Federal Register of Legislation - Australian Government

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SLI 2014 No. 46 Regulations as made
This regulation sets out various matters which give effect to the Commonwealth Places (Application of Laws) Act 1970.
Administered by: Attorney-General's
Registered 16 May 2014
Tabling HistoryDate
Tabled HR26-May-2014
Tabled Senate16-Jun-2014

EXPLANATORY STATEMENT

 

Select Legislative Instrument No. 46, 2014

 

Subject -              Commonwealth Places (Application of Laws) Act 1970

 

                            Commonwealth Places (Application of Laws) Regulation 2014

 

Subsection 4(1) of the Commonwealth Places (Application of Laws) Act 1970 (the COPAL Act) provides that the laws of a State that are in force will apply in relation to each place in that State that is a Commonwealth place.  Under the COPAL Act, a Commonwealth place is a place for which the Parliament of Australia has the exclusive right to make laws by virtue of section 52 of the Constitution.

 

Subsection 4(6) of the COPAL Act permits the Governor-General to make regulations that exclude or modify the provisions of a State law in its application to Commonwealth places located in the State.

 

Section 22 of the COPAL Act provides that the Governor-General may make regulations, not inconsistent with the COPAL Act, prescribing all matters that are required or permitted to be prescribed, or are necessary or convenient to be prescribed for carrying out or giving effect to the COPAL Act.

 

The Commonwealth Places (Application of Laws) Regulation 2014 (the Regulation) set out various matters which give effect to the COPAL Act. 

 

The Regulation prescribes the list of airports that are ‘designated State airports’ for the purposes of the COPAL Act.  A designated State airport is defined in section 3 of the COPAL Act as a Commonwealth place airport that is situated in a State or States and has been prescribed by regulations.

 

Regulation 5 prescribes the following airports as designated State airports: Adelaide Airport, Brisbane Airport, Coolangatta (Gold Coast) Airport, Hobart Airport, Melbourne (Tullamarine) Airport, Perth Airport, and Sydney (Kingsford Smith) Airport.  This replicates Regulation 4 of the repealed Commonwealth Places (Application of Laws) Regulations 1998 (1998 Regulations).

 

The list of airports does not include Canberra Airport, Darwin Airport, Alice Springs Airport or Cairns Airport as they do not fall under the definition of a ‘designated State airport’ under the COPAL Act.  Canberra, Darwin and Alice Springs Airports are Territory airports and Cairns Airport is not a Commonwealth place.

 

The Regulation ensures that changes to the COPAL Act made by the Aviation Crimes and Policing Legislation Amendment Act 2011, which commenced on 30 March 2011, will continue to be supported.  This Act concerned the policing powers of the Australian Federal Police (AFP) in certain airports.  Prior to 2011, the AFP and State police worked together under a Unified Policing Model in airports that are Commonwealth places.  Following the 2009 Federal Audit of Police Capabilities, it was recommended that this model be replaced by an All-In policing and security model at Australia’s eleven major airports, where the AFP is responsible for security and policing. In order for these provisions to be fully effective, an exception was added to the COPAL Act to provide the AFP in those airports with access to certain specified investigatory powers within the Crimes Act 1914 (Cth).  The 1998 Regulations were also amended to specify the airports this exception applied to.  This Regulation ensures these airports continue to be prescribed for this purpose. 

 

In addition, Regulation 6 preserves the disapplication of the Liquor Act 2007 of New South Wales in or in relation to a Commonwealth place that:

·               is subject to a lease that authorises the sale of liquor; and


 

·               is, or was, acquired by the Commonwealth for the construction of a civil airport; and

·               is not subject to an airport lease under the Airports Act 1996 or the Airports (Transitional) Act 1996.

 

This exclusion was included in Regulation 3 of the 1998 Regulations and is still required. 

 

Details of the Regulation are set out at the Attachment.

 

Consultation was undertaken by the Attorney-General’s Department with the AFP, the Department of Prime Minister and Cabinet (Office of Best Practice Regulation) and Department of Infrastructure and Regional Development.

 

The Office of Best Practice Regulation has advised that no regulatory impact statement will be required.

 

The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

The COPAL Act specifies no conditions that need to be met before the power to make the proposed regulation may be exercised.

 

The Regulation commences on the day after it is registered on the Federal Register of Legislative Instruments.

 

Authority:  Section 22 of Commonwealth Places (Application of Laws) Act 1970

 

 

                                                                                                                                        


 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Commonwealth Places (Application of Laws) Regulation 2014

This Legislative Instrument 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 Regulation

The Commonwealth Places (Application of Laws) Regulation 2014 gives effect to the Commonwealth Places (Application of Laws) Act 1970 (the COPAL Act) by:  

1.      ensuring the Australian Federal Police (AFP) has access to certain investigative powers contained in the Crimes Act 1914 (Cth) at specific airports; and

2.      preserving the disapplication of the Liquor Act 2007 (NSW) in certain Commonwealth places.

The COPAL Act has the effect of applying the provisions of the laws of a State as Commonwealth laws in Commonwealth places.  A Commonwealth place is defined in the Act as meaning a place with respect to which the Commonwealth Government has exclusive power to make laws for the peace, order, and good government of the Commonwealth by virtue of s 52 of the Constitution. 

In relation to policing, the COPAL Act renders standard Commonwealth arrest and search powers contained in the Crimes Act 1914 (Cth) (Crimes Act) inapplicable to ‘applied’ State offences committed in Commonwealth places (although there is an exception in respect of Tasmania).  These offences can only be dealt with using the relevant applied State police powers (i.e. State powers of arrest and search) and the AFP has limited access to those powers in Commonwealth places.

Prior to 2011, the AFP and State police worked together as part of a ‘hybrid policing model’ in airports that are Commonwealth places.  In 2011, following the 2009 Federal Audit of Police Capabilities,  this model was replaced with an ‘all-in policing and security model’, under which the AFP took responsibility for the policing and security of Australia’s eleven major airports.  An exception was subsequently added to the COPAL Act (through the Aviation Crimes and Policing Legislation Amendment Act 2011) to enable the otherwise inapplicable Commonwealth police powers in the Crimes Act  to be used by the AFP in relation to the applied State offences at designated airports.  

As a result, subsection 5(3A) of the COPAL Act allows police to access certain standard investigatory powers set out in the Crimes Act 1914 within designated state airports, namely:

·         Part IAA (dealing with search, information gathering, arrest and related powers);

·         Section 9 (which provides for the seizure and condemnation of forfeitable goods);

·         Section 13 (allowing the institution of proceedings in respect of offences);

·         Section 15 (dealing with remand of defendants); and

·         Part ID (dealing with forensic procedures).

The Commonwealth Places (Application of Laws) Regulations 1998 were updated to prescribe the list of airports that fall within the definition of a ‘designated state airport’ for the purposes of subsection 5(3A) of the COPAL Act, namely Adelaide Airport, Brisbane Airport, Coolangatta (Gold Coast) Airport, Hobart Airport, Melbourne (Tullamarine) Airport, Perth Airport, and Sydney (Kingsford Smith) Airport.  The Commonwealth Places (Application of Laws) Regulation 2014 preserves this list of designated state airports.  This is necessary to ensure the AFP continues to have the appropriate range of Commonwealth powers to conduct investigations for applied State offences committed at those Commonwealth place airports, given the AFP is the primary policing agency at those airports.   

In addition, the Commonwealth Places (Application of Laws) Regulation 2014 preserves the disapplication of the Liquor Act 2007 (NSW) to a class of Commonwealth places, including the airport development site at Badgery’s Creek that were previously included in the Commonwealth Places (Application of Laws) Regulations 1998. 

Human rights implications

The measure relating to Commonwealth powers engage the following human rights:

·         the right to protection against arbitrary or unlawful interference with privacy (Article 17 of the International Covenant on Civil and Political Rights (ICCPR))

·         the right to life and prohibition on torture and cruel, inhuman or degrading treatment or punishment  (Article 6 and 7 of the ICCPR), and

·         the right to liberty and security of person and freedom from arbitrary detention (Article 9 of the ICCPR).

The measure relating to the disapplication of the Liquor Act does not engage any of the applicable rights or freedoms.

Right to protection against arbitrary or unlawful interference with privacy

Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with their privacy.  This right may be subject to permissible limitations, where the limitations are authorised by law and are not arbitrary.

The term ‘unlawful’ means no interference can take place except in cases authorised by law.  What is ‘arbitrary’ will be determined by the circumstances of each particular case.  In order for an interference with the right to privacy 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 the particular circumstances.  The United Nations Human Rights Committee has interpreted ‘reasonableness’ in this context to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case.

The Regulation limits the right to privacy under article 17 of the ICCPR by enabling law enforcement officers access to the search and information gathering powers available in Part IAA of the Crimes ActThese powers are to be exercised responsibly and there are a number of safeguards intended to ensure that a police officer conducting any search has regard to a searched person’s right to privacy and maintenance of dignity throughout a search.  In particular, there are rules for conduct of a strip search including that the search must be conducted in a private area (s 3ZI(1)(a)) and conducted by an officer of the same sex (s 3ZI(1)(b)).  There are also additional requirements that must be met if in relation to children (s 3ZI(1)(e) and s 3ZI(F)).  Similarly, the search and seizure powers available under section 9 of the Crimes Act are restricted to circumstances where there are ‘reasonable grounds’ (s 9(1)) to support the use of the powers.

The forensic procedures, including on the retention of data from those procedures, set out in Part ID of the Crimes Act also limit the right to privacy under article 17 of the ICCPR.  Part ID allows for the collection and use of DNA material for law enforcement purposes and establishes a scheme for the matching and inter-jurisdictional exchange of DNA profiles between Commonwealth, State and Territory law enforcement agencies.  Information collected under Part ID is included within the National Criminal Investigation DNA Database (NCIDD) as a ‘DNA profile.’  Importantly, the NCIDD does not contain any personal information that would identify a person to whom a particular DNA profile relates, protecting the personal privacy of the individual.  There is an offence in section 23YO of unauthorised disclosure of any information stored in the NCIDD or any other information revealed by a forensic procedure carried out under Part ID.  Part ID also ensures that any forensic procedure must be carried out in accordance with certain rules and procedures, for example ensuring that the procedure is conducted in circumstances affording reasonable privacy to the suspect (s 23XI). 

Although this Regulation will, to some extent, limit the right to privacy under article 17 of the ICCPR, this is necessary to achieve legitimate law enforcement aims and a number of safeguards apply which will ensure it is a reasonable and proportionate means of achieving these aims. 

Right to life and prohibition on torture and cruel, inhuman or degrading treatment or punishment

Article 6(1) of the ICCPR guarantees every human being the inherent right to life, stating that no one shall be arbitrarily deprived of his or her life.  Article 7 of the ICCPR guarantees that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. 

This Regulation engages this right by allowing police officers to access the arrest powers set out in Part IAA of the Crimes Act, which include provision for the use of force.  However, the use of force when conducting arrests is limited to ‘as necessary and reasonable in the circumstances’ as specified in section 3ZC(1).  Furthermore, in the course of arresting a person for an offence the officer is not able to do anything that is likely to cause death, or grievous bodily harm, unless the officer believes on reasonable grounds that doing that thing is necessary to protect life or to prevent serious injury to another person (s 3ZC(2)). 

There are procedures in place in the event that the use of force is considered reasonable by the officer.  Law enforcement officers who will be accessing these arrest powers are trained and authorised to do so under the Australian Federal Police Act 1979 or equivalent State legislation.  In addition, the Crimes Act contains a number of safeguards to ensure that these powers cannot be used arbitrarily, including the requirement in section 3ZD for persons to be informed of the grounds of arrest.  This will ensure that arrest powers are used effectively and in a manner that does not endanger the officer, those subject to arrest or the public. 

Accordingly, any potential limitation on article 6 or 7 of the ICCPR imposed as a result of the Regulation is reasonable, necessary and proportionate.

Right to security of the person and freedom from arbitrary detention

Article 9(1) of the ICCPR guarantees the right to liberty and security of person and enshrines that no person shall be subjected to arbitrary arrest or detention.  This right requires that persons not be subject to arrest and detention except as provided for by law, and provided that the law itself and the manner of its execution are not arbitrary.

The Regulation limits this right by making available the arrest powers in Part IAA and the remand of defendant set out in section 15 of the Crimes Act.  This limitation of article 9 is necessary to ensure that there is adequate security and policing in airports.  This serves the purpose of ensuring the legislative framework surrounding Australia’s aviation regime is sufficient and appropriate. 

These limitations are proportionate in that they are appropriately circumscribed.  There is a clear threshold that must be met before an arrest can occur, namely ‘the constable believes on reasonable grounds that the person has committed or is committing the offence’ (s 3W(1)(a)).  In addition, when exercising the right to arrest specified in Part IAA of the Crimes Act, an officer must comply with a range of basic safeguards.  For example, the right in article 9(2) to be informed, at the time arrest, of the reasons for arrest and to be promptly informed of any charges is provided for in section 3ZD of the Crimes Act.

Conclusion

The Legislative Instrument is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

Minster for Justice, the Hon Michael Keenan MP

 

 


 

                                                                                                           ATTACHMENT

 

Details of the proposed Commonwealth Places (Application of Laws) Regulation 2014

Section 1 – Name of Regulation

 

This clause provides that the name of the Regulation is the Commonwealth Places (Application of Laws) Regulation 2014.

Section 2 – Commencement

This clause provides that the Regulation is to commence on the day after it is registered on the Federal Register of Legislative Instruments.

Section 3 – Authority

This is a formal clause that outlines that the proposed Regulation is being made under the Commonwealth Places (Application of Laws) Act 1970 (the COPAL Act).  Section 22 of the COPAL Act provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters that are required or permitted to be prescribed, or are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

Section 4 – Definitions

Section 4 defines ‘Act’ as the Commonwealth Places (Application of Laws) Act 1970 for the purposes of the Regulation. 

Section 5 – Designated State airports

This item reinstates Regulation 3 of the repealed Commonwealth Places (Application of Laws) Regulations 1998, updated to reflect recent drafting practice.  It prescribes the designated airports to which section 3 of the COPAL Act applies.  These are Adelaide Airport, Brisbane Airport, Coolangatta Airport, Hobart Airport, Melbourne Airport, Perth Airport and Sydney Airport. 

The airports that are prescribed in this regulation do not include Canberra Airport, Darwin Airport, Alice Springs Airport or Cairns Airport.  This is because Canberra, Darwin and Alice Springs are Territory airports, rather than State airports, and Cairns airport is privately owned and not a Commonwealth place, so it does not fall within the definitions.

Section 6 – Exception of Liquor Licence

This item reinstates Regulation 4 of the repealed Commonwealth Places (Application of Laws) Regulations 1998 to preserve the disapplication of the Liquor Act 2007 (NSW) to certain Commonwealth places.