Commonwealth of Australia Explanatory Memoranda

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AVIATION CRIMES AND POLICING LEGISLATION AMENDMENT BILL 2010 [2011]

                                    2010







               THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA







                                   SENATE









                  AVIATION CRIMES AND POLICING LEGISLATION
                             AMENDMENT BILL 2010








                   ADDENDUM TO THE EXPLANATORY MEMORANDUM









            (Circulated by authority of the Hon Brendan O'Connor,
                   Minister for Home Affairs and Justice)


Insert the following text after paragraph 18 at Item 7:

The intimidation aspect of this offence is directed to capture behaviour
that is intended to cause fear or distress and which has that effect on a
crew member.  For example, an incident where a person becomes very
aggressive, angry, is gesticulating and out of their seat or otherwise
using their physical presence with the intention and in a way that creates
fear or apprehension in a crew member could be captured by this offence.
This kind of behaviour can be highly disruptive and can have serious
consequences, such as causing flights to be cancelled or delayed.

That type of behaviour can be distinguished from actions where a person is
expressing their frustration or concern, even in an agitated way, where the
person has no intention of intimidating a crew member.  For example, it is
not intended that a person voicing a complaint about their seating or some
other aspect of the flight would fall within this offence, even if that
person voices their complaint in a loud or rude manner.

The maximum penalty of 10 years imprisonment for the offence is directed at
deterring and punishing a worst case offence including the case of a repeat
offence.  The court retains the discretion to impose a penalty appropriate
in the circumstances of a particular case.

Whether an incident is investigated by the Australian Federal Police (AFP),
and in turn prosecuted by the Commonwealth Director of Public Prosecutions
(CDPP) will depend on the nature of the act.  If an incident is trivial,
the AFP is able to exercise the discretion not to pursue the matter.
Further, the CDPP will consider whether the public interest requires a
prosecution to be pursued, which includes consideration of the seriousness
or triviality of the alleged offence.  If the matter is prosecuted and the
person convicted, the court is able to take into account a wide range of
circumstances in determining the appropriate sentence.  This would include
the seriousness of the conduct and the circumstances surrounding the
offence.  Even if the maximum penalty for an offence is a term of
imprisonment, a court can impose no penalty, a fine only or a suspended
sentence.