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Thursday, 8 February 2007
Page: 8


Mr BEVIS (12:20 PM) —I do not anticipate that we will be here long in the consideration in detail stage of the AusCheck Bill 2006. I appreciate the Attorney’s comments in relation to some of the matters that were raised during the second reading debate. There were concerns flagged in the second reading debate dealing with a couple of provisions in the bill that go to its future purposes beyond the ASIC and the MSIC. There is agreement on both sides of the chamber about the importance of having a centralised AusCheck function and certainly the development in respect of both ASIC and MSIC is something that we support and have advocated.

The bill does make provision for these checks to be undertaken for purposes which are yet to be identified or defined. The Attorney made reference in his closing remarks to aged-care workers as an example. I will quickly refer to a couple of provisions in the bill that the Attorney may wish to expand on. Part 1(5) of the bill sets out the definition of a background check, including the things that would be anticipated; for example, criminal history, security assessment of the individual, the individual’s citizenship status, residency status and the like—all of which one can understand and readily endorse. But there is then the catch-all ‘such other matters as are prescribed by the regulations’. Whilst, in a sense, there is a safeguard there of regulations, it does beg the question: what other aspects of a person’s background is it intended to delve into? If they cannot be identified now, why not? Why can’t we legislate for these things? If, indeed, they cannot be identified now, why should the parliament extend by this bill a power for that to be expanded subsequently by regulation—which, whilst it is a disallowable instrument, does not involve the same degree of scrutiny by this parliament or by the public? We are talking here about quite intrusive, significant investigations.

The Attorney made comment about the fact that there are hundreds of aviation security cards that have been lost, which I spoke about, and drew a comparison between that and driving licences. I have to say that there is a world of difference. A driving licence is not a document that you obtain to gain access to high-security places in airports. A driving licence is not a document for which you have to undergo quite detailed background security and criminal checks. A drivers licence does not involve the Federal Police and ASIO checking your background and visiting your employers and people you are known to to determine whether or not you are a fit and proper person to hold it.

There is a world of difference between these documents that we are talking about. There is a world of difference between the inquiry that is made of you to get a driving licence and the sorts of security background checks that this bill facilitates. So I think it is fair for the people of Australia to know in advance what it is that needs that quite expansive catch-all at the end, which is anything else that may be attractive to the government at some point in the future. Regulations do not involve the same degree of scrutiny, and we should not just pass off the power of this parliament to legislate to executive regulation making.

Similarly, in part 2, clause 8(2) of the bill sets out purposes prescribed by regulation to deal with a whole range of matters. Most of those matters are eminently sensible. They deal with things that you would expect a security clearance of this kind to deal with. But there are a couple that do raise questions—for example, paragraph (j), which talks about ‘purposes related to trade and commerce’. So we are talking here about a security check being done on somebody who is doing trade between Australia and overseas or amongst the states or within a territory. So, theoretically, you could be selling paperclips and, for some reason, the government could think that there needs to be one of these security checks done.

I am just not sure why it is that some of those provisions have been included when we are not talking about transactions involving security or indeed even involving the government or any of its agencies. There are other examples like that in that particular clause. Indeed, it finishes with a catch-all of:

... purposes related to any other matter in respect of which the Parliament has the power to make laws.

The Attorney touched on that. Effectively, it extends to anything for which the Constitution gives the parliament the power to make laws. That is the ultimate catch-all. We need to ask ourselves why we need to have those sorts of background checks done for those purposes. (Extension of time granted)

I thank the House for the extension of time. There is only one other point that I will quickly allude to. Part 2, clause 10, of the bill reads:

AusCheck scheme may require an individual to apply for a background check in relation to certain matters.

I am not sure whether the provisions set out here are the sorts of things the Attorney was commenting on when he mentioned people who might work in aged-care facilities or employment like that. I would be interested in his comments about the application of that clause. That clause also contains a catch-all at the end, as do a number of provisions in this bill. The catch-all on this occasion reads:

.. the individual being permitted to occupy a specified office or to engage in particular employment.

That casts the net as wide as it possibly can be cast.

In some circumstances you can understand why the government or the parliament would legislate to provide a broad catch-all like that, but we are not here dealing with a general administrative bill. We are dealing with the government, for good and proper reason, conducting very detailed, intrusive checks on the personal life and background of Australians. We should not be doing that lightly. There are cases where there is good reason to do it, and that is why we support the bill. But, in supporting that intrusive investigation of a person’s life and history, we should be mindful that there have to be some parameters in which it operates.

It is not sufficient for the government and the Attorney to say that that is a framework to provide for contingencies that may arise. Let us define the contingencies now so that there is no ambiguity and so that people in Australia, the citizens who are going to be subject to these intrusive investigations, know what the scope of it is—and at the moment we do not know the scope of it. Its initial intention is clear. It is for good reason in the maritime and aviation industries. But, beyond that, it is for whatever the government may have a whim to pursue.

As to regulations, I recall that when I was shadow minister for industrial relations we had the situation in industrial relations where the government used its power to introduce regulations during a period in which the parliament was in recess so that for a period of some months the government could act on a regulation which subsequently was overturned when the parliament resumed. I well recall Peter Reith, who was then the minister for industrial relations, forcing through changes that were clearly not the will of the parlament. You can unravel those things, but the truth is that, for a period of some months, those changes were operating in the day-to-day life of some businesses. That is the difference in practical terms between a regulation and a bill.

Where we are dealing with sensitive matters, important matters, such as these detailed security checks, we should be clear about where we want them to apply and not just leave them to the view from time to time of the government, by regulation. I look forward to the Attorney’s further explanation as to why those three provisions, in particular, are necessary in this bill and why it is not possible to better define them at this time.