Wednesday, 18 March 2009
Auscheck Amendment Bill 2009
In 2005, under the former coalition government, a centralised background-checking service was established in the Attorney-General’s Department as part of a wider initiative to strengthen aviation and maritime security. This service, known as AusCheck, was created to help the aviation and maritime industries identify high-risk individuals who should not be granted access to secure areas of Australian air and sea ports. It began operation in 2007. It is understood that the original AusCheck Act was intended to apply more broadly than in just the aviation and maritime arenas. It was intended to be nationally applicable and, in fact, that it not require other enabling legislation. But, at that time, the Senate Standing Committee on Legal and Constitutional Affairs determined that it should be narrowed, with a view to broadening it in the future. The coalition supports the broadening of this act for the purpose of background checking for national security purposes.
AusCheck is responsible for identifying individuals who should not be eligible for aviation security identification cards, or ASICs, and/or maritime security identification cards, or MSICs, by applying a consistent interpretation of the statutory requirements and coordinating background criminal and security checks on applicants and notifying the relevant issuing bodies of the outcome of these checks. The issuing bodies may be the airport corporation, QANTAS, the airlines, the port authorities or contracted private providers such as Fast Track. These background checks were previously processed and coordinated by the background checking unit of the Department of Infrastructure, Transport, Regional Development and Local Government. There is a streamlining effect by having the checking done within the Attorney-General’s Department and with certain issuing bodies involved, and it is a more efficient service when it is done this way.
I want to raise some security problems with the maritime security identification card, and I have raised these in the House before. Mr Jeff Buckpitt, who is the national director of intelligence and targeting for Customs, cited concerns to the Parliamentary Joint Committee on the Australian Crime Commission on 29 September 2008 about the lax screening of dock workers. These remarks are on the public record. Confirmed by Mr Buckpitt, it is of grave concern to the coalition that the MSIC arrangements allow for people who have criminal histories to be employed on our wharves—because, as long as the offence is not maritime or aviation related, people with criminal histories are in fact able to be employed at Australia’s docks. Approximately 10 per cent of maritime workers have a criminal record.
I refer to the fact sheet from the department of transport that talks about maritime security relevant offences—in other words, the offences for which you may not be issued with an MSIC. I will run through the offences which disqualify you from holding an MSIC—although, interestingly enough, you can seek reconsideration of the disqualifying decision. These are the kinds of offences: treason; espionage; supply of goods such as weapons for a weapons of mass destruction program; hijacking; destruction of an aircraft or vessel; treachery; sabotage; sedition; interference with aviation or maritime transport infrastructure; counterfeiting; transnational crime involving money laundering; people-smuggling; and importing or exporting weapons or a trafficable quantity of drugs. I read through that list of offences to give the House a sense of the severity of an offence for which you may not receive an MSIC.
I believe the bar is set much too high, and that is demonstrated by the fact that 10 per cent of maritime workers have a criminal record. As Mr Buckpitt shared his concerns with the committee on the Australian Crime Commission, he said:
The security checking associated with MSIC applications is not, in our view—
that is, the view of Customs—
a particularly rigorous one. We think that that permits employment at the wharves where there are a substantial number of people who have had criminal involvement or have been supportive of criminal involvement in some way. We think that is one area that needs to be looked at.
That is quite sensible.
Considering that only five per cent of cargo containers are actually X-rayed and only a tenth of those that are X-rayed are physically unpacked, there is a great risk that those with criminal histories could be helping organised crime groups to import drugs and other illicit goods. I am not suggesting that we can X-ray 100 per cent of containers, as the Americans are moving towards. It is incredible to think how that might work in practice. Of course, intelligence has to be applied to the source of the goods, the route they have taken to arrive in Australia, the types of cargo, the history of the importers et cetera. We are not suggesting that a figure significantly higher should be employed, but it is one way that we could reduce the incidence of crime and certainly the incidence of organised crime using our docks and our port workers.
As any casual conversation with those who work in these areas reveals, there are ways of importing illicit goods through Australia’s docks. Criminal organisations might use a container that contains something of fairly low risk that is less likely to be opened up at the port at export, en route or within Australia in our container examination facilities. For example, a container could originate in the port of Colombia. There has been much in the press lately about the quantity of cocaine that originates in Colombia. Cocaine could be thrown into the container. It could then be opened at the port here in Australia by maritime employees who are working in league with the organised criminal group. If the drugs are loaded with goods that are deemed to be of relatively low risk, it is less likely that that particular container would go through an X-ray facility, and of course the goods could be removed at the port before they even get to the X-ray facility. The main idea for the criminals involved is to have those connections at the wharf and to have the movement of the container completely subverted.
Customs have an excellent facility, which I have inspected, at Port Botany for X-raying containers and a terrific process. They are struggling with resources with the $51.5 million cuts to Customs under this government, but with the resources they have been allocated they do a fantastic job. But I believe we really need to set the bar higher for those who are able to obtain maritime security identification cards, or MSICs, and that would assist Customs in the valuable work that they do. I call on the minister—I am pretty sure it is the Minister for Infrastructure, Transport, Regional Development and Local Government—who has that power.
In conclusion, the coalition does support the AusCheck Amendment Bill 2009. I mentioned in my earlier remarks before question time today that a couple of concerns had been raised about the amendment bill. One of those was the online verification service and who might have access to this database, which is within AusCheck, in the Attorney-General’s Department. If an employer wants to verify, for example, that a person applying for a job is who they say they are and that they actually do have a maritime security identification card or an ASIC, they can log in to the online database and they can check that out. It is important that not everyone can log in to this online database. We have to be very careful about lists of information and databases with individual details on them, and I think that on both sides of the House we are most vigilant about that. I am assured and pleased that the online database can only be accessed by those who punch in the name of one individual concerned and get the response about whether or not they are entitled to the card. Also, the audit trail that exists within AusCheck is such that you need to have a logon to access this database, and what you do in terms of the IT is tracked. I am comfortable with that.
The other concern that was raised was about the operative provision of the act, which is section 8. Under the amendment legislation, we are adding that the regulations that would be included as part of this amendment establish a scheme relating to conduct and coordination of background checks. In the amendment bill there is a list of subparagraphs (i) to (vi). Subparagraphs (v) and (vi) include purposes related to ‘the executive power of the Commonwealth’ or ‘matters incidental to the execution of any of the legislative powers of the parliament or the executive power of the Commonwealth’.
The concern that was expressed to me was that these provisions are quite broad and in fact do not direct one to national security related issues. After further investigation with the Attorney-General’s office and the Attorney-General’s Department, I have been told that the act as amended actually does not determine who should or should not have a background check. That is made clear in the EM. But, if a future department—let us say the department of social security—decided that fruit-pickers needed a security information card, this act alone could not make that happen. There would still need to be enabling legislation, and that would be under our social security laws.
The intent and architecture of this bill relate to checks for national security purposes, and that is the framework in which it operates. Regulations to include new checks would have to be made by the Attorney-General at the time. Remember that this amendment legislation provides that from time to time regulations can be made to expand the field of security information cards. Those regulations, of course, would be a disallowable instrument and therefore they could come before the parliament. In addition, further enabling legislation would have to be made to effect those changes. The drafters do not have a definition of national security because there is not a legal definition, and in this case they did not want the definition to be too wide or narrow. National security involves an amalgam of Commonwealth powers and is not legally defined, as I said. The drafting in this bill reflects that it was a way of tying national security to Commonwealth specific powers.
I am comfortable that the amendment legislation does not widen the ability of any future government—and we are talking about times future—to include an onerous security checking regime where it would not be appropriate. But I just note those concerns because I think it is important to know, in case sometime in the future someone refers to the introduction of this particular amendment bill, that it has been closely considered and that we and the coalition have been assured, as I have described. We support the bill. There are concerns about the MSIC arrangements that allow people with criminal histories to work on our docks and deal with sensitive cargo, and they do need to be addressed. I urge the government to put that as a priority, because our dock workers are very much the gatekeepers of our borders.
National security is a priority for this government. It is no secret that this government is committed to doing all that it can to guard our borders, to guard against terrorist attack and to do everything necessary to protect the rights of citizens of this country. We are working vigilantly to fight terrorism, and that requires us to increase the security measures that may apply with citizens of this country.
It is for this reason that I rise to support the AusCheck Amendment Bill 2009, which will amend the AusCheck Act 2007 to provide a capacity under the act for background checks to be carried out for national security purposes. AusCheck was created and began operation in September 2007. It was formed to help the aviation and maritime industries to identify high-risk individuals who should not be granted access to secure clearance areas in Australian airports or seaports. If you work in a designated Australian airport or seaport, you are required to hold either an ASIC, an aviation security identification card, or an MSIC, a maritime security identification card.
When I had the good fortune to work for some time as an adviser to Sydney airport, I had to go through the necessary checks and duly received an ASIC. It did not matter if you were working advising the chief executive officer or working in the baggage claim area; everyone had to go through the same degree of checks to enable them to have access to secured areas in the aviation transport industry. That is only to be expected. It is not that there were perceived threats there; it was that the then government, together with the industry, developed and implemented various regimes of safety and security checking to be observed in maritime and aviation ports.
I know the extent to which people are checked in those ports. One of the areas of some criticism, however, is that, whilst permanently employed baggage handlers in those days would go through the necessary police checks and be credentialled and issued an ASIC, I am not quite sure it happened in exactly the same way for people who came into the airport who were casual employees and were employed on a day-to-day basis. That is a matter that I think the operators of the airport and the users of those facilities have since been required to address.
During the time of the operation of AusCheck, it has gained wide acceptance across the Australian aviation and maritime industries. I think it would be fair to say that it has netted real results. Existing clients report that this system is working faster and reduces the administrative costs and burdens in comparison with the prior arrangement, when employees were required to get the necessary checks to be issued with an ASIC or a MSIC. However, the existing act only permits AusCheck to coordinate background checks for the purposes of the aviation and maritime security identification card schemes. This is a limitation because it may be, from time to time, that there are other areas of national security where it is deemed prudent that background checks occur. If that happened without these amendments going through, AusCheck would not have the legal capacity to be able to undertake that checking arrangement on behalf of the Attorney-General.
There is nothing in this bill that indicates areas where this may come to pass. I can speculate that it might be in areas where people are dealing with precursor drug chemicals or precursor chemicals for explosive material. It may be something that may arise in the future as being prudent to have people working in those areas subject to security checks for an appropriate identification scheme. However, if that were to come to pass without this amendment, it would not be possible to do that through AusCheck. Background checking for national security purposes offers a tool for meeting national security policy objectives including regimes related to high-risk industries and greater consistency in control of hazardous substances. It should be noted that no requirement for any person to have a background check will be imposed as a consequence of this amendment. This amendment empowers, on appropriate direction, AusCheck to conduct the identification security exercise, as opposed to actually determine who it is who is to be checked.
The amendments to the bill simply pave the way for AusCheck to take on additional background checking functions under future legislation. The bill also amends the act to authorise the use of identity verification information where it is required to verify the identity of a particular person. A national security background check could be used to implement background checking policy in a number of areas where there is a perceived national risk. For example, as I indicated in relation to precursor chemicals or other hazardous materials, there could be a perceived need to have access to secure or sensitive information. If that were the case, decisions could then be made to require those persons to undergo these security checks. But that would require another piece of legislation. This legislation does not determine who it is that would be required to undergo those checks.
The amendments will also include specific provisions to authorise and protect the information about an individual where this in-formation is required to complete other back-ground checks. For instance, in conducting criminal history background checks, it is some-times necessary to confirm the identity of an individual so that police services can distinguish between people of the same name and, on some occasions as I understand it, people who share the same birth date. In these circumstances it may not be possible to complete the background checks unless the identity of an individual can be confirmed through the provisions of further identification information, such as fingerprints. The amendments are intended to ensure that, if AusCheck is required to facilitate the provisions of this information to other relevant police jurisdictions, then this information will, firstly, be afforded all the additional protections given to other AusCheck personnel information and, secondly, not be available for any purpose other than a further background check. This is intended to reflect the purposes of collecting this information in the first place, which is the verification of a particular person’s actual identity, and only their actual identity.
Background checking is used worldwide. For those fortunate enough to travel overseas, they see it every time they go anywhere, particularly in a secure area, whether to the United States or to the United Kingdom—all airport personnel undergo these checks and carry the necessary equivalent of our ASIC or MSIC cards. This piece of legislation facilitates AusCheck having the capability, if and when directed by legislation, to conduct checks for national security purposes. It allows for greater efficiency in our national security scheme, which is something that is very important in our overall fabric of protecting not only the borders but also the citizens of this country. As I said at the commencement of my contribution, this government takes very seriously its role in relation to national security and it is for this reason that I commend this piece of legislation to the House.
I thank the House and I thank Deputy Speaker Moylan for the opportunity to speak on the AusCheck Amendment Bill 2009, emanating from the Attorney-General’s Department. First, I would like to congratulate the Attorney-General and his department for the good work they have done in processing these amendments and what that will mean in terms of the national security capacity in Australia. I think the main purpose of this bill is very clear, and it is clear to the extent that it amends the AusCheck Act 2007 to provide a specific capacity for the minister’s department to carry out background checks for the purposes of other bits of legislation and acts. In itself, this amendment and this act will not provide for the background checks of persons in relation to any particular act. What it does is provide an extension where there is a limitation in the current act. The current act allows for background checks to be carried out in relation to only two specific areas of law—that of the Aviation Transport Security Act 2004 and the Maritime Transport and Offshore Facilities Security Act 2003. So there is currently limited scope by which background checks can be carried out. The bill in itself does not give the authority to carry out those background checks, but it provides for the Attorney-General to have that capacity, where it is required under other laws and jurisdictions.
This amendment to the bill extends that capacity to other areas of law and other jurisdictions. This bill highlights the continuing and longstanding commitment of the Labor Party, both in opposition and now in government, to take national security very, very seriously—to look at the practical measures by which national security measures can be enhanced; to look at the practical measures by which national security can be improved; and to look at the most effective and efficient methods by which this can be done. The importance of a strong national security regime is of no small consequence to the House, as is continuing to improve Australian law which provides for national security.
I can imagine that there would be some people, either in the community or in other areas, who may have particular concerns in the area of background checks. They might have those concerns for a number of reasons. I can assume that some of those concerns would come from people who are concerned about civil liberties, about privacy and about other issues related to a person’s background. But, in support of this bill and in support of that extra capacity given to the Attorney-General and his department to be able to carry out background checks in areas other than just the areas of the Aviation Transport Security Act 2004 and the Maritime Transport and Offshore Facilities Security Act 2003, there are some very good reasons why background checking should take place.
As it currently exists in the community, background checking is not something that is odd, unusual or in any way foreign to most people. Most people who apply for certain licences, jobs or positions within the community or who apply to work with certain people—for example, with children—submit themselves for a background check. Of itself, this is not an invasion of privacy if it is done for the right reasons and under the right regulatory regime. If it is for good reason, then any person—be they an Australian citizen or be they somebody else—seeking to obtain licences, to obtain access to specific areas or to put themselves forward ought to allow a background check. This is particularly so if they have nothing to hide.
There are individuals who have access to areas of high risk, to places of high risk, to sensitive areas, to things that are of national security importance to this country or to substances. There are people who hold particular positions. There are a whole range of areas—we know that, for example, in the areas of shipping or aviation there are particular risks or issues of national security which exist. People working in those areas do understand the importance of security—not only national security but their own security. I think they need to be confident that the people they work with have gone through some background checking and that there is a good standard and uniform practice across the country.
As law currently exists, there is not enough consistency and these laws do not apply to enough of an extent. While a person who works under a particular act in relation to their position or who has access to certain places needs to have a background security check, that same person may not have that requirement in another area. I think that is an inadequacy within the law, and that is what we are dealing with today. For those who may be listening or have some concerns, the bill itself does not provide for the blanket application of background and security checks but allows the extension of the current legislation to move beyond just those two acts which, as I have mentioned, currently cover such checks.
Over the years—and I have been in this House for some time now—issues of national security have always drawn an intense level of debate, emotional responses and quite a lot of enthusiastic participation from a whole range of members of parliament and the community, for very good reason. When we talk about national security, it is a massive responsibility that any government takes on. Part of that massive responsibility, I believe, goes not only to what you see, read and hear out in the community and in the media but to all the practical measures a government can take in ensuring that the security needs of this nation and all of its citizens are a priority. This bill extends that principle. This bill adds to that value and that principle—a value that is shared by all Australians.
I am very satisfied—having read the explanatory memorandum, having read the bill and having looked at a number of contributions by other members, including having read the contribution by the minister—that this is a sound bill, a good way forward and an enhancement of Australia’s already rigorous national security regime, something of which we can all be proud.
When the Labor government was elected in 2007, it made a range of commitments in the area of national security and defence. It made commitments relating to our aviation facilities, people who work in aviation, our maritime industry, people who work in the maritime and transport industries, and our land transport industries.
When you are in a nation as big as Australia is, with a shoreline as extensive and uninhabited as the Australian coast and with a large mass, you need to have very strong regulation, a very well-understood regulatory regime and the appropriate powers of checking and enforcement for the officials that you appoint to carry out their responsibilities to monitor, oversee and in the end enforce your national security regime. Again, this bill does exactly that.
As we have heard from other members, there are a range of areas where this is particularly relevant. One of those particularly high-risk areas, as we have seen, is aviation. Australia is probably unique in its make-up: while we have a number of highly security-stringent capital type airports, we also have hundreds and hundreds, if not thousands, of small regional airports with some security risk issues. We have been working for some time to make sure that, where people work in areas where they hold people’s lives in their hands, where they deal with sensitive areas of national security and with matters that could be a national threat, appropriate licensing and appropriate mechanisms are in place to protect people—not only the people that they look after but also the people that they work with.
I am very happy with this amendment. While minor, to some extent, in what it does with the existing legislation, it is very important in that it gives the capacity for the Attorney-General’s Department, when they are carrying out their responsibilities in conducting background checks, to make sure that the background checks that are required by other authorities or under some other law are actually possible—because currently they are not—and it makes sure that under the act a background check can be identified as a requirement for people who have access to certain places, things and substances—to all those areas that we know potentially could be a matter for national security.
As I said, this bill demonstrates this government’s continuing commitment to matters of national security, which we think are not just held within the Defence strategic type portfolio. It goes very much beyond that; it goes very much to civilian activity and to what happens around our shores and on land. As we have seen in the experience overseas, these are very real, very powerful and very important matters to deal with. In many other countries that we visit either as tourists or as travellers, depending on our status there are security checks done on us. I think that is actually a reasonable thing, on the basis that all nation-states need to ensure that people who travel through their borders and use their facilities are of good character and, particularly, that people who work within sensitive areas and environments have the appropriate checks in place.
That in itself does not prevent incidents from occurring. As we have seen in the past, sometimes it very much does not prevent serious matters occurring. But what it does do is provide the authority and the legitimate power and law for this country to go about these matters in a proper way. It provides for our law enforcement agencies and our national security agencies to have at their disposal the appropriate levels of law and regulation to do their job in an effective manner.
I know the minister is very committed to this area. I know also that a lot of work has been done in the transport portfolio to make sure that the relationship between what this bill does and the laws and acts in other jurisdictions is complementary. I commend the bill to the House and congratulate the minister for the work he has done.
At the commencement of my contribution to this debate on the AusCheck Amendment Bill 2009, I want to commend not only the minister for bringing this legislation to the parliament but also the previous speaker for his in-depth, analytical and very fulsome contribution to this debate. This amendment may, on first sight, appear to be a very minor amendment to the legislation. By listening to the member for Oxley, we are able to understand that many complex issues and nuances are associated with it and that it is a very important piece of legislation that we have before us today.
I rarely speak on security legislation but on this occasion I feel very comfortable in supporting the legislation that we have before the parliament. The main purpose of this bill is to amend the AusCheck Act 2007 to provide a capacity under the act for background checks to be carried out for national security purposes. When the original act was introduced I did have some concerns about how it would be implemented and administered, but the concerns I had have been proven to be unfounded. In this amendment there is no requirement for any person to have a background check; no background check will be imposed as a result of the amendment to the act.
Rather the amendment will provide a bare capacity for the Attorney-General’s Department to carry out its responsibility to conduct background checks that are required under the authority of some other law other than the very narrow background checks that are currently allowed. A background check under the act could then be identified as a requirement for access to places, things, substances and employment positions as specified by a regulatory scheme. The bill will also amend the act to authorise the use of identified verification information where it is required to verify the particular individual. The current act only allows for background checks for the purpose of the Aviation Transport Security Act 2004 and the Maritime Transport and Offshore Facilities Security Act 2003. What I see is that this legislation brings some consistency to the AusCheck Act 2007.
I must say that at the time the Maritime Transport and Offshore Facilities Security Act was introduced in 2003 I did have some serious concerns about that legislation. When I spoke to that legislation I put forward the argument that the legislation did not properly coordinate maritime security, with the activities of other relevant authorities not being included. I felt at that time that it failed to communicate with all key stakeholders and I felt that the government of the day had failed to properly recognise that the Maritime Union had a role in security. It failed to work with that union to ensure that all aspects of the legislation were considered. So I felt that the union that represented the workers who were actually subject to security checks, and who had some concerns about security on the waterfront, was not properly consulted. Because of that, I had a problem with the legislation and I felt that there was some conflict between the departmental secretary’s powers to issue orders and the powers of the harbourmaster.
When I look back to that legislation and consider the lack of consultation, and maybe some controversy that surrounded it, I feel a lot more comfortable with the legislation that we are debating today. In that particular legislation there was a report that dealt with national security. Under that heading of national security it noted that there were inconsistencies between the policy on coastal shipping of the government at that time and the actual implementation of the security requirements in that legislation. I went on to talk about the fact that we had foreign flagged ships circumnavigating the coast of Australia. I think an issue that you can raise in relation to that is the current oil spill in Queensland and the fact that the information that needed to be provided to both the Queensland government and the federal government was not provided at the time. That highlights that there was inconsistency in that particular legislation and its failure to address some of those issues. It is also important to note that there were very different standards of requirement in the legislation that is referred to in the AusCheck Amendment Bill—this maritime transport legislation. There were very definite inconsistencies between the Australian scenario and the legislation in the US, where they had a stronger security regime.
The reason I highlight inconsistencies and the reason I highlight that legislation is that it is linked to this legislation. The one point I would like to make about this particular legislation we are debating in the House today is that it actually adds consistency. There will be no requirement for any person to actually have a background check, as I mentioned earlier—and that will not be imposed as a result of the amendment of the act. That makes me feel very comfortable because that is the grey area where I have always had some concerns in relation to security issues. Rather the amendment will actually provide a bare capacity for the Attorney-General’s Department to carry out its responsibility to conduct background checks that are required under the authority of some other law. A background check under the act could then be identified as a requirement for access to places, things, substances or employment positions as specified by the regulatory scheme.
The bill will also amend the act to authorise the use of identity verification information where it is required to verify the identity of a particular individual. These are all very sound measures. The adoption by the Commonwealth and the states of a national security background check as the basis of a prerequisite for a licence or other authorisation has been identified as a means to achieve consistency in relation to the regulation of access to certain places and things, and I think anything that will add to that consistency is worthy of support.
The bill marks an important step in the development of background checks for national security purposes and demonstrates the Commonwealth’s continued commitment to meeting national security policy objectives. National security and the fact that the world that we live in today is not quite as safe as it once was are of concern to a number of Australians, and these national security checks will certainly put some people’s minds at rest. The bill will provide for the Attorney-General’s Department to conduct background checks to support regulatory regimes involved in identifying individuals who could present a national security risk if allowed to access high-risk places, things, substances or positions. These details are outlined in the explanatory memorandum.
Before I went through the details in the explanatory memorandum, I did have some concerns about this bill. But, after going through the explanatory memorandum, the concerns that I had were allayed. In fact, the explanatory memorandum not only allayed the concerns I had but actually convinced me this legislation is very worthy of support. The fact that there was not a requirement for a person to have a background check allayed a number of fears that I had about this change, as did the fact that background checks would be carried out by the Attorney-General’s Department, which would conduct them in a very responsible way. The explanatory memorandum highlights:
The amendments will also include specific provisions to authorise and protect biometric information about an individual where this is required in order to complete a background check.
It is vitally important that this security is in place. Sometimes it is necessary to confirm a person’s identity so the police can distinguish between individuals with the same name and similar dates of birth.
I was confronted in my electorate with a case of an extremely law-abiding citizen who was working for a government department. When a police check was requested by the government department before allowing her to move from casual contract work into permanent employment, she was identified as a person of quite a dubious nature. The check revealed that she had been involved in numerous cases of fraud and other things which were very foreign to this law-abiding person. The fact was that there was another person that had the same name and same date of birth. It took a lot of work by me and my electorate office to clear this person’s name, but now she is a happy employee of the government department. That shows that these things can happen and that there is quite often a need to collect this kind of information.
Regarding the collection of this information, the explanatory memorandum says:
… this information will be (i) afforded all of the additional protections given to other AusCheck personal information; and (ii) not be available for any purpose other than a further background check.
I think that that is very important. It goes on to say:
As a consequence of the inclusion of a capacity to conduct national security background checks, the Bill also includes amendments to the provisions that give authority for AusCheck to provide an online verification service.
The online verification service which is currently restricted to aviation security and maritime security cards and which was debated when it was introduced in the previous parliament—and I referred to that legislation earlier in my contribution to the debate—will be extended under this legislation, which I really do believe is worthy of support from both sides of the parliament.
In his second reading speech, the Attorney-General highlighted the benefits of the AusCheck legislation passed by the parliament in September 2007 in maintaining security within this parliament. He went on to talk about how this legislation expands those checks. The Attorney-General is a person who is totally committed to ensuring personal rights are protected. He highlighted that there would not be a requirement for a person to have a background check. He talked about the existing systems, which are also mentioned in the explanatory memorandum, saying:
… the bill will authorise and protect biometric information about an individual …
Those are all aspects of this legislation that needed to be in place for me to feel comfortable supporting it. He also said:
… the positioning of AusCheck as a centralised background checking service for the Commonwealth is in keeping with the public’s expectation that adequate cost-effective security arrangements are in place.
Greater access by Commonwealth agencies to AusCheck’s resources reduces duplication of—
checks that currently take place. The Attorney-General also said that the bill provides the legislative framework for more efficient background-checking schemes.
I congratulate the Attorney-General on the legislation that he has brought to the parliament today and I congratulate the previous speakers in the debate. This is legislation that I can support, and I feel confident to do so as I think it has the right checks and balances to ensure that it does not lead to an abuse of power. In actual fact it contributes very much to the security of our nation and will ensure that the checks that are conducted are conducted for the appropriate purposes. It will be of great benefit to our nation.
I rise to support the AusCheck Amendment Bill 2009, which amends the AusCheck Act 2007. At the outset I would like to say that, for most of us present in this parliament in the normal course of a day, this bill reflects a different world to the one in which we grew up and in which our values were formed. A bill of this nature, as with the 2007 act, would have been unimaginable in the 1950s, even though that time was in such close proximity to the end of World War II. However, in the context of the world in which we find ourselves today, these measures are not only important but necessary, and the provisions contained in the AusCheck Amendment Bill that we have before us at the moment are provisions of eminently good sense.
I spent most of my working life seeking and wearing identification cards. I worked in the aviation industry, and in those days an identity card was one which the company gave you. It bestowed upon you a privilege which you wanted, and that was to be able to go air side at airports. Now, unless you have a decent character, you cannot go air side at an airport and probably cannot work on the ground side either. I think it is important that as our first point of reference to this legislation we understand that these things are necessary in the world we have today.
The objectives of this amending legislation are very simple. They are to enable the AusCheck agency to undertake background checking beyond the aviation industry security card and the maritime industry security card functions that already exist as a consequence of the 2007 act in relation to matters where national security is concerned. ‘National security’, of course, is a somewhat difficult concept that I do not know has ever been properly defined, but I think that we all know instinctively what national security means. It is something that I know the electors of Longman and, I guess, the electors of all Australian electorates insist absolutely that this parliament look after on their behalf.
The 2007 legislation established AusCheck as a centralised, government managed, background-checking service, and it has been in operation for around two years. In that time it has developed an excellent reputation both for the speed with which it undertakes its work and for the consistency and the quality of the work that it does. AusCheck took over its functions from the Background Checking Unit of the Department of Infrastructure, Transport, Regional Development and Local Government—although I am sure that at the time AusCheck took over those functions that was not actually the name of the department. AusCheck was established to enhance national security by establishing greater and more conspicuous control by government of security arrangements at air and sea ports. It was also to mitigate the risk of security clearances being given to people using fraudulent proof of identity documents, to reduce duplication in background-checking and, importantly at the time, to provide capacity for other background-checking purposes—and that is the purpose of the amending legislation that we have before us today. It is very appropriate that a single agency—in this case, Auscheck, which is already doing the job and doing it well—has the sole responsibility for critical background checks in areas where national security is concerned. The areas which it already operates in are areas where national security is concerned.
The expansion of the number of purposes for which AusCheck would undertake background checks was anticipated in the original bill and, as a consequence of a Senate committee having a close look at the 2006 bill, a number of changes were made. I understand that some of those changes were made following a very strong submission to the inquiry from the Office of the Privacy Commissioner, who indicated that public confidence would be improved if those future, not yet defined expansions of the AusCheck function were to be undertaken only after primary legislation had been enacted. Some changes were made to the original bill as a consequence of that sentiment, if not that submission. If we have a look at the expansion that is going to occur in section 8, we see that the amendment sets out the scope of the circumstances where AusCheck will be able to manage national security background checks, which is a new term within this bill. All of those particular purposes were included in the 2006 bill but removed from it by the time the 2007 act was enacted.
I should say that one of my principal dislikes in legislative formulation occurs in the 2007 act, which could have given some ground had it not been further defined. In 18(1B) we hear that ‘the Governor-General may make regulations prescribing matters necessary or convenient for the purposes of the act’. ‘Necessary or convenient’ is a fairly wide-ranging regulatory power, exceeded only by the one that I have seen in some state legislation which says that the Governor in Council may make regulations for anything about which the act does not make sufficient or any provision. In this case, that ‘necessary or convenient’ power has been tempered by the matters that are in subsection 2 and therefore there is no threat in this legislation that there would be a capacity for the Attorney-General to move towards expanding the specific background checks without there being some principal legislation put in place in order to do that, as the Privacy Commissioner wanted. That point is made on several occasions through the material that goes hand in hand with this legislation—for example, in the second reading speech of the Attorney-General when he said:
No requirement for any person to actually have a background check will be imposed as a result of the amendment to the act ...
That is fairly clear. I do not think that any reasonable person would find anything other than that the intention of this parliament in the passage of this legislation is that the expansion of the purposes for which AusCheck will be able to conduct background checking will be for those purposes that have been established by principal legislation somewhere else.
The bill also expands a little into biometrics, as the previous speaker mentioned. Biometrics is a fairly interesting and rapidly developing science. It is somewhat defined but evolving all the time. For example, when we talk about biometrics we naturally think of fingerprints. That is the first thing that comes to mind. But there are many biometric factors that could be used: face recognition; DNA; hand and palm geometry; and iris recognition, which has largely replaced retina recognition. I also understand that biometrics can determine which of us is which of us by our odour or our scent. Our voices can also be used; physiologically each voice has a different pattern.
Some of this sounds like it could be highly invasive or so we might think. I can recall being in state parliament and participating in debates about whether or not police could require somebody to be fingerprinted and yet today, if you visit Disney World in Florida, they take your fingerprint to make sure that the person who is using the ticket in your hand is the person who paid for it and is entitled to use it. We will give Walt Disney’s heirs and successors our fingerprints but we are a bit concerned about giving them to the police. Attitudes are changing and over time these things are being used more frequently to gain access to computers, for example, so I think that the use of biometrics is something that we cannot rail too much against.
I was very interested to learn that, with privacy issues on biometrics coming to the fore as biometrics are used more and more, Australia is at the forefront of privacy in this area and that the Biometrics Institute privacy code in Australia is cited as a world first and something that ought to be considered by other countries. That led me to have a look at the Biometrics Institute because I had not heard of it until I came across that. I had a bit of a look at it on the World Wide Web, as we are wont to do these days, and thought that it is an organisation that is moving very well, as the science advances, to make sure that the users of the science are using it in an ethical way.
The document that I spoke of a moment ago is obviously too lengthy for me to bring into the parliament, but I thought the parliament might be interested in knowing who is actually looking after the ethics of the use of biometrics in this country. The board of the Biometrics Institute is made up of: Paul Kirkbride, the chief scientist in the business support area of the Australian Federal Police; David Lang, who is the manager of the Identity Services Team at the CrimTrac Agency, which is associated with the Federal Police also; Geoff Poulton, who was formerly the Senior Principal Research Scientist of the CSIRO—at the time when he was appointed to the board, that was his position; Terry Hartmann, who was the IT manager for passports at the Department of Foreign Affairs and Trade at the time that he was appointed, although he is in a different role now; Trevor Long, who is the manager of group facilitation in Airport Security at Qantas; Kevin Darch, who is the manager of the Visual Identification Unit of the Queensland Police Service; a New Zealander, Caroline Hubbard, who is the strategic development manager for the Department of Internal Affairs ID services in New Zealand; and another chap by the name of Philip Youngman, on whom I have very little information. These are serious people looking after the serious job of protecting the security of information for Australia and establishing a group of ethics that will inform the use of biometrics by all people who are looking to use them.
The idea of background checks is not new, as I say, and some people probably need to consider exactly what a background check entails. A number of people have had to have background checks. The first element of background checking that is undertaken in relation to an AusCheck exercise is a criminal history check from CrimTrac and the Australian Federal Police. It is clear that a person’s predilection towards criminality ought to be a preclusive factor from a number of functions, but also, in my mind, we operate in a system where people make mistakes and need to be given the benefit not of the doubt but of us believing that those who have made mistakes and paid the price should not be made to pay more.
The next part of a background check is a security assessment from ASIO. I am not sure how many of us would necessarily pass that. There was some interesting material last year about the number of drinks that a particular member of this parliament had at a function, and I am not sure whether that is an appropriate—
That was the Australian Crime Commission? It was a different one. Who is in charge of those, Minister? The third element is a right-to-work check from the Department of Immigration and Citizenship. In other words, we are not going to issue you a pass to work in a sensitive area in this country unless, of course, you are qualified to be here.
The Attorney-General mentioned in his second reading speech that two years of operation of AusCheck has, in fact, given great confidence that this organisation is able to perform the functions for us. It is eminently sensible that, where these kinds of checks are required, for whatever security purpose for the government, a single agency is tasked with the job of doing that. That means, essentially, that the background checking that I get, for example, to enter a maritime situation is no different to the background check that is given to another person to enter an aviation situation, to work in a sensitive defence installation or for whatever other purpose we may want to do a check. The duplication of effort, were these to be done by different agencies, would just not be enormously sensible.
Having said those few words, I say that I too want to congratulate the Attorney-General on his custodianship of the portfolio in the 15 or 16 months since the government was elected. I have said in private—or publicly, but in smaller gatherings—that I think that this Attorney-General will be recognised well into the future as one who has done an excellent job for the people of Australia. This is a minor piece of legislation by comparison to a number that he has shepherded through the parliament in that time, but it is an important piece of legislation in the minds of all of our constituents. The cliche that people want to go to bed at night knowing that they are safe is very much a consideration that Australians want from this government. We have only to look at the prominence that the issue of national security has in people’s minds at any election time; it is of equal consideration to the economy for people’s votes. I think it is appropriate that these changes be made. These will give comfort to the people who elect us to represent them in this place. This will make sure that those protections that we put in place via other methods will not be undermined by the placement of inappropriate people in sensitive and critical positions. With those few words, I commend this bill to the House.
I rise to speak on the AusCheck Amendment Bill 2009. There can be no doubt that since the tragic events of 11 September 2001 there has been a heightened sense of awareness of the potential threat to public safety in a wide range of high-risk industries. The tragic attacks on the nightclubs in Bali, train stations and buses in London, hotels and train stations in Mumbai in India and the Sri Lankan cricket team’s bus in Pakistan are a stark reminder, if we ever needed one, that terrorists have no limits as to who or what they will target. While we continue to grieve for those who have lost their lives or been injured by such cowardly and evil attacks, we must remember that we truly live in a global village. A terrorist attack in any part of the world is an attack on all of us. As Australia’s National Security Adviser, Major General Duncan Lewis, has previously stated, inter alia:
The Mumbai attacks are a sober reminder that the issue of terrorism not only has not gone away, but is an enduring issue that is going to go on into the future and will be with us for some time.
The first priority of any government, more so now than ever, is defending our nation’s security, particularly given the complex range of national security challenges we face. The former United Kingdom Attorney-General, Lord Goldsmith, was quite right when he said:
Let us not forget that terrorism, by its methods and aims, has the potential to negate all the individual rights which we all hold so dear.
Freedom from attack or threat of attack, the maintenance of our territorial integrity, the maintenance of our political sovereignty and the preservation of hard-won freedoms are not issues to be taken lightly. There is broad consensus in the intelligence community that the greatest threat to Australia of terrorism or other impropriety is from home-grown terrorists rather than foreigners. Indeed, in our own community locals have been convicted by Australian courts for unfathomably preparing attacks in our country.
In December the Prime Minister delivered a comprehensive ministerial statement on the national security challenges facing Australia and the approach of our government in responding to those challenges. In that statement, the Prime Minister made it clear that Australia’s national security policy will continue to build on an enduring ability to create national security agencies and capabilities that work effectively together.
As recent prosecutions have demonstrated, our many security and law enforcement agencies have played a critical role in protecting us from attack. In the main, they are well-established, well-integrated, effective at collecting intelligence and effective at assessing the implications for our security environment. However, while Australia has a highly developed national security community which works well, there has always been scope to be more innovative, more coordinated and more integrated. As the Prime Minister mentioned in his statement:
In an increasingly complex and interconnected security environment, we need a more integrated national security structure that enhances national security policy coordination.
That is why the Rudd government is establishing a new level of leadership, direction and coordination among our existing intelligence agencies—with the first step being the appointment of a National Security Adviser to provide advice to the Prime Minister on all policy matters relating to the security of our nation.
The AusCheck Amendment Bill before the House tonight will also play its role in developing a more coordinated and integrated national security culture. In speaking on the AusCheck scheme, it is important to not lose sight of the context in which the scheme was originally developed. We all remember the 2005 review of airport security and policing headed by Sir John Wheeler which chronicled the many things the former government got wrong in aviation security. Following a recommendation of the Wheeler review, AusCheck was established to, among other things, enhance national security by establishing greater and conspicuous control by government of security arrangements at air and sea ports, mitigate the risk of Aviation Security Identity Cards and Maritime Security Identity Cards going to ineligible persons, and reduce duplication and improve the consistency and response time of background checking in the aviation and maritime industries.
What Sir John Wheeler intended by a centralised data collection agency was improved aviation security, which is something I have long supported. The effective screening of employees in high-risk areas, such as baggage handlers, is made all the more important when it is realised that physical security devices in airports, such as CCTV cameras, are not infallible. These highly sensitive areas require the screening of employees; this is the community expectation, as it is mine. Members who were in the House in the last parliament may recall my many questions on notice to the Minister for Justice and Customs at the time which uncovered the fact that, on at least three occasions at Sydney International Airport, CCTV cameras in the baggage make-up area were found to be pointing towards the wall or out of focus. Senator Ellison, who was the minister at the time, certainly did not deal with that issue seriously, in my view, because we never got to the bottom of how cameras mysteriously were turned towards the wall or were put out of focus.
We also remember the allegations of a drug syndicate running out of the airport, incidents of corrupt behaviour by a baggage handler, the arrest of three airline employees for narcotic offences and the disclosure of a Customs report which detailed concerns about convicted criminals holding sensitive positions in airports. Suffice to say the comprehensive vetting of employees by a coordinated unit could not have come soon enough for members of the public. The issue for them was one not just of terrorism, as important as it is, but of the potential for dishonesty in the handling of their personal items.
AusCheck provides a statutory framework to help identify high-risk individuals who should not be granted security clearance to enter restricted areas. It does so by coordinating extensive background checks using state police, Immigration, ASIO and AFP records and resources. I certainly do not casually gloss over the potential invasiveness of the assessments, particularly given their ability to impact on people’s livelihoods. That said, it is critically important that people in sensitive areas or positions are properly and thoroughly checked in the interests of the safety of everyone. I am sure the assessments are not conducted lightly but are done so in a manner that is in keeping with the public’s expectations that leading edge security arrangements are in place to protect them in all vulnerable areas or situations. That is why I support the amendments to enable AusCheck to provide centralised background checking in relation to a wider range of national security regulatory schemes other than the aviation and maritime sectors that it already covers.
It is prudent to also note the comments, or intention, of the Attorney-General’s Department in 2007 during the time of the passage of the original AusCheck Bill, when it stated:
When government directed that AusCheck be established, it was in the context of a direction that a scheme be established to centralise the aviation and maritime scheme but also that the Commonwealth was conscious that a significant amount of background checking occurred within the Commonwealth and that there might be opportunities to minimise duplication and improve efficiencies by creating a framework within AusCheck that could subsequently, after the aviation and maritime schemes had been settled, move on and look at other opportunities for background checking that was occurring within the Commonwealth.
That was one sentence, believe it or not! The A-G’s Department should be flogged for writing such long sentences. That is, in essence, the framework that this amendment now achieves.
It is important to note that this amendment only provides a framework to facilitate the extension of AusCheck’s background-checking functions to aviation and maritime transport. If any government seeks to actually use the AusCheck national security back-ground check in a new context, it will have to separately develop the legislative or other regulatory provisions to transfer those functions to AusCheck. This bill merely paves the way for AusCheck to take on additional integrated and coordinated background-checking functions, in other high-risk industries, under new legislation in the future—should a government be inclined to do so.
It is not hard to envisage other high-risk contexts where there could be a perceived national security risk and when it would be in keeping with the public’s expectations to implement well-integrated and well-coordinated background checks on the employees involved. Indeed, the explanatory memorandum makes note of a Council of Australian Government review of hazardous materials, which has identified access to sensitive biological materials as an area where activities could be regulated to further address national security risks. Of course, any future legislative instrument that compels background checking through AusCheck will need to strike a balance between the rights of the individual and the safety of the community. I trust that such concerns will be taken into account if or when those legislative or regulatory provisions are drafted.
Our world is certainly in a significant period of transition, and we will need to be adept at adjusting our policies and capabilities in order to protect our country from unprecedented challenges and threats. The AusCheck service has gained widespread acceptance across the Australian aviation and maritime industries—which is a good thing—and it has also achieved results in improving the speed, reliability and consistency of background checking. I am supportive of the amendments in this bill, which will enable the government to build expertise in background checking for other systems and processes, particularly where there is a strong community interest in such checking. I therefore commend the bill to the House.
in reply—I would like to thank all honourable members for their contribution to the debate on the AusCheck Amendment Bill 2009. I will respond to the issues raised in the debate in a few moments time. I am tabling today an exposure draft of the proposed regulations, a privacy impact assessment of this bill and a commentary prepared by my department. The exposure draft regulations are intended to give an indication of how a national security background check might look. I must emphasise at this point that these are indicative regulations only. The actual form of the regulations would be tailored to the particular circumstances in which the background check is required. The purpose of tabling these exposure draft regulations is as an aid to those interested in this area of policy and to foreshadow the government’s thinking. Specifically, the exposure draft regulations are intended to give an indication of a national security background check in action.
In a similar vein, and also to assist members in their consideration of the AusCheck Amendment Bill, I am also tabling the privacy impact assessment that my department commissioned as part of the drafting for the bill, as well as a commentary on the privacy impact statement prepared by my department. A privacy impact assessment is a way of measuring the privacy impacts posed by legislative, policy or technological initiatives. The privacy impact assessment was undertaken by an external consultant, and members may find both the privacy impact assessment and the departmental commentary useful in demystifying the operational aspect of the bill. Members will note that not all recommendations of the consultants were accepted, but where that has occurred there is an explanation as to why the particular approach was taken. The exposure draft regulations, the privacy impact assessment and the commentary will be made available on my department’s website.
Before I respond to the points raised in the debate, I would like to take a moment to note an important contrast between the current bill and the AusCheck Bill as originally presented in 2006. This bill differs from the 2006 bill when it was first introduced in that, under the current bill, a requirement for background checks would need to be established by separate legislation. Under this bill, the Attorney-General cannot set up a new background-checking scheme via AusCheck regulations. The scope to do that was one of the concerns about the 2006 bill. The framing of the current bill is therefore consistent with the Senate Standing Committee on Legal and Constitutional Affairs recommendations on the 2006 bill.
I note the member for Farrer’s concerns—genuinely expressed and well articulated—about the operational provisions in this bill’s newly proposed section 8(c), expressing the view that the way it is presently drafted is possibly too broad. The bill is designed to confer on the Attorney-General’s Department the capacity to do background checking for national security purposes—and, obviously, this is why the bill refers to national security background checks. Importantly, new national security checks must be supported by separate legislation. The bill does not in itself allow the commencement of new checks or impose requirements for background checks. Separate legislation will have to be introduced to prescribe such a requirement. If a new requirement for a national security background check is approved and that background check is to be conducted by AusCheck within my department, it will then have to be included in the AusCheck regulations—regulations I will be responsible for. If a background check is not for a national security purpose, it would be within my authority to decline to make regulations incorporating that check into the AusCheck scheme. These regulations would have to be tabled in parliament and would be disallowable.
With specific reference to the proposed paragraph 8(c), I understand that at the time of drafting there was a concern that, because ‘national security’ does not have a precise legal or constitutional meaning, it was better to refer broadly to the constitutional heads of power that could support such a checking regime. And that is why the definition in proposed paragraph 8(c) draws on both the executive power and incidental legislative and executive power. However, these references need to be read and interpreted in the context that the overarching term being used is ‘national security background checking’ and against the specific national security related matters listed in proposed subparagraphs 8(c)(i) to (iv). The executive and implied legislative and executive heads of power included in amended section 8 would be read down, and appropriately read down, to that national security context.
I note the member for Farrer is concerned that people with criminal records are being allowed to work on our docks. The maritime security framework, which was established by the previous government and continued by the current government, only excludes those persons with certain types of convictions from receiving an identification card. Specifically, consideration was given to those types of convictions which were considered to have likely or potential national security repercussions. It should be noted in this context that the MSIC regime was introduced to address terrorism related concerns and not criminality per se. Current security vetting of waterfront employees under the MSIC regime does not necessarily prohibit persons with criminal records from being employed. Essentially, it depends on the particular crime which was the subject of the record. But I should indicate that that framework is being reviewed by the Minister for Infrastructure, Transport, Regional Development and Local Government, so criticisms of the criteria can and will be looked at in that review.
I note that the member for Farrer is also concerned about access to online verification systems being controlled. AusCheck requires an entity seeking access to online verification services to make an application, on the basis of which access can be granted. The processes are governed by the AusCheck manual. In a nutshell, any entity that has control of access to the secure zones in aviation and maritime areas, such as that for which an ASIC or MSIC is required for access, is eligible. There are a number of both private sector and government bodies with those roles, including all issuing bodies that have been granted—for example, Qantas, Virgin Blue, Sydney airport, Melbourne Airport and Customs in its role as an entity with staff assessing these zones, and there are some others. AusCheck approval is required for access conditions because access must be signed for and AusCheck retains an audit log of such access. Nonetheless, I appreciate the sincerity with which the member for Farrer identified these matters. The member for Werriwa spoke of his direct experience of aviation security control and access processes at Sydney airport. I acknowledge and value the honourable member’s practical experience in this area. I note his point that many processes have been tightened and improved in recent years.
In concluding, a background check for national security purposes offers a tool for meeting national security policy objectives, including coordinated and enhanced background checking regimes relating to high-risk industries, and gives greater consistency in control of hazardous substances. A national security background check will provide the capacity for the Attorney-General’s Department to conduct background checks to support regulatory regimes focused on identifying individuals who could present a national security risk if allowed access to high-risk places, things, substances or even positions. Where the government decides that a background check should be a national security background check, as I have indicated, separate legislative authority would be required to establish the requirement for such a check.
The bill also amends the act to authorise the use of identity verification information where it is required to verify the identity of a particular individual. A national security background check is a means to achieving greater national consistency in relation to regulation of access to certain things and places for national security reasons. The bill is another important step forward in the government’s commitment to improving national security generally and I commend the bill to the House.
Bill read a second time.