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Thursday, 18 September 2003
Page: 20468


Mr ORGAN (11:34 AM) —The purpose of the Migration Legislation Amendment (Identification and Authentication) Bill 2003 is, as stated by the minister, to strengthen and clarify existing statutory powers to identify noncitizens. It provides the framework for the collection of biometric data by Immigration officials.

Current Australian and overseas immigration regimes routinely require photographs and signatures as proof of identity. This bill seeks to expand the powers to include the collection of other biometric information, including fingerprints, iris scans, facial scans and body measurements, from noncitizens in particular circumstances. This bill also sets out a regulatory framework to create a database or databases for the storage of this information once collected.

The government claims it is compelled to introduce this legislation in order to tackle the growing incidence of document fraud worldwide. Elements in the government's approach to combat identity fraud include proposals beyond the immigration context. Firstly, the government is undertaking a feasibility study into a nationwide `electronic gateway' that would allow instant verification and crossmatching of documents such as birth and death certificates, drivers licences, passports and immigration records. Secondly, the Department of Foreign Affairs and Trade is considering the addition of a biometric identifier in the next Australian passport series. Thirdly, the government is trialling photo-matching technology at Sydney international airport. And, fourthly, a discussion paper was released earlier this year regarding the establishment of a national set of powers for cross-border investigations into serious and organised crime, including the use of assumed identities.

One of the key issues with regard to this bill is whether the use of biometric databases in relation to noncitizens in a non-criminal context is proportionate to the size of the currently undetected identity fraud by noncitizens and how the information collected will achieve these purposes. It is important to note that biometric information does not of itself identify an individual. The usefulness of the 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. It is also important to note that, in an immigration context, the collection of non-citizen biometric information would be useful if the noncitizen subsequently committed or attempted to commit identity fraud or if their data could be checked against equivalent data overseas.

The precise measurement of the extent of identity fraud is difficult. Detected fraud can be measured, but extrapolating that into any total figure involves a degree of guesswork. In Australia, it is even more difficult as there has been no public study of identity fraud per se, although the Australian government has estimated the total cost of identity fraud to be around $4 billion per year. In addition, it is unclear what part of this is perpetrated by the hundreds of thousands of noncitizens who enter Australia annually.

The Greens are opposed to this bill for a range of reasons. From the outset, it is important to say that, before Australia considers implementing a regime of biometric data collection in relation to our current immigration policy, at the very least the proposal for such a regime should be well justified by statistical data, particularly in an immigration context.

Even if such information were available, the Greens would not necessarily be tempted to support such a regime, as we are concerned by the human rights implications of the proposal. We are especially concerned that the government is pursuing this proposal, given its current unfair and unnecessarily harsh approach to immigration matters. The government demonstrates at the very least an inconsistent and unreliable approach to human rights issues. The fact that it has put forward this proposal for the collection of biometric data is of concern to the Greens. We also question the motivations behind the need for such an identifying regime.

Given the controversial nature of the bill, on 20 August this year the Senate referred the provisions of the bill to the Senate Legal and Constitutional Legislation Committee for inquiry and report by 11 September. The report was extended to 18 September—today. As such, we would have appreciated time to consider the findings of the Senate committee with regard to the provisions of this bill. I am disappointed that the bill re-entered the House on the same day the committee was reporting. The Greens consider this poor democratic process, to say the least.

This especially concerns the Greens given that submissions to the Senate inquiry have blasted the proposals contained in the bill as unnecessary and an infringement on human rights. Principal concerns expressed by submissions to the inquiry indicate that: there is inadequate supervision of the collection, storage, use and destruction of the data; biometric tests could be taken by force if necessary; and the disclosure of information to other countries could result in further persecution of rejected asylum seekers.

The President of Liberty Victoria made the following comments about the proposed legislation:

We wish to emphasise, in particular, our concern at what seems to be the quite excessive degree of delegation to the Minister—either expressly or by utilisation of the “prescribed circumstances” device—of the power to decide when, against whom and in respect of which identifiers the provisions can be applied.

The use of personal identifiers is always a sensitive issue. The process is often invasive and may, as the draft indicates, involve the use of force. In the view of Liberty Victoria, it is unacceptable in principle for Parliament to abdicate to the Executive what amounts to the legislative function of deciding how, when and in what circumstances the legislation is to apply. This is particularly so when the technology for recording biometric information is developing so quickly. The appropriate legislative response to future developments is a matter for Parliament not the Minister.

The Victorian Bar has also expressed concerns with the bill in a submission to the inquiry, highlighting that the supervision of the database in the collection, storage, use and destruction of information was not adequately provided for in the bill.

The Federal Privacy Commissioner, Malcolm Crompton, said:

... indefinite retention of some data increases the possibility that the information may be used for purposes unrelated to the purpose of collection, perhaps years after that collection.

He also said:

... there is scope for more careful regulation of the situations in which personal information may be disclosed to foreign countries and entities.

He further said:

Australia has a Privacy Act that gives people certain rights. But when you send material out of the country you've lost control.

According to the Federal Privacy Commissioner, some of his accountability recommendations had not been incorporated into the bill and he reiterated the need for a legislative requirement to review the bill's operation after two years.

The United Nations High Commissioner for Refugees also had comments to make regarding the proposed legislation. According to the UNHCR:

The proposed legislation could provide additional safeguards to seek to prevent any adverse physical or psychological effects on the individuals concerned. Asylum seekers may possibly be recognised as refugees. Refugees in many cases, suffer from trauma because of the persecution that they have experienced in their country of origin, or due to the circumstances of their flight. Requiring them to undergo biometric tests may aggravate their already precarious psychological or mental state. It would therefore be useful for the proposed legislation to include adequate safeguards to prevent such adverse effects, notably through the provision of professional care and counselling, both prior to, and after, the testing.

The UNHCR also goes on to say:

The proposed legislation does not refer to the scientific reliability of each of the biometric tests. We do understand that the reliability of each test may vary, thus resulting in different legal implications, e.g., in regard to evidentiary weight.

The UNHCR has stated that the proposed legislation should be clearer on this matter. The UNHCR goes on to make various other points about the legislation and one further point of particular concern to the Greens:

The proposed legislation provides for a broad scope of discretion on the part of responsible officers. UNHCR believes additional safeguards should be specified.

The Greens strongly support this call. The submission made by the Public Interest Advocacy Centre—PIAC—has stated that the bill would `abrogate fundamental individual human rights'. The submission by PIAC goes on to say:

... the government has failed to articulate a compelling need for this legislation ... the measures that are introduced are in breach of Australia's international obligation to protect the right to privacy.

One of PIAC's primary concerns is the absence of safeguards for the destruction of biometric identifiers. The point was made by PIAC in their submission that they welcomed the referral of the proposed legislation to an inquiry, but they stated that they were:

... concerned about the short period for public consultation which may prevent public and community organisations with limited resources to prepare a full submission. PIAC believes that this Bill warrants considerable scrutiny, and recommends that further time should be allowed to enable thorough review of the powers which the Bill grants the Minister, and the effects on individual rights and liberties and children if the Bill is implemented in its current form.

In the short time PIAC has had available to undertake a preliminary review [of] the Bill, it has identified a number of concerns relating to the Bill. PIAC's primary concern is that there has been a failure to articulate a compelling need for this legislation.

PIAC's other key concerns include:

potential breaches of Australia's international human rights obligations, in particular the right to privacy;

the reliance upon delegated legislation to delineate significant powers;

the absence of safeguard provisions relating to destruction of personal identifiers;

the absence of provisions relating to supervision of information; and

the process as a whole and the effects that it will have on asylum seekers and other immigrants seeking to enter Australia.

PIAC goes on to say:

Whilst PIAC recognises that there is a need to accurately identify those who seek to enter and remain in Australia, this must be balanced with the need for protection of individual rights and the utility of the proposed process.

PIAC has stated that, while it acknowledges the importance of having measures in place to accurately identify people who come to and seek to remain in Australia:

... the main purposes of the Bill appear to be based on two untested assumptions:

i. that identity fraud is being committed by non-citizens; and

ii. that the information proposed to be collected could be compared to data in other countries.

As has been mentioned previously, PIAC says:

Precise measurement of identity fraud committed by asylum seekers is difficult. In Australia there has not been a public study of identity fraud. Further, Minister Ruddock did not, in his second reading speech, present any clear basis for his assertions in relation to the scope of this problem.

In PIAC's opinion, and we support this assertion:

The government has not ... presented sufficient evidence of the nature and extent of the problem to warrant passing such invasive legislation. In order to interfere with the fundamental human rights of asylum seekers and others entering Australia, a clear and substantiated justification must be articulated.

Such a justification has not been provided. PIAC also state in their submission—and, again, we support this—that even if they were to accept that there is a pressing need for this legislation, which they do not, they doubt whether it would have the impact claimed. PIAC further state:

To assess whether the amendments in the Bill will achieve their purpose it is necessary to know whether the data collected under the Bill is compatible with that collected in other countries. It is also essential to know whether arrangements have been made to facilitate the sharing of information between countries before the Bill is passed.

There is evidence that other western countries such as the United States, Canada, United Kingdom and countries within the European Union collect personal identifiers, particularly fingerprints, signatures and photographs. However that is not where the majority of asylum seekers originate from. Prior to the Bill being passed it would be useful to ascertain whether countries such as Iran, Afghanistan, Syria and Jordan collect personal identifiers that could be compared with information proposed to be collected in Australia. In PIAC's experience, these are the principal countries in which it is alleged that asylum seekers could have claimed effective protection.

PIAC also says:

... the Bill provides that a purpose of obtaining personal identifiers can be to assist in the identification of non-citizens in the future. This allows information to be collected in cases where there is rarely if ever, immigration fraud, “just-in-case”. In PIAC's view this is not a proportionate or justifiable response when there is no evidence as to the scale of identity fraud by non-citizens.

According to PIAC:

As currently drafted, there are significant gaps in the Bill. The Bill contemplates for example, that the Minister will prescribe at a later date the circumstances in which personal identifiers are required and the exceptions to these circumstances. New personal identifiers may be prescribed in regulations, and regulations may also prescribe the manner for carrying out identification tests. The application of the regime is potentially extremely broad.

Whilst PIAC gains some comfort from the knowledge that any delegated legislation will be scrutinised by the Senate Regulations and Ordinances Committee, PIAC considers that it is inappropriate that legislation which affects the fundamental human rights of individuals should be enacted with such lack of clarity. ... the Human Rights Committee's General Comment provides that legislation interfering with the right to privacy must specify in detail the precise circumstances in which such interferences may be permitted. It is also well established that, in interpreting legislation, courts are reluctant to impute to the legislature an intention to interfere with fundamental rights unless that intention is manifested by clear and unmistakable language.

In PIAC's view the provisions in the Bill relating to the destruction of personal identifiers are hollow, and provide little protection. ... In relation to information that is not exempt, the Bill ... requires the destruction of the identifying information, but not the sample itself. Further, identifying information can be indefinitely retained if the person to whom it relates has, for example, ever been in immigration detention, had a visa cancelled or refused, or overstayed a temporary visa.

PIAC considers that these provisions are unsatisfactory, and recommends that a time limit be set for the destruction of all information (including both the sample and identifying information). In this regard PIAC refers the Committee to the Eurodac system which has been recently introduced in the European Union (EU). This system only collects anonymous fingerprints, and all samples are destroyed after 10 years, or upon a grant of citizenship. PIAC considers this might be an appropriate precedent for Australia to follow.

PIAC also states:

PIAC is concerned that the Bill, as currently drafted, does not provide for the supervision by an independent authority over data collection, storage, use and destruction.

By way of comparison, PIAC again refers the Committee to the Eurodac as a precedent. To ensure there is no misuse of the system, a national supervisory authority in each participating state monitors independently the lawfulness of the processing of data. As a further safeguard, a joint (EU and participating states) supervisory authority ensures that the rights of data subjects are not violated. This will shortly be replaced by an independent supervisory authority, the European Data Protection Supervisor, a position being established by the EU. As a final safeguard the European Commission will submit to the European Parliament and to the council of the EU, an annual report on the management and working of the Eurodac.

PIAC recommends that this Bill be amended to include supervisory powers of a similar nature [being] given to an independent authority, such as the Ombudsman. PIAC considers this is a vital requirement in order to enhance protection against arbitrary or unlawful interferences with personal information.

PIAC is of the view that the proposed data collection process will be:

... invasive and demeaning and will have the effect of further de-humanising and alienating asylum seekers arriving in Australia, regardless of whether their claims for refugee status are legitimate. Many asylum seekers have fled from repressive and destructive regimes. The cumulative effects of—

for example—

mandatory detention, patrol by guards ... and now a regime of requiring personal identifiers is punishment, particularly in light of the fact that the Bill allows the use of reasonable force in carrying out identification procedures.

If this Bill is passed, it will have the psychological effect of treating asylum seekers like criminals. In this instance they will be treated more harshly than criminals. Under the Crimes Act..., for example, identification material is confined to prints of a person's hands, fingers, feet or toes, recordings of the persons voice, samples of the persons handwriting, photographs or video recordings. The types of identifiers provided for in the Bill go further than this to include height and weight measurements, iris scans and identifiers which are yet to be prescribed. Further, the Crimes Act provides that identification material must be destroyed `... as soon as practicable' if a period of 12 months has elapsed since the information was collected and proceedings have not been instituted or have been discontinued, or if a person is acquitted or no conviction is recorded. In contrast, as has been discussed ..., this Bill provides that personal identifiers can be retained indefinitely in certain circumstances.

PIAC has serious concerns about this bill, and the Greens echo these concerns. In PIAC's opinion, the government has failed to articulate a compelling need for legislation of this kind. The bill does not appropriately balance the need to accurately identify persons entering Australia with the need to protect individual rights. PIAC also considers:

... there is a lack of verifiable evidence that this Bill will be effective in achieving its purpose of combating identity fraud and that the measures that are introduced are in breach of Australia's international obligation to protect the right to privacy.

Further, there is inappropriate use of delegated legislation and an absence of provisions relating to destruction and supervision of information collected. PIAC and the Greens are also concerned about the effects the measures will have on asylum seekers. Accordingly, PIAC is of the opinion—and the Greens support this opinion—that the bill should not be passed in its current form.