Labor Senators note the important role this legislation will play in introducing explicit powers for aviation security inspectors to conduct covert security systems testing to assess compliance security obligations under the Aviation Act, as well as the implementation of new screening officer training and accreditation.
However, Labor Senators are concerned that the Government has not adequately responded to the concerns raised by the Scrutiny of Bills Committee. The Scrutiny of Bills Committee was established in 1981 with the explicit purpose of assessing bills against a set of accountability standards that focus on the effect of proposed legislation on individual rights, liberties and obligations, the rule of law and on parliamentary scrutiny.
The Scrutiny of Bills Committee found this legislation lacking in three important areas that Labor Senators feel are critical to resolve before the passage of this legislation.
Significant matters in delegated legislation
As currently drafted, the legislation would permit an aviation security inspector to test an aviation industry participant's security system, including by using an item, weapon or vehicle to test for its detection.
While the legislation notes that tests must be in accordance with any requirements prescribed in regulations, Labor concurs with the Scrutiny of Bills Committee that delegated legislation should not be used unless a sound justification is provided.
As no such justification has been provided, Labor Senators join with the Scrutiny of Bills Committee to call for the Government to explain this lack of clarity and, if not, amend the legislation to include the testing requirements.
Firearms legislative assurance
The explanatory memorandum currently states that any 'test pieces', such as imitation firearms and simulated improvised explosive devices, are designed to be inert and to not cause harm. However, the Scrutiny of Bills Committee notes that this requirement does not exist on the face of the primary legislation.
Labor Senators urgently call for the legislation to be amended to provide assurance that live firearms or improvised explosive devices will not be used as explained in the explanatory memorandum.
Parliamentary oversight
The legislation allows the Secretary to determine training and qualification requirements for screening officers by legislative instrument. The Secretary is, however, also empowered to exempt a class of screening officers from one or more of the requirements if exceptional circumstances exist.
Labor Senators acknowledge there will be valid situations where these exemptions may need to be applied. However, there are currently no reporting requirements within the legislation that requires the Secretary to transparently report their use of these exemptions.
Given applying an exemption should only be used in exceptional circumstances, Labor Senators concur with the Scrutiny of Bills Committee that the Secretary should require that the number of exemptions issued by the Secretary be reported in the department's annual report to ensure the Secretary’s use of these broad powers is open and transparent.
The Australian people put great trust in the Parliament to ensure that we enact the right legislation to protect Australia’s national security, while also balancing any new laws with openness and transparency. It is with a spirit of continuing to build trust with the Australian people that Labor Senators make these recommendations.
Senator the Hon Kim CarrSenator Anthony Chisholm
Deputy ChairLabor Senator for Queensland