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JOINT COMMITTEE ON THE AUSTRALIAN CRIME COMMISSION
06/11/2008
Legislative arrangements to outlaw serious and organised crime groups

CHAIR —Welcome. I invite you to make a brief opening statement that will be followed by questions from the committee.

Mr Frew —I have no opening statement. I am here at your request, obviously in an endeavour to answer all of your questions. You would understand that Immigration is a very large organisation. It might be that for some areas of your questioning I might have to take questions on notice, but, that notwithstanding, I will do my best.

CHAIR —Thank you, Mr Frew.

Ms LEY —We appreciate your coming before the committee today. How successful do you think we are, and can you comment on the factors affecting that success, in keeping the elements associated with serious and organised crime out of the country?

Mr Frew —I will perhaps give a general comment about border measures first and then turn to the specific issue. Last year, nearly 12 million people entered Australia. About 7.1 million of those people were not Australian passport holders. The successes of the border measures and indeed the visa integrity I think are matters of substantial record. For example, in the area of visa integrity, for the sake of discussion, the public figures indicate that there are about 48,000 visa overstayers out of seven-odd million visaed people. That is an extraordinary success rate and compares favourably to other developed economies with the same kind of border management arrangements.

In respect of the specifics around organised crime et cetera, the universal visa system that underpins the requirements for entry to Australia means that every visa applicant is tested against our central movement alert list, which is a single whole-of-government alert list that contains more than 600,000 individual records and more than two million documents of concern. Contained in the alert list are concerns raised by other national security agencies, by law enforcement agencies et cetera. The fact that every individual is checked against that alert list at the time of visa application and subsequently on the way through the process is a measure that is largely without equal in border systems throughout the developed world. Many other countries have a range of different warning lists that are separate and are checked on different occasions.

A large number of visas are refused in a given year for a wide range of reasons. Contained within those refusals would be some refused on character grounds. When I say a large number, I add that it is a small number as a proportion of all visa applicants. Without talking about specifics of individual cases, the overall structure of checking and continual checking leaves us, I think, in reasonably good shape. Is there some greater specificity that you are seeking?

Ms LEY —Is there any planning or mapping or—it is a bit hard to do, I know—are there any estimates made of how many people are not being caught by that process, given that we do have elements within the country many of whom have come from overseas sometime over the last 20 years?

Mr Frew —The immigration department is the owner of the issues around entry and, to an extent, exit. As to who may have a visa and who may not—again, we are, under the Migration Act, the deliverer of that particular outcome. If persons are of concern to the department, either because they are of concern to someone else or, indeed, because we have come across information ourselves in some way, then there are legislative measures available to us to either prevent the entry of the person or remove the person subsequently. If the question is: does Immigration map the organised crime entities in Australia and assess them against the Migration Act, I think the answer to that is no. It is not our job to map organised crime in the way that I think you are proposing.

CHAIR —What about student visas? You would have seen the article in last week’s Daily Telegraph, ‘Asian gangs Yee Tong, Sing Wah recruit Western Sydney teens’. One of the questions posed in that article is: ‘Do student visa rules need to be tightened?’ It is not only about this example; there is also the issue of Columbia. Columbia sends 4,000 students here a year. Senator Polley and I were in Columbia. We spoke to the federal police there, who mentioned that a number of these students may just be drug mules. Is that an issue that we should be looking at? Should we be looking at student visas from China—not just for the gangs but also, say, for the prostitution—and from Columbia?

Mr Frew —I guess I have to revert in part to something I said earlier and then come back at it. There are a range of criteria that apply to applicants for visas of particular classes. Depending on a range of circumstances, they may be subjected to character checking; they may be subjected to additional security checking et cetera. These are, by and large, publicly available criteria. Some of the national security information is, obviously, not in the public domain. If you were to take, for example, that particular article about the student arrangements, the criteria for students, given that they are going to be here for an extended period of time, entail requirements in connection with health. I think there are also requirements in connection with character checking if someone is here for that length of time. That is to say that they have to demonstrate to the decision maker that they do not have any criminal convictions et cetera.

The risk that we and other border agencies all around the world face is whether or not people are withholding documentation or providing documentation that is inaccurate. Without specific concerns about individuals in that particular group, upon which we will do some research, it is difficult for me to answer a general question. If there was a concern about Columbian students, for the sake of discussion—and I said at the outset it may be that I do not know the answer to all of the component parts—by virtue of the length of their study in Australia, they would be required to provide evidence of no criminal record, as a part of the process. Without that evidence the visa would not be granted. If we are dealing in the areas where there are concerns about people who have no convictions, that is an entirely different issue and set of circumstances.

Finally, I will just point out that the overseas student market contributes very substantially to the Australian economy and it is one of the largest exports of services income streams. The numbers of students in Australia at any given time are large; it would exceed 100,000, but I am not sure that I could give you a more specific figure. Within a very large cohort of any group of people, whether it is student visa holders or AFL players, there will be, from time to time, problems with individuals.

Ms LEY —Just to continue on this point, do you see any changes happening to the migration act, or would you like to, that might restrict entry of people likely to be involved in offences? I know that that seems to be drawing a very long bow, but there are parts of the world from which you cannot get visas to come to Australia because of your likelihood to abscond when you get here, so there is a bit of a precedent. It seems that if we can take measures at our borders to prevent from entering those people who then become very difficult to deal with, we should.

Mr Frew —There is a fine balance in which we are engaged every day between facilitation of the large numbers of genuine travellers and the prevention of the entry of people who would do harm in some way, whether it is the integrity of the migration program or whatever. Where the balance is drawn changes from time to time in certain ways. For example, since September 11 all countries’ border measures have tightened up in particular areas in response to a changing risk environment. I do not think it would be appropriate for what I think should occur in respect of government policy. That is not for me to answer. But I think that successive governments have demonstrated a capacity to look at changing risk issues, insofar as the immigration department has a capacity to deal with it, and through legislative and/or business or other means, shift things around. But the facilitation between the overwhelming majority of genuine travellers who do the country good in some way or another has got to be a clear consideration in dealing with the stuff at the edges.

Senator POLLEY —We have had extensive discussions with the Federal Police in relation to Colombia. There will now be direct flights from Chile to Australia. Law enforcement are aware of the implications that that could contribute to growth in muling drugs into the country. Is that something the department should be looking at in terms of ensuring that all the checks and balances are done?

Mr Frew —Yes. If I may repeat something I said earlier: the department administers a visa regime and, if there are issues of security or criminality or whatever, we take advice from other agencies in that respect. Did you say there have been direct flights from Chile?

CHAIR —I think the senator meant that there is going to be direct Qantas flights from Argentina.

Senator POLLEY —Yes.

Mr Frew —There have been direct flights from Buenos Aires before. Both Aerolineas and, I think, Qantas did it at one stage, and we now have direct flights from Santiago. I think that is the only other South American port. There are a range of measures in place which go to immigration and border security pure and simple, which is to say that all people getting on board an aircraft, wherever it happens to be hailing from, go through a process at the point of check-in that determines whether or not we have evidence of having granted them a visa. If there is no evidence of them having a visa then they are not permitted to board the flight until the issue is rectified. If they cannot get a visa at that time then they will not get on that flight. I keep going back to the visa process because it is the visa process that brings about the MAL, or movement alert list, checking, which is where we find if someone is of direct concern to us. Direct flights from new countries is something we deal with quite frequently. If there is an increased risk according to the AFP in connection with drug-muling then I imagine that the AFP and/or customs would be looking at it in that particular respect. The way that Immigration looks at it is from people who represent a threat to border security, the integrity of the program et cetera.

Senator POLLEY —Do you think the legislation is stringent enough in terms of your department’s role in protecting Australians from organised and serious crime?

Mr Frew —Again, I am not sure if it is appropriate for me to give a personal view. I would point to the fact that, as well as the balance between facilitation and control, we are also engaged in the balance of fair decision making. We have, as I am sure the committee would know, reams of legislation that drive our actions in that regard. Indeed, many of our decisions are tested before courts. From time to time, that has an impact on the way that our processes work. Again, I am sorry, but I do not believe that I can give a personal view, other than to say that there are mature processes that have been around for a long time to help us deal with people of bad character, security concern or threat to the integrity of the immigration program.

Senator POLLEY —We have heard evidence in relation to the increase in internet fraud and identity theft. What challenges does that present to the department? If you can, please give some examples in your answer.

Mr Frew —Identity theft presents challenges to all government and indeed to the private sector. Australia, like a number of other countries in the area of border management—and I must keep confining myself to that—has for a number of years been looking at that under the theme of a project named biometrics at the border. Immigration, customs, the Department of Foreign Affairs and Trade and the Attorney-General’s Department some number of years ago now were provided with funding to look at the insertion of biometrics more systematically into the travel process. For the department of foreign affairs, this resulted in them producing the now biometrically enabled e-passport that Australians are using in great numbers. For customs, it involved the installation of an automated border processing kiosk called SmartGate, which is the thing that can read the electronic passport. In Immigration we had to do a fair bit of under the surface work in connection with our many systems to create an environment in which we could start using biometrics more effectively. We are using biometrics now in Immigration specifically in a limited number of ways, but it is our intent over time to expand the use of biometrics into the visa process. Why would we do that? Because biometric identifiers are more secure than just data and we, like many agencies, rely heavily on data. We are also conscious of the fact that countries like the United States, Japan and the United Kingdom and soon the EU are going to be interposing biometrics into their travel processes to a higher level. Clearly it is appropriate for Australia not to lose pace in that arrangement. So we are doing much work not only within Immigration but across government to get greater security in the travel environment using biometrics.

Senator POLLEY —Thank you.

CHAIR —Is there sharing of reciprocal information between countries—say, between us and China? With regard to a person making an application to come to Australia, do we get full cooperation from other countries or is there an A, B and C level, and does that determine whether you get the visa?

Mr Frew —Let me try this and see if it goes any way to answering your question. The visa transaction is between the individual and the Australian government. From time to time, it is a requirement that the individual will have to produce documentation which originates in the host government. They may have to produce employment references or letters of good character or something or other. In each and every case, can we be confident that that is genuinely supplied documentation by the host government? I guess the answer to that is no. However, we have a range of specially trained officers. We have a significant investment in document examination, both labs and officers, whose job it is to try and find out when this is not going correctly. So in the countries that you might expect documentation is perceived to be of the highest level of integrity and in the countries that you might expect some documentation is not.

In terms of information sharing, there are, again, privacy and other legislative strictures on what we may do in talking about a visa applicant to another party. It would not be a matter of common occurrence where we might go to, say, a host government and say: ‘This visa applicant has given me this bunch of information. What do you think?’ There are, however, accepted protocols in terms of information sharing in limited circumstances. I would think it would be fair to say that wherever those opportunities are necessary to be availed of, we would be involved in that.

CHAIR —Thank you.

Mr WOOD —You mentioned biometrics. What type of biometrics? Is it fingerprints or iris scans, or are we up to facial recognition?

Mr Frew —The current biometrically enabled Australian passport operates on the facial biometric, as does the SmartGate automated clearance kiosk that I described which is currently at Cairns, Brisbane and Melbourne airports and is being rolled out more progressively. You would do best to speak in more detail to colleagues in the Department of Foreign Affairs and Trade, but I know that the fingerprint biometric is not currently contained in the passport chip and I do not know if there is a proposition that that would occur.

Mr WOOD —What constitutes bad character? If you had, for example, someone who in an outlaw motorcycle gang in, say, America who wanted to come to this country, do you have means of detecting that person? If you did, would you actually stop them on bad character for being associated with the motorcycle gang?

Mr Frew —They are simple questions and I will provide complicated answers.

Mr WOOD —I thought you might.

Mr Frew —The definition of bad character—and I was using the term loosely, just as a couple of English words—

CHAIR —I hope none of us fall into that category.

Mr Frew —I would be absolutely certain of that.

Mr WOOD —Certain that they would or certain they would not?

CHAIR —I am not sure about the Liberals, but I know we would.

Mr Frew —There is nothing I can say after that. If you contemplate the term ‘bad character’, can I give it to you in this sense. We deal with visa applications of many kinds. We deal with short-term visitors. We deal with people who want to transact through. We deal with people who want to stay here and settle permanently. The nature of a person’s offences, if any, has to be measured in the context of the decision that you are making. Without putting to fine a point on it, if someone is coming here for a short time for a holiday and it is no substantial gain, apart from the economics, to Australia, and they have a conviction of a relatively small sort, I guess, with a small time of imprisonment, that might be a case that on balance the risk to Australia is not outweighed by the reason for the travel so that might be refused.

The same conviction that is being considered in the context of a person who has been here for many years, who wants to stay and has children here et cetera might take on a different characteristic. There are provisions in legislation; there is not an objective decision maker who is just applying a rule of thumb. But, with few exceptions, there is no statement that if the conviction is ‘this’ then it is in or out, if you take the point.

In connection with an outlawed motorcycle gang and the position you described where the chap is coming from America, if he were coming for, say, a visit to Australia and was being assessed for a visitors visa, arguably there would be issues to do with him applying for an electronic travel authority and therefore not having a human involved in the decision-making. I will come back to that. If the person were being considered in all of the circumstances, it was a short-term visit, there was no great benefit in the visa being granted and we were a bit concerned about whether this person was a genuine and bona fide tourist—as the legislation might describe—the visa might be refused just on the basis of the fact that he is not a genuine and bona fide tourist. The decision maker might not have to turn his or her mind to the more complicated elements of association.

If the person appeared in every other way to be a genuine tourist—that may be surprising, but if it happened—there is provision in migration legislation for a person to be refused in limited circumstances where there is an association test as part of section 501 which is, broadly speaking, a character test. If we need to go into the detail of that, I will ask Ms Angus to help me out. One of the issues about the way our border management processes work now is that a percentage of applicants travelling to Australia do so on an electronic visa of some kind. On that basis, there may not be a physical transaction. There may only be a limited amount of information available until they arrive at the border.

Mr WOOD —How would you actually find out? For example, did the American authorities warn Australia immigration, or the immigration contacts, and say ‘You have got a member of a bikie gang coming over. We have got no reason to know if he is coming over for tourism or—

Mr Frew —In the way of the world, our movement alert lists are terrific at identifying things that we know about.

Mr WOOD —Yes.

Mr Frew —There is an amount of work that we do that I would not want to speak too broadly about in an open forum—

Mr WOOD —Yes, I understand.

Mr Frew —in which we analyse information and come to certain conclusions that identify people who are not on the movement alert list. We do this in conjunction with some of the other agencies as well as independently. If the case that you have described is on our movement alert list, we would do certain things. If he is not on the movement alert list and he turns up at the border—in my experience it is not unusual for people to turn up at the border wearing their colours, which kind of gives them away—that is handy because then we can intervene. If there are issues that bring people into the legislative room, we might cancel their visa and turn them around—that might happen.

Mr WOOD —Would you actually stop a person if you were aware he was a member of an outlawed motorcycle gang? Would that be sufficient? The reason I ask is that you have spoken about holidays, but we are hearing today and on other days how outlaw motorcycle gangs are international and there is movement of drugs from various countries into Australia.

CHAIR —Training!

Mr WOOD —Yes. So what is the position regarding an outlawed motorcycle gang member, or any gang member, coming to the country?

Mr Frew —As I just described a moment ago, there is provision in the legislation for us to cancel visas or refuse to grant visas in certain circumstances.

Mr WOOD —So it is not a blanket automatic ban—that is what I am trying to find out?

Mr Frew —No, it is not an automatic ban.

Mr WOOD —But is it a reverse onus where they have to prove their goodwill to come into the country?

Mr Frew —Before we would exercise the decision we would have to be satisfied that the legislative requirements of association were met. The risk of employing that kind of legislation without careful consideration in each case is quite high.

Mr WOOD —Is it possible to give us, on notice, some examples or what the legislation states so that we can be aware of what the criteria are, or is it like some magical science which you cannot really—

Mr Frew —We can absolutely give you what the legislation states, and I have prepared a very short history that I may even read into the record if that would suit you. Section 501 is the section of the current Migration Act. The original version was inserted into the Migration Act by a different section name in 1992. Prior to that, removal of persons involved in criminal conduct relied on provisions in the act for the deportation of aliens convicted of criminal offences.

The 1992 amendments conferred a cancellation power on the minister if the minister was satisfied that the person was not of good character, having regard to the person’s criminal conduct or because of the person’s association with another person or group who the minister reasonably believed had been involved in criminal conduct. Section 501 was repealed and replaced by the section in its present form in 1998, with further amendments coming into force in June 1999. The amendments introduced the character test in a more absolute form, in particular by providing that a person automatically fails the character test if he or she has a substantial criminal record. The association ground of the character test was retained, albeit in a modified form. From that you can draw that since 1992 there has been legislative provision to enable us to deal with association.

Mr WOOD —Thank you.

CHAIR —That would get a bikie club but not a book club on that definition, I suppose?

Mr Frew —We did a little research before we came today and the association component of section 501 is not used all that frequently.

Ms LEY —Why is that?

Mr Frew —I guess because cases where it is necessary to go in that direction have not presented themselves to decision makers.

CHAIR —We may have some questions that we will send off to you that we have not covered here today, otherwise thank you very much Mr Frew and Ms Angus for coming this afternoon.

Mr Frew —Thank you.

Proceedings suspended from 2.27 pm to 2.37 pm