Andrew Bartlett (Queensland, Australian Democrats) Share this | Hansard source

On behalf of the Democrats, I indicate that we support the legislation once the amendment is put through to remove schedule 2 from it. I concur with much of what Senator Evans has just said. I would want to make two key points in regard to the process that has been followed to date. Firstly, I think there does need to be a particular recognition of and congratulations to the Senate Legal and Constitutional Committee. It was a brief Senate inquiry and a brief committee hearing but it was sufficient to clearly draw out ample evidence that the proposal contained in schedule 2 of the legislation was badly thought through, improperly justified and, frankly, quite dangerous.

It is a tribute to all members of the committee, including the government members of the committee and its chair, that the committee not only pointed those matters out in its report but, indeed, was also sufficiently diligent in its questioning to draw these facts out in the committee hearing process. My understanding—and I am almost certain of this as a member of the committee—is that the relevant minister, Minister Hockey, indicated his decision to withdraw this schedule from the bill before the Senate committee report even came down. Normally it takes the strength of a unanimous Senate committee report, with the government members included, to create sufficient awareness, pressure and recognition for the government to move necessary amendments. It does not mean it always follows that the government will move those amendments, of course, but usually that is the way it works. If there are going to be amendments as a result of Senate inquiries, they are proposed usually once the committee has done its report and attention has been drawn to the strength of the concerns. In this instance the evidence was so strong, so clear-cut, so problematic at the hearing itself that the minister indicated before the report had even come down that he would be withdrawing schedule 2.

That leads me to the second point I want to make. There does need to be congratulations given to the minister, Minister Hockey. The easy thing to do when you have the numbers in the Senate is to just insist on going ahead anyway. I can certainly think of some other ministers who, I suspect, in similar circumstances would have dismissed all the concerns and bulldozed straight ahead anyway, enforcing their will, if you like, on their colleagues most probably because of the nature of parliamentary discipline. They would have got that accepted and we would have ended up with an extremely bad and dangerous law. Probably anybody who expressed concern about it would have been dismissed as being soft on welfare fraud or something like that.

So it is worth while paying tribute to Minister Hockey. Obviously, any time a minister withdraws a section of a bill in the face of criticism they leave themselves open to being accused of backdowns, backflips and the like. A small amount of that happened, as is understandable. But to have the guts to stand up and say, ‘No, actually this is wrong. We’ll take this out and have another look at it. We won’t insist on proceeding. We won’t force this through. We won’t inflict bad law on the people of Australia,’ takes a bit of backbone. It might seem like common sense, but it is not automatic and I think it needs to be commended when it happens.

Having said that the decision of the minister needed to be acknowledged and congratulated, I nonetheless have to express great concern that the provision was put forward in the first place. I do not know whose idea it was. Centrelink and social security legislation span a few different portfolios. I do not know whether it came from a ministerial or departmental level, or where it came from, but it is a dangerous idea. To reinforce what the relevant schedule of the bill sought to do—or seeks to do, before it gets removed: it sought, or seeks, to introduce for social security, family assistance and related student assistance payments provisions for entering and searching of premises, and copying and seizing of material relevant to pursuing these investigations.

I note that the justification given initially was that these provisions would mirror provisions that are already available to other agencies such as the Health Insurance Commission, the Australian Taxation Office, the Child Support Agency and the Department of Immigration and Multicultural Affairs. It is important to note that that justification was used because it is literally an example of the slippery slope. That is why there is good reason to raise concerns on principle about expanding powers such as search and seizure—law enforcement types of powers that would normally be associated with police type agencies—to other general government agencies, public servants and officials. The reason is that, once it is done for one agency, it is very easy, common and understandable for ministers that might want that power for some other thing to say, ‘We already do this in this area. There’s no problem. We’ll do it for this other section as well.’

I think that the social security area has quite significant distinctions to the tax office, the Health Insurance Commission and the immigration department in particular. As the Welfare Rights Network pointed out in their evidence to the committee inquiry, issues relating to enforcement for those agencies usually relate to people avoiding the agencies, whereas, with Centrelink, if you want to keep getting paid, you need to retain contact. There are many ways that Centrelink can require contact with people to enable basic payments to continue, so it is quite different even from that point of view.

The other difference, as the committee pointed out, is that in most instances with those agencies when these sorts of search and seizure operations occur, it is at business premises, not private residences, where many of the sorts of raids would occur when you are talking about social security and Centrelink payments. It is a reminder of how this sort of justification, this sort of creeping effect, once the powers are given more widely, is used to spread it out to other officials for all sorts of other reasons. So it is good that the line in the sand has been drawn on this occasion, and I hope that continues to be the case.

The other part of this situation which is worrying and which I think needs to be emphasised is the flimsiness of the justifications that were given. Senator Evans has read out some of the conclusions of the unanimous committee report—I was a member—and they should set a few alarm bells ringing, frankly. We are, in this place, as are the general public, reliant on taking the word of agencies when they put forward arguments to justify why certain actions or changes are needed. The arguments put forward by Centrelink officers once they were explored by committee members fell apart quite quickly. That is a matter of concern. I am not suggesting there was deliberate deceit undertaken; I suspect it was a belief that took hold amongst some in Centrelink that a certain situation was occurring and they needed to do something about it. They just continued on their way and did not put a lot of time into talking to, in particular, the Federal Police to determine whether their belief was valid and whether there might be ways to solve it. They immediately went to the end of the process to their preferred solution and decided that they might like search and seizure powers themselves.

The suggestion and the justification made by Centrelink officers that there were delays in the process of obtaining and executing warrants and that their inability to act promptly jeopardised their capacity to get evidence were not able to be backed up. Also, they stated that there had been an increase in the number of times that the AFP had rejected referrals for them to become involved in Centrelink activities when the AFP was able to provide data that quite clearly proved the opposite: there has actually been a decline in the number of cases rejected by the AFP in recent years, including since 2000. Indeed, the decline has been quite dramatic in the number of cases rejected by the AFP.

It should always raise a concern when a rationale is put forward by a government agency as to why a quite significant power is required and then, when you do the tiniest bit of digging, you discover that that rationale is not actually backed up at all and is undermined by the basic facts. That does not engender confidence and it is a concern. I think it is a sign of what Senator Evans referred to as the government’s growing arrogance. There is a growing view that, with the government’s control of the Senate, they feel they do not need to worry about doing all this ‘homework’. They think, ‘We have got the power, we want to do this, we know it needs to be done and we should be allowed to do it.’ Again, it is a tribute to the Senate committee that they were able, even in that short hearing, to expose the problem.

I should also note the work of another Senate committee, which does not get terribly much notice but also does a good background job of exploring not the partisan policy issues but some of the basic principles—that is, the Senate Standing Committee for the Scrutiny of Bills. It also looks at the principles of whether legislation that gives extra powers to government or government officials is justified. We are, of course, always talking about balancing principles. No-one is arguing—I am certainly not—that under no circumstances should any non police officer, public servant or official ever be able to conduct search and seizure type operations; clearly, that would be unreasonable and inflexible.

But we do need to balance-up giving extra enforcement powers that will obviously help with compliance with the law, which is always in the public interest, with the potential for those powers, firstly, to infringe upon people’s dignity with arbitrary invasions of their property and privacy and, secondly—and potentially worse, of course—the potential for them to be misused. With an agency as large and dispersed as Centrelink, I do not think it is casting unfair aspersions on the public sector in general to say that unless you have an extremely good training regime—something else that had not been worked out when these proposals were put forward—the chances of the powers being misused will likely be quite significant.

I found the evidence of the Welfare Rights Network very convincing. They deal with the difficult cases—not the day-to-day cases. The day-to-day cases are the ones that nobody notices because they are the ones where everything goes right. That is the vast majority, and that is good. But the ones where there are appeals, the ones where there are disputes, the ones where there are complaints—the ones where things go wrong—are the ones that people at the Welfare Rights Network deal with every day of the week. They get to see the flaws. Dealing with nothing but flaws day after day can tend to cull your judgment a bit, perhaps; you can assume that these practices or problems are more widespread than they are. But the simple fact is that the Welfare Rights Network do have that practical experience of how badly things can go wrong and of how internal processes are not always sufficient to resolve problems.

I used to work in the predecessor of Centrelink, the Department of Social Security, back in 1989 or 1990—I think it was around that time. Things have obviously changed a great deal since then, but I was a social worker and also dealt to some extent with some of the more difficult cases, rather than the run-of-the-mill ones. I would sometimes be playing an intercession type role when there were disputes in the compliance and enforcement area. It is not casting aspersions to say that sometimes people can get overzealous in that area. They are human beings and that is sometimes human nature in those sorts of circumstances. It can happen not even within a whole organisation but with individual officers, or in units or teams. In any particular region a culture can develop that can be overzealous.

I certainly saw examples of that in my time. It was only occasionally; not very often. It is a very difficult job, of course—particularly in the compliance area, which is very delicate. I am not in any way suggesting it is a walk in the park. But I have no doubt that already in the compliance area there are practices that are less than ideal. Expanding powers to such a dramatic extent as being able to get warrants to enter premises to search and seize material and question people is a very big step. I certainly do not think it is one that should be taken without very strong justification and a lot of preplanning.

Having made all those complaints about that section of the bill, I am obviously very pleased it is not going to stay in there. But I think we need to note that it did make it all the way through until the Senate committee drew attention to those problems. I hope, and I am sure and would expect, that the minister and ministers would be looking into how it got through—how it happened that such a poorly thought through provision could have almost entered into law. I will repeat that I think credit must go to the minister for accepting the mistake and withdrawing it—if you like, for taking the short-term hit for the long-term benefit of the administration of this particular area of the law and, obviously, for those in the community that have experience with it. It is worth repeating that there are, of course, millions and millions of Australians that have some form of contact with Centrelink each year. In that sense, I suppose, it is a positive sign that there are perhaps so few complaints. The area of Centrelink complaints is, I think, the biggest area of complaints for the Ombudsman. That is perhaps not surprising given the enormous number of Australians that have contact with Centrelink.

The other provisions of the bill, which will stay, are ones that the Democrats support. Senator Evans spoke about an amendment; I will listen to the arguments on that. The case he put forward for his amendment seemed valid to me, but I am happy to hear any other arguments to the contrary before determining a position on it.