Overview
2.1
This chapter outlines issues raised by witnesses and submitters. The inquiry participants were broadly supportive of the aims of the bill but concerns were raised by the Maritime Union of Australia including:
security risks posed by flag-of-convenience vessels and their crews;
processing times of security identification cards; and
matters to be taken into account in conducting criminal intelligence assessments.
Issues raised
Security risks posed by flag-of-convenience vessels and their crews
2.2
Representatives from the Maritime Union of Australia (MUA) and International Transport Workers Federation told the committee that foreign seafarers who work off Australia's coastline on flag-of-convenience ships with maritime crew visas are not subject to the same stringent background checks as Australian maritime workers who are required to have an MSIC.
2.3
The committee heard that there were 28 584 arrivals by 5981 individual foreign-flagged vessels in Australian ports in 2019, with each vessel potentially employing 18 to 20 seafarers. In the view of Mr Ian Bray, ITF Coordinator with the MUA, many foreign workers are subjected to 'a life of isolation … on extremely low levels of wage', making them vulnerable to be targets for organised crime.
2.4
Mr Bray reported that some foreign ships operated without a temporary licence which meant that they were carrying cargo between Australian ports with limited knowledge by Australian authorities. Mr Bray contended that 'there are at least 30 access points to the country' that could be used by foreign ships, namely berths in ports, that did not require the use of maritime security cards. He concluded:
… a ship trading on the Australian coast without a permit triggers that a shipowner or charterer may have a propensity to ignore Australian laws and regulations. The foreign crew have no MSIC or background checks. The department doesn't even know that they are here, let alone what ports they are visiting. If the department doesn't know that they are here, Border Force would not be able to appropriately allocate the resources to ensure that illegal activity is not being conducted.
2.5
Mr Bray argued that by contrast, Australian workers are required to undergo an 'onerous' application process to obtain an MSIC, without which they are effectively denied the ability to work. In the MUA's view, the expansion of the eligibility requirements for MSICs is unnecessary and its effectiveness questionable when foreign workers are not subject to equivalent security measures.
2.6
In response to questioning, the committee was informed by First Assistant Secretary for Aviation and Maritime Security in the Department of Home Affairs (the department), Ms Ciara Spencer, that there was 'no government requirement' for all Australian seafarers working on Australian vessels to have an MSIC. Security identification cards were required by all workers requiring 'unsupervised access to secure zones of airports, seaports and offshore oil and gas facilities' whether they were foreign nationals or Australian workers. The department submitted that:
Foreign-flagged ships must comply with a port’s security requirements. Foreign seafarers must also comply with the security measures of Australian ports and port facilities, including the requirement to hold an MSIC if they require unsupervised access to a maritime security zone.
2.7
According to the department there have been 87 266 MSICs issued to Australian citizens and 12 415 issued to 'not Australian citizens'.
2.8
Regarding security requirements applying to vessels that enter Australian waters and ports, the department submitted that under the Maritime Transport and Offshore Facilities Security Act 2003:
Regulated foreign ships must also provide the Australian Border Force (ABF) with pre-arrival information including the ship’s maritime security level and last 10 ports of call. The ship’s master must allow a Departmental or ABF maritime security inspector to board and inspect the ship when requested … Pre-arrival information is used by the Department and the ABF to critically assess the risk posed by all vessels entering Australia.
2.9
Mr Michael Willard, First Assistant Secretary for Immigration Programs at the department, added that arriving vessels are also required to give Border Force details of all travellers and crew on board. All foreign seafarers must comply with Australia's immigration clearance arrangements including the requirement that all foreign crew have maritime crew visas.
2.10
Representatives from the department emphasised that maritime crew visas allowed foreign workers to enter Australia, a separate purpose entirely from MSICs:
One is a temporary visa for entry into Australia; the other is a background check for access to the most critical and vulnerable secure areas of our airports and seaports. They cannot be conflated. There may be a question of how industry uses that, but for government purposes we see significant vulnerabilities in those secure areas, and that's why they're subject to higher security measures.
2.11
In relation to the berths identified by the MUA that do not require MSICs, Ms Spencer informed the committee that only 'the most critical and vulnerable' areas of ports were designated by marine industry participants under security legislation as secure zones, and some individual berths may not qualify. Ms Spencer also reported that the department had an incident notification scheme where 'industry participants are required to notify [the department] of any incidents that go to compliance with our laws and regulations'.
2.12
That the Australian border was not fully secured from drug importation was acknowledged by Mr Michael Phelan, Chief Executive Officer of the Australian Criminal Intelligence Commission (ACIC), who stated:
'Have we got 100 per cent of the border closed?' Well, no, we don't, not if 20 tonnes of gear gets in. So there are vulnerabilities. What we're seeking to do, particularly through doing criminal intelligence checks, is to plug some of those vulnerabilities—not all the vulnerabilities but some of them.
2.13
However, he also commented that the main threat from flag-of-convenience ships, as ACIC perceived it, was not their 'propensity or frequency to be used to import drugs', but rather the difficulty of knowing the ships' owners. The risk from prohibited imports being walked off boats by crew members was considered by ACIC a 'very small percentage' compared to arrivals through the sea or air cargo stream or by mail.
Processing times of security identification cards
2.14
In its submission, the MUA argued that the MSIC renewal process is 'taking months' and maritime workers are being unnecessarily disqualified and their livelihoods threatened when they do not pose a security threat.
2.15
Furthermore, the MUA asserted that workers' prior offences, sometimes decades old, had led to the delay or refusal of renewals for MSICs. According to Mr Paul McAleer, Pacific Dockers Organiser, ITF Asia, the broad scope of the proposed legislation picks up people who have 'paid their time, they've worked on the waterfront for many years, … and they are now being brought into scope of this legislation for no justifiable reason whatsoever'.
2.16
During the inquiry hearing the committee discussed processing times for MSICs and ASICs with agency representatives. The committee was told that background checks for MSIC holders are conducted every two years and applicants are advised around five months before the card expires of the need to reapply. Applicants can reapply at any time.
2.17
Ms Spencer informed the committee that in 2020 AusCheck processed over 100 000 ASIC and MSIC applications, of which 85 per cent were processed within 15 days. She added that when an application was complex, delays were a result of the need to refer potentially adverse criminal history information to the applicant or another agency and allow them time to respond.
2.18
Delays may also be caused by incomplete applications or, as the department submitted:
Should a complex criminal history be returned as part of the ACIC criminal history check, AusCheck may be required to contact local jurisdictional courts to seek additional information to ensure accuracy within the assessment process. These complexities may require additional processing time and are beyond AusCheck’s control.
2.19
Mr Phelan told the committee that according to ACIC analysis in 2019, only nine per cent of people who have ASICs and MSICs 'have criminal convictions, excluding traffic' and 0.1 per cent had links to organised crime such as bikie gangs. He added that this meant that only 'one out of a thousand of those who have criminal convictions and who are already on the ports and the air stream will flag our interest'.
2.20
Mr Phelan explained that if a criminal intelligence assessment was required, this would not extend the processing time to a great extent as this would involve a name check against ASIC lists and not a police investigation.
2.21
In response to the proposed amendment to the bill mandating a maximum 60-day processing time for security pass renewals, after which the pass is taken to have been renewed, Ms de Veau advised that if 'there is a person who presents a really serious security risk from a law-enforcement perspective, you wouldn't want an automatic renewal'. The department also contended:
Further, any automatic renewal mechanism would create a loophole, which could be subject to exploitation by serious criminal entities, where an applicant does not respond to a request for further information within the 60 day period leading to the automatic renewal of the ASIC or MSIC.
Matters to be taken into account in conducting criminal intelligence assessments
2.22
In its submission, the MUA raised a number of concerns regarding the opacity of the bill on the matters to be taken into account by enforcement authorities in making criminal intelligence assessments.
2.23
Mr McAleer expressed a concern for the transparency of decisions given that workers may 'lose their job based on unsubstantiated criminal intelligence or guilt by association'. He added:
There is no accountability in this legislation. There is no access to natural justice for these workers who have been caught up in this, and it could be, by default, someone who doesn't like them, someone who doesn't like their trade unionism, their political views, their religious views or anything like that. People could be individually targeted and discriminated against for a whole host of reasons and have things said about them that are untrue, inaccurate and untested and have their livelihood destroyed because of it.
2.24
Mr Phelan explained that the criminal intelligence assessment provisions of the bill sought to identify 'cleanskins' who have not yet been convicted but who have links to organised crime:
They may not necessarily get on and be the person who lifts the container off or directs the crane to grab that particular container, but if they're on the wharf and they've been told to identify a particular container coming off a particular ship then they can see where that container goes. They can see whether that container goes off to be inspected or whether it does not. Those people are the sorts of vulnerabilities that we're after in the system.
2.25
The making of a criminal intelligence assessment was described by Mr Phelan as a 'non-delegable power' invested in him as CEO. When a request is received by ACIC from the department for a criminal history check and a criminal intelligence check, the applicant's name is run against ACIC's holdings. Mr Phelan explained that while intelligence such as the involvement or association of individuals with organised crime gangs will be used, assessments needed to be evidence-based and backed up by 'a second source from real information'.
2.26
In reference to item 7 of schedule 2 of the bill, which inserts a definition of 'criminal intelligence assessment' that refers to whether a person 'may' commit a serious and organised crime or 'may' assist another person to commit a serious and organised crime, Mr Phelan advised:
So whilst the word 'may' has not necessarily been considered judicially in this country by an appellant jurisdiction, the other gradations of knowledge, through suspicion, belief and actual knowledge, have been, and they still say that the decision-maker has to make the decision reasonably, based on facts. So I can't just do it, as was put in some circles, based on a hunch, rumour, unverified intelligence or anonymous phone calls that come in. Those will not pass muster. When matters can be appealed to the AAT, which is a merits review, the AAT has to make that review on the same basis that I made the decision on. So the intelligence has to be verifiable.
2.27
Ms de Veau added that further protections were provided by the definition of 'serious and organised crime' in section 4 of the Australian Crime Commission Act, which ensures that 'the intelligence has got to demonstrate the offence involves two or more offenders and substantial planning and involves the kind of offending that ordinarily uses sophisticated methods and techniques'.
2.28
Ms de Veau argued that the definition of criminal intelligence assessment in the bill set a higher test for ACIC in establishing an adverse criminal intelligence assessment than would have been the case if it had been triggered by the presence of an individual's name on ACIC holdings alone.
Committee view
2.29
All submitters and witnesses to the inquiry have agreed that national security of ports and airports is vital.
2.30
The committee supports the intent of the bill to improve aviation and maritime security by strengthening the eligibility criteria under which workers can obtain aviation or maritime security identity cards which allow them access secure and sensitive areas.
2.31
The bill has been subject to several inquiries which have highlighted deficiencies in the aviation and maritime security identification schemes. The bill will enact the recommendation of the Senate Legal and Constitutional Affairs Legislation Committee's inquiry into the Transport Security Amendment (Serious Crime) Bill 2019 to incorporate a criminal intelligence assessment into the ASIC/MSIC background checks process.
2.32
While evidence received by the committee indicated that Australia's border security is not perfect, the committee affirms that empowering ACIC to conduct criminal intelligence assessments helps close a gap in the existing legislation where people with links to serious and organised crime who may not have attracted the attention of law enforcement agencies are allowed unrestricted access to secure areas in our airports, seaports and offshore facilities.
2.33
The committee accepts the department's assurances that applicants for security identification cards have ample opportunity to apply for renewals before the expiry of their card and that mandatory maximum processing times would be counter-productive.
2.34
Furthermore, the committee is satisfied that the criteria used to determine criminal intelligence assessments meet the test of reasonableness necessary for natural justice in administrative decision-making.
2.35
The committee recommends the Senate pass the bill.
Senator Susan McDonald
Chair