of the definition)
refers to the definition of Commonwealth aerodrome in section 3 of the Crimes (Aviation) Act
1991. This aspect of the definition relies on the Commonwealth Parliament's power under
paragraph 52(i) of the Constitution to make laws with respect to Commonwealth places.
17. The definition of Commonwealth aerodrome refers to 'an area of land or water in
Australia that is owned by the Commonwealth and used, or intended for use, either wholly or
partly, for, or in connection with, the arrival, departure or other movement of aircraft', or a
core regulated airport within the meaning of the Airports Act 1996 (the Airports Act).
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18. Section 7 of the Airports Act lists a number of airports as core regulated airports,
including Sydney (Kingsford-Smith) Airport, Sydney West Airport, Melbourne
(Tullamarine) Airport, Brisbane Airport, Perth Airport, Gold Coast Airport, Hobart
International Airport, Launceston Airport, Alice Springs Airport, Canberra Airport, Darwin
International Airport and Townsville Airport.
19. The second component of the term major airport (at paragraph (b) of the definition)
relates to airports that are located in Territories. This aspect of the definition relies on the
Commonwealth Parliament's power under section 122 of the Constitution to make laws with
respect to Territories.
20. The third component of the term major airport (at paragraph (c) of the definition)
relates to airports that are determined by the Minister under new section 3UM, by way of
legislative instrument, to be major airports for the purposes of Division 3B. This aspect of
the definition relies on a combination of 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
among the States.
21. The term premises is defined as airport premises within the meaning of Part 18 of the
Airports Act. This term incorporates the concepts of airport site and airport lease as defined
in subsection 5(1) of that Act.
22. The extended concept of airport premises is intended to ensure that relevant powers
under new sections 3UN, 3UO and 3UQ may be exercised anywhere on an airport site, or
any building or structure on the site - for example, the car park, hangars, terminal or runway
of the airport premises.
23. 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.
24. 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.
25. The term relevant criminal activity refers to new subsection 3UO(2), which states that
relevant criminal activity is criminal activity involving the commission of a Commonwealth
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.
26. The term senior police officer refers to new subsection 3UO(5), which states that a
senior police officer is a constable having the rank of sergeant or an equivalent rank, or
higher, or performing the duties of a constable having such a rank. Under Division 3B, 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
6
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.
Item 5 Sections 3UM and 3UN
27. This item repeals existing sections 3UM and 3UN of the Crimes Act and inserts new
sections 3UM, 3UN, 3UO, 3UP, 3UQ, 3UR and 3US.
New section 3UM - Determination of airports
28. New section 3UM enables the Minister to determine airports at which the new powers
in Division 3B can be exercised ('determined airports').
29. New section 3UM 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.
30. Under subsection 3UM(2), 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, Division 3B will not apply to a determined airport which
is used exclusively for intrastate flights.
31. The powers in new sections 3UN, 3UO and 3UQ 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.
32. A constable or PSO may exercise the powers in new sections 3UN, 3UO and 3UQ if a
determined airport is ordinarily used for any of purposes identified in subsection 3UM(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 3UM(2).
33. Subsection 3UM(3) provides that 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 3UM(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 3UM.
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New section 3UN - Identity information at airports
34. New section 3UN sets out the circumstances in which a constable or PSO may direct
a person on the premises of 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.
35. 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.
36. Expanding on the existing powers, subsection 3UN(1) provides that a constable or
PSO may direct a person to give evidence of their identity if the direction is given on the
premises of 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 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
aviation security.
37. 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.
38. The new power in subsection 3UN(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 3UN(1)(b).
39. 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, 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.
40. 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 on airport premises. 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
8
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.
41. 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 3UN(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 aviation
security.
42. The new power to issue an identity check direction in subparagraph 3UN(1)(b)(ii) is
aimed at safeguarding aviation security by way of preventing and/or disrupting threats to the
good order and safe operation of the airport, including the security of the airport premises.
Aviation security, 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.
43. A person who has been subject to a direction under new section 3UN must comply
with the direction. Subsection 3UN(2) sets out that a person may abide by a direction under
subsection 3UN(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.
44. The terms government photographic identity document and identity document are
defined in existing section 3UL of the Crimes Act. Under new subsection 3UN(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.
45. 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.
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New section 3UO - Move-on directions at airports
46. New section 3UO sets out the circumstances in which a constable or PSO may direct
a person to leave the airport premises or the premises of any 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 3UO 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.
47. Subsection 3UO(1) enables constables and PSOs to issue a move-on direction on the
premises of 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 on the premises of 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
aviation security.
48. There is currently a limited power under Commonwealth law for police to direct a
person to 'move on' from the premises of 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.
49. 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 or
security threats.
50. Subparagraph 3UO(1)(b)(i) supports the policy intent of the new provisions in
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.
51. 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 aviation security.
52. 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
10
aviation security or the commission of an offence (see paragraph 3UN(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 3UQ(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 aviation security, including the
good order and safe operation of major airports and its flights, is preserved.
53. 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. A move-on direction in these circumstances will
only be issued where a constable or PSO has reasonable grounds to suspect a person has
failed to comply, and they are not otherwise reasonably satisfied of the person's identity.
54. The ability to issue a move-on direction in the circumstances prescribed by
subparagraphs 3UO(1)(b)(ii) and 3UO(1)(b)(iii) is intended to ensure that a constable or PSO
can prevent or disrupt a criminal and/or security threat they have identified on the premises of
a major airport.
55. 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 or security
threat ensures that these directions will be used in a manner proportionate to the threat.
56. Subsection 3UO(2) defines relevant criminal activity for the purposes of subsection
3UO(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 State having a
federal aspect, that 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 security at major airports.
57. Under subsection 3UO(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 premises as soon as practicable, and not enter those premises, or
the premises of any specified major airport, for a specified period of no more than 24
hours after the direction is given.
58. 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.
59. 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:
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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 aviation security more
generally, they may issue a direction that this person leave and not enter any major
airport for 24 hours.
60. Subsection 3UO(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 3UO(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 3UO(6).
61. Subsection 3UO(5) defines a senior police officer as a constable with the rank of
sergeant or an equivalent rank (or higher), or performing the duties of a constable having
such a rank.
62. The intention of subsections 3UO(4) and (5) is to ensure that a senior police officer is
engaged where a constable or PSO identifies that a person poses a criminal 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.
63. Constables and PSOs will be appropriately trained in the exercise of these powers,
including the use of move-on powers to address security and criminal threats. Prior to
exercising any of the powers in 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.
64. Subsection 3UO(6) 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.
65. This provision limits the move-on framework by specifying that only one subsequent
direction (the second direction) can be given to a person within 7 days of the first move-on
order being issued. The second direction can only be given if another assessment is made and
the legal requirements in subsection 3UO(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
12
first direction was given. An authorisation by a senior police officer for this purpose can be
given orally or in writing.
New section 3UP - Move-on directions at airports - alternative constitutional scope
66. New section 3UP provides that, without limiting its effect apart from this section,
section 3UO also has the effect it would have if the definition of major airport in section
3UL did not include an airport determined by the Minister under section 3UM.
New section 3UQ - Stop and directions powers at airports
67. New section 3UQ 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 on the premises of a major airport where there are
reasonable grounds that it is necessary to facilitate an identity check or move-on direction.
68. 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.
69. 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 3UR - Constables' and protective service officers' duties at airports
70. New section 3UR provides procedural fairness safeguards by inserting duties with
which a constable or PSO must comply in exercising the new powers under Division 3B.
71. Subsection 3UR(1) provides that a constable or PSO must comply with these duties
before giving an identity check direction (under new section 3UN) or move-on direction
(under new section 3UO).
72. Before issuing an identity check or move-on direction, a constable or PSO not in
uniform must comply with subsections 3UR(2) and (3). In such cases, the constable or PSO
is required to show the person evidence that the constable is a constable or the PSO is a PSO
(subparagraph 3UR(2)(a)(i)) and, if the person requests, the constable or PSO must also
comply with the requirements of subsection 3UR(3) (subparagraph 3UR(2)(a)(ii)).
73. Under paragraph 3UR(2)(b), 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.
13
74. Subsection 3UR(3) will apply if the constable or PSO is not in uniform and the
subject of an identity check or move-on direction requests further information from the
constable or PSO, either under subparagraph 3UR(2)(a)(ii) or otherwise. If requested, the
constable or PSO must give the person their name (paragraph 3UR(3)(a)), the address of their
place of duty (paragraph 3UR(3)(b)), their identification number (if any) (paragraph
3UR(3)(c)) and, if they have no identification number, their rank ((paragraph 3UR(3)(d)).
75. The purpose of new section 3UR is to ensure persons are informed of the
consequences of not complying with the request, or providing false or misleading
information. Subsection 3UR(3) ensures that, in circumstances where a constable or PSO is
not in uniform (for example, they are in plain clothes), persons are made aware of the
constable or PSO's authority under Division 3B at the earliest opportunity.
76. The constable or PSO will commit an offence under subsection 3US(3) if he or she
did not comply with the requirements specified in new section 3UR.
Section 3US - Directions at airports - offences
77. New section 3US 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.
78. A person who has been subject to an identity check, move-on or ancillary direction
must abide by the direction.
79. Under new section 3US, 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 their duties
that apply to the constable or PSO under new section 3UR. 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.
80. To establish that an offence under subsection 3US(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 3UN, 3UO or
3UQ and the person was reckless as to this circumstance (this fault element will be
applied under subsection 5.6(2) of the Criminal Code Act 1995 (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 subsection
3UR(2) (absolute liability attaches to this element).
81. Absolute liability is attached to the physical element that the constable or PSO has not
failed to comply with his or her duties in subsection 3UR(2) as this element is essentially a
14
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)
82. The offence in subsection 3US(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).
83. Note 1 in subsection 3US(2) provides that absolute liability is dealt with in section 6.2
of the Criminal Code.
84. Note 2 in subsection 3US(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.
85. Note 3 in subsection 3US(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 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).
86. Subsection 3US(3) provides that a constable or PSO commits an offence if they fail to
fulfil the duties contained in subsection 3UR(2). Those duties require the constable to provide
the subject of a direction with evidence of their position as a constable or PSO if they are not
in uniform, and to inform the person of the consequences of non-compliance with a direction.
87. The offence in subsection 3US(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 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.
88. Subsection 3US(4) provides that the term engage in conduct, for the purposes of the
offence in new section 3US, means to do an act or omit to perform an act.
Part 2 - Other amendments
Australian Federal Police Act 1979
Item 6 Subsection 4(1) (subparagraph (a)(i) of the definition of protective service
offence)
89. 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 3US(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 3US(1) is a protective service offence for the
purposes of the AFP Act.
15
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 2018 (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 3UN)
direct a person to leave the airport premises or the premises of any 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 3UO), and
direct a person to stop or do anything else necessary to facilitate an identity check or
move-on direction ('ancillary direction') (section 3UQ).
3. The Bill introduces new offences for contravening these directions (subsection
3UR(1)). It also provides that constables and PSOs issuing these directions must inform the
person of relevant offences and, if not in uniform, provide sufficient information to identify
themselves as a constable or PSO (subsection 3UR(2)). Breaching these requirements
constitutes an offence under subsection 3US(3).
4. These new powers are designed to keep the Australian public safe by ensuring that
law enforcement have appropriate powers to address security and criminal threats that arise in
the aviation environment.
5. Recent events overseas, and the disrupted terrorist plot at Sydney International
Airport, 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 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
2
Constable means a member or special member of the Australian Federal Police or a member of the police force
or police service of a State or Territory (subsection 3(1) of the Crimes Act). Protective service officer means a
special member of the Australian Federal Police (sections 4 and 40EA of the Australian Federal Police Act
1979).
16
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 aviation
security. 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 aviation security 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 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
aviation security.
11. There is currently a limited power under Commonwealth law for police to direct a
person to 'move on' from the premises of 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 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:
17
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 on the premises of 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
aviation security.
14. A 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
3UO(4) and (5)).
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), 12, 17 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 proposed identity check, move-on and ancillary directions will apply equally to
all persons within a major airport regardless of age, gender, ethnicity, religious background
or 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 aviation security (see sections
3UO-3UQ).
20. This 'reasonable grounds' requirement ensures that directions are based on actionable
intelligence relevant to aviation security or criminal conduct. A direction cannot be issued in
18
the absence of such grounds, preventing 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.
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. A
breach of this Code may lead to 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).
29. These limitations are clearly provided by law in the sense that they will be authorised
by validly enacted provisions of the Crimes Act.
30. It is clear from the terms of the move-on and ancillary directions (sections 3UO and
3UQ) that these directions are designed to protect national security by preventing terrorist
19
acts and to uphold the public order by preventing the commission of crime. 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 on the premises of 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
aviation security.
33. The proposed move-on directions enable constables and PSOs to take the least rights
restrictive approach as it allows an officer to determine the scope of the move-on direction
and the duration of the exclusion period depending on what is reasonable and necessary in the
circumstances. Furthermore, even if these directions limit a person's liberty of movement,
they can be viewed as a less intrusive measures than taking a person into detention or
arresting them.
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 aviation security would, on the other hand, also
be necessary to 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 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.
3
Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (1st ed, 1993), p.212.
20
37. Issuing a move-on direction preventing person 1 from attending any major airport for
12 hours, however, would likely be unnecessary to preserve aviation security, as the threat to
public order remains confined to a specific situation in a 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 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 them.
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 orders will be
permitted to remain within the major airport or take a flight to or from these airports, causing
a potentially considerable risk to aviation security or public order.
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
aviation security or the commission of an offence (see paragraph 3UN(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 3UQ(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 aviation security 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 excessive option is unlikely to be
found to be necessary on reasonable grounds.
43. 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.
Conclusion
44. 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 it limits this right,
it does so in a manner which is lawful, not arbitrary, is consistent with the other rights
recognised in the ICCPR and CRC and is necessary to protect national security, public order
and the rights and freedoms of others.
21
Article 17 (ICCPR) - Prohibition on Arbitrary or Unlawful Interference with Privacy
45. 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.
46. 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
47. 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.
48. The power to issue an identity check direction under section 3UN 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
aviation security.
49. Similarly, the power to issue an ancillary direction under section 3UQ 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?
50. Even if identity check and corresponding ancillary directions amount to an
interference with a person's privacy, this interference is not unlawful or arbitrary.
51. These directions are lawful in the sense that they will be authorised by validly enacted
provisions of the Crimes Act.
52. 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
4
UNHRC, General Comment No. 16: Article 17 (Right to privacy), (32nd session, 1998) at [7].
22
addressing criminal behaviour or aviation 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.
53. The identity check and ancillary directions are also reasonable, necessary and
proportionate in achieving these legitimate objectives.
54. 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 3UN(2)). 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 3US(1) and ensures the
provision is not a de-facto requirement to carry identification at airports.
55. 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 aviation security.
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.
56. 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 on airport
premises. 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.
57. 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 law of a State having a federal aspect,
punishable by 12 months imprisonment or more (see subparagraph 3UN(1)(b)(i)).
58. This provision is based on the current provision at 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.
59. 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 3UN(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 aviation security.
60. 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
23
applicable legislation. For example, the AFP will handle information in accordance with its
obligations under the Privacy Act 1988.
61. A constable 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 they are not in uniform (section 3UR). This
provision ensures that a person understands the nature of an identity check direction,
reinforcing the proportionate and reasonable nature of these checks.
Conclusion
62. 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.
Conclusion
63. 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.
24