The ACTU and Australian Unions are strong supporters of measures to ensure that Australia’s essential services are secure and resilient. The failure to strengthen our critical supply chains and to keep workers safe during the current Omicron crisis has exacerbated a national public health crisis.
The measures put forward in the Exposure Draft of the Security Legislation Amendment (Critical Infrastructure Protection) Bill 2022, (“the Bill”) however are an unnecessary intrusion into the civil liberties and workplace rights of a potentially vast number of Australia workers. Among other measures, the Bill will require managers of assets in “critical infrastructure sectors” to develop, implement and update “critical infrastructure Risk Management Plans”. Those plans will need to identify and take steps to minimise, mitigate against and eliminate risks to those assets. The detail of such plans are to be determined both by the relevant entities, and rules yet to be issued by the relevant Minister, usually on an industry or sectoral basis. The Bill also includes the ability for Rules to be made to allow employers to conduct background checks of staff or other personnel, via AusCheck as part of such a plan.
The ACTU has significant concerns with this Bill.
Firstly, it is a significant intrusion into the privacy and civil liberties of a very broad range of workers – up to 3 million workers are potentially covered by these changes on ACTU estimates – and the Minister has the power under the proposed Bill to expand this scope even further. Yet almost no evidence has been provided by the Government to justify such broad and intrusive measures.
Secondly, it could also potentially interfere with the workplace rights of workers and their union representatives. Unions have already had employers stating that they will effectively frustrate the right of entry to union officials on the basis of complying with these proposed laws. The laws could also impinge upon privacy, anti-discrimination and work health and safety laws.
Thirdly, the Bill creates substantial levels of delegated decision making to both employers and the relevant Minister on highly significant issues with limited or no worker (or union) right to consultation, negotiation or review and limited parliamentary oversight.
This submission provides more detail on each of these concerns.
To address these concerns the ACTU recommends that the Bill be amended to:
- Improve transparency and certainty of the law by removing the substantial levels of delegated decision-making within the Bill and restoring effective parliamentary oversight.
- Ensure that decisions made under the Bill are reviewable by the Administrative Appeals Tribunal.
- Define and tightly limit the class of “critical employees” or other “critical personnel” subject to possible background checks to ensure that the right to privacy and other civil liberties are not unnecessarily impinged upon. Also put in place safeguards to prevent unwarranted, excessive or unnecessary background checks.
- Legislate for mandatory consultation with employees and their union representatives if an entity is considering implementing background checks.
- Put in place an appeal mechanism to an independent mediator for workers and their representatives to challenge an entity’s Risk Management Plan on the grounds that it breaches any safeguard in recommendation 3.
- Amend the Bill to ensure that rights under industrial, work health and safety, privacy or anti-discrimination laws are not in any way restricted.
- Ensure that citizen’s private data that may be accessed under the Bill is quarantined from employers.