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

by leave—I move government amendments (2), (3) and (8) on sheet PJ361:

(2)    Clause 4, page 2 (line 8), before “In”, insert “(1)”.

(3)    Clause 4, page 3 (after line 4), at the end of the clause, add:

        (2)    To avoid doubt:

personal information, in relation to an individual, includes the following:

             (a)    the number of an aviation security identification card or a maritime security identification card issued to the individual;

             (b)    a photograph of the individual that appears on an aviation security identification card or a maritime security identification card issued to the individual.

(8)    Clause 13, page 9 (line 9), after “purposes”, insert “directly”.

These are amendments to clause 4 and clause 13. I table the supplementary explanatory memorandum relating to the government amendments to be moved to this bill. The memorandum was circulated in the chamber on 27 March 2007.

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

I will not speak at length in respect of these government amendments. They deal with personal information, I understand. I did want to take the opportunity to talk about some of the matters that the minister raised in his speech in reply to the second reading debate. The minister commented that, when you look at the overall scheme provided for these identification cards and the way that the information will be kept, it is entirely appropriate, and there are many other schemes where cards are unaccounted for. But these types of identification cards are critical and they are tracked. It is critical that both ASICs and MSICs are accounted for with a very high degree of accuracy. Given that they are also subject to both ASIO and AFP checks, they have to be put into a different category where there has to be proper handling and accountability all the way through to ensure the cards do not go astray.

This bill is an opportunity for Labor to point out to the government that it is not really a response to the issue to say that, in comparison to others, this scheme is better. It is like saying, ‘I have done a wrong, but yours is worse than mine.’ In all instances, cards should be accounted for. It is disappointing that they were not accounted for appropriately and properly. There is, as I think the minister pointed out, broad agreement between the parties in supporting the bill—at least the Democrats and the opposition, and the Greens, I think, too, or am I wrong about that?

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

No; you’re right.

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

I am right about that. That is because there is a need for appropriate legislation to be put in place. It is necessary that there be an improvement to the scheme to ensure proper handling of these types of cards, because, when the scheme is up and running in a short while and becomes effective, it will ensure improved security. That is why Labor fundamentally agree with the legislation: it is about improving the scheme.

What we have been critical of and will continue to be critical of is the government’s tardiness in tidying up some of the loose ends—its failure to do so at an earlier stage—and, overall, its slowness to act. It is difficult, I think, for the government to escape that criticism. My view is that the government should take it on the chin and get on with the job, quite frankly.

I had the opportunity to participate in the committee inquiry into this bill, and what struck me was that there was an overall desire to improve the scheme. By the range of issues that the government has picked up in its amendments (2), (3) and (8) on sheet PJ361, dealing with personal information, there is also a desire to improve the operation of the bill to ensure that it does handle things in an appropriate way.

There is a question that arises, though, where the government says that the information will be provided periodically. I know this might be out of order, but perhaps we can get some of the questions dealt with early. The point of it all is that, in our foreshadowed recommendation (9), the committee looked at the commitment to ‘provide periodic reports’. What I fail to understand is how AusCheck will ensure transparency and accountability—how it will ensure that, in meeting the necessary privacy principles, it will be able to provide periodic reports; where those reports will go; how they will be stored; how they will be able to be accessed by the opposition or other parties; whether they will be available through freedom of information legislation. We are not interested in the individual nature of those records, but, overall, we want to ensure that there are appropriate checks and that, in fact, these things do not go missing—that information is stored appropriately. We are interested in the types and range of information.

It is a framework bill. In the minister’s second reading contribution he talked about the difficulty with the number of departments that might access the information and with including those agencies in a bill. He indicated that he might deal with it by regulation, in a way whereby we can see which agencies can access it and which agencies can enter a memorandum of understanding, or that the information might be collected and held in such a way that there is reasonable opportunity for the opposition or other interested parties, not busybodies, to access it; that it is done in a way to ensure that information is kept appropriately and is available. I will pause at that point and give the minister an opportunity to respond.

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

I thank senators for their support for this amendment. I anticipate that Senator Ludwig has jumped forward to deal with the opposition amendment. I simply say, in the hope of expediency in dealing with that amendment, that, as a division of the Attorney-General’s Department, AusCheck is required to publish information on its performance in the Attorney-General’s Department annual report and the portfolio budget statements. It is subject to scrutiny in the annual report, as a published document, and portfolio budget statements are open to the three estimates sittings every year. In this way, the oversight function and its performance can be monitored very extensively by the parliament. This information will include application numbers and processing times, as well as any significant issues that have arisen in the delivery of background checking services.

I am happy to indicate that the Attorney-General’s Department annual report will include information of the type listed in the opposition amendments to the extent consistent with the privacy constraint. I trust that goes some way towards satisfying the issues raised by Senator Ludwig, to some extent in anticipation of the principal area of concern of the opposition.

Question agreed to.

by leave—I move government amendments (4) and (5) on sheet PJ361 together:

(4)    Clause 5, page 3 (line 14), omit paragraph (d), substitute:

             (d)    verification checks of documents relating to the identity of the individual.

(5)    Clause 8, page 4 (line 4) to page 6 (line 2), omit the clause, substitute:

8  Establishment of AusCheck scheme

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

             (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.

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

I will not go into any great detail. The government has done well in examining the Senate committee report. I was perhaps remiss. I do appreciate the effort of the government in looking at the report, taking the recommendations into account and reflecting them in the legislation in such a quick way. I should not let that pass, because I have been disappointed with the government many times before. When the Senate Legal and Constitutional Affairs Committee has made substantive recommendations, they have not been, in my view, properly scrutinised or considered in any detailed way, nor moved by the government. They were left to the opposition to move, debate and argue. In this instance, I do not have to do that. The government has seen fit to pick up the recommendations. I thank the government for that. I sit on that committee, and it is appreciated by the committee that these recommendations have been examined and picked up by the government.

If there is some movement, it reflects upon the opposition to not stand by all the other recommendations. We consider that, on balance, there has been a significant shift by the government to improve the legislation, although we do not think they have gone far enough. The minister is correct in saying that we do support the bill and its ability to improve the ability to check more generally in this area.

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

I thank the chamber.

Question agreed to.

John Watson (Tasmania, Liberal Party) Share this | Link to this | Hansard source

The government opposes clause 10 in the following terms:

(7)    Clause 10, page 7 (lines 1 to 16), to be opposed.

The question before the chamber is that clause 10 stand as printed.

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

I just wish to indicate support for the legislation, which in fact means that we will be voting that the clause stands as printed. In fact, we will be supporting the amendments. We thank the government for diligently examining the issues that were raised in the Senate Legal and Constitutional Affairs Committee report.

Question negatived.

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

by leave—I move amendments (6), (9), (10) and (11) on sheet PJ361 together:

(6)    Clause 9, page 6 (after line 23), at the end of subclause (1), add:

            ; (i)    matters relating to the establishment and provision of an online verification service that will enable verification:

                   (i)    that an aviation security identification card or a maritime security identification card has been issued to a particular individual and is in effect at a particular time; or

                  (ii)    that an individual who is in possession of an aviation security identification card or a maritime security identification card is the person to whom the card was issued.

(9)    Clause 13, page 9 (line 15), at the end of the clause, add:

      ; or (c)    the collection, use or disclosure is for the purposes of providing an online verification service that will enable verification:

                   (i)    that an aviation security identification card or a maritime security identification card has been issued to a particular individual and is in effect at a particular time; or

                  (ii)    that an individual who is in possession of an aviation security identification card or a maritime security identification card is the person to whom the card was issued.

(10)  Clause 14, page 9 (lines 27 to 28), omit subparagraph (2)(b)(iii), substitute:

                 (iii)    the collection, correlation, analysis or dissemination of criminal intelligence or security intelligence by the Commonwealth, or by a Commonwealth authority that has functions relating to law enforcement or national security, for purposes relating to law enforcement or national security.

(11)  Clause 14, page 9 (after line 28), after subclause (2), insert:

     (2A)    AusCheck scheme personal information about an individual may be used or disclosed for the purpose of verifying:

             (a)    that an aviation security identification card or a maritime security identification card has been issued to a particular individual and is in effect at a particular time; or

             (b)    that an individual who is in possession of such an identification card is the person to whom the card was issued.

      (2B)    AusCheck scheme personal information used or disclosed for the purpose mentioned in subsection (2A) must be limited to personal information of a kind directly necessary for that purpose, and must only be used or disclosed to the extent necessary for that purpose.

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

I only wish to indicate our support for these amendments. It does still concern me that the government could have spent a little more time examining the bill prior to bringing it before parliament. Ultimately, the committee is not supposed to be the catch-all if the government fails, as we tried to explain once before. It is probably worth reminding the minister, now that he has moved on to being a minister rather than a committee member: the role of the committee is not a catch-all, as a final check to ensure that the government has dotted its i’s and crossed its t’s; it should have done that before bringing the bill to the Senate Legal and Constitutional Affairs Committee. The committee’s role is much broader than that. One part of its role is to be a check on the executive—to examine bills and to be a house of review. That is the real role, and the committee process gives an opportunity to participants to make submissions and raise substantive policy issues about the bill, rather than to try to improve it in a technical sense. However, the Senate Legal and Constitutional Affairs Committee finds itself in that role too often, and I would like to encourage the minister, in bringing forward new bills that he has control over, to look more closely at dotting the i’s and crossing the t’s.

Question agreed to.

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

by leave—I move amendments (12) and (13) on sheet PJ361 together:

(12)  Clause 17, page 14 (line 5), before “The”, insert “(1)”.

(13)  Clause 17, page 14 (after line 6), at the end of the clause, add:

        (2)    If the operation of this section would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.

        (3)    If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

        (4)    In this section:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

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

This seems to be one of those clauses which should have been put in right from the beginning and it is an example of what I mentioned before—but I will not labour the point, so to speak. We support the amendment. We think it does help in the scheme of how this bill will operate.

Question agreed to.

I move opposition amendment (1) on sheet 5225:

(1)    Page 14 (after line 6), after clause 17, insert:

17A  Periodic reporting

        (1)    The Secretary must before the end of June and November in each year, give to the Minister a written report on the operation of AusCheck which includes the following specific details:

             (a)    the number and type of background checks conducted by AusCheck;

             (b)    the average time taken to conduct background checks;

             (c)    the specific provision(s) in legislation under which background checks have been conducted;

             (d)    the number of individuals who have received adverse background checks and the basis for those adverse assessments; and

             (e)    the agencies to which information obtained by AusCheck has been shared and for what purposes.

        (2)    The Minister must cause a copy of the report provided to the Minister under subsection (1) to be tabled in each House of the Parliament within 5 sitting days of that House after the Minster receives the report.

I know that in the summary during the debate on the second reading the minister did address this issue. He also did it in committee as well. I will belabour the point. It is, I think, more important for the reporting to be done in such a way that a lot of this material is provided to the relevant committee, not only at estimates but also through the parliamentary process. It can be envisaged that within the Attorney-General’s Department they could provide a separate report about the operation of this scheme. It is within their purview. It is possible. It is done in other instruments which fall within the control or within the administrative orders of the Attorney-General’s Department.

Labor will insist on this amendment—we will not divide on it but we do ask you to reconsider it. If you need the time, then, of course, this matter will come back. There is an opportunity to look at it again, should this legislation need further amending down the track and we would ask you to at least not rule it out completely.

What is important to Labor is not the information contained within it specifically but the general thrust of the amendment. That is, there is a desire to have information provided to the public, through parliament, about the operation of this scheme. It is an important scheme. We think that the information as to how that scheme will operate should be collated by the department and provided through parliament to the public. It will hold sensitive information of a personal nature about people. We accept that privacy principles will apply and that will be maintained. We do think, though, that the public have a greater need to understand how that information will be collected and used and that the public will have that scrutiny through such a report to parliament. Therefore we urge the government to accept amendment (1), clause 17A, relating to periodic reporting.

Question negatived.

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

I move amendment (1) on sheet PJ361, to insert definitions:

(1)    Clause 4, page 2 (line 7) to page 3 (line 4), insert:

aviation security identification card means an identification card issued under the Aviation Transport Security Act 2004 or regulations under that Act.

Commonwealth authority means a body corporate established for a public purpose by or under a law of the Commonwealth.

maritime security identification card means an identification card issued under the Maritime Transport and Offshore Facilities Security Act 2003 or regulations under that Act.

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

I indicate our support for this government amendment. Perhaps the minister could reflect on the type of amendment that is being made by the government here, where it is inserting definitions for ‘aviation security identification card’, ‘Commonwealth authority’ and ‘maritime security identification card’. I think it makes the point that I have been perhaps belabouring through the evening: that the government had not turned its mind properly to the legislation to ensure fundamental things like definitions were included within the legislation. And they are now finding that they have to include them to make sense of how the legislation will work.

That should not be a matter we are addressing now. That should have been addressed very early on in the legislative drafting stage with the checking of the bill by the department. Those issues should have been picked up long before the bill went to the Senate Legal and Constitutional Affairs Committee. I can only express disappointment that the government is doing it on the run. It should have been more diligent in ensuring these matters were dealt with.

This will be the last amendment for the evening and the bill will then gain support and pass with the government’s amendments. I will conclude by saying that the Senate Standing Committee on Legal and Constitutional Affairs did expose many of the shortcomings of this bill. The government has taken the opportunity to accept the recommendations of the committee and improve the bill’s overall operation. I thank the Senate.

Question agreed to.

Bill, as amended, agreed to.

Bill reported with amendments; report adopted.