David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Hansard source

I thank senators for their contributions to the second reading debate and commence my speech in reply by noting that the opposition and the Democrats support the AusCheck Bill 2006, notwithstanding that they require some amendments. In late 2005 the government agreed to establish a centralised background-checking agency as a division of the Attorney-General’s Department. The division referred to as AusCheck is required to commence operations on 1 July this year. It will be responsible for coordinating background criminal and security checks on people who, because of their work requirements, need to hold an aviation or maritime security identification card. The bill we have before us today gives AusCheck the authority to conduct background checks and maintain a database of cardholders; to collect, use and disclose information; and to recover costs for conducting background checks.

On 8 February 2007 the Senate referred provisions of the bill to the Senate Standing Committee on Legal and Constitutional Affairs. In its report of 14 March the Senate committee made nine recommendations for amendments. It also recommended that subject to those recommendations the Senate pass the bill. The Senate committee acknowledged the general in-principle support for the bill expressed by the majority of submissions and witnesses. However, it expressed concern about the breadth of the bill’s regulation-making power, privacy issues relating to the functions described in the bill and accountability mechanisms set out in the bill.

As a result of these recommendations and further advice the department obtained from the Australian Government Solicitor, I will be moving government amendments to the bill during the committee stage. The amendments will give effect to those Senate recommendations that require legislative amendment—a number of recommendations dealing with retention periods for information, deletion of irrelevant information and further use of information lawfully disclosed to third parties; and matters presently provided for in the department’s records disposal authority approved by the National Archives of Australia and in the Privacy Act 1988.

In particular, information privacy principle 10 restricts the use of personal information to the purpose for which it was collected. In its report the Senate committee accepted the Attorney-General’s Department’s assurances that it is obliged to act in accordance with the Privacy Act. So, while the government agrees with the intention of the recommendations, we do not consider it necessary to make amendments that replicate provisions contained in the other relevant legislation. The committee also recommended that AusCheck provide periodic statements to parliament. AusCheck is a division in the Attorney-General’s Department and the department is already required to provide annual reports in respect of all of its functions. It is therefore unnecessary to amend the legislation to respond to this recommendation.

The majority of the Senate recommendations will be implemented through the government amendments I intend to move tonight or tomorrow. In effect, these amendments restrict AusCheck to coordinating the current background-checking elements of the aviation and maritime security identification card schemes. In addition, the new background schemes, such as checks on people who are responsible for the care of the elderly or of children, will need to be made by amendment to the act and not by regulations as originally set out in the bill.

The amendments also tighten provisions relating to AusCheck’s ability to retain and share personal information. The Senate committee recommended that access to the AusCheck database be confined to three listed agencies: ASIO, the Australian Federal Police and the Australian Crime Commission. There is no question that what is intended is that law enforcement and security agencies can access the database for legitimate law enforcement and security purposes. However, it would be difficult to list the agencies that would have a lawful entitlement to access the information, because the act would have to be amended each time a new organisation is created or an existing agency changes its name or administrative structure. This is a problem we have encountered in relation to other legislation where a list approach has been adopted.

As an alternative, the government will move amendments to more closely specify the purposes for which the information in the database can be used in relation to criminal and security intelligence rather than listing specific agencies authorised to have access to the information for those purposes. This amendment gives effect to the intent of the Senate committee recommendation—an intent which the government agrees with.

The government will also move amendments designed to clarify the original intention of the bill and to remove any doubts about the way in which AusCheck will operate. The definition of ‘personal information’ has been expanded to clarify the original intention and expected operation of the scheme. Personal information includes the card number of the ASIC or MSIC issued to an individual and the photograph of the individual that appears on the card. It would be of little value to issue MSICs and ASICs if providers could not verify whether a card had been issued, to whom and the currency of that card.

Provision has also been made for the collection of identity information for verification purposes. This will commence when a suitable identity verification system—namely, the document verification system, DVS—becomes available. AusCheck has advised industry not to collect identity information for the purposes of the AusCheck scheme until such time that AusCheck is in a position to make use of the information in accordance with the information privacy principles.

A final amendment to clause 17 of the bill is proposed to ensure the constitutional validity of clause 17, which authorises the use by the Commonwealth of the name of AusCheck in providing background checks under the provisions of the bill. The provision gives legislative authority for the name to be used in this context, regardless of any other usage of the name. However, there is a small chance that a person may have some property in the name that would be affected by the Commonwealth gaining authority to also use it. Such a situation could result in the technical acquisition of property. This amendment is included as a precaution to ensure that that provision does not fail.

I would like to thank the Senate Legal and Constitutional Affairs Committee for their considered inquiry. I look forward to outlining the government’s implementation of the committee’s recommendations in the Committee of the Whole stage. Before I complete my summary, I just want to turn briefly, as did Senator Ludwig, to some of the matters contained in the opposition’s second reading amendment.

With respect to the complaints about the flawed rollout of the ASICs and references to lost ASICs, the commencement of the AusCheck and its centralisation of background checking should improve the ability to monitor the cards. It is of concern when cards are unaccounted for, but the number of non-returned cards compares favourably with the non-return rate for other identity documents—by way of example, drivers licences and passports. Of the 1.2 million Australian passports issued each year, some 25,000 are reported lost or stolen, representing about 2.1 per cent of all Australian passports issued annually. The comparison with identity cards—ASICs—is a favourable one: about 1.5 per cent are reported lost or stolen.

We are working with industry—and this is where the government is light-years ahead of the opposition; we work with industry; we do not mandate things for industry to be dragooned into adhering to legislation—to implement best practice measures to manage issues relating to lost, stolen or expired cards. Industry members have advised the government that they have established practices to do so. They include confirming the identity of the holder with a photograph at manned access points; disabling any electronic access rights that may have been included on the ASIC as soon as it has been reported lost or stolen; reporting the loss of a card to police; routinely auditing irregular card use at points not authorised for the holder; and routinely reviewing ASICs with unusual characteristics, such as those that have not been used for some time or those with an unusual expiry date.

A further complaint in the opposition amendment is that there have been delays in rolling out the maritime security identification card scheme. In relation to these cards, the rollout began on 1 January 2007 and commenced very smoothly. I say that again for the benefit of senators on the opposition side: it commenced very smoothly. The first round of temporary cards was issued from the end of December 2006 to those people who applied for them before 27 October 2006. These temporary cards expired on 31 January 2007. The government has been actively working with industry to urge those who had not applied to take action and to do so at their earliest convenience. The government and the issuing bodies are continuing to process applications as promptly as possible. However, some delays may occur depending upon individual circumstances—particularly, for instance, if an applicant has a criminal history. In that case we would hope that there would be some delay. Obviously processing can take longer in those circumstances.

I will turn now to the complaint about foreign ship security. In relation to those foreign ships, as I have mentioned, there is pre-entry reporting. Every ship seeking entry to Australia is subject to a comprehensive security assessment, regardless of the flag it flies. This includes every ship carrying ammonium nitrate to an Australian port—obviously a very important consideration. The security risk assessment takes into account all relevant information about the ship, including the nature of the ship’s cargo and its operations. This information is collected from mandatory ship and crew reports, which are required within certain time frames, depending upon the length of the voyage. Any ship failing to comply with pre-entry reporting requirements or identified as posing an unacceptable risk can be refused entry into Australia or into an Australian port. Any ship so identified as posing a security risk, whether because of crew, cargo or other factors, would not be allowed entry into Australia.

Lastly I want to talk about an old chestnut from the opposition—and that, of course, is the department of homeland security, which I think is set out in the second reading amendment clause (d)(iv). There the opposition seeks to ‘establish a Department of Homeland Security to better coordinate security in Australia’. Like most opposition proposals when it comes to national security, it is moribund and bound in bureaucracy. We only have to look at what happened with respect to the coastguard, where we had a sniper strapped to the side of a helicopter to shoot out the controls of a fishing boat.