Monday, 14 October 2019
Crimes Legislation Amendment (Police Powers at Airports) Bill 2019; Second Reading
I am in continuation, but I would like to draw your attention to the state of the chamber, Acting Deputy President Kitching. (Quorum formed)
Sitting suspended from 18:29 to 19:30
The Senate last discussed the Crimes Legislation Amendment (Police Powers at Airports) Bill 2019 on 29 September. Given the passage of time, I'll briefly reiterate some of the remarks I was making.
As originally drafted, this bill was certainly flawed. That was rather unfortunate, because this law has the potential to have a direct impact on more Australians than any other piece of national security legislation, noting that most Australians will at some stage, and often regularly, go to airports. Soon, however, as a consequence of this legislation, visitors to our major airports will be well advised to check that they are carrying photographic identification, because they could be stopped by the Australian Federal Police and asked to identify themselves. If a person's not prepared to do so, they'll face significant fines. If considered to be a problem for aviation security, they'll also be at risk of being banned from their flight or being ejected from the airport—banned for up to 24 hours.
Minister Dutton has said that people won't be randomly checked. However, police officers will certainly enjoy significant discretion to demand identity checks and to expel people on security grounds. Missing a flight may involve significant costs for a person who has broken no law but, by virtue of background or association, falls within the intelligence risk profile. And of course we know that while police do a good job they don't always get the intelligence right 100 per cent of the time. Moreover, these new powers may easily be focused on particular ethnic and religious groups, so de facto ethnic and cultural profiling is a significant risk.
This bill has been amended since it was first introduced by the government. The government agreed to a number of recommendations by the PJCIS, and one presumes that therefore it will soon pass through. I'd just like to make a couple of points in conclusion. The first is that, beyond the specific powers contained in the legislation, a great deal will depend on the operational practices, the culture and the use of intelligence by the Federal Police. While the annual reporting requirements will provide us with some general statistics on the use of these powers, the parliament needs to keep a close eye on just how the AFP goes about exercising these powers. This legislation, as I said before, has the potential to impact on a large number of people. And most young people don't carry IDs anymore; they don't carry wallets, because their iPhone or their Samsung can do much of their credit card transactions and they may not feel the need to have ID upon them.
In times of terrorist threat or international tension, the legislation could be used to help the public, but it could also be applied with disproportionate focus on particular groups and communities within our diverse society. The operational impacts of this legislation will need to be subject to review, both through the Senate estimates process and, given the sensitive security and intelligence background, through the PJCIS. This will be essential so that the parliament and the travelling public can be assured that the operational use of these new powers is proportionate and effective. Consequently, to provide appropriate parliamentary review, Centre Alliance will move an amendment to the bill to insert a four-year sunset clause on the operation of these new powers and a second amendment requiring that within no longer than three years the PJCIS must undertake a review of the operation, effectiveness and implications of these new powers as well as security matters at major airports more generally. That review would be required to be completed within nine months—that is, before the sunset clause would take effect. The parliament has included similar review and sunset clauses in other major counterterrorism and security legislation. Such measures are appropriate in relation to this bill given its potential impact on the travelling public.
My other concluding observation arises from the inevitability that the Department of Home Affairs, the Federal Police and other law enforcement agencies will, in due course, say, 'Why stop at airports?' Similar security considerations may apply to other places where large numbers of people gather—railway stations, bus interchanges, sporting matches, music festivals or, indeed, any crowded shopping mall. No-one would be surprised if this federal legislation sent a signal to state police to do similar sorts of things, just as we saw with the very, very narrow application of intercept powers when they originally came in. Now, they are commonplace across every jurisdiction. We may all be safe, but with each successive tranche of security legislation there is an incremental but significant change in the relationship between citizens and government operatives. Privacy and freedom of movement will no longer be rights, but they are incrementally subject to even greater discretion on the part of law enforcement, security and intelligence agencies. So we do need to consider the big picture, and we must make sure we do our job in respect of accountability.
I rise to speak in favour of the government's Crimes Legislation Amendment (Police Powers at Airports) Bill 2019. This bill will enhance police powers at Australian airports by enabling police constables and, indeed, Protective Services Officers, in appropriate circumstances, to direct a person of interest to produce evidence of their identity to facilitate an identity check or to direct a person to leave the premises or not take a flight.
The overarching priority of this Morrison Liberal government is to keep Australians safe and secure. This government is absolutely committed to ensuring that our police services can continue to protect Australians. Of course, aviation is an enduring and attractive target for terrorism and organised crime. The disrupted terrorist attack on the Sydney airport in July 2017 both demonstrated this and demonstrated a level of sophistication which had not been seen before in this country. Airports, ultimately, are known focal points for gang related activities, such as illicit drug trafficking, and they provide pathways for transnational, serious and organised crime groups to expand their operations for domestic and international travel.
Australia's busiest airport, Sydney's international airport, handled as many as 44 million passengers in 2018, 16.7 million of which were international travellers. My home airport of Adelaide handled eight million in the last financial year. Although the current arrangements provide a strong and comprehensive system of aviation security, it's always essential that we remain ahead of what is an ever-evolving threat. The police powers bill, as I'll describe it, will expand police powers at all major airports—and I'll come back to that—by enabling police to direct a person to produce evidence of their identity, which we'll describe as an identity-check direction, direct a person to leave the airport premises or not take a flight or direct a person to stop or do anything else necessary to facilitate an identity check. For example, the proposed amendments would ultimately allow officers to check the identification of a person where a known terrorist suspect, for example, drops off an unknown person at an airport or where a person is seen photographing screening and security points.
Of course, police would always be required to exercise these new powers based on a very clear criteria in the legislation, and relying, as always, on their specialist expertise and training. The new threshold, which is provided by this bill, is that the police are to exercise their powers to safeguard the public order and safe operation of a major airport, which is perhaps a broader definition, or a lower threshold, than the previous 'airport security' definition.
This of course doesn't mean that the intention of this bill is to check the identity of every person in the airport. The police presumably have no interest in doing that, nor will they have the resources to do so. It's not the intention that these powers would ultimately act as a de facto requirement for people to carry identification. The move-on direction is not a mechanism for punishment. Rather, the intention is that the move-on direction would allow the police to provide what is basically a circuit-breaker to safeguard public order—for example, by preventing people from boarding a flight. As always, it would be open to police, in circumstances where they have enough information to reach the criminal threshold for arrest, to avail themselves of that as well.
The Australian government is committed to ensuring that these powers are genuinely exercised in a non-biased and non-discriminatory manner, with laws that are necessarily reasonable and proportional to the threat. I should also say that these measures have been developed on the advice of the Australian Federal Police. That advice was, in essence, that the current identity-checking powers were no longer suitable, were no longer enough, and were no longer purpose-built for the current national security environment. So the government is essentially trying to strike the right balance between security and, of course, minimising disruption to the travelling public—and the numbers I detailed earlier on show that very large numbers of people travel through our major airports.
I should say that, as always, people will have a range of options when asked for identification—and I notice that Senator Patrick touched on the issue of children and their identity before. They'll be able to satisfy a direction given by a police officer or a security professional to provide their identity in a range of ways. That may well be producing something as simple as a passport or a driver's licence. One would assume a person would be very likely to have a passport in an airport. It could be providing a student card or a Medicare card, or simply giving the officer their name, date of birth and address. In the case of children, it would be open to the police to simply contact another person such as a parent or guardian to obtain the name and date of birth to confirm their identity.
In circumstances where a person does not have proof of identity but appears to have a genuine reason for being at the airport, this bill provides that the police may simply accompany that person without trying to delay them. However, a refusal to provide ID, coupled with having met that threshold along with the behaviour of the person, may elevate police concerns about threats to public order, and the power could be used. That is the intention of what is being proposed here. Obviously it goes without saying that the Australian Federal Police have a high level of training. Their officers at airports will regularly undertake specialist training, including behaviour analysis. The AFP will regularly review and update their programs in the environment to ensure that the current legislative powers continue to maintain their sufficiency.
It's instructive in certain circumstances to think of the bill in its current form as a case study. You can well imagine a situation where, in response to a heightened-threat environment, increased numbers of police are assigned to patrol and observe security screening areas, which of course are a significant point in an airport. Police may well, in this circumstance, observe a person taking photos or videos at the screening point during and passing through security. In that circumstance, the police may well look to CCTV footage and, in circumstances where, for example, the police identify that that person has been at the airport for a lengthy period of time—perhaps potentially even for hours—taking photos and making notes, police may well consider this conduct highly unusual in contrast to the sorts of normal and everyday observations that you would see at an airport.
Under our existing laws, the person's behaviour in those circumstances would probably not be sufficient to reach the threshold where the officers would have identity-checking powers. But, in the currently described circumstances, a still image of the person could be circulated amongst the officers and, if the person were approached and were still not prepared to provide their name, date of birth and so forth, the police could issue a direction to that person to provide identification upon the grounds that it was reasonably necessary to safeguard aviation security. In those circumstances, coupled with that suspicious behaviour, if the person were to refuse to comply, the police could issue a move-on notice or direction for 12 hours, providing them with sufficient time to conduct checks of intelligence holdings and assess the threat. That may well provide the critical circuit-breaker that ensures that our airports remain safe.
The government would take upon itself to make sure that the new powers were advertised, and the new powers would be made available on the Department of Home Affairs website prior to their coming into effect. But they would only apply to major Australian airports such as those in capital cities and, in addition to those, those in the Gold Coast, Launceston, Alice Springs and Townsville. As the bill has been framed, these airports have been selected on the basis of advice from the Federal Police. They've been identified because of the large volume of passengers that trickles through those transit airports.
As I see it, the bill is further evidence of the government's ongoing commitment to keeping the travelling public safe, keeping our airports safe and, ultimately, providing our police with the necessary tools they require to do their jobs effectively. It'll provide our law enforcement agencies with tools to protect Australia's airports and its citizens from serious criminal and security threats. I commend this bill to the Senate.
I rise to sum up the debate on the Crimes Legislation Amendment (Police Powers at Airports) Bill 2019. In doing so, I'd like to thank all colleagues who have contributed to the debate on this bill, which will ensure that our police can continue to keep safe and secure the thousands of Australians who transit through the airport network every day. I would also like to thank the parliamentary committees that have considered this bill, including the Parliamentary Joint Committee on Intelligence and Security, for their contributions.
While Australia's aviation network is amongst the safest in the world, it is an unfortunate reality that our airports are seen as an enduring and attractive target for terrorists and for transnational, serious and organised crime syndicates. In July 2017, a terrorist plot to blow up an Etihad flight departing Sydney was, thankfully, disrupted, preventing what would otherwise have been the greatest loss of Australian life from any terrorist attack in history. This terrorist plot demonstrated a level of sophistication not seen before in Australia, and was just one of the 16 planned terrorist attacks that our law enforcement and intelligence agencies have disrupted since the national terrorism threat level was raised in September 2014. Organised crime syndicates also pose a significant threat to Australian communities and the Australian way of life. These groups are highly adaptable and resourceful, looking for opportunities to exploit any potential vulnerabilities in our aviation network for their own criminal operations, such as the trafficking of illicit drugs and firearms.
With these threats to Australia primarily based offshore, our actions to combat serious and organised crime must be targeted at detecting, deterring and disrupting the actions of criminals seeking to infiltrate our borders, including through our major airports. Although Australia already has a strong and comprehensive aviation security framework, we must continue to review and bolster our security arrangements from time to time to remain ahead of these real and evolving threats.
This bill will strengthen police powers at major Australian airports, enabling police to direct the person to produce evidence of their identity and to leave the airport or to not take a flight for up to 24 hours if they pose a criminal, safety or security risk. The bill also contains new offences for failing to comply with a direction to stop, provide proof of identity or move on from the airport in appropriate circumstances. These offences are an enforcement tool to ensure that use of new powers is not frustrated by noncompliance. Police will be able to use the new powers at all major Australian capital city airports as well as Alice Springs, the Gold Coast, Launceston and Townsville airports. These airports have been identified because of the large volume of passengers who transit through these airports annually and, in some cases, because of international flight departures. The responsible minister will also be able to determine additional airports at which the new powers may be exercised, which in practice will be based on operational advice from the Australian Federal Police and the broader intelligence community.
Various Commonwealth, state and territory laws apply across Australian airports. This bill seeks to address some of this complexity by giving police consistent and appropriate powers to respond proactively and proportionately to criminal, safety and security threats at major Australian airports. The Australian government is committed to ensuring that these new powers will be genuinely exercised by police in an unbiased and non-discriminatory manner. Police will not be checking the identity of every person present at a major airport—nor would they have the power to do so under the bill. It is not the intention that these powers will act as a de facto requirement to carry ID. Use of the new powers will be based on very clear and specific criteria in the legislation and supported by the Australian Federal Police's specialist expertise and training.
As I've noted, this bill has been considered in detail by the Parliamentary Joint Committee on Intelligence and Security as well as the Parliamentary Joint Committee on Human Rights and the Senate Standing Committee for the Scrutiny of Bills. The government has fully considered these committees' views and recommendations, which have been incorporated into the bill. In particular, the bill explicitly provides that a person's right to engage in peaceful assembly will not by itself be regarded as prejudicial to the public order and safe operation of a major airport. Police cannot use the new identity checking and move-on powers to disrupt or quell a protest unless the protest or protestors are causing a risk to the airport's public order and safe operation or a risk to the safety of any person in the airport environment. The bill also ensures that where police issue a move-on direction the person subject to the direction will be made aware of their rights to seek judicial review or interlocutory orders in relation to that direction, including in expedited or urgent circumstances.
Threats to our aviation security are not static, and our laws should not be either. Police powers must continue to evolve in parallel with the threat environment. The new identity-checking and move-on powers are designed to keep the Australian public safe by enabling police to better prevent, detect and disrupt serious criminal, safety and security risks—risks that are unique to the aviation environment—at the earliest possible opportunity. This bill strikes the right balance between ensuring the safety and security of all Australians using our airports and minimising the disruption to the travelling public. I commend the bill to the Senate.