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Thursday, 18 September 2003
Page: 20448


Ms ROXON (10:10 AM) —I rise to speak on the Migration Legislation Amendment (Identification and Authentication) Bill 2003 to set out Labor's views about this proposal for a very significant change to the immigration regime in this country. Labor's concerns are not with the intent of this bill, which is to address a serious issue of identity fraud and look for better ways to be able to identify and authenticate those who seek to come to this country. But what Labor does have great concerns about, and what I want to spend some time addressing today, is the way that this legislation has been structured—the complete reliance on using regulation in changing the system in a very significant way—and the lack of information and debate about the reasons for introducing provisions to cover such an extensive range of people.

This legislation seeks to amend the Migration Act by defining a range of personal identifiers or biometric data that can be collected from non-Australian citizens entering or exiting the country at official migration points and also arriving unauthorised. It will provide a framework for how this information can be collected, stored and used. These personal identifiers include things that we already use to check people's identity when they come into our country, such as photographs and signatures on passports and visa applications.

But it also adds a whole new list of identifiers, such as fingerprints and handprints, measurements of height and weight, audio and video recordings—including 3D photographs—iris scans and other as yet unknown identifiers that can be added at a later date by regulation. The only identifiers that are specifically excluded in this legislation are those that involve intimate forensic testing, such as the taking of blood samples or DNA swabs.

The stated purpose of these legislative changes is to clarify and extend the powers available to immigration officers to combat identity fraud at our borders. As I have already made clear, Labor are happy to support the government in this objective. Obviously, it is a No. 1 priority for any Australian government to want to protect our country and to be confident that the people that we are allowing to come to our country as visitors, as businesspeople, as family members, as students or as those seeking asylum are the people they say they are. We support moves to try to properly identify visitors to our country.

However, what we are very concerned about is whether the legislation as proposed actually goes to this stated intention. We are concerned that evidence of identity fraud at our land, sea and air borders has not been properly explored by the government and we are not sure of the extent of the problem that the government is trying to address. We are also very concerned that, having expressed our concerns about this bill to the government, the matter was referred with their agreement to a Senate committee for a very quick review of the legislation. But I am particularly concerned that that report has not yet been tabled. In fact, it is due to be tabled today, but after the debate on this bill is likely to be finished.

Labor are specifically reserving our right to support or disagree with those recommendations when they become public, depending on what they are, and to seek to amend this legislation if necessary—possibly significantly—in the Senate. We are concerned that, when there are such serious matters to be dealt with in this legislation, we have not had the benefit of at least the brief committee inquiry work done in the Senate being before this House.

I want to go through in a little more detail what the bill actually does. It identifies some particular purposes for obtaining these personal identifiers. These include: to identify and authenticate the identity of any noncitizen now or in the future; to improve the future integrity of Australia's entry programs; to improve procedures for assessing visa applications; to identify noncitizens who have a criminal history, who are a character concern or who are a national security concern; to combat document and identity fraud; and to detect forum shopping by asylum seekers.

As I have already said, Labor welcome these moves, these objectives and the attempts to formalise and codify some of our mechanisms for better identity checks, particularly where they may enhance the immigration department's ability to identify noncitizens who may be security risks or have criminal histories that might be of relevance or fundamental significance to their visa applications or entry into this country. But we do have serious concerns that, particularly because this legislation seems to have been drafted in such haste, many of the basic issues you would expect to see covered in such important legislation have not been addressed. These include the fact that the substantial details of how the system will actually work are being left up to future drafting in the regulations and that many of the practical international and privacy concerns around the collection and use of this personal information have been sidestepped or ignored.

Whilst the importance of protecting our borders and minimising identity fraud is critical, and a principle that Labor support, we are not convinced that the bill the government is presenting today, in its current form, is either comprehensive or detailed enough to meet its stated objectives. As I have said already, given that the Senate committee has been asked to investigate technical aspects of the bill and will only table its report later today, it is impossible for us to add their considered views as part of this debate. I would flag that we may well be seeking further scrutiny through the Senate committee or other processes depending on the report that is tabled today and after we have had an opportunity to see what recommendations have been made and how significant those recommendations might be in terms of necessary amendments.

We are particularly concerned that the regulations that are going to form part of this package have not been written. We have not seen them and they have not been provided to the public or to the committee for any analysis. We understand, in fact, that they are a long way off being drafted. When asked, the department and the minister are quite open about the fact that many of the questions that will need to be answered before those regulations can be drafted have, in fact, not been answered; yet the government is determined to introduce this framework legislation and just leave the detail till later. This arrangement does give the government and the minister significant extra power to determine the way in which identification and authentication of noncitizens, including permanent residents and tourists, is going to be handled in the future. This—given our recent experience of this minister specifically drafting regulations relating to another migration matter so that this House was unable to scrutinise those significant proposed changes at all—gives us cause for great concern. This makes it fairly difficult for us to swallow the `trust us' pleas of the minister and the department. They swear that these regulations will be in order and will contain no surprises. When such significant changes are being talked about, we believe that putting the changes in primary legislation is preferable.

It was, in fact, our concerns from the start about the use of regulations—and about the significant impact this could have on the flow of tourists, business visitors and family visa holders in and out of this country—that prompted our request that this matter be referred to the Senate Legal and Constitutional Legislation Committee for further consideration. Because of the short time frame given to the committee for reporting, it has only had a limited period to call for public submissions and organise public hearings. In a very hasty committee hearing—lasting, I understand, only about two hours—the provisions of the bill, and particularly the heavy reliance on regulations, was extensively questioned by both government and non-government senators. In fact, at the hearings, the chair of the committee, Liberal Party Senator Marise Payne, commented, and I quote:

This committee takes very seriously its role in examining legislation, but what we are presented with in this case ... is not a series of legislative measures at all; it is a fairly hollow package that gives some indication of intent but does not allow us to examine the decisions and the steps that the government is intending to take.

It is, as I have said, therefore ironic that the government has chosen to go ahead with this debate on the legislation before we have had a chance to look at the recommendations that flow from that committee's report. Labor Senator Nick Bolkus also made some comments during the course of the public hearings, and I quote:

I have enormous difficulties with endorsing legislation which is indefinite, uncertain and vague in respect to the identifiers—how they are used, by whom, how they are kept, how they are destroyed, what is destroyed and on whom they are kept. To me, that is an enormous range of blank cheques that makes this, I must say, one of the most dangerous and lazy exercises I have seen before the parliament.

These fairly strong comments were made during the course of the Senate hearing, and I expect that, when we see the committee's report, we may make some strong recommendations that are consistent with those.

Another major concern that Labor have is that the Australian government, by seeking to introduce this legislation, is committing the Australian people to setting up its own system of collecting and formulating databases of personal identifiers, even though there is no international framework for the establishment of such databases—or use of those already established—and there is no guarantee that our system will be internationally compatible with the systems used overseas. We understand that Europe is trialling a fingerprint database called Eurodac—for the purpose of ensuring that asylum seeker claims are processed in the first European country where a claim has been made and to combat forum shopping within Europe—but other such systems are yet to be established or used according to agreed guidelines. Clearly this is of great relevance to us. For the introduction of these measures to have any real security impact for Australia, our data would presumably need to be able to be compared against some sort of international database. When countries that Australia may need to deal with regularly on these security issues have not implemented, or even proposed to implement, complementary systems it does seem that we might be getting ahead of ourselves.

Countries like Canada, the UK, France and the US are seriously considering issues relating to the collection of personal identifiers. Interestingly, they are looking at domestic identity fraud as well, and, as yet, none have legislated. All sorts of domestic issues have been debated. For example, Britain's Cabinet Office produced a brief on identity fraud in July 2002 which sparked significant debate. The issues dealt with in that report included health fraud, tax fraud and a range of other issues that apply equally to citizens and noncitizens. Canada has undertaken three years of consultation and has received extensive community response and debate on these issues. So some countries are discussing the use of these sorts of personal identifiers in passports for all citizens, not just noncitizens.

By choosing to introduce these measures through immigration legislation and perhaps some national security legislation, the government has made it clear that its interests are only in noncitizens, not in any issues of identity fraud that might relate to citizens. There are many people in this parliament who have been through previous debates about this and know that the Australian community have some reservations about the collection of identifiers on them. But I think that, when we are talking about serious issues of people movements in the future, it is something that should at least be considered in the debate.

A G8 group was set up in May 2003 to look at the broad use of biometrics. As yet, we are not aware of any recommendations that have come from that group. We are very concerned that there has not been any domestic debate of significance on the introduction of such measures and that, so far, the process through the Senate committee has not enabled any extensive public debate either. I am aware—and there have been several reports in the media—of Qantas trialling some of these measures, particularly face-scanning identification processes at airports. Regular travellers are a good group to start with, and all results so far have shown that the technology we have is if not an abject failure then close to it. Clearly, we need to deal with the technological issues that will have to support the proposals that the government has put forward. That information, frankly, is not yet available or being provided to the public.

Labor are concerned that, if we were able to deal with the technology issues and establish this database, we might end up with a very technologically impressive database—whether of fingerprints, iris scans or other material—that is of no use to us if it is not comparable with material being collected in other countries. If Indonesia, Syria, Pakistan or a number of the countries through which people travel to Australia do not have databases that we can compare our information against, what use will our database be? It might prevent the re-entry of someone who has caused problems in Australia on an earlier visit, but we would then be making an investment in a very long-term plan; we would not actually see significant changes early in this process. It does seem to us that it would completely defeat the purpose of having a system of improved checking if, actually, we were not going to be able to check against anything. It makes us wary that the true purpose of this legislation might be to build the database, rather than implement any security measures at this point.

I have already flagged that there are serious questions about the reliability of the technology currently available to undertake some of the more complex identification procedures. Not surprisingly, much of the technology for things like facial and fingerprint scanning is still under development. It has been suggested that the systems that have the highest compatibility ratings are those that still have the highest relative error rates. The danger of legislating and regulating to introduce new and expensive systems before they are fully tested or even practically available for wide-scale implementation should be of concern not only to the Minister for Immigration and Multicultural and Indigenous Affairs but also to the Treasurer and the Minister for Finance and Administration, who will presumably be required to sign off on this very large investment.

Let me address the issue of who would be affected by this legislation, as I think the breadth of people affected is something that will concern the community. Basically, anyone who is entering or potentially leaving Australia and is not a citizen will be affected by this legislation. The framework identifies that a person might be required to provide personal identifiers when applying for a visa, when entering the country at immigration clearance, when travelling on an overseas vessel from one port to another, when departing Australia, when an immigration officer knows or reasonably suspects them to be an unlawful noncitizen and when they are detained as a noncitizen by Immigration under section 192 of the Migration Act, pending an investigation into the cancellation of their visa. This would mean that, as well as unauthorised boat arrivals—who have received the most attention as people who might arrive without papers and without a known identity—the legislation will affect all tourists to this country, all overseas family or business visitors. Even George Bush, when he arrives in a couple of months, might be required to submit himself to providing this range of personal identifiers at our borders.

One of our objections is that, while the legislation is very broad, it will require a decision by regulation for any category of people to then be covered. That is not a very effective or adequate way for the parliament to have a say or a debate on any new category of people who might have these more stringent requirements put upon them. Let me hasten to say that we do not object to people who are seeking to travel in and out of our country being required to properly identify themselves. But we do think we should have a community debate on this issue, given that we are so reliant as a country on tourism money. The Minister for Trade, who is at the table, would know how reliant we are on businesspeople from overseas being able to come in and out of the country. We want to make sure that the measures are proportionate—that we do deal with the security and fraud issues—but also that we do not put people off coming to Australia for legitimate family, business or study purposes. At the moment, the way the legislation is drafted we do not know to whom or what, when or how it is going to apply. Many on this side of the House—and, I suspect, on the government benches as well—do not believe it is good enough, when we are being asked to consider such a radical change to our immigration system and the way that we control and enforce our system, to not be able to address each of these issues specifically as they come up.

The bill also specifically covers the arrangements by which immigration officials gather personal identifiers from immigration detainees and would have the effect of formalising and clarifying steps that can be and are currently being taken to gather information on identity in the absence of other documentation. There are some new protections built into the legislation for this process, and we welcome the fact that there are now safeguards both for the detainees and for the officers involved in undertaking these tests. However, it is important to note that the immigration detainees form a very minor group of people potentially affected by this legislation compared to the millions of visitors and other visa applicants who could also be affected.

The bill does set out some protections for people who could potentially be covered by this legislation in the collection methods of personal identifiers. They must be taken by an authorised officer, except where prescribed otherwise. I think people should note that our advice on this would be that that could include a delegated official such as an officer, for example, of ACM or Group 4 at a detention centre. These methods must be carried out in circumstances affording reasonable privacy; they must not be carried out in the presence or view of a person whose presence is not necessary; they must not involve the removal of more clothing than is necessary; they must not involve more visual inspection than is necessary; and they must not be carried out in a manner that is cruel, inhuman or degrading or that fails to respect human dignity. Additional safeguards apply for immigration detainees, who must be informed in a language that they understand of their right to have tests taken by an officer of the same sex. Also, to avoid the systematic use of testing as a management tool in detention centres, the bill includes restrictions on retesting of immigration detainees—a provision which does not currently exist.

We are concerned in particular that we do not have any useful information or estimates from the government or the department about how big a problem the issue of identity fraud at our borders is and therefore about the size of the problem that we are trying to combat. The government and the minister have pointed to the growing problem of identity fraud on a worldwide basis but admit that they have no accurate or useful figures to show us the scale of the problem here. All we do know is that in the year 2000-01 there were 143 cases of fraudulent travel documentation, including nonexistent travel documentation, which this bill would not necessarily assist. I think the 143 known cases of fraudulent travel documentation out of the more than five million visits to this country give people a sense of proportion on the issue. As I said, the potential impact on tourism is one issue that we do not believe the government has adequately canvassed in its considerations to date, particularly in an environment where Australia's tourism industry is already under significant pressure. I think that the very real possibility that these new measures—particularly if they are implemented poorly and before the technology is capable of giving accurate results—could act as a disincentive for people to travel to Australia or apply for other visas to Australia must be considered more carefully.

Labor also questions the government pursuing this bill so quickly in light of a number of other problems that the government faces in this area that it has not been so speedy to act on. One issue I want to briefly mention which could have been covered more thoroughly as part of this legislation package is the 60,000 illegal workers in this country. Although the bill does deal with noncitizens and some of its powers could apply to people who are suspected of working here illegally, it does not address the issue of people working here illegally who arrive and cross our borders lawfully and with proper identification documents.

It seems to us that Labor's proposal, which has been in the community as an issue for debate, to establish a green card where you would be able to identify people who are noncitizens with working rights and those who are noncitizens without working rights would be the very type of measure that could sensibly be included in a package like this. However, we believe the government are more determined to look at issues where they have not proved that such an extensive problem exists—and therefore the level of difficulty we have with illegal workers in our community is not addressed. So it seems strange to us that there is urgency in the introduction of this bill, without any evidence of how extensive the problem is, but in an area where we know there is an extensive problem the government have not chosen to include measures to address that in this bill.

We believe that the green card policy launched by Labor at the end of last year is a sensible measure to ensure compliance and to identify foreigners with work rights and those without work rights. We have proposed a comprehensive measure that includes changes to tax file numbers and picks up a number of the issues that are being debated in other countries where they are looking at the use of personal identifiers and other biometric measures. From our perspective, apart from suffering perhaps some loss of face, we cannot see any reason why the Howard government would not seriously look at this policy and an opportunity to pick it up and implement it as part of this package. We will continue to press the government to do that.

I also think this bill is a curious place to start when the government has admitted in other debates that it does not even use the information and international databases that are in existence to check against noncitizens who arrive in this country. The most infamous case at the moment would be that of Mr Dante Tan. Although he was the Philippines' most wanted criminal, the minister has said in this place that no international criminal record checks were done because Mr Tan was already in the country. That seems to us an extraordinary thing—it is a little silly that we are concerned about checking who is entering this country but that, if we have already let people in and are about to give them permanent residency or a visa to stay, we do not use the existing international databases to check if there are any reasons or warnings that might cause us to say, `Hang on a second; this isn't necessarily the sort of person we want to stay in this country.'

Finally, I would just like to say that we are concerned that the minister seems to be entering into a pattern of behaviour in terms of the parliamentary scrutiny he believes is appropriate to the legislation in his area. We are seeing more and more proposals coming forward that establish framework legislation but leave significant detail to be dealt with in regulation. We do not believe that it is appropriate with such major changes to simply have that approach—that the delegated instruments are an appropriate way for us as a parliament to deal with these significant issues.

Labor want to again make clear that we support the intent of this legislation, we support proposals to tighten up existing legislation where it makes a positive contribution to the better protection of our borders and we support the new legislation where we can be confident that the measures will be effective. We need to have the right technology, we need to be sure that there will be compatible databases and we need much more work done for us to be confident that the measures proposed in this bill will actually contribute to that.

But this aim of being able to protect our borders, properly identify people and ensure that Australia is increasingly secure from threats around the world must be balanced and proportionate to the need for us to ensure and protect the rights and liberties of noncitizens that we want to encourage, in other portfolio areas, to visit this country. It seems crazy for us to have the minister for immigration stand up and say, `We want to make sure that we make it difficult in all these ways for people to come, because we are concerned about security and fraud issues,' and then have the Minister for Trade, the Minister for Foreign Affairs, the Minister for Education, Science and Training or any of the other ministers—the Minister for Small Business and Tourism, of course—stand up here trying to encourage people to come to Australia. We think that it is a significant enough measure to require a whole-of-government approach. We are not convinced that those issues have been dealt with properly yet in this debate.

As I said, we will be supporting the passage of this bill through the House, but we are clearly reserving our options for action to be taken in the Senate—or here, if the matter returns. We are reserving our options specifically in relation to the report from the Senate committee, as well as the possible need to do much more work to satisfy ourselves of the efficacy of the measures that are being proposed in this bill. Given the serious comments that I mentioned at the start of my speech and reservations that have been expressed in the other place by senators from both sides, we are expecting significant recommendations to be made and we flag our intention, if necessary, to speak to the minister about significant redrafting if proposed amendments are not an appropriate way to deal with the issues that have been raised through the Senate committee.