Title Crimes (Aviation) Bill 1991
Database Bills Digests
Date 14-08-1991
Source Bills Digest Service
Parl No. 36
Citation Id CPJ00
Item Online Text: 831930
Key item Yes
Major subject Crimes against persons
Aircraft
Violent crime
Crimes against property
Minor subject Bills
Airports
Safety
Pages (4p)
System Id legislation/billsdgs/CPJ00


Crimes (Aviation) Bill 1991

House: House of Representatives Portfolio: Attorney- General Purpose To consolidate the provisions of the Civil Aviation (Offenders on International Aircraft) Act 1970 ; the Crimes (Aircraft) Act 1963; the Crimes (Hijacking of Aircraft) Act 1972 ; and the Crimes (Protection of Aircraft) Act 1973.

Background Australia is a signatory to a number of multilateral treaties covering specific types of violent acts directed against international civil aircraft, their passengers and crew and civil airports and airport installations. These treaties include: the Convention on Offences and certain other Acts Committed on Board Aircraft (the Tokyo Convention of 1963); the Convention for the Suppression of Unlawful Seizure of Aircraft (the Hague Convention of 1970); and the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (the Montreal Convention of 1971). The aim of these is to co- ordinate international judicial measures to ensure that offenders are brought to justice somewhere. The Crimes (Aircraft) Act 1963, Civil Aviation (Offenders on International Aircraft) Act 1970, Crimes (Hijacking of Aircraft) Act 1972 and Crimes (Protection of Aircraft) Act 1973 gives effect at Australian law to Australia's obligations under the above conventions.

Outline of Main Provisions of the Tokyo, Hague and Montreal Conventions Article 1 of the Tokyo Convention of 1963 limits the Convention's application to offences against penal law and acts which, whether or not they constitute offences, may or do jeopardise the safety of the aircraft or of persons or property therein, or which jeopardise good order and discipline on board (Article 1.1). Article 1.2 requires that the jeopardising offences or acts be done by a person on board an aircraft registered in a country which is a party to the Convention, while that aircraft is in flight, on the surface of the high seas, or of any other area outside the territory of any State (Article 1.2). Articles 5- 10 give an aircraft commander certain powers of control within their aircraft, including the power to restrain a person where they have reasonable grounds for believing that a person has committed, or is about to commit, an offence or act contemplated by Article 1. Article 11 deals with hijacking and provides that "When a person on board has unlawfully committed by force or threat thereof an act of interference, seizure or other wrongful exercise of control of an aircraft in flight, or when such an act is about to be committed, Contracting States (parties to the Convention) shall take all appropriate measures to restore control of the aircraft to its lawful commander or to preserve his control of the aircraft". Article 12 requires parties to the Convention to allow an aircraft commander to disembark any person considered by the commander to be responsible for an unlawful act under Article 11. (Note: The Tokyo Convention, unlike the Hague Convention or the Montreal Convention, imposes no obligation on a party to the Convention, where an aircraft on which an offence has been committed lands in its territory, either to prosecute the offender or to hand the offender over to a party to the Convention prepared to prosecute them.) The text of the Convention is set out in Schedule 4 of this Bill.

Article 1 of the Hague Convention of 1970 makes it an offence for a person on board an aircraft in flight, or their accomplice, to seize unlawfully or exercise control of that aircraft, or attempt to do any such act. Article 2 requires parties to the Convention to incorporate the above offence into their national law. Parties to the Convention are required to establish jurisdiction over the above offence in certain cases, principally, where the aircraft lands in its territory with the offender still on board; and where the offender subsequently arrives in its territory and is not extradited (Article 4). Article 7 requires the State in whose territory an offender is found, if it does not extradite them, to prosecute the person. Article 12.1 provides for negotiation, and then, failing that, arbitration, in the event of a dispute between two or more parties to the Convention: and, after that, for reference of the dispute, on the motion of any one of the parties, to the International Court of Justice. However, Article 12.2 allows any party to the Convention, at the time of signature, ratification or accession, to declare itself not bound by Article 12.1. The text of the Convention is set out in Schedule 1 of this Bill.

Article 1 of the Montreal Convention of 1971 makes it an offence for a person to: perform an act of violence against a person on board an aircraft in flight if it is likely to endanger the aircraft; or destroy an aircraft in service or cause damage to an aircraft which makes it unable to fly or endangers its safety in flight; or place or cause to be placed on an aircraft in service a device which is likely to destroy the aircraft, cause damage to it which makes it incapable of flight, or which is likely to endanger its safety in flight; or destroys or damages air navigation facilities; or give information which they know to be false and endangers the safety of the aircraft in flight. Parties to the Convention are required to establish jurisdiction over the above offences in certain cases, including where the offence is committed in their territory; against or on board an aircraft registered in their State; and when the aircraft on which the offence is committed lands in their territory with the alleged offender still on board. Article 7 requires each State in which an offender is found, if it does not extradite the person, to prosecute them. The text of the Convention is set out in Schedule 2 of this Bill.

The Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation supplements the Montreal Convention of 1971. The Protocol deals chiefly with sabotage and other acts of violence jeopardising the safety of civil aviation. Article II of the Protocol makes it an offence for a person intentionally to use any device, substance or weapon to: perform an act of violence against a person at an international airport which causes or is likely to cause serious injury or death; or destroy or seriously damage the facilities or aircraft not in service at the airport or disrupts the services of the airport. The Protocol was given effect at Australian law by the Crimes Legislation Amendment Act 1990. The text of the Protocol is set out in Schedule 3 of this Bill.

Outline of Main Provisions of the Crimes (Aircraft) Act 1963 The Crimes (Aircraft) Act 1963 deals with offences committed on board certain aircraft within and outside Australia, and at certain aerodromes and air navigation facilities. While principally designed to deal with offences committed in Australia and Australian aircraft, the Act also applies to flights to and from Australia. Section 13 makes it an offence, punishable by life imprisonment, for a person to destroy an aircraft with the intention to cause the death of a person or with reckless indifference to the safety of the life of a person. Section 17 of the Act make it an offence for a person on board an aircraft to do any act or thing that, to their knowledge, is likely to endanger the safety of the aircraft. The maximum penalty that may be imposed for a breach of this provision is imprisonment for seven years. Similarly, it is an offence for a person: to carry or place dangerous goods on board an aircraft; deliver dangerous goods to a person for the purpose of their being placed on board an aircraft; or have dangerous goods in their possession on board an aircraft. The maximum penalty that may be imposed for a breach of this provision is imprisonment for seven years, in the case of an individual, or $100 000 if the offender is a corporation. Section 20B makes it an offence for a person to do any act or thing that, to their knowledge, is likely to endanger the safety of a Commonwealth aerodrome or Commonwealth air navigation facility. The maximum penalty that may be imposed for a breach of this offence is imprisonment for seven years.

Main Provisions The provisions of the Bill reflect the current legislation and contain no major changes from the current situation.

A person will be taken to have threatened to have do an act if they make a statement or do any other thing from which it could reasonably be inferred that they intend to do the act threatened (clause 4).

The Bill will apply to the external Territories and to acts and other events occurring outside Australia (clauses 11 and 12).

Part 2 of the Bill (clauses 13 to 28) deals with offences. It will be an offence to hijack an aircraft covered by the Hague Convention, aircraft engaged in prescribed flights, Commonwealth aircraft or a visiting government aircraft. Hijacking is defined in clause 9 to be where, while on board an aircraft, a person exercises control over an aircraft by means of force, the threat of force or other form of intimidation. It also includes attempting to gain control and accompanying such an act. The maximum penalty for hijacking will be life imprisonment (clause 13).

It will also be an offence to commit an act of violence against the passengers or crew of a Division 2 aircraft (basically an aircraft engaged in a prescribed flight, on a flight to or from Australia and Australian and Commonwealth aircraft involved in a flight outside Australia) where the action would be an offence against the law of the Jervis Bay Territory and the flight is covered by the Hague Convention, is a prescribed flight, is by a Commonwealth aircraft or a visiting government aircraft, or the act is committed by an Australian citizen outside Australia. The penalty will be that applicable for the Jervis Bay offence. It will also be an offence to perform any act that would be an offence against the law of the Jervis Bay Territory or the N.S.W. Crimes Act if the act had been committed in a public place (clause 15).

It will be an offence to take control of a Division 3 aircraft (basically an Australian aircraft or a foreign aircraft that is in Australia or on a journey to or from Australia), with a maximum penalty of seven years imprisonment. The maximum penalty will be 14 years where there are others on board, and 20 years there are others on board and force is used or threatened or false pretences used (clause 16).

Clause 17 will make it an offence wilfully to destroy a Division 3 aircraft without lawful excuse, with a maximum penalty of 14 years imprisonment. The maximum penalty will be life imprisonment where there is an intent to kill, or the offender was reckless as to killing (clause 18).

Prejudicing the safe operation of a Division 3 aircraft will be an offence with a maximum penalty of 14 year's imprisonment (clause 19), while the maximum penalty will be life imprisonment if there was an intent to kill or the person was reckless as to whether they killed someone (clause 20).

A person is not to assault, threaten or intimidate a crew member where that would interfere with the performance of their duties and the maximum penalty for such an offence will be 14 years imprisonment (clause 21), nor endanger the safe landing of a Division 3 aircraft (penalty: seven years imprisonment) (clause 22).

The maximum penalty for carrying or placing dangerous goods on an aircraft will be seven year's imprisonment for an individual and a $100 000 fine for corporations. It will not be an offence where the person has the consent of the owner or operator, where permission has been granted or it is a Commonwealth aircraft and the person is performing their duty (clause 23).

It will be an offence to threaten to endanger the safety of a Division 3 aircraft or to make a statement from which it could reasonably be inferred that the person intends to take control of, or damage, such an aircraft. The maximum penalty will be 2 years imprisonment (clause 24).

Proposed Division 4 deals with interfering with the safety of civil aviation and acts of violence committed at airports. Clause 25 deals with the endangering of aircraft while they are in flight. It will be an offence, where the Montreal Convention requires prosecution, to do an unlawful act in relation to a prescribed flight, a Commonwealth aircraft or a visiting government aircraft, or where the act is committed by an Australian citizen outside Australia. Unlawful act is defined in sub- clause 10(1) to be an act which is violent and likely to endanger the safety of the aircraft, destroy the aircraft or an attempt to do either of these things. The maximum penalty for such an offence will be 14 year's imprisonment. It will also be an offence, with a maximum penalty of seven year's imprisonment, to place substances on an aircraft that may destroy or endanger the aircraft or destroy or damage navigational or communications facilities, or to attempt to do either of these acts. It will also be an offence to perform an act of violence at prescribed airports where the act breaches the Montreal Convention (clause 26).

Another offence will be to perform an act likely to endanger a Commonwealth aerodrome or anyone within such a facility, with a maximum penalty of seven years imprisonment (clause 27). Threats or false statements related to the above will be punishable by a maximum penalty of two years imprisonment (clause 28).

Part 3 of the Bill will give effect to the Tokyo Convention. Basically, clause 29 will give effect to provisions of the convention relating to the powers of aircraft commanders and offences for the purposes of extradition. Other provisions of Part 3 provide for the receipt of people delivered under the Convention and modifications to the application of the Migration Act 1958 to provide for the receipt of such people.

Clause 32 provides for the use of force to restore control of an aircraft to the lawful commander in accordance with the Tokyo and Hague Conventions. Clause 34 provides for the commander of prescribed aircraft to arrest offenders without warrant, while clause 35 allows commanders to restrain people from committing offences.

Clause 52 will repeal the current Acts dealing with this area and named in the `Purpose' section of this Digest.

Clause 53 contains transitional and savings provisions and will ensure that officers authorised under the repealed Acts will remain authorised officers under this Bill and that proceedings under the repealed Acts that are under way will continue as if those Acts had not been repealed.

Bibliography - McWhinney E, Aerial Piracy and International Terrorism - The Illegal Diversion of Aircraft and International Law, 1987, pp. 31- 62. - Matte N, Treatise on Air - Aeronautical Law, 1981, pp. 325- 373.

Bills Digest Service 20 August 1991 Parliamentary Research Service For further information, if required, contact the Economics and Commerce Group on 06 2772460.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Commonwealth of Australia 1991

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Published by the Department of the Parliamentary Library, 1991.