Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

I move Democrat amendment (1) on sheet 5015 revised:

(1)   Schedule 2, item 4, page 6 (line 18), after “notice”, insert “stating reasons”.

I have addressed already the substance of this amendment in my remarks in the second reading debate. Simply put, the amendment asks that the notice that must be supplied to a person who is excluded from a prescribed place must now state the reasons for their exclusion from the area. This amendment is requested because it sets up a system of natural justice—that is, the person would have the reasons and could therefore object to them. It is quite usual for such notices to have reasons. I think, as do many others, that their omission in this particular instance is not justified.

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

It might be worthwhile for Labor to put its position on the amendment moved by Senator Murray requiring a statement of reasons. It might surprise Senator Murray, but Labor will support that amendment. It should not, though, come as a surprise; I think it is a reasonable amendment. If there is an ability to provide a statement of reasons then it should be provided, for transparency and clarity, so that you do not simply get a bureaucrat saying no—because, unfortunately, you then end up with a brick wall and difficulty in finding an answer. Given the range and nature of Customs’ work, you understand that Customs should be able to control an area which is Customs controlled according to section 234AA of the Customs Act. But if they are going to use these powers they should have, and should be required to provide, a reason.

Now, this might extend further or more narrowly than Senator Murray might have provided for, but if that reason goes to issues like security and national security, which I think the minister mentioned, then the statement of reasons should at least say that. It should at least say that that is where the problem exists. It might not then have to go to the detail of all of the reasons that underpin the simple reason that it is a national security or security related issue. You can usually provide a shortened phrase, enough to give the person an explanation.

The explanation might be that the card is cancelled or no longer valid—it could be a range of matters—and the person can go along and remedy the situation. Or it might be an area where there is a significant problem and you may not want to enliven the issue. Then you can provide a shorter statement. In this instance the onus needs to be placed on the person controlling the area to provide a statement. It seems a reasonable way of going about it. I will not add any more to that. In all of these things when decisions are made it does help that people understand the basis for them.

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

I advise the chamber that there will be administrative guidelines which set out the discretionary basis on which the decision can be made and in any notice there will be a provision for reasons. That will be governed by administrative guidelines. We do not think that it is appropriate to put that in the bill. It is more of an administrative nature dealing with the day-to-day work of Customs officers and we have dealt with it elsewhere in a similar fashion. Administrative guidelines are the way to go, not putting it in the bill as such. For that reason we oppose the Democrat amendment.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

Minister, does that decision of the government mean that you don’t exclude giving reasons? In other words, can the administrative guidelines allow for reasons to be given?

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

We do not exclude reasons. The administrative guidelines will provide for reasons. It is how you incorporate it. Senator Murray, the amendment is one that puts it in the bill. We are saying that we would rather do it by administrative guidelines, and on the notice which is issued by Customs there will be a space to put reasons. It is not intended to exclude reasons but to do it differently. I think that we have arrived at much the same point but by a different path.

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

The only difference, it seems to me, is that both Senator Murray and I prefer to see it in the legislation so that it is a requirement. You will then always deal with guidelines; you will then provide for those matters, and I am confident that Customs do that as a matter of course. In this instance, given the nature of the power to be exercised, in Labor’s view it is better placed in the legislation. I think that is the short point that we have now arrived at.

Question negatived.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

by leave—I move Democrat amendments (3) and (4) on sheet 5015 revised together:

(3)    Schedule 2, item 4, page 6 (line 21), after “on”, insert “a place”.

(4)    Schedule 2, item 4, page 6 (lines 22 to 32), omit paragraphs (1B)(a) and (b) and all the words to the end of the subsection.

I briefly motivate those amendments as follows. Amendment (3) is in essence an attempt to remove confusion and to ensure clarity. A ‘place’ is already defined in section 77F of the Customs Act and is described as an area or part of a building. This amendment, as you can see, simply says that in the particular section after ‘on’ insert ‘a place’. It produces greater clarity.

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

It is a matter that I am not going to support, though I understand the motivation behind it. It goes beyond the committee’s recommendations. It would have been helpful to explore the issue during that committee process to then hear some of the responses. We will get an opportunity to hear the government response as to why it may not be reasonable to put the word ‘place’ in there—it can sometimes have an unintended consequence. I do not want to rely on that. I am going to oppose the amendment on the short principle that I have not had an opportunity to look at it in depth and the committee has not had an opportunity to explore it. I am not closed on it; I will certainly listen to what the government has to say in respect of this proposal. But short of any of that or hearing a convincing argument from the government as to accepting it, Labor will continue its opposition to it.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

I neglected to expand on amendment (4). As you will see, amendment (4) admits the definition of ‘place’. It limits the application of this amendment to a place as defined in the act in section 77F and includes an area or part of a building. Further, section 234AA sets out provisions in similar terms as proposed amendments and includes areas which have signs displayed or designated areas in airports for examination of baggage and questioning of people. It is hard to understand why there is a necessity for this extra layer of definition of what a place means for the purpose.

If I can suggest to both the shadow minister and the minister, you need to allow a place to be designated as broadly as possible and not keep amplifying it with additions such as those which I am seeking to omit. Essentially, I am trying to get consistency through both these amendments. If the government wishes to include different types of areas, in my opinion you should rather focus on amending the definition of a place and not have it amplified as you have within the general legislation. Perhaps it is a stylistic difference but I think that it is a better drafting concept that I am trying to put forward.

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

The government opposes these two amendments on the basis that this would broaden the application, if you like, of the written notice to the extent that we are confusing a controlled area with a place, ‘a place’ being defined in a more general sense. The provision would be exceptionally wide-ranging and would fail to address the core problem of people misusing their access to a section 234AA area, or ‘controlled area’ as I have referred to it earlier. Were we to accept these amendments, the provision would apply to any place at which there was some Customs presence, and we believe that to be too broad. I can understand Senator Murray saying let us be consistent and refer to place as described in the legislation. That has a much broader application, and we prefer to address the controlled area only. That is where we have our issue, and the Wheeler report dealt with a controlled area as being one which is under the control and responsibility of Customs and one where you have those powers which I mentioned earlier. For that reason the government opposes these two amendments.

Question negatived.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

I move Democrat amendment R(5) on sheet 5015 revised:

(5)    Schedule 2, item 4, page 6 (after line 32), after subsection 234A(1B), insert:

      (1C)    For the purposes of subsection (1B), the exercise of the power of a Collector of Customs to issue a written notice directing the holder of a security identification card not to enter into, or be in or on a section 234AA place, or other relevant place, is limited to circumstances where an immediate criminal or security threat or emergency is present in the section 234AA place, or other relevant place.

     (1D)    A Collector may not issue a direction in accordance with subsection (1B) to a person who is a member of one of the following classes:

             (a)    a person holding a valid visitor identification card;

             (b)    a person holding a valid security identification card;

             (c)    a lawyer attending in his or her capacity as a lawyer;

             (d)    a medical practitioner attending in his or her capacity as a medical practitioner;

             (e)    a union official attending in his or her capacity as a union official;

              (f)    a translator attending in his or her capacity as a translator;

             (g)    a member of such other class of persons as may be prescribed by the regulations for the purposes of this paragraph.

The amendment attempts to reflect the recommendation of the committee to limit the exercise of the power of the Customs officer to immediate criminal or security threats or an emergency presence in the section 234AA place or other relevant place. The amendment to section 234A(1B) attempts to set up a system where Customs can exclude anyone it likes from certain areas, whether or not they have a security identification card. As I have pointed out previously, if a person has had their bag searched and needs a translator or lawyer then the Customs officer could exclude the person who would be there to assist the person of interest without giving reasons. I am moving the amendment to ensure that certain people with specific skills are not able to be excluded by Customs and must be given access for legitimate purposes.

I know the minister addressed this in his second reading speech and indicated that he felt it was not appropriate for the government to support the committee recommendation. I nevertheless hold to the view that if you are starting to move to limit civil liberties in the way you are, it is better to do so on a restricted basis and then, if you discover that that restricted basis is insufficient, to advance it more broadly. The government seems to be taking a very broad attitude in its restrictions right at the outset.

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

I understand the point Senator Murray is providing for; it is really tied up with the previous part. I simply express the view that we do not support it rather than that we oppose it. It is a matter which goes beyond the committee report itself. As with all of these things, I understand the time pressures on the Democrats and minor parties. It is helpful if we can explore some of these matters in the committee process, too. That way the committee can have a look at those issues, ask Customs about them and hear their response. But, as I said earlier, I will listen to the response from the government and if there is a strong argument for changing Labor’s view I will certainly be open to it. But at this time I am not in a position to support the amendment.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

Just to clarify for the shadow minister: you recognise that this puts in place a recommendation of the committee itself? I am surprised by your reaction. Does that perhaps mean that you have moved back from that position, or did you misunderstand my motivation?

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

The amendment goes beyond the committee recommendation. I did not want to say this, but if you had been able to participate in the committee process you may have been able to argue this issue and we may have been able to have a look at it. But it goes beyond the committee recommendation and I have not had it fully argued and I have not listened to the responses from the government about it. That is why I have indicated that I am happy to hear what the government might say about it. If you had confined yourself to the committee recommendation we might be in a position different from where we are now. I have read the provision you put forward and rather than using the word ‘oppose’ I have used the phrase ‘not going to support’ at this point. I understand the arguments that you have put and I understand the point you are seeking to make. Where it goes beyond the committee recommendation itself I have not had the time to put those issues through the committee—I am a member of it—and have an argument and dialogue about how it would affect Customs. That is for the minister to tell us.

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

This amendment does move in the direction of the first recommendation of the Senate Legal and Constitutional Legislation Committee. It sets out a class of people, though, which will be included and I do not think the Senate committee went as far as listing the classes of people who should be exempted from the amendment. I think the government’s remarks in relation to the first recommendation of the Senate Legal and Constitutional Legislation Committee really do apply to this amendment as well, and I rely on those remarks. We believe that Customs should have the ability to scrutinise those cardholders not just in the context of a critical issue or an immediate danger but in a wider sense. For those reasons we oppose the Democrat amendment.

Question negatived.

Progress reported.