Exclusive: Ex-ABF chief questions Dutton’s ID powers
Three years ago, spontaneous protests broke out in Melbourne over a planned Australian Border Force operation that would involve stopping foreign citizens in the streets and demanding to see their visas. Public anger prompted the operation’s swift cancellation.
This week, the federal government announced the Australian Federal Police would soon be given the power to stop any person – Australian or foreign – in an Australian airport and demand a name and to see photo identification, without needing to have a reason.
There were no public protests.
But inside the security community, there is some unease about the expansion of police powers that until now have carried the strict legal requirement that officers have a reasonable belief, or at least a suspicion, of a past or pending criminal act before they can question a person and demand ID.
Former Border Force commissioner Roman Quaedvlieg has told The Saturday Paper he is among those who believe granting unfettered powers goes too far.
Quaedvlieg says there are already a number of Acts covering, for example, traffic and drug offences, that give police powers to compel identification.
“There are no Acts that I’m aware of where police with no suspicion and no belief could walk up and say, ‘Give me your papers, I want to know who you are,’ ” Quaedvlieg says.
“There is no public interest policy purpose for that indiscriminate type of targeting … There has to be a trigger, otherwise what’s the purpose of the engagement by police? Developing a suspicion is not a high bar to clear.”
Quaedvlieg says police are likely to have sought the powers because they have been unable to question potentially suspicious people in airports when migration or customs laws didn’t cover the particular circumstances.
“As a former cop, I think it’s a powerful tool to start a conversation, a powerful engagement tool which enables the assessment of that person’s reaction, the ability to check their antecedents and to determine their bona fides and possible intent,” he says.
“My issue, though, in the way it has been presented this week, is that I think it’s largely an illogical argument to say that you need them in an airport precinct to thwart terrorist attacks but you don’t need it anywhere else.”
He says a “properly thought-through and prepared submission” that incorporated checks and balances could argue the point compellingly.
“That would certainly help get the powers legislated by pre-empting questions asked in parliamentary committees in the Senate, and most importantly by the public, which needs reassurance that the power is necessary but … has the appropriate accountability mechanisms in place.”
The former commissioner and former Queensland police officer, who was stood aside last year and later sacked over a personal relationship with a departmental officer, notes there is very little public information as to how the powers would work.
On the risk of fuelling racial, religious or ethnic profiling, Quaedvlieg suggests having the extra requirement protects everyone.
“Australian police are sophisticated and pluralist organisations where racial profiling is consciously prohibited, and I can’t see them jeopardising these powers by abusing them, especially systemically,” he says. “However … if you attach a suspicion trigger to the use of the powers, then this mitigates against even inadvertent profiling of any description, because the trigger for their use is behavioural and intelligence-based.”
In unveiling some details of a planned $294 million airport security upgrade funded in last week’s budget, Prime Minister Malcolm Turnbull cited this week’s attacks in Indonesia as proof there was “no place for set-and-forget in defending Australia and keeping Australians safe”.
Home Affairs Minister Peter Dutton pointed to the foiled would-be bombing attack on an A380 Etihad aircraft at Sydney Airport last year as another reason to upgrade.
Dutton said the conditions police had to meet currently to demand ID were “an absurdity”.
“It’s an issue that the police have raised with us,” he said. “So we’re addressing an anomaly and a deficiency in the law at the moment.”
Turnbull explained the change to 3AW’s Neil Mitchell: “Police would be able to come up to you and say, ‘Hello ... who are you sir? Can I see your ID?’”
Mitchell asked: “On what grounds?”
Turnbull replied: “They’ll be able to do that.”
The PM agreed it was a big step and when Mitchell asked why it was needed, he said: “Dangerous times, Neil.”
The prime minister confirmed people are not required by law to carry ID in Australia.
“It’s hard to think of anyone who wouldn’t have some ID and wouldn’t be able to say a bit about themselves,” he said.
It is not clear what would happen if a person approached in an airport couldn’t provide ID or on what grounds police might determine the answers unsatisfactory and take further action.
The prime minister said police were trained to observe behaviour and watch for anyone “looking anxious or creating a suspicious environment”.
“You’ve got to keep people safe,” he said.
Greens senator Nick McKim labelled it the “slow march of authoritarianism”.
“People should be free to live without arbitrary harassment and being forced to carry ID wherever they go,” McKim said. “Demanding people produce documents on the spot is a hallmark of police states.”
The proposed new police powers were revealed alongside plans to expand the use of full-body scanners in Australian airports.
Turnbull said the Home Affairs department aimed to have 94 per cent of passengers pass through the scanners.
“Privacy is protected,” Turnbull said. “Nothing is stored. But it is the best way of scanning people.”
In 2010, the then Labor government unveiled a similar-sized upgrade to security, identifying a Nigerian national’s attempt to smuggle a homemade bomb onto a Northwest Airlines flight in the United States the previous Christmas Day as the reason.
The 2010 measures – also unveiled ahead of a federal election – included more police and customs officers, an increased use of closed-circuit TV, airport staff screening, explosives detection checks and improved technology for examining passengers, baggage and cargo.
They included the introduction of full-body scanners into Australian airports for the first time, after two years of trials.
Published last month, a new Productivity Commission trade and assistance review describes the “clear benefits” in airport security measures that reduce the terrorism risk. It says a successful attack would have “major personal and social ramifications”, impacting tourism and the wider economy.
“The likelihood of being killed or injured in a terrorist act is very low compared to most other causes of death, such as automotive accidents, but media attention and the emotional resonance of terrorism mean that perceived risks are higher,” it says. “Even if perceptions of risk are biased, policy still needs to consider these because such perceptions drive people’s behaviour.”
The report also emphasises the need to assess security measures for effectiveness and value for money.
In an address to the Royal Society of Tasmania last year, independent economist Saul Eslake questioned their effectiveness.
“All too often in my view, the mere mention of the word ‘security’ is widely seen … as an indication that the rest of us should suspend all of our critical faculties, and accept without demur whatever is deemed to be necessary in the interests of ‘security’,” Eslake said.
“We don’t do this in other areas of policy-making, and I don’t see why we should do it in this context.”
Eslake cited statistics showing there had been 43 terrorist attacks in Australia since 2000, involving five deaths. He noted security agencies say they have foiled 15 more in the past three years. He said it was more likely a person would be killed in a road accident.
Eslake did not oppose taking steps to prevent attacks but believed there should be a clear-headed assessment of the real risks.
A 2011 analysis by Australian academic Mark Stewart, of Newcastle University, and American John Mueller, of Ohio State University, found the only measure that had demonstrably and cost-effectively reduced the terrorism risk to aviation security in the US was hardening aircraft cockpit doors against hijackers.
They found the cost of full-body scanners and putting armed air marshals on planes had far outweighed their effectiveness.
This week, Eslake condemned the planned new measures. “Malcolm Turnbull said when he became prime minister he was going to lead a thoroughly liberal government. Now he’s going to give the police the kind of stop-and-demand-ID powers that the secret police in the KGB in the Soviet Union used to have, or the Gestapo. It makes me want to puke.”
He accused the Labor Opposition of being “supine” in the face of further encroachment on civil liberties.
Shadow attorney-general Mark Dreyfus told The Saturday Paper that this week’s announcement was the first the Opposition had heard about identification checks at airports and it wanted to see the legislation before determining a final position.
“However, Labor always puts the safety of Australians first and of course if this is a change that our security agencies and police say is necessary, then it is something we will seriously consider,” Dreyfus said.
A 2016 Australian National Audit Office report also queried screening measures. It found the department of transport was “unable to provide assurance that passenger screening is effective, or to what extent screening authorities comply with the regulations, due to poor data and inadequate records”.
The Productivity Commission recommends a full aviation security review, something that has not been instigated.
Roman Quaedvlieg says along with appropriate accountability, extra powers must be properly explained.
“It seemed as if the politicians were ill prepared to talk about and justify this suite of powers,” he told The Saturday Paper. “I think they thought the invocation of ‘national security’ and the announcement of the body scanners would carry the argument, but they failed to appreciate the impact of announcing a new generic police power without having the detail. It’s unfortunate that the powers have had a challenged conception – because the need for them in certain circumstances is irrefutable in my view – but they’ll be harder to get through the consultative and parliamentary processes now that they’ve been poorly presented in the public domain.”
Quaedvlieg says the aborted 2015 Melbourne visa operation, titled Operation Fortitude, “in no manner was intended as an extra-legal use of powers” but that the “messaging around it was clumsy”.
The same could be said of this week’s announcement.
This article was first published in the print edition of The Saturday Paper on May 19, 2018 as "Exclusive: Ex-ABF chief questions Dutton’s ID powers". Subscribe here.