CTH Act Expanding Police Powers at Airports Receives Assent

On 28 October, the Crimes Legislation Amendment (Police Powers at Airports) Act 2019 (Cth) (‘the Act’) received assent as Act 89 of 2019. Currently, the Act is awaiting commencement by proclamation. The Bill was initially introduced on 4 July by Mr Peter Dutton, the Minster for Home Affairs. The purpose of the Act is to amend the Crimes Act 1914 (Cth) in order to implement:

1. Expansion of police powers relating to identity information requirements at major airports.
2. Introduction of new move-on powers and stop and directions powers at major airports.
3. Introduction of ministerial power to determine that certain airports are major airports for the purposes of the exercise of the police powers contained within the Act.
4. Creation of an offence of contravening an identification direction, move-on direction or any other police direction given to facilitate the exercise of an information request or move-on power.

Police Powers: Requirement of Identification

Section 3UP of the Act allows a constable or protective service officer (PSO) to direct a person to provide evidence of their identity at a major airport if the constable or PSO either:

1.       Suspects on reasonable grounds that the person has committed, is committing or intends to commit relevant criminal activity. Relevant criminal activity is defined as an offence which is punishable by imprisonment for over 12 months.  This includes offences against:

 (a)  A law of the Commonwealth or a Territory;

 (b)  A law of a State having a federal aspect.

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

Section 3UN states that “public order and safe operation” of major airports refers to the public order, safety of persons and safe operation of the airport and its arriving and departing flights. Section 3UN(2) explicitly states that peaceful protest is not itself regarded as prejudicial to the public order and safe operation of a major airport. If given a direction to provide proof of identity, a person must provide a government photographic identity document. If a person fails to provide such a document, the person must produce another identity document or may be directed to provide two different identity documents. If a person is still unable to produce a document, the person must provide the constable or PSO with their name, address and date of birth.

Police Powers: Move-on, Stop and Direction Powers

Section 3UQ of the Act establishes police move-on powers at major airports. A constable or PSO may give a move-on direction if one of the following applies:

1. The constable or PSO considers on reasonable grounds that the person has contravened a direction to provide identification documents or a direction under Section US (stop and directions powers) and the constable or PSO is not reasonably satisfied of the person’s identity.
2. The constable or PSO reasonably suspects that direction is necessary to prevent or disrupt relevant criminal activity occurring within the airport or in relation to one of its flights.
3. The constable or PSO considers on reasonable grounds that the direction is necessary to secure public order and safe operation of major airport.

The constable or PSO may provide a written direction requiring that a person:

• not to take a particular flight or any flight to or from the major airport or any other major airport
• require a person to leave the airport
• prevent a person entering the airport 

for a specified period of a maximum of 24 hours.

However a move-on direction covering a period greater than 12 hours can only be given or authorised by a senior police officer.

Section 3US outlines the stop and directions powers of police at major airports. A constable or PSO may only give such a direction if they consider on reasonable grounds the necessity of giving the direction to facilitate either a police request for identification information or a move-on direction. The direction may consist of telling a person to stop or “do anything else” the constable or PSO considers reasonably necessary to facilitate the exercise of the relevant police power.

Determination of Major Airports

Section 3UM of the Act sets out a list of major airports however section 3UO allows the Minister, by legislative instrument to declare an airport a ‘major airport’. The airport may only be considered as a ‘major airport’ if it is ordinarily used for flights within a territory or flights used for trade, commerce or the carriage of passengers which are international or interstate flights.

Offence of Contravening Police Direction

Section 3UU replaces offence of failure to comply with an identification request with offence of contravening a direction relating to identity information, a move-on direction or a stop and directions power. The new offence incurs a penalty of 20 units and if the direction relates to identity information or a move-on power, absolute liability applies. Notably, section 3UT outlines the proper police duties and procedures to be used when invoking one of these powers including showing proof of identification if not in uniform, complying with a request to see identification and requiring the constable or PSO to inform the person that a failure to comply with the direction may constitute an offence before giving the direction.

Act as Response to Failures of 2018 Bill

An earlier version of the Act, the Crimes Legislation (Police Powers at Airports) Bill 2018  (‘the 2018 Bill’) was introduced on 12 September 2018 but lapsed on prorogation of Parliament before being debated. The initial 2018 Bill received a mixture of criticism and support. The Greens Senator Mr Nick McKim opposed the 2018 Bill stating “Demanding people produce documents on the spot is a hallmark of police states.” Other critics such as Senator Rex Patrick of the Centre Alliance expressed concerns of police profiling and targeting of particular ethnic groups and a lack of avenues of redress. The 2018 Bill referred to the purpose of “aviation security” which included the “good order” of major airports. The Law Council of Australia criticised the potential of the ambiguous provision to allow officers to act in an excessively discretionary and arbitrary manner, encourage over-policing and interference with individual rights to privacy, free speech and free movement. The Parliamentary Joint Committee on Intelligence and Security (PJCIS) reported on the 2018 Bill and a number of its recommendations were included in the 2019 Bill including the replacement of “aviation security” with “public order and safe operation”, the explicit exclusion of peaceful protest as an action prejudicial to public order and the requirement that officers provide name and identification upon request. Under section 3UV of the Act, the PJCIS is set to review the effectiveness and operations of the Act within 3 years of its commencement. Mr Dutton, in his Second Reading Speech of the 2019 Bill stated that the Bill “represents a balanced approach to amending the powers of our law enforcement agencies, while recognising the evolving threat environment at Australia's major airports.”

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Crimes Legislation Amendment (Police Powers at Airports) Act 2019 (Cth)  and explanatory material, available from TimeBase's LawOne service