Extending AFP search powers at Australian airports

Current stop, search and seize powers are under Division 3A of Part IAA (Div 3A) of the Crimes Act 1914 (Cth) (Act) and extend to AFP Officers.

Div 3A will expire on 7 September 2018. The Counter Terrorism Legislation Amendment Bill (No.1) 2018 (Cth) (Bill) is seeking to extend the provisions for a further 3 years (until 7 September 2021).

If it is passed AFP officers will continue to have the power to stop, search, question and seize in all Commonwealth areas (e.g. federally leased airports which are Australia’s gateway to the world) if the officer suspects on reasonable grounds the person may have committed or might be about to commit a terrorist act. Such powers extend across all areas at airports accessible by passengers and crews including in a prescribed security zone without requiring any suspicion.

This authority can only be exercised if an AFP officer believes it is necessary to search the premises to seize a thing in order to stop it from being used in connection with a terrorist offence and if it is necessary to stop a serious and imminent threat to a person’s life, health or safety.

The Parliamentary Joint Committee on Intelligence and Security (PJCIS) published a report on 7 June 2018 with a variety of recommendations pertinent to the Bill.

Recommendation 1 highlighted that such powers as described above are expected to only be exercised in “rare and exceptional circumstances”, but affirmed that the adoption of Div 3A to include AFP Officers is necessary due to the number of threats against Commonwealth areas in the recent past, raising Australia’s threat level to “probable”: see https://www.nationalsecurity.gov.au/securityandyourcommunity/pages/national-terrorism-threat-advisory-system.aspx

As we understand it, notwithstanding the increased threat level, such powers have not yet been exercised (as of May 2018).

The Australian Security Intelligence Organisation (ASIO) is responsible for obtaining, correlating and evaluating intelligence relevant to security, with counter-terrorism being one of its key functions. In 2017 ASIO conducted an Independent National Security Legislation Monitor (INSLM) report on current legislation regarding counter terrorism, including the Bill. The INSLM report showed support for the importance of Div 3A, believing it is consistent with:

  • Australian human rights;
  • counter-terrorism and international security obligations;
  • appropriate safeguards for protecting the rights of individuals;
  • the current threats of terrorism and to national security; and
  • necessity.

There are safeguards in place for citizens, such as that the exercise of AFP Officers powers are subject to review by the Commonwealth Ombudsman.

The major update the Bill brings with it is that, as soon as practicable after Officers exercise such powers, the Commissioner of the AFP must provide a report to the Minister of the INSLM and PJCIS.

Similarly, an annual report will be required to be made to Parliament to outline the number of instances such powers were used. There will also be amendments under the Intelligence Services Act 2001 (Cth) introducing a new oversight role to the PJCIS to monitor the basis of the Minister’s declaration of a prescribed security zone and monitor and review performance by Officers.

Lastly, but cautiously in its reassurance, Div 3A guarantees no one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment.

So far it is unclear what the repercussions will be if someone is unable to produce an ID upon request by an AFP Officer. The AFP have not used these powers yet, but also have not suggested that persons will be removed from the premises or unable to board flights if ID is not provided when demanded.

In the absence of provisions to the contrary, these consequences appear to remain a possibility.

We will follow the progress of the Bill with interest, and report on developments as they unfold.

by Joseph Wheeler and Amanda Gill


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