Senate debates
Thursday, 19 November 2009
Notices
Presentation
Senator Cormann to move on the next day of sitting:
- That the Senate—
- (a)
- Notes that:
- 1) the Minister for Health and Ageing told the House of Representatives on 29 October 2009, that the Government had legal advice that the Health Insurance Amendment (Revival of Table Items) Bill 2009 was unconstitutional, that it should not have been introduced in the Senate and had not been appropriately passed,
- 2) the Minister also told the House of Representatives that the Government was “happy to provide that legal advice” (9.59am, 29/10/2009),
- 3) on 17 November the Senate ordered “that there be laid on the table by the Minister representing the Minister for Health and Ageing in the Senate, by no later than 5pm on 17 November 2009, a copy of the legal advice referred to by the Minister on 29 October 2009, indicating that the Health Insurance Amendment (Revival of Table Items) Bill 2009 was unconstitutional” under section 53 of the Constitution,
- 4) in response, on 18 November the Minister for Health and Ageing tabled a letter stating that the legal advice would not be provided to the Senate on the grounds that it could “prejudice the Commonwealth’s position in the event of future legal proceedings”, and
- 5) advice from the Clerk of the Senate makes it clear that section 53 of the Constitution is non-justiciable and “[t]herefore there cannot be any legal proceedings which might be prejudiced by disclosure of advice to the government on its interpretation of section 53”.
- (b)
- Considers that release of a copy of the legal advice referred to by the Minister on 29 October 2009 is in the public interest.
- (c)
- Orders that there be laid on the table by the Minister representing the Minister for Health and Ageing in the Senate, by no later than 12pm on 24 November 2009, a copy of the legal advice referred to by the Minister on 29 October 2009, indicating that the Health Insurance Amendment (Revival of Table Items) Bill 2009 was unconstitutional.
Senator Mason to move on the next day of sitting:
- That the time for the presentation of the report of the Parliamentary Joint Committee on Corporations and Financial Services on financial products and services in Australia be extended to 24 November 2009.
Senators Siewert and Macdonald to move on the next day of sitting:
- That the Senate—
- (a)
- notes the significant disease threat posed by the introduced species Phytophthora cinnamomi to ecological communities across Australia;
- (b)
- expresses disappointment with the lack of effective action at the national level to address the scale of this threat; and
- (c)
- calls on the Commonwealth Government to:
- (i)
- develop an effective national threat abatement plan including specific, measurable, achievable, relevant, time-bound goals, objectives and actions, and
- (ii)
- negotiate on the basis of this plan with state and territory agencies and land managers to leverage the resources, commitments and expertise needed to deliver its outcomes.
Senator Bob Brown to move on the next day of sitting:
- That the Senate deplores the use of overseas tax havens.
Senator Fisher to move on the next day of sitting:
- That the time for the presentation of the report of the Select Committee on the National Broadband Network be extended to 25 November 2009.
Senator Fisher to move on the next day of sitting:
- That the Select Committee on the National Broadband Network be authorised to hold a private meeting otherwise than in accordance with standing order 33(1) during the sitting of the Senate on Monday, 23 November 2009, from 3.30 pm.
Senator Milne to move on the next day of sitting:
- That the Senate—
- (a)
- notes that:
- (i)
- Commonwealth Scientific and Industrial Research Organisation scientists have warned that Australia will experience more high fire danger days as a result of climate change,
- (ii)
- three Australian states are on high fire danger alert and record high temperatures are being recorded for November 2009 in several Australian cities and towns including Adelaide,
- (iii)
- a government report in 2005 said that no single state or territory is likely to have the human and material resources required to resolve a catastrophic event, and
- (iv)
- Emergency Management Australia, the national coordination unit for operational responses to disasters:
- (a)
- was not called in on Black Saturday in Victoria, and
- (b)
- did not ask the Department of Defence or Defence Imaging to track the Victorian fires because no request to do so was made from Victoria; and
- (b)
- calls on the Government immediately to:
- (i)
- develop and implement a nation disaster response plan,
- (ii)
- appoint the operational fire chiefs from each state and territory to Emergency Management Australia,
- (iii)
- reverse the onus so that the Commonwealth has the power to oversee a national disaster and to intervene without having to wait for a state to request such assistance, and
- (iv)
- implement the remaining recommendations of the 2005 Commonwealth report into national disaster readiness.
Senator Bob Brown to move on the next day of sitting:
- That the Senate, noting the recent deportation of journalists and environmentalists from Indonesia for highlighting widespread deforestation in that country, supports the right of people to peacefully protest against climate damaging deforestation around the world and the right of journalists to cover such protests.
Senator Trood to move on the next day of sitting:
- That the report of the Foreign Affairs, Defence and Trade References Committee on its inquiry into security challenges facing Papua New Guinea and the island states of the southwest Pacific be presented by 24 December 2009.
9:33 am
Dana Wortley (SA, Australian Labor Party) Share this | Link to this | Hansard source
On behalf of the Standing Committee on Regulations and Ordinances, I give notice that, at the giving of notices on the next day of sitting, I shall withdraw business of the Senate notice of motion No. 1 standing in my name for eight sitting days after today for the disallowance of the National Health Security (SSBA Standards) Amendment Determination 2009 (No. 1). I seek leave to incorporate in Hansard the committee’s correspondence concerning this instrument.
Leave granted.
The correspondence read as follows—
National Health Security (SSBA Standards) Amendment Determination 2009 (No. 1)
13 August 2009
The Hon Nicola Roxon MP
Minister for Health and Ageing
Suite MG.50
CANBERRA ACT 2600
Dear Minister
I refer to the National Health Security (SSBA Standards) Amendment Determination 2009 (No. 1) made under subsection 35(1) of the National Health Security Act 2007. This instrument removes the requirement for persons handling Tier 1 (highest level biosecurity risk) security-sensitive biological agents (SSBAs) to undergo background checking.
The Explanatory Statement notes that this is because the necessary supporting legislation has not been enacted and when that legislation is enacted, the Standards will be amended again to require background checks. The Committee would appreciate your advice as to when the required legislation will be enacted, whether there is a possibility that persons who are employed to handle SSBAs could subsequently be removed from that role as a result of background checks, and why it is not possible to defer the commencement of this scheme until such legislation has been enacted.
The Committee would appreciate your advice on the above matter as soon as possible, but before 11 September 2009, to enable it to finalise its consideration of this Determination. Correspondence should be directed to the Chair, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.
Yours sincerely
Senator Dana Wortley
Chair
—————
14 September 2009
Senator Dana Wortley
Chair
Senate Standing Committee on Regulations and Ordinances
Room SG49
Parliament House
CANBERRA ACT 2600
Dear Senator Wortley
Thank you for your letter of 13 August 2009 seeking clarification on matters related to the National Health Security (SSBA Standards) Amendment Determination 2009 (No 1) (the new Determination) that I made under subsection 35(1) of the National Health Security Act 2007 (NHS Act).
I provide the following responses to the matters raised by the Committee.
Legislation that supports the SSBA background checking scheme
My Department is proposing to use AusCheck, an agency within the Attorney-General’s portfolio, to provide background checking of persons handling Tier 1 security sensitive biological agents (SSBA). To facilitate that function, the AusCheck Amendment Bill 2009 (the AusCheck Bill), which was introduced in the Autumn 2009 sittings, will amend the AusCheck Act 2007 to enable the AusCheck background checking scheme to include purposes related to Australia’s national security.
The AusCheck Bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee (the Senate Committee) for report in June 2009. As the AusCheck Bill was not passed in the Winter sittings, I made the new Determination to omit the requirement for background checking from the SSBA Standards from 1 July 2009. The effect of this Determination is to defer the commencement of background checking until amending legislation is enacted.
In its report on 16 June 2009, the Senate Committee recommended that ‘a clause be inserted into the Bill clarifying that no background checking scheme may be established under either the AusCheck Act nor regulations promulgated under the Act in the absence of another Act of Parliament providing for the establishment of such a scheme.’ Consistent with that recommendation, amendments will be introduced to provide a comprehensive background checking scheme in the principal Act.
The AusCheck Bill will be debated in the Spring sittings and I expect to introduce the NHS Act amendments also in the Spring sittings. Following passage of the AusCheck Bill and the NHS Act amendments, the SSBA background checking scheme will be introduced and include new SSBA Standards, along the lines of the previous Determination, which will require background checking of persons that handle Tier 1 SSBA.
Removal of persons as a result of background checks
Currently Part 3 of the SSBA Standards requires entities to authorise persons to handle Tier 1 SSBA. An authorised person must be trained in the SSBA legislative requirements and not be excluded from handling SSBA under the NHS Act. On commencement of the SSBA background checking scheme, the SSBA Standards will require authorised persons to undergo and clear background checking.
It is possible that a person authorised to handle Tier I SSBA under the current SSBA Standards and who undergoes background checking (when that requirement commences), will not be cleared. Such a person could not continue to be an authorised person to handle Tier 1 SSBA. At the entity’s discretion, such a person could continue to handle Tier 1 SSBA as an ‘approved person’ who is supervised at all times by an authorised person.
Commencement of the scheme
The SSBA Regulatory Scheme commenced on 31 January 2009. The Scheme provides controls on handling SSBA including stringent requirements relating to the notification of the type and location of SSBA in Australia, along with Standards that must be met by entities handling SSBA. The SSBA Standards relate to matters such as the secure handling and movement of SSBA, along with personnel requirements and risk management strategies.
The Scheme will be further strengthened when background checking of personnel is introduced following passage of the supporting legislative amendments.
I trust that this clarifies the matters that the Committee has raised.
Yours sincerely
Nicola Roxon
Minister for Health and Ageing
—————
17 August 2009
The Hon Nicola Roxon MP
Minister for Health and Ageing
Suite MG.50
Parliament House
CANBERRA ACT 2600
Dear Minister
Thank you for your letter of 14 September 2009 concerning the National Health Security (SSBA Standards) Amendment Determination 2009 (No. 1) made under subsection 35(1) of the National Health Security Act 2007. This instrument removes the requirement for persons handling Tier 1 security-sensitive biological agents (SSBAs) to undergo background checking.
In your letter, you note the importance of background checks to the operation of the new scheme, and the intention that amendments will be introduced to provide a comprehensive background checking scheme in the principal Act. The effect of this Determination is to defer the commencement of background checking until that amending legislation is enacted.
The Committee has two broad concerns with such an approach. First, given the significance of background checks, how is it possible to implement a scheme for handling security-sensitive biological agents without first undertaking background checks? Would it not be preferable to implement a complete (rather than an incomplete) scheme?
Secondly, could you please provide some further detail as to the likely consequences for a person currently authorised to handle SSBAs, who subsequently fails to satisfy a background check.
The Committee would appreciate your advice on the above matter as soon as possible, but before 22 October 2009, to enable it to finalise its consideration of this Determination. Correspondence should be directed to the Chair, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.
Yours sincerely
Senator Dana Wortley
Chair
—————
26 October 2009
Senator Dana Wortley
Chair
Senate Standing Committee on Regulations and Ordinances
Room SG49
Parliament House
CANBERRA ACT 2600
Dear Senator Wortley
Thank you for your letter dated 17 August 2009 in which you raise further questions about the proposed background checking scheme for persons handling Tier 1 security-sensitive biological agents (SSBAs).
I provide the following responses to the matters raised by the Committee.
The SSBA Regulatory Scheme
The November 2006 Council of Australian Governments (COAG) Report on the Regulation and Control of Biological Agents noted that there were few controls currently governing the security of biological agents in Australia. The Report found that regulation focussed on safety rather than security and that there was a particular need to regulate the secure storage, possession, use and transport of biological agents in order to minimise the bioterrorist risk.
Part 3 of the National Health Security Act 2007 establishes the SSBA Regulatory Scheme in response to the COAG Report. The Scheme was phased-in over an extended period to enable consultation with stakeholders in the development of operational details, procedures and administrative arrangements. The Scheme is underpinned by the following elements:
- establishment of a List of SSBAs;
- a National Register that collects information about the nature and location of SSBAs handled by entities/facilities in Australia;
- determination of physical, storage, and personnel Standards for entities or facilities handling SSBAs;
- National Health Security Regulations 2008 that provide further operational details including reporting; and
- an inspection regime.
Many entities which operate the high containment facilities that handle SSBAs and other dangerous pathogens already have pre-employment checks for personnel who work with these agents. Under the SSBA Standards which came into effect on 1 July 2009 entities handling SSBAs must determine and maintain a list of personnel who are authorised to handle SSBAs.
The importance of the proposed background checking scheme is that it will formalise and mandate background checking for all entities that handle Tier 1 SSBAs. Background checking, which will be introduced as a requirement of the SSBA Standards, is one part of the multi layered controls of the Scheme. Given that other important elements of the Scheme have been operational since January 2009, I am confident that when background checking is introduced, an additional layer of control will further enhance the security of the Scheme.
Consequences for authorised persons who fail a background check
You request further detail on the likely consequences for a person who fails a background check. Such a person would not be legally able to handle Tier 1 SSBAs in an unsupervised context. However, at the entity’s discretion, such a person could continue to handle Tier 1 SSBAs, providing they are supervised at all times under line of sight by an authorised person.
I trust this clarifies the matters that the Committee has raised.
Yours sincerely
Nicola Roxon
Minister for Health and Ageing
—————
29 October 2009
The Hon Nicola Roxon MP
Minister for Health and Ageing
Suite MG.50
Parliament House
CANBERRA ACT 2600
Dear Minister
Thank you for your letter of 26 October 2009 in which you provide further information in relation to the Committee’s concerns with the National Health Security (SSBA Standards) Amendment Determination 2009 (No. 1).
In your response you advise that many entities already have pre-employment checks for personnel who work with SSBA agents. The Committee would appreciate your advice on whether those checks are of the same nature as the background checks under the SSBA Scheme.
The Committee would also appreciate further information on the consequences for persons who fail a background check. You advise that ‘at the entity’s discretion’ a person could continue to work under line of sight supervision. What is not clear is when this discretion might be exercised, and what happens if such supervision is not available.
The Committee would appreciate your advice on these matters as soon as possible but before 13 November 2009 to enable it to finalise its consideration of this Determination. In the meantime, the Committee has given a notice of motion to disallow the Determination to preserve its ability to consider the instrument while it awaits your response.
Correspondence should be directed to the Chair, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.
Yours sincerely
Senator Dana Wortley
Chair
—————
12 November 2009
Senator Dana Wortley
Chair
Senate Standing Committee on Regulations and Ordinances
Room SG49
Parliament House
CANBERRA ACT 2600
Dear Senator Wortley
Thank you f/or your letter of 29 October 2009 requesting further information in relation to the National Health Security (SSBA Standards) Amendment Determination 2009 (No. 1) (the Amendment Determination).
As you are aware, this determination removed, for the time being, the requirement for background checking of persons handling Tier I Security Sensitive Biological Agents (SSBAs) or related sensitive information. The Amendment Determination was made as supporting legislation to enable the operation of the background checking scheme for the SSBA Regulatory Scheme has not as yet been enacted. Without this determination, it would not be possible for entities to comply with the SSBA Standards and they would inadvertently be committing an offence under the National Health Security Act 2007 (the NHS Act).
I note that the AusCheck Amendment Bill 2009 is currently being considered by Parliament, and that I will shortly be introducing a bill to amend the NHS Act, that will enable the operation of the background checking scheme for the SSBA Regulatory Scheme. Should these amendments be enacted, I would then intend to issue a determination reinstating the requirement for background checking of persons handling SSBAs or related sensitive information.
Until such time as those amendments are enacted, it remains important for the Amendment Determination to remain in place, so that it is possible for entities to comply with the SSBA Standards and the NHS Act.
In this context, I provide the following information in response to your questions.
Pre-employment checks
The pre-employment checks conducted by entities generally consist of criminal history checks. Should the relevant legislation be passed, the proposed SSBA background checks will assess a person’s criminal history against a set of disqualifying offences for the SSBA Regulatory Scheme, and include an ASIO politically motivated violence check. The proposed SSBA disqualifying offences would be framed to ensure that very serious offences that attract a term of imprisonment of at least 12 months are included. Any such offences would also be detected by pre-employment criminal history checks.
Consequences for people who fail a background check
As previously indicated, a person who fails a background check could only continue to handle Tier I SSBAs as an ‘approved person’ if they are supervised at all times and under line of sight by an authorised person. If such supervision is not available, a person who has failed a background check would be unable to work with SSBAs.
An entity has limited discretion to enable a person who may have failed a background check to handle SSBAs, as the SSBA Standards set requirements on personnel security with the objective that ‘the entity must ensure personnel management systems are in place to implement and manage biosecurity for SSBAs and related sensitive information.’ To achieve that objective, the Standards require that authorised persons have been trained in the requirements of the NHS Act, the NHS Regulations and the Standards. The inspection regime will monitor an entity’s compliance with the SSBA Standards. An entity’s discretion to approve a person to handle or access SSBAs will be considered in the context of the objective of this Standard and other relevant requirements.
These mechanisms will help ensure that the SSBAs continue to be handled securely to support the health and safety of all Australians.
I trust this clarifies the matters that the Committee has raised.
Yours sincerely
Nicola Roxon
Minister for Health and Ageing