Crimes (Aviation) Act 1991

• Passengers and crew of aircraft: Directly subject to the offence provisions in Parts 2 Divisions 1 and 2 for conduct on board aircraft.
• Persons at or near Commonwealth aerodromes and air navigation facilities: Subject to Division 5 offences for endangering safety or making threats.
• Australian citizens committing aviation offences outside Australia: Jurisdiction extends to Australian citizens hijacking or committing relevant acts outside Australia under sections 13(2) and 14(1)(g).
• Airlines and aircraft operators: Indirectly affected by the power of aircraft commanders to arrest passengers and by the police powers to restore control under Part 4.
• Authorised persons (police, AFP, protective service officers): Exercise custody and arrest powers under Part 4.
• Persons detained under Tokyo Convention procedures: Subject to delivery to authorities and appearance before magistrates under Part 3 and Part 4.
• Aviation security regulators and prosecutors: The Act defines the offence framework within which aviation security incidents are prosecuted.

Hijacking prohibition (s 13): A person must not hijack an aircraft where the Hague Convention requires Australia to make hijacking punishable, or where the aircraft is engaged in a prescribed flight, is a Commonwealth aircraft, or is a visiting government aircraft. Australian citizens are prohibited from hijacking aircraft anywhere in the world (s 13(2)).

Prohibition on acts of violence on board (s 14): A person on board an aircraft must not commit acts of violence against passengers or crew if those acts would constitute an offence in the Jervis Bay Territory and the jurisdictional conditions are satisfied.

Prohibition on taking control of aircraft (ss 16 to 18): A person must not take or exercise control of a Division 3 aircraft (s 16); destroy, damage or endanger the safety of a Division 3 aircraft in flight (s 17); or place on an aircraft a device or substance likely to destroy, damage or endanger safety (s 18).

Prohibition on endangering civil aviation (ss 20 to 22): Division 4 creates offences for acts of violence in airports, destroying or damaging aviation facilities, and disrupting services at airports.

Prohibition on endangering aerodromes (s 27): A person must not do an act, reckless as to whether it will endanger the safety of a Commonwealth aerodrome, any part of it, or anyone within it.

Prohibition on threats and false statements (s 28): A person must not threaten to destroy, damage or endanger the safety of a Commonwealth aerodrome or its facilities, or to kill or injure anyone within it. A person must not make a false statement to the effect that there has been or will be a plan to take control of, destroy, damage or endanger a Commonwealth aerodrome, or to kill or injure persons within it.

Restoring control of aircraft (s 32): Where Australia is required under a convention provision (Article 11 of the Tokyo Convention or Article 9 of the Hague Convention) to take all appropriate measures to restore control of an aircraft to its lawful commander, an authorised person (AFP member or senior state police officer) may take such action and use such force and assistance as is reasonably necessary to ensure compliance.

Taking offenders into custody (s 33): An authorised person who reasonably suspects a person has committed a prohibited act may cause the person to be taken into custody. The person must be brought before a magistrate as soon as practicable and held in custody until then. Where the flight ends in a foreign country, the person must be delivered to that country's police.

Arrest by aircraft commander (s 34): The person in command of a prescribed aircraft may, with reasonable assistance, arrest without warrant any person found committing or reasonably suspected of having committed an offence against Part 2 on board the aircraft. The arrested person may be held in custody until taken into other custody or brought before a magistrate.

Restraining persons (s 35): The aircraft commander may take reasonable measures to restrain a person on board from committing an offence against Part 2 or from jeopardising safety.

Accepting delivery of persons (s 30): An authorised person may accept delivery of a person delivered under Article 9 of the Tokyo Convention (delivery of an offender to authorities in the state of landing). The person must be brought before a magistrate as soon as practicable.

Extradition (Part 5, ss 38-39): The Act contains provisions relating to extradition requests and the delivery of persons between Australia and foreign states for convention offences.

Preliminary inquiries (s 37): The Minister may authorise a preliminary inquiry in respect of a convention offence, and a magistrate may take evidence at the inquiry for delivery to a foreign state.

Hijacking (s 13): Imprisonment for life.

Acts of violence on board (s 14): The same punishment as for the underlying offence if committed in the Jervis Bay Territory.

Taking control of aircraft (s 16):

• Basic offence: 10 years.
• While another person (non-accomplice) is on board: 14 years.
• By force, threat, trick or false pretence, with another person on board: 20 years.

Destroying or damaging aircraft (s 17):

• Basic endangerment of aircraft: 10 years.
• Destroying or damaging aircraft with intent to endanger safety in flight: 14 years.
• Causing death: life.

Placing dangerous devices (s 18): 14 years.

Destroying or damaging aviation facilities and communications (ss 20-21): Penalties ranging from 10 to 20 years depending on consequences.

Violence and threats at airports (Division 4, ss 23-26): 10 to 20 years.

Endangering Commonwealth aerodromes (s 27): 14 years.

Threats and false statements about aerodromes (s 28): 10 years for threats; 10 years for false statements.

Jurisdiction for prosecution: offences against the Act are prosecuted in the federal criminal courts. The Act expressly does not limit or exclude arrest under other laws for offences against the Act (ss 33(3), 34(3)).

Custody and magistrate appearance: Persons taken into custody or arrested under Part 4 must be brought before a magistrate as soon as practicable. There is no fixed period specified, but the courts would apply constitutional and common law requirements of reasonable promptness.

Convention delivery: Where a person is disembarked or delivered to Australia under the Tokyo Convention, they may be deported under the Migration Act 1958 where Australia is entitled to exercise state-of-landing powers under the convention (s 31).

Extradition: The Act provides for preliminary inquiries (s 37), requests for delivery of persons (s 38), and surrender of persons to foreign states (s 39). These procedures interact with the Extradition Act 1988.

Evidence: A document certified by the Attorney-General as a record of evidence taken at a preliminary inquiry is admissible in proceedings for offences against the Act, extradition proceedings, and related proceedings (s 41), subject to the court's discretion not to admit it where unjust. The Foreign Affairs Minister may certify convention entry-into-force dates and denunciation status (s 43), which are admissible as prima facie evidence.

Tokyo Convention, Hague Convention, Montreal Convention: The Act gives domestic force to these international instruments. Part 3 explicitly provides that specified chapters of the Tokyo Convention have the force of law in Australia. Other convention provisions are implemented through the offence provisions of Part 2.

Civil Aviation Act 1988 (Cth): The definition of Civil Aviation Regulations (s 3) refers to regulations made under the Civil Aviation Act 1988. The civil aviation regulatory framework operates alongside this Act's criminal law framework.

Airports Act 1996 (Cth): The definition of Commonwealth aerodrome (s 3) includes core regulated airports within the meaning of the Airports Act 1996. The Act's offences apply to those airports.

Criminal Code Act 1995 (Cth): Absolute liability applies to jurisdictional elements of most offences under Part 2, as noted in notes referring to section 6.2 of the Criminal Code. The Criminal Code's general principles of criminal responsibility apply to offences under the Act.

Migration Act 1958 (Cth): Section 31 connects the Tokyo Convention powers with deportation under the Migration Act for persons disembarked or delivered to Australia under the convention.

Extradition Act 1988 (Cth): Extradition proceedings under the Act interact with the Extradition Act framework.

Judiciary Act 1903 (Cth): Section 29(3) provides that matters arising under a Tokyo Convention provision given force of law by the Act are not to be treated as matters arising directly under a treaty for the purposes of section 38 of the Judiciary Act.

Absolute liability on jurisdictional elements: For most offences in Part 2, the prosecution does not need to prove that the accused knew the aircraft was an Australian aircraft, a Commonwealth aircraft, a Division 2 or Division 3 aircraft, or that the aerodrome was a Commonwealth aerodrome. This is a departure from ordinary criminal law and can result in conviction even where the accused had no reason to know their conduct attracted Commonwealth jurisdiction.

Life imprisonment for hijacking with no gradations: Unlike other offences in Part 2 where penalties increase with aggravating factors, section 13 provides only one penalty level (imprisonment for life) for hijacking regardless of circumstances. This means the sentencing court operates within a maximum of life with no statutory minimum and no graded structure.

Tokyo Convention delivery is distinct from arrest: Section 30 (acceptance of delivery under the Tokyo Convention) and section 33 (taking offenders into custody) are distinct mechanisms. A person delivered to Australia under the convention must be brought before a magistrate but may also be deported rather than prosecuted, depending on Australia's obligations under Article 14 of the convention.

False statement offence (s 28(2)) requires knowledge: Unlike the endangerment and threat offences in sections 27 and 28(1), the false statement offence in section 28(2) requires that the person know the statement is false. This is an important distinction: a passenger who in good faith (but wrongly) reports a suspected threat cannot be convicted under section 28(2), but may still face prosecution under state law.

Extrajurisdictional reach for Australian citizens: Section 13(2) extends hijacking liability to Australian citizens operating anywhere in the world, even where the aircraft would not meet the in-flight definition under the Hague Convention. This creates a broad extraterritorial reach for Australian citizens.

Example 1: Hijacking. A passenger seizes control of an aircraft flying from Sydney to Melbourne by threatening the crew with a weapon. The aircraft is a registered Australian aircraft engaged in a prescribed domestic flight. The passenger commits the offence in section 13(1) (paragraphs (a) to (c) would each apply), punishable by imprisonment for life. The aircraft commander may arrest the passenger under section 34. On landing, an authorised person takes the passenger into custody under section 33 and the passenger is brought before a magistrate.

Example 2: Bomb threat to airport. A person telephones Tullamarine Airport (a core regulated airport within the meaning of the Airports Act 1996 and therefore a Commonwealth aerodrome) and states that a bomb has been placed in a terminal, knowing the statement to be false. The person commits the offence in section 28(2), punishable by imprisonment for 10 years. Absolute liability applies to the element that the aerodrome is a Commonwealth aerodrome.

Example 3: Aircraft control by deception. A person enters the cockpit of a Division 3 aircraft and, by false pretence (claiming to be an authorised check pilot), causes the crew to allow them to exercise control. Another crew member (non-accomplice) is on board. The person commits the offence in section 16(3), punishable by imprisonment for 20 years.

Example 4: Tokyo Convention delivery. An aircraft lands in Australia after the commander disembarks a passenger who committed assault on board during an international flight. The commander delivers the passenger to Australian border authorities under Article 9 of the Tokyo Convention. An authorised person accepts delivery under section 30 and must bring the passenger before a magistrate as soon as practicable. Australia then has the option of prosecuting for any Australian criminal law offence on board or deporting under the Migration Act 1958.