Natasha Stott Despoja (SA, Australian Democrats) Share this | Hansard source

I rise on behalf of the Australian Democrats to address the AusCheck Bill 2006. I begin by acknowledging those amendments that the government has put forward that take on board some of the concerns and indeed the recommendations in the Senate committee report. The Democrats will be supporting those amendments. The Democrats will also be supporting Senator Ludwig’s amendment to the legislation on periodic reporting. However, the Democrats are, certainly at this stage, not convinced by the second reading amendment that has been put forward by the Labor Party. That specifically relates to part (d) of that second reading amendment. Although we have some support and sympathy for the criticisms or comments contained in the second reading amendment, it is not Democrat policy at this stage to establish a department of homeland security.

The Australian Democrats do support a strengthened system for probative checks in the aviation and maritime areas. However, we have strong concerns about a system that does not necessarily improve on current arrangements for background checking nor necessarily balance important security employment, sentencing and privacy principles. It is in wearing my privacy spokesperson hat for the Democrats today that I make most of my comments.

The system fails to adequately protect Australians’ criminal history information sufficiently to warrant such a disproportionate intrusion into Australian workplaces. There is no question that security threats have contributed to a dramatic increase in criminal record checks. Advances in technology have also made criminal history checks faster, less expensive and easier to obtain from a variety of sources. Add to this the requirement for criminal checks for public sector employees, as well as the numerous state and federal laws that require criminal background checks for certain categories of work, and the result is that an applicant for nearly any job will face a criminal background check which looks for a multitude of different offences.

In his 2006 report to the Victorian Attorney-General, entitled Controlled disclosure of criminal record data, the Victorian Privacy Commissioner, Paul Chadwick, highlighted this boom in criminal record checking. He said:

Statistics indicate an enormous increase in criminal record checks carried out in Victoria from 3,456 in 1992/93 to 221, 236 in 2003/04—more than a 60-fold increase over 10 years. Use of the national criminal record checking service offered by the CrimTrac Agency by accredited agencies (such as the Victorian Institute of Teaching) is also on the rise. CrimTrac reports almost a doubling in the number of checks carried out nationally, increasing from 617,000 in 2003/04 to 1.1 million in 2004/05.

While this bill is essentially about establishing the architecture of the AusCheck scheme, the Democrats note that it is also part of this wider trend in employment to make mandatory the checking of criminal records. In its submission to the Senate inquiry, the New South Wales Council for Civil Liberties talked about the continuation of the trend towards a centralised database at a national level. Under this proposal AusCheck is to be the preferred background, criminal and security checking service for persons requiring an aviation or maritime security identity card. Cardholders are able to access security zones in the aviation and maritime industries, which are not generally accessible to members of the public. As recommended by the Wheeler inquiry into airport security and policing, AusCheck will replace the 188 separate agencies and entities that have issued ASICs and MSICs until now.

The key driver for the establishment of AusCheck is the national security imperative to protect the aviation and maritime sectors from terrorist threats and attacks—and we understand and support that particular motivation. But there are several issues with this bill, most of which Senator Ludwig has already pointed out. The Senate committee, chaired by Senator Marise Payne, should be congratulated for highlighting the deficiencies in this bill, particularly with regard to the breadth of the regulation-making powers, the handling of privacy issues and the lack of transparency, natural justice and independent review mechanisms.

It is worth noting that the same criticisms were levelled at the government less than two weeks ago in relation to another identity system—the proposed access card—and similar criticisms have been made of the government for its anti-money-laundering legislation. I am particularly concerned that much of the important detail as to how this scheme will operate has been left to regulation—again, emulating the concerns of the Senate committee and, indeed, the previous speaker. The Democrats advocate that, wherever practicable and feasible, the scope and purpose of legislation should be clearly articulated and limited in primary legislation but not in secondary or delegated legislation.

In its submission to the Senate inquiry into the bill, the Australian and International Pilots Association stated that there is an increasing trend of utilising regulation-making powers to extend the scope and purpose of legislation. The Democrats agree with the sentiments of the Australian and International Pilots Associations. In an area as important and delicate as background security checking, there is a danger that a regulation-making power poses a risk that fundamental rights may be sidestepped without recourse to parliamentary debate.

I turn to the definitions within the bill. There is no definition of ‘criminal history’ in this legislation. It would be helpful if the relevant offences which would bar a person from being granted access to specified information or a specified place under this bill were provided for in this legislation. I note that the definition of ‘background check’ includes a security assessment of an individual. I am curious as to whether any background check, by virtue of this particular provision, would extend checks into any associations an applicant might have that would preclude the issue of clearance to a controlled or limited area. Such associations, I imagine, would include, for example, membership of a gang, having a spouse or a close relative who is involved in crime or having an address that is associated with criminal activity. So how far will this check extend? Will innocent households, for example, be caught up in this process?

More importantly, I would argue that, no matter what state they reside in, every Australian who has been convicted of a minor offence should have the right to have their criminal records forgotten in very clear and specific circumstances. Not all types of criminal offence will necessarily be relevant for background criminal checking, nor should a criminal offence necessarily bar a person from working in the aviation and maritime industries. Divulging records in relation to minor offences can shatter the newly found respectability of former offenders and may ruin their future and cause their friends and relatives to shun them. It is part of the recognised general principles of sentencing law that the public has an interest not only in punishing and deterring criminal behaviour but also in rehabilitating offenders and returning them to society as productive and law-abiding citizens. So how we handle such questions in relation to, for example, background checks on an employment application or a job interview is of real concern.

More importantly, the nature of criminal history information released through the AusCheck program is likely to vary depending on the legislative provisions in each state. AusCheck will be able to access information under three general release categories based on the Commonwealth spent conviction legislation and those states that have chosen to mirror the Commonwealth scheme. Categories include no exclusion, partial exclusion and full exclusion. On this basis, agencies can access information ranging from disclosable court outcomes only to a full criminal history. There are varying spent conviction schemes together with the differential information release policies that we are seeing across jurisdictions. Surely these will also have an impact on the type of information and the amount of information that can be released to agencies.

I think that as a matter of urgency the Commonwealth should be encouraging, presumably through the Standing Committee of Attorneys-General, moves to ensure that there is some kind of uniform, universal definition of criminal history and a uniform approach to the disclosure of criminal history information. The minister might want to give us an idea as to whether or not that is something that is on the government’s agenda. I think it is not only germane to this legislation but actually a fundamentally important principle. This is imperative in the information age, when courts grant mercy and leniency yet records are being placed online and effectively individuals are forever being resentenced every time they change jobs or apply for a particular job interview.

In the context of privacy concerns, as we all know, the federal Privacy Act has an exemption for employee records. It is particularly shameful that, while federal and state employees have privacy rights, those workers who happen to be in the private sector continue to be denied some fundamental privacy protections. As we in this place all know, an ALRC review is being conducted at the moment into the Privacy Act, which I am sure will expose a number of loopholes and areas that could be improved in relation to that light-touch regulatory framework that we have for privacy protection in Australia, particularly as it relates to the private sector. This bill demonstrates, for example, how that is problematic for certain workers but not for others.

In the context of AusCheck, the employee records exemption means that Australian employees and contractors in the aviation and maritime industries will have less privacy protection in employment matters. While arguably criminal record checks conducted in the pre-employment context may still be subject to the Privacy Act, it is not clear under this legislation whether this check will be conducted pre or post employment or where the result will end up. In situations where criminal record checks form part of the personnel files of current or former employees of the aviation and maritime industries, almost certainly, surely, their privacy will be exposed.

The real possibility exists that privacy protections afforded to sensitive criminal record information may indeed fall away. There is no requirement under the legislation for AusCheck to give prior notice to the person being checked of the purpose of that particular check or to give, for example, the usual disclosures to third parties or to give the scope of the check and the consequences for an individual of such a check. There is no requirement to indicate whether the applicant is entitled not to disclose convictions for old or minor offences such as summary or traffic offences, for example. Where pre-employment vetting is carried out, there should be an obligation on AusCheck to inform applicants at the time that applications are sought of the fact and the extent of the proposed check. This lets an applicant decide whether to proceed with their application. It is the ‘no surprises’ approach.

Nothing in the bill would guide AusCheck staff as to how to handle an adverse background check. In the same context, I wonder whether the scheme envisages notifying applicants’ employers of the outcome of a background check before the applicant has had an opportunity to make submissions to the secretary. The bill is silent on the complex relationship between AusCheck, an employer and an applicant. I certainly believe that the opportunity to review adverse data should come before or at least at the same time as the information is provided to an employer or any other decision maker, such as the secretary. The subject’s ability to identify problems before or at the same time as an adverse decision is reached is fundamentally fair, given the variance in state reporting requirements as well as the serious concerns about the completeness and accuracy of data reported to similar central federal criminal record repositories like CrimTrac. Some review right is particularly important given that employees generally do not have access to information about the security assessment that ASIO makes in relation to the person which will form part of the background check.

On the matter of CrimTrac, it is important to note that, in order to administer background checking in the aviation and maritime industries, it is necessary for AusCheck to become an accredited CrimTrac agency. I note that CrimTrac, in its submission to the Senate inquiry, said:

The ever increasing incidence in identity theft and fabrication within the community encourages and allows criminal behaviour to circumvent the checking process. The fundamental deficiency is the reliance on limited biodata, comprising name, date of birth and gender, as the sole mechanism for determining if the person the subject of the check is a “person of interest” and has a criminal record.

CrimTrac further states that it is taking a number of steps to address these deficiencies, including consideration of introducing an optional more stringent biometric check—fingerprints—effectively to eliminate the issue of ID fraud, and introducing a continuous monitoring capability based on fingerprints. As anyone in this chamber would know, the Australian Democrats, on a number of occasions, have expressed our concern over this kind of information or data gathering. Any move by government to collect the biometric information of its citizens is something we should be very wary of. As mentioned earlier, the sheer proliferation of criminal record checks will mean that at some time or another the government will be holding a rich source of very sensitive information about Australians. People in this place know just how hard I have fought to ensure that genetic privacy is protected in law. Of course, we need to go to the next step, which is ensuring that we prohibit discrimination on the basis of genetic information. But when we are talking about databases containing this kind of sensitive, personal data about citizens, we need to examine it very clearly.

At the very least, the only valid reason to maintain fingerprint submissions is to verify the accuracy of searches. Even this purpose should have a time limit for when searches must be verified. Presumably many of the searches will be a ‘no hit’—that is, a law-abiding citizen’s fingerprints are routed to federal criminal authorities for the purposes of a routine employment background check. Through AusCheck or CrimTrac it would be inappropriate for the government to incorporate fingerprints of law-abiding citizens into a background-checking process.

The Democrats strongly urge the department not to be influenced to retain fingerprints. A nationwide data file of fingerprints submitted by law-abiding citizens obviously raises serious privacy and due-process concerns. Under such a system, one arrested but never convicted could face loss of a long-time job. Sufficient procedures are already in place to allow employers to periodically review a worker’s background, including criminal records checks.

Some jobs obviously require employees to report an incident, but for the government to maintain a permanent file of submitted fingerprints raises the possibility that at some time those fingerprints will be used for a secondary purpose that has no bearing on the original purpose for which the fingerprints were originally submitted. Such use would violate basic privacy principles. I think it would take us into Big Brother territory, the likes of which the Australian people have yet to see. The strong criticism by the Australian community about having a photograph on the surface of a so-called access card should surely give the government an idea of the kind of concern with which it would be met if they proceeded along the lines of holding biometric data of the citizens of a country.

Finally, the Australian Democrats are concerned that the secretary of the Attorney-General’s Department can give directions to an applicant for a background check or to a person who is authorised to take action relating to matters connected with background information by virtue of the words ‘relating to matters connected with a background check’. It has to be admitted that this is a very broad directive power. At the very least, such directions should relate specifically or directly to those matters connected to a background check pursuant to the regulation.

This process involves an adverse effect on privacy. It may result in lasting damage to the reputations, livelihood and relationships of individuals—damage which may be completely disproportionate to the seriousness of their prior convictions or even their unrecorded findings of guilt and disproportionate to the risk that they may pose to our airports, ports and secure zones. It is important that there should be advance warning, a narrow range of disclosable criminal offences, clear definitions and an opportunity to explain and review rights, and the government should not seek to overreach in this area.

The Democrats have broad-ranging concerns. Many of those specific concerns were addressed in the Senate committee. We will support those amendments before the Senate that seek to implement some of the recommendations proposed by the Senate committee. Again, we will be supporting one of the two amendments proposed by the Labor Party in relation to this legislation.