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Thursday, 8 February 2007
Page: 8

Mr KERR (10:59 AM) —I endorse, without exception, the remarks of the member for Batman in this debate on the AusCheck Bill 2006. It is important to realise that when it comes to the security of airport and marine installations it is fundamentally the safety of those who work in those environments that is also at issue and that we have to temper our fear with a realistic appreciation of the harms that can befall us as a society if we give way to too great a degree of reliance on authoritarian responses, particularly if they are imposed without regard to the interests of those who are working in those environments.

This bill seems a practical measure to bring together the vetting arrangements for those who will work in environments where some degree of pre-clearance is required. It also avoids the need for those pre-clearance arrangements to be undertaken by employers—so that the employers would become aware of personal circumstances in ways which might otherwise be seen as breaches of privacy—and confers on an agency of the Commonwealth the management of this process. In that regard, it appears to be sensible. It has the support of the unions that represent workers in the employment areas that are most immediately relevant, and it seems to offer a practical and convenient way of addressing what we all reluctantly accept as a necessity for the modern age.

I will just make a couple of short points. The area that I wish to raise is one which the shadow minister has said requires examination in the Senate. I am a little concerned about the growing practice in legislation proposed to this House that provides for the making of regulations to determine matters which should be set out in the principal legislation. Two particular parts are a good example in relation to this legislation. Proposed section 5 defines what a background check can be. It says that it is ‘an assessment of information relating to one or more of the following’ and then sets it out:

(a)   the 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 Australia citizen, a permanent resident or an unlawful non-citizen …

Those matters, I think, the House and the Senate will find uncontentious. But, then, the provision goes on to say:

(d)   such other matters as are prescribed by the regulations.

Given that this is establishing a legislative arrangement for a security regime which will currently apply principally to our ports and airports but is capable of extension across a wider range of circumstances, I think it is reasonable to say that the parliament itself should determine whether or not some other matters are going to be made the subject of inclusion within the background-checking process.

I do not think there are suitable guarantees in saying that it is always open for either house to move a motion of disallowance if the regulations extend those processes into areas where there would be concerns. I do not think it is satisfactory for two reasons. Firstly, with the increasing volume of regulations, the capacity of this parliament to critically examine the raft of regulations is increasingly being tested. Secondly, the executive has, in a practical sense, control of a majority in both the Senate and the House. It might be said in response to that point that any legislation that could be proposed is likely to pass, equally. But I think there is, in a practical sense, no doubt that greater scrutiny occurs when legislation is put forward in this House and subject to forensic examination, the sunshine of public exposure and debate and the requirement for its rationale to be explained to the parliament as a whole. I do not think there is any doubt that that is a much more rigorous process of examination than permitting the executive to make a regulation that will stand until a proposal to disallow occurs, with that only occurring in circumstances where it is likely that those who have proposed the disallowance know that the executive has control of both houses and probably will defeat it.

I think that the mandatory requirement to subject any extension of the background-checking regime to legislative amendment is a proper one. If we were to have that examined in the Senate and, if that were the conclusion of the Senate, it would be one I would certainly be very comfortable with. I see no reason why the government would reject that proposal. It is quite capable of bringing forward a bill and, if there is a sufficient rationale for a significant change, advancing those arguments in the parliament and having those arguments examined.

There is a concern in the community about the growing authoritarianism and intrusion of identity and security checking. It has been manifested in the coalition party room—I think somewhat intemperately, if I read the headlines correctly—in relation to allegations that certain new proposals amount to a national identity card. But, whether intemperate or otherwise, I think it is one of those crucial areas of public policy where this House and the Senate need to insist that, if we are going to widen the range of matters that a citizen can be subject to by security check before they can get employment in particular areas, this parliament should have oversight of it and not delegate a possible net-widening capacity to the executive in a way which is effectively less well checked or unchecked.

The second area where the regulations have a similar potential effect is in relation to extending the areas in which the AusCheck scheme can operate. At the moment, the scheme will operate in the aviation areas under the Aviation Transport Security Act or the Maritime Transport and Offshore Facilities Security Act, and then there is the omnibus regulation-making power for such other purposes as are prescribed by the regulations. We are not given to anticipate where this might be but, if we are going to extend the requirement for security checking pre-employment and exclude from employment Australians, because of those security requirements, who do not meet the checking, it is equally proper to say this parliament should decide which industries and what circumstances those intrusions on citizens’ rights are going to be extended to.

I do not like the current trend, which is in a sense to put up framework legislation and then effectively allow the executive, through regulations, to extend the reach of the legislation, the circumstances where it will apply, the areas in which it will apply and what can be done under the legislation. Traditionally, regulations passed under an act made by this parliament have been to facilitate the implementation of substantive provisions already existing in the legislation. Routinely, we would pass an act that sets out the bounds of what is possible under the legislation and then gives the executive power to make regulations so that the detail can be filled in. The kinds of regulations that are being proposed here do not do that. They do not fill in the detail; in fact they widen the ambit of the legislation and give the capacity to widen the kinds of matters that would be subject to security checking.

In a sense this parliament surrenders its sovereign power to define the reach and ambit of legislation to the executive. It is not quite what used to be called the Henry VIII clause, which allowed the executive to overturn or suspend a provision of legislation, but it is awfully close to it in its practical application. The legislation sets out certain things which, on the face of it, are unobjectionable but then leaves to the executive the capacity to extend them into other areas of employment where this parliament may or may not wish the legislation to extend. It also extends the range of matters that are subject to security checks beyond the ordinary—criminal checks, national security and the like, citizenship—into subject matters which are not defined and which the government has not illuminated us on in relation to its intention. But they potentially could have very grave ramifications were they to extend into areas such as, for example, the private personal lives of people, their conduct in various regards, their political allegiances and the like.

I do not know of anything that gives rise to particular concerns but, if there are no reasons to fear the parliament’s scrutiny, it would be far preferable to make any extension the subject of further amendment in this House. This would be subject to proper examination rather than proceeding in this rather unfortunate way, where the primary legislation simply becomes a vehicle for potential extension rather than for defining the law, using regulation simply to fill in the gap. It is wrong in principle. It is not a satisfactory way to use this parliament. It ought to be condemned. This parliament ought not to further facilitate what is an increasingly common practice which degrades the oversight that this parliament routinely and traditionally has exercised in relation to substantive legislation.

With those short remarks, I commend the bill to the House and to its scrutiny by the Senate, and I would hope, picking up on those points that I have made, that there is some opportunity for further reconsideration of the structure of the legislation, particularly the very wide and sweeping capacity to make regulations which might transform what is quite an acceptable and very appropriate piece of legislation into something that we did not anticipate during its passage through this parliament.