‘Insufficient’ safeguards on ‘extraordinary’ powers for Albanese government: bipartisan committee

A bipartisan parliamentary committee led by a Labor senator has flagged concerns about an Albanese government bill giving the Transport Department ‘extraordinary’ powers.

This is the second time a bipartisan committee has expressed concern about this bill – a Senate committee earlier this year was concerned about the potential inclusion of “coercive powers” and the severity of penalties. Picture: iStock

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A bipartisan parliamentary committee led by Labor senator Raff Ciccone says an Albanese government bill giving the Transport Department “extraordinary” powers has “insufficient” safeguards.

The bill would empower the Transport Department secretary to put in place security measures in airports and maritime facilities in response to a “general threat of unlawful interference”.

These measures could apply to travelling passengers and may include confidentiality requirements and offences for noncompliance, the parliamentary joint committee on intelligence and security warned.

There are no proposed requirements for the department to notify the minister or an external oversight body that such a direction has been made.

It is the second time a bipartisan committee has expressed concern about the bill, with the Senate committee earlier this year concerned about the potential inclusion of “coercive powers” and the severity of penalties.

The current legislation lists threats of hijacking, targeting or bombing of aircraft, ships or terminals as examples of unlawful interference, but Labor’s bill would seek to expand this to include cyber security incidents.

The PJCIS report said the bill contained “fewer safeguards than loosely equivalent powers”.

“(Similar provisions) require clear statutory thresholds to be met, including that the recipient is unwilling or unable to respond to the incident voluntarily and that the directions is reasonably necessary, proportionate and technically feasible,” it read.

“The committee therefore recommends that the bill be amended so that appropriate legislative safeguards and accountability requirements regarding the use of security directions for a ‘general threat’ are addressed in the primary legislation. The committee considers it would be insufficient for clarifying details relating to such an extraordinary power to be found in delegated legislation.”

The committee accepted that such powers were necessary because of the “uncertain security environment” but urged the introduction of those safeguards.

The bipartisan Senate scrutiny of bills committee earlier this year raised concerns about the severity of penalties and the broad scope of measures that could fall under the ‘security direction’.

“No information has been provided as to why it is appropriate to seek to impose penalties inconsistent with the threshold set out in the ‘Guide to Framing Commonwealth Offences’,” its report read. “Although the application of strict liability to these offences has been justified … the committee does not consider that the penalties applicable to the offences are appropriate.”

The committee said it was “unclear what measures may be included” in a special direction.

“While the committee appreciates that there may be threats that are not yet present which are intended to be addressed by this measure, the committee is concerned if a special security direction may include the exercise of coercive powers, such as searching and seizing materials from the persons these measures are directed against,” its report read.

“ … Some guidance should be provided as to the exercise of the broad power to give a special security direction, such as what actions the secretary can require a person to do, whether this includes the exercise of coercive powers and whether it may trespass on an individual’s privacy.

“The committee is also concerned … there are no constraints on this power except for the broadly defined circumstances in which a special security direction may be given.”

A Home Affairs spokesman said the security direction power had been in place for 20 years.

“Special security directions have been used in aviation for four events in that time,” he said. “The power has not been used for maritime security. The power has always been used judiciously.”