Senator VANSTONE (—Minister for Immigration and Multicultural and Indigenous Affairs and Minister Assisting the Prime Minister for Reconciliation) (5.28 p.m.) —by leave—I move government amendments (1) to (20) together:

(1)  Schedule 1, item 13, page 8 (lines 9 to 17), omit subsection (3), substitute:

  (3)  Without limiting subsection (1), if:

  (a)  prescribed circumstances exist; and

  (b)  the Minister has not waived the operation of this subsection in relation to granting the visa to the person;

the circumstances under subsection (1) may be, or may include, that the person has complied with any requirement of an officer to provide one or more personal identifiers in relation to the application for the visa.

  (3A)  An officer must not require, for the purposes of subsection (3), a person to provide a personal identifier other than:

  (a)  if the person is an applicant for a protection visa—any of the following (including any of the following in digital form):

  (i)  fingerprints or handprints of the person (including those taken using paper and ink or digital livescanning technologies);

  (ii)  a photograph or other image of the person's face and shoulders;

  (iii)  an audio or a video recording of the person;

  (iv)  an iris scan;

  (v)  the person's signature;

  (vi)  any other personal identifier contained in the person's passport or other travel document;

  (vii)  any other personal identifier of a type prescribed for the purposes of paragraph (3C)(a); or

  (b)  if the person is an applicant for a temporary safe haven visa within the meaning of section 37A, or any other visa of a class that the regulations designate as a class of humanitarian visas—any of the following (including any of the following in digital form):

  (i)  fingerprints or handprints of the person (including those taken using paper and ink or digital livescanning technologies);

  (ii)  a photograph or other image of the person's face and shoulders;

  (iii)  an iris scan;

  (iv)  the person's signature;

  (v)  any other personal identifier contained in the person's passport or other travel document;

  (vi)  any other personal identifier of a type prescribed for the purposes of paragraph (3C)(a); or

  (c)  if paragraphs (a) and (b) do not apply—any of the following (including any of the following in digital form):

  (i)  a photograph or other image of the person's face and shoulders;

  (ii)  the person's signature;

  (iii)  any other personal identifier contained in the person's passport or other travel document;

  (iv)  any other personal identifier of a type prescribed for the purposes of paragraph (3C)(a).

Note:  Division 13AB sets out further restrictions on the personal identifiers that minors and incapable persons can be required to provide.

  (3B)  In requiring, for the purposes of subsection (3), a person to provide a personal identifier, an officer must not contravene regulations made for the purposes of paragraph (3C)(b).

  (3C)  The regulations:

  (a)  may prescribe other types of personal identifiers; and

  (b)  may provide that a particular personal identifier referred to in subsection (3A), or a particular combination of such personal identifiers, must not be required except in the circumstances prescribed for the purposes of this paragraph.

(2)  Schedule 1, item 13, page 8 (line 19), omit “paragraph (3)(a)”, substitute “subsection (3)”.

(3)  Schedule 1, item 16, page 9 (lines 7 to 13), omit paragraph (2A)(a), substitute:

  (a)  prescribed circumstances exist; and

  (aa)  the Minister has not waived the operation of this subsection in relation to the application for the visa; and

  (ab)  the applicant has been required by an officer to provide one or more personal identifiers in relation to the application; and

(4)  Schedule 1, item 16, page 9 (after line 16), after subsection (2A), insert:

  (2AA)  An officer must not require, for the purposes of paragraph (2A)(ab), a person to provide a personal identifier other than:

  (a)  if the person is an applicant for a protection visa—any of the following (including any of the following in digital form):

  (i)  fingerprints or handprints of the person (including those taken using paper and ink or digital livescanning technologies);

  (ii)  a photograph or other image of the person's face and shoulders;

  (iii)  an audio or a video recording of the person;

  (iv)  an iris scan;

  (v)  the person's signature;

  (vi)  any other personal identifier contained in the person's passport or other travel document;

  (vii)  any other personal identifier of a type prescribed for the purposes of paragraph (2AC)(a); or

  (b)  if the person is an applicant for a temporary safe haven visa within the meaning of section 37A, or any other visa of a class that the regulations designate as a class of humanitarian visas—any of the following (including any of the following in digital form):

  (i)  fingerprints or handprints of the person (including those taken using paper and ink or digital livescanning technologies);

  (ii)  a photograph or other image of the person's face and shoulders;

  (iii)  an iris scan;

  (iv)  the person's signature;

  (v)  any other personal identifier contained in the person's passport or other travel document;

  (vi)  any other personal identifier of a type prescribed for the purposes of paragraph (2AC)(a); or

  (c)  if paragraphs (a) and (b) do not apply—any of the following (including any of the following in digital form):

  (i)  a photograph or other image of the person's face and shoulders;

  (ii)  the person's signature;

  (iii)  any other personal identifier contained in the person's passport or other travel document;

  (iv)  any other personal identifier of a type prescribed for the purposes of paragraph (2AC)(a).

Note:  Division 13AB sets out further restrictions on the personal identifiers that minors and incapable persons can be required to provide.

  (2AB)  In requiring, for the purposes of paragraph (2A)(ab), a person to provide a personal identifier, an officer must not contravene regulations made for the purposes of paragraph (2AC)(b).

  (2AC)  The regulations:

  (a)  may prescribe other types of personal identifiers; and

  (b)  may provide that a particular personal identifier referred to in subsection (2AA), or a particular combination of such personal identifiers, must not be required except in the circumstances prescribed for the purposes of this paragraph.

(5)  Schedule 1, item 16, page 9 (line 18), omit “subparagraph (2A)(a)(i)”, substitute “paragraph (2A)(ab)”.

(6)  Schedule 1, item 17, page 9 (lines 35 and 36), omit “of the type or types prescribed”.

(7)  Schedule 1, item 18, page 10 (before line 3), before subsection (1A), insert:

  (1AA)  An officer must not require, for the purposes of paragraph (1)(aa), a person to provide a personal identifier other than any of the following (including any of the following in digital form):

  (a)  a photograph or other image of the person's face and shoulders;

  (b)  the person's signature;

  (c)  any other personal identifier contained in the person's passport or other travel document;

  (d)  any other personal identifier of a type prescribed for the purposes of this paragraph.

Note:  Division 13AB sets out further restrictions on the personal identifiers that minors and incapable persons can be required to provide.

(8)  Schedule 1, item 20, page 10 (line 30), omit “of the type or types prescribed”.

(9)  Schedule 1, item 20, page 10 (after line 30), after subsection (2), insert:

  (2A)  An officer must not require, for the purposes of subsection (2), a person to provide a personal identifier other than any of the following (including any of the following in digital form):

  (a)  a photograph or other image of the person's face and shoulders;

  (b)  the person's signature;

  (c)  any other personal identifier contained in the person's passport or other travel document;

  (d)  any other personal identifier of a type prescribed for the purposes of this paragraph.

Note:  Division 13AB sets out further restrictions on the personal identifiers that minors and incapable persons can be required to provide.

(10)  Schedule 1, item 22, page 11 (lines 29 and 30), omit “of the type or types prescribed”.

(11)  Schedule 1, item 22, page 11 (after line 30), after subsection (2), insert:

  (2A)  An officer must not require, for the purposes of subsection (2), a person to provide a personal identifier other than any of the following (including any of the following in digital form):

  (a)  a photograph or other image of the person's face and shoulders;

  (b)  the person's signature;

  (c)  any other personal identifier contained in the person's passport or other travel document;

  (d)  any other personal identifier of a type prescribed for the purposes of this paragraph.

Note:  Division 13AB sets out further restrictions on the personal identifiers that minors and incapable persons can be required to provide.

(12)  Schedule 1, item 24, page 12 (lines 22 and 23), omit “of the type or types prescribed”.

(13)  Schedule 1, item 24, page 12 (after line 23), after subsection (4), insert:

  (4A)  An officer must not require, for the purposes of subsection (4), a person to provide a personal identifier other than any of the following (including any of the following in digital form):

  (a)  a photograph or other image of the person's face and shoulders;

  (b)  the person's signature;

  (c)  any other personal identifier contained in the person's passport or other travel document;

  (d)  any other personal identifier of a type prescribed for the purposes of this paragraph.

Note:  Division 13AB sets out further restrictions on the personal identifiers that minors and incapable persons can be required to provide.

(14)  Schedule 1, item 28, page 14 (lines 5 and 6), omit “of the type or types prescribed”.

(15)  Schedule 1, item 28, page 14 (after line 6), after subsection (2A), insert:

  (2AA)  An officer must not require, for the purposes of subsection (2A), a person to provide a personal identifier other than any of the following (including any of the following in digital form):

  (a)  a photograph or other image of the person's face and shoulders;

  (b)  the person's signature;

  (c)  any other personal identifier contained in the person's passport or other travel document;

  (d)  any other personal identifier of a type prescribed for the purposes of this paragraph.

Note:  Division 13AB sets out further restrictions on the personal identifiers that minors and incapable persons can be required to provide.

(16)  Schedule 1, item 32, page 19 (line 28), omit “of the type or types prescribed”.

(17)  Schedule 1, item 32, page 19 (after line 28), after subsection 261AA(1), insert:

  (1A)  An authorised officer must not require, for the purposes of subsection (1), a person to provide a personal identifier other than any of the following (including any of the following in digital form):

  (a)  fingerprints or handprints of the person (including those taken using paper and ink or digital livescanning technologies);

  (b)  a measurement of the person's height and weight;

  (c)  a photograph or other image of the person's face and shoulders;

  (d)  the person's signature;

  (e)  any other personal identifier of a type prescribed for the purposes of this paragraph.

Note:  Division 13AB sets out further restrictions on the personal identifiers that minors and incapable persons can be required to provide.

(18)  Schedule 1, item 32, page 26 (after line 28), at the end of Division 13AA, add:

Subdivision C—Obligations relating to video recordings of identification tests

261AKA Definitions

    In this Subdivision, unless the contrary intention appears:

permitted provision, of a video recording, has the meaning given by subsection 261AKD(2).

provide, in relation to a video recording, includes provide access to the recording.

related document means a document that contains information, derived from a video recording made under section 261AJ or from a copy of such a recording, from which the identity of the individual on whom the identification test in question was carried out is apparent or can reasonably be ascertained.

video recording means a video recording made under section 261AJ or a copy of such a recording, and includes a related document.

261AKB Accessing video recordings

  (1)  A person commits an offence if:

  (a)  the person accesses a video recording; and

  (b)  the person is not authorised under section 261AKC to access the video recording for the purpose for which the person accessed it.

Penalty:  Imprisonment for 2 years, or 120 penalty units, or both.

  (2)  This section does not apply if the access is through the provision of a video recording that is a permitted provision.

Note:  A defendant bears an evidential burden in relation to the matter in subsection (2) (see sub-section 13.3(3) of the Criminal Code).

261AKC Authorising access to video recordings

  (1)  The Secretary may, in writing, authorise a specified person, or any person included in a specified class of persons, to access:

  (a)  all video recordings; or

  (b)  a specified video recording, or video recordings of a specified kind.

  (2)  The Secretary must specify in an authorisation under this section, as the purpose or purposes for which access is authorised, one or more of the following purposes:

  (a)  providing a video recording to another person in accordance with this Subdivision;

  (b)  administering or managing the storage of video recordings;

  (c)  making a video recording available to the person to whom it relates;

  (d)  modifying related documents in order to correct errors or ensure compliance with appropriate standards;

  (e)  any purpose connected with determining whether a civil or criminal liability has arisen from a person carrying out or helping to carry out an identification test under this Act;

  (f)  complying with laws of the Commonwealth or the States or Territories.

  (3)  However, the Secretary must not specify as a purpose for which access is authorised a purpose that will include or involve the purpose of:

  (a)  investigating an offence against a law of the Commonwealth or a State or Territory (other than an offence involving whether an identification test was carried out lawfully); or

  (b)  prosecuting a person for such an offence;

if the identifying information in question relates to a personal identifier of a prescribed type.

261AKD Providing video recordings

  (1)  A person commits an offence if:

  (a)  the person's conduct causes a video recording to be provided to another person; and

  (b)  the provision of the recording is not a permitted provision of the recording.

Penalty:  Imprisonment for 2 years, or 120 penalty units, or both.

  (2)  A permitted provision of a video recording is a provision of the recording that:

  (a)  is for the purpose of administering or managing the storage of video recordings; or

  (b)  is for the purpose of making the video recording in question available to the non-citizen to whom it relates; or

  (c)  is for the purpose of a proceeding, before a court or tribunal, relating to the non-citizen to whom the video recording in question relates; or

  (d)  is for any purpose connected with determining whether a civil or criminal liability has arisen from a person carrying out or helping to carry out an identification test under this Act; or

  (e)  is for the purpose of an investigation by the Privacy Commissioner or the Ombudsman relating to carrying out an identification test; or

  (f)  is made to a prescribed body or agency for the purpose of the body or agency inquiring into the operation of provisions of this Act relating to carrying out an identification test; or

  (g)  takes place with the written consent of the non-citizen to whom the video recording in question relates.

  (3)  However, a provision of a video recording is not a permitted provision of the recording if:

  (a)  it constitutes a disclosure of identifying information relating to a personal identifier of a prescribed type; and

  (b)  it is for the purpose of:

  (i)  investigating an offence against a law of the Commonwealth or a State or Territory (other than an offence involving whether an identification test was carried out lawfully); or

  (ii)  prosecuting a person for such an offence.

261AKE Unauthorised modification of video recordings

    A person commits an offence if:

  (a)  the person causes any unauthorised modification of a video recording; and

  (b)  the person intends to cause the modification; and

  (c)  the person knows that the modification is unauthorised.

Penalty:  Imprisonment for 2 years, or 120 penalty units, or both.

261AKF Unauthorised impairment of video recordings

    A person commits an offence if:

  (a)  the person causes any unauthorised impairment of:

  (i)  the reliability of a video recording; or

  (ii)  the security of the storage of a video recording; or

  (iii)  the operation of a system by which a video recording is stored; and

  (b)  the person intends to cause the impairment; and

  (c)  the person knows that the impairment is unauthorised.

Penalty:  Imprisonment for 2 years, or 120 penalty units, or both.

261AKG Meanings of unauthorised modification and unauthorised impairment etc.

  (1)  In this Subdivision:

  (a)  modification of a video recording; or

  (b)  impairment of the reliability of a video recording; or

  (c)  impairment of the security of the storage of a video recording; or

  (d)  impairment of the operation of a system by which a video recording is stored;

by a person is unauthorised if the person is not entitled to cause that modification or impairment.

  (2)  Any such modification or impairment caused by the person is not unauthorised merely because he or she has an ulterior purpose for causing it.

  (3)  For the purposes of an offence under this Subdivision, a person causes any such unauthorised modification or impairment if the person's conduct substantially contributes to it.

  (4)  For the purposes of subsection (1), if:

  (a)  a person causes any modification or impairment of a kind mentioned in that subsection; and

  (b)  the person does so under a warrant issued under the law of the Commonwealth, a State or a Territory;

the person is entitled to cause that modification or impairment.

261AKH Destroying video recordings

    A person commits an offence if:

  (a)  the person is the person who has day-to-day responsibility for the system under which a video recording is stored; and

  (b)  the person fails physically to destroy the recording, and all copies of the recording, within 10 years after it was made.

Penalty:  Imprisonment for 2 years, or 120 penalty units, or both.

(19)  Schedule 1, item 33, page 36 (lines 30 to 32), omit subsection (4), substitute:

  (4)  Identifying information is destroyed if:

  (a)  in the case of identifying information that is a personal identifier—it is physically destroyed; and

  (b)  in any other case—any means of identifying it with the person to whom it relates is destroyed.

(20)  Schedule 1, page 38 (after line 11), at the end of the Schedule, add:

35 Review of operation of this Act

(1)  The Minister must cause an independent review of the operation of the amendments made by this Act to be undertaken as soon as possible after the third anniversary of the commencement of this Schedule.

(2)  A person who undertakes the review must give the Minister a written report of the review.

(3)  The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after its receipt by the Minister.

(4)  In this item:

independent review means a review undertaken by persons who:

  (a)  in the Minister's opinion, possess appropriate qualifi-cations to undertake the review; and

  (b)  include a nominee of the Attorney-General and a nominee of the Privacy Commissioner.

I commend these amendments to the chamber. This was briefly covered in the extension of the second reading. It has been very clear that the Senate committee has done a good job. They have come up with a number of recommendations that make senators and, I think, members of the public more comfortable with this bill. The bill will be improved by way of these additions. There was one amendment recommended by the committee but I believe the committee understands that, on further assessment of the Eurodac system in Europe, in fact what is offered here provides more safeguards and is a better system. So, except for the recommendation in relation to that, the other recommendations have been agreed to and I commend the amendments to the Senate.