Robert McClelland (Barton, Australian Labor Party, Attorney-General) Share this | Hansard source

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.

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