Arch Bevis (Brisbane, Australian Labor Party, Shadow Minister for Homeland Security) Share this | Link to this | Hansard source

I do not anticipate that we will be here long in the consideration in detail stage of the AusCheck Bill 2006. I appreciate the Attorney’s comments in relation to some of the matters that were raised during the second reading debate. There were concerns flagged in the second reading debate dealing with a couple of provisions in the bill that go to its future purposes beyond the ASIC and the MSIC. There is agreement on both sides of the chamber about the importance of having a centralised AusCheck function and certainly the development in respect of both ASIC and MSIC is something that we support and have advocated.

The bill does make provision for these checks to be undertaken for purposes which are yet to be identified or defined. The Attorney made reference in his closing remarks to aged-care workers as an example. I will quickly refer to a couple of provisions in the bill that the Attorney may wish to expand on. Part 1(5) of the bill sets out the definition of a background check, including the things that would be anticipated; for example, criminal history, security assessment of the individual, the individual’s citizenship status, residency status and the like—all of which one can understand and readily endorse. But there is then the catch-all ‘such other matters as are prescribed by the regulations’. Whilst, in a sense, there is a safeguard there of regulations, it does beg the question: what other aspects of a person’s background is it intended to delve into? If they cannot be identified now, why not? Why can’t we legislate for these things? If, indeed, they cannot be identified now, why should the parliament extend by this bill a power for that to be expanded subsequently by regulation—which, whilst it is a disallowable instrument, does not involve the same degree of scrutiny by this parliament or by the public? We are talking here about quite intrusive, significant investigations.

The Attorney made comment about the fact that there are hundreds of aviation security cards that have been lost, which I spoke about, and drew a comparison between that and driving licences. I have to say that there is a world of difference. A driving licence is not a document that you obtain to gain access to high-security places in airports. A driving licence is not a document for which you have to undergo quite detailed background security and criminal checks. A drivers licence does not involve the Federal Police and ASIO checking your background and visiting your employers and people you are known to to determine whether or not you are a fit and proper person to hold it.

There is a world of difference between these documents that we are talking about. There is a world of difference between the inquiry that is made of you to get a driving licence and the sorts of security background checks that this bill facilitates. So I think it is fair for the people of Australia to know in advance what it is that needs that quite expansive catch-all at the end, which is anything else that may be attractive to the government at some point in the future. Regulations do not involve the same degree of scrutiny, and we should not just pass off the power of this parliament to legislate to executive regulation making.

Similarly, in part 2, clause 8(2) of the bill sets out purposes prescribed by regulation to deal with a whole range of matters. Most of those matters are eminently sensible. They deal with things that you would expect a security clearance of this kind to deal with. But there are a couple that do raise questions—for example, paragraph (j), which talks about ‘purposes related to trade and commerce’. So we are talking here about a security check being done on somebody who is doing trade between Australia and overseas or amongst the states or within a territory. So, theoretically, you could be selling paperclips and, for some reason, the government could think that there needs to be one of these security checks done.

I am just not sure why it is that some of those provisions have been included when we are not talking about transactions involving security or indeed even involving the government or any of its agencies. There are other examples like that in that particular clause. Indeed, it finishes with a catch-all of:

... purposes related to any other matter in respect of which the Parliament has the power to make laws.

The Attorney touched on that. Effectively, it extends to anything for which the Constitution gives the parliament the power to make laws. That is the ultimate catch-all. We need to ask ourselves why we need to have those sorts of background checks done for those purposes. (Extension of time granted)

I thank the House for the extension of time. There is only one other point that I will quickly allude to. Part 2, clause 10, of the bill reads:

AusCheck scheme may require an individual to apply for a background check in relation to certain matters.

I am not sure whether the provisions set out here are the sorts of things the Attorney was commenting on when he mentioned people who might work in aged-care facilities or employment like that. I would be interested in his comments about the application of that clause. That clause also contains a catch-all at the end, as do a number of provisions in this bill. The catch-all on this occasion reads:

.. the individual being permitted to occupy a specified office or to engage in particular employment.

That casts the net as wide as it possibly can be cast.

In some circumstances you can understand why the government or the parliament would legislate to provide a broad catch-all like that, but we are not here dealing with a general administrative bill. We are dealing with the government, for good and proper reason, conducting very detailed, intrusive checks on the personal life and background of Australians. We should not be doing that lightly. There are cases where there is good reason to do it, and that is why we support the bill. But, in supporting that intrusive investigation of a person’s life and history, we should be mindful that there have to be some parameters in which it operates.

It is not sufficient for the government and the Attorney to say that that is a framework to provide for contingencies that may arise. Let us define the contingencies now so that there is no ambiguity and so that people in Australia, the citizens who are going to be subject to these intrusive investigations, know what the scope of it is—and at the moment we do not know the scope of it. Its initial intention is clear. It is for good reason in the maritime and aviation industries. But, beyond that, it is for whatever the government may have a whim to pursue.

As to regulations, I recall that when I was shadow minister for industrial relations we had the situation in industrial relations where the government used its power to introduce regulations during a period in which the parliament was in recess so that for a period of some months the government could act on a regulation which subsequently was overturned when the parliament resumed. I well recall Peter Reith, who was then the minister for industrial relations, forcing through changes that were clearly not the will of the parlament. You can unravel those things, but the truth is that, for a period of some months, those changes were operating in the day-to-day life of some businesses. That is the difference in practical terms between a regulation and a bill.

Where we are dealing with sensitive matters, important matters, such as these detailed security checks, we should be clear about where we want them to apply and not just leave them to the view from time to time of the government, by regulation. I look forward to the Attorney’s further explanation as to why those three provisions, in particular, are necessary in this bill and why it is not possible to better define them at this time.

Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I will briefly respond collectively to the argument. Firstly, there are no new background-checking schemes under consideration for AusCheck involvement at this time. But it is possible, and I adverted to this in my comments before, that AusCheck may be requested to utilise its expertise in background checking to create efficiencies in other areas authorised under Commonwealth law, and I mention the possibility in relation to employees who work with children. They are very sensitive issues, particularly in relation to people who may be involved in paedophilia. It may not be just a matter of criminal checking that you would want to undertake; there may well be information in other areas about matters relating to people dealing with children which you would want to take into account in such a checking regime.

In that sense, without adverting to the fact that there is any idea to do that—and there is not—it is possible that you might need a wider range of matters that you would need to entertain for checking for other purposes. We do not think it is possible to predict in advance. I would rely on the fact that, if you were going to move into these areas, it is not something you could do by decree; it does involve the regulation-making power being utilised. I would have to say that, if you look at the handling of legislation these days, the numbers of matters that have to be addressed by bills are growing exponentially. The more you can do by sensibly utilising the regulation power so that you then come back and only have to debate matters that people think are of sufficient substance to require it—that seems to me to be not unreasonable.

May I just pick up the second point the member was making about 8(2)(j) and the reference to trade and commerce. There are areas in which trade and commerce require some consideration of people’s backgrounds. If you are trading in particularly sensitive materials that might be on some restricted list for sale outside of Australia, you may well want to require people who are engaged in trade and commerce to undergo some further scrutiny. It would not be everybody. I simply advert to the fact that there are some areas of trade and commerce that do have a security related need for assessment, and I think that measure would be clearly an appropriate one. I hope my comments have assisted the member, but if he wants to use the Senate committee process to examine my officers further, he can do so.

Arch Bevis (Brisbane, Australian Labor Party, Shadow Minister for Homeland Security) Share this | Link to this | Hansard source

We will certainly take advantage of the avenues available in the Senate to try to get to some further detail. Of course, I accept there are matters that would be the subject of trade, where it is necessary to have a background check. That is defined not in the existence of the transaction but in what is being transacted and what its purpose might be. I would have thought that is covered in other areas. For example, the same clause makes provision for the purposes of external affairs—for that to be a reason for a check—for purposes related to Australia’s national security or defence, or for a national emergency. They are the reasons we have good cause to have intrusive checks on people who are individuals living freely in Australia as citizens. They are the reasons we do it. It is not because they are trading but because the nature of their trading is such that it affects a question of national security, defence, a national emergency, international agreements or international aspects—obligations we may have. It is not the trading per se. Therein lies the concern we have in the way this bill is drafted. I think this bill could and should have been drafted to properly address matters of concern on which we all agree, without casting the net so widely. It is a convenient way to draft it. It makes it easy for the administration in the future, in a sense. It makes it easy for the government, in a sense, in the future, because they can pretty well use these powers to go wherever they want, but that is not, I think, what the parliament or the people of Australia would prefer. I think the example the Attorney gave in answer to my question highlights exactly the problem, and we will see whether there is a better and more complete answer or some other remedy that the Senate legislative committee is able to identify.

Bill agreed to.