Bills: Crimes Legislation Amendment (Police Powers at Airports) Bill 2019 - Second Reading

19 September 2019

Senator Patrick:

'Your papers, please.' That's the phrase associated with the workings of a police state. It's a catchphrase long favoured by Hollywood movies, notably Casablanca, but it's an expression that can trigger dread for those who've had the misfortune to encounter the arbitrary power of an authoritarian government. Regrettably, it's a phrase—or something like it—that we may soon hear at Australia's major airports as someone is taken aside and asked to identify themselves by the Federal Police. That will be one of the consequences, for good or for ill, of the Crimes Legislation Amendment (Police Powers at Airports) Bill 2019.

This bill was first introduced into the previous parliament by the Minister for Home Affairs, Peter Dutton, a year ago on 13 September 2018. At that time, it was declared to be an urgent measure, something that was required to remedy security deficiencies at Australia's major airports. The bill was promptly referred to the Parliamentary Joint Committee on Intelligence and Security, which delivered a report, including recommendations for amendments, to the parliament in February this year. Since then, we've had a federal election and the bill was introduced into the House of Representatives on 4 July and passed through that chamber on 12 September. So, a year on from its original introduction as an urgent piece of legislation, the bill is now before the Senate. This somewhat delayed progress through the parliament, in part—but only in part—a consequence of the election, is not uncharacteristic of much of the national security legislation that has been hastily introduced to this parliament. The government declares a bill to be an urgent matter of national security, but then parliamentary scrutiny finds numerous faults and flaws requiring amendment, redrafting and further consideration.

In this case, the bill, as originally drafted, was certainly flawed. That was especially unfortunate, because this law has the potential to have a direct impact on more Australians than many other pieces of national security legislation. Airports are a part of everyday life for many of us. We are a nation of travellers, with people flying for business and work, for holidays or to connect with family and friends across our continent or overseas.

I recall, perhaps about a month ago, during the last parliamentary break, deciding to go visit—as a senator—Coober Pedy, to the north of my state. Walking into the airport, I went through the regular security checks. I then had my boarding pass scanned and went down to a holding area, where one would normally wait for a bus, and observed four police officers standing around. They didn't say to all of the passengers: 'Please stand over against the wall; we'd really like to do some additional security checks. We're going to run a dog past you. It's really to help you with your safety.' What we got was an Australian Federal Police officer who didn't actually identify himself, although it was obvious that he was a policeman, who stated, 'Everyone against the wall and put your bags down by your feet.' Then a dog was run alongside the bags. I looked at some of the other passengers and they seemed quite shocked. I then confronted the police—or went and talked to the police—identified myself as a senator and simply asked, 'Can I ask what the dogs are doing?' They said, 'We can't tell you that.' I said, 'Can you tell me what powers you are exercising today?' and the answer was a very short 'airport security powers'.

I got the bus along with the other passengers and then jumped on the aircraft. The flight to Coober Pedy was about an hour and a half, which gave me enough time to type up some questions on notice for the relevant minister, which I sent when I arrived in Coober Pedy. I might point out that I did also contact the commissioner's office, and we did have a discussion about it. Indeed, it turned out these police officers were being perhaps a little heavy-handed and not operating in accordance with the relevant procedures.

It was quite funny, because I had this bill in my bag at the time. I had taken it with me to read on the plane. So there was a certain irony about getting pulled aside by the police. I'm now satisfied, having talked with Commissioner Colvin's office—if indeed he's still the commissioner; I think he may well be moving on, but he was a superb commissioner. As I said, police procedures have been adjusted.

I stayed in Coober Pedy over the next 24 hours and I can tell you that I spoke with a number of people, and the topic got brought up. There were people, regular Australians, who were shocked enough by what had happened that they raised it in conversation, many of them suggesting that they had been through Eastern Europe many years ago and had the same sort of treatment. So there's a bit of a danger even in accepting this legislation from the perspective that it's grounded in concerns about national security. That's something that happened to me, to a number of South Australians and perhaps even to interstate or international visitors. As I said, the police commissioner has indeed looked at that and assured me that the procedures will change.

Even when not travelling ourselves, trips to airports are routine as we meet or farewell family, workmates and colleagues. Soon, however, as a consequence of this legislation, visitors to our major airports would be well advised to check that they are carrying photographic identification, because they could be stopped at an airport by an Australian Federal Police officer and asked to identify themselves. If a person is not prepared to do that, they'll face significant fines. If they can't or won't identify themselves to the satisfaction of a police constable or if they are judged to in some way pose a problem for aviation security, they'll also be at risk of being banned from their flight and/or summarily ejected from the airport and banned from the premises for up to 24 hours.

The government argues that these expanded police powers at airports are necessary to disrupt security and criminal threats. It is certainly the case that our airports are potential terrorist targets and focal points for criminal activity, especially drug trafficking. At present, police can always ask someone to identify themselves if they suspect that a person may be about to commit a crime. If a person is driving a vehicle, they may be required to produce a drivers licence. However, the government argues that existing identity-checking requirements are no longer adequate. The Minister for Home Affairs, Mr Dutton, has emphasised that the Federal Police have 'no intention of checking the identity of people at random'; instead, they will rely on police intelligence, together with what is described as 'specialist expertise and training'.

That said, police officers will enjoy significant discretion to demand identity checks and to expel people in order to safeguard aviation security. Although expulsion from an airport for more than 12 hours will require approval from a police sergeant or a more senior officer, the potential for arbitrary exercising of power is considerable. Missing a flight may involve significant cost for a person who has broken no law but, by virtue of background or association, falls within an intelligence risk profile. But they will have little, if any, redress. Police intelligence—and, indeed, information from our national security agencies—is regrettably far from a hundred per cent reliable. Moreover, these new powers may easily be focused on particular ethnic and religious groups. Some political figures might be keen to encourage that. In any case, de facto ethnic and cultural profiling is an obvious risk.

The bill before the Senate today has been amended since the first bill was introduced by the government last year. The government has agreed, if not in whole then at least in part, to the recommendations made by the PJCIS. Significantly, the bill has been amended to include a savings provision to ensure the move-on powers do not interfere with lawful advocacy, protest, dissent or industrial action that is peaceful and does not disrupt the safe operation of an airport. The government has further agreed to recommended transparency measures. The AFP will be required to record, and report on an annual basis, the number of occasions at each major airport on which an identity information direction is issued and, similarly, the number of occasions on which a move-on direction is issued.

The PJCIS also recommended that the original bill be amended to include, in certain restricted circumstances, the right to seek urgent or expedited judicial review. The government has amended the bill to address what it describes as the broad intent of this recommendation. In issuing a move-on direction, a constable or AFP protective service officer will be required to use an approved form that includes details that will enable a person to contact a Federal Court registry in the state or territory in which the direction is given. The government argues that providing these contact details will assist a person subject to a move-on direction to apply for judicial review or interlocutory orders in relation to the direction. That may be so, but the reality is that the judicial review process is not something that many people would easily avail themselves of. I don't know if anyone in this chamber has been to a Federal Court registry and tried to navigate the extensive number of forms or, indeed, seek assistance from a duty solicitor. It can be quite problematic. In any case, there's no question that the person who is subject to that move-on order will, in actual fact, miss their flight. In some instances—in fact, I expect, in almost all circumstances—there will be consequential financial loss.

As it now stands, the bill is an improvement on the original bill, but it is still a measure that significantly changes the relationship between citizens and the police. This bill enjoys bipartisan support from both the government and the opposition, so it will soon pass through this chamber and become law. I would make a couple of points in conclusion—

The DEPUTY PRESIDENT: Order! Senator Patrick, we will now move to question time.