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Thursday, 18 September 2003
Page: 20488


Mr RUDDOCK (Minister for Immigration and Multicultural and Indigenous Affairs and Minister Assisting the Prime Minister for Reconciliation) (12:59 PM) —by leave—I take this opportunity to thank the members who have spoken in this debate. We have had the members for Gellibrand, Dickson, Forrest, Forde, Petrie, Riverina, Cunningham, Blaxland and Lowe. To all of them, except for the member for Riverina, whom I did have the opportunity to hear, I apologise that I was not here for the whole of the debate. But I have been following it as I can and I have some comments that I would like to make about the importance of the Migration Legislation Amendment (Identification and Authentication) Bill 2003.

Australia, like many other countries, faces a challenge of being able to accurately define and identify persons who seek to enter and remain here. There is a growing incidence of identity fraud worldwide and this is a problem that not just Australia is facing. We are not immune from it. The cost to the wider Australian community of identity fraud is measured not just in millions or hundreds of millions of dollars but potentially in billions of dollars. We know that identity fraud is also a cost to government and that it systematically tests government programs.

The role of the Department of Immigration and Multicultural and Indigenous Affairs is particularly important because the department is the gateway for noncitizens to establish their identity in Australia. Government and private sector administrative and financial systems rely upon identities established by my department to confer various benefits and entitlements, and so DIMIA has a very important responsibility to be able to accurately identify noncitizens.

Identity document fraud also facilitates the movement of people who can be quite undesirable. Terrorists have been known to use fraudulent documentation. Border security and enhanced proof-of-identity requirements are critical to Australia's national security as well as to the integrity of the services and programs that operate in this country. It is in this context that this bill has to be seen, as part of a whole-of-government approach to confront identity fraud and to respond to a new framework in which technologies are developing and emerging and where there is a need to be able to respond flexibly.

From the outset I think it is important to note that the Migration Act already provides for the collection of personal identifiers. This is not a new task; it has been done over a long period of time, in the sense that we have taken photographs and signatures in order to make a visa application valid. We have had prescribed identity documents that people have to produce in certain cases. These can include passports, but they can also include other forms of documentation. An authorised officer can photograph or measure an immigration detainee, for instance, for identification purposes. But the act as it stands does not define a personal identifier. It does not deal with the circumstances in which a personal identifier may be required or how it is to be provided, nor does it presently contain safeguards for retention and disclosure. So this bill is to implement a more comprehensive and transparent legislative framework for requiring noncitizens to provide those identifiers that we need at various points in the visa and entry process. But it also provides a range of safeguards for noncitizens who are required to provide them.

Other countries are responding in a similar fashion and are introducing identification testing measures for exactly the same reasons that we are—to combat identity fraud. The European Union member states have established Eurodac, which is a centralised system for comparing fingerprints of asylum seekers. The United States will soon require all travel and entry documents to include a biometric identifier. In the United Kingdom there is provision for developing regulations to require noncitizens to provide external physical characteristics data as well as iris scans. So this bill is consistent with what is happening internationally.

The types of identifiers and the circumstances in which they must be provided will be set out in regulations. I am conscious that this part of the bill has drawn some criticism. It has been suggested that the bill will provide for a broadening of powers and that, even though there are safeguards included in it, these matters ought to be dealt with only in legislation rather than in delegated legislation. It flies in the face of the sorts of processes that all governments are faced with in terms of being able to respond quickly and flexibly if you seek to put everything into a legislative framework and ignore the capacity to outline the general principles that would operate in primary legislation and then deal with detail later in regulations which can be changed more flexibly. Of course, changing regulations still requires parliamentary approval. It is not as if the parliament will not be involved. If you introduce regulations, they are still the subject of very important parliamentary scrutiny, so it does not absolve us of parliamentary scrutiny. I stress that these are the normal sorts of arrangements that governments of all political persuasions recognise are important in order to have legislation that is flexible enough to deal with an area where change is likely to occur with some frequency.

I stress again that the immigration department already requires provision of personal identifiers, usually in the form of a photograph attached to a visa application, or an identity document such as a passport, which includes a photograph, and so it is likely that, under this legislation, initially those arrangements that operate now would continue to be in place. But the regulations will provide that applicants for certain types of visas must provide additional evidence of their identity. Personal identifiers can be required as part of an application process. For example, in relation to protection visa applicants, regulations may provide for the collection of identifiers such as a facial image or fingerprints in order for a valid application to be made. That is important because it does enable you to work with other countries in identifying people who may have been making multiple claims, who may have already been considered for refugee status in another country and had their claims rejected, where that information was not being provided to you.

It is not intended that a lack of documentary evidence or identity on the part of an applicant for a protection visa, for example, would prevent them from being able to make a valid claim. I ought to say that because the member for Cunningham suggested that there may be some ulterior motive in relation to this. I do know that other countries are looking at requiring people who want to make protection claims to actually produce certain identification. Other countries have looked at those sorts of issues and are implementing those sorts of arrangements, but in this particular measure that is not what is being sought or asked for.

This bill provides for a personal identifier such as a photograph or fingerprints to be collected from the person, at the time they lodge the application, for the purpose of establishing and later authenticating their identity. I think those are the important points to be made. Providing, in the regulations, for circumstances where the provision of a personal identifier may be required will allow technological developments and situations that might vary in the future to be addressed. For instance, facial recognition technology, using an automated kiosk to facilitate the expeditious or unobtrusive processing and verification of passengers at airports, is being looked at and is something that we may well be moving to fairly soon. Collecting facial images in relation to migration applications at the time of the lodgment of an application is part of the associated medical and skills assessment to ensure that the person being assessed for a medical purpose is the same person who has made the application. That is one reason why you might want to have the capacity to collect facial images at different points in the process.

The ability to authenticate the identity of a suspected non-lawful citizen during compliance operations is also a very important matter. The member for Gellibrand suggested that this legislation was not dealing with the problem of people working unlawfully. While this legislation does not deal directly with the issue of penalties for those who are found to be working unlawfully or penalties for those who employ them—and other legislation may well deal with that in the near term—it does enable us to more effectively identify people who are working unlawfully. Our compliance operations will be enhanced by having in place legislation like this, which will give us a better capacity to identify those who are unlawful.

Providing in the primary legislation for a wide range of possible circumstances could of course make the act very cumbersome and unwieldy, given the large number of visa classes and subclasses that are administered by DIMIA. Providing in the regulations for such a range of circumstances allows a more targeted response that is appropriate to the risks of identity fraud associated with a given circumstance. Guidelines will be developed to cover scenarios where third parties such as medical practitioners and English-language testing agencies collect photographs on behalf of the department. The guidelines will include information on cultural and religious sensitivities in terms of the way in which photos are taken. They will specify the size and quality of the photos and will stipulate that the photo must be limited to the face.

More importantly, the bill will provide for a range of safeguards to protect noncitizens who are required to provide those identifiers. For example, all identification tests will be conducted in circumstances that afford reasonable privacy to the noncitizen, and any identifying information will be treated in accordance with the requirements of the Privacy Act. In circumstances where reasonable force is required to carry out identification tests—on a detainee, for instance—it may only be used as a measure of last resort and must be authorised by a senior officer.

In addition, the bill will protect the privacy of non-citizens by placing limits on access and disclosure of identifying information. It will be an offence to disclose identifying information unless it is permitted, as it may be for disclosure. For example, a permitted disclosure includes disclosure to a law enforcement agency or border control body of a foreign country to inform their government of the identity of a person being removed or deported. Further, this bill contains provisions to ensure that identifying information will not be disclosed in certain circumstances. For instance, identifying information will not be disclosed to a foreign country if a person has made a protection application, unless the person requests it or agrees to it.

In relation to the retention of information, the bill provides for some circumstances where an individual's identifying information will be kept indefinitely. One of these circumstances is where the minister is satisfied that the noncitizen is a threat to the security of the country, or issues a certificate to that effect. However, identifying information obtained under this bill will generally be retained in the same manner as all other information retained under the act—that is, in accordance with the Archives Act.

The proposals contained in this bill are important. However, I should take up a number of the points made in the debate which I do not think refer directly to the legislation. The member for Blaxland made some comments about the immigration arrangements of many decades ago. He did that in the context of the Lebanese concession, as it was known, in the early 1970s. The Lebanese concession was invoked at the time because of the extraordinarily difficult circumstances facing the Lebanese in the context of civil war, where people were seen to be in refugee-like situations. There were people in Australia with relatives who were adversely affected, and arrangements were put in place to assist in relation to that.

That was not unusual. There have been other times when concessional arrangements have operated. This has occurred under governments of different political persuasions and at different times. For instance, Australia continued to take Vietnamese people from camps in Asia, without testing their entitlement to a refugee outcome, right up until 1989. I remember the involvement of former Senator Peter Rae in bringing to a conclusion arrangements which, broadly, had operated with little scrutiny and, I might say, without regard to some of the safeguards that we would regard as fundamental today.

I made some inquiries because the member for Blaxland sought to relate his comments to certain contemporary events. Mr Kisrwani, whom he mentioned, was one of the people in the Lebanese community who, from time to time, spoke to me about what he saw as the rather general way in which the provisions were able to operate. He was of the view that there should have been far more developed controls over the Lebanese concession than there were. To try to impugn his integrity by linking him with the operation of the Lebanese concession of almost 2½ decades ago is certainly inappropriate.

I would further say that I find there is in these matters—particularly in the context in which they were offered—an unfortunate stereotyping of the Lebanese community. If it had been raised by a member on this side of the House in relation to any particular community, there would have been outrage—I suspect confected outrage—on the other side, as outrage at stereotyping is something that I have seen frequently pursued. I must say I would be very surprised if members of the opposition were involved in stereotyping communities but on this matter I think that has occurred. The fact is that, on the advice given to me, health and character checks were required for those who accessed Australia at that time, contrary to the assertion made by the member for Blaxland. So I simply make the point that, if he was suggesting that the operation of the Lebanese concession 25 years ago was without integrity, on the advice that was given to me that is a flawed view. If he was suggesting that you could in some way stereotype the Lebanese community because they accessed Australia without health and character controls, I think that is a very unfortunate implication to draw.

I conclude my remarks by simply saying that, during the course of debate on of this bill, reference was made to the fact that a Senate committee is deliberating on this matter. I have no problem with a Senate committee deliberating on such matters but, in my view, the progress of bills before this House cannot be held to the program of the Senate. The Senate organises its own program. It deliberates as it sees fit and it is entitled to do that, but this chamber cannot wait on its deliberations. Obviously, senators may have some views to put. It may be that the opposition will want to take into account whatever views they form and it may be that this House will have to address these issues again.

This legislation is important. If there were issues that arose in relation to identity which we could have addressed because of certain technological changes that were occurring—if we had a capacity to identify more effectively people who posed risks to Australia —but we put it off, I think we would be derelict in our responsibilities. It is important that we give those who are required to deal with theses issues for us effective tools to be able to work at properly identifying those people who seek to come here and to be able to work with other nations, particularly with other law enforcement organisations, to address situations where people may be seeking to disguise their identities and when their ulterior motives are quite detrimental to the interests of Australia. I urge the chamber to support the bill. If there are issues after the Senate committee's report that it is believed ought to be looked at, obviously we can address those at an appropriate time.

Question agreed to.

Bill read a second time.