Sussan Ley (Farrer, Liberal Party, Shadow Minister for Justice and Customs) Share this | Hansard source

In 2005, under the former coalition government, a centralised background-checking service was established in the Attorney-General’s Department as part of a wider initiative to strengthen aviation and maritime security. This service, known as AusCheck, was created to help the aviation and maritime industries identify high-risk individuals who should not be granted access to secure areas of Australian air and sea ports. It began operation in 2007. It is understood that the original AusCheck Act was intended to apply more broadly than in just the aviation and maritime arenas. It was intended to be nationally applicable and, in fact, that it not require other enabling legislation. But, at that time, the Senate Standing Committee on Legal and Constitutional Affairs determined that it should be narrowed, with a view to broadening it in the future. The coalition supports the broadening of this act for the purpose of background checking for national security purposes.

AusCheck is responsible for identifying individuals who should not be eligible for aviation security identification cards, or ASICs, and/or maritime security identification cards, or MSICs, by applying a consistent interpretation of the statutory requirements and coordinating background criminal and security checks on applicants and notifying the relevant issuing bodies of the outcome of these checks. The issuing bodies may be the airport corporation, QANTAS, the airlines, the port authorities or contracted private providers such as Fast Track. These background checks were previously processed and coordinated by the background checking unit of the Department of Infrastructure, Transport, Regional Development and Local Government. There is a streamlining effect by having the checking done within the Attorney-General’s Department and with certain issuing bodies involved, and it is a more efficient service when it is done this way.

I want to raise some security problems with the maritime security identification card, and I have raised these in the House before. Mr Jeff Buckpitt, who is the national director of intelligence and targeting for Customs, cited concerns to the Parliamentary Joint Committee on the Australian Crime Commission on 29 September 2008 about the lax screening of dock workers. These remarks are on the public record. Confirmed by Mr Buckpitt, it is of grave concern to the coalition that the MSIC arrangements allow for people who have criminal histories to be employed on our wharves—because, as long as the offence is not maritime or aviation related, people with criminal histories are in fact able to be employed at Australia’s docks. Approximately 10 per cent of maritime workers have a criminal record.

I refer to the fact sheet from the department of transport that talks about maritime security relevant offences—in other words, the offences for which you may not be issued with an MSIC. I will run through the offences which disqualify you from holding an MSIC—although, interestingly enough, you can seek reconsideration of the disqualifying decision. These are the kinds of offences: treason; espionage; supply of goods such as weapons for a weapons of mass destruction program; hijacking; destruction of an aircraft or vessel; treachery; sabotage; sedition; interference with aviation or maritime transport infrastructure; counterfeiting; transnational crime involving money laundering; people-smuggling; and importing or exporting weapons or a trafficable quantity of drugs. I read through that list of offences to give the House a sense of the severity of an offence for which you may not receive an MSIC.

I believe the bar is set much too high, and that is demonstrated by the fact that 10 per cent of maritime workers have a criminal record. As Mr Buckpitt shared his concerns with the committee on the Australian Crime Commission, he said:

The security checking associated with MSIC applications is not, in our view—

that is, the view of Customs—

a particularly rigorous one. We think that that permits employment at the wharves where there are a substantial number of people who have had criminal involvement or have been supportive of criminal involvement in some way. We think that is one area that needs to be looked at.

That is quite sensible.

Considering that only five per cent of cargo containers are actually X-rayed and only a tenth of those that are X-rayed are physically unpacked, there is a great risk that those with criminal histories could be helping organised crime groups to import drugs and other illicit goods. I am not suggesting that we can X-ray 100 per cent of containers, as the Americans are moving towards. It is incredible to think how that might work in practice. Of course, intelligence has to be applied to the source of the goods, the route they have taken to arrive in Australia, the types of cargo, the history of the importers et cetera. We are not suggesting that a figure significantly higher should be employed, but it is one way that we could reduce the incidence of crime and certainly the incidence of organised crime using our docks and our port workers.

As any casual conversation with those who work in these areas reveals, there are ways of importing illicit goods through Australia’s docks. Criminal organisations might use a container that contains something of fairly low risk that is less likely to be opened up at the port at export, en route or within Australia in our container examination facilities. For example, a container could originate in the port of Colombia. There has been much in the press lately about the quantity of cocaine that originates in Colombia. Cocaine could be thrown into the container. It could then be opened at the port here in Australia by maritime employees who are working in league with the organised criminal group. If the drugs are loaded with goods that are deemed to be of relatively low risk, it is less likely that that particular container would go through an X-ray facility, and of course the goods could be removed at the port before they even get to the X-ray facility. The main idea for the criminals involved is to have those connections at the wharf and to have the movement of the container completely subverted.

Customs have an excellent facility, which I have inspected, at Port Botany for X-raying containers and a terrific process. They are struggling with resources with the $51.5 million cuts to Customs under this government, but with the resources they have been allocated they do a fantastic job. But I believe we really need to set the bar higher for those who are able to obtain maritime security identification cards, or MSICs, and that would assist Customs in the valuable work that they do. I call on the minister—I am pretty sure it is the Minister for Infrastructure, Transport, Regional Development and Local Government—who has that power.

In conclusion, the coalition does support the AusCheck Amendment Bill 2009. I mentioned in my earlier remarks before question time today that a couple of concerns had been raised about the amendment bill. One of those was the online verification service and who might have access to this database, which is within AusCheck, in the Attorney-General’s Department. If an employer wants to verify, for example, that a person applying for a job is who they say they are and that they actually do have a maritime security identification card or an ASIC, they can log in to the online database and they can check that out. It is important that not everyone can log in to this online database. We have to be very careful about lists of information and databases with individual details on them, and I think that on both sides of the House we are most vigilant about that. I am assured and pleased that the online database can only be accessed by those who punch in the name of one individual concerned and get the response about whether or not they are entitled to the card. Also, the audit trail that exists within AusCheck is such that you need to have a logon to access this database, and what you do in terms of the IT is tracked. I am comfortable with that.

The other concern that was raised was about the operative provision of the act, which is section 8. Under the amendment legislation, we are adding that the regulations that would be included as part of this amendment establish a scheme relating to conduct and coordination of background checks. In the amendment bill there is a list of subparagraphs (i) to (vi). Subparagraphs (v) and (vi) include purposes related to ‘the executive power of the Commonwealth’ or ‘matters incidental to the execution of any of the legislative powers of the parliament or the executive power of the Commonwealth’.

The concern that was expressed to me was that these provisions are quite broad and in fact do not direct one to national security related issues. After further investigation with the Attorney-General’s office and the Attorney-General’s Department, I have been told that the act as amended actually does not determine who should or should not have a background check. That is made clear in the EM. But, if a future department—let us say the department of social security—decided that fruit-pickers needed a security information card, this act alone could not make that happen. There would still need to be enabling legislation, and that would be under our social security laws.

The intent and architecture of this bill relate to checks for national security purposes, and that is the framework in which it operates. Regulations to include new checks would have to be made by the Attorney-General at the time. Remember that this amendment legislation provides that from time to time regulations can be made to expand the field of security information cards. Those regulations, of course, would be a disallowable instrument and therefore they could come before the parliament. In addition, further enabling legislation would have to be made to effect those changes. The drafters do not have a definition of national security because there is not a legal definition, and in this case they did not want the definition to be too wide or narrow. National security involves an amalgam of Commonwealth powers and is not legally defined, as I said. The drafting in this bill reflects that it was a way of tying national security to Commonwealth specific powers.

I am comfortable that the amendment legislation does not widen the ability of any future government—and we are talking about times future—to include an onerous security checking regime where it would not be appropriate. But I just note those concerns because I think it is important to know, in case sometime in the future someone refers to the introduction of this particular amendment bill, that it has been closely considered and that we and the coalition have been assured, as I have described. We support the bill. There are concerns about the MSIC arrangements that allow people with criminal histories to work on our docks and deal with sensitive cargo, and they do need to be addressed. I urge the government to put that as a priority, because our dock workers are very much the gatekeepers of our borders.

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