Introduction
This Bill, as originally introduced into the House of Representatives, amends the two Acts that regulate aviation security and maritime security to add an additional purpose to these Acts – to prevent the use of aviation and maritime transport (including offshore facilities) in connection with 'serious crime'.
The Senate Legal and Constitutional Affairs Legislation Committee considered this original legislation reported on 25 March 2020.
Labor Senators raised serious concerns that the Bill, as drafted, should not be passed because:
(a)
ASIC/MSIC processing is already beset with bureaucratic delays and bungling, leading to too many cardholders without passes to enter their workplace.
(b)
The Bill itself lacks critical detail – including a definition of ‘serious crime’ – with an overreliance on delegated legislation with minimal parliamentary oversight.
(c)
Both the Australian Criminal Intelligence Commission and Australian Federal Police recommended further amendments to the Bill, indicating that the Bill has not been subject to rigorous assessment within the portfolio (let alone across Government).
(d)
Police and criminal intelligence authorities already have significant powers to investigate and prosecute offenders for serious crime, and this legislation should not be used as a quasi-tool to penalise workers by removing aviation and waterside workers' right to work.
Labor Senators also noted in their dissenting report that the legislation will not apply to flag-of-convenience (FOC) vessels and their foreign seafarers, despite a 2017 Department of Immigration and Border Protection report noting that these vessels and their seafarers are targeted for a range of, “illegal activities including illegal exploitation of natural resources, illegal activity in protected areas, people smuggling and facilitating prohibited imports or exports.”
The Government did not respond to Labor’s serious concerns.
On 7 October 2020, the Government introduced an amendment to its legislation that creates a new purpose to the Bill, and introduces the concept of a criminal intelligence assessment for the purposes of the aviation and maritime security identification card (ASIC and MSIC) schemes. This will be achieved by amending the Australian Crime Commission Act 2002 (the ACC Act) so that criminal intelligence assessments become a function of the Chief Executive Officer (CEO) of Australian Criminal Intelligence Commission (ACIC), and will be reviewable in the Security Division of the Administrative Appeals Tribunal (AAT).
Labor moved amendments in the Senate to resolve the concerns that the Government have not addressed.
In addition, given the Government added the significant new purpose of the criminal intelligence assessment to the legislation without referring the legislation back to Committee, the Senate agreed to refer the legislation to the Rural and Regional Affairs and Transport Legislation Committee on 22 February 2021.
Dangerous gaps in border security – foreign seafarers
Officials from the International Transport Workers’ Federation (ITF) raised concerns with the Committee that foreign seafarers are not required to hold MSIC. Further, foreign seafarers can enter Australia without proceeding through any routine baggage checks as Australians would usually expect if they arrive into an international airport, which can result in foreign seafarers easily importing in Australia contraband such as illegal drugs and weapons.
There are no X-ray machines. There are no metal detectors. There are no bag checks. These seafarers often just have a backpack, and they're not checked.
Senators questioned officials from Department of Home Affairs, Australian Border Force, Australian Federal Police, Australian Criminal Intelligence Commission, and Department of Infrastructure, Transport, Regional Development and Communications about the risks foreign seafarers pose to Australia’s national security given they are not included in the current MSIC and ASIC schemes.
Officials revealed that foreign seafarers are not exposed to any security clearance or background checking similar to the MSIC scheme that Australian workers are required to complete.
Officials also confirmed that when foreign seafarers arrive in port in Australia, they are not exposed to routine:
(e)
bag checks or inspections for drugs, weapons or other contraband
(f)
metal detectors to detect other weapons being imported into the country
(g)
checks by drug detector dogs.
The Department of Home Affairs confirmed that, although some foreign vessels have more than twenty seafarers on board, all twenty foreign seafarers could be left to walk through highly sensitive areas of ports simply under security camera supervision without any MSIC-accredited officials physically present to escort them.
The Department of Home Affairs also confirmed that there are no Transport Security officials from the Department on-the-ground to ensure compliance with transport security requirements.
Labor Senators remain concerned that this Bill is only applying to Australian workers – and does nothing to ensure foreign workers on ships working in Australia’s domestic shipping network are subject to similar background checks. This is despite Government reports showing that foreign crew are open to exploitation from organised crime syndicates or terrorist groups. This has been a long-term issue with how the Government completes background checks for foreign workers, and the Government has shown no appetite to increase scrutiny of foreign workers
Dangerous gaps in border security – temporary licenses
On 1 July 2012, the Coastal Trading (Revitalising Australian Shipping) Act 2012 (the Act) created a new licensing regime to regulate access the coastal trade which replaced the previous permit system that was established under Part VI of the Navigation Act 1912.
The Act regulates coastal trade by granting licences to authorise vessels to carry passengers or cargo between ports in Australia. The licensing system established under the Act sets out three licence types; general licences, temporary licences and emergency licences.
All domestic movements of cargo or passengers on interstate voyages must be authorised by licence. Using a vessel to engage in coastal trading without a licence is an offence and may lead to a penalty being imposed.
Despite these strict requirements, officials from the ITF presented evidence to the Committee examples of ten vessels that were in violation of Australia’s Temporary License arrangements.
For a ship to enter into Australia, and, more specifically, to engage in coastal trade—that is trade from one port to another port—they must acquire a temporary license. This license must be approved and it must be displayed in a prominent place at all times whilst the ship is in Australia.
In actual fact I've listed in the submission 10 examples where foreign flagged ships are not even bothering to apply for the temporary license.
Mr Bray went on to explain that when vessels work off Australia’s shores outside of the Temporary License regime, their workers are not afforded the worker rights they
Mr Bray: …as an inspectorate, we look at these things to make sure that those foreign seafarers are being afforded their entitlements as per law. When we find there is not a payment, we revert and inform the Fair Work Ombudsman of such breach. I guess we stumbled on this by accident when it was in its infancy, because the Fair Work Ombudsman was coming back to us saying: 'They are not entitled to the wages, because there is no temporary license.' So we were looking at it and saying, 'Well, the ship's here; it's completed its third and ensuing voyages,' and the Fair Work Ombudsman were saying they're not entitled because—what are they saying? Was it that the ship's here illegally or that they can't act because it hasn't got a temporary—
Senator STERLE: Sorry, Mr Bray. The ITF inspectors have uncovered crews working Australia's domestic coastal trade that haven't got a temporary licence?
Mr Bray: That's correct.
Senator STERLE: The ship hasn't got it?
Mr Bray: That's correct.
Senator STERLE: So you've gone on to say, 'Are you getting paid the Aussie wages after the third trip?' and then they say, 'You go to the Fair Work Ombudsman,' and the Fair Work Ombudsman says, 'We can't prosecute because they haven't got a licence'?
Mr Bray: That's correct.
Senator STERLE: What the bloody hell good is it to have a licence? Is no-one policing this? Sorry, I'll let you go on. Nothing surprises me anymore in this field, but let's go.
Mr Bray: Again, we just wanted to highlight that that's where we want to go today in terms of the evidence we want to present, because you're quite right. You've got to understand that our inspectorate is a team of four, including me. I'm here today as part of the inspectorate, so that leaves three out there doing what they do in terms of making sure that ship owners are complying with the terms and conditions of employment when they're on the coast here. In the last 24 hours, two of my inspectors have gone up to two different ships in two different ports and ascertained breaches of the coastal trading act because the vessels don't have temporary licences.
When questioned, officials from the Department of Infrastructure, Transport, Regional Development and Communications confirmed that they have no officers on the ground to ensure that foreign ships are complying with Temporary License obligations, despite reports of ships engaging in coastal trade around the nation.
The Department also confirmed that they have only detected five breaches of Temporary Licenses since 2012.
Since the establishment of the Coastal Trading (Revitalising Australian Shipping) Act 2012 (the Act) our records indicate there have been five breaches of Section 83 of the Act (Engaging in coastal trading without licence). In all instances, the Department communicated with the temporary licence holder, noted the breach, but opted to take no further penalty action -subject to future compliance with the Act on the part of the licence holder.
Labor Senators are concerned that the Department of Infrastructure, Transport, Regional Development and Communications is failing to detect the frequency of violation of Australia’s Temporary License regime.
Further, given the large number of violations of the Temporary License regime that the Australian Government has not detected, Labor Senators are concerned about what other laws Flag of Convenience vessels might be breaking on Australia’s domestic coastal trading routes.
Other issues
Labor Senators remain concerned about a number of issues that remain unresolved, largely due to a lack of consultation by the Government about this important national security legislation.
A key change in the Bill is to change the nature of the Criminal History Assessment. The Bill expands the criminal history check to include ‘serious crime’. However, the Bill contains no definition of ‘serious crime’.
The Bill contains no legislated right of appeal if workers are denied an ASIC/MSIC for some aspects of the scheme.
The existing ASIC/MSIC system is plagued with bureaucratic delays, meaning workers are often left without ASIC/MSIC when they should be at work.
Senator Glenn Sterle
Deputy Chair
Senator Nita Green
Member