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Legal and Constitutional Affairs Legislation Committee - 16/04/2015 - Migration Amendment (Strengthening Biometrics Integrity) Bill 2015

DE VEAU, Ms Philippa, General Counsel, Department of Immigration and Border Protection

GEDDES, Mrs Linda, First Assistant Secretary, Department of Immigration and Border Protection

NOBLE, Ms Rachel, PSM, Deputy Secretary, Policy Group, Department of Immigration and Border Protection

WALSH, Dr Simon, Acting National Manager, Forensics, Australian Federal Police

[10:11]

CHAIR: Thanks very much for joining us. I welcome you all. I think you are all reasonably experienced Senate committee attendees, so I will not go through the whole rigmarole. You know, of course, about parliamentary privilege. You are apprised. On matters of opinion, you are familiar. You will not be asked about your opinions on issues. If you want to refer anything to a superior officer or a minister, you should indicate that to us. With that, thanks very much. We have the department's submission, which is numbered 11, so thanks for that. Do any of you wish to make an opening statement?

Ms Noble : No, we do not have an opening statement.

Dr Walsh : Likewise, we will not be making an opening statement, thanks.

CHAIR: Can I perhaps start by referring you to the Law Council's submission. I assume the department would have had a look through that. Probably on notice, I might ask you, if you would not mind, to briefly go through the recommendations of the Law Council and indicate—simply in a brief, dot point way—whether those recommendations were in fact considered in your drafting of the bill and if they were considered but not adopted, or if you think the Law Council is wrong in its understanding of those issues. Could you just do that. A lot of its recommendations seem to have some merit, but it requires a far better lawyer than I to work through that and compare it with the bill. Perhaps you could do that on notice. Perhaps now you would not mind giving us a broad response.

Ms Noble : Thank you. I might just make a few broad remarks around some of the testimony that I have just heard, just to correct what we thought was perhaps factually a little bit askew. Just starting with the issue that was discussed earlier about fingerprint collection of Australian citizens: the foreign fighters act, which was introduced at the end of last year, actually gave us the powers to collect fingerprints and indeed other biometrics of Australian citizens upon their arrival into Australia. The material difference between—

CHAIR: Sorry, on their arrival?

Ms Noble : Into Australia, so coming back home.

CHAIR: Coming home, yes.

Ms Noble : That is right. It is important to be very clear that, in terms of any material change from the powers that we have now with regard to Australian citizens and their fingerprints and other biometrics, this bill simply adds the ability to collect a fingerprint or other biometric upon departure as well. So we actually already do have those powers and specified circumstances in which that can happen, and this bill just adds the element of when an Australian citizen is departing.

Senator LINES: You do not have the powers under the foreign fighters bill to collect the fingerprints of a child who is subject to a custody battle.

Ms Noble : That is right. That would be the second material difference in this bill, compared with the foreign fighters bill—you are right—and that we could collect such biometrics from people under the age of 15 and incapable persons.

Senator LINES: Without their permission?

Ms Noble : Yes. It is specified under the current law that, with respect to minors and incapable persons, we do not require the consent of a parent or guardian or independent person but require their presence. That is what the current law says. This bill says that we do not require their presence.

Senator LINES: Of an independent person?

Ms Noble : Or the parent or guardian. As the minister set out in his second reading speech, the government's intention with that change is to deal with the very horrendous reality of people who traffic children, who of course would not provide consent to us to attempt to verify the identity of a child that they are intending to traffic.

Senator LINES: But why would you then require an independent person to be there to supervise the taking of fingerprints?

Ms Noble : Because it may not be their interests to allow that to happen.

Senator LINES: I have an issue with taking the fingerprints without permission but I understand that in some circumstances you may need to do that. But there is nothing to stop the bill from having the requirement that an independent person be present when those fingerprints are taken. You could have a list of JPs or other sorts of people who are available for other interviews who could also be present for this. Why wasn't that considered?

Ms de Veau : I think one of the complexities around it is the balance between facilitation and the ability to verify identity. If there is what appears to be a family unit attempting to leave the country, there are some time restrictions on our ability to get a positive verification and allow that family to travel freely without any issues, if anything has triggered some concerns around the identity of the child. Currently—

CHAIR: So you are worried about the child being kidnapped, effectively?

Ms de Veau : Potentially. That is one potential scenario.

CHAIR: So you do not want the alleged parent to be able to say, 'No, you cannot take their fingerprints.'

Ms de Veau : That is correct. Then, when it comes to whether you can get—

Senator LINES: Just before you move on from that: you take a fingerprint; but, if you do not have a fingerprint on record, what do you then? You cannot use lack of time as the reason you do not have an independent person there. And, if you do not have any biometric data on that child, the point at which you are collecting it is the first time it is collected.

Ms de Veau : If you keep with this factual scenario—

Senator LINES: Yes, sure.

Ms de Veau : as a potential consideration, we may not have a fingerprint but there may be other identifiers, and they may not just be fingerprints. If this is a family from another country, travelling to Australia, or who have been travelling around the world, Interpol, for instance, may have personal identifiers on their records for children who have been misplaced or who have been reported missing in these types of circumstances. So it is not so much about us taking and collecting fingerprints; it is about us being able to verify at that point in time that there are no concerns around the identity of that child if something has alerted us to a concern. Clearly, where we can clear up any concern and facilitate the safe and quick travel of that family unit, then all the better.

Senator LINES: I am still struggling to understand. Whether or not there is Interpol data on a family coming to Australia is really a matter of chance. I do not understand the situation where you have concerns about a particular child in a family leaving Australia. You want to fingerprint that child. Let us say the child is seven and it is a female child. Will that child be fingerprinted by a female officer? Will there be one officer, two officers? What is the practical application of this bill in relation to minors?

Ms de Veau : What is conceived at the moment is being able to use the powers that change and free up the manner in which personal identifiers might be collected. That is ultimately the intended outcome of the bill. That is, rather than having what we traditionally think of as a fingerprint test, when you and I log on to our mobile Apple phone, we may well use our thumb print to do so. The technology has evolved to the point of being able to verify quickly—without any humiliation, without any concerns—the identity of a person using that type of biometric. Of course, it might not be fingerprints; there might be other types of identifiers that you can use quickly at a point of time to alleviate any concerns—

Senator LINES: But that only works if you have got data on that individual.

Ms Noble : That is right.

Senator LINES: This is at the point where you have a reasonable suspicion, and you ask and you take the child. I am still querying why at that point an independent person cannot come in. I am further querying: if it is a seven-year-old girl child, is the fingerprint taken by a female officer, two female officers? What is the practical application at that point—whatever biometrics you are taking? Let's not get hung up on fingerprints.

CHAIR: Could I clarify the question. You are not suggesting that the independent person has the right of saying yes or no but just that it is taken in the right way.

Senator LINES: No, just that there is an observation by someone independent, acting in the interests of the child.

Ms de Veau : Could I take you to the point about whether or not we have something to compare it to. It is important to remember that we can take one or more personal identifiers. If there is nothing to compare a fingerprint, for instance, to, it may not be of use; but the bill—and the current act—allows you to consider other personal identifiers. So it is about using a range of tools—

Senator LINES: Let's be clear. I did say: let's not get hung up on what you are taking on the biometric evidence. I accept that in some circumstances you may not be able to seek the consent of the guardian or the parent taking the child. I accept that. The next best thing is to have an independent person. We are dealing with minors here. I am asking you, in the case of a seven-year-old girl who is taken off to a room in an airport: is that test—whatever it is—going to be done by female officers, one officer, two officers? Let's not get hung up on the biometrics. I want you to paint that scenario for me please.

Ms Noble : Absolutely that is right. At the moment, if we were to attempt to take a biometric of any person, in particular a fingerprint, the current act requires us to do that in a very narrow circumstance that is very strictly controlled and even, to some extent, locks us into ancient technology in order to do that. The act at the moment sets out a process that can take us up to an hour to take that biometric fingerprint—let's say—of any individual, irrespective if they were a minor not, under the new bill. Then there is a process of needing to take that person into a private room, so that there is no-one else able to see what is happening, and seek their consent and other quite strict processes, if you like.

This bill keeps that identification test—and that is the sort of language we use to describe that process—intact. It also says that we might be able to take those biometrics in other ways that the minister so determines. The practical effect of this new bill is it gives us more flexible processes by which we might be able to collect that biometric. The example the minister gave in his second reading speech is it might be on a mobile device—someone could very quickly put their fingers on a pad and their identification would be verified that way.

Senator LINES: Ms Noble, you are still not answering the question. I have probably now asked it about four times. Let us be very clear once again. I am talking about where you have not got the consent of the parent or guardian. The bill as it currently stands says that that child has no-one else standing in the role of a parent or guardian. I am simply asking you: will the seven-year-old girl be taken by a female officer? Will there be one officer or two officers? Walk me through that scenario. I am not interested in the biometrics; I am simply asking you: what happens with that seven-year-old girl that you are taking against the parent's or guardian's wishes into the room? Tell me about that.

CHAIR: I add to that question by saying: isn't it already Customs or Border Protection practice that searching or dealing with females is done by female officers? Isn't that currently the case?

Ms Noble : Yes, that is right. Sorry, Senator, the reason I was going in a little bit of length to describe the process is to then get to your question.

Senator LINES: Let us just get to my question.

Ms Noble : The seven-year-old child is now not taken off. Under the bill we would have a more open process. Now they may not necessarily be taken off to a private room where there is potentially no presence of a parent, guardian or independent officer but it is happening potentially in a public space—

CHAIR: In front of the parent.

Ms Noble : Or whoever they are travelling with. So the bill would relieve us of that requirement of taking them out of the public space. So there is some ability then for a great deal of witnesses and the presence of Customs officers and Immigration officers, for example, as well as other members of the public.

Senator LINES: But only by coincidence. They are not aware of what you are doing. Yes, there are many people around but no-one is standing looking after the child's interests and presumably that does not apply to all of the biometrics that you may wish to test.

Ms Noble : You are absolutely right. That is the bottom line.

Senator LINES: So in the circumstance when you take the child away to a private room, who is there?

Ms Noble : We do not do that now.

Senator LINES: I think you said—and I do not want to put words in your mouth—'for some of the biometrics'. If there is some other kind of test you need to perform that you cannot do in this public open space, what happens then?

CHAIR: What happens, using Senator Lines's example, if you are searching a seven-year-old female to make sure they are not carrying drugs? How is that done?

Mrs Geddes : My understanding—and we would probably have to take that on notice and provide you the full detail—is that is done at the moment in the presence of a guardian or an independent person and it would be done with a female.

CHAIR: That is standard practice, as I understand it. Perhaps we can come back to Senator Lines's question—

Senator LINES: It still has not been answered because this bill is giving—

CHAIR: I think the answer was that they would take it on notice.

Senator LINES: No, I do not want it taken on notice. It is a simple question. This bill is outlining a situation where the biometrics of children can be taken without the parent's consent and without an independent person present. So all I am asking you is: what happens when the child is taken out of the public space? I do not accept that having a child in a public space means the child is safe. What happens when the child is taken away to have the biometric testing? What are the safeguards for the child in that scenario?

Ms Noble : We would have to develop that policy.

Senator LINES: So you have not developed the policy despite the bill saying the child has no independent person?

Ms Noble : That is right, because it is only in the proposal stage.

CHAIR: But you do have arrangements already in place at Border Protection if you are dealing with a seven-year-old female in any way?

Ms Noble : That is right.

Senator LINES: But there are rights currently of an independent oversight. You are taking that away—sorry, the government is taking that away—with this bill.

Ms Noble : We will need to take on notice your question, Senator Macdonald, of: what do we do today at the border if we are concerned that a seven-year-old girl is carrying drugs? That was your comparative question to Senator Lines.

CHAIR: And then perhaps you could add to that, would it not be an extension to that, to allay Senator Lines's fears, that the same arrangements and policy direction apply in the case of biometrics being required by a similar sort of—

Senator LINES: With respect, Ms Noble has clearly told me that the policy needs to be developed. What this bill is doing, what this bill proposes is to take away the parental, guardian or independent oversight. So that child would be potentially be in a room on her own with officers of no prescribed gender. They could be male or female officers. You have not answered that question. In fact, you have answered that question because you said the policy is yet to be developed. So you are asking me to take it on trust?

Ms Noble : That is right. We still would need to develop that policy. But I think it would be quite safe to say that we would develop that policy in accordance with precedent as to how we handle the children at the border today.

Senator LINES: It is all speculation at this point, is it not?

Ms Noble : Yes.

CHAIR: You had some initial statement, Miss Noble, that you were correcting, some misunderstanding.

Ms Noble : The second point I thought might be important to clarify from the Law Council's testimony was that this bill does not change at all the types of personal identifiers that we currently have under the Migration Act. To be clear on those, personal identifiers are defined as: fingerprints or hand prints 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 video recording of a person other than a video recording under section 261AJ; an iris scan; a person's signature; 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.

CHAIR: So what you are saying is you have already got all of those powers?

Ms Noble : That is correct.

Ms de Veau : So any suggestion that this is moving into the field of DNA, blood swabs or those sorts of things, they are not on the face of the act and they are not within any existing regulations. This bill does not expand the types of identifies that can be used. Were there to be an expansion, it would need to be an amendment to the face of the act or a regulation that would be disallowable.

CHAIR: I would still ask that you have a look—I am sure you have—and give us a note about the recommendations of the Law Council for no other reason perhaps than making sure the department has considered some of the issues that have been raised. I think you are saying they are not directly relevant, but I should not be saying that. If you could do that so that (a) we will know that you have considered them and (b) we can have a better appreciation of the Law Council's recommendations.

Ms de Veau : The second matter to highlight, which we will do on notice as well, is that the Migration Act already has some very specific rules around how personal identifiers that are obtained need to be stored, managed and all those sorts of things. Those rules are not changing and will apply if the bill is passed.

CHAIR: Are they rules by regulation?

Ms de Veau : No, they are on the face of the act.

CHAIR: I would have assumed there would be some arrangement for length and means of storage of information. If you could clarify that. Are there any other matters you wanted to raise that have come before the committee so far today?

Ms Noble : No, thank you.

CHAIR: To what extent do police forces currently use biometrics? This is in relation to migration as I understand it. I am just wondering what you currently do and whether this bill will have any impact on the work you do at all?

Dr Walsh : Thank you for that question. Obviously biometrics are used daily and to a wide extent within law enforcement including the AFP. It is one of our standing powers around identification and the requirement to confirm identification under different circumstances in which that is necessary. This proposed bill does not alter our operating arrangements in any way. It does not extend them or alter them. We were asked to be present today in case there were any questions from the committee about how it may in an indirect sense have a relevance to the law enforcement context. But it is not directly change any existing powers or arrangements for us.

CHAIR: Do you currently have or do the state police forces currently have the ability to collect biometric data that is the subject of this bill? Do you already have that power?

Dr Walsh : Yes we do. Without going into specifics, in general terms—

CHAIR: I should have mentioned earlier that we are being broadcast on APEC. I assume you have no objection to that. But if there were things perhaps you wanted to say more circumspectly, just bear that in mind.

Dr Walsh : Thank you very much. In general terms, our legislation includes powers to collect biometrics, to store those and to share them under appropriate circumstances.

CHAIR: Is that Commonwealth legislation in the case of the RFM?

Dr Walsh : There are examples under Commonwealth legislation, yes. For example, one of the terms just mentioned by Ms de Veau was 'intimate forensic procedure'. That terminology is a direct category of forensic procedure that comes out of the Commonwealth Crimes Act part 1D.

CHAIR: This may be too broad a question but why did the draughtsmen simply not say we will give Border Protection officers the same powers that police currently have? Are they different? This is really a question to you, Ms Noble, rather than to Dr Walsh.

Ms Noble : We would have to take that on notice to make a direct comparison between the Crimes Act and the Migration Act, bearing in mind that this bill has no proposition to change either act in regard to those issues.

CHAIR: I am just wondering if the powers you are giving to Customs and Border Protection people are superior or inferior or the same as or different to what police forces already have.

Dr Walsh : I think one of the strengths of the proposal I see before the committee and in the bill is the simplification around, firstly, the value of biometrics and the reliability of biometrics from an identity management perspective and, secondly, the unification of different aspects where a particular biometric may or may not be useful into a more broad description. So that would be one distinction between our operating arrangement. What is proposed in the bill is that our operating arrangement still has more specific reference to specific circumstances or indeed specific biometrics or specific procedures.

CHAIR: I am not sure you how closely you have studied this bill, Dr Walsh, but are you saying this is a simplified way of doing things that perhaps you would look at enviously?

Dr Walsh : I am saying that in general terms.

CHAIR: So we might be back looking at the new crimes act biometrics bill in the not too distant future?

Ms Noble : It might be helpful just to take a few moments to explain actually how the bill does put in one place a description of the powers that already exist in the Migration Act and for us to set out the extent to which they are materially new.

CHAIR: If you could do that very briefly, I would be interested in the answer.

Ms de Veau : There is a range of existing powers to collect biometrics from people who are not citizens. They are currently in circumstances where a person is applying for a visa and that visa might be granted. It then also impacts the validity of that visa through section 40 and section 46.

As it relates to citizens, collecting personal information is about verifying their identity as they move across borders and are limited to circumstances of entering Australia, returning to Australia or from port to port—which is a way of making sure you are doing one thing or another and not falling into a gap in between. Those circumstances under which we seek to verify a person's identity have not changed. So really what the bill is about is the manner in which we might decide what way we collect those personal identifiers that Ms Noble read out that might be collected in those specific circumstances. That is what the act bill is aimed at doing. It is about providing some form of flexibility as technology develops and circumstances change to adapt practices around those things—leaving apart the matters that Senator Lines has already addressed in relation to children and incapable persons. The bill is actually just collecting parts of those different powers that already exist and the circumstances that already exist and bringing them together to one place and consolidating them.

CHAIR: I understand that point.

Senator LINES: I have a couple of questions that arose out of the points that the Law Council made. In relation to this current bill that we are examining today, other agencies have access to biometric data collected. So if I have had biometric data collected on me at the border and then I make some application at Centrelink, how does Centrelink know that biometric data is available for me?

Ms Noble : My understanding is that currently—

Senator LINES: No, I am asking about the new bill.

Ms Noble : Currently, we do not share that sort of data with Centrelink. This bill makes no change to this.

Ms de Veau : The bill does not change at all what you do with the information once you have got it. Those rules are already in existence in the Migration Act and in other places.

Senator LINES: Let us go to the police or other law enforcement agencies. How do they know that biometric data is available on me?

Dr Walsh : We do not know as a matter of real-time notification. But we have, under existing legislation and governance agreements, sharing arrangements with other agencies including with the Department of Immigration and Border Protection.

Senator LINES: So if you were investigating me and questioning me, it would not automatically be there that there is biometric data on me?

Dr Walsh : No.

Senator LINES: So what would cause you to then investigate whether there was biometric data?

Dr Walsh : I might ask Acting Commander James to provide some operational input.

Mr James : From an operational standpoint, if we were looking to access some biometric data in current cases—a good example would be personal identifiers on a current tax card, which is a signature—we would make requests to the department of immigration under our current protocols. Those protocols are not going to change as they exist under our memorandum of understanding with them and also the letter of exchange.

Senator LINES: When you get that biometric data, how long do you keep it for?

Mr James : That is dependent on the investigation at hand, if it goes to prosecution and whether that piece of data is actually a piece of evidence. If it is not considered evidence, it will be returned forthwith. If it is considered evidence in a prosecution, we will hang onto that for the duration of the court and appeal period, and then it will be returned to the department of immigration.

Senator LINES: So was the Law Council wrong when it said other agencies like Centrelink had access? Who has access to this biometric data?

Ms de Veau : I refer you to part 4A of the Migration Act, which will—

Senator LINES: In the current bill?

Ms de Veau : That is right. The part 4A continues to operate. The current bill makes no change.

Senator LINES: So who has access?

Ms de Veau : Part 4A is the obligations as to how you handle that information, including what you do with disclosing information. There is a provision specifically about that. It has to fit within permitted disclosure rules.

Senator LINES: Sure. I will get to that. I just want to know which agencies have access.

Ms de Veau : The agencies that are allowed to under that section—again, it depends on the purpose, so there is a link. It is not just the agency; there are a number of narrowing circles you have to go through before you can get it. It is not simply by status of your agency that you get it; it has to be a permitted disclosure. So there is a purpose for the disclosure as well as the nature of who you are giving it to, and there are specifically rules around foreign countries. There are quite specific agencies that confine—

Senator LINES: So which agencies?

Ms de Veau : Generally you would find that law enforcement agencies would be enabled under these provisions, particularly if it is for a permitted disclosure.

Senator LINES: We have established law agencies. Who else?

Ms de Veau : Can I take that on notice just for a moment? I will continue to look at the act and get some specifics for you.

Senator LINES: Okay. Ms Noble, in the case of let's say the police, because we have established that they are one of the agencies that under certain conditions can get this data, we would have you with this biometric data and now the police with this biometric data. What happens with the strict regime about storage? What is in the current act that enables the biometric data to be collected? Does that then flow on to the police? What happens? Are they required to store it in a particular way?

Ms Noble : Our powers would be to collect that biometric data at the border only. Then, for the purposes of verification of that person's identity for any reason, including that the person might be a known terrorist, for example, that is when that verification data would be passed and checked against, say, a law enforcement database that says, yes, that person is indeed the person of concern.

Senator LINES: Yes, I know you are doing the checking, but Mr James has just outlined a scenario where they would request biometric data from you. They pass the test and you hand it over. What happens to the Federal Police in terms of storage? What are they supposed to do to keep that data safe? Is it their own laws that then capture that biometric data, or do the laws that you have continue to apply to that data? What happens?

Ms Noble : I think those laws around the retention and protection of that information are common to all Australian Commonwealth agencies.

Senator LINES: So there is a set of requirements.

Ms Noble : Yes, like the Privacy Act, for example.

Senator LINES: Alright—but you said you think, so maybe you need to take that on notice and check.

Dr Walsh : And there is a combination of both our obligations and our legal obligations, including to the Privacy Act and other legislation. But also, in circumstances where we have requested information from the outside agency and that information has been provided, we are often then provided with specific constraints or requirements from that agency around how we must manage that information.

Senator LINES: So they say, 'We're giving you this, and you've got to do this.'

Dr Walsh : Correct.

Mrs Geddes : If I may: the protections around privacy and data protection today under the current act and under the amendments to the Migration Act for the future do not change.

Senator LINES: I asked the Law Council this, but I will ask Ms Noble. Is there anything in the current bill that would prevent the department from contracting out the collection of data so you could have a Serco or some other private contractor collecting the data and doing the biometric testing?

Ms Noble : There is nothing in the new bill that speaks to that issue.

Senator LINES: Okay. If you have a private contractor doing the data collection, is there anything that prevents that data from being stored in a cloud, in China or somewhere else?

Ms de Veau : They would be bound by part 4A, which addresses all of those issues, just as anyone else would.

Senator LINES: It outlaws that?

Ms de Veau : Yes, it actually makes disclosure an offence. That is the starting proposition.

Senator LINES: I was not suggesting they would disclose it; I am saying storage.

Ms de Veau : I think we might take that on notice as well.

Senator LINES: So you are not sure whether data can be stored offshore.

Ms de Veau : I would not think it could be. I think it has to be stored—

Senator LINES: So you are not sure. I am asking about the current bill, let's be very clear about this, and I am happy for you to take it on notice.

Ms de Veau : And the current bill does not change the existing arrangements, so it is the existing arrangements that we would need to confirm.

Senator LINES: Alright, so you are not sure about the existing arrangements.

Ms Noble : We can take on notice to provide you more information about existing arrangements.

Senator LINES: It is in a contracting situation where you have contracted out that service. Okay.

There was a reference made to the biometric data you already are able to collect on noncitizens. Would one scenario be that that biometric testing is done in another country where a visa is applied for?

Ms Noble : Yes, that is right.

Senator LINES: So that data is then held by a doctor. I know you usually have a list of prescribed medical practitioners or whatever that you require. What happens to that data? What are the provisions around retaining that data if I go to a private doctor in the UK and do the biometric testing that is required by the visa?

Ms Noble : Again, to be very clear, the new bill makes no changes to what happens currently. I will have to take on notice to get to you what happens to the doctor doing that on our behalf for a visa application offshore.

Senator LINES: Okay. If I present with a foreign passport with a good visa, you might then require further biometrics from me at the border?

Ms Noble : That is right.

Senator LINES: Okay.

Ms de Veau : In particular that is to address the scenario that has occurred previously where the person who presents to apply for a visa offshore might have a number of interactions with us between that point in time and the time they arrive in Australia, and it may be that the person who is arriving in Australia is not the same person who started the process.

Senator LINES: Sure. I am not sure if you were here when I asked the Law Council the question this morning. In the case of a child who is the subject of a custody dispute where you do some biometric testing, whatever that might be, the Law Council said that data on that child is stored indefinitely under the new bill. Is that correct?

Ms Noble : Again, the new bill makes no change to what we can do currently. We will need to get back to you on notice if there are under current law limitations on the time frame for which we can store that data. It is very complicated, but we can provide that to you.

Senator LINES: Sure. In that scenario where let's say some biometric matter is taken from a child, every time that child who then subsequently becomes an adult presents at the Australian border to leave the country and hands her passport over, will the fact that biometric data has been taken be flagged at that point with the border people?

Ms Noble : I am not sure I have understood your question, sorry.

Senator LINES: I go to leave the country as a child. There was biometric data taken, which is still there. I give my passport to the immigration official. They put into the computer, and my record, or something, comes up. Does the biometric data come up at that point?

Ms Noble : You are talking about going across the border again?

Senator LINES: Yes. I am going overseas for a holiday. The form there is with my passport. Data was collected on me 10 years ago. Is it flagged?

Ms de Veau : As a matter of process, I do not know the answer to it, but I can envisage that it is not going to be that we are going to take biometrics of every person. It is only, once again—

Senator LINES: No; I appreciate that. I am not suggesting that.

Ms de Veau : I am just trying to answer the question. It is only where there is a concern in relation to identity as a matter of process that you are going to want to seek further biometrics to verify. I do not know whether there would be necessarily an alert in the system—and I do not mean that in any derogatory way, but something in the system that says, when you scan your passport, 'We also have some other information.' I do not know whether it would work in that way. It may well. That does not necessarily mean, because we have some other information about you, we would then go to collect any further biometrics from you, particularly if we are satisfied as to your identity. These sections, the powers that generate and enliven it, are all about determining whether the person coming back into the country is a citizen or a noncitizen and, particularly, establishing identity. That is really the framework that we are working in. Even though the power might lay a framework to collect it, as a matter of practice you are not going to be collecting it in every circumstance.

Senator LINES: No, but I am asking about the circumstance where it was collected. The Law Council said this morning—and you have taken the question on notice—that this biometric data is held indefinitely. So I am asking you about if I am not a person of interest—I happen to be a child that was at the heart of a custody battle—but my biometrics were taken. As an adult, when I go to leave the country, I want to know what comes up at that point. Maybe you need to take that on notice if you are not able to answer that.

Ms Noble : We can absolutely take that on notice.

Senator LINES: There is the issue of storage. There is the issue of what is flagged—

Ms Noble : In the future.

Senator LINES: when I leave the country or indeed come back in. The other question is: in that circumstance, where—I suppose at one level a child that is the centre of a custody battle is a person of interest to you, but only to the point that you are establishing that that child is who the parent says they are—

Ms de Veau : For their own protection.

Senator LINES: I am unaware of that because I am young and I forget. I do not know. But it is there in my record. Can I make an investigation and ask if you hold that biometric material? If so, in the case of a custody battle, presumably once a child is 18 that is null and void. Can that biometric material then be destroyed?

Ms Noble : We are certainly happy to provide you with that level of detail, but I just want to re-emphasise again that that would be informing you about our current practices and processes at the border, which this bill does not propose to change.

Senator LINES: Except to the extent that the child does not have an independent guardian with them, where you are taking that data without consent.

Ms Noble : That is right.

Senator LINES: Or a person with a disability or—

Ms Noble : The difference between the legislation now and this bill is actually about the presence, as opposed to consent, which is not required today.

Mrs Geddes : Senator, if I may: to your question about coming to the border and presenting your passport, the action there is purely face recognition, so it is presenting your passport to the officer and the officer looks at your face compared to your photo, only, in the passport. There is no other biometric attached to your passport except for your name and other details.

Senator LINES: So you are answering the questions that two officers could not then. Under the new bill—

Mrs Geddes : Exactly the same.

Senator LINES: You are saying categorically that, when a passport is presented at the border, if there is biometric data sitting behind that, that is not going to come up anywhere?

Mrs Geddes : At the moment, all I am saying is that the action at the border, whether it be through a SmartGate or a person-to-person contact, is looking at your face or your image on the passport compared to what is standing in front of the officer.

Senator LINES: Into the future, if this bill passes the parliament, what happens then?

Mrs Geddes : The action is still the same.

Senator LINES: All right. How come you know that but the other two officers do not?

Ms Noble : Linda is describing the action of the officer, but I think you are going to a much deeper question of not what is actually checked at the border, but what can the officer see in the deep system that might hold records for your lifetime?

Senator LINES: That is right.

Ms Noble : Yes, we will have to take that on notice.

Senator LINES: Thank you.

CHAIR: Please be aware that if some of the answers need to be given in camera you should indicate that. I am not quite sure to what extent those sort of things are top-secret or whatever, so bear that in mind. If you do want to respond in confidence, you should check with the secretariat on how that is done.

Ms Noble : Thank you. We may have to take you up on that.

CHAIR: Okay. We are out of time, so I thank you all very much for coming along and for your time this morning. Your evidence has been helpful. Thank you very much.

Ms Noble : Thank you.

Committee adjourned at 11 : 01