Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Hansard source

I rise to speak on the AusCheck Bill 2006. This bill seeks to provide a regulatory framework for the conduct of a centralised background criminal and security checking service. It will be operated by the Attorney-General’s Department for persons requiring access to security zones in the aviation and maritime industries. AusCheck is being established as a service agency. It is intended that it will act as a service provider in its provision of background checking coordination services. It will have a formal provision to extend the operation of the provisions in the bill to all external territories of Australia.

Labor keeps a watchful eye on all bills presented by this government. They too often contain serious oversights or sweep away important freedoms. Who could forget the government’s ‘strip-searching of minors’ legislation, tabled in parliament in 2005? When you look at the mistakes the government has made in some of these bills, you see it is becoming more out of touch with Australia’s concepts of fairness and proportionality.

This is another example of a flawed bill. In the House of Representatives, Labor called for this bill to be examined by the Senate Standing Committee on Legal and Constitutional Affairs. The government’s original plan was for this bill to provide the authority for the department to coordinate background checks on applicants for the Aviation Security Identity Card, more commonly referred to as ASIC, and applicants for the Maritime Security Identity Card, or MSIC, and any subsequent schemes. I underline the phrase ‘and any subsequent schemes’. Allowing the arbitrary addition of subsequent schemes by regulation was a warning sign, and because of that we asked the Senate Committee on Legal and Constitutional Affairs to look at the provisions of this bill.

The Senate Legal and Constitutional Affairs Committee subsequently made 10 recommendations. I understand that the government has foreshadowed that it will adopt recommendations 1, 2, 3, 4 and 10, a matter that the minister will deal with in his summing-up speech. This is appropriate and particularly important when you look at recommendations 1 and 2. We think the government has come to that position in a sensible way.

Section 5 of the bill defines a background check as information relating to one or more of the following:

(a)

an individual’s criminal history;

(b)

matters relevant to a security assessment of the individual;

(c)

the individual’s citizenship status, residency status or the individual’s entitlement to work in Australia, including but not limited to, whether the person is an Australian citizen, a permanent resident or an unlawful non-citizen;

(d)

such other matters as are prescribed by regulations.

Recommendation 1 is that subclause 5(d) of the bill be removed. It seems that in the making of a regulation you can, with one strike of the pen, add whatever information to what constitutes a background check to regulations. In Labor’s view, that clause lacks accountability and proper oversight. Labor in the other place was critical of this provision. The Senate committee recommended removing that clause. I will not go in detail to the recommendation and the committee’s comments about it. It was a sensible recommendation and I am pleased the government has picked it up.

Section 8(1) of the AusCheck Bill states:

The regulations may provide for the establishment of a background checking scheme (the AusCheck scheme) relating to the conduct and coordination of background checks of individuals:

(a)

for the purposes of the Aviation Transport Security Act 2004 or regulations under that Act; and

(b)

for the purposes of the Maritime Transport and Offshore Facilities Security Act 2003 or regulations under that Act; and

(c)

and we see that phrase again—

for such other purposes as are prescribed by the regulations.

It seems to me that this scheme was not complete when they put this framework in place. The committee, in recommendation 2, recommended that this provision be removed. Labor raised similar concerns in the other chamber, and I think I can say that it was obvious through the committee process that even the department was not sure what purpose it would be put to ultimately. It is more sensible if there are to be substantive amendments or additions to this bill that they be made in this place and not by regulation. If the government want to extend the scope of the background checking scheme to other bills and occupations it is appropriate that they come to parliament and adopt a process where an amendment can be made to a bill, it can be properly examined and debated and even sent back to the Senate Legal and Constitutional Affairs Committee for examination, if necessary.

The government has not adopted recommendations 6 and 8 of the Senate committee. Recommendation 6 proposed that the government delete information from the AusCheck database that is not relevant to the background check for which it has been collected, used or disclosed. Recommendation 8 suggested that the bill be amended to impose appropriate conditions and limitations on the use and disclosure of personal information by a third-party agency to which AusCheck has lawfully disclosed that information. Labor believe that these recommendations still have merit but, given the changes agreed to by the government, we might rest on that point and accept that the government has moved some way. It is pleasing to note that, and we will not pursue those matters here.

But, if the government is refusing to adopt recommendations 6 and 8, then recommendation 9 is one that we will recast to the government, asking if it would be amenable to amending the legislation to specifically include the requirements that AusCheck provide periodic reports to parliament. We think it is a sensible approach for there to be periodic reports about matters including the number and type of background checks that it conducts, the average time taken to conduct background checks, the legislative scheme under which background checks have been conducted, the number of individuals who have received adverse background checks and the basis for those assessments, and the agencies with which information obtained by AusCheck has been shared and for what purposes.

It seems logical to provide a report of that order to parliament. It ensures that there is transparency and accountability. If the government thinks the matters covered by that should be broader or have more specificity, the opposition would look at that seriously. The opposition cannot see why that type of information cannot be provided and laid before parliament. The government has a range of bills that provide for that type of information to ensure there is transparency and accountability, and it would be familiar with those. They relate particularly to the use of surveillance devices and the use of various other warrant processes, and the telecommunications legislation provides for that type of information as well. It is summarised and provided in a report that is laid before parliament. That also creates a check and balance to the way this type of information is collected and used.

We do not want to step over privacy principles, of course, and we do not seek to do that. What we seek to do is look at aggregate figures, so those sorts of concerns are not wrapped up in our foreshadowed request. In matters where practical security requires privacy concerns to be balanced against security requirements, statistical reporting of the use of the power is essential. It is essential to be able to ensure that this type of information is collected appropriately. If there are issues we can argue about them at estimates and on the tabling of the report and raise them with government. Without that information we are left to an estimates process to be able to draw it out. As we have seen with AWAs, the government sometimes is not as forthcoming as it should be in respect of the statistics and information that we request. So we are concerned that the government may choose to hide behind the detail of how this scheme will work without reasonable transparency, and it is a concern that we place highly because it is important that this type of information is collected and used for the appropriate purpose for which it was intended. I foreshadow therefore that Labor will move an amendment to give effect to that recommendation.

The best option today would be a full implementation of the bipartisan Senate Legal and Constitutional Affairs Committee recommendations. After all, what Sir John Wheeler intended in his recommendation for a centralised data collection agency was a means to improve aviation security. That is important to Labor. Labor has been critical of the government’s rollout of the ASIC system and its failure to implement the Wheeler recommendations on aviation security. The ASIC system and aviation security in Australia do need reform. Labor recognises that. In 2005 the minister for transport set an arbitrary cut-off date for ID card applications of 31 December 2005, failing to take into account the time taken for pilots to pay for and receive police checks. That deadline did not take into account ASIO’s Commonwealth Games workload. What happened was that the minister was then forced to change the deadline to 31 March 2006, which still did not fix the problem. Pilots who missed the original December deadline but submitted their applications by the March deadline still have not received their ID cards and will not be able to access their planes.

What about lost and stolen ASICs? In the Joint Committee of Public Accounts and Audit hearing on 23 November 2005 we heard that 384 ASICs were either lost or stolen. On July 2006 the magazine Australian Aviation contained an article referring to a person from the Australian Aircraft Owners and Pilots Association who went to collect his ASIC from Qantas in Canberra. He was shown a box of red plastic cards on their lanyards and was left to sort through them in an unsupervised way, as I understand it. He was concerned that he could have pocketed any quantity of ASICs he wanted. The threat to Australians took a step up on September 11, 2001, making the mismanaging of the aviation sector a genuine concern and threat to the public. The government have been in power for 11 years. They must take the issue seriously and address the problems on Australian waterfronts and ports.

The government rolled out a maritime security identification scheme. That involved background checks on Australian maritime workers whilst leaving foreign vessels and crews unchecked. That is a concern when you think what that means. They have ensured that the maritime security identification scheme would be rolled out for Australian maritime workers while leaving foreign vessels completely unchecked.

In April 2005 the Australian Strategic Policy Institute published a damning report on the state of Australia’s security arrangements called ‘Future unknown: the terrorist threat to Australian maritime security.’ That report identified the danger of foreign flagged vessels carrying dangerous goods around the Australian coastline. So too we have warned the government about the dangers of ammonium nitrate being freighted around our coastline by foreign flagged vessels with foreign crews that have not undergone background checks. Labor has also pointed out that a range of groups, such as Abu Sayyaf and Jemaah Islamiah, have the skills and opportunities to launch these types of maritime threats against Australia. These groups operate in South-East Asian waters and they are near to our coastal regions. Reports from United States intelligence sources indicate that the al-Qaeda group is suspected of owning or having a long-term time charter on a fleet of 15 to 18 bulk and general cargo vessels. These are matters that are known to both Labor and the government.

Let us think about some of the issues that surround that and, of course, the need to ensure that the issue of maritime safety is considered of paramount concern by government and that they actually start doing something about upgrading our maritime security. At the moment it looks like it is moving at a snail’s pace. Turning to the content of this bill, Labor supports centralising the MSIC and ASIC vetting systems, but the government must really get a move on and make urgent upgrades to Australia’s transport security sector. I will also take the opportunity to move a second reading amendment that has been circulated. I will not go into the detail of it; it is there for others to read. The failures of this government are there for the record.

Concern is not only confined to this area. When you look broadly at the issues that are contained within this bill, you will see that the government is really trying to catch up, after 11 years of trying, to ensure that it can manage security identification cards. It is disappointing that, even with this government trying to centralise by putting a scheme in place in the AG’s portfolio and even with the framework legislation, when you look at the report from the Legal and Constitutional Affairs Committee you see that not enough work was done or attention was paid. Even more damning, I think, is the fact that it is significantly late. This should have been thought through and strategically planned much earlier and been developed and implemented rather than the ad hoc approach that this government has taken to security. I move the second reading amendment standing in my name:

At the end of the motion, add:

        “but the Senate condemns the Government for its failure to provide necessary security upgrades to protect Australians, including:

             (a)    its careless roll-out of the Aviation Security Identification Card (ASIC) scheme, which flawed roll-out included the loss or theft of ASICs and a history of airport security bungling;

             (b)    its delays in rolling out the Maritime Security Identification Card scheme and its careless and widespread use of single and continuing voyage permits for foreign vessels with foreign crew who do not undergo appropriate security checks;

             (c)    permitting foreign flag of convenience ships to carry dangerous goods on coastal shipping routes without appropriate security checks; and

             (d)    failing to:

                   (i)    ensure ships provide details of crew and cargo 48 hours before arrival,

                  (ii)    x-ray or inspect 90 per cent of containers,

                 (iii)    establish and properly fund an Australian Coastguard, and

                 (iv)    establish a Department of Homeland Security to better coordinate security in Australia”.