Rex Patrick (SA, Centre Alliance) Share this | Link to this | Hansard source

I move:

That this bill be now read a second time.

I seek leave to table an explanatory memorandum relating to the bill.

Leave granted.

I table an explanatory memorandum and I seek leave to have the second reading speech incorporated in Hansard and to continue my remarks.

Leave granted.

The speech read as follows—

MINISTERS OF STATE (CHECKS FOR SECURITY PURPOSES) BILL 2019

The purpose of the Ministers of State (Checks for Security Purposes) Bill 2019 is to ensure that the Prime Minister is fully informed of any security issues that may arise from the personal background and circumstances of persons who have been appointed as Ministers of State including Assistant Ministers and Parliamentary Secretaries.

Ministers of State occupy positions of the highest trust within the Australian Government. Cabinet Ministers are privy to the most sensitive decisions and information, including the highest levels of national security classified information. Other Ministers, Assistant Ministers and Parliamentary Secretaries also have routine access to highly sensitive information including national security information.

Ministers of State are currently exempt from the security checking and clearance processes that apply to all Australian Government personnel who are allowed access to sensitive and security classified government information. Security checking and clearance requirements apply to the staff of Ministers, but not to Ministers themselves.

This Bill seeks to strengthen security at the highest levels of the Australian Government. While avoiding subjecting Ministers to a security clearance process that would override the Prime Minister's independent decisions on Ministerial appointments, the Bill will ensure that the Prime Minister has access to relevant security information relating to Ministers of State.

Security information relating to Ministers, conveyed in the form of reports by the Director-General of Security, will provide the Prime Minister with confidence that comprehensive checks have been made to identify any possible security issues that might affect a Minister's ability to perform their duties including maintaining Cabinet confidentiality and protecting other sensitive and national security classified information.

In the event that security background checks reveal an issue of security concern, the Prime Minister will be free to determine what steps might be required to resolve the matter.

Implementation of such a scheme would address a significant gap in Australia's Protective Security Framework. In this the Bill supports the objectives of recent legislation relating to espionage and foreign interference in Australia and will provide the Parliament and the Australian public greater assurance that security will be maintained at the highest levels of the Australian Government.

The current Australian Protective Security Policy Framework observes that "access to sensitive and security classified information necessitates a high level of assurance of a person's integrity. This is due to the potential harm associated with compromise of that information."

A key component of Australian Government protective security arrangements is the requirement that persons with ongoing access to sensitive or security classified information or material must be security cleared at an appropriate level.

The Australian Protective Security Policy Framework sets out four levels of security clearance checking, each involving more rigorous checking:

B aseline Vetting for access to classified information up to and including the PROTECTED level;

Negative Vetting Level 1 for access to classified information up to and including the SECRET level;

Negative Vetting Level 2 for access to classified information up to and including the TOP SECRET level.; and

Positive Vetting for access to information at all classification levels, including certain types of caveated and codeword information.

Negative Vetting Level 2 checking includes verification of identity, confirmation of Australian citizenship and status of any other citizenships, a background check covering residences, employment and other personal details over the previous 10 years, an official secrets declaration and a statutory declaration covering the provision of information, referee checks, a digital footprint check, a national police records check, a comprehensive financial statement and financial history check, a security assessment ASIO, and a security interview.

Positive Vetting includes the same checks as Negative Vetting Level 2 with the addition of a background check covering more than 10 years from the age of 16, additional financial checking with supporting documentation, a financial probity check, and a psychological assessment.

The security clearance process, applied to many thousands of Australian public servants, Australian Defence Force personnel, law enforcement personnel, government contractors and state and territory government personnel whose duties require access to sensitive or national security classified Australian Government information is an essential foundation for the Australian Government's protective security framework including the investigation of foreign espionage and interference activities.

It is also the case, however, that the current Australian Protective Security Policy Framework identifies certain Australian office holders who are not required to hold a security clearance to access security classified information while exercising the duties of their office.

These office holders include Members and Senators of the Commonwealth Parliament and members of the Federal Executive Council.

Under this policy Ministers of State are excluded from security clearance requirements by virtue of their status as Members of Parliament and as members of the Federal Executive Council.

The exemption from security clearances for Ministers and Parliamentary Secretaries was first publicly acknowledged in answers given by the then Attorney-General, the Hon Daryl Williams MP, to questions on notice asked in the House of Representatives in 2002. However no explanation was given for this policy which appears to date back to the beginning of the Australian Government's security clearance system in the 1940s.

Minister of State, it appears, have always been taken on trust.

The current Australian Protective Security Policy Framework advances no reasons to support this policy.

In contrast the Government of Canada conducts security background checks in relation to Federal Ministers.

This policy was introduced by the Conservative Government of Prime Minister Stephen Harper in a context of concerns about foreign espionage and interference in Canada. The policy has continued under the Liberal Government of Prime Minister Justin Trudeau. This policy appears to be broadly accepted as compatible with longstanding ministerial and parliamentary conventions.

The Canadian Privy Council Office (the secretariat of the federal Cabinet of Canada) arranges for security background checks to be conducted in relation to Members of Parliament who are being considered by the Prime Minister for appointment as Ministers or Parliamentary Secretaries.

The Privy Council Office has indicated that the security background checking process entails records checks with the Royal Canadian Mounted Police and the Canadian Security Intelligence Service, a check with the Canada Revenue Agency regarding tax compliance, and a check with the Office of the Superintendent of Bankruptcy regarding bankruptcy and insolvency.

Prospective Canadian Government Ministers are required to provide the Privy Council Office with extensive personal information including financial disclosures. Security interviews are also conducted.

The arrangements for security checking Canadian Ministers are informal and ultimately at the discretion of the Prime Minister. In 2015 Prime Minister Harper directed that Ministerial security checks be renewed every two years.

Canadian security practice highlights how it is highly anomalous that Australian Ministers of State, office holders who participate in the highest levels of executive government decision making and who have access to some of the most sensitive and highly classified government information, should be exempt from a mandatory security background checking process.

The number of persons appointed as Ministers of State in the Australian Government is significant.

143 people have been appointed as a Ministers of State (variously designated as Prime Minister, Minister, Assistant Minister or Parliamentary Secretary) since the appointment of the first Rudd Ministry was sworn in on 3 December 2007. Of these 143 people, 68 were in Labor Ministries and 75 were in Coalition Ministries.

It can be reasonably assumed that similar numbers will be appointed over the next decade.

Regrettably it cannot be assumed that persons appointed as Ministers will always be free of characteristics, activities, associations, connections or obligations that may compromise, or risk compromise of national security within the executive government.

Recent experience concerning non-compliance by Members of Parliament with constitutional requirements for election to the Commonwealth Parliament show that party preselection processes, electoral and media scrutiny as well as selection to serve in the Ministry cannot be relied on to identify and resolve matters that would be an issue in a security background checking process.

Instances of corruption involving Australian political figures including Ministers and Members of Parliament at the State and Federal levels show that Ministers may succumb to temptations that may make them vulnerable to compromise. Over the past decade issues have also arisen relating to the involvement of Members of Parliament including Ministers and Shadow Ministers with foreign persons and organisations that have raised security issues. There are numerous examples in a range of overseas jurisdictions of parliamentarians, including Ministers, who have been compromised by foreign intelligence services or have otherwise engaged in activities highly prejudicial to the national security of their country. It would be naïve to think the Australian Ministers of State will always be immune from such failings.

A security checking process for Ministers of State should not involve a potential administrative veto over the appointment of Ministers or their continuance in office.

Recognising the special position of democratically elected Members of Parliament, this Bill provides for the establishment of a mandatory security background checking process to provide information to the Prime Minister and thereby ensure that the Prime Minister is fully informed of any security issues that may arise from the personal background and circumstances of persons who have been appointed as Ministers of State.

This process will apply to persons who have been appointed as Ministers of State including Assistant Ministers and Parliamentary Secretaries. It would not apply to Members of Parliament generally, only to those appointed to Ministerial office in the executive government and who have ongoing access to highly sensitive and national security classified information.

The security checking process would involve the preparation of reports by the Director-General of Security on any matters relating to security that arise from a comprehensive examination of the personal background and circumstances of Ministers.

Such reports would be solely for the information of the Prime Minister and would be subject to strict security arrangements.

The preparation of reports on security matters would not constitute a security clearance in the form of those applied to Australian Government personnel and other persons under the Australian Protective Security Policy Framework and would not constitute a security assessment made under Part IV of the Australian Security Intelligence Organisation Act 1979 (ASIO Act).

Rather, reports would be available solely for the confidential information of the Prime Minister who would be free to respond however he or she considered appropriate. Matters concerning the appointment of Ministers, their duties and the composition of the Ministry would remain matters of political judgment for the Prime Minister. However those judgments and decisions would be informed by comprehensive and reliable information relating to security.

The Bill proposes that reports relating to security will be prepared by the Director-General of Security, rather than another agency such as the Australian Government Security Vetting Agency which provides centralised vetting services for most government departments and agencies. This is most appropriate given the particular sensitivity of this task and the statutory provisions that govern the independent and apolitical work of the Australian Security Intelligence Organisation.

The roles of the Director-General of Security and ASIO proposed in this Bill are within ASIO's statutory function set out in paragraph 17(1) (a) of the ASIO Act "to obtain, correlate and evaluate intelligence relevant to security".

Also of relevance is section 29 of the ASIO Act which sets out the special responsibility of the Director-General of Security to ensure that ASIO's work is strictly limited to what is necessary for the purposes of the discharge of its functions, and to ensure that ASIO "is kept free from any influences or considerations not relevant to its functions and nothing is done that might lend colour to any suggestion that it is concerned to further or protect the interests of any particular section of the community, or with any matters other than the discharge of its functions."

The Bill does not limit the ability of the Prime Minister to seek and obtain security advice from the Director-General of Security at any time relating to Ministers or persons who may be under consideration for possible appointment as a Minister. A Prime Minister may or may not choose to seek such advice prior to recommending a person to the Governor-General for appointment as a Minister of State. This will remain a matter for the discretion of the Prime Minister. It should also be recognised that the formation of a new Ministry and the appointment of new Ministers may take place very quickly and that time may not be available for any consultation between the Prime Minister and the Director-General of Security concerning any security issues relating to possible ministerial appointees.

The Bill will establish a mandatory requirement for the Prime Minister to direct the Director-General of Security to provide reports on matters relating to security that arise from examination of the personal background and circumstances of persons appointed as Ministers of State. The Prime Minister will be obliged to issue such directions within 14 days of the appointment of a Minister (and from the commencement of the Act) and the Director-General will be required to furnish a report to the Prime Minister within 120 days.

The Bill requires the Director-General to obtain information and undertake inquiries that are equivalent to the information and inquiries required for security purposes of ASIO employees.

In practice this will involve inquiries and information gathering equivalent to that required for Positive Vetting to allowaccess to information and resources at all classification levels, including certain types of caveated and codeword information. This level of investigation and checking would be appropriate for Ministers of State given their access to the most sensitive and highest levels of classified information.

The security checking proposed by this Bill would inevitably involve intrusive inquiries into the personal background and circumstances of Ministers of State. While some Ministers may find this uncomfortable it should be accepted as part of their ministerial duty and a necessary measure to protect national security. However it should be emphasised that the resultant reports will be required to only contain information and advice that is strictly relevant to security as defined in the ASIO Act.

The Bill also contains provisions for the safeguarding of reports and requires the Director-General of Security to ensure that reports are properly secured and that reports and all information obtained in the course of making inquiries are only used for the purposes of the Act – that is informing the Prime Minister about security issues relating to Ministers.

The work of the Director-General of Security and ASIO under the provisions of this proposed legislation will also be subject to the oversight role of the Inspector-General of Intelligence and Security under the Inspector-General of Intelligence and Security Act 1986.

Overall, the Ministers of State (Checks for Security Purposes) Bill 2019 will strengthen protective security within Australia's executive government by ensuring that the Prime Minister is fully informed of any security issues arising from the background and circumstances of Ministers. Persons who wish to be considered for possible appointment to Ministerial office will be clearly and transparently forewarned of the background security checking process they will be subject to and assured that checking process will be undertaken by the Director-General of Security in completely confidential and apolitical circumstances.

Security at the highest levels of the Australian Government should never be compromised. This Bill will plug a major gap in Australia's protective security framework.

Debate adjourned.