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Thursday, 8 February 2007
Page: 8


Mr MELHAM (11:29 AM) —I rise to support the AusCheck Bill 2006 and the second reading amendment moved by the honourable member for Brisbane. In his second reading speech the Attorney pointed out the policy objective of this bill. He said:

... the government agreed to establish a centralised background checking service in the Attorney-General’s Department as part of a wider initiative to strengthen the ASIC and the MSIC systems.

ASIC relates to aviation security identification cards and MSIC relates to maritime security identification cards. The Attorney-General continued:

The new division has been established, now known as AusCheck, and it will help the aviation and maritime industries to identify high-risk individuals who should not be granted an ASIC or an MSIC.

…         …         …

The decision to establish AusCheck followed a recommendation of Sir John Wheeler’s Airport Security and Policing Review and is an important part of the government’s ongoing commitment to improve aviation and maritime security.

That recommendation was recommendation No. 19, which states:

A new national card-authorising body within the Attorney-General’s Department is required to bring together the national security and criminality streams and immigration checks on a timely ‘live’ basis and to apply judgements as to who is a fit and proper person for the purposes of access to sensitive airport areas and aircraft. Appeals against decisions of this body should be to a special section of the Administrative Appeals Tribunal as is currently available with respect to ASIO decisions. Employers also have a responsibility to screen prospective staff carefully before seeking an ASIC and to monitor any relevant behaviour after issue. This improved aviation system has a clear analogue in the maritime sector.

So what the government is attempting to do with this legislation is laudable. I think it is something that deserves the support of all of us in parliament. I think there is a history where, at times, there has been a bit of slackness—which I do not necessarily need to go into. In the heightened security environment the public would expect that areas like this are streamlined, are more efficient and are seen to be more effective.

The problem we have, I suppose, as a federation, is that we have eight states and territories and a Commonwealth, and at times, quite frankly, things fall through the cracks because of jurisdictional borders. The same is true in relation to different agencies. Things can fall through the cracks from different agencies not talking to one another. So what we are seeing here is a capacity for different agencies to talk to one another and to be able to have this new national card-authorising body operating in a timely and efficient manner with a single database.

As the honourable member for Denison pointed out, there are some question marks over whether some aspects of this scheme should be in the legislation or should be in regulations. He pointed out two sections of the bill. Clause 5 is really the guts of the bill—‘Definition of background check’. It states:

A background check, in relation to an individual, is an assessment of information relating to one or more of the following:

(a)   the individual’s criminal history ...

No problems with that. Clause 5(b) states:

(b)   matters relevant to a security assessment of the individual ...

No problems with that. Clause 5(c) states:

(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 ...

No problems with that. Clause 5(d) states:

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

That is a very broad section of the act, and it is open to manipulation by governments and bureaucrats in relation to what those ‘other matters’ are that are going to be prescribed by the regulations. I can understand the need for regulations as against legislation in a number of instances—indeed, the benefit of a regulation is that it allows rapid action to be taken in times of emergency. But a disadvantage is that accountability and control are lost.

Another section that is a cause for concern is clause 8—‘Establishment of AusCheck scheme’. Clause 8(1) states:

The regulations may provide for the establishment of a background checking scheme (the AusCheck schem e) 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—

here is the problem subclause—

(c)   for such other purposes as are prescribed by the regulations.

What we would say—or what I certainly say on this side—is that that is a very broad subclause, together with clause 5(d), in terms of just saying ‘for such other purposes as are prescribed by the regulations’. That is a really wide power to be handing over to the minister without proper guidelines. Under clause 5, you can tell that we are worried about specific things: criminal history, ASIO checks and citizenship status. What can come under clause 5(d)? Someone’s political affiliations? Will the old Communist Party membership disqualify you?


Mr Dutton —Are you still a member?


Mr MELHAM —I am not a member and have never been a member, unlike some on your side who have been members and supporters of fascist parties and engaged in dodgy activities.


The DEPUTY SPEAKER (Mr Wilkie)—Order! I remind the member for Banks that it is appropriate to reply to interjections by addressing his remarks through the chair.


Mr MELHAM —Mr Deputy Speaker, I am entitled to answer what is an interjection and what needs to be dealt with.


The DEPUTY SPEAKER —The member for Banks is arguing with the chair. If the member for Banks wishes to—


Mr MELHAM —Mr Deputy Speaker, it is relevant to this bill.


The DEPUTY SPEAKER —Order! If the member for Banks wishes to respond to an interjection, which is unparliamentary, he will at least have the courtesy of addressing his remarks through the chair and not directly engage in conversations with the member opposite.


Mr MELHAM —It is actually relevant to this legislation, because the truth is that, if this legislation had been enacted in the fifties, the Menzies government would have been able to disqualify people on the basis of Communist Party membership. We went through that charade in the fifties, where the High Court knocked over the government’s legislation and the people also rejected the government having those powers. So the interjection that the minister made is pertinent because it shows his prejudices. It also highlights how he as a minister would have a power that, in my opinion, is open to abuse by him because of his own prejudices should he say, ‘If you’re a member of the Communist Party’—or whatever—‘that will disqualify you in relation to this legislation.’

So even though it is out of order his interjection is relevant, which is why I took it up. And I thank him for it, because it does not take much to scratch this particular minister and get out his bile and his prejudices. He is now a minister of the Crown. Those sorts of interjections are unbecoming of a minister of the Crown. He is not an ordinary backbencher. He should act how his office requires him to act: responsibly, without prejudice. That is exactly the point that I make about those two particular subclauses that cause me to have some concern.

The government is to be applauded in the main for this legislation. It is based on protecting and securing our nation, and the government or the opposition should not be the repository of that. It is our responsibility as members of parliament and as ministers of the Crown. And, when ministers of the Crown make regulations, they should be doing so in terms of certain principles, not certain prejudices. All I am saying to the minister at the table and the government, and to anyone listening, is that I have no problems as long as the basic principles are enunciated. The parliament should be entitled to adopt those principles so that ministers or governments, irrespective of their political persuasion, cannot go off on frolics.

Unfortunately, we are living in an environment where there is a new McCarthyism. There is a fear out there in the community. Governments of all political persuasions are responding and coming up with quite oppressive laws. In relation to this legislation I say to the relevant minister that he is right in having this legislation as it pertains to the criminal history and security of an individual, and the assessment of that, and citizenship status. If there are other matters that the minister feels should come into the background check then I believe it does not necessarily need to be done, as a parliament, by regulation. Earlier I quoted the advantages of some regulations, because they do allow for urgent situations. We should not be naive enough to think that there will not be urgent situations in this area and that, as a result of conduct that is worrying, some instances or recommendations might require some urgent action but might not come to the attention of government and the bureaucracy.

I am not standing up and saying that in all instances, even in relation to this legislation, governments should be totally constrained, but there have to be some principles and the principles have to go to security. They have to go to the vulnerability of the systems that are currently in place and go to improving the systems and giving confidence to members of the public. What worries me is whether it will be a situation where unionism will be outlawed in relation to individuals.

I have a view about the security of our airports that we are a lot more vulnerable with the outsourcing that is taking place and the contractors who have a role there than with having an extension of the Australian Protective Service or public servants who are properly trained and with whom you would not necessarily have the turnover that you might have with an outsourced organisation. You could bring in public servants, properly remunerate them, give them pride in their job and properly train them to, in effect, do the baggage and security checks and profiling at airports et cetera. In my humble view, if you have a trained Public Service, you will have a more secure system than if you have an outsourced system that, with it, might bring people who are not necessarily criminal or a security problem, or whatever, but who, as a result of necessary cost cutting and other things, are not necessarily the best individuals to be in jobs that we regard as important.

With those short remarks, I commend the bill to the House and commend the government on bringing it forward. There are certainly advantages to this bill that are not currently there in the current system. I thank the minister for his disorderly interjection because it enabled me to point out how the system can be abused. I am sure that, in relation to the matters that I raise, the Senate committee and the minister will, hopefully, at least have a look at them. If there is merit in what I say then there is merit in the government looking at it. If it is not meritorious then it is a matter for the government.