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Migration Amendment (Strengthening Biometrics Integrity) Bill 2015



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ISSN 1328-8091

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BILLS DIGEST NO. 111, 2014-15 4 JUNE 2015

Migration Amendment (Strengthening Biometrics Integrity) Bill 2015 Mary Anne Neilsen Law and Bills Digest Section

Contents

Purpose of the Bill ............................................................... 3

Background ......................................................................... 3

Biometrics and the Migration Act ........................................... 3

Basis of policy commitment .................................................... 4

Biometrics and the Privacy Act 1988 ....................................... 4

Privacy impact assessment ...................................................... 5

Committee consideration .................................................... 5

Senate Legal and Constitutional Affairs Legislation Committee ............................................................................... 5

Senate Standing Committee for the Scrutiny of Bills .............. 5

Policy position of non-government parties/independents ..... 6

Position of major interest groups ......................................... 7

Financial implications .......................................................... 8

Statement of Compatibility with Human Rights .................... 8

Parliamentary Joint Committee on Human Rights .................. 9

Key issues and provisions..................................................... 9

Personal identifiers—new broad collection power ............... 9

Issues ................................................................................... 10

Identification tests............................................................... 11

Issues ................................................................................... 11

Personal identifiers collection—children and incapable persons ................................................................................ 12

Issues ................................................................................... 13

Other provisions ................................................................ 14

Date introduced: 5 March 2015

House: House of Representatives

Portfolio: Immigration and Border Protection

Commencement: The substantive provisions commence on proclamation or the day after six months after Royal Assent, whichever is the sooner.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website.

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Consequential amendments and removal of redundant provisions ............................................................................ 14

Concluding comments ....................................................... 15

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Purpose of the Bill The purpose of the Migration Amendment (Strengthening Biometrics Integrity) Bill 2015 (the Bill) is to consolidate and strengthen the legislative framework for the collection of personal identifiers under the Migration Act 1958.1 Specifically the Bill amends the Migration Act to:

• provide a single broad discretionary power to collect one or more personal identifiers from non-citizens and the same broad collection power with regard to citizens at the border

• enable flexibility on the types of personal identifiers that may be required, the circumstances in which they may be collected, and the places where they may be collected

• enable personal identifiers to be provided by an identification test or by another way specified by the minister or an officer of the Department of Immigration and Border Protection (Department)

• enable personal identifiers to be collected from minors and incapable persons under the new broad collection power without the need to obtain consent, or require the presence of a parent, guardian or independent person during the collection and

• remove redundant provisions resulting from the above amendments.

Background Biometrics and the Migration Act A biometric—termed ‘personal identifiers’ in the Migration Act2—is a unique identifier that is based on individual physical characteristics (such as facial image, fingerprints and iris) which can be digitised into a biometric template for automated storage and checking.3

Biometrics are more accurate than document based checks of biographic detail, such as name, date of birth and nationality because they are relatively stable over time and are significantly more difficult to forge. Biometric information does not of itself identify an individual. The usefulness of a biometric record is when it can be identified as belonging to an individual by some additional information or when it can be compared against a similar record or records.4

A biometric regime for migration purposes was first established by the enactment of the Migration Legislation Amendment (Identification and Authentication) Act 2004 (the 2004 Act).5 The operative provisions of that Act amended the Migration Act and came into force in August 2004. The 2004 Act was significant in providing for the collection of biometric data by immigration officials on a large scale for the first time. In particular, it strengthened the powers of government officials under the Migration Act to collect ‘personal identifiers’ (such as signatures, photographs, height and weight measurements, fingerprints, iris scans, audio or video recordings) from non-citizens in certain situations. These situations included routine circumstances—such as when a person is applying for an Australian visa or going through immigration clearance—and circumstances when the person is suspected of being an unlawful non-citizen. The amended Migration Act in Part 4A also contained various restrictions on accessing and disclosing such personal identifiers except where expressly permitted. Contravention of these restrictions constituted criminal offences carrying significant penalties, including up to two years imprisonment.

The most significant expansion of the legislative scheme for the collection of biometric data occurred with the recent amendments to the Migration Act made by the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Foreign Fighters Act).6 Among other things the Foreign Fighters Act authorised the collection

1. Migration Act 1958, accessed 27 May 2015. 2. Ibid., section 5A. 3. Department of Immigration and Border Protection, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Migration Amendment (Strengthening Biometrics Integrity) Bill 2015, April 2015, p. 3, accessed 27 May 2015.

4. L Bunyan, Migration Legislation Amendment (Identification and Authentication) Bill 2003, Bills digest, 14, 2003-04, Parliamentary Library, Canberra, 2003, p. 1, accessed 1 June 2015. 5. Migration Legislation Amendment (Identification and Authentication) Act 2004, accessed 1 June 2015. 6. Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014, accessed 3 June 2015.

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of biometric information at the border by an automated border clearance system (called an ‘authorised system’), such as SmartGate and eGates.7

Provisions in the Foreign Fighters Act also extended to Australian citizens the data collection practices that previously had been confined to non-citizens. The effect of the amendments being that the Migration Act now allows the collection and retention of personal identifiers of both citizens and non-citizens who enter or depart Australia or who travel on an overseas vessel from one port to another within Australia. The Foreign Fighters Act also set out how that biometric information could be accessed and disclosed in order to assist in identifying and authenticating the identity of a person who may be a national security risk.8

Basis of policy commitment The amendments in the Bill were not foreshadowed at the time of the enactment of the Foreign Fighters Act in 2014 and nor was the Bill forecast on the list of Legislation proposed for introduction in the 2015 Autumn Sittings.9

In a media release on 5 March 2015, announcing the introduction of the Bill into Parliament, the Minister for Immigration and Border Protection stated that the biometric measures are part of the Government’s response to combat terrorism and keep Australia safe outlined by the Prime Minister on 23 February 2015.10 The rationale for the amendments in the Bill being that:

Biometric checks at Australia’s air and seaports will enable rapid identity checks with domestic and international security, law enforcement and immigration agencies through portable, hand-held devices.

They will help to tackle identity fraud and disclose security and criminal histories contributing significantly to protecting against the spread of terrorism and human trafficking including children.

The checks will help prevent the entry of those who may threaten the Australian community and the departure of others such as convicted terrorist Khaled Sharrouf who left Australia in 2013 using his brother’s passport. 11

Biometrics and the Privacy Act 1988 In addition to the Migration Act, the Department’s collection, storage, sharing and use of biometric data is regulated by the Privacy Act 1988 (the Privacy Act) and the Australian Privacy Principles contained within that Act.12

Importantly, since reforms to the Privacy Act which came into effect on 12 March 2014, biometric information is considered 'sensitive information' where it is used for the purpose of automated biometric verification or biometric identification.13 For example this might include a fingerprint collected using a mobile hand-held scanner for the purpose of checking the individual’s identity against an existing list of persons of interest.14

Under the Privacy Act sensitive information (including biometric information) is afforded a higher level of protection than other types of personal information. For example, Australian Privacy Principle 3 requires that

7. Automated border clearance systems (SmartGate and eGates) are authorised systems to perform the immigration clearance function for arriving passengers, and border processing for departing passengers. The authorised system confirms the identity of a traveller by biometrically comparing the photograph contained in the passport to a live image of the traveller’s face and conducts visa and alert checks. Prior to the Foreign Fighters Act, the Migration Act only allowed an authorised officer (not an authorised system) to obtain personal identifiers from non-citizens by way of an identification test under sections 160, 170 and 175 of the Migration Act.

8. For further background see: C Barker, M Klapdor, M Coombs and M Biddington, Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, Bills digest, 34, 2014-15, Parliamentary Library, Canberra, 2014, accessed 1 June 2015. 9. Department of Prime Minister and Cabinet (DPMC), Legislation proposed for introduction in the 2015 Autumn Sittings, DPMC, Canberra, 2014, accessed 27 May 2015. 10. T Abbott (Prime Minister), A message from the Prime Minister - our plan to keep Australia safe, media release, 4 October 2014, accessed

4 June 2015. 11. P Dutton (Minister for Immigration and Border Protection), Greater protection at Australia's borders, media release, 5 March 2015, accessed 27 May 2015. 12. Privacy Act 1988, accessed 27 May 2015. 13. Section 6, Privacy Act. 14. Australian Privacy Commissioner, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Migration

Amendment (Strengthening Biometrics Integrity) Bill 2015, April 2015, p. 3, accessed 27 May 2015.

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sensitive information must only be collected with the consent of the individual unless one of the listed exceptions applies. Those exceptions include where the collection is authorised or required by law.15

As the Australian Privacy Commissioner explains:

… this means that if the Bill is passed, under the Privacy Act an individual's consent will no longer be required for the collection of any additional types of biometric information by the Minister or an immigration officer, as the collection will be authorised by law. The Commissioner argues that it is therefore especially important to ensure that the privacy impacts of the expanded power to collect biometric information are considered, including whether any additional safeguards are necessary.

16

Privacy impact assessment Before it was passed, the Foreign Fighters Act was the subject of an Inquiry by the Parliamentary Joint Committee on Intelligence and Security (PJCIS).17 Relevantly, the PJCIS recommended that the Government consult with the Privacy Commissioner and conduct a Privacy Impact Assessment (PIA) prior to proposing any future legislative amendments which would authorise the collection of additional biometric data such as fingerprints and iris scans.18

In making this recommendation, the PJCIS considered that a PIA could help better inform the Parliament's, as well as the public's, consideration of proposals involving the handling of biometric information.19

The Government’s response to the PJCIS report agreed that a PIA would be conducted prior to proposing any future legislative amendments which would authorise the collection of additional biometric data.20 In response to questions taken on notice, the Department has advised the Senate inquiry that the PIA on the Bill is complete and would be sent to the Privacy Commissioner’s Office before the next sitting of Parliament.21

The Privacy Commissioner in his submission welcomed the completion of the PIA but strongly recommended it be published by the Department.22

Committee consideration Senate Legal and Constitutional Affairs Legislation Committee The Bill has been referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report by 5 June 2015 (the Senate inquiry). Details of the inquiry are available here.23

Senate Standing Committee for the Scrutiny of Bills The Scrutiny of Bills Committee has raised concerns about the Bill, in particular about the broadd discretionary power of the Minister and the Department to collect personal identifiers in proposed section 257A (described below). The Committee’s Alert Digest No. 3 of 2015 states:

Of concern, from a scrutiny perspective, is the enormous breadth of this discretionary power. […] it is clear by the terms of the provision that personal identifiers can be collected for any circumstance ‘where a link to the purposes of the Migration Act or the Migration Regulations can be demonstrated’ […] Given the voluminous content of the Migration Act and regulations, this approach (of not requiring collection to be linked to limited, specified legitimate

15. Ibid.

16. Ibid.

17. Parliamentary Joint Committee on Intelligence and Security, Advisory report on the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, Canberra, October 2014, accessed 27 May 2015. 18. Ibid., recommendation 36, pp. xix and 185. 19. Ibid., p. 185. 20. G Brandis (Attorney-General), Government response to Committee report on the Counter-Terrorism Legislation Amendment (Foreign Fighters)

Bill 2014, media release, 22 October 2014, accessed 27 May 2015. 21. Senate Standing Committee on Legal and Constitutional Affairs, ‘Answers to Questions on Notice taken at a public hearing of a Parliamentary Inquiry: Strengthening Biometrics Bill’, Immigration and Border Protection Portfolio, Questions 2015/001-012, 16 April 2015, received 30

April 2015.

22. Australian Privacy Commissioner, op. cit., p. 7. 23. Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Migration Amendment (Strengthening Biometrics Integrity) Bill 2015, The Senate, Canberra, 2015, accessed 27 May 2015.

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purposes) represents a fundamental change in approach to the collection of this particularly sensitive category of personal information. 24

The Scrutiny of Bills Committee also raises concerns about the provisions that remove certain limits that currently apply to the collection of personal identifiers from children and disabled persons who are unable to give consent. It is the Committee’s view that the general concerns identified with the breadth of the discretionary power to collect personal identifiers in new section 257A are exacerbated in this context.25

The Committee suggests that if the proposed broad discretionary power is enacted, there is scope to include further legislative guidance as to the exercise of that power in the particular circumstances of minors and incapable persons:

The committee therefore seeks the Minister’s advice as to whether consideration has been given to including more detail in the Bill about what matters must be addressed and considered in exercising this power in the context of minors and incapable persons. In this regard, the committee notes that leaving such requirements to policy does not enable Parliament to assess whether the limitations on rights have been adequately justified.

26

The Minister’s response justifies the Bill’s approach in relation to minors and incapable persons pointing to a number of factors including:

• an increasing number of cases known, including some now reported in the media, where minors are implicated in violent extremism

• the possibility of parents or guardians refusing consent

• the problems of children trafficking and

• the risks of radicalised minors.

The Minister’s response concludes:

The Bill will enable the Department to collect personal identifiers to respond to risks as they arise in its operational environment with less intrusion than is currently possible using non-biometric based methods. 27

The Scrutiny of Bills Committee however remains of the view that it would be preferable to include more detail in the Bill to guide the exercise of this broad power in the context of minors and incapable persons.

In particular, the committee is interested in the possibility of including a requirement for reasonable steps to be taken to ensure that a parent/guardian or independent person can be present with a minor or incapable person and in reporting requirements. 28

Further comment from the Committee and the Minister can be found in the Scrutiny of Bills Committee relevant Alert Digest and Report.29

Policy position of non-government parties/independents Labor did not oppose the Bill in the House of Representatives. The Shadow Minister for Immigration and Border Protection, Richard Marles, in his second reading speech, stated that the Labor Party supports the measures in the Bill to enhance the ability of Customs personnel to use biometric information as part of Australia’s robust national security system. However Mr Marles also indicated that Labor has a number of questions and concerns about the Bill in its current form and for this reason has reserved its final position in terms of how it will deal with the Bill in the Senate until the outcome of the Senate committee inquiry is known.30

24. Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 3 of 2015, The Senate, 18 March 2015, pp. 31-32, accessed 27 May 2015. 25. Ibid., p. 36. 26. Ibid.

27. Senate Standing Committee for the Scrutiny of Bills, Fifth report of 2015, The Senate, 13 May 2015, pp. 398-399, accessed 1 June 2015. 28. Ibid., p. 399. 29. Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 3 of 2015, op. cit.; Senate Standing Committee for the Scrutiny of Bills, Fifth report of 2015, op. cit.

30. R Marles, ‘Second reading speech: Migration Amendment (Strengthening Biometrics Integrity) Bill 2015’, House of Representatives, Debates, 13 May 2015, p. 33, accessed 20 May 2015.

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At the time of writing, the position of the Australian Greens and independents is not known.

Position of major interest groups The submissions to the Senate inquiry indicate that stakeholders and interest groups have three common concerns with the Bill namely:

• the broad discretionary power given to the Minister and Departmental officers to collect personal identifiers

• the removal of existing limits on the collection from children under 15 and from incapable persons and

• the removal of the privacy protections that currently apply to the collection of personal identifiers in certain circumstances.

For example, the New South Wales Council for Civil Liberties (NSWCCL) states that it is not absolutely opposed to the collection of biometric data as proposed in the Bill and understands the justification for the collection and use of biometric data in this context. However, NSWCCL is concerned that the Bill in its current form is too open-ended and does not contain essential safeguards to limit the collection and retention of additional biometric data.31 The NSWCCL is of the view that the Bill should not proceed without significant amendment informed by a rigorous privacy impact statement.32

The Law Council of Australia raises questions about the biometric collection scheme in relation to both the provisions proposed in the Bill and provisions currently operating in the Migration Act. A particular concern relates to the heavy reliance on regulations for significant matters affecting peoples’ rights. The Law Council states:

As a matter of good legislative practice, significant matters should be specified in primary legislation which generally undergoes extensive consultation, not potentially subject to change by Ministerial decision and regulation. The categories of biometric data, and the purposes for which it should be collected, will raise significant questions of policy and have substantial privacy implications. Given that citizens and non-citizens will be required to provide one or more personal identifiers that are sensitive information under the Privacy Act, […]it is inappropriate for the types of biometric data to be prescribed by regulations.

An indeterminate biometric data set and range of purposes for which it may be collected fails to allow for a full Parliamentary consideration of the necessity and proportionality of the scheme. The type of biometric data, which can be stored and disclosed in certain circumstances, is a central and fundamental concern for Parliament in deciding whether the Bill should be enacted. This concern is heightened as the data is ‘sensitive information’ and collected outside the traditional environment where consent is freely given.

Ministerial expansion of the purposes for collection and the types of biometric data collected is also concerning as there are no security protections specified in the Bill for data collected or protection from expanded and unintended secondary uses or ‘function creep’. 33

[footnotes omitted]

The Refugee Council of Australia (RCOA) has general reservations about the potential harmful effect of biometric data collection on refugees and is therefore troubled by the proposed introduction of broader powers to collect biometric information. In particular RCOA notes that the Bill would allow a greater variety of biometric information to be collected and used in a wider range of circumstances, but does not appear to introduce any additional safeguards or procedures to regulate this new biometrics system.34 RCOA states:

Unless the broadened powers are matched with an appropriate regulatory framework, RCOA fears that the Bill will create a higher risk of privacy breaches, misuse of information and inaccurate decision-making. 35

31. New South Wales Council for Civil Liberties, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Migration Amendment (Strengthening Biometrics Integrity) Bill 2015, 9 April 2015, p. 3, accessed 27 May 2015. 32. Ibid., p. 6. 33. Law Council of Australia, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Migration

Amendment (Strengthening Biometrics Integrity) Bill 2015, 10 April 2015, p. 6, accessed 27 May 2015. 34. Refugee Council of Australia, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Migration Amendment (Strengthening Biometrics Integrity) Bill 2015, April 2015, p. 2, accessed 27 May 2015. 35. Ibid.

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RCOA also notes that the risk of privacy breaches is of particular concern in light of a number of recent incidents in which sensitive personal information has been unintentionally disclosed by the Department. It points to one particular incident where the personal details of almost 10,000 asylum seekers who at that time were in closed or community detention in Australia were accidently published online. More recently, the personal details of world leaders attending the G20 summit in Brisbane were inadvertently disclosed by an employee of the Department. RCOA is concerned that, ‘in the absence of a robust regulatory framework, the Bill will increase the risk of biometric information being similarly disclosed, with potentially serious consequences for those affected’.36

The Australian Privacy Commissioner, Timothy Pilgrim, states that the expansion of the power to collect biometric information means that the Bill has the potential to impact on the privacy interests of individuals, particularly those of non-citizens.37

The Privacy Commissioner argues that it is important to ensure that such a broad expansion of the power to collect biometric information from non-citizens is necessary and, further, that it is proportionate to the objective of enabling the Department to ensure the integrity of Australia's migration programme. To minimise the privacy impacts of the Bill, any expansion of the existing power to collect biometric information from non-citizens should be drafted narrowly and limited to only what is necessary. Accordingly the Privacy Commissioner suggests that consideration be given to amending the Bill to clearly state the purposes for which this power is able to be exercised in the Act, rather than only referring generally to the purposes of the Migration Act and the Migration Regulations.38

The Biometrics Institute’s focus is different. While noting that biometric data has become increasingly accurate the Institute suggests there is still a need for caution in using and relying on biometric data, particularly in relation to children. It argues that recent research suggests that every form of biometrics has challenges for young people that are different to those for adults:

… when you are dealing with young people, virtually every form of biometrics has some form of difficulty. If it is fingerprints, a child's hand, as it grows, can widen the gap between the ridges and the valleys. That in itself can mainly create problems with registration at a later date, as opposed to enrolment, which is when you first have your biometric recorded. The difference between the original enrolment and the checking later on may be quite considerable, in which case there could be some false assumptions made by border authorities about a child over, let us say, a six-year period. In custody cases or other sensitive issues, that could create real problems.

39

The Biometrics Institute also warns of the dangers of giving arbitrary powers to government officials where they ‘do not have to back it up or where, for example they have a false confidence in the efficacy, efficiency and accuracy of the biometric’.40

Further comment from interest groups is provided under the Key issues and provisions section below.

Financial implications The Explanatory Memorandum states that the financial impact of the Bill is low and that any costs will be met from within existing resources of the Department.41

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.42

36. Ibid.

37. Australian Privacy Commissioner, op. cit., p. 1. 38. Ibid., pp. 4-5. 39. T Aulich (Chair, Privacy Experts Group, Biometrics Institute), Evidence to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Migration Amendment (Strengthening Biometrics Integrity) Bill 2015, Proof committee Hansard, 16 April 2015, p. 10, accessed

27 May 2015. 40. Ibid.

41. Explanatory Memorandum, Migration Amendment (Strengthening Biometrics Integrity) Bill 2015, p. 2, accessed 12 March 2015. 42. The Statement of Compatibility with Human Rights can be found at page 33-48 of the Explanatory Memorandum to the Bill.

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Parliamentary Joint Committee on Human Rights The Parliamentary Joint Committee on Human Rights (Human Rights Committee) considers that the measures in the Bill that create a broad discretionary power to collect personal identifiers engage and limit the right to privacy, the right to equality and non-discrimination, the right to equality before the law and the rights of the child.43

With respect to privacy, the Human Rights Committee acknowledges the information provided in the Statement of Compatibility that the collection of personal identifiers would enable the department to conduct identity, security, law enforcement and immigration checks that are of higher integrity than checks possible using biographic details, such as name and date of birth, alone.44 However, in the Committee’s view, while the proposed power appears to be rationally connected to the stated objective it may not be a proportionate means to achieve this stated objective. The Committee notes that in order for a limitation on human rights to be proportionate it must be only as rights restrictive as strictly necessary. The Committee further explains:

The Bill would enable the collection of personal identifiers wherever this is considered necessary for the purposes of the Migration Act or regulations under that Act. There is no requirement that the collection of the identifier be considered necessary in the circumstances or that an officer must be reasonably satisfied that the collection would assist in the identification of an individual. Accordingly, the Bill could permit the collection of personal identifiers where it is not strictly necessary or where identity could be verified in a less intrusive manner. Accordingly, the Committee considers that the statement of compatibility has not demonstrated that the measures in the Bill are the least rights restrictive way of achieving the legitimate objective and so the measures may not be a proportionate limitation on the right to privacy.

45

The Human Rights Committee also raises concerns about other measures in the Bill, some of which are considered under the Key issues and provisions section below.

Key issues and provisions Personal identifiers—new broad collection power Personal identifiers are defined in subsection 5A(1) of the Migration Act as:

• fingerprints or handprints of a person (including those taken using paper and ink or digital live scanning technologies)

• a measurement of a person’s height and weight

• a photograph or other image of a person’s face and shoulders

• an audio or a video recording of a person

• an iris scan

• a person’s signature and

• any other identifier prescribed by the regulations, other than an identifier the obtaining of which would involve the carrying out of an intimate forensic procedure.

The collection of biometric personal identifiers is currently authorised under eight provisions of the Migration Act depending on various circumstances namely:

• when a non-citizen applies for a visa (sections 40 and 46)

• at Australia’s borders when a person (either a citizen or a non-citizen) is arriving (section 166), travelling from port to port on an overseas vessel (section 170) or departing the country (section 175)

• where an officer reasonably suspects a person is a non-citizen and requires them to present certain evidence of being a lawful non-citizen (section 188)

43. Parliamentary Joint Committee on Human Rights, Twenty-second report of the 44th Parliament, The Senate, Canberra, May 2015, pp. 58 and 63, accessed 21 May 2015. 44. Ibid., p. 59. 45. Ibid.

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• where a non-citizen is detained as their visa is liable to cancellation under certain provisions in the Migration Act (section 192)

• where a non-citizen is detained in immigration detention (section 261AA).

The Bill consolidates the first seven of these eight circumstances into one new broad collection power. The regime for the eighth circumstance (immigration detainees) is not affected by the Bill.46

Item 34 in Schedule 1 is the central amendment proposed in the Bill. It inserts new section 257A providing a single new power to collect personal identifiers. Proposed subsection 257A(1) provides that the Minister or an officer of the Department may, in writing or orally, require a person to provide one or more personal identifiers listed in subsection 5A(1) for any purposes of the Migration Act or the Migration Regulations 1994. Proposed subsection 257A(2) clarifies that those purposes include (but are not limited to) the purposes listed in subsection 5A(3). Those purposes range from the very specific—to detect forum shopping by applicants for visas, to the more general. For example:

• to assist in the identification of any person required under the Migration Act to provide a personal identifier

• to improve the procedures for determining visa applications

• to enhance the Department’s ability to identify non-citizens who have a criminal history and

• to assist in identifying persons (both citizens and non-citizens) who may be a security concern to Australia or a foreign country.47

Proposed subsection 257A(3) places a limit on this broad power of collection with respect to citizens so that a person known or reasonably believed to be an Australian citizen may only be required to provide personal identifiers under certain circumstances namely at the time they are entering Australia (section 166), when travelling on an overseas vessel from port to port (section 170) or when they are departing Australia (section 175). This reflects the existing provisions that permit collection of personal identifiers from citizens.48

New subsection 257A(4) provides the ability to prescribe circumstances in which personal identifiers must be required from a person.49 The Explanatory Memorandum notes that this subsection replaces similar powers to prescribe circumstances.50 However this is a broader provision. As Australian Lawyers for Human Rights (ALHR) notes, while the new subsection replaces similar powers to prescribe circumstances in existing subsection 188(4) and subsection 192(2A), those provisions are limited to situations where a lawful non-citizen is required to give evidence and the detention of visa-holders where their visa is likely to be cancelled.51 The Explanatory Memorandum does however provide further guidance, noting that the limitation in subsection 257A(3) on when personal identifiers can be required from citizens will continue to apply. That is, the circumstances prescribed under new subsection 257A(4) for citizens cannot be circumstances where personal identifiers cannot be required from citizens under subsection 257A(3).52

Proposed subsection 257A(7) confirms that personal identifiers can be required from a person more than once under the new collection power. The Department’s submission and the Explanatory Memorandum provide examples of circumstances where this may occur.53

Issues The Explanatory Memorandum justifies this new broad power stating that due to the Department’s incremental approach to its biometrics programme, significant numbers of non-citizens have not been subject to the higher

46. Note: the identification of immigration detainees and the collection of personal identifiers is subject to a separate regime under Division 13AA of Part 2 of the Migration Act. The Bill does not affect the operation of that Division. 47. Note: a further amendment in the Bill (item 3, Schedule 1) provides an additional purpose—namely to assist in determining whether a person is an unlawful or lawful non-citizen. 48. Explanatory Memorandum, op. cit., p. 20. 49. Prescribed means that the detail will be in regulations made under the Migration Act. 50. In current subsection 188(4) and subsection 192(2A); each subsection will be repealed under item 28 and item 31. Explanatory

Memorandum, op. cit., p. 20. 51. Australian Lawyers for Human Rights, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Migration Amendment (Strengthening Biometrics Integrity) Bill 2015, 9 April 2015, p. 2, accessed 27 May 2015. 52. Explanatory Memorandum, op. cit., p. 20. 53. Ibid., p. 22; Department of Immigration and Border Protection, op. cit., pp. 8-9.

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integrity identity, security, criminal and immigration history checks that are possible using personal identifiers, either because of the timing of their entry into Australia, or because of their method of arrival. These amendments will enable this vulnerability to be addressed on a case-by-case basis:

Under the new broad power, the department will not commence collecting personal identifiers from all non-citizens who have not previously provided them. The Bill is not introducing a universal collection policy. Rather, the department will selectively collect personal identifiers from particular individuals who have not previously provided their personal identifiers, but who have been identified as of concern after their arrival in Australia, or due to their behaviour while living in the Australian community.

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As noted above, the broad collection power in proposed section 257A is of concern to two Parliamentary Committees and a number of submitters to the Senate inquiry. See above for a selection of comment.

Identification tests The Migration Act currently provides that personal identifiers must be provided to an authorised officer by way of an ‘identification test’.55 This identification test is subject to certain general rules (sections 258B to 258G) including that the test:

• must be carried out in circumstances affording reasonable privacy to the person

• must not be carried out in the presence or view of a person whose presence is not necessary for the purposes of the identification test or required or permitted by another provision of this Act

• must not involve the removal of more clothing than is necessary for carrying out the test

• must not involve more visual inspection than is necessary for carrying out the test.56

The Bill largely preserves these rules. Proposed paragraph 257A(5)(a) provides that if a person is required to provide one or more personal identifiers under subsection 257A(1), those personal identifiers must be provided by way of one or more identification tests carried out by an authorised officer or an authorised system.57 Such tests would need to comply with the rules in sections 258B to 258G mentioned above.

New paragraph 257A(5)(b) is significant, providing a new power for the Minister or an officer to require that personal identifiers be provided in ‘another way’— that is in a way that is different from the general rules as set out in the Act or different from the usual authorised systems. According to the Government’s Statement of Compatibility with Human Rights this will provide ‘the Minister or an officer with flexibility about how a person is to provide personal identifiers, allowing the system of safeguards and legislative instruments which currently govern the collection to be bypassed where an officer or the Minister authorises a different method of collection’.58

Issues The Explanatory Memorandum justifies this new power stating that removing the requirements of the ‘identification test’ safeguards will allow for quick live scans of a person’s fingers using a mobile, hand-held device. It is intended that this new power will be applied to allow such finger scans, but this restriction will apply in policy only. It has been decided that as no facial image will be collected, and no clothing will be required to be removed, these new finger scans remove the need to maintain the safeguards which have previously applied to the collection of personal identifiers, such as not collecting biometrics in the presence or view of a person whose presence is not necessary:

As only one to four fingers will be scanned using the mobile, hand-held device, the check will take only seconds to complete. This compares to the current identification test procedures, which are time-consuming and resource intensive. The procedures routinely take between 30-60 minutes per person to complete.

54. Explanatory Memorandum, op. cit., p. 35. 55. Defined as ‘a test carried out in order to obtain a personal identifier’ (section 5). 56. Section 258E of the Migration Act. 57. An authorised system, when used in a provision of this Act, means an automated system authorised in writing by the Minister or the Secretary

for the purposes of that provision—subsection 5(1) of the Migration Act. 58. Statement of Compatibility with Human Rights, Explanatory Memorandum, op. cit., p. 37.

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Data will not be retained after the finger scan check has been completed.

[…]

Such finger scans will be used to conduct checks against existing data holdings to verify the identity of individuals, and to detect persons of security, law enforcement or immigration concern. The scans will be conducted at Australia’s border, as travellers (both citizens and non-citizens) are entering and departing Australia. The scans will also be conducted during key transactions with non-citizens who interact with the department after their initial visa grant to travel to Australia.

59

The Human Rights Committee and a number of submitters expressed concern with this new power of collection in paragraph 257A(5)(b), noting that if personal information is collected in this way, particular safeguards provided for under the Migration Act, such as that the identification test ’must be carried out in circumstances affording reasonable privacy to the person’ would not apply.60

The Human Rights Committee states that while the Statement of Compatibility argues that the power would only be used in limited circumstances, the Bill itself is not restricted in the way suggested. The Committee considers that the Statement of Compatibility has not demonstrated that this broad power imposes a necessary or proportionate limitation on the right to privacy. The Committee considers that:

… this power has the potential to be used to bypass a number of safeguards in the Migration Act and the Migration Regulations which seek to ensure that the collection of personal identifiers is done in a manner that is least intrusive on an individual's privacy. No rationale is provided for removing such safeguards beyond an indication of the government's current intended use of this provision.

61

Personal identifiers collection—children and incapable persons Currently Division 13AB in Part 2 of the Migration Act sets limits on the collection of personal identifiers from minors and incapable persons—a minor being a person less than 15 years old and an incapable person being a person who is ‘incapable of understanding the general nature and effect of, and purposes of, a requirement to provide a personal identifier’.62

Existing subsection 261AL(1) provides that a minor, (both citizen and non-citizen) can only be required to provide a personal identifier consisting of:

• a measurement of the person’s height and weight or

• the person’s photograph or other image of the person’s face and shoulders.

Subsection 261AM(1) provides an equivalent limitation on the types of personal identifiers that can be collected from incapable persons.

Items 48 and 51 amend these provisions respectively with the effect of removing the limitation on the types of personal identifiers able to be collected from minors or incapable persons under new section 257A. Note however that with respect to identification of immigration detainees (dealt with in Division 13AA of Part 2 of the Migration Act) the limitation on the types of personal identifiers that can be collected from minors or incapable persons remains. The Explanatory Memorandum states that these amendments reflect the intention behind new section 257A that the power to collect personal identifiers is to be applied equally to all persons. Therefore there is no exemption for minors or incapable persons in relation to the types of personal identifiers that can be collected.63

Existing subsection 261AL(2) deals with consent when taking personal identifiers from non-citizen minors under sections 40, 46 and 188.64 It provides that in these circumstances a non-citizen who is a minor must not be

59. Ibid., p. 37. 60. Parliamentary Joint Committee on Human Rights, op. cit., p. 59. 61. Ibid.

62. Section 5 of the Migration Act. 63. Explanatory Memorandum, op. cit., p. 27 and p. 29. 64. These circumstances are: when a non-citizen applies for a visa (sections 40 and 46); where an officer reasonably suspects a person is a non-citizen and requires them to present certain evidence of being a lawful non-citizen (section 188).

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required to provide a personal identifier by way of an identification test unless a parent, guardian of the minor or independent person consents to the minor providing the personal identifier.65 Item 49 repeals this subsection with the effect of removing the requirement for consent of the parent, guardian or independent person. Note that there is already no requirement for consent when taking identifiers from minors (both citizens and non-citizens) under section 166, 170 or 175.66

Existing subsection 261AL(5) provides another protection for minors (both citizens and non-citizens). It provides that if a minor provides a personal identifier, by way of an identification test, the test must be carried out in the presence of a parent or guardian of the minor or an independent person.

Item 50 amends subsection 261AL(5), the effect being that in relation to the new collection power of personal identifiers under proposed section 257A, the identification test of a minor would not be a required to be carried out in the presence of a parent, guardian or independent person—unless the minor is in immigration detention.

Items 52 and 53 make equivalent amendments in relation to incapable persons, with the effect of removing the existing requirements to obtain consent or require the presence of a parent, guardian or independent person during the collection of personal identifiers.67

Issues The Explanatory Memorandum states the rationale for the collection of biometric data from children amendments as being:

• a child protection measure aimed at preventing child trafficking and/or smuggling, noting cases where minors have been brought into Australia, both with and without parental consent, as part of a family unit of which they are not a member68

• a response to recent terrorist-related incidents that have focused attention on the involvement of minors in terrorist activity in the Middle East and Africa69 and

• providing consistency with the age limit in other Five Country Conference Partners.70

The Department explains how the issue of consent would work in practice, noting that consent and the presence of a parent/guardian would still be the normal practice:

Where a minor or incapable person is required under the new broad power to provide personal identifiers, there will be no legislative requirement for the consent of a parent, guardian or independent person. Under policy, officers of the department will seek the consent and the presence of a parent, guardian or independent person when requiring a minor or incapable person to provide personal identifiers. If consent is not given or if the parent, guardian or independent person frustrates collection by walking out of the room consequences would flow from that conduct. For example, the minor may be refused a visa application or their visa application may be invalid.

71

As has already been noted, two parliamentary committees plus a number of submitters have questioned the removal of the existing restrictions regarding the collection of personal identifiers from minors and incapable persons.

65. An independent person is only used if no parent or guardian of the minor is readily available, or the Minister is the minor’s guardian. 66. Those circumstances are: at Australia’s borders when arriving (section 166), travelling from port to port on an overseas vessel (section 170) or departing the country (section175). 67. Again these amendments do not apply in relation to incapable persons in detention. 68. Explanatory Memorandum, op. cit., pp. 44-45. 69. Ibid.

70. Ibid. The Five Country Conference (FCC) is a forum consisting of Australia, Canada, New Zealand, the United Kingdom and the United States of America. It is a group which advances specific immigration-related initiatives. For further information see the conference website, accessed 1 June 2015. The Department’s submission states that fingerprints can be collected from the age of six in the United Kingdom and European Union. New Zealand and the United States do not legislate an age limit for the collection of biometric information for immigration purposes; in both cases it is determined as a matter of policy: Department of Immigration and Border Protection, op. cit., p. 7. The Law Council questions this justification noting that there is a key difference in terms of rights protection between Australia and the other partners. Australia unlike the UK, Canada and New Zealand, does not have a human rights Act, nor does it have the same degree of constitutional protection for human rights as the United States: Law Council of Australia, op. cit., p. 19.

71. Department of Immigration and Border Protection, op. cit., p. 8.

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In ALHR’s view the proposed removal of these restrictions is not consistent with the rights of unaccompanied children to be able to provide informed consent in relation to their own personal information and is inconsistent with Australia’s obligations under the Convention on the Rights of the Child.72

The Law Council recommends that if the amendments go ahead, specific guidelines should be implemented and published in relation to obtaining biometric information from children, to ensure that information is obtained in a respectful way, including ensuring that younger children are not separated from their parent, guardian or independent person unnecessarily. The Law Council further recommends:

• the Explanatory Memorandum should be amended to clarify the number of children and the threat younger children may pose which justifies the amendments

• an independent guardian should be appointed to an unaccompanied minor if biometric information is required to be taken from the minor and

• consideration should be given to amending the Bill to include safeguards to protect minors as set out in the Immigration Act 2014 (UK) (insofar as they are consistent with Australia’s commitments under the Convention of the Rights of the Child).73

Other provisions Consequential amendments and removal of redundant provisions Consequential to the new general collection power in proposed section 257A, Schedule 1 of the Bill contains numerous amendments to existing provisions which deal with circumstances where personal identifiers are currently collected.74

These amendments are described in detail in the Explanatory Memorandum. The following example sets out how some of these amendments generally work.

Existing section 166 deals with persons (both citizens and non-citizens) entering Australia and the requirements of providing evidence of identity. Currently paragraph 166(1)(c) provides the power for a clearance officer to require a person entering Australia to provide one or more personal identifiers listed in subsection 166(5). The personal identifiers specified in subsection 165(5) are: a photograph, signature, any other personal identifier contained in the person’s passport or travel document, and any other personal identifier of a type prescribed for this purpose. Subsection 166(7) provides that such an identifier must be provided by way of one or more identification tests carried out by an authorised officer or authorised system. Subsection 166(8) provides that subsection 166(7) does not apply in prescribed circumstances. Items 13 to 15 amend paragraphs 166(1)(a) and (c) and item 16 repeals subsections 166(5), (7) and (8).

The effect of the repeal of subsection 166(5) is that there will be no restrictions on the types of personal identifiers (as defined) which can be required from persons entering Australia. Subsections 166(7) and (8) are also repealed being redundant, reflecting the broad new collection power in proposed section 257A, and that under new subsection 257A(5) personal identifiers must be provided by way of one or more identification tests carried out by an authorised officer or an authorising system; or by another way specified by the Minister or officer. The amendments to paragraphs 166(1)(a) and (c) insert a reference to section 257A75 and remove references to subsection 166(5).76 They are purely consequential.

72. Australian Lawyers for Human Rights, op. cit., pp. 4-5. The Convention on the Rights of the Child, opened for signature 20 November 1989, ATS [1991] No. 4 (entered into force for Australia 16 January 1991), accessed 1 June 2015. 73. Law Council of Australia, op. cit., pp. 19-20. The Law Council explains that the protections under the UK Act ‘include a requirement that the biometric information is to be provided in the presence of the child’s parent, guardian or a person who is temporarily taking responsibility of

the child’.

74. As described above those circumstances are: when a non-citizen applies for a visa (sections 40 and 46); at Australia’s borders when a person (either a citizen or a non-citizen is arriving (section 166), travelling from port to port on an overseas vessel (section 170) or departing the country (section175); where an officer reasonably suspects a person is a non-citizen and requires them to present certain evidence of being a lawful non-citizen (section 188) where a non-citizen is detained as their visa is liable to cancellation under certain provisions in the Migration Act (section 192).

75. Item 14. 76. Items 13 and 15.

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Items 9 to 12 and 17 to 32 make similar consequential amendments to other provisions which currently authorise the collection of personal identifiers.77

Concluding comments Biometric information is sensitive information and normally afforded a higher level of protection than other types of personal information. It is understandable therefore that the Bill, which seeks to broaden the discretionary powers of collection of biometric data under the Migration Act and remove some of the protections currently in place, has raised concerns amongst Parliamentary Committees and interest groups.

The Government argues the ten year old system of biometric collection is in need of modernising and justifies the more robust system of collection as a necessary response to national security threats including terrorism, human trafficking and identity fraud.

Interest groups are concerned that in seeking to extend this system of biometric data collection, the Bill has introduced an extremely broad discretionary power and at the same time removed some of the existing safeguards including privacy protections and the restrictions currently provided with regard to children and vulnerable persons.

Parliament therefore has a complex task of responding to the challenges presented by the Bill and determining whether the introduction of broad discretionary powers is a proportionate response or if more targeted amendments with appropriate safeguards could be used. As various submitters have suggested, the release of the Privacy Impact Assessment to the public would assist in this process.

77. The list of these provisions is set out on p. 9 of the Bills Digest.

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