EXPLANATORY STATEMENT
Issued by authority of the Minister for Home Affairs
Crimes Act 1914
Crimes (Major Airports—Sydney West Airport) Determination 2026
The Crimes (Major Airports—Sydney West Airport) Determination 2026 is made under subsection 3UO(1) of the Crimes Act 1914.
The instrument commences on the day after it is registered on the Federal Register of Legislation. It is a legislative instrument for the purposes of the Legislation Act 2003 (the Legislation Act).
Purpose
Division 3B of Part IAA of the Crimes Act 1914 (Crimes Act) enables Australian Federal Police (AFP) constables and protective service officers (PSOs) at a major airport, and in relevant circumstances, to:
- direct a person to produce evidence of their identity (‘identity check direction’) (section 3UP);
- direct a person, in writing, to leave the airport, and not enter that airport, or any other specified major airport, and/or not take a specified flight, or any flight, to or from the airport, for up to 24 hours (‘move-on direction’) (section 3UQ), and
- direct a person to stop or do anything else reasonably necessary to facilitate an identity check direction or move-on direction (‘ancillary direction’) (section 3US).
The term ‘major airport’ is defined in section 3UM of the Crimes Act. The list of major airports in section 3UM currently includes all capital city airports, as well as Alice Springs, Gold Coast, Launceston and Townsville airports. The list of airports in section 3UM is based on operational advice, taking into account the risk profile of these airports and the prevailing threat environment, and includes all airports at which the AFP has a permanent policing presence.
Subsection 3UO(1) enables the Minister to determine additional airports to be major airports for the purposes of section 3UM, allowing the powers in Division 3B to be exercised at these airports. A determination under subsection 3UO(1) must include a description of land in relation to the airport, for the purposes of paragraph 3UM(2)(b). The relevant powers under sections 3UP, 3UQ and 3US may be exercised by AFP constables and PSOs anywhere within the determined airport’s boundaries, as described in the determination, including car parks, hangars and terminals.
Subsection 3UO(4) provides that Division 3B may apply in relation to an airport determined by the Minister under subsection 3UO(1), even if the airport is also used for a purpose other than a purpose identified in subsection 3UO(3). This ensures that, where an airport is used for the purpose of flights that start or end in a Territory, but is also used for intrastate flights, the airport may still be treated as a major airport, as determined under subsection 3UO(1).
Operational advice indicates there is a need for the Sydney West Airport (the Western Sydney International (Nancy-Bird Walton) Airport) to be determined as a major airport, due to the large numbers of passengers that transit through the airport annually, and its international operations. Determining Sydney West Airport as a major airport enables constables and PSOs to exercise the powers under Division 3B of the Crimes Act at Sydney West Airport, to address a potential vulnerability to criminal activity, and to safeguard the public order and operation of the airport.
The purpose of the Crimes (Major Airports—Sydney West Airport) Determination 2026 (the Instrument) is to determine Sydney West Airport as a major airport for the purposes of Division 3B of the Crimes Act. The effect of this determination is to empower the AFP and PSOs to lawfully exercise move-on and identity checking powers.
These powers will ensure the AFP can maintain staff and passenger safety at Sydney West Airport by directing individuals to vacate the site if they are posing a risk to anyone’s safety or are at risk of engaging in criminal activity.
Consultation
Consultation with the AFP, the Australian Border Force and the Department of Infrastructure, Transport, Regional Development, Communications, Sport and the Arts was undertaken in the preparation of the Instrument. This consultation was appropriate and sufficient to inform the development of the instrument, and for the purposes of determining Sydney West Airport as a major airport under the Crimes Act.
Details of the instrument
Section 1 of the Instrument provides that this instrument is the Crimes (Major Airports—Sydney West Airport) Determination 2026.
Section 2 of the Instrument provides that the whole of the instrument commences on the day after it is registered on the Federal Register of Legislation.
Section 3 provides that the Instrument is made under subsection 3UO(1) of the Crimes Act.
Section 4 is the main operative provision of the Instrument. Subsection 4(1) provides that Sydney West Airport is determined by the Minister as an airport for the purposes of paragraph 3UM(1)(m) of the Crimes Act, meaning that Sydney West Airport is determined to be a major airport.
Subsection 4(2) provides that, for the purposes of paragraph 3UM(2)(b) of the Crimes Act, the land in relation to Sydney West Airport is described by the aerial photographic map in Schedule 1 as the land, including land beneath any body of water, within the boundary of each area indicated by a continuous red line on the map, as far as the edge of the land indicated by the outer edge of the line.
The purpose of the note under subsection 4(2) is to draw the reader’s attention to paragraph 3UM(2)(c) of the Crimes Act, which provides that the land includes any building, structure, installation or equipment situated on the land.
Schedule 1 to the Instrument provides a map of the land in relation to Sydney West Airport to which section 4 of the Instrument refers, and for the purposes of describing the land in relation to the airport under subsection 4(2) of the instrument.
Parliamentary scrutiny
The Instrument is a legislative instrument for the purposes of the Legislation Act 2003. It is disallowable under section 42 of that Act.
A Statement of Compatibility with Human Rights (the Statement) has been completed in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011. The overall assessment is that this instrument is compatible with human rights. A copy of the Statement is provided in the Attachment.
Attachment
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Crimes (Major Airports—Sydney West Airport) Determination 2026
This Disallowable 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 Disallowable Legislative Instrument
Following amendments to Division 3B of Part IAA of the Crimes Act 1914 (Crimes Act) by the Crimes Legislation Amendment (Police Powers at Airports) Act 2019 (Police Powers at Airports Act), which commenced on 28 April 2020, constables and protective service officers (PSOs) have the power to issue specific directions at a major airport, as defined in subsection 3UM(1) of the Crimes Act, in relevant circumstances.
Section 3UO of the Crimes Act empowers the Minister to determine an airport for the purposes of the definition of major airport in section 3UM.
The Crimes (Major Airports – Sydney West Airport) Determination 2026 (the Instrument) determines Sydney West Airport as a major airport, which will allow constables and PSOs to issue the following directions at Sydney West Airport:
- direct a person to produce evidence of their identity (‘identity check direction’),
- direct a person, in writing in accordance with the approved form, to leave the airport, and not enter that airport, or any other specified major airport, and/or not take a specified flight, or any flight, to or from the airport, for up to 24 hours (‘move-on direction’), and
- direct a person to stop or do anything else reasonably necessary to facilitate an identity check direction or move-on direction.
These powers are designed to keep the Australian public safe by ensuring that law enforcement have appropriate powers to address security, safety and criminal threats that may arise in the aviation environment.
Currently, constables and PSOs do not have adequate powers to engage with persons at Sydney West Airport to assess and mitigate a potential risk or threat at the earliest opportunity.
Operational advice indicates there is a need for Sydney West Airport to be determined as a major airport due to its international exposure and the large number of passengers that are expected to transit through the airport annually. Passenger flights are expected to commence at Sydney West Airport in October 2026. Once fully operational, Sydney West Airport is expected to become Australia's fourth busiest airport when running at full capacity. Determining Sydney West Airport as a major airport would enable constables and PSOs to exercise the powers under Division 3B at Sydney West Airport to address criminal activity and safeguard the public order and operation of the airport.
Human rights implications
This Disallowable Legislative Instrument engages the following human rights:
- right to equality and non-discrimination in Articles 2(1) and 26 of the International Covenant on Civil and Political Rights (ICCPR) and Article 2 of the Convention on the Rights of the Child (CRC),
- right to security of the person and freedom from arbitrary detention in Article 9 of the ICCPR and Article 37 of the CRC,
- right to liberty and freedom of movement in Article 12 of the ICCPR and Article 10 of the CRC,
- right to protection against arbitrary or unlawful interference with privacy in Article 17 of the ICCPR and Article 16 of the CRC,
- right to freedom of assembly and freedom of association in Article 21 and 22 of the ICCPR and Article 15 of the CRC.
Right to equality and non-discrimination
Article 2(1) of the ICCPR requires Australia to respect and ensure individuals the rights set out in the ICCPR without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 2 of the CRC provides similar protections in relation to minors. Article 26 of the ICCPR further provides:
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
The measures in this Instrument do not limit a person’s right to equality and non-discrimination in accordance with Articles 2(1) and 26 of the ICCPR and Article 2 of the CRC, as the circumstances in which a constable or PSO may lawfully exercise the proposed identity check, move-on and ancillary directions do not differ on the basis of a person’s age, gender, ethnicity, religious background or any other status.
A constable or PSO issuing these directions will not be permitted to do so in a discriminatory fashion. As prescribed in sections 3UP, 3UQ and 3US of the Crimes Act, to issue a direction a constable or PSO must have reasonable grounds for doing so which are linked to criminal activity or the public order and safe operation of a major airport.
This ‘reasonable grounds’ requirement ensures that the proposed directions are only issued on the basis of objectively substantiated observations on actionable intelligence relevant to the public order and safe operation of a major airport or to criminal conduct. A direction cannot be issued in the absence of such grounds, ensuring that the powers will only be exercised in accordance with a constable or PSOs perception of a security or safety risk or to preclude the commission of a crime. This requirement prevents a constable or PSO from issuing a direction solely on the basis of a person’s age, ethnicity or religious background.
Commonwealth officers exercising these powers are also bound by Commonwealth anti-discrimination legislation including the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992 and the Age Discrimination Act 2004. State and territory officers are also bound by similar legislation within their own jurisdictions. Broadly, anti-discrimination legislation prohibits officers from engaging in behaviour that constitutes discrimination and provides that all persons are to be equal before the law. These obligations ensure that a person’s right to equality before the law and to non-discrimination are not limited in a manner that is directly or indirectly discriminatory.
Police officers are also bound by professional standards that preclude them from using their powers in a discriminatory fashion. The AFP Code of Conduct, for example, requires all AFP appointees to act without discrimination or harassment in the course of AFP duties. Officers that exercise the powers proposed in this Instrument to target minority communities will be acting unlawfully and will be subject to the AFP’s professional standards regime, which may result in disciplinary action, including termination.
The exercise of these powers is subject to ongoing internal oversight and external accountability mechanisms to ensure they are applied consistently with human rights.
Constables and PSOs also receive specialist training to identify potential threats in a non-discriminatory manner. Members of the AFP, for example, are appropriately trained in Behavioural Assessment and Security Questioning to identify known behavioural traits displayed by people who are about to commit a criminal act, and to ask targeted questions of persons of interest, without prejudice or discrimination.
Accordingly, the measures in this Instrument do not limit a person’s right to equality and non-discrimination under the ICCPR or the CRC.
Right to security of the person and freedom from arbitrary detention
Article 9 of the ICCPR provides that everyone has the right to liberty and security of person and prohibits arbitrary arrest or detention. Article 37(b) of the CRC provides that no child shall be deprived of his or her liberty unlawfully or arbitrarily.
The ancillary direction powers set out in section 3US engage a person’s right to security and freedom from arbitrary detention under Article 9(1) of the ICCPR and Article 37 of the CRC, as a constable or PSO may stop a person under an ancillary direction, to facilitate an identity-check direction or a move-on direction.
An ancillary direction will only be issued by constables or PSOs where the officer considers on reasonable grounds that the exercise of these powers are necessary to facilitate an identity check direction or a move-on direction (see paragraphs 3US(1)(b) and (2)(b)). This ensures that a constable or PSO must choose the least intrusive means to ensure that these directions are facilitated as a more intrusive option is unlikely to be found to be necessary on reasonable grounds.
Identity‑check directions only compel a person to produce documentation or their name, address and date of birth (subsection 3UP(2) of the Crimes Act), which would typically occur within seconds. Move‑on directions require a person to not take a specified flight, or leave and not re‑enter a major airport, for a specified period (subsection 3UQ(3) of the Crimes Act). In a move-on direction, persons are stopped only for the length of time it takes to issue the direction. These directions do not enable detention or arrest
These directions are focused on moving a person on from a particular area, and do not enable ongoing detention of a person, which would be disproportionate, unnecessary and often counterproductive. In addition, detention of a person would not be permitted under the ancillary powers as it would not be reasonably necessary to ensure compliance with these directions. If an individual fails to comply with an identity‑check, move‑on order or any ancillary direction (for example, by refusing to produce identity documents or declining to leave the airport when directed), law enforcement may seek to rely on other powers available under the Crimes Act and related legislation. This may include search, seizure, arrest or detention under existing powers in the Crimes Act or Australian Federal Police Act 1979, which are not altered by this Schedule.
The exercise of these powers is subject to ongoing internal oversight and external accountability mechanisms to ensure they are applied consistently with human rights.
Identity‑check and move‑on direction powers do not limit a person’s right to security and freedom from arbitrary detention under Article 9 of the ICCPR.
Right to liberty of movement
Article 12(1) of the ICCPR provides that ‘everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence’. Article 12(2) of the ICCPR states that ‘everyone shall be free to leave any country, including his own’.
Pursuant to Article 12(3), these rights can be restricted by laws consistent with other rights in the ICCPR where it is necessary to protect national security, public order, safety and the rights and freedoms of others.
Article 10(2) of the CRC relevantly provides that ‘State parties shall respect the right of the child and his or her parent to leave any country including their own, and to enter their own country. The right to leave any country shall be subject only to such restrictions as are prescribed by law and which are necessary to protect the national security, public order, public health or morals or the rights and freedoms of others and are consistent with other rights recognized in the present Convention’.
Limitations on the right to liberty of movement are permitted to the extent that they are ‘in accordance with such procedures as are established by law’, provided that the law and the enforcement of it is not arbitrary, and where they are reasonable, necessary and proportionate to achieve a legitimate objective.
The right to freedom of movement is engaged by move-on directions, and any ancillary directions to facilitate a move-on direction, as these can restrict the movement of a person in and out of Sydney West Airport.
These limitations are necessary to achieve the legitimate objective of protecting national security, public order and the rights and freedoms of others. Move‑on directions support this objective at Sydney West Airport by enabling constables and PSOs to engage with individuals exhibiting suspicious or violent behaviour at the earliest opportunity, facilitate intelligence inquiries to identify persons of interest, and remove threats from the airport or a particular flight.
Move-on directions
Pursuant to section 3UQ of the Crimes Act, move-on directions can only be issued at Sydney West Airport where a constable or PSO:
- considers on reasonable grounds that a person has contravened an ancillary direction or an identity check direction and the constable or PSO is not reasonably satisfied of the person’s identity, or
- suspects on reasonable grounds that it is necessary to give the direction to disrupt or prevent relevant criminal activity occurring at Sydney West Airport or in relation to a flight to or from Sydney West Airport, or
- considers on reasonable grounds that it is necessary to give the direction to safeguard the public order and safe operation of Sydney West Airport or flights to and from Sydney West Airport, or the safety of any persons at that airport or on flights to and from Sydney West Airport.
The right to freedom of movement is engaged by the move-on directions, which are capable of limiting the movement of a person in and out of major airports (including via flight). However, it is permissible to limit this right, as such limitations are prescribed by law, in the sense that they will be authorised by validly enacted provisions of the Crimes Act, and are rationally connected to achieving the legitimate objective of protecting national security, public order and the rights and freedoms of others.
Move-on directions enable constables and PSOs to take the least rights restrictive approach, as the powers have been formulated to ensure that a constable or PSO must tailor their direction so that it is most appropriate in the circumstances and proportionate to the threat situation identified. Allowing a move-on direction to extend to specified airports or flights ensures that, should a threat only arise in relation to a particular flight or airport, the scope of the direction can be confined to the particular area where the threat may arise. Permitting a constable or PSO to issue the direction for up to 24 hours ( noting that where the period is for more than 12 hours, it must be given, or authorised by, a senior police officer) also allows the direction to be catered to only the necessary time period in which the threat may arise and ensures that the issuing of a direction is the least rights restrictive means of achieving the objective of protecting national security, public order, and the rights and freedoms of others.
Move-on directions that are reasonably necessary to disrupt or prevent relevant criminal activity in the context of Sydney West Airport operations are also necessary to protect national security, public order and the rights and freedoms of others who may be subject to this criminal behaviour.
The fact that a constable or PSO must suspect or consider on reasonable grounds that these directions are necessary to achieve a permissible purpose also ensures that these directions will be used proportionally.
For example, if a constable or PSO is aware that there is a considerable risk that person 1, who is currently at Sydney West Airport, will engage in abusive or violent conduct towards person 2, who is arriving on an incoming flight, it may be reasonably necessary for the officer to issue a move-on direction to person 1 to ensure that they are not present at the airport around person 2’s time of arrival.
A constable or PSO may also issue a move-on direction where they are not satisfied of a person’s identity and have reasonable grounds to consider that this person has contravened an identity check or ancillary direction. Allowing move-on directions to be issued in these instances is necessary to ensure that the central purpose of these orders, namely to facilitate early detection of dangerous or illegal activity, cannot be frustrated by a person simply refusing to abide by a direction.
Ancillary directions
Ancillary directions can be issued where a constable or PSO considers on reasonable grounds that it is necessary to give this direction to facilitate an identity check or move-on direction. While this order may impede a person’s freedom of movement, it remains necessary and proportionate as a constable or PSO must have reasonable grounds that the direction is necessary before it can be issued.
This phrase ‘reasonable grounds’ gives rise to the fact that, in issuing ancillary directions, a constable or PSO must choose the least intrusive means to ensure that an identity check or move-on direction can be facilitated, as a more intrusive option is unlikely to be found to be necessary on reasonable grounds.
The intention of an ancillary direction is purely to enable an officer to direct a person to undertake reasonable and necessary steps to facilitate the exercise of an identity check or move-on direction – for example, an officer could direct a person to step to the side of a public walkway while conducting an identity check to ensure they are not disrupting others’ use of the airport.
The measures in the Instrument are also directed to the legitimate objective of upholding public order, safety and the rights of others at Sydney West Airport who may be affected by the conduct of a person subject to a direction. The high volume of passenger and cargo activity at Sydney West Airport is expected to contribute to the risk of transnational, serious and organised crime groups using the airport to facilitate illicit activities. The use of move‑on directions will allow constables and PSOs to ensure passenger and staff safety at the airport, uphold public order and effectively disrupt criminal activity intending to harm the community.
The exercise of these powers is subject to ongoing internal oversight and external accountability mechanisms to ensure they are applied consistently with human rights.
Identity check and move-on directions can only be issued where a link to criminal conduct or aviation security can be established. Ancillary orders that facilitate identity check and move-on directions are therefore aligned with the underlying purposes of these orders and the ICCPR more generally, being necessary to protect national security, the public order and the rights and freedoms of others.
The measures in the Instrument are compatible with the right to freedom of movement under Article 12 of the ICCPR and Article 10(2) of the CRC as, to the extent that the Instrument limits these rights, it does so in a manner which is reasonable, necessary and proportionate to achieving the legitimate objectives of protecting national security, public order and the rights and freedoms of others.
Right to protection against arbitrary or unlawful interference with privacy
Article 17(1) of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with their privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation. Article 16 of the CRC provides no child shall be subject to arbitrary or unlawful interference with their privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.
The term ‘arbitrary’ means that any interference with privacy must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in the particular circumstances. The United Nations Human Rights Committee has interpreted ‘reasonableness’ to imply that any limitation must be proportionate and necessary in the circumstances.
A limitation on the right to privacy will be permissible under international human rights law where it addresses a legitimate objective, is rationally connected to that objective and is a reasonable and proportionate means of achieving that objective.
Identity‑check directions and ancillary directions to facilitate identity‑checks interact with the prohibition on arbitrary or unlawful interference with privacy as they require a person to produce evidence of their identity. A person will be required to produce evidence of their identity if a constable or a PSO suspects, on reasonable grounds, that the person has committed, or intends to commit, an offence against a law of the Commonwealth or territory, or a state law with a federal aspect, punishable by imprisonment for 12 months or more. The constable or PSO may also issue a direction if they consider, on reasonable grounds, it is necessary to safeguard the public order and safe operation of the airport or another major airport.
Identity-check direction can only be issued where a reasonable link can be established between the giving of the direction and safeguarding the public order and safe operation of a major airport, or the commission of an offence. A constable or PSO is also required to inform a person that it may be an offence not to comply with an identity check direction or to provide false or misleading information, and will be required to identify themselves, if requested by the person subject to the direction, or if the officer is not in uniform. This provision ensures that a person understands the nature of an identity check direction, reinforcing the proportionate and reasonable nature of these checks.
The purpose of identity‑check directions is to enhance safety and security in airports in a context where aviation remains a high‑profile, high‑impact target for terrorists and transnational serious organised crime groups. These directions are issued for the legitimate purpose of preserving national security, public order and the rights and freedoms of others. They ensure constables and PSOs can confirm a person’s identity for the purposes of assessing security risks and maintaining public order. They are also established in accordance with procedures prescribed by law insofar as they are authorised by validly enacted provisions of the Crimes Act.
Identity‑check directions have a narrow impact on a person’s privacy, requiring a person to produce a government-issued photographic identity document or, failing this, up to 2 other identity documents or, failing this, to provide their name, address and date of birth (subsection 3UP(2) of the Crimes Act). The ability to satisfy an identity check in a range of ways protects people who may not be carrying government-issued photographic identification or other identity documents. It also ensures that subsection 3UU(1) of the Crimes Act is not interpreted as creating a de‑facto requirement to carry identification at airports.
Moreover, the handling of any information provided through an identity‑check and corresponding ancillary direction will be handled in accordance with applicable legislation. For example, the AFP will handle information in accordance with its obligations under the Privacy Act 1988.
To the extent the power to issue identity check directions engages the prohibition on arbitrary or unlawful interference with privacy, any interference is reasonable, necessary and proportionate to achieving the legitimate objectives of preserving national security, public order and the rights and freedoms of others.
Right to Freedom of Assembly and Freedom of Association
Article 21 of the ICCPR provides that the right for persons to engage in peaceful assembly, including peaceful protest, shall be recognised. Article 22 of the ICCPR provides that each person has the right to freedom of association, including the right to form and join trade unions for the protection of that person’s interests. Article 15 of the CRC provides that children have the right to freedom of association and peaceful assembly.
The rights to freedom of assembly and freedom of association may be limited for the purposes of national security or public safety, public order, and the protections of the rights and freedoms of others.
The measures in this Instrument limit the freedom of assembly and freedom of association to the extent that the measures allow for constables and PSOs to issue move-on directions to groups of people and disperse them. These measures are reasonable and proportionate, as subsection 3UN(2) of the Crimes Act provides that a person’s right to lawfully engage in advocacy, protest, dissent or industrial action will not, by itself, be regarded as prejudicial to the public order and safe operation of a major airport.
Conclusion
The Disallowable Legislative Instrument is compatible with human rights. To the extent that these measures may limit human rights, those limitations are reasonable, necessary and proportionate to achieving the legitimate objectives of preserving national security, public order and freedoms of others.
The Hon Tony Burke MP
Minister for Home Affairs