Division Description Changes — Bills — Australian Border Force Amendment (Protected Information) Bill 2017; Second Reading — 16th Oct 2017

Change	Division
senate vote 2017-10-16#1 Edited by mackay staff on 2017-11-25 17:11:02	Title Bills — Australian Border Force Amendment (Protected Information) Bill 2017; Second Reading Australian Border Force Amendment (Protected Information) Bill 2017 - Second Reading - Section 42 Description
senate vote 2017-10-16#1 Edited by mackay staff on 2017-11-25 17:10:39	Title Description ~~<p class="speaker">Kim Carr</p>~~ <p>Labor supports the Australian Border Force Amendment (Protected Information) Bill 2017 because, in principle, we support transparency in the operations of the Department of Immigration and Border Protection and the Australian Border Force, and of course that should also extend to the contractors who provide services to them. In particular, we have long called for greater transparency in the conduct of Australia's onshore detention centres and the offshore immigration processing centres. The bill does not directly concern those centres, of course, but it is important in the context of the operation of the department. This bill provides a clearer and narrower definition of information that is protected and what is protected from disclosure. It also clarifies people's capacity to disclose non-protected information, and it adds three new permitted purposes for which personal information can be disclosed under the Australian Border Force Act, to include intercountry adoptions, the protections of national security and the locations of missing persons.</p> <p>Existing secrecy and disclosure provisions in the act were adapted from the now repealed Customs Administration Act. Labor supported those provisions at the time but, since the act was passed, there has been some confusion about what information is protected and what information can be disclosed. Labor referred this bill to a Senate inquiry to allow stakeholders to have their say about its consequences. Submissions to that inquiry generally supported the narrowing of the kinds of information that should be protected. But submitters raised concerns about the provision in the bill, as it was originally drafted, which allowed the Secretary of the Department of Immigration and Border Protection to prescribe by legislative instrument additional information that could be protected from disclosure. Labor shared these concerns, and we are pleased that the bill was amended in the House of Representatives.</p> The majority voted against a [motion](http://www.openaustralia.org.au/senate/?id=2017-10-16.4.2) introduced by Greens Senator [Nick McKim](https://theyvoteforyou.org.au/people/senate/tasmania/nick_mckim), which means it failed. ### What did the motion do? The motion would have added to the usual second reading motion, which is a motion to agree with the main idea of the *bill (in parliamentary jargon, it's a motion to read the bill for a second time):* > At the end of the motion, add: *> "but the Senate notes the chilling effect that section 42 of the Australian Border Force Act 2015 has had on the immigr*ation debate in Australia and condemns the Government and the Opposition for introducing and supporting the existing section." Senator McKim explained: *> Section 42 of [the Australian Border Force Act] provides that it's an offence for someone who is or has been an entrusted person to make a record of or disclose protected** information. The maximum penalty for the offence is imprisonment for two years.* *> This provision—which still exists as we debate here today, with a minor amendment delivered by the government with regard to medical professionals—was designed by the government and supported by the Labor Party, for no other reason than to suppress the true horrors of what is happening on Manus Island and Nauru and inside Australia's onshore immigration detention regime. It was designed to have, and had, a chilling effect on freedom of speech in this country. It was designed to prevent people from speaking out about what they witnessed, including many people who had either a professional or a moral obligation to do so. The current section 42 is a draconian measure, designed, as I said, to keep secret the horrors of what is happening on Manus Island and Nauru an*d inside Australia's onshore detention regime. Read more about the bill in the [bills digest](https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1718a/18bd034). <p>The amended bill now before the Senate gives the minister, not the secretary, the power to prescribe additional protected information by legislative instrument. The instrument is subject to disallowance, as it was in the original form of the bill. The amended bill is a great improvement on the original because the power to prescribe protected information should not rest with an unelected public servant; it is properly exercised by the minister, who can be held accountable by parliament. This was not the only concern for Labor in the original form of the bill.</p> ~~<p>During the Senate inquiry into the bill, the chair, Senator Macdonald, said—and I don't often quote Senator Macdonald:</p>~~ <p class="italic">I'm uncomfortable with the fact that public servants, albeit the highest public servant in the area, is making these legally binding rulings. I accept that if the minister did it he would do it on the advice of the secretary.</p> <p>The power to add to protected information by legislative instrument exists to deal with unforeseen changes in circumstances. In response to the Scrutiny of Bills Committee report, the minister cited these examples of the information that might come under new powers: the internal tools for visa decisions that, if disclosed, could increase a person's prospect of being granted a visa for which they might not otherwise be eligible; or the internal procedures for assessing applications for Australia's trusted trader status under the Customs Act that, if disclosed, could lead to an entity receiving this status that otherwise might not have been given. The minister should always be willing to be held accountable and to justify any decisions to protect information from disclosure. The bill in its present form now makes that clear.</p> <p>I have had to say too many times in this chamber: there must be greater transparency in the administration of Australia's detention centres and Australian-funded offshore processing centres. The government's mismanagement of these offshore processing centres, particularly in regard to issues of welfare and garrison support have been subject to two scathing Australian National Audit Office reports. In September 2016, Labor initiated a Senate inquiry into allegations of serious abuse and neglect and instances of self-harm as outlined in the Nauru files, because the government had failed to act. Labor deplores the government's complete failure to act in the 3½ months since the inquiry's report and its recommendations.</p> <p>Manus Island and Nauru were set up as regional transit processing facilities but have become places of indefinite detention because the government has not found third-country resettlement options. It has in many ways, I think, placed great emphasis on a single agreement with a former US administration about which the present administration has been far from enthusiastic. Refugees should be removed from the offshore centres and resettled to third countries as soon as possible. Malcolm Turnbull and Peter Dutton need to get on with the job of making that happen, and Labor would support them in genuine attempts to do that, as we support this bill.</p> <p>While I'm on my feet, may I also draw attention to the commencement today of the full bench of the Fair Work Commission for its hearing into the pay dispute between the Department of Immigration and Border Protection and their staff. They're critical to the implementation of many of these measures before the chamber at the moment. The dispute has now been underway for four years, and during that time thousands of Immigration and Border Protection staff have had to fight tooth and nail, both in the Abbott and the Turnbull governments, over pay and conditions, while suffering real wage cuts. These are the people we look to to protect Australia's borders at sea, in airports and at ports. These are the people we look to maintain our visa system, to process citizenship applications and to protect Australians from the importation of dangerous and prohibited goods. They have a critical role to play. They've got a focal point on providing the security on which this country so depends. Yet they are subject to constant antiworker agendas by this government. We have had four years of that assault.</p> <p>The government has sought to provide minimum pay rises for its own employees. It offered 3.4 per cent, which was rejected by 81 per cent of the department's workforce. In the various ballots that have been held the government clearly has not been able to maintain the support of its workforce. This is in the context where the most senior executives, who are on pay rates of well over $600,000 a year, are receiving pay rises well in excess of that that's being offered to the rest of the department. So four per cent is being offered to the most senior executives, but only 3.4 per cent to the other ranks. There seems to be a fundamental injustice in that disparity. Little wonder that this dispute has gone on for so long. It is important that the full bench of the Fair Work Commission are able to hear this matter, and I trust that they're able to do so in a speedy manner.</p> <p>You would have thought that the government ought to be championing the rights of its employees instead of, in fact, doing exactly the opposite—maintaining this confrontational cost-cutting antiworker ideology. We rely heavily upon the public servants in the Department of Immigration and Border Protection to protect Australians, to provide us with safety and security. You would have thought that the least we could do was provide a proper basis for ensuring that they get at least the same remuneration and are treated on the same basis as the senior executives within the government department. If it's good enough to offer four per cent to the senior executive service and the secretary, surely it's good enough to offer the rest of the department the same rate.</p> ~~<p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>~~

~~Kim Carr~~
Labor supports the Australian Border Force Amendment (Protected Information) Bill 2017 because, in principle, we support transparency in the operations of the Department of Immigration and Border Protection and the Australian Border Force, and of course that should also extend to the contractors who provide services to them. In particular, we have long called for greater transparency in the conduct of Australia's onshore detention centres and the offshore immigration processing centres. The bill does not directly concern those centres, of course, but it is important in the context of the operation of the department. This bill provides a clearer and narrower definition of information that is protected and what is protected from disclosure. It also clarifies people's capacity to disclose non-protected information, and it adds three new permitted purposes for which personal information can be disclosed under the Australian Border Force Act, to include intercountry adoptions, the protections of national security and the locations of missing persons.
Existing secrecy and disclosure provisions in the act were adapted from the now repealed Customs Administration Act. Labor supported those provisions at the time but, since the act was passed, there has been some confusion about what information is protected and what information can be disclosed. Labor referred this bill to a Senate inquiry to allow stakeholders to have their say about its consequences. Submissions to that inquiry generally supported the narrowing of the kinds of information that should be protected. But submitters raised concerns about the provision in the bill, as it was originally drafted, which allowed the Secretary of the Department of Immigration and Border Protection to prescribe by legislative instrument additional information that could be protected from disclosure. Labor shared these concerns, and we are pleased that the bill was amended in the House of Representatives.
The majority voted against a [motion](http://www.openaustralia.org.au/senate/?id=2017-10-16.4.2) introduced by Greens Senator [Nick McKim](https://theyvoteforyou.org.au/people/senate/tasmania/nick_mckim), which means it failed.
### What did the motion do?
The motion would have added to the usual second reading motion, which is a motion to agree with the main idea of the bill (in parliamentary jargon, it's a motion to *read the bill for a second time*):
> *At the end of the motion, add:*
> *"but the Senate notes the chilling effect that section 42 of the Australian Border Force Act 2015 has had on the immigration debate in Australia and condemns the Government and the Opposition for introducing and supporting the existing section."*
Senator McKim explained:
> *Section 42 of [the Australian Border Force Act] provides that it's an offence for someone who is or has been an entrusted person to make a record of or disclose protected information. The maximum penalty for the offence is imprisonment for two years.*
> *This provision—which still exists as we debate here today, with a minor amendment delivered by the government with regard to medical professionals—was designed by the government and supported by the Labor Party, for no other reason than to suppress the true horrors of what is happening on Manus Island and Nauru and inside Australia's onshore immigration detention regime. It was designed to have, and had, a chilling effect on freedom of speech in this country. It was designed to prevent people from speaking out about what they witnessed, including many people who had either a professional or a moral obligation to do so. The current section 42 is a draconian measure, designed, as I said, to keep secret the horrors of what is happening on Manus Island and Nauru and inside Australia's onshore detention regime.*
Read more about the bill in the [bills digest](https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1718a/18bd034).
The amended bill now before the Senate gives the minister, not the secretary, the power to prescribe additional protected information by legislative instrument. The instrument is subject to disallowance, as it was in the original form of the bill. The amended bill is a great improvement on the original because the power to prescribe protected information should not rest with an unelected public servant; it is properly exercised by the minister, who can be held accountable by parliament. This was not the only concern for Labor in the original form of the bill.
~~During the Senate inquiry into the bill, the chair, Senator Macdonald, said—and I don't often quote Senator Macdonald:~~
I'm uncomfortable with the fact that public servants, albeit the highest public servant in the area, is making these legally binding rulings. I accept that if the minister did it he would do it on the advice of the secretary.
The power to add to protected information by legislative instrument exists to deal with unforeseen changes in circumstances. In response to the Scrutiny of Bills Committee report, the minister cited these examples of the information that might come under new powers: the internal tools for visa decisions that, if disclosed, could increase a person's prospect of being granted a visa for which they might not otherwise be eligible; or the internal procedures for assessing applications for Australia's trusted trader status under the Customs Act that, if disclosed, could lead to an entity receiving this status that otherwise might not have been given. The minister should always be willing to be held accountable and to justify any decisions to protect information from disclosure. The bill in its present form now makes that clear.
I have had to say too many times in this chamber: there must be greater transparency in the administration of Australia's detention centres and Australian-funded offshore processing centres. The government's mismanagement of these offshore processing centres, particularly in regard to issues of welfare and garrison support have been subject to two scathing Australian National Audit Office reports. In September 2016, Labor initiated a Senate inquiry into allegations of serious abuse and neglect and instances of self-harm as outlined in the Nauru files, because the government had failed to act. Labor deplores the government's complete failure to act in the 3½ months since the inquiry's report and its recommendations.
Manus Island and Nauru were set up as regional transit processing facilities but have become places of indefinite detention because the government has not found third-country resettlement options. It has in many ways, I think, placed great emphasis on a single agreement with a former US administration about which the present administration has been far from enthusiastic. Refugees should be removed from the offshore centres and resettled to third countries as soon as possible. Malcolm Turnbull and Peter Dutton need to get on with the job of making that happen, and Labor would support them in genuine attempts to do that, as we support this bill.
While I'm on my feet, may I also draw attention to the commencement today of the full bench of the Fair Work Commission for its hearing into the pay dispute between the Department of Immigration and Border Protection and their staff. They're critical to the implementation of many of these measures before the chamber at the moment. The dispute has now been underway for four years, and during that time thousands of Immigration and Border Protection staff have had to fight tooth and nail, both in the Abbott and the Turnbull governments, over pay and conditions, while suffering real wage cuts. These are the people we look to to protect Australia's borders at sea, in airports and at ports. These are the people we look to maintain our visa system, to process citizenship applications and to protect Australians from the importation of dangerous and prohibited goods. They have a critical role to play. They've got a focal point on providing the security on which this country so depends. Yet they are subject to constant antiworker agendas by this government. We have had four years of that assault.
The government has sought to provide minimum pay rises for its own employees. It offered 3.4 per cent, which was rejected by 81 per cent of the department's workforce. In the various ballots that have been held the government clearly has not been able to maintain the support of its workforce. This is in the context where the most senior executives, who are on pay rates of well over $600,000 a year, are receiving pay rises well in excess of that that's being offered to the rest of the department. So four per cent is being offered to the most senior executives, but only 3.4 per cent to the other ranks. There seems to be a fundamental injustice in that disparity. Little wonder that this dispute has gone on for so long. It is important that the full bench of the Fair Work Commission are able to hear this matter, and I trust that they're able to do so in a speedy manner.
You would have thought that the government ought to be championing the rights of its employees instead of, in fact, doing exactly the opposite—maintaining this confrontational cost-cutting antiworker ideology. We rely heavily upon the public servants in the Department of Immigration and Border Protection to protect Australians, to provide us with safety and security. You would have thought that the least we could do was provide a proper basis for ensuring that they get at least the same remuneration and are treated on the same basis as the senior executives within the government department. If it's good enough to offer four per cent to the senior executive service and the secretary, surely it's good enough to offer the rest of the department the same rate.
~~Long debate text truncated.~~