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STANDING COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
01/03/2007
AusCheck Bill 2007

CHAIR —I welcome our first witness, Ms Helen Donovan of the Law Council of Australia. The Law Council has lodged a submission with the committee, which we have numbered 6. Do you need to make any amendments or alterations to that submission?

Ms Donovan —No.

CHAIR —We invite you to make an opening statement and we will go to questions from members of the committee after that.

Ms Donovan —Thank you for the opportunity to appear before the committee on behalf of the Law Council today. As stated in our submission, the Law Council has no in-principle objection to legislation which enables a centralised background checking agency to be established within the Attorney-General’s Department, particularly if it is able to deliver a more efficient, uniform and secure service. However, the Law Council has three primary concerns with the bill, and it is worth noting that these concerns are echoed in a number of submissions received by the committee.

Firstly, the Law Council is concerned that the regulation-making power granted under the bill is too broad. We appreciate that the bill is intended to be enabling legislation which provides a framework only for the operation of AusCheck, but, to the extent that the notion of a framework implies at least the setting of some parameters, the Law Council believes the bill is less of a framework and more of a jumping-off point. We expect that the bill would at least set some limits on the purposes for which a background check may be required and conducted and the type of information which may be gathered as part of such a check. However, in both these respects, the bill sets no substantive limits.

Secondly, the bill fails to properly take advantage of the opportunities that a centralised agency might present. Through the bill, the parliament has the opportunity to set minimum standards for transparency, fairness and accountability in background checking, but the Law Council believes that opportunity has not been seized. If the bill is passed in its current form, parliament would essentially be saying that its only pressing concern with respect to background checking and the only impetus for a piece of subject-specific legislation on the topic of background checking is to ensure that it is coordinated and conducted by a centralised agency. The Law Council believes that the legislature should have more to say about, for example, guaranteed review rights or reporting obligations. The submission from the Attorney-General’s Department offers the assurance that it is intended that the regulations will provide that, if AusCheck makes an adverse finding about a person, that person will have the right to appeal to the AAT. The Law Council believes this type of assurance should be reflected in the primary legislation.

The Law Council’s third concern is that the provisions of the bill that deal with the use and disclosure of personal information stored by AusCheck are vague and broad. For example, the Law Council is concerned that the bill allows for personal information collected and stored by AusCheck to be disclosed for the purposes of:

... the collection, correlation, analysis or dissemination of criminal intelligence or security intelligence.

Neither the term ‘criminal intelligence’ nor the term ‘security intelligence’ is defined in the bill, nor is there any list of the agencies, national or international, to which information may be disclosed for this purpose. This has prompted the Victorian Commissioner of Police to write to the committee to say that she believes it would be desirable for the Victorian police to have access to the database on the basis that the information on it would be very useful for a wide range of investigations, including investigations beyond the aviation and maritime industries.

Meanwhile, the submission from the Attorney-General’s Department states that Australian law enforcement and national security agencies have their own information-gathering powers and could get more up-to-date information from their own databases. I think this is supposed to act as an assurance, but it raises the question of why this broad disclosure provision is even included in the bill if the Attorney-General’s Department thinks it is unnecessary. More to the point, as the Office of the Privacy Commissioner has appropriately pointed out, doesn’t this broad authorisation to store and use personal information for criminal and security intelligence purposes go significantly beyond the stated object of the bill?

The more general assurance that has been offered in response to criticisms about the rudimentary nature of the bill, and the correspondingly broad regulation-making power it provides for, is essentially that the relevant details will be contained in other legislation—that is, in the legislation which establishes the background-checking schemes which will simply be administered by AusCheck. However, the bill does not limit AusCheck to administering schemes provided for under other legislation. Clauses 5, 8 and 10 read together clearly envisage that a wide range of background-checking schemes might be devised and implemented by way of AusCheck regulations alone—that is, without the authorisation of any other primary legislation. Given the sensitive nature and function of background checks, which can both be intrusive and adversely impact on people’s livelihoods, the Law Council believes this is highly undesirable. Parliament should retain closer control over determining the purposes for which background checks are necessary.

The members of the committee have access to our submissions so I will not say anything further at this point. The Law Council of Australia and myself in particular do not purport to have any special expertise with respect to the maritime and security identification cards. Representatives of the Office of the Privacy Commissioner, who are scheduled to follow me, are probably much better placed to answer questions about the Privacy Act and the information privacy principles and how they interact with the current bill. Nonetheless, I am happy to attempt to answer the committee’s questions or to take questions on notice if I am unable to answer them today.

CHAIR —Thank you very much, Ms Donovan, and I thank the Law Council for their submission. Senator Parry has a commitment in the chamber at five o’clock so I will ask him to lead off and then I will go to my colleagues.

Senator PARRY —Under paragraph 47 of the Law Council of Australia submission, and you mentioned it also in your opening address, it says:

Neither the terms “criminal intelligence” or “security intelligence” are defined in the Bill.

Does the Law Council have a suggested definition for both of those terms?

Ms Donovan —No, the Law Council does not have a suggested definition for either of those terms. As explained, the Law Council is not entirely clear on why the bill needs to provide for the provision of information for criminal intelligence or security intelligence. But if the bill is to provide for the provision of information for those purposes, then the Law Council believes there should be clear parameters on what those terms mean.

Senator PARRY —That came through with your opening statement, hence my question. You do not have a preference or a model you would like to see as definitions for those two terms used throughout the bill?

Ms Donovan —No, I do not have a definition to offer today.

Senator PARRY —If you feel that is something you would like to provide on notice we would welcome that.

Ms Donovan —It is probably the case that the Attorney-General’s Department is better placed to offer a definition of those terms.

CHAIR —They do not often do that, Ms Donovan. When we ask them to define terms in their own legislation they are not usually inclined to run around and do that for us. When we can encourage contributions from those who come before us we tend to, as Senator Parry was just doing.

Senator LUDWIG —One of the central issues is the extent to which that background information will be held. It also appears to be not limited in the sense that, by regulation, you can add to it. Would you agree that it seems to be the central part as to how much information can be collected, what type of information can be collected, how it is then stored, how securely it is stored and then when it should be then destroyed and the ability of this legislation is to add to it by regulation? I take it that is one of your central concerns?

Ms Donovan —That is essentially our central concern.

Senator LUDWIG —Would you address that by ensuring that it could not be extended by regulation or by trying to more narrowly define what background checks or what background information can be collected? I have seen a lot of this type of legislation over the time I have been on this committee. They tend to more narrowly define it by indicating a driver’s licence or a passport, or some type of information of that nature, or a search of a particular database. In this instance it is much broader. Do you have a view about whether it should be limited in the—

Ms Donovan —In the legislation itself?

Senator LUDWIG —Yes.

Ms Donovan —If I understand your question correctly, you are asking should the bill itself set the definitions or set the parameters within the bill, or should it set more parameters for the regulations. Is that correct?

Senator LUDWIG —There are two parts. The argument from the Attorney-General’s, as I understand it, is that it is framework legislation. Therefore, by definition, you end up with this idea of an empty shell and it is not fleshed out till you see the regulation. We could wait to see the regulation, but I will not hold my breath. Or you can put more in the framework to at least more narrowly prescribe what should be in the legislation, and then use regulations to fill that out a bit further. I take it we are not all going to wait to see everything loaded into the legislation and we are not going to hold our breath to see the regulation. So I take it the Law Council would prefer that middle option, where everything is a little bit more precise—the definitions, what is required under the legislation.

Ms Donovan —The Law Council would definitely like to see more definition within the bill itself. But in terms of the details of the schemes which are actually administered, the Law Council believes that unless those schemes can be more clearly set out in this bill then AusCheck should be confined to administering schemes which are set out in other legislation which deal with particular subject matter—not dissimilar to the aviation and maritime security card schemes. In terms of the more general issues which would relate across schemes such as, for example, reporting obligations on AusCheck or just a general statement of principle that in the case of an adverse background check—not just an adverse background check, but when anybody is subject to a background check—they are entitled to certain information about the outcome of that check and where the information is going to be held and how they might be able to access their record, correct their record or challenge an adverse finding. The Law Council believes that that sort of generic detail could be included in the bill.

Senator LUDWIG —I was going to ask you specifically about that additional matter where a person might wish to challenge, because they have been refused. They have been refused on a security check by ASIO. My recollection is that it quite difficult to get a hard reason from ASIO as to why that has been refused, and then it becomes difficult to challenge it, especially merits review, and then it becomes expensive. If it is a prospective applicant looking for a job in a secure area as a contractor, the likelihood that they are going to have sufficient ability to be able to challenge that adverse ruling would be, I suspect, constrained not only on cost but time and effort as well.

Ms Donovan —Yes; and, on the information available, to understand the reasons for the adverse finding. With respect to security assessments, that is already provided for in the ASIO Act and in the Administrative Appeals Tribunal Act, as I am sure the Senator knows, so there are provisions there recognising that an adverse security assessment might tie the hands of another decision maker and that it might make it pointless for an affected person to challenge an administrative decision without challenging the adverse security assessment. The ASIO Act provides for direct challenge of the security assessment, but there are significant limitations on that with respect to the information that is provided to that applicant and the usual provisions of the Administrative Appeals Tribunal Act do not apply. That I think again relates to this bill, in that if we are talking about an adverse background check that is not a result of an adverse security assessment but perhaps the result of some other adverse assessment, whether that be a criminal history check, although we would oppose this, it is clearly envisaged that it might allow for an adverse criminal intelligence check—

Senator LUDWIG —Whatever that might be.

Ms Donovan —Whatever that might be. In somehow looking at the database maintained by the Australian Crime Commission, whatever is allowed. If you have an adverse background check as a result of that, again it would be very difficult to challenge any subsequent decision. This bill should provide, as the ASIO Act has provided, for specific mechanisms for challenging that finding and for the provision of information and subsequent review.

Senator LUDWIG —Because that opens up the issue of what we do not know of those background checks where it is adverse. If it is an ASIO security assessment we at least know that ASIO has a mechanism. We are unaware, because we don’t know all the detail, whether that mechanism exists in all the other areas, so that the ability to challenge could be constrained completely.

Ms Donovan —Indeed. The assurance is that that will be dealt with under the regulations or it will be dealt with scheme by scheme. Indeed, there is a right to challenge certain decisions under the aviation and maritime security schemes, but the Law Council believes that it should not be left to each scheme to determine those provisions, or indeed, why have an act like this? Why establish a centralised agency and not take the opportunity to address these important matters of natural justice?

Senator LUDWIG —If you ended up with three adverse security assessments from three separate agencies, although it might be looking a little bleak at this point, you would still have to challenge each one separately, it appears.

Ms Donovan —It appears that way.

Senator LUDWIG —We are unaware of that, but I am sure the Attorney-General’s Department can put it to rest and say only one appeal would be necessary. We will see.

Ms Donovan —The Law Council are not naive about this matter. It is not easy to deal with these issues in generic legislation. It would not be easy to set out the principles which should apply in all cases to facilitate and allow for a review. We have attempted to acknowledge that in our submissions by acknowledging that in each case there might be a different type of decision which the affected person wants to challenge and the background check might play a different role in that. The background check might be definitive. The background check might give rise to a recommendation that is non-binding to another agency. It might give rise to a direction which another agency has no option but to follow. In each case, the appeal which the affected person will seek will be different. We acknowledge that, but nonetheless we think that there is room, if appropriate attention is given to the matter, to at least state some basic principles about the nature of the information that an affected person is entitled to about the background check, about the exercise of any discretion on the basis of the background check and how they might appeal that decision.

Senator LUDWIG —So, in providing the ability to have an agency’s database examined for the purpose of a background check, they should, in this legislation, ensure that there is a model of principles enunciated, which they would then, through an MOU or an agreement, sign up to and adhere to so that they have provided for transparency, have provided an appeal mechanism and have ensured that it was at least a similar mechanism for each agency that then said in terms of a background check: ‘If you want to check this information then we will at least, if we are going to sign up to AusCheck, ensure that a person doesn’t have to face a myriad of different schemes and different principles to determine whether or not they want to challenge the adverse check.’ That is not here at the moment, though, is it?

Ms Donovan —There is provision for regulations to be made which deal with review of a decision made under the regulations, but the Law Council believes this is an opportunity to actually think through more carefully what that review scheme might look like and to ensure that it allows for full and effective review and affords an applicant the right to have access to all the necessary information to conduct the review.

Senator TROOD —Is it your position that, where these checks are deemed to be needed for any purpose, there ought to be a specific piece of legislation in relation to them? This particular piece of legislation relates to the AusCheck scheme, so, if the Commonwealth wishes to extend those checks beyond the two schemes reflected here, then that ought to be contained in a specific new and separate piece of legislation. Is that your position?

Ms Donovan —A new and separate piece of legislation beyond this AusCheck?

Senator TROOD —Yes.

Ms Donovan —There are a number of ways that it could be achieved.

Senator TROOD —I appreciate there are. But is it your position that you should not use a piece of legislation like this as the foundation for endless extensions of background checks as a kind of stalking horse or Trojan Horse for the extension of the legislation?

Ms Donovan —That is our position. We understand this bill is to set up an agency that performs a certain function, and we do not think that policies should be achieved through the regulations under this act.

Senator TROOD —But it sets up an agency for a particular function, for a particular purpose. What I am asking you is: if it were deemed necessary to extend the need for checks for another purpose, as is now the case in relation to people dealing with minors, for example, should that be another piece of legislation?

Ms Donovan —Then the background checking scheme would be established under that other piece of legislation and the relevant section of the AusCheck act which says the purposes for which it can carry out a background check could be amended to add that scheme as it already includes the two existing schemes. Alternatively, we have proposed in our submission that paragraph 3 of clause 8, which currently says ‘For such other purposes as prescribed by regulations’, could alternatively read—I will just find the wording we have offered, although I do not pretend to be a legislative drafter—’For the purposes of other Commonwealth acts which directly authorise the screening of persons for a specified reason.’ That is at paragraph 21 of our submission.

The purpose of making that suggestion was to offer a compromise that, if this flexibility needs to be built in such that AusCheck was able to take on other schemes without a specific amendment to the AusCheck act, it should at least be limited to allowing AusCheck to take on other schemes which are authorised by other legislation as opposed to other schemes which are devised and implemented exclusively under the AusCheck regulations.

Senator TROOD —Does your concern about this reflect a concern about matters of natural justice? Is that the heart of your anxiety as to the nature of the scheme that is here, that there is a danger that individuals who are going to be subject to checks and certainly extended checks might be denied natural justice by the arrangements as put in place? Or is there another founding philosophical problem that you see here?

Ms Donovan —I would not say that the concern about natural justice is at the heart of our concerns. I will deal with that separately. The heart of our concerns is the idea that a background check is inherently intrusive. It does involve an invasion of privacy, but sometimes it is a necessary evil. How we determine what is necessary depends on the purpose for which it is conducted and confining the information that is gathered to match that purpose. That is a difficult balancing act and we think it is one that should be performed by and closely scrutinised by the parliament. We think deferring that to regulation does not provide for sufficient scrutiny. Looking at this generic bill, we cannot say whether the background checks it introduces are necessary or proportionate to the purpose that is sought to be achieved because there is no detail there. It depends on the regulations.

Senator TROOD —The regulations are subject to the scrutiny of parliament, theoretically anyway.

Ms Donovan —That is acknowledged, but it is the aside you offer—’theoretically anyway’—which raises our concern. They are not subject to the same degree of scrutiny as a bill might be. I would not be here addressing the senators on the regulations, and neither would the Office of the Privacy Commissioner I suspect—we should not treat these matters lightly. Background checking schemes do impact adversely on peoples’ lives. They impact on their employment opportunities, their opportunities for advancement.

In doing some background research I found some Administrative Appeals Tribunal cases which dealt with people who had been refused aviation security cards. While they are not directly necessarily relevant to the review of this bill, they are very interesting because they tell ordinary peoples’ stories. You see that a man who has been working at the airport for five years in Brisbane, when that area is reclassified, he loses his job because of his criminal history. His appeal was unsuccessful. I do not take issue with the facts of that case, but it demonstrates that this is a serious matter which impacts directly on peoples’ lives.

Senator TROOD —The Johnson and Cowdrey cases that are referred to in your submission, did you discover any other examples? You probably did not do a comprehensive, detailed check, but are you aware of many instances where this could be a problem?

Ms Donovan —I did not find any other cases from the Administrative Appeals Tribunal, but that does not mean that they do not exist. In terms of adverse security assessments, it is difficult of course to find information about those reviews because no doubt they are conducted in camera. I did find a very interesting case which I think again illustrates why this is a matter that the parliament should take up with more vigour and with more rigour. It was the case of a woman working in an airport in the United Kingdom who had an adverse counter-terrorism check—I think that is what it is called. Of course she was not allowed to be advised of the reason. She had been working there, she lost her job and she was not advised of what the reason was for the adverse check because for national security reasons she was not allowed to be told. She sought judicial review, but that was difficult without knowing why she was refused.

The provisions in the UK allowed for somebody to be appointed not as her lawyer but to act for her to have access to that information and eventually her appeal was successful. It seems that perhaps somebody who had a grudge had said something. We are not privy to those details. Again that demonstrates how important appeal rights are and how important it is that the legislation guarantees access to at least enough information about why a certain decision might be made so that you can challenge it. That goes again to the natural justice issue. I am not saying that that is central to our concerns; that is essentially the second issue which we seek to address—that is, this bill is an opportunity and that opportunity has not been seized because it is too difficult. It is too difficult to actually engage in the details and set out what are some basic principles that we think all schemes should comply with.

Senator TROOD —In your submission at paragraph 34 you cite the bill and section 9.1 of the bill, which has a series of propositions in relation to the scheme. Are you saying that you would like those to be expanded?

Ms Donovan —Yes, in particular some of those about how an application might be made and what information is given to an applicant—I think the bill says, ‘The form of advice to be given to an applicant for a background check.’ I think that type of matter could be further expanded, notwithstanding that this is a bill which might apply to many different schemes. I do not pretend that it is an easy task; but I do not think it is an easy task to set it out in regulation either.

Senator KIRK —Thank you for your submission. I would like you to elaborate a bit on what you say from paragraph 27 onwards. You say:

 ... the Bill should clearly state that the AusCheck scheme must comply with existing rights based legislation and international human rights treaties ratified by Australia.

Then you go on to recommend amending clause 18 to include some subclauses. Could you elaborate some more upon that? In paragraph 29 you say:

While such a sub-clause is, in some respects, redundant, it would nonetheless provide an important statement of principle and place appropriate limits on when and why background checks may be conducted and how information obtained may be used.

I wonder if you could elaborate on that for us.

Ms Donovan —This submission is based on clause 5, which does not limit the definition of a background check and therefore allows for other matters in addition to the first three listed to be inquired into as part of a background check. The Law Council is concerned that the type of information that would allow to be gathered is too broad. The Law Council believes that the more information that is gathered about a person the more likely the risk that that information will be improperly used for a discriminatory purpose or a purpose which does not legitimately relate to the scheme itself.

If paragraph (d) of subclause 5 is to remain in the legislation, which the Law Council believes it shouldn’t, the Law Council has offered this proposed amendment, which admittedly is a little bit woolly, as a way of providing some restraints on the type of information that can be gathered or on the way that that information can be used. The reason the Law Council suggests it might be in some respects redundant is that regulations would have to comply with other legislative schemes anyway, and we acknowledge that. But nonetheless, we believe it would still be an important statement of principle—an important guiding principle which might provide some constraints on what is otherwise a blank check to gather any type of information.

Senator KIRK —You do not say it in your written submission, but I understand from what you have just said that you would be happy to see subclause (d) deleted entirely.

Ms Donovan —That is an oversight then, because I do not think there is a need for subclause (d), given that clause 5 already allows for an individual’s criminal history check, matters relevant to a security assessment and also matters relevant to citizenship status and right to work et cetera. The Attorney-General’s Department was given some questions on notice and was asked to explain what sort of matters this might include. The answer given was essentially that it might involve, for example, this sort of criminal intelligence check which was suggested as part of the Wheeler report. It was suggested that such a check might strengthen the existing aviation security card regime. The Law Council believes that is a very sensitive and controversial proposal, one that has been on the table for over a year, given that it was one that was suggested in the Wheeler report. This again shows why this rudimentary legislation is inadequate. It is a sensitive, controversial suggestion. It has been on the table for more than a year. A piece of legislation is introduced that, amongst other things, provides a framework for administering the aviation and maritime security cards. This one sensitive suggestion is not dealt with in the legislation, but a regulation making power is reserved to the executive to come back to that later. That is something that should be dealt with directly here, particularly because, as the Wheeler report acknowledged, if a background check is to include a criminal intelligence check as well, then that particularly gives rise to issues of natural justice, what sort of information somebody should be given about the reasons for their adverse check and how they might appeal that.

Senator KIRK —Absolutely. Thank you.

CHAIR —Thank you very much for the Law Council’s submission, which was very helpful to the committee. If we have any issues we need to pursue with you we will do so on notice, as you so generously indicated we could do. We appreciate your attendance here this afternoon. Thank you.

Ms Donovan —Thank you.

[5.14 pm]