1.1
On 22 February 2021 the Senate referred the Transport Security Amendment (Serious Crime) Bill 2020 (the bill) to the Rural and Regional Affairs and Transport Legislation Committee (the committee) for inquiry and report by 11 March 2021.
Conduct of this inquiry
1.2
Details of the inquiry were advertised on the committee's webpage. The committee also invited a number of organisations and individuals to submit to the inquiry by 1 March 2021. The committee received three submissions, which are listed at Appendix 1. Public submissions were published on the committee's inquiry webpage.
1.3
The committee held a public hearing in Canberra on 2 March 2021. The witnesses who appeared at that hearing are listed at Appendix 2.
Acknowledgements
1.4
The committee thanks all submitters and witnesses for their contribution to this inquiry.
Structure of this report
1.5
This report consists of two chapters:
This chapter provides administrative details relating to the inquiry and outlines the key purpose of the bill.
Chapter 2 examines the key issues raised in evidence and provides the committee's view.
Purpose of the bill
1.6
The bill would amend the Aviation Transport Security Act 2004 (the Aviation Act) and the Maritime Transport and Offshore Facilities Security Act 2003 (the Maritime Act) to enable the making of regulations for preventing the use of aviation, and maritime transport or offshore facilities, in connection with serious crime. The amendments would provide the Governor-General with authority to amend the aviation security identification card (ASIC) and maritime security identification card (MSIC) schemes.
1.7
Individuals who have an operational need to access secure areas and zones in airports, seaports and offshore facilities must undergo a background check before they can have unescorted access to such areas. Currently, the background check consists of four elements including:
an identity verification to confirm the individual’s identity (name, date of birth etc.);
a criminal history check, conducted by the Australian Criminal Intelligence Commission (ACIC), to determine whether the individual has been convicted of offences that relate to the unlawful interference with aviation and maritime transport or offshore facilities;
a security assessment, completed by the Australian Security Intelligence Organisation (ASIO) under Part IV of the Australian Security Intelligence Organisation Act 1979 (the ASIO Act); and
if the individual is not an Australian citizen or permanent resident, a migration status check by the Department of Home Affairs to determine whether the individual has a right to work in Australia.
1.8
The bill seeks to provide for the expansion of the types of offences that are eligibility criteria for the criminal history check. This expansion aims to limit the influence of criminal activity in the aviation and maritime or offshore facilities environments.
1.9
After its introduction, the bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee who reported on the Bill on 25 March 2020. In their report, the Committee recommended that:
(1)
the bill be amended to incorporate a criminal intelligence assessment in the background check process for the ASIC and MSIC schemes; and
(2)
subject to recommendation one, that the bill be passed.
1.10
The following amendments proposed through the insertion of the new Schedule 2 into the bill, and agreed to in the House of Representatives on 7 October 2020, seek to address recommendation one:
add a criminal intelligence assessment to the definition of ‘background check’ under section 5 of the AusCheck Act;
make it a function of the Chief Executive Officer of the ACIC (the CEO) under the Australian Crime Commission Act 2002 (the ACC Act) to conduct criminal intelligence assessments for the purpose of a background check relating to the ASIC and MSIC schemes;
provide for the review of adverse criminal intelligence assessments in the Security Division of the Administrative Appeals Tribunal (AAT) in the ACC Act; and
exclude ACIC and AAT decisions concerning criminal intelligence assessments from judicial review under the Administrative Decisions (Judicial Review) Act 1979 (the ADJR Act), consistent with other decisions made under the ACC Act and in the Security Division of the AAT (see paragraphs (wa) and (y) of Schedule 1 to the ADJR Act respectively).
1.11
According to the Supplementary Explanatory Memorandum to the bill, the introduction of criminal intelligence assessments as part of the background check process is an important measure to prevent the operation and infiltration of serious and organised crime in sensitive airport and seaport environments. Including the assessment will provide the ACIC with an opportunity to assess whether a person may be at risk of committing, or assisting another person in committing, a serious and organised crime. This new assessment will enable the ACIC to identify persons who are known members of organised crime groups or those who may have convictions that fall within the current eligibility criteria and are not otherwise prevented having unescorted access to secure areas and zones.
1.12
The commencement of the measures included in new Schedule 2 to the Bill is delayed for a period of up to 12 months in order to provide time for the ACIC to establish the new capability, policies, and procedures required to conduct criminal intelligence assessments. The delay will also allow for AusCheck to establish the criminal intelligence assessment element as part of the background check process and for amendments to the AusCheck, Aviation and Maritime Regulations to be prepared.
1.13
It is intended that the amendments will prevent the issuing of an ASIC or MSIC to an individual who has been found to have an adverse criminal intelligence assessment. The additional regulation making powers to be inserted into the Aviation Act and Maritime Act by Schedule 1 of the bill will provide authority for this amendment to be made.
Migration Amendment (New Maritime Crew Visas) Bill 2020
1.14
This Private Senators bill, (the MCV bill) introduced by Senator Keneally on 11 November 2020, would work in conjunction with the Transport Security Amendment (Serious Crime) Bill 2020. The MCV bill will amend the Migration Act 1958 to replace the current Maritime Crew Visa (MCV) with two new categories of MCVs:
an International Seafarers Transit Visa for entering Australia on a continuing international voyage only (the purpose of the current Maritime Crew Visa); and
an International Seafarers Work Visa, which would permit international seafarers to be engaged on ships authorised under a Temporary License to undertake coastal voyages made under the Coastal Trading (Revitalising Australian Shipping) Act 2012.
1.15
The MCV bill aims to ensure that foreign maritime crew on 'flag of convenience' vessels are subject to a similar security screening standard as Australians subject to a MSIC, thereby reducing the risk of foreign crew working on Australian shores with criminal histories that would be unacceptable under the MSIC scheme.
1.16
Amendments moved to the Transport Security Amendment (Serious Crimes) Bill 2019 would delay the legislation coming into effect until after the passage of the MCV bill.
Proposed Amendments
1.17
The opposition has proposed a number of amendments to the bill. Some of these amendments, discussed during the debate and inquiry, are discussed below.
1.18
Proposed amendments to Schedule 1 of the bill would define 'serious crime' as;
(1)…conduct that, if engaged in within, or in connection with, Australia, would constitute an offence prescribed by the regulations.
(2) Regulations made for the purposes of the definition of serious crime must not prescribe an offence unless the offence is an offence against a law of the Commonwealth, a State or a Territory punishable by imprisonment for a period of 3 years or more.
1.19
A further amendment would remove Schedule 2 to the bill in its entirety. This schedule provides for the introduction of criminal intelligence assessments by amending the ACC Act and AusCheck Act, and making related amendments to the AAT Act and ADJR Act.
1.20
Proposed amendments would mandate that the regulations include provisions allowing a person who has been subject to a security check to seek review by the relevant Secretary of a decision in relation to a security identification card, or by the Administrative Appeals Tribunal. This amendment does not provide scope for the Secretary to review an adverse security assessment or a qualified security assessment.
1.21
Under further proposed amendments to the bill, the regulations must provide that a person who has been issued an ASIC or an MSIC may apply for the renewal of the person’s ASIC before it expires. The decision of issuing authorities to renew or decline the application will be required to be made within 60 days of application. If no response is made within 60 days then it will be assumed to be renewed.
1.22
The Inspector-General of Intelligence and Security would be given the same oversight powers for the ACIC as they have for the Defence Intelligence Organisation and the Office of National Intelligence under proposed amendments. Additional functions of the Inspector-General in relation to the ACIC include:
the ability to inquire into any matter relating to the compliance by the ACIC with the laws of the Commonwealth and of the States and Territories, compliance with directions or guidelines given to the ACIC by the responsible Minister, the propriety of particular activities of the ACIC, or an act or practice of ACIC may be inconsistent with any human right or may constitute discrimination;
at the request of the Attorney-General or the responsible Minister or of the Inspector-General’s own motion, to inquire into the procedures of the ACIC relating to employee grievances; and
at the request of the Attorney-General or the responsible Minister or of the Inspector-General’s own motion, to inquire into the effectiveness and appropriateness of the procedures of the ACIC relating to the legality or propriety of the agencies activities.
1.23
Amendments to the bill would require a review of these amendments to be undertaken after two years, five years, and every five years thereafter. The person conducting the review must provide a written report to the Minister following each review and each report must be tabled in the House of Representatives within 15 days of being received by the Minister.
Consideration by other parliamentary committees
1.24
The bill has previously been considered by various parliamentary committees including the aforementioned Senate Legal and Constitutional Affairs Legislation Committee. Further reports are outlined here.
Senate Rural and Regional Affairs and Transport 2016 inquiry
1.25
The committee reported on the first bill in 2016. Concluding the inquiry, the committee recommended that the bill be passed.
1.26
The ALP, through Senator Glenn Sterle and Senator Alex Gallacher, supplied additional comments stating that they would be suggesting amendments to gain clarity of purpose between the two missions of transport security and targeting serious or organised crime in the transport system. The Greens, through Senator Janet Rice, supplied additional comments stating that they did not support the bill and that the government should consult further with the sector to develop alternative solutions.
Parliamentary Joint Committee on Human Rights
1.27
The Parliamentary Joint Committee on Human Rights (the human rights committee) considered an earlier version of the bill and commented on it for advice only. The advice in its February 2020 report primarily centred on the 'right to work', noting:
… the legal advice that altering the eligibility criteria for persons to gain access to areas or zones relating to aviation, maritime transport or offshore facilities may engage and limit the right to work (as persons denied access would be unable to be employed in such areas or zones), which has not been considered in the statement of compatibility. However, the committee considers that the limitation appears to pursue a legitimate objective, is rationally connected to that objective and a proportionate means of achieving that objective.
1.28
Further, the human rights committee also notes that the bill:
… leaves to the regulations all of the detail as to when access to such areas or zones may be denied, including the definition of what constitutes 'serious crime'
1.29
The human rights committee came to the view that should the bill be passed, the human rights committee will need to assess the regulations for compatibility with human rights law.
Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity (ACLEI)
1.30
In December 2020, ACLEI completed a report into the Integrity of Australia's Border Arrangements. Included in ACLEI's recommendations were:
Recommendation 3
The committee recommends that the Australian Government review the overall administration of the ASIC and MSIC schemes to consider either a single issuing authority or a significantly reduced number of issuing bodies.
Recommendation 4
The committee recommends a central register of ASICs and MSICs be established that is updated on a regular or real-time basis to reflect, at a minimum, relevant convictions; cessation of employment; and individuals holding multiple cards.
1.31
ACLEI was of the view that the ASIC and MSIC schemes could be better used to prevent people with links to serious and organised crime from working in secure locations by using this existing security measure to undertake more rigorous screening. Additionally, the committee also acknowledged concerns that inconsistencies exist between MSICs and Maritime Crew Visas (MCVs) where the MCVs enable foreign workers access to sensitive port areas without a similar level of security vetting to MSIC holders. ACLEI agreed that this issue may warrant further attention.
Note on references
1.32
In this report, references to Committee Hansard are to proof transcripts. Page numbers may vary between proof and official transcripts.