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Wednesday, 28 March 2007
Page: 119

Senator SCULLION (Minister for Community Services) (5:11 PM) —I move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—


This Bill is an omnibus Bill which makes amendments to four Acts, all of which contain mirror provisions relating to personal identifiers.  The amendments are to the Migration Act 1958, the Fisheries Management Act 1991, the Torres Strait Fisheries Act 1994 and the Environmental Protection and Biodiversity Conservation Act 1999.

The Bill also makes two other amendments to the Migration Act, dealing with movement records, and enforcement visas granted to illegal foreign fishers.

Schedule 1 of the Bill amends provisions in relation to personal identifiers. 

Identifying information provisions were inserted into the Migration Act in 2004.  These provisions create a scheme for the collection, access and disclosure of “personal identifiers” in various immigration circumstances.  Personal identifiers include photographs, signatures, and fingerprints; and audio and video recordings.

Since the provisions were inserted, it has become clear that there have been some unintended consequences of the access and disclosure provisions which need to be rectified. 

The provisions impose criminal penalties in relation to the access and disclosure of personal information, unless that access or disclosure is expressly permitted.  It has become apparent that the list of permitted disclosures and access grounds is too limited. My Department’s ability to continue normal working practices is being seriously hampered and in some instances activities have been discontinued as a result.  For example, my Department can no longer disclose photos and signatures to investigate and prosecute some Migration Act offences.  My Department can also no longer disclose photos and signatures to law enforcement agencies or the Commonwealth Director of Public Prosecutions for the prosecution of crimes that are not immigration related.

An independent review of these provisions is scheduled to commence on the third anniversary of the provisions in the second half this year.   It is expected that this review will address many of the difficulties which have been identified with the personal identifier provisions.  However, in light of the serious problems presently being faced by my Department, it is essential that certain amendments be made as soon as possible.  These are expected to resolve the most urgent problems being experienced.

The proposed amendments will introduce a permitted disclosure ground that mirrors the Privacy Act ground of “reasonably necessary for the enforcement of criminal law”. Without this amendment the Department cannot provide a signature on an incoming passenger card to the Commonwealth Director of Public Prosecutions for drug trafficking cases.  This piece of evidence is crucial in establishing when a person charged with such offences arrived in Australia.  Several drug importation matters have been delayed because of our inability to provide this information.

The Bill will also allow identifying information to be disclosed where the disclosure is “required by or under law”.  Again, this mirrors a Privacy Act ground, and will allow my Department to provide photos of clients in response to search warrants. 

There will be a new permitted disclosure ground to allow the Department to send audio tapes and video recordings of client interviews to companies for transcription and translation services.  The current provisions mean that this activity is largely being done by staff in my Department.  Allowing professional transcription and translation companies to provide these services will result in a more efficient allocation of departmental resources.

The Bill will also permit disclosure of identifying information collected under the Migration Act to the Migration Agents Registration Authority to enable it to continue to investigate complaints into migration agents.

These amendments have been developed in close consultation with the office of the Privacy Commissioner to ensure that they are aligned with the provisions of the Privacy Act.

Similar amendments will also be made to the personal identifier provisions of the Fisheries Management Act, the Torres Strait Fisheries Act, and the Environmental Protection and Biodiversity Conservation Act.  

These Acts contains provisions which mirror the personal identifier regime in the Migration Act. The mirror regimes ensure consistency of rules and practices between the four pieces of legislation. This is particularly important in the case of illegal foreign fishers, who may be in detention under the fisheries or environmental protection legislation when brought into Australia, but the legal basis for their detention may change to the Migration Act after a number of days.  There is therefore a need for consistency in how identifying information is collected and dealt with under all four Acts. The only amendment to the Migration Act provisions which is not mirrored for these other Acts is that which permits disclosure to the Migration Agents Registration Authority, as this is not relevant to the other portfolios.

In addition to the personal identifier changes, the Bill makes two other amendments to the Migration Act.

Schedule 2 of the Bill deals with the release of movement records kept by my Department. These are electronic records of arrivals in, and departures from, Australia of both citizens and non-citizens.

Under the Migration Act, it is an offence for a person to read, examine, use or disclose a movement record, unless the person has been authorised to do so by the Minister. The Act sets out who may be authorised and for what purposes. It does not allow the Minister to authorise officers to make records available to the person to whom the record relates, or that person’s agent.

Individuals seeking their own records must therefore apply for access under the Freedom of Information Act 1982.  There are many occasions where a person’s movement record is required as evidence for health insurance, tax or other purposes.  Access through the freedom of information process is unnecessarily complex from a client service perspective

The proposed amendments to the Migration Act will ensure my Department can respond to client requests for movement records in a more efficient manner. 

Schedule 3 to the Bill amends the Migration Act definition of ‘fisheries detention offence’.

The definition lists offences specified in the fisheries legislation.   Non-citizens brought into Australia under suspicion of having committed such offences are granted enforcement visas. This ensures that while they are in fisheries detention, they are not also in immigration detention. 

The Fisheries Management Act was amended last year to add new fishing offences.  The proposed amendment to the Migration Act will include references to these new offences in the definition of ‘fisheries detention offence’. This will ensure that enforcement visas are granted to non-citizens who have been brought to Australia in relation to these new offences.

I commend the Bill to the House.

Ordered that the resumption of the debate be made an order of the day for a later hour.