Michaelia Cash (WA, Liberal Party, Minister for Employment, Skills, Small and Family Business) Share this | Link to this | Hansard source

I table a supplementary explanatory memorandum relating to the government amendments moved to this bill. By leave—I move government amendments (1) to (7) on sheet SG103:

(1) Schedule 1, page 3 (before line 4), before item 1, insert:

1A Section 9

Insert:

test weapon means a weapon of a kind that is a replica or an imitation of another weapon.

[test weapons]

(2) Schedule 1, item 2, page 3 (line 9), omit "weapon", substitute "test weapon".

[test weapons]

(3) Schedule 1, item 2, page 3 (after line 19), at the end of paragraph 79(2) (h), add:

Note: An aviation security inspector must ensure that the exercise of the power under paragraph (h) does not seriously endanger the health or safety of any person, or the inspector will not be immune from civil or criminal liability (see subsection (9)).

[restrictions on exercise of power and immunity]

(4) Schedule 1, item 12, page 5 (line 9), omit "weapon", substitute "test weapon".

[test weapons]

(5) Schedule 1, item 12, page 5 (after line 14), at the end of paragraph 80(2) (f), add:

Note: An aviation security inspector must ensure that the exercise of the power under paragraph (f) does not seriously endanger the health or safety of any person, or the inspector will not be immune from civil or criminal liability (see subsection (7)).

[restrictions on exercise of power and immunity]

(6) Schedule 2, item 8, page 9 (after line 20), after section 94C, insert:

94D Report on number of exemptions

The annual report prepared by the Secretary and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 for a period must include the number of exemptions given by the Secretary under subsection 94B(1) in that period.

[reporting on exemptions]

(7) Schedule 2, item 18, page 12 (after line 13), after section 165C, insert:

165D Report on number of exemptions

The annual report prepared by the Secretary and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 for a period must include the number of exemptions given by the Secretary under subsection 165B(1) in that period.

[reporting on exemptions]

These amendments will make it clear that test pieces used by aviation security inspectors must be inert and that in the performance of their duties aviation security inspectors must not endanger the health or safety of the public. The amendments that have been moved by the government will also insert a requirement that the number of exemptions granted by the Secretary of the Department of Home Affairs in relation to screener training and accreditation be published in that department's annual report.

As I said, this bill was scrutinised by the Scrutiny of Bills Committee. The Scrutiny of Bills Committee made some recommendations. In relation to that advice these are the relatively minor but important amendments that the government is moving to the bill.

Question agreed to.

Louise Pratt (WA, Australian Labor Party, Shadow Assistant Minister for Manufacturing) Share this | Link to this | Hansard source

Tonight, Labor would like to note the Greens amendments to improve transparent reporting that will be before the chamber. Labor very much agrees and has asserted in this debate that transparency is critically important. In our conversations with the government, we have been assured by the government that officials will accurately and transparently answer questions in relation to exemptions granted by the Secretary of the Department of Home Affairs during Senate estimates, and these are matters that I touched on in my second reading speech. So can I ask the minister, please, if she can outline why estimates, in this case, is the appropriate forum to raise these matters?

Michaelia Cash (WA, Liberal Party, Minister for Employment, Skills, Small and Family Business) Share this | Link to this | Hansard source

Senator Pratt, in response to the questions that you have raised—which, I understand, are in relation to the amendments that will be moved by the Australian Greens tonight—the government amendments to the bill, I am instructed, include a requirement for the number of exemptions given to classes of screening officers issued by the secretary to be reported in the department's annual report. Reporting the number of exemptions given by the secretary is appropriate for the annual report. The additional information that would be required would require a level of detail to be included in the annual report that is not appropriate. The additional information being requested may be sensitive in nature and indicate a situation that may be subject to exploitation by persons intent on causing harm to the aviation or maritime industry. Should senators require the additional information proposed in the amendments, I am instructed that you are correct; senators will have the opportunity to ask the department during estimates hearings throughout the year, but we will obviously be opposing what the Greens will put forward.

Louise Pratt (WA, Australian Labor Party, Shadow Assistant Minister for Manufacturing) Share this | Link to this | Hansard source

Thank you for your response that outlines that this information will be reported in part in the annual report. In the context of senators being able to ask questions about that report in Senate estimates, can I ask the minister to elaborate on the nature of the information that will be made available? For example, will officials report the length of time that exemptions are applied to screening officers?

Michaelia Cash (WA, Liberal Party, Minister for Employment, Skills, Small and Family Business) Share this | Link to this | Hansard source

I'm instructed that we will be reporting the number of exemptions that are granted by the secretary each year in the department's annual report. In relation to the questions that senators may have at estimates, those senators may ask those questions at estimates, and an answer may or may not be given depending on what that question is. I can't pre-empt what those questions are going to be.

Louise Pratt (WA, Australian Labor Party, Shadow Assistant Minister for Manufacturing) Share this | Link to this | Hansard source

In that context, given the secretary does have the ability to exempt screening officials from training, I'm sure the minister would agree it is appropriate—and it shouldn't go to the detail of the kind of national security matters that you're highlighting—that the public understands how long an exemption is applied and to whom it's been applied to and perhaps who exercised that exemption. For example, you could characterise whether each exemption has to apply to an individual, or it might be a whole class of people that carry that exemption over a particular period of time. So can you outline for the Senate the kind of information that we should reasonably be able to ask? For example, we would want to know that it's not the same exemption being applied over and over again.

Michaelia Cash (WA, Liberal Party, Minister for Employment, Skills, Small and Family Business) Share this | Link to this | Hansard source

Again, as I've stated, what will be reported in the department's annual report is the number of exemptions given to classes of screening officers. Again, I can't pre-empt what information a senator may elicit from the secretary at an estimates hearing, but a senator can certainly put a question to the secretary. If the secretary is able to answer that question, I'm sure that he would. And, if not, he would state the grounds upon which he is unable to provide that information at that point in time.

Louise Pratt (WA, Australian Labor Party, Shadow Assistant Minister for Manufacturing) Share this | Link to this | Hansard source

Thank you, Minister. Now, we have had in the opposition assurances that officials will accurately and transparently answer questions in relation to exemptions. And now the minister seems to be indicating that it is really up to the secretary the extent to which they may choose to answer those questions. But in negotiations the government has asserted that the secretary will be ready and willing to answer those questions. So I'm very keen to hear from the government that you will be in a position to answer questions such as how long the exemptions were in place and not just the class of people but the number of officers to whom that exemption applied as well as whether it's being applied in the same circumstances over and over again.

Michaelia Cash (WA, Liberal Party, Minister for Employment, Skills, Small and Family Business) Share this | Link to this | Hansard source

Again, that is not what I said. I can't pre-empt the questions that a senator may ask. To the extent that the secretary is able to answer a question—other than, say, relying on a ground of national security or a ground that's set out—the questions you have just put forward would be reasonable.

Louise Pratt (WA, Australian Labor Party, Shadow Assistant Minister for Manufacturing) Share this | Link to this | Hansard source

Thank you for acknowledging that they would be reasonable questions, because that does indicate that for the kinds of questions we have in mind we will be able to access the answers. Could the minister outline the preparation that officials will complete before each estimates to ensure that the secretary and other witnesses are able to answer such questions. For example, the annual report highlights the number of exemptions and the classes of people. But clearly we're seeking now an undertaking from the government that the kind of information that I've asked about will be available.

Michaelia Cash (WA, Liberal Party, Minister for Employment, Skills, Small and Family Business) Share this | Link to this | Hansard source

The normal preparation, I assume, would apply. I can't speak on behalf of the secretary. But certainly you have been around for a very long time and you would be aware that there is a provision whereby senators who have questions can provide those questions to the relevant department in advance in anticipation of ensuring that information is readily at hand on the day of the actual estimates hearing.

Louise Pratt (WA, Australian Labor Party, Shadow Assistant Minister for Manufacturing) Share this | Link to this | Hansard source

So, in that sense, you've given us assurance that we will have the opportunity to ask the department to prepare information on questions along those lines before estimates. In that context, what information, if any, will not be provided during estimates?

Michaelia Cash (WA, Liberal Party, Minister for Employment, Skills, Small and Family Business) Share this | Link to this | Hansard source

Again, we're dealing in hypotheticals here, because I really don't know the nature of questions that may be asked at estimates. But certainly in relation to any estimates hearings there are grounds an official can rely on in the event that they believe they are unable to give an answer. That can then be challenged by senators, and there is then a procedure that, as you would be aware, the senators are able to go down. But certainly in this respect one would believe that it would be national security.

Louise Pratt (WA, Australian Labor Party, Shadow Assistant Minister for Manufacturing) Share this | Link to this | Hansard source

Thank you, Minister. In that context, you are therefore assuring us that we should be able to get an answer to questions like whether an exemption is repeatedly applied if the same circumstances are envisaged for each exemption. Clearly that wouldn't go necessarily to the security information behind that. We should be at liberty to know at least that the government is not relying on an exemption in order to continue to have untrained personnel doing screening. You would be able to be clear in an answer that each exemption is used on a unique and novel basis, so that we can be clear that the exemptions aren't being renewed again and again.

Michaelia Cash (WA, Liberal Party, Minister for Employment, Skills, Small and Family Business) Share this | Link to this | Hansard source

I've just been asked to clarify that it is the secretary, not the government, that will be issuing the exemptions. I would also say, again, Senator Pratt, that today is not estimates. I cannot anticipate the types of questions that may be put by different senators at the estimates hearing, but the normal rules of estimates would apply.

Rex Patrick (SA, Centre Alliance) Share this | Link to this | Hansard source

On a similar line of questioning, Minister Cash, I heard in your statement that it wouldn't be appropriate for this information to be in the annual report but that it would be appropriate to ask the questions at estimates. I'm just trying to understand what the difference is. In effect, the legislation just becomes a question on notice for which the answer must be put in an annual report. I'm struggling to find the difference between the two.

Michaelia Cash (WA, Liberal Party, Minister for Employment, Skills, Small and Family Business) Share this | Link to this | Hansard source

Senator Patrick, I'll give you an example that would clarify the situation for you. As I've already stated to Senator Pratt, the additional level of information that we're referring to would require a level of data to be included in the annual report that is not appropriate. The additional information being requested may be sensitive in nature and indicate a situation that may be subject to exploitation by persons intent on causing harm to the aviation or maritime industry. For example, an exemption may be given to a class of screening officers from a particular airport. Publication of this information may expose the airport or aircraft departing from that airport to undue risk. In order to reduce the risk of information of this type being exploited, we would obviously be unable to support the amendment that was being put forward by the Australian Greens, as has been referred to by Senator Pratt.

Rex Patrick (SA, Centre Alliance) Share this | Link to this | Hansard source

In relation to the questions that are in the Greens amendment, which of those would cause a problem in respect of the sorts of concerns that you just raised? The number of exemptions granted—I understand that you indicate that that is quite an acceptable question. In relation to (b), (c) and (d), for example, are they questions likely to give rise to a public interest immunity claim?

Michaelia Cash (WA, Liberal Party, Minister for Employment, Skills, Small and Family Business) Share this | Link to this | Hansard source

Again, Senator Patrick, the position of the government is clear. The government amendments to the bill include a requirement for the number of exemptions given to classes of screening officers issued by the secretary to be reported in the department's annual report. It is the opinion of the government that reporting the number of exemptions given by the secretary is appropriate for the annual report. But it is the position of the government that the additional information, as required by the Australian Greens, would require a level of detail to be included in the annual report that is not appropriate.

Rex Patrick (SA, Centre Alliance) Share this | Link to this | Hansard source

I'm just trying to understand: if these questions were asked at estimates, would public interest immunity be claimed by the minister?

Michaelia Cash (WA, Liberal Party, Minister for Employment, Skills, Small and Family Business) Share this | Link to this | Hansard source

Again, Senator Patrick, as I've said to Senator Pratt, I am unable to anticipate the questions that may be asked by senators to the departmental secretary or the minister at estimates. However, to the extent that those questions are in order and the information is able to be provided in the normal course of events, I am instructed that, subject to the determination of the secretary, that information would be provided. But, as you would know, Senator Patrick, there is a provision an official at the table can rely on if they do not wish to provide that information, and there is certainly a process that senators are able to undertake, in the event that they do not accept the ground upon which the official has relied, all the way to a vote on the floor of the Senate.

Rex Patrick (SA, Centre Alliance) Share this | Link to this | Hansard source

I'm not actually talking about a hypothetical question. I'll just run through these one at a time. At estimates, if a senator, such as myself, asked a question of an official or indeed the minister representing about the number of screening officers in the class of screening officers covered by each exemption, would I get an answer to that question, or would the minister advance public interest immunity?

Michaelia Cash (WA, Liberal Party, Minister for Employment, Skills, Small and Family Business) Share this | Link to this | Hansard source

I am instructed that the number would be fine but any further information after that—at this point in time I can't give you the answer but I am instructed that the number would be fine.

Rex Patrick (SA, Centre Alliance) Share this | Link to this | Hansard source

So going to item (c) if I were to ask the number of requirements from which a class of screening officers is exempt under each exemption, would I get an answer or would I get a public interest immunity?

Michaelia Cash (WA, Liberal Party, Minister for Employment, Skills, Small and Family Business) Share this | Link to this | Hansard source

Again, I am not the secretary or the minister at the table. You will be able to put the question and, if it is reasonable to give the answer, I think the government has made its position clear: the information would be provided. In the event that it is not reasonable there is a process that can be followed by both the official at the table and the relevant senators asking the question—all the way to bringing the issue to the floor of the Senate for determination.

Rex Patrick (SA, Centre Alliance) Share this | Link to this | Hansard source

Thank you. Of course I understand that process quite well. Unfortunately, this is the sort of thing at estimates where we get a relatively simple question—and I have spelt out this question in detail—and I end up getting an answer that seeks to avoid actually answering the question. That is exactly the sort of treatment we get at estimates. I am in a process now—in fact, there is a motion that will come before the Senate in the next day or so—where officials refused to provide a valuation that had been obtained on a water licence, a valuation that itself stated that after 90 days it was no longer valid and gave cautions about relying on it after that time, and was denied to the Senate on order for production and questions on notice, and yet a citizen can get it under FOI.

So you have a track record—or the government has a track record—of being very cavalier in the way public interest immunities are advanced, and the Senate is actually not very good at standing up for itself. I say that regretfully. I refer you to my first speech when I talked about the difficulties or the failures of the Senate to enforce these sorts of orders. We have a shameful situation where a citizen can get an answer under FOI but a senator cannot—in fact, an order of the Senate does not produce that answer. So that's my concern.

I'm actually genuinely trying to work out whether or not to support the Greens motion. I would have thought that, having looked at these—and you've stated, Minister, that you don't want to support this particular amendment. I'm trying to understand where the offence lies or where the difficulty lies in these very specific questions. They're not hypotheticals. I simply want to know whether or not the officials would answer. I point out very specifically that it is not for an official to deny the answer to a question; only a minister can do that. You are representing the minister at this point in time in this chamber.

Louise Pratt (WA, Australian Labor Party, Shadow Assistant Minister for Manufacturing) Share this | Link to this | Hansard source

I note that the government has undertaken to accurately and transparently answer during estimates questions in relation to exemptions granted by the secretary. I look forward to senators being able to follow that up. As flagged in my second reading debate remarks, Labor have indicated that we want to move amendments so that certain powers are not to be exercised unless regulations prescribing requirements for conducting tests are already in force. I therefore seek leave to move amendments (1), (2) and (3) on sheet 8901 together.

Leave granted.

I move:

(1) Schedule 1, page 3 (after line 19), after item 2, insert:

2A After subsection 79(2)

Insert:

(2A) However, a power under paragraph (2)(h) may not be exercised unless regulations prescribing requirements for conducting tests of security systems have been made for the purposes of that paragraph and are in force.

(2) Schedule 1, item 12, page 5 (line 13), omit "any", substitute "the".

(3) Schedule 1, page 5 (after line 14), after item 12, insert:

12A After subsection 80(2)

Insert:

(2A) However, a power under paragraph (2)(f) may not be exercised unless regulations prescribing requirements for conducting tests of security systems have been made for the purposes of that paragraph and are in force.

Michaelia Cash (WA, Liberal Party, Minister for Employment, Skills, Small and Family Business) Share this | Link to this | Hansard source

The government will be supporting the amendments moved by Senator Pratt on behalf of the opposition. The bill currently includes a provision that requirements may be prescribed in delegated legislation but does not mandate this. The proposal is that the powers to conduct system tests cannot be used unless requirements for the conduct of the tests are prescribed in the regulations. Transport security inspectors follow standardised policies and procedures when conducting system tests. Although tests need to vary between regulated entities, test types and locations, the amendments are worded in such a manner that they would not unduly impact on the ability to conduct covert system testing. As I've said, on that basis the government will be supporting the amendments moved by the opposition.

Question agreed to.

Janet Rice (Victoria, Australian Greens) Share this | Link to this | Hansard source

by leave—I move amendments (1) and (2) on sheet 8881 together:

(1) Schedule 2, item 8, page 9 (after line 7), at the end of section 94B, add:

(3) The annual report prepared by the Secretary and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 for a period must include the following information in relation to exemptions granted under subsection (1) during the period:

(a) the number of exemptions granted;

(b) the number of screening officers in the class of screening officers covered by each exemption;

(c) the number of requirements from which a class of screening officers is exempt under each exemption;

(d) the period for which each exemption is specified to remain in force, or if a period is not specified, the period for which the exemption is likely to remain in force.

(2) Schedule 2, item 18, page 11 (after line 31), at the end of section 165B, add:

(3) The annual report prepared by the Secretary and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 for a period must include the following information in relation to exemptions granted under subsection (1) during the period:

(a) the number of exemptions granted;

(b) the number of screening officers in the class of screening officers covered by each exemption;

(c) the number of requirements from which a class of screening officers is exempt under each exemption;

(d) the period for which each exemption is specified to remain in force, or if a period is not specified, the period for which the exemption is likely to remain in force.

I thank Senators Pratt and Patrick for asking questions about these amendments because it has elicited from the minister no reason why these amendments should not be supported. Basically, these amendments seek to reveal a greater amount of information where there are exemptions being granted to certain levels of training and qualifications that security officers are meant to have. This legislation says that security officers should have a level of training and a level of qualification. We are supporting this bill on the basis that we have appropriately trained and appropriately qualified security officers.

If there is a need to exempt officers from these requirements then we need to know why. We need to know more than just the number of exemptions, which is all the minister seems to be suggesting is required. I'm sorry, it just does not wash to say that we can ask these questions at estimates. I have been in the Senate for six years and have quite a lot of experience of asking such questions at estimates. I know what happens. You have prevarication. You get things taken on notice and you get the response in the week before the next estimates session. It can take a year or longer to get a straight answer out of estimates if the government wants to hide the information. If the government is concerned about security implications or any other implications of revealing this information, there is a really good way to ease the government's concern, and that is to actually not have very many exemptions. I cannot see why these exemptions should be necessary except in extreme circumstances.

My amendments say that we need to know not just the number of exemptions that are granted but the number of screening officers in the class of screening officers covered by the exemption, so that we can see whether that number is a small or large proportion. If only one out of 100 of those screening officers were exempt from the need for training or qualifications, you would think, 'Maybe there are extenuating circumstances,' but if there were 80 out of 100 and this were ongoing, then that would be something that we, the public and the community need to know about. It's certainly something we in the Senate need to know about.

We need to know the number of requirements from which a class of screening officers is exempt under each exemption so we know whether it is just a small number of the requirements or whether it is all of the requirements that are being waived. We need to know the period for which this exemption is going to be in force. Is it just for a short period, perhaps, while the screening officers are actually doing their training and there is a shortage of screening officers and these people are doing their training at the same time they are on the job and the exemption will cease after a few months? Or is it an ongoing issue? These are all very reasonable and very important bits of information that are needed to make sure that the security regime that is being put in place is appropriate, with appropriately trained officers who have got the appropriate skills and qualifications.

I listened very closely to the minister as to why this amendment was not reasonable, and I'm afraid I was not convinced by her answer. I think essentially there's just a reluctance to go into this level of detail. All we were told was that this level of detail is not appropriate. I'm sorry; that is not good enough. Good legislation requires this level of detail being available to the public and to the Senate. This amendment will ensure that the level of information that the Senate needs and that the community needs is published in the annual report and is available for everyone on a timely basis.

Rex Patrick (SA, Centre Alliance) Share this | Link to this | Hansard source

I just have a couple of questions in relation to the undertakings that have been provided by the government to Labor. Just to help me out, I'm wondering how long an undertaking lasts for. Does it last until the end of the parliament? Does it last until a change of prime minister? Does it last until a Liberal government leaves office and is replaced, perhaps, by the Labor Party in government? Or is it somehow enduring? How long does that undertaking to the Labor Party last? Maybe it's a bit like conventions, where we have longstanding conventions where the courts accept the exemptions and the parliament accepts the exemptions. I'm thinking of things like cabinet-in-confidence as a convention of cabinet, which the Morrison government has just expanded quite dramatically to cover pretty much everything that COAG used to do under a veil. There's an example of, if undertakings are made or something happens by way of convention, how they can be quickly overturned just at the will of the executive. I actually wonder why Labor might accept an undertaking rather than having something embedded in law. Minister, again, how long does the undertaking that you have provided the Labor Party last for?

Michaelia Cash (WA, Liberal Party, Minister for Employment, Skills, Small and Family Business) Share this | Link to this | Hansard source

My understanding is that estimates occurs three times a year and you have the opportunity to ask those questions three times a year.

Rex Patrick (SA, Centre Alliance) Share this | Link to this | Hansard source

Yes, of course I can ask those questions at estimates and I can ask them in the chamber, but you're doing exactly what officials often do, which is answer a question that I didn't ask. So, to be very clear, my question is: how long does the undertaking that you have made to the opposition last? I'm just wondering if this is the sort of answer that Labor are going to get when they get into estimates. Will they ask a question and get greeted with silence?

Question negatived.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

In lieu of a division, I seek leave to have the Australian Greens senators' votes in favour of these amendments recorded in the Hansard.

Leave granted.

Rex Patrick (SA, Centre Alliance) Share this | Link to this | Hansard source

I also seek the leave of the chamber to have my support for the Greens amendment recorded.

Leave granted.

Bill, as amended, agreed to.

Bill reported with amendments; report adopted.