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

I rise to speak on the AusCheck Bill 2006. This bill seeks to provide a regulatory framework for the conduct of a centralised background criminal and security checking service. It will be operated by the Attorney-General’s Department for persons requiring access to security zones in the aviation and maritime industries. AusCheck is being established as a service agency. It is intended that it will act as a service provider in its provision of background checking coordination services. It will have a formal provision to extend the operation of the provisions in the bill to all external territories of Australia.

Labor keeps a watchful eye on all bills presented by this government. They too often contain serious oversights or sweep away important freedoms. Who could forget the government’s ‘strip-searching of minors’ legislation, tabled in parliament in 2005? When you look at the mistakes the government has made in some of these bills, you see it is becoming more out of touch with Australia’s concepts of fairness and proportionality.

This is another example of a flawed bill. In the House of Representatives, Labor called for this bill to be examined by the Senate Standing Committee on Legal and Constitutional Affairs. The government’s original plan was for this bill to provide the authority for the department to coordinate background checks on applicants for the Aviation Security Identity Card, more commonly referred to as ASIC, and applicants for the Maritime Security Identity Card, or MSIC, and any subsequent schemes. I underline the phrase ‘and any subsequent schemes’. Allowing the arbitrary addition of subsequent schemes by regulation was a warning sign, and because of that we asked the Senate Committee on Legal and Constitutional Affairs to look at the provisions of this bill.

The Senate Legal and Constitutional Affairs Committee subsequently made 10 recommendations. I understand that the government has foreshadowed that it will adopt recommendations 1, 2, 3, 4 and 10, a matter that the minister will deal with in his summing-up speech. This is appropriate and particularly important when you look at recommendations 1 and 2. We think the government has come to that position in a sensible way.

Section 5 of the bill defines a background check as information relating to one or more of the following:

(a)

an individual’s criminal history;

(b)

matters relevant to a security assessment of the individual;

(c)

the individual’s citizenship status, residency status or the individual’s entitlement to work in Australia, including but not limited to, whether the person is an Australian citizen, a permanent resident or an unlawful non-citizen;

(d)

such other matters as are prescribed by regulations.

Recommendation 1 is that subclause 5(d) of the bill be removed. It seems that in the making of a regulation you can, with one strike of the pen, add whatever information to what constitutes a background check to regulations. In Labor’s view, that clause lacks accountability and proper oversight. Labor in the other place was critical of this provision. The Senate committee recommended removing that clause. I will not go in detail to the recommendation and the committee’s comments about it. It was a sensible recommendation and I am pleased the government has picked it up.

Section 8(1) of the AusCheck Bill states:

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

(a)

for the purposes of the Aviation Transport Security Act 2004 or regulations under that Act; and

(b)

for the purposes of the Maritime Transport and Offshore Facilities Security Act 2003 or regulations under that Act; and

(c)

and we see that phrase again—

for such other purposes as are prescribed by the regulations.

It seems to me that this scheme was not complete when they put this framework in place. The committee, in recommendation 2, recommended that this provision be removed. Labor raised similar concerns in the other chamber, and I think I can say that it was obvious through the committee process that even the department was not sure what purpose it would be put to ultimately. It is more sensible if there are to be substantive amendments or additions to this bill that they be made in this place and not by regulation. If the government want to extend the scope of the background checking scheme to other bills and occupations it is appropriate that they come to parliament and adopt a process where an amendment can be made to a bill, it can be properly examined and debated and even sent back to the Senate Legal and Constitutional Affairs Committee for examination, if necessary.

The government has not adopted recommendations 6 and 8 of the Senate committee. Recommendation 6 proposed that the government delete information from the AusCheck database that is not relevant to the background check for which it has been collected, used or disclosed. Recommendation 8 suggested that the bill be amended to impose appropriate conditions and limitations on the use and disclosure of personal information by a third-party agency to which AusCheck has lawfully disclosed that information. Labor believe that these recommendations still have merit but, given the changes agreed to by the government, we might rest on that point and accept that the government has moved some way. It is pleasing to note that, and we will not pursue those matters here.

But, if the government is refusing to adopt recommendations 6 and 8, then recommendation 9 is one that we will recast to the government, asking if it would be amenable to amending the legislation to specifically include the requirements that AusCheck provide periodic reports to parliament. We think it is a sensible approach for there to be periodic reports about matters including the number and type of background checks that it conducts, the average time taken to conduct background checks, the legislative scheme under which background checks have been conducted, the number of individuals who have received adverse background checks and the basis for those assessments, and the agencies with which information obtained by AusCheck has been shared and for what purposes.

It seems logical to provide a report of that order to parliament. It ensures that there is transparency and accountability. If the government thinks the matters covered by that should be broader or have more specificity, the opposition would look at that seriously. The opposition cannot see why that type of information cannot be provided and laid before parliament. The government has a range of bills that provide for that type of information to ensure there is transparency and accountability, and it would be familiar with those. They relate particularly to the use of surveillance devices and the use of various other warrant processes, and the telecommunications legislation provides for that type of information as well. It is summarised and provided in a report that is laid before parliament. That also creates a check and balance to the way this type of information is collected and used.

We do not want to step over privacy principles, of course, and we do not seek to do that. What we seek to do is look at aggregate figures, so those sorts of concerns are not wrapped up in our foreshadowed request. In matters where practical security requires privacy concerns to be balanced against security requirements, statistical reporting of the use of the power is essential. It is essential to be able to ensure that this type of information is collected appropriately. If there are issues we can argue about them at estimates and on the tabling of the report and raise them with government. Without that information we are left to an estimates process to be able to draw it out. As we have seen with AWAs, the government sometimes is not as forthcoming as it should be in respect of the statistics and information that we request. So we are concerned that the government may choose to hide behind the detail of how this scheme will work without reasonable transparency, and it is a concern that we place highly because it is important that this type of information is collected and used for the appropriate purpose for which it was intended. I foreshadow therefore that Labor will move an amendment to give effect to that recommendation.

The best option today would be a full implementation of the bipartisan Senate Legal and Constitutional Affairs Committee recommendations. After all, what Sir John Wheeler intended in his recommendation for a centralised data collection agency was a means to improve aviation security. That is important to Labor. Labor has been critical of the government’s rollout of the ASIC system and its failure to implement the Wheeler recommendations on aviation security. The ASIC system and aviation security in Australia do need reform. Labor recognises that. In 2005 the minister for transport set an arbitrary cut-off date for ID card applications of 31 December 2005, failing to take into account the time taken for pilots to pay for and receive police checks. That deadline did not take into account ASIO’s Commonwealth Games workload. What happened was that the minister was then forced to change the deadline to 31 March 2006, which still did not fix the problem. Pilots who missed the original December deadline but submitted their applications by the March deadline still have not received their ID cards and will not be able to access their planes.

What about lost and stolen ASICs? In the Joint Committee of Public Accounts and Audit hearing on 23 November 2005 we heard that 384 ASICs were either lost or stolen. On July 2006 the magazine Australian Aviation contained an article referring to a person from the Australian Aircraft Owners and Pilots Association who went to collect his ASIC from Qantas in Canberra. He was shown a box of red plastic cards on their lanyards and was left to sort through them in an unsupervised way, as I understand it. He was concerned that he could have pocketed any quantity of ASICs he wanted. The threat to Australians took a step up on September 11, 2001, making the mismanaging of the aviation sector a genuine concern and threat to the public. The government have been in power for 11 years. They must take the issue seriously and address the problems on Australian waterfronts and ports.

The government rolled out a maritime security identification scheme. That involved background checks on Australian maritime workers whilst leaving foreign vessels and crews unchecked. That is a concern when you think what that means. They have ensured that the maritime security identification scheme would be rolled out for Australian maritime workers while leaving foreign vessels completely unchecked.

In April 2005 the Australian Strategic Policy Institute published a damning report on the state of Australia’s security arrangements called ‘Future unknown: the terrorist threat to Australian maritime security.’ That report identified the danger of foreign flagged vessels carrying dangerous goods around the Australian coastline. So too we have warned the government about the dangers of ammonium nitrate being freighted around our coastline by foreign flagged vessels with foreign crews that have not undergone background checks. Labor has also pointed out that a range of groups, such as Abu Sayyaf and Jemaah Islamiah, have the skills and opportunities to launch these types of maritime threats against Australia. These groups operate in South-East Asian waters and they are near to our coastal regions. Reports from United States intelligence sources indicate that the al-Qaeda group is suspected of owning or having a long-term time charter on a fleet of 15 to 18 bulk and general cargo vessels. These are matters that are known to both Labor and the government.

Let us think about some of the issues that surround that and, of course, the need to ensure that the issue of maritime safety is considered of paramount concern by government and that they actually start doing something about upgrading our maritime security. At the moment it looks like it is moving at a snail’s pace. Turning to the content of this bill, Labor supports centralising the MSIC and ASIC vetting systems, but the government must really get a move on and make urgent upgrades to Australia’s transport security sector. I will also take the opportunity to move a second reading amendment that has been circulated. I will not go into the detail of it; it is there for others to read. The failures of this government are there for the record.

Concern is not only confined to this area. When you look broadly at the issues that are contained within this bill, you will see that the government is really trying to catch up, after 11 years of trying, to ensure that it can manage security identification cards. It is disappointing that, even with this government trying to centralise by putting a scheme in place in the AG’s portfolio and even with the framework legislation, when you look at the report from the Legal and Constitutional Affairs Committee you see that not enough work was done or attention was paid. Even more damning, I think, is the fact that it is significantly late. This should have been thought through and strategically planned much earlier and been developed and implemented rather than the ad hoc approach that this government has taken to security. I move the second reading amendment standing in my name:

At the end of the motion, add:

        “but the Senate condemns the Government for its failure to provide necessary security upgrades to protect Australians, including:

             (a)    its careless roll-out of the Aviation Security Identification Card (ASIC) scheme, which flawed roll-out included the loss or theft of ASICs and a history of airport security bungling;

             (b)    its delays in rolling out the Maritime Security Identification Card scheme and its careless and widespread use of single and continuing voyage permits for foreign vessels with foreign crew who do not undergo appropriate security checks;

             (c)    permitting foreign flag of convenience ships to carry dangerous goods on coastal shipping routes without appropriate security checks; and

             (d)    failing to:

                   (i)    ensure ships provide details of crew and cargo 48 hours before arrival,

                  (ii)    x-ray or inspect 90 per cent of containers,

                 (iii)    establish and properly fund an Australian Coastguard, and

                 (iv)    establish a Department of Homeland Security to better coordinate security in Australia”.

Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to this | Hansard source

I rise on behalf of the Australian Democrats to address the AusCheck Bill 2006. I begin by acknowledging those amendments that the government has put forward that take on board some of the concerns and indeed the recommendations in the Senate committee report. The Democrats will be supporting those amendments. The Democrats will also be supporting Senator Ludwig’s amendment to the legislation on periodic reporting. However, the Democrats are, certainly at this stage, not convinced by the second reading amendment that has been put forward by the Labor Party. That specifically relates to part (d) of that second reading amendment. Although we have some support and sympathy for the criticisms or comments contained in the second reading amendment, it is not Democrat policy at this stage to establish a department of homeland security.

The Australian Democrats do support a strengthened system for probative checks in the aviation and maritime areas. However, we have strong concerns about a system that does not necessarily improve on current arrangements for background checking nor necessarily balance important security employment, sentencing and privacy principles. It is in wearing my privacy spokesperson hat for the Democrats today that I make most of my comments.

The system fails to adequately protect Australians’ criminal history information sufficiently to warrant such a disproportionate intrusion into Australian workplaces. There is no question that security threats have contributed to a dramatic increase in criminal record checks. Advances in technology have also made criminal history checks faster, less expensive and easier to obtain from a variety of sources. Add to this the requirement for criminal checks for public sector employees, as well as the numerous state and federal laws that require criminal background checks for certain categories of work, and the result is that an applicant for nearly any job will face a criminal background check which looks for a multitude of different offences.

In his 2006 report to the Victorian Attorney-General, entitled Controlled disclosure of criminal record data, the Victorian Privacy Commissioner, Paul Chadwick, highlighted this boom in criminal record checking. He said:

Statistics indicate an enormous increase in criminal record checks carried out in Victoria from 3,456 in 1992/93 to 221, 236 in 2003/04—more than a 60-fold increase over 10 years. Use of the national criminal record checking service offered by the CrimTrac Agency by accredited agencies (such as the Victorian Institute of Teaching) is also on the rise. CrimTrac reports almost a doubling in the number of checks carried out nationally, increasing from 617,000 in 2003/04 to 1.1 million in 2004/05.

While this bill is essentially about establishing the architecture of the AusCheck scheme, the Democrats note that it is also part of this wider trend in employment to make mandatory the checking of criminal records. In its submission to the Senate inquiry, the New South Wales Council for Civil Liberties talked about the continuation of the trend towards a centralised database at a national level. Under this proposal AusCheck is to be the preferred background, criminal and security checking service for persons requiring an aviation or maritime security identity card. Cardholders are able to access security zones in the aviation and maritime industries, which are not generally accessible to members of the public. As recommended by the Wheeler inquiry into airport security and policing, AusCheck will replace the 188 separate agencies and entities that have issued ASICs and MSICs until now.

The key driver for the establishment of AusCheck is the national security imperative to protect the aviation and maritime sectors from terrorist threats and attacks—and we understand and support that particular motivation. But there are several issues with this bill, most of which Senator Ludwig has already pointed out. The Senate committee, chaired by Senator Marise Payne, should be congratulated for highlighting the deficiencies in this bill, particularly with regard to the breadth of the regulation-making powers, the handling of privacy issues and the lack of transparency, natural justice and independent review mechanisms.

It is worth noting that the same criticisms were levelled at the government less than two weeks ago in relation to another identity system—the proposed access card—and similar criticisms have been made of the government for its anti-money-laundering legislation. I am particularly concerned that much of the important detail as to how this scheme will operate has been left to regulation—again, emulating the concerns of the Senate committee and, indeed, the previous speaker. The Democrats advocate that, wherever practicable and feasible, the scope and purpose of legislation should be clearly articulated and limited in primary legislation but not in secondary or delegated legislation.

In its submission to the Senate inquiry into the bill, the Australian and International Pilots Association stated that there is an increasing trend of utilising regulation-making powers to extend the scope and purpose of legislation. The Democrats agree with the sentiments of the Australian and International Pilots Associations. In an area as important and delicate as background security checking, there is a danger that a regulation-making power poses a risk that fundamental rights may be sidestepped without recourse to parliamentary debate.

I turn to the definitions within the bill. There is no definition of ‘criminal history’ in this legislation. It would be helpful if the relevant offences which would bar a person from being granted access to specified information or a specified place under this bill were provided for in this legislation. I note that the definition of ‘background check’ includes a security assessment of an individual. I am curious as to whether any background check, by virtue of this particular provision, would extend checks into any associations an applicant might have that would preclude the issue of clearance to a controlled or limited area. Such associations, I imagine, would include, for example, membership of a gang, having a spouse or a close relative who is involved in crime or having an address that is associated with criminal activity. So how far will this check extend? Will innocent households, for example, be caught up in this process?

More importantly, I would argue that, no matter what state they reside in, every Australian who has been convicted of a minor offence should have the right to have their criminal records forgotten in very clear and specific circumstances. Not all types of criminal offence will necessarily be relevant for background criminal checking, nor should a criminal offence necessarily bar a person from working in the aviation and maritime industries. Divulging records in relation to minor offences can shatter the newly found respectability of former offenders and may ruin their future and cause their friends and relatives to shun them. It is part of the recognised general principles of sentencing law that the public has an interest not only in punishing and deterring criminal behaviour but also in rehabilitating offenders and returning them to society as productive and law-abiding citizens. So how we handle such questions in relation to, for example, background checks on an employment application or a job interview is of real concern.

More importantly, the nature of criminal history information released through the AusCheck program is likely to vary depending on the legislative provisions in each state. AusCheck will be able to access information under three general release categories based on the Commonwealth spent conviction legislation and those states that have chosen to mirror the Commonwealth scheme. Categories include no exclusion, partial exclusion and full exclusion. On this basis, agencies can access information ranging from disclosable court outcomes only to a full criminal history. There are varying spent conviction schemes together with the differential information release policies that we are seeing across jurisdictions. Surely these will also have an impact on the type of information and the amount of information that can be released to agencies.

I think that as a matter of urgency the Commonwealth should be encouraging, presumably through the Standing Committee of Attorneys-General, moves to ensure that there is some kind of uniform, universal definition of criminal history and a uniform approach to the disclosure of criminal history information. The minister might want to give us an idea as to whether or not that is something that is on the government’s agenda. I think it is not only germane to this legislation but actually a fundamentally important principle. This is imperative in the information age, when courts grant mercy and leniency yet records are being placed online and effectively individuals are forever being resentenced every time they change jobs or apply for a particular job interview.

In the context of privacy concerns, as we all know, the federal Privacy Act has an exemption for employee records. It is particularly shameful that, while federal and state employees have privacy rights, those workers who happen to be in the private sector continue to be denied some fundamental privacy protections. As we in this place all know, an ALRC review is being conducted at the moment into the Privacy Act, which I am sure will expose a number of loopholes and areas that could be improved in relation to that light-touch regulatory framework that we have for privacy protection in Australia, particularly as it relates to the private sector. This bill demonstrates, for example, how that is problematic for certain workers but not for others.

In the context of AusCheck, the employee records exemption means that Australian employees and contractors in the aviation and maritime industries will have less privacy protection in employment matters. While arguably criminal record checks conducted in the pre-employment context may still be subject to the Privacy Act, it is not clear under this legislation whether this check will be conducted pre or post employment or where the result will end up. In situations where criminal record checks form part of the personnel files of current or former employees of the aviation and maritime industries, almost certainly, surely, their privacy will be exposed.

The real possibility exists that privacy protections afforded to sensitive criminal record information may indeed fall away. There is no requirement under the legislation for AusCheck to give prior notice to the person being checked of the purpose of that particular check or to give, for example, the usual disclosures to third parties or to give the scope of the check and the consequences for an individual of such a check. There is no requirement to indicate whether the applicant is entitled not to disclose convictions for old or minor offences such as summary or traffic offences, for example. Where pre-employment vetting is carried out, there should be an obligation on AusCheck to inform applicants at the time that applications are sought of the fact and the extent of the proposed check. This lets an applicant decide whether to proceed with their application. It is the ‘no surprises’ approach.

Nothing in the bill would guide AusCheck staff as to how to handle an adverse background check. In the same context, I wonder whether the scheme envisages notifying applicants’ employers of the outcome of a background check before the applicant has had an opportunity to make submissions to the secretary. The bill is silent on the complex relationship between AusCheck, an employer and an applicant. I certainly believe that the opportunity to review adverse data should come before or at least at the same time as the information is provided to an employer or any other decision maker, such as the secretary. The subject’s ability to identify problems before or at the same time as an adverse decision is reached is fundamentally fair, given the variance in state reporting requirements as well as the serious concerns about the completeness and accuracy of data reported to similar central federal criminal record repositories like CrimTrac. Some review right is particularly important given that employees generally do not have access to information about the security assessment that ASIO makes in relation to the person which will form part of the background check.

On the matter of CrimTrac, it is important to note that, in order to administer background checking in the aviation and maritime industries, it is necessary for AusCheck to become an accredited CrimTrac agency. I note that CrimTrac, in its submission to the Senate inquiry, said:

The ever increasing incidence in identity theft and fabrication within the community encourages and allows criminal behaviour to circumvent the checking process. The fundamental deficiency is the reliance on limited biodata, comprising name, date of birth and gender, as the sole mechanism for determining if the person the subject of the check is a “person of interest” and has a criminal record.

CrimTrac further states that it is taking a number of steps to address these deficiencies, including consideration of introducing an optional more stringent biometric check—fingerprints—effectively to eliminate the issue of ID fraud, and introducing a continuous monitoring capability based on fingerprints. As anyone in this chamber would know, the Australian Democrats, on a number of occasions, have expressed our concern over this kind of information or data gathering. Any move by government to collect the biometric information of its citizens is something we should be very wary of. As mentioned earlier, the sheer proliferation of criminal record checks will mean that at some time or another the government will be holding a rich source of very sensitive information about Australians. People in this place know just how hard I have fought to ensure that genetic privacy is protected in law. Of course, we need to go to the next step, which is ensuring that we prohibit discrimination on the basis of genetic information. But when we are talking about databases containing this kind of sensitive, personal data about citizens, we need to examine it very clearly.

At the very least, the only valid reason to maintain fingerprint submissions is to verify the accuracy of searches. Even this purpose should have a time limit for when searches must be verified. Presumably many of the searches will be a ‘no hit’—that is, a law-abiding citizen’s fingerprints are routed to federal criminal authorities for the purposes of a routine employment background check. Through AusCheck or CrimTrac it would be inappropriate for the government to incorporate fingerprints of law-abiding citizens into a background-checking process.

The Democrats strongly urge the department not to be influenced to retain fingerprints. A nationwide data file of fingerprints submitted by law-abiding citizens obviously raises serious privacy and due-process concerns. Under such a system, one arrested but never convicted could face loss of a long-time job. Sufficient procedures are already in place to allow employers to periodically review a worker’s background, including criminal records checks.

Some jobs obviously require employees to report an incident, but for the government to maintain a permanent file of submitted fingerprints raises the possibility that at some time those fingerprints will be used for a secondary purpose that has no bearing on the original purpose for which the fingerprints were originally submitted. Such use would violate basic privacy principles. I think it would take us into Big Brother territory, the likes of which the Australian people have yet to see. The strong criticism by the Australian community about having a photograph on the surface of a so-called access card should surely give the government an idea of the kind of concern with which it would be met if they proceeded along the lines of holding biometric data of the citizens of a country.

Finally, the Australian Democrats are concerned that the secretary of the Attorney-General’s Department can give directions to an applicant for a background check or to a person who is authorised to take action relating to matters connected with background information by virtue of the words ‘relating to matters connected with a background check’. It has to be admitted that this is a very broad directive power. At the very least, such directions should relate specifically or directly to those matters connected to a background check pursuant to the regulation.

This process involves an adverse effect on privacy. It may result in lasting damage to the reputations, livelihood and relationships of individuals—damage which may be completely disproportionate to the seriousness of their prior convictions or even their unrecorded findings of guilt and disproportionate to the risk that they may pose to our airports, ports and secure zones. It is important that there should be advance warning, a narrow range of disclosable criminal offences, clear definitions and an opportunity to explain and review rights, and the government should not seek to overreach in this area.

The Democrats have broad-ranging concerns. Many of those specific concerns were addressed in the Senate committee. We will support those amendments before the Senate that seek to implement some of the recommendations proposed by the Senate committee. Again, we will be supporting one of the two amendments proposed by the Labor Party in relation to this legislation.

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

I thank senators for their contributions to the second reading debate and commence my speech in reply by noting that the opposition and the Democrats support the AusCheck Bill 2006, notwithstanding that they require some amendments. In late 2005 the government agreed to establish a centralised background-checking agency as a division of the Attorney-General’s Department. The division referred to as AusCheck is required to commence operations on 1 July this year. It will be responsible for coordinating background criminal and security checks on people who, because of their work requirements, need to hold an aviation or maritime security identification card. The bill we have before us today gives AusCheck the authority to conduct background checks and maintain a database of cardholders; to collect, use and disclose information; and to recover costs for conducting background checks.

On 8 February 2007 the Senate referred provisions of the bill to the Senate Standing Committee on Legal and Constitutional Affairs. In its report of 14 March the Senate committee made nine recommendations for amendments. It also recommended that subject to those recommendations the Senate pass the bill. The Senate committee acknowledged the general in-principle support for the bill expressed by the majority of submissions and witnesses. However, it expressed concern about the breadth of the bill’s regulation-making power, privacy issues relating to the functions described in the bill and accountability mechanisms set out in the bill.

As a result of these recommendations and further advice the department obtained from the Australian Government Solicitor, I will be moving government amendments to the bill during the committee stage. The amendments will give effect to those Senate recommendations that require legislative amendment—a number of recommendations dealing with retention periods for information, deletion of irrelevant information and further use of information lawfully disclosed to third parties; and matters presently provided for in the department’s records disposal authority approved by the National Archives of Australia and in the Privacy Act 1988.

In particular, information privacy principle 10 restricts the use of personal information to the purpose for which it was collected. In its report the Senate committee accepted the Attorney-General’s Department’s assurances that it is obliged to act in accordance with the Privacy Act. So, while the government agrees with the intention of the recommendations, we do not consider it necessary to make amendments that replicate provisions contained in the other relevant legislation. The committee also recommended that AusCheck provide periodic statements to parliament. AusCheck is a division in the Attorney-General’s Department and the department is already required to provide annual reports in respect of all of its functions. It is therefore unnecessary to amend the legislation to respond to this recommendation.

The majority of the Senate recommendations will be implemented through the government amendments I intend to move tonight or tomorrow. In effect, these amendments restrict AusCheck to coordinating the current background-checking elements of the aviation and maritime security identification card schemes. In addition, the new background schemes, such as checks on people who are responsible for the care of the elderly or of children, will need to be made by amendment to the act and not by regulations as originally set out in the bill.

The amendments also tighten provisions relating to AusCheck’s ability to retain and share personal information. The Senate committee recommended that access to the AusCheck database be confined to three listed agencies: ASIO, the Australian Federal Police and the Australian Crime Commission. There is no question that what is intended is that law enforcement and security agencies can access the database for legitimate law enforcement and security purposes. However, it would be difficult to list the agencies that would have a lawful entitlement to access the information, because the act would have to be amended each time a new organisation is created or an existing agency changes its name or administrative structure. This is a problem we have encountered in relation to other legislation where a list approach has been adopted.

As an alternative, the government will move amendments to more closely specify the purposes for which the information in the database can be used in relation to criminal and security intelligence rather than listing specific agencies authorised to have access to the information for those purposes. This amendment gives effect to the intent of the Senate committee recommendation—an intent which the government agrees with.

The government will also move amendments designed to clarify the original intention of the bill and to remove any doubts about the way in which AusCheck will operate. The definition of ‘personal information’ has been expanded to clarify the original intention and expected operation of the scheme. Personal information includes the card number of the ASIC or MSIC issued to an individual and the photograph of the individual that appears on the card. It would be of little value to issue MSICs and ASICs if providers could not verify whether a card had been issued, to whom and the currency of that card.

Provision has also been made for the collection of identity information for verification purposes. This will commence when a suitable identity verification system—namely, the document verification system, DVS—becomes available. AusCheck has advised industry not to collect identity information for the purposes of the AusCheck scheme until such time that AusCheck is in a position to make use of the information in accordance with the information privacy principles.

A final amendment to clause 17 of the bill is proposed to ensure the constitutional validity of clause 17, which authorises the use by the Commonwealth of the name of AusCheck in providing background checks under the provisions of the bill. The provision gives legislative authority for the name to be used in this context, regardless of any other usage of the name. However, there is a small chance that a person may have some property in the name that would be affected by the Commonwealth gaining authority to also use it. Such a situation could result in the technical acquisition of property. This amendment is included as a precaution to ensure that that provision does not fail.

I would like to thank the Senate Legal and Constitutional Affairs Committee for their considered inquiry. I look forward to outlining the government’s implementation of the committee’s recommendations in the Committee of the Whole stage. Before I complete my summary, I just want to turn briefly, as did Senator Ludwig, to some of the matters contained in the opposition’s second reading amendment.

With respect to the complaints about the flawed rollout of the ASICs and references to lost ASICs, the commencement of the AusCheck and its centralisation of background checking should improve the ability to monitor the cards. It is of concern when cards are unaccounted for, but the number of non-returned cards compares favourably with the non-return rate for other identity documents—by way of example, drivers licences and passports. Of the 1.2 million Australian passports issued each year, some 25,000 are reported lost or stolen, representing about 2.1 per cent of all Australian passports issued annually. The comparison with identity cards—ASICs—is a favourable one: about 1.5 per cent are reported lost or stolen.

We are working with industry—and this is where the government is light-years ahead of the opposition; we work with industry; we do not mandate things for industry to be dragooned into adhering to legislation—to implement best practice measures to manage issues relating to lost, stolen or expired cards. Industry members have advised the government that they have established practices to do so. They include confirming the identity of the holder with a photograph at manned access points; disabling any electronic access rights that may have been included on the ASIC as soon as it has been reported lost or stolen; reporting the loss of a card to police; routinely auditing irregular card use at points not authorised for the holder; and routinely reviewing ASICs with unusual characteristics, such as those that have not been used for some time or those with an unusual expiry date.

A further complaint in the opposition amendment is that there have been delays in rolling out the maritime security identification card scheme. In relation to these cards, the rollout began on 1 January 2007 and commenced very smoothly. I say that again for the benefit of senators on the opposition side: it commenced very smoothly. The first round of temporary cards was issued from the end of December 2006 to those people who applied for them before 27 October 2006. These temporary cards expired on 31 January 2007. The government has been actively working with industry to urge those who had not applied to take action and to do so at their earliest convenience. The government and the issuing bodies are continuing to process applications as promptly as possible. However, some delays may occur depending upon individual circumstances—particularly, for instance, if an applicant has a criminal history. In that case we would hope that there would be some delay. Obviously processing can take longer in those circumstances.

I will turn now to the complaint about foreign ship security. In relation to those foreign ships, as I have mentioned, there is pre-entry reporting. Every ship seeking entry to Australia is subject to a comprehensive security assessment, regardless of the flag it flies. This includes every ship carrying ammonium nitrate to an Australian port—obviously a very important consideration. The security risk assessment takes into account all relevant information about the ship, including the nature of the ship’s cargo and its operations. This information is collected from mandatory ship and crew reports, which are required within certain time frames, depending upon the length of the voyage. Any ship failing to comply with pre-entry reporting requirements or identified as posing an unacceptable risk can be refused entry into Australia or into an Australian port. Any ship so identified as posing a security risk, whether because of crew, cargo or other factors, would not be allowed entry into Australia.

Lastly I want to talk about an old chestnut from the opposition—and that, of course, is the department of homeland security, which I think is set out in the second reading amendment clause (d)(iv). There the opposition seeks to ‘establish a Department of Homeland Security to better coordinate security in Australia’. Like most opposition proposals when it comes to national security, it is moribund and bound in bureaucracy. We only have to look at what happened with respect to the coastguard, where we had a sniper strapped to the side of a helicopter to shoot out the controls of a fishing boat.

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

Senator Ludwig interjecting—

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

Coastguard mark 3! It is always entertaining when the opposition dabble in areas of national security. Of course, homeland security in terms of AusCheck is utterly irrelevant. I have not had the opportunity to talk about this recently, but I am interested that the idea is still being pushed here in the Senate, having received the reception it did in the House of Representatives. The assumption that we might not look at what happens abroad and see what could be learnt would obviously be a flawed assumption. The opposition go ahead notwithstanding the experience of other countries. We have always looked at what is happening over there, and there are a couple of very good examples, particularly with respect to Hurricane Katrina.

The government have come to the view, having revisited all the arrangements that we need to, that a reorganisation of the type suggested by the opposition would be very problematic. It would have the effect of lessening our efforts in relation to security while we had people focusing on looking at what their tasks might be, re-establishing appropriate linkages and relearning their relationships. As I have said, you only have to look at what happened in the United States with respect to the tragedy of Hurricane Katrina, where the Department of Homeland Security was, not to put it too finely, a failure. That contributed greatly to the ongoing problems that exist even today in New Orleans with respect to the rebuilding of that city.

As always, the opposition has come up with a very grandiose, bureaucracy-laden proposal which in reality has nothing to commend it. I come back to the point that the opposition actually supports this bill but seeks to obtain some political leverage off this point-scoring second reading amendment. I commend the bill to the Senate.

Question negatived.

Original question agreed to.

Bill read a second time.

Ordered that consideration of this bill in Committee of the Whole be made an order of the day for a later hour.